Exhibit 10.2


 


[Form of Non-Qualified Stock Option Agreement]


 


AVALONBAY COMMUNITIES, INC. 

NON-QUALIFIED STOCK OPTION AGREEMENT

(2009 STOCK OPTION AND INCENTIVE PLAN)


 


Pursuant to the AvalonBay
Communities, Inc. 2009 Stock Option and Incentive Plan (the “Plan”),
AvalonBay Communities, Inc. (the “Company”) hereby grants to the Optionee
named below an Option to purchase up to the number of shares of the Company’s
Common Stock, par value $.01 per share (“Common Stock”) set forth below.  This option is subject to all of the terms
and conditions as set forth herein, in the Non-Qualified Stock Option Agreement
Terms (the “Terms”) which are attached hereto and incorporated herein in their
entirety, and in the Plan.  Capitalized
terms used but not defined herein or in the Terms shall have the respective
meanings ascribed thereto in the Plan.


 


Non-Qualified Stock


Option:                          This Option
does not qualify as an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”), and consequently shall
be treated as a non-qualified stock option for tax purposes.


 


Vesting Schedule:       Subject to the provisions of Section 4
and 6 of the Terms and the discretion of the Company to accelerate the vesting
schedule, one third of this option shall become vested and exercisable on each
of the first three anniversary dates of this award.


 


In any event this
Option shall become fully vested and exercisable with respect to all of the
Option Shares three years after the date hereof.


 


Additional
Terms/Acknowledgements: The undersigned Optionee acknowledges receipt of, and understands and
agrees to, this Non-Qualified Stock Option Agreement, including, without
limitation, the Terms.  Optionee further
acknowledges receipt of a copy of the Plan. 
Optionee further acknowledges that as of the Date of Grant, this
Non-Qualified Stock Option Agreement, including, without limitation, the Terms,
and the Plan set forth the entire understanding between Optionee and the
Company regarding the Options described herein and supersede all prior oral and
written agreements on that subject.


 


ATTACHMENT: 
Non-Qualified Stock Option Agreement Terms


 


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AVALONBAY
COMMUNITIES, INC.


2009 STOCK OPTION AND INCENTIVE PLAN


 


NON-QUALIFIED
STOCK OPTION AGREEMENT TERMS


 


1.             Vested Option Shares.  Subject to Section 4,
when this Option is vested with respect to any of the Option Shares, this
Option shall continue to be exercisable with respect to such Option Shares (“Vested
Option Shares”) at any time or times prior to the Expiration Date.


 


2.             Manner of Exercise.  The Optionee
may exercise this Option only in the following manner:  from time to time on or prior to the
Expiration Date of this Stock Option, the Optionee may give written notice to
the Administrator of his or her election to purchase some or all of the Option
Shares purchasable at the time of such notice. 
This notice shall specify the number of Option Shares to be purchased.


 


Payment of the
purchase price for the Option Shares may be made by one or more of the
following methods:  (i) in cash, by
certified or bank check or other instrument acceptable to the Administrator; (ii) through
the delivery (or attestation to the ownership) of shares of Common Stock that
have been purchased by the Optionee on the open market or that are beneficially
owned by the Optionee and are not then subject to any restrictions under any
Company plan and that otherwise satisfy any holding periods as may be required
by the Administrator; (iii) by the Optionee delivering to the Company a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash or a check payable and
acceptable to the Company to pay the option purchase price, provided that in
the event the Optionee chooses to pay the option purchase price as so provided,
the Optionee and the broker shall comply with such procedures and enter into
such agreements of indemnity and other agreements as the Administrator shall
prescribe as a condition of such payment procedure; (iv) by a “net
exercise” arrangement pursuant to which the Company will reduce the number of
shares of Common Stock issuable upon exercise by the largest whole number of
shares with a Fair Market Value that does not exceed the aggregate exercise
price; or (v) a combination of (i), (ii), (iii) and (iv) above.  Payment instruments will be received subject
to collection.


 


The transfer to
the Optionee on the records of the Company or of the transfer agent of the
Option Shares will be contingent upon (i) the Company’s receipt from the
Optionee of the full purchase price for the Option Shares, as set forth above, (ii) the
fulfillment of any other requirements contained herein or in the Plan or in any
other agreement or provision of laws, and (iii) the receipt by the Company
of any agreement, statement or other evidence that the Company may require to
satisfy itself that the issuance of Common Stock to be purchased pursuant to
the exercise of Stock Options under the Plan and any subsequent resale of the
shares of Stock will be in compliance with applicable laws and
regulations.  In the event the Optionee
chooses to pay the purchase price by previously-owned shares of Common Stock
through the attestation method, the number of shares of Common Stock
transferred to the Optionee upon the exercise of the Stock Option shall be net
of the Shares attested to.


 


The shares of
Common Stock purchased upon exercise of this Option shall be transferred to the
Optionee on the records of the Company or of the transfer agent upon compliance
to the satisfaction of the Administrator with all requirements under applicable
laws or regulations in connection with such issuance and with the requirements
hereof and of the Plan.  The determination
of the Administrator as to such compliance shall be final and binding on the
Optionee.  The Optionee shall not be
deemed to be the holder of, or to have any of the rights of a holder with
respect to, any shares of Common Stock subject to this Option unless and until
this Option shall have been exercised pursuant to the terms hereof, the Company
or the transfer agent shall have transferred the shares to the Optionee, and
the Optionee’s name shall have been entered as the stockholder of record on the
books of the Company.  Thereupon, the
Optionee shall have full voting, dividend and other ownership rights with
respect to such shