**Exhibit 10.18****EXECUTION COPY**     **EMPLOYMENT AGREEMENT**(this “Agreement”) dated as of October 5, 2007, among**ARCHSTONE-SMITH COMMUNITIES L.L.C.**, a limited liability company formed under the laws of the Stateof Delaware (the “Employer”), **R. SCOTT SELLERS**(“Executive”), and **Archstone-SmithOperating Trust**, a real estate investment trust formed under the laws of the State of Maryland (the“Company” or “ASOT”), as Guarantor.     **WHEREAS,**pursuant to the Agreement and Plan of Merger, made and entered into as of the 28thday of May, 2007, as amended by that certain Amendment No. 1 entered into as of the 5thday of August, 2007, by and among Archstone-Smith Trust, a real estate investment trust formedunder the laws of the State of Maryland (“AST”), ASOT (together with AST, the “SellerParties”), River Holding, LP, a Delaware limited partnership (“River Holding”), RiverAcquisition (MD), LP, a real estate investment trust formed under the laws of the State of Maryland(the “Merger REIT”) and River Trust Acquisition (MD), LLC, a Maryland limited liabilitycompany (the “Operating Trust Merger Sub”) (the “Merger Agreement”), (i) at theOperating Trust Merger Effective Time (as defined in the Merger Agreement), the Operating TrustMerger Sub shall be merged with and into ASOT and ASOT will be the surviving entity in theOperating Trust Merger (as defined in the Merger Agreement) and (ii) at the Company MergerEffective Time (as defined in the Merger Agreement), being the date hereof and hereafter referredto herein as the “Effective Date”, AST will be merged with and into an assignee of Merger REIT andsuch assignee of Merger REIT will be the surviving entity in the Company Merger (as defined in theMerger Agreement) (the Operating Trust Merger and the Company Merger collectively, the“Transaction”);     **WHEREAS**, concurrently with the execution of the Merger Agreement, as a condition andinducement to the River Holding’s willingness to enter into the Merger Agreement, River Holding andExecutive entered into a definitive term sheet with respect to Executive’s employment by theEmployer upon the closing of the Transaction (the “Term Sheet”); and     **WHEREAS,**the Seller Parties and Executive are parties to that change in control agreementdated as of August 12, 2002, as such change in control agreement has been amended or supplementedthrough the Effective Date (the “Prior Agreement”); and     **WHEREAS**, this Agreement, when executed, replaces the Term Sheet and the Prior Agreementeffective as of the Effective Date; and     **WHEREAS,**in connection with the Transaction, the Employer desires to employ Executive andExecutive desires to be employed by the Employer; and     **WHEREAS,**the Company has agreed to provide certain benefits directly under this Agreement andto guarantee payment of the compensation obligations hereunder of the Employer;
 

 
     **NOW THEREFORE,**in consideration of the mutual covenants contained herein and other good andvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the partieshereto agree as follows:     Section 1. Employment Period.     The initial term of this Agreement shall commence on the Effective Date and end onDecember 31, 2010 (the “Initial Period”), unless terminated earlier pursuant to Section 3;provided, however, that as of the expiration date of each of (i) the Initial Periodand (ii) if applicable, any Renewal Period (as defined below), the term of this Agreement willautomatically be extended for a one-year period (each, a “Renewal Period”), unless eitherparty gives at least ninety (90) days written notice prior to such expiration date of its intentionnot to extend the term of this Agreement (the Initial Period and each subsequent Renewal Periodshall constitute the “Employment Period”). Executive’s termination of employment at theend of the Employment Period following a notice of nonrenewal by the Company or the Employer shallbe treated as termination by the Employer without “Cause” (as defined below) as of the end of theEmployment Period. Upon Executive’s termination of employment for any reason with the Employer andall other affiliates of the Employer, he shall immediately resign all positions with the Employer,the Company and any of their respective subsidiaries or affiliates.     Section 2. Terms of Employment.          (a) Position. During the Employment Period, Executive shall serve as Chief ExecutiveOfficer of the Company and the Employer, and as a member of the board of directors or otherapplicable governing body of Tishman Speyer Real Estate Venture VII (Governance), L.P., and at alltimes as the senior executive officer of the Company and the Employer and each of their respectivecontrolled subsidiaries. During the Employment Period, Executive shall have such duties andresponsibilities as are commensurate with the normal responsibilities of a chief executive officerof an enterprise similar to the Company, of like size and controlled by private-equity investors,including responsibility for the day-to-day management of the Company, subject to the direction ofthe Board of Directors of Tishman Speyer Archstone-Smith Multifamily Series I Trust which Board ofDirectors are to be appointed, directly or indirectly, by Tishman Speyer Real Estate Venture VII(Governance), L.P. and Tishman Speyer Real Estate Venture VII Parallel (Governance), L.P.(collectively, the “Governance GP”) or an authorized representative of the Governance GP(the “Designee”); provided, that the Designee shall be a senior executive of theGovernance GP or one of its affiliates. In performing his duties hereunder, Executive shall reportdirectly to the Governance GP or the Designee. At the request of the Governance GP, Executiveshall also serve as Chief Executive Officer, without additional compensation, of any of theCompany’s (i) subsidiaries or (ii) affiliates, a substantial portion of the activities of whichinvolve the acquisition, disposition, operation, development, management or financing ofmultifamily residential apartment buildings or communities.          (b) Duties. During the Employment Period, Executive agrees to devote all of hisbusiness time to the business and affairs of the Company and the Employer and to use Executive’sreasonable best efforts to perform faithfully, effectively and efficiently his responsibilities andobligations hereunder. Notwithstanding the foregoing, nothing herein shall prohibit Executive from(i) serving on civic or charitable boards or committees, (ii) with the
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consent of the GovernanceGP, which consent will not be unreasonably withheld, serving on the board of directors of no morethan one public company which does not engage in the acquisition, disposition, operation,development, management or financing of multifamily residential apartment buildings or communitiesor office buildings and (iii) managing personal investments,so long as, individually or in the aggregate, such activities do not materially interfere withthe performance of Executive’s responsibilities hereunder.          (c) Compensation.               (i) Base Salary. During the Initial Period, Executive shall receive from the Employeran annual base salary of $750,000.00, which shall be paid in accordance with the customary payrollpractices of the Employer (the “Annual Base Salary”). During the Employment Periodfollowing the Initial Period, Annual Base Salary shall be adjusted by not less than the increase inthe US Department of Labor Consumer Price Index CPI-U, US City Average, All Items, from theEffective Date until the first day of the Renewal Period, and annually thereafter on the samebasis.               (ii) Bonuses.               (1) Guaranteed Annual Bonus. Subject to the following sentence, Executive shall earnfrom the Employer a guaranteed annual bonus of $4.0 million in respect of the fiscal year of theEmployer (the “Fiscal Year”) ending on December 31, 2008 (the “2008 Guaranteed AnnualBonus”) and shall earn a guaranteed annual bonus of $2.0 million in respect of each of theFiscal Years during the Employment Period ending on a subsequent December 31 (together with the2008 Guaranteed Annual Bonus, the “Guaranteed Annual Bonus”). Other than as set forth inSection 4 below or with respect to any portion of a Guaranteed Annual Bonus deferred in accordancewith Section 2(c)(vii) below, the Guaranteed Annual Bonus in respect of any Fiscal Year shall bepaid not later than the March 15 following the end of such Fiscal Year, and only if Executive isemployed by the Employer or the Company on the last day of the Fiscal Year to which such GuaranteedAnnual Bonus relates.               (2) Incremental Annual Bonus. Subject to Section 2(c)(ii)(2)D. below, in addition tothe Guaranteed Annual Bonus, Executive shall be eligible to earn from the Employer an annualincremental bonus (the “Incremental Annual Bonus”), which shall be based on the dollaramount of direct and indirect equity interests in Tishman Speyer Archstone-Smith Multifamily JV,L.P. (“Fund”), Tishman Speyer Archstone-Smith Multifamily Parallel JV, L.P. (“ParallelFund”), Tishman Speyer Archstone-Smith Multifamily Parallel Fund I JV, L.P. (“Parallel Fund I”),Tishman Speyer Archstone-Smith Multifamily Parallel Fund II JV, L.P. (“Parallel Fund II”) and anyentity similar to Parallel Fund I created after the Effective Date (each a “Post-Effective DateParallel Fund”), and any of their direct or indirect controlled subsidiaries owned on orfollowing the Effective Date by parties other than Lehman Brothers Holdings Inc.(“Lehman”), Tishman Speyer Real Estate Venture VII, L.P. (“Tishman Speyer”), Bancof America Strategic Ventures, Inc., a Delaware corporation, Archstone LB Syndication Partner LLC,a Delaware limited liability company, BIH ASN, LLC, a Delaware limited liability company, Executiveor any of their respective affiliates (including but not limited to any investment funds sponsoredand managed by any of them or any of their respective affiliates) (collectively, the “EquityParties”) in connection with the bridge equity syndication presently
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contemplated by the EquityParties (the “New Equity”); *provided, however*, that (i) equity which is owned on orfollowing the Effective Date by any of the Bridge Equity Providers (as defined in the SyndicationAgreement and Modification Agreement, dated as of the date hereof, among affiliates of TishmanSpeyer, affiliates of Lehman and the Bridge Equity Providers (the“Syndication Agreement”)) shall be treated as New Equity only if and to the extentthat such equity is retained as a result of a Bridge Equity Provider having made a voluntaryelection in writing prior to a Failed Syndication (as such term is defined in the SyndicationAgreement) to retain such equity pursuant to the terms of the Syndication Agreement and notsyndicate it to third parties; and (ii) Syndication Equity (as defined in the SyndicationAgreement) which has been sold to any of the Equity Parties (other than the Bridge EquityProviders) subsequent to the Effective Date shall be treated as New Equity if and only ifAdministration Fees and GP Promote (as such terms are defined in the Syndication Agreement) arepaid on such equity, whether or not paid at the highest rate.                    A. 2008 Incremental Annual Bonus. With respect to the Fiscal Year ending on December31, 2008, (1) if the amount of New Equity on December 31, 2008 is at least $4.6 billion, theIncremental Annual Bonus will be $3,125,000 and (2) if the amount of such New Equity is greaterthan $2.3 billion, but less than $4.6 billion, the Incremental Annual Bonus will be equal to thesum of (a) $1,562,500 plus (b) the product of (i) $1,562,500 multiplied by (ii) a fraction, thenumerator of which is the amount of such New Equity in excess of $2.3 billion and the denominatorof which is $2.3 billion (the “Partial Incremental Annual Bonus”).                    B. 2009 and 2010 Incremental Annual Bonuses. With respect to the Fiscal Years endingDecember 31, 2009 and 2010, if the amount of New Equity on the last day of each such Fiscal Year isgreater than $2.3 billion, the Incremental Annual Bonus in respect of such Fiscal Year will be (1)$3,125,000, if the amount of such New Equity is at least $4.6 billion, and (2) the PartialIncremental Annual Bonus (as determined pursuant to Section 2(c)(ii)A above, but using the amountof New Equity on the last day of the applicable Fiscal Year), if the amount of such New Equity isgreater than $2.3 billion but less than $4.6 billion.                    C. Incremental Bonuses for 2011 and Thereafter. With respect to Fiscal Years endingDecember 31, 2011 and later, if the amount of New Equity on the first anniversary of the EffectiveDate (the “Syndication End Date”) is greater than $2.3 billion, the Incremental AnnualBonus in respect of such Fiscal Year will be (1) $3,125,000, if the amount of such New Equity is atleast $4.6 billion, and (2) if the amount of such New Equity is greater than $2.3 billion but lessthan $4.6 billion, the Incremental Annual Bonus shall be equal to $3,125,000 multiplied by afraction (not greater than one) (the “Fraction”), (i) the numerator of which is the aggregateannual Administration Fees (as such term is defined in the Syndication Agreement), which GP andParallel GP, or either of them, is entitled to receive in respect of such Fiscal Year pursuant tothe Syndication Agreement, or are otherwise permitted to and in fact receive pursuant to suchSyndication Agreement and any side letter referenced therein (collectively, “Fees”) and(ii) the denominator of which is the aggregate annual Fees which GP and Parallel GP would have beenentitled to receive in respect of such Fiscal Year pursuant to the Syndication Agreement and anyside letter referenced therein, had the amount of such New Equity been $4.6 billion assuming thatAdministration Fees would have been paid at a rate of .45% (the denominator being referred toherein as “Full Syndication Fees”). Executive shall be entitled to all relevantinformation pertinent to the calculation of Fees.
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                    D. General. Subject to Section 4, the Incremental Annual Bonus, if any, in respect ofany Fiscal Year shall be paid not later than the March 15 following the end of such Fiscal Year,but only if Executive is employed on the last day of the Fiscal Year to which such IncrementalAnnual Bonus relates. No Incremental Annual Bonus will be paid pursuant to Section 2(c)(ii)(2)A.or B. above in respect of any Fiscal Year for which, on the last day of such Fiscal Year, theamount of New Equity is not greater than $2.3 billion; and no Incremental Annual Bonus will be paidpursuant to Section 2(c)(ii)(2)C. above in respect of any Fiscal Year unless there is at least $2.3billion of New Equity on and as of the Syndication End Date.               (iii) Benefits. During the Employment Period, Executive shall be entitled toparticipate in all savings and retirement plans, practices, policies and programs applicablegenerally to other senior executives of the Company and the Employer and shall be eligible forparticipation in, and shall receive all benefits under, welfare benefit plans, practices, policiesand programs provided by the Company and the Employer to the extent applicable generally to othersenior executives of the Company or the Employer (the plans, practices, policies and programsreferred to in the paragraph, collectively, “Benefit Plans”).               (iv) Vacation. During the Employment Period, Executive shall be entitled to six (6)weeks per annum of paid vacation.               (v) Expenses. During the Employment Period, Executive shall be entitled to receivereimbursement from the Employer for all reasonable business expenses incurred by Executive inperformance of his duties hereunder, provided that Executive provides all necessary documentationin accordance with applicable Company or Employer policy.               (vi) Profits Interests**.**As of the Effective Date, Executive has been granted byTishman Speyer Archstone-Smith Multifamily Participants, L.L.C. 4,800 Class C Units (out of 8,000total available Class C Units) (the “Profits Interests”) pursuant to the terms of the AwardAgreement attached hereto as Appendix A.               (vii) Phantom LP Interests. Notwithstanding Section 2(c)(ii)(1) above, subject to thenext following sentence, Executive may elect in lieu of receiving up to 50% of each GuaranteedAnnual Bonus to receive fully vested ”Class A Units” of Tishman Speyer Archstone-Smith MultifamilyJunior Mezz Borrower, L.P. (“Junior Mezz Borrower”), Tishman Speyer Archstone-SmithMultifamily Parallel Guarantor, L.L.C. (“Parallel Guarantor”), Tishman SpeyerArchstone-Smith Multifamily Parallel Guarantor I, L.L.C. (“Parallel Guarantor I”), TishmanSpeyer Archstone-Smith Multifamily Parallel Guarantor II, L.L.C. (“Parallel Guarantor II”)and any entity similar to Parallel Guarantor created after the Effective Date (each a“Post-Effective Date Parallel Guarantor”) (collectively, “Phantom Units”),provided, however, that (A) the amount covered by such election shall be allocated to Junior MezzBorrower, Parallel Guarantor, Parallel Guarantor I, Parallel Guarantor II and each Post-EffectiveDate Parallel Guarantor (if any) in the same proportion as the aggregate equity invested in suchentities (measured at cost) is allocated between them, and(B) the number of Phantom Units of each such
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entity received in respect of any such election shall be equal to the quotient of (x) thedollar amount of Guaranteed Annual Bonus as to which such election is made and which is allocatedto the applicable entity, divided by (y) the Fiscal Year-end value of one ”Class A Unit” of theapplicable entity, as determined by Governance GP, reported to investors in respect of theFiscal Year in which such Guaranteed Annual Bonus was earned. Any such election as to theGuaranteed Annual Bonus to be earned in respect of a particular Fiscal Year must be made no laterthan the day prior to the first day of such Fiscal Year, or by such other date which the Company orEmployer and Executive agree will not result in tax penalties to Executive under Section 409A ofthe Internal Revenue Code of 1986, as amended (the “Code”) and shall specify one or morepermissible date or dates for settlement and distribution as are consistent with such Section 409A,as provided in paragraph (2) below (the “Settlement Date”). The Phantom Units, if any, willotherwise be subject to the terms and conditions of a Phantom Unit Agreement prepared by theCompany or the Employer and reasonably acceptable to the Company or the Employer and Executive;provided that Phantom Units will have the following features, and any Phantom Unit Agreement willbe consistent therewith:               (1) Phantom Units are intended to provide Executive with cash payments on the Settlement Dateequal to the cumulative cash distributions (and, if applicable, the fair market value of non-cashdistributions) to which he would have been entitled had he owned a number of ”Class A Units” in theissuing entity equal to the number of Phantom Units. Executive acknowledges that all payments inrespect of Phantom Units will be taxable as ordinary income, irrespective of the tax character ofdistributions in respect of “Class A Units”.               (2) The Company or the Employer shall cause all Phantom Units to be redeemed by the issuingentity as soon as practicable following the occurrence of, but in any event during the calendaryear in which occurs, the earliest of (i) Executive’s death, (ii) the date the Executive becomes“disabled” (within the meaning of Section 409A(a)(2)(C) of the Code), (iii) a specified time (whichfor the avoidance of doubt may include his separation from service) elected by Executive inaccordance with Section 409A of the Code and (iv) a change in the ownership or effective control ofthe entity which issued such Phantom Units, or in the ownership of a substantial portion of suchissuing entity’s assets, in a manner which constitutes an allowable payment event under Section409A of the Code. Such redemption will be for cash, except that in the case of a redemption eventdescribed in clause (iv) of the preceding sentence in which the holders of ”Class A Units” of theapplicable entity receive distributions wholly or partially in a form other than cash, suchredemption will be, at the election of the issuing entity, either in cash (with any non-cash assetsdistributed to holders of “Class A Units” valued at their fair market value, as reasonablydetermined by the general partner or managing member of such entity, as the case may be), or in thesame form (including the same proportion) as the distributions made to holders of the applicable”Class A Units”. The amount for which each Phantom Unit will be redeemed pursuant to thisparagraph shall be the per-unit value of the ”Class A Units” of the applicable entity at the timeof the applicable redemption event, which shall be deemed to be (A) in the case of a redemptionevent described in clause (iv) of the preceding sentence, the value established with reference tothe applicable transaction, and (B) in the case of any other redemption event, the Fiscal Year-endvalue of one ”Class A Unit”, as applicable, as determined by Governance GP, in the applicableentity in respect of the Fiscal Year ending immediately prior to the applicable redemption event.
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               (3) Any payments to Executive in respect of Phantom Units caused by the sale or otherdisposition of the related “Class A Units” shall proportionately reduce the number of Phantom Unitsheld by Executive.               (viii) Effective Date Equity Grant. As of the Effective Date, Executive has beengranted (x) 100 restricted Class B Units in Junior Mezz Borrower, with an aggregate value of$10,530,988 as of the Effective Date, (y) 100 restricted Class B Units in Parallel Guarantor I withan aggregate value of $711,470 as of the Effective Date and (z) 100 restricted Class B Units inParallel Guarantor II with an aggregate value of $7,542 as of the Effective Date, for a totalaggregate value equal to $11.25 million as of the Effective Date (the “Effective Date EquityGrant”); provided, however, that, to the extent requested by Executive, as soonas practicable after the Effective Date, the Company (or one of its affiliates) shall provideExecutive with supporting calculations necessary to establish that the “Class B Units” granted tohim pursuant to the Effective Date Equity Grant, and the direct or indirect economic interests inthe assets acquired in the Transaction, were purchased at a price per “unit” that was not lessfavorable to Executive than the price per “unit” paid by Lehman or Tishman Speyer for their“units”, and the Company (or its applicable affiliate) shall promptly make all such adjustments(whether by amendment or otherwise) as are necessary to ensure the foregoing. The Effective DateEquity Grant will be subject to the terms and conditions of the Unit Award Agreements attachedhereto as Appendices B, C and D, which shall in any event provide for withholding of units by theissuer in an amount having a fair market value equal to the taxes due in connection with thevesting of such units, regardless of whether withholding of taxes by such issuer is otherwiserequired by law; provided, however, that such withholding in excess of the minimum withholdingrequired by law shall be required only to the extent not resulting in accounting charges to theissuer or any affiliate thereof in excess of those charges which would apply in the absence of suchwithholding.               (ix) Effective Date Equity Purchase. As of the Effective Date, Executive haspurchased 21.75 Non-voting Class A Units of Junior Mezz Borrower for an aggregate purchase price of$2,290,444 (the “Effective Date Equity Purchase”) subject to the terms and conditions ofthe Unit Purchase Agreement attached hereto as Appendix E; provided, however, that,to the extent requested by Executive, as soon as practicable after the Effective Date, the Company(or one of its affiliates) shall provide Executive with supporting calculations necessary toestablish that the “Non-voting Class A Units” purchased by him pursuant to the Effective DateEquity Purchase, and the direct or indirect economic interests in the assets acquired in theTransaction, were purchased at a price per “unit” that was not less favorable to Executive than theprice per “unit” paid by Lehman or Tishman Speyer for their “units”, and the Company (or itsapplicable affiliate) shall promptly make all such adjustments (whether by amendment or otherwise)as are necessary to ensure the foregoing.               (x) Equity Documents. The agreements reflecting the Effective Date Equity Grant, theEffective Date Equity Purchase, the Profits Interests, any Phantom Units and any other equityinterest or equity interest-based award agreement entered into by and between the Company or any ofits affiliates and Executive on or after the date hereof, are collectively referred to herein asthe “Equity Documents”.
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               (xi) GP Interests. As of the Effective Date, Executive has invested $4.1 millionpursuant to which he has purchased certain interests in Tishman Speyer Archstone-Smith Multifamily(GP) (“Fund GP”), L.P., Tishman Speyer Archstone-Smith Multifamily Parallel (GP), L.P.(“Parallel Fund GP”) (collectively, the “GP Interests”) and Fund pursuant to thelimited partnership agreements of each of such entities. At any time following the cessationof the Executive’s employment for any reason or no reason, the issuer of a GP Interest, or anyaffiliate thereof shall have the right, but not the obligation, to repurchase such GP Interest atits fair market value. For purposes of the preceding sentence, fair market value shall bedetermined by an independent third party appraiser selected by the issuer of the applicable GPInterest from among a list of five independent nationally known appraisal firms supplied by theissuer to Executive (the “Approved Appraiser List”). The Company shall pay for the firstappraisal. If Executive disagrees with such appraisal, he may select one of the remaining fourappraisers on the Approved Appraiser List to perform a second appraisal. If such second appraisalis no greater than 105% of the first appraisal, the first appraisal shall be deemed fair marketvalue and Executive shall pay for the second appraisal. If the second appraisal is greater than105% of the first appraisal, fair market value shall be deemed to be the average of the firstappraisal and the second appraisal, and the Company shall pay for the second appraisal.          (d) Guarantee of Payment. The Company agrees and hereby guarantees to Executive thatall compensation and benefits required to be paid or provided to Executive under this Agreement byany entity other than the Company, other than compensation required to be provided pursuant toSections 2(c)(viii), (ix) and (xi) hereof will, to the extent not timely paid by the Employer orone of it affiliates, instead be timely paid by the Company. This is a guaranty of payment andperformance and not merely of collection. If Employer fails to make any payment when due withrespect to Executive or to perform any duties, obligations or covenants with respect to Employer’sobligations with respect to Executive, the Company will as soon as practicable and unconditionallypay to Executive such amounts and perform such duties, obligations and covenants.     Section 3. Termination of Employment.          (a) Death or Disability. The Employment Period, and Executive’s employment hereunder,shall terminate upon Executive’s death. If Executive becomes subject to a “Disability” (as definedbelow) during the Employment Period, the Company or the Employer may give Executive written noticein accordance with Sections 3(e) and 11(j) of the termination of Executive’s employment. Forpurposes of this Agreement, “Disability” means (i) Executive’s inability to substantiallyperform his duties hereunder by reason of any medically determinable physical or mental impairmentthat can be expected to result in death or to last for a continuous period of not less than 12months, as determined by a physician chosen by the Governance GP and reasonably acceptable toExecutive or his representative, or (ii) Executive is, by reason of any medically determinablephysical or mental impairment, receiving income replacement benefits under the applicable long-termdisability plan covering employees of the Employer.          (b) Cause. The Employment Period, and Executive’s employment hereunder, may beterminated at any time by the Company or the Employer for Cause. For purposes of this Agreement,“Cause” shall mean, in the reasonable judgment of the Governance GP (subject to anycontrary determination by an arbitrator in accordance with Section 11(g) hereof) (i) the
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willfuland continued failure by Executive to substantially perform his duties with the Company, afterwritten notification by the Company or the Governance GP (or the Designee) of such failure, (ii)the willful engaging by Executive in conduct which is demonstrably injurious to the Company or theGovernance GP or any of their affiliates, monetarily or otherwise, (iii) the engaging by Executivein egregious misconduct involving serious moral turpitude or (iv)Executive’s failure to follow the reasonable, lawful directions of the Governance GP or theDesignee (provided that directions from the Governance GP or the Designee, as the case may be,shall be considered unlawful if Executive obtains a written opinion from his counsel to thateffect); provided, however, that an event described in this clause (iv) shall notconstitute Cause unless the Governance GP has notified Executive in writing describing the failurewhich constitutes Cause and then only if Executive fails to either cure such failure or to providea written opinion of counsel that such direction would involve a violation of the Company’s or theEmployer’s Code of Business Conduct and Ethics in effect at the time of the opinion (provided thatif such Code of Business Conduct and Ethics is less stringent than that in effect at the EffectiveDate in respect of the matter to which the opinion relates, than as to that matter the Company’sCode of Business Conduct and Ethics in effect at the Effective Date shall be deemed to apply),within fourteen (14) days after Executive’s receipt of such written notice.For purposes of this provision, (i) no act or failure to act on Executive’s part shall be deemed“willful” unless done, or omitted to be done, by Executive not in good faith and without reasonablebelief that such action was in the best interest of the Company and (ii) no failure of Executive orthe Company or any of its affiliates to achieve performance goals shall be treated as a basis fortermination of Executive’s employment for Cause. The cessation of employment of Executive shallnot be deemed to be for Cause unless and until there shall have been delivered to Executive a copyof a resolution duly adopted by the Governance GP (after Executive is given an opportunity,together with counsel, to be heard before representatives of Tishman Speyer and Lehman specifyingthe particulars thereof in detail).          (c) Termination Without Cause. The Employment Period, and Executive’s employmenthereunder, may be terminated by the Company or the Employer without Cause at any time.          (d) Termination by Executive. The Employment Period, and Executive’s employmenthereunder, may be terminated at any time by Executive for Good Reason or without Good Reason upon90 days’ prior written notice, provided, in the case of a termination for Good Reason, thatExecutive provides such notice within 60 days after the occurrence of the event giving rise to thetermination for Good Reason. For purposes of this Agreement, “Good Reason” meansExecutive’s voluntary resignation after the occurrence of one or more of the following eventswithout Executive’s consent: (i) a material adverse change in Executive’s titles or positions orthe assignment to Executive of duties inconsistent with his position as Chief Executive Officer orwith other responsibilities set forth in Section 2(a) of this Agreement; (ii) a reduction in orfailure to pay when due Executive’s Annual Base Salary, Guaranteed Annual Bonus or IncrementalAnnual Bonus, or a failure by the Company to make any grant (or to cause an affiliate of theCompany to make any such grant) or make any payment in respect of (or cause any affiliate of theCompany to make any payment in respect of) any Phantom Unit or Profits Interests; or (iii) therelocation of Executive’s primary office or the Company’s principal executive offices to a locationmore than five (5) miles from their respective locations as of the
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Effective Date; provided that atermination shall not be for “Good Reason” pursuant to clause (i), (ii) or (iii), unless Executiveshall have given written notice to the Company and the Employer of his intention to resign for GoodReason and the events which constitute such Good Reason and the Company or the Employer shall havefailed to cure such events within fourteen (14) daysafter the Company’s and the Employer’s receipt of such written notice and Executive thereafterelects to terminate his employment for Good Reason.          (e) Notice of Termination. Any termination by the Company or the Employer for Causeor without Cause (including on account of Executive’s Disability), or by Executive for Good Reasonor without Good Reason, shall be communicated by Notice of Termination to the other party orparties hereto given in accordance with Section 11(j). For purposes of this Agreement, a“Notice of Termination” means a written notice that (i) indicates the specific terminationprovision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonabledetail the facts and circumstances claimed to provide a basis for termination of Executive’semployment under the provision so indicated and (iii) if the “Date of Termination” (as definedbelow) is other than the date of receipt of such notice, specifies the Date of Termination. Thefailure by Executive or the Company or the Employer to set forth in the Notice of Termination anyfact or circumstance that contributes to a showing of Good Reason or Cause shall not waive anyright of Executive or the Company or the Employer hereunder or preclude Executive or the Companyfrom asserting such fact or circumstance in enforcing Executive’s or the Company’s rightshereunder.          (f) Date of Termination. “Date of Termination” means (i) if Executive’semployment is terminated by the Company or the Employer for Cause, by the Company or the Employerwithout Cause or by reason of Disability, or by Executive for Good Reason or without Good Reason,the date of receipt of the Notice of Termination (in the case of a termination with or without GoodReason, provided such notice is in accordance with Section 3(d)) or any later date specifiedtherein pursuant to Section 3(e), as the case may be and (ii) if Executive’s employment isterminated by reason of death, the date of death.     Section 4. Obligations of the Employer upon Termination.          (a) With Good Reason; Without Cause. If during the Employment Period, the Company orthe Employer shall terminate Executive’s employment without Cause or Executive shall terminate hisemployment for Good Reason, then the Employer will provide Executive with the following severancepayments and/or benefits:               (i) The Employer shall pay to Executive in a lump sum cash amount, to the extent notpreviously paid, (A) the Annual Base Salary through the Date of Termination, (B) any unpaidGuaranteed Annual Bonus and any unpaid Incremental Annual Bonus earned for any Fiscal Year endedprior to the Fiscal Year in which the Date of Termination occurs, provided that Executive wasemployed on the last day of such Fiscal Year, (C) a pro-rated Guaranteed Annual Bonus for the yearin which the Date of Termination occurs (the “Pro-Rata Bonus”), (D) all unpaid orunreimbursed expenses incurred in accordance with Company or Employer policy and (E) all othercompensation and benefits due to Executive under the terms and rules of any compensation or benefitplan maintained by the Company or its subsidiaries (including the Employer) (the “AccruedObligations”);
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               (ii) If such termination occurs on or after December 31, 2010, a lump sum cash amount within30 business days following the Date of Termination equal to the sum of (A) one times the AnnualBase Salary, (B) $2 million and (C) the Incremental Annual Bonus,based on the application of Section 2(c)(ii)(2)C. to the New Equity raised through theSyndication End Date;               (iii) If such termination occurs prior to December 31, 2010, a lump sum cash amount within 30business days following the Date of Termination equal to the lesser of (A) the sum of (1) two timesthe Annual Base Salary, (2) $4 million and (3) two times the Incremental Annual Bonus, based on theapplication of Section 2(c)(ii)A. or B. (as applicable to the Date of Termination) to the NewEquity raised through the Date of Termination (the “Applicable Incremental Annual Bonus”)and (B) the sum of (1) one times the Annual Base Salary, (2) $2 million, (3) the ApplicableIncremental Annual Bonus and (4) the remaining Annual Base Salary, Guaranteed Annual Bonuses andApplicable Incremental Annual Bonuses (based on the amount of New Equity purchased through the Dateof Termination) to which Executive would have been entitled through December 31, 2010, had heremained employed by the Employer through such date; and               (iv) Notwithstanding Sections 4(a)(ii) and 4(a)(iii) above, if such termination occurs after a“Change in Control” (as defined below), the Employer will pay Executive in a lump sum cash amountwithin 30 business days following the Date of Termination, the sum of (A) two times the Annual BaseSalary, (B) $4 million and (C) two times the Incremental Annual Bonus as determined pursuant toclause (C) of Section 4(a)(ii) above or the Applicable Incremental Annual Bonus as determinedpursuant to clause (A)(3) of Section 4(a)(iii) above, as applicable, based on the Date ofTermination. For purposes of this Agreement, a “Change in Control” means (1) one or more sales orother dispositions by Tishman Speyer and/or Lehman of interests in Fund GP and Parallel Fund GP(collectively, the GP Entities”), at the conclusion of which neither Tishman Speyer nor Lehman, norTishman Speyer and Lehman together, continue to have a controlling interest in the GP Entities, or(2) the collective sale by Tishman Speyer and Lehman of all or substantially all of their limitedpartnership interests in Fund, Parallel Fund, Parallel Fund I, Parallel Fund II and anyPost-Effective Date Parallel Fund (collectively, the “LP Funds”); provided that thefollowing shall not constitute a Change in Control: (A) a sale of Lehman’s interests in Fund GPand/or Parallel Fund GP to Tishman Speyer, (B) a sale of Lehman’s interests in the LP Funds toTishman Speyer, (C) a sale of Tishman Speyer’s interests in Fund GP and/or Parallel Fund GP toLehman, (D) a sale of Tishman Speyer’s interests in the LP Funds to Lehman, (E) a transfer ofinterests in any of the foregoing from Tishman Speyer or Lehman to one or more of their controlledaffiliates, (F) a recapitalization of Fund GP, Parallel Fund GP, any of the LP Funds or any otheraffiliate of the Company through which Lehman and/or Tishman Speyer own general partnership orlimited partnership interests or (G) any syndication of limited partnership interests in any of theLP Funds or the sale of all or any portion of the equity held by the Bridge Equity Providers in anyof the LP Funds.After satisfaction of the obligations set forth in clauses (i), (ii), (iii) or (iv), as applicable,the Employer shall have no further obligation to Executive or his legal representatives, other thanany rights to vested benefits under any Benefit Plans, indemnification rights he may have under
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this Agreement, any rights he may have under the Equity Documents, and any rights Executive mayhave under Sections 11(g) and 11(o) hereof.Notwithstanding any provision in this Agreement to the contrary, in the event that (i) Executive isa “specified employee” within the meaning of Section 409A of the Code (with such classification tobe determined by the applicable employer in accordance with any method specified in applicableTreasury Regulations (a “Specified Employee”), and (ii) it is necessary to avoid taxpenalties under Section 409A of the Code, any payment otherwise required to be made hereunder toExecutive at any date as a result of the termination of Executive’s employment (other than anypayment made in reliance upon Treas. Reg. Section 1.409A-1(b)(9) (Separation Pay Plans) or Treas.Reg. Section 1.409A-1(b)(4) (Short-Term Deferrals)) shall be delayed for six months and one dayfollowing the date on which Executive’s employment is terminated (the “409A Payment Date”),on which date there shall be paid to the Executive, in a single cash lump sum, an amount equal tothe aggregate amount of all payments delayed pursuant to this paragraph.          (b) Death or Disability. If Executive’s employment shall be terminated by reason ofExecutive’s death or Disability, then the Employer will provide Executive (or his estate or legalrepresentative) with the Accrued Obligations. Thereafter, the Company and the Employer shall haveno further obligation to Executive or his legal representatives, other than any rights to vestedbenefits under any Benefit Plans, indemnification rights he may have under this Agreement, anyrights he may have under the Equity Documents, and any rights Executive may have under Sections11(g) and 11(o) hereof. Notwithstanding the foregoing provisions of this Section 4(b), in theevent that (i) Executive is a Specified Employee and (ii) the termination of employment is onaccount of Disability which does not result in Executive being “disabled” (within the meaning ofSection 409A(a)(2)(C) of the Code) and (iii) it is necessary to avoid tax penalties under Section409A of the Code, cash severance amounts that would otherwise be payable under this Section 4(b)during the six-month period immediately following the Date of Termination shall instead be paid onthe 409A Payment Date.          (c) Cause; Other than for Good Reason. If Executive’s employment shall be terminatedby the Company or the Employer for Cause or by Executive without Good Reason, then the Employershall provide Executive with the Accrued Obligations other than the Pro-Rata Bonus. Thereafter,the Company and the Employer shall have no further obligation to Executive or his legalrepresentatives, other than any rights to vested benefits under any Benefit Plans, indemnificationrights he may have under this Agreement, any rights he may have under the Equity Documents, and anyrights Executive may have under Sections 11(g) and 11(o) hereof.          (d) General Release. Notwithstanding the foregoing, the Company’s and the Employer’sobligations to make payments (other than Accrued Obligations) under Section 4(a) and in the case ofDisability under Section 4(b) are conditioned on Executive’s or his legal representative’s (asapplicable), executing and not revoking within the applicable time period provided for therein(“Applicable Release Period”), in both cases, absent a bona fide dispute or claim relatingto the amount to be paid, not later than the latest business day that is not more than two monthsafter the end of the calendar year in which the Date of Termination occurs, a release substantiallyin the form attached as Appendix F (the “Release”); provided, however, that in any casewhere the first and last days of the Applicable Release Period are in two separate taxable
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years,any payments required to be made to Executive pursuant to Section 4(a) or Section 4(b) that aretreated as deferred compensation for purposes of Section 409A of the Code shall bemade in the later taxable year, within the time provided following the conclusion of theApplicable Release Period.          (e) Guarantee of Payment. The Company agrees and hereby guarantees to Executive thatall payments and benefits required to be paid or provided to Executive under Section 4 of thisAgreement by any entity other than the Company will (subject to Executive’s compliance with Section4(d) of this Agreement where applicable), to the extent not timely paid by the Employer or one ofit affiliates, instead be timely paid by the Company. This is a guaranty of payment andperformance and not merely of collection. If Employer fails to make any payment when due withrespect to Executive or to perform any duties, obligations or covenants with respect to Employer’sobligations with respect to Executive, the Company will as soon as practicable and unconditionallypay to Executive such amounts and perform such duties, obligations and covenants.     Section 5. Confidentiality, Non-Solicitation and Non-Competition. Executive agreesthat:          (a) Except as may be required by the lawful order of a court or agency of competentjurisdiction, or except to the extent that Executive has the express written authorization from theCompany, Executive agrees to keep secret and confidential both prior to and following anytermination of Executive’s employment all non-public information concerning the Company, TishmanSpeyer, Lehman or their respective affiliates or subsidiaries (or their respective predecessors)which was acquired by or disclosed to Executive during the course of Executive’s employment withthe Company or any of the foregoing, and not to disclose the same, either directly or indirectly,to any other person, firm or business entity or to use it in any way. For purposes of theforegoing, information which has become publicly available through Executive’s violation of thisSection 5(a) shall be considered to be non-public information.          (b) During the period commencing on the Effective Date and ending on (i) the first anniversaryof the Date of Termination if such date is prior to December 31, 2010 and (ii) the secondanniversary of the Date of Termination if such date is on or after December 31, 2010, Executivecovenants and agrees that Executive will not, whether for Executive or for any other person,business, partnership, association, firm, company or corporation, initiate contact with, solicit,divert or take away or hire (as applicable) (x) any of the customers of the Company or itssubsidiaries, or any customers of Tishman Speyer, Lehman and their respective more than 50% ownedaffiliates that are engaged in the same business as the Company (all such entities, the“Covered Entities”), to provide services similar to those provided by the Company or itsaffiliates, (y) any of the Equity Parties and other direct and indirect investors and theircontrolled affiliates in the Company and its affiliates for the purpose of raising capital(provided, however, that no contact with a substantial investor in an entity ownedor managed by a party by whom Executive becomes employed after the Date of Termination, whichcontact is solely for the purpose of soliciting such investor to invest in such subsequentemployer, shall be treated as a solicitation in violation of this covenant if the originalinvestment by such investor in such subsequent employer pre-dated the Date of Termination), and (z)employees of the Company or
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its subsidiaries, or of any of the Covered Entities, in each case inexistence from time to time during the Employment Period and at the time of such proscribed action.          (c) During the period commencing on the Effective Date and ending on the first anniversary ofthe Date of Termination, Executive covenants and agrees that Executive will not, directly orindirectly, engage in, assist, perform services for, plan for, establish or open, or have anyfinancial interest (other than (i) ownership of 1% or less of the outstanding stock of anycorporation listed on a national securities exchange, or (ii) ownership of securities in any entityaffiliated with the Company) in any person, firm, corporation, or business entity (whether as anemployee, officer, director, consultant or otherwise) that engages in the acquisition, disposition,operation, development, management or financing of multifamily residential apartment buildings orcommunities.          (d) Executive acknowledges that the Company would be irreparably injured by a violation ofthis Section 5 and Executive agrees that the Company, in addition to any other remedies availableto it for such breach or threatened breach, shall be entitled to a preliminary injunction,temporary restraining order, or other equivalent relief, restraining Executive from any actual orthreatened breach of this Section 5. The Company may seek this remedy in any court of competentjurisdiction, without regard to Section 11(g) below (Arbitration of All Disputes). If a bond isrequired to be posted in order for the Company to secure an injunction or other equitable remedy,the parties agree that such bond need not be more than a nominal sum.     Section 6. Additional Provisions Relating to Termination.          (a) During the period beginning on the date of delivery of a Notice of Termination and endingon the Date of Termination, Executive shall continue to perform his duties hereunder, and shallalso perform such services for the Company and the Employer as are necessary and appropriate for asmooth transition to Executive’s successor, if any; provided, however, that theCompany or the Employer may suspend Executive from performing such duties and services followingthe delivery of a Notice of Termination and during the period of any such suspension (which shallend on the Date of Termination), Executive shall continue to be treated as employed by the Employerfor other purposes, and Executive’s rights to compensation or benefits hereunder shall not beaffected by such suspension.          (b) Executive agrees that, for a reasonable period after Executive’s termination ofemployment, Executive will assist the Company, its subsidiaries, the Covered Entities and all otherdirect or indirect investors in the Company in defense of any claims that may be made against anyof them, to the extent that such claims may relate to services performed by Executive for any ofthem in connection with the Company. Executive agrees to promptly inform the Company if Executivebecomes aware of any lawsuits involving such claims that may be filed against the Company, any ofits subsidiaries, any of the Covered Entities or any other direct or indirect investor in theCompany. The Company agrees to provide legal counsel to Executive in connection with suchassistance (to the extent legally permitted), to provide separate counsel for Executive in anysituation where the Company’s counsel cannot effectively represent Executive without violation ofthe applicable canons of ethics relating to conflicts of interest, and to reimburse Executive forall of Executive’s reasonable out-of-pocket expenses associated with such assistance, includingtravel expenses. The Employer agrees to provide (or
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to cause the Company to provide) reasonablecompensation to Executive for such assistance at a per diem rate equal to $10,000 per day providedthat the Executive provides at least eight hours of assistance on any such day and a pro-ratedportion of such amount where the Executiveprovides less than eight hours of assistance on any such day based on the actual number ofhours and partial hours of assistance provided by the Executive on such day. Executive also agreesto the extent not otherwise prohibited by law, to promptly inform the Company if asked to assist inany investigation of the Company, any of its subsidiaries, any of the Covered Entities or any otherdirect or indirect investors in the Company (or their actions) that may relate to servicesperformed by Executive for any of them, regardless of whether a lawsuit has then been filed againstany of them with respect to such investigation.     Section 7. Non-Disparagement. While employed by the Employer, and after the Date ofTermination, Executive agrees to not make any false, defamatory or disparaging statements about theCompany, its subsidiaries, any of the Covered Entities or any other direct or indirect investor inthe Company, or the officers or directors of any of the foregoing, that are reasonably likely tocause damage to any of such persons or parties. While Executive is employed by the Employer, andafter the Date of Termination, the Employer and the Company agree that none of their officers ordirectors, or of their respective subsidiaries or any of the Covered Entities , shall make anyfalse, defamatory or disparaging statements about Executive that are reasonably likely to causedamage to Executive.     Section 8. Excess Parachute Payments. The provisions of Paragraph 9 of the PriorAgreement are hereby incorporated by reference and made a part of this Agreement; provided,however, that (i) the references to Paragraph 6 of the Prior Agreement contained thereinshall be deemed references to Section 4 of this Agreement and the references to Paragraph 10 of thePrior Agreement contained therein shall be stricken, and (ii) Paragraph 9 of the Prior Agreement(as modified by this Section 8) shall only apply with respect to payments and/or benefitsdetermined, in accordance with Section 280G of the Code, to be contingent on either (i) theTransaction or (ii) any transaction occurring after the Effective Date if and only if, immediatelyprior to the consummation of such transaction, the Company (or any applicable parent of theCompany) has any stock which is readily tradeable on an established securities market or otherwisewithin the meaning of Section 280G of the Code.     Section 9. Executive’s Representations, Warranties and Covenants.          (a) Executive hereby represents and warrants to the Company and its subsidiaries that:             (1) Executive has all requisite power and authority to execute and deliver this Agreement andto consummate the transactions contemplated hereby, and this Agreement has been duly executed byExecutive;             (2) the execution, delivery and performance of this Agreement by Executive does not and willnot, with or without notice or the passage of time, conflict with, breach, violate or cause adefault under any agreement, contract or instrument to which Executive is a party or any judgment,order or decree to which Executive is subject;
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               (3) Executive is not a party to or bound by any employment agreement, consulting agreement,non-compete agreement, fee for services agreement,confidentiality agreement or similar agreement with any other person other than the Company orany of its affiliates, or one of the Covered Entities;               (4) upon the execution and delivery of this Agreement by the Company, Employer and Executive,this Agreement will be a legal, valid and binding obligation of Executive, enforceable inaccordance with its terms;               (5) Executive understands that the Company and its affiliates will rely upon the accuracy andtruth of the representations and warranties of Executive set forth herein and Executive consents tosuch reliance; and               (6) as of the Effective Date, Executive is not in breach of any of the terms of thisAgreement, including having committed any acts that would form the basis for a Cause termination ifsuch act had occurred after the Effective Date and does not have any claims or causes of actionagainst the Company.          (b) The Company, the Employer and each of their respective subsidiaries hereby represent andwarrant to Executive that:               (1) the Company and the Employer have all requisite power and authority to execute and deliverthis Agreement and to consummate the transactions contemplated hereby, and this Agreement has beenduly executed by the Company and the Employer;               (2) the execution, delivery and performance of this Agreement by the Company and the Employerdoes not and will not, with or without notice or the passage of time, conflict with, breach,violate or cause a default under any agreement, contract or instrument to which the Company is aparty or any judgment, order or decree to which the Company or the Employer is subject;               (3) upon the execution and delivery of this Agreement by the Company, the Employer andExecutive, this Agreement will be a legal, valid and binding obligation of the Company and theEmployer, enforceable against each of them in accordance with its terms;               (4) the Company and the Employer understand that Executive will rely upon the accuracy andtruth of the representations and warranties of the Company and the Employer set forth herein andthe Company and the Employer consent to such reliance; and               (5) the Company and the Employer have determined or, in connection with the adjustmentprovisions of Sections 2(c)(viii) and 2(c)(ix) of this Agreement will determine, the valuations ofthe equity interests granted or purchased, as applicable, under Sections 2(c)(viii) and 2(c)(ix)hereof on a basis that is consistent with the valuations underlying all other “units” purchased inthe Transaction.
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     Section 10. Indemnification.       Executive shall at all times during the Employment Period, and thereafter in respect ofactions taken, or not taken, by Executive during the Employment Period, be entitled toindemnification, fee advancement and coverage under policies of directors and officers liabilityinsurance that are not less favorable than those set forth in Section 7.06 of the Merger Agreement.     Section 11. General Provisions.          (a) Severability. It is the desire and intent of the parties hereto that theprovisions of this Agreement be enforced to the fullest extent permissible under the laws andpublic policies applied in each jurisdiction in which enforcement is sought. Accordingly, if anyparticular provision of this Agreement shall be adjudicated by a court of competent jurisdiction tobe invalid, prohibited or unenforceable under any present or future law, and if the rights andobligations of any party under this Agreement will not be materially and adversely affectedthereby, such provision, as to such jurisdiction, shall be ineffective, without invalidating theremaining provisions of this Agreement or affecting the validity or enforceability of suchprovision in any other jurisdiction; furthermore, in lieu of such invalid or unenforceableprovision there will be added automatically as a part of this Agreement, a legal, valid andenforceable provision as similar in terms to such invalid or unenforceable provision as may bepossible. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as notto be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction,be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affectingthe validity or enforceability of such provision in any other jurisdiction.          (b) Entire Agreement. This Agreement (including the Appendices hereto) and the otherEquity Documents collectively embody the complete agreement and understanding among the partieshereto with respect to the subject matter hereof and supersede and preempt any priorunderstandings, agreements or representations by or among the parties, written or oral, which mayhave related to the subject matter hereof in any way (including, without limitation, any otheremployment, severance or change-in-control agreement or understanding). For the avoidance ofdoubt, Executive, the Company and the Employer acknowledge that, upon the Effective Date, upon thedue execution of this Agreement and each of its related Appendices, other than Appendix F, andsubject to Executive’s rights that are expressly preserved under Section 11(g) hereof, (i) the TermSheet and (ii) any agreement between Executive and the Company or the Seller Parties or anysubsidiary or affiliate of any of the foregoing entered into prior to the Effective Date, includingwithout limitation, the Prior Agreement, shall be void *ab initio*as of immediately before theEffective Date.          (c) Counterparts. This Agreement may be executed in separate counterparts, each ofwhich is deemed to be an original and all of which taken together constitute one and the sameagreement.
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          (d) Successors and Assigns.               (i) This Agreement is personal to Executive and without the prior written consent of theCompany or the Employer shall not be assignable by Executive otherwise than by will or the laws ofdescent and distribution. This Agreement shall inure to the benefit of and be enforceable byExecutive’s legal representatives.               (ii) This Agreement shall inure to the benefit of and be binding upon the Company and theEmployer and each of their respective successors and assigns. The Company and the Employer willrequire any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise)to all or substantially all of the business and/or assets of the Company or the Employer, asapplicable, to assume expressly and agree to perform this Agreement in the same manner and to thesame extent that the Company or the Employer would be required to perform it if no such successionhad taken place. As used in this Agreement, “Company” shall mean the Company as hereinbeforedefined and any successor to its business and/or assets as aforesaid that assumes and agrees toperform this Agreement by operation of law, or otherwise, and “Employer” shall mean the Employer ashereinbefore defined and any successor to its business and/or assets as aforesaid that assumes andagrees to perform this Agreement by operation of law, or otherwise.          (e) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTINGPROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THELAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF THEFOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION ANDCONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAWANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY. ANY ACTION TOENFORCE THIS AGREEMENT AND/OR THE APPENDICES HERETO (OTHER THAN AN ACTION WHICH MUST BE BROUGHT BYARBITRATION PURSUANT TO SECTION 11(g)) MUST BE BROUGHT IN, AND THE PARTIES HEREBY CONSENT TO THEJURISDICTION OF, A COURT SITUATED IN DELAWARE. EACH PARTY HEREBY WAIVES THE RIGHTS TO CLAIM THATANY SUCH COURT IS AN INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.          (f) JURY TRIAL WAIVER. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURYTRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR EXECUTIVE’SEMPLOYMENT WITH THE COMPANY OR THE EMPLOYER IS LITIGATED OR HEARD IN ANY COURT.          (g) Arbitration of All Disputes. Except as provided in Sections 5 and 11(e) above,any controversy or claim arising out of or relating to this Agreement or the Prior Agreement or thebreach thereof shall be settled by arbitration in Delaware, in accordance with the laws of theState of Delaware, by three arbitrators appointed by the parties. If the parties
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cannot agree within 30 days on the appointment of the arbitrators, one shall be appointed bythe Company and one by Executive, and the third shall be appointed by the first two arbitrators.If the first two arbitrators cannot agree on the appointment of a third arbitrator within 10 days,then the third arbitrator shall be appointed by the Chief Judge of the United States Court ofAppeals for the Third Circuit. The arbitration shall be conducted in accordance with the rules ofthe American Arbitration Association, except with respect to the selection of arbitrators, whichshall be as provided in this Section 11(g). Judgment upon the award rendered by the arbitratorsmay be entered in any court having jurisdiction thereof. In the event that Executive determinesthat it is either necessary or desirable for Executive to retain legal counsel or incur other costsand expenses in connection with enforcement of his rights under this Agreement or the PriorAgreement, (i) with respect to any controversies or claims relating to the Prior Agreement due toactions or omissions occurring or not occurring prior to the Effective Date, the Employer shall (orshall cause the Company to) pay Executive’s reasonable attorneys’ fees and costs and expenses inconnection with enforcement of his rights (including the enforcement of any arbitration award incourt) at the time such fees, costs and expenses are incurred, provided, however, if thearbitrators shall determine that, under the circumstances, payment by the Employer or the Companyof all or any part of any such fees, costs and expenses would be unjust, Executive shall repay suchamount to the Employer or the Company in accordance with the order of the arbitrators and (ii) withrespect to any other controversies or claims, the Employer or the Company shall bear all costs andexpenses (including, but not limited to, Executive’s reasonable attorneys’ fees and costs andexpenses) in connection with enforcement of his rights and any costs associated with theenforcement of any arbitration award in court; unless Executive fails to prevail on any materialissue in such dispute. Any award of the arbitrators shall include interest at a rate or ratesconsidered just under the circumstances by the arbitrators.          (h) Mitigation and Set-Off. Executive shall not be required to mitigate the amount ofany payment provided for in this Agreement by seeking other employment or otherwise. Neither theCompany, nor the Employer nor any of their respective subsidiaries or affiliates shall be entitledto set-off against the amounts payable to Executive under this Agreement any amounts earned byExecutive in other employment after termination of his employment, or any amounts which might havebeen earned by Executive in other employment had he sought such other employment.          (i) Amendment and Waiver. The provisions of this Agreement may be amended and waivedonly with the prior written consent of the Company, the Employer and Executive and no course ofconduct or failure or delay in enforcing the provisions of this Agreement shall be construed as awaiver of such provisions or affect the validity, binding effect or enforceability of thisAgreement or any provision hereof.          (j) Notices. Any notice provided for in this Agreement must be in writing and must beeither personally delivered, transmitted via telecopier, mailed by first class mail (postageprepaid and return receipt requested) or sent by reputable overnight courier service (chargesprepaid) to the recipient at the address below indicated or at such other address or to theattention of such other person as the recipient party has specified by prior written notice to thesending party. Notices will be deemed to have been given hereunder and received when deliveredpersonally, when received if transmitted via telecopier, five days after deposit in the
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U.S. mail and one day after deposit for overnight delivery with a reputable overnight courierservice.     If to the Employer, to:Archstone-Smith Communities L.L.C.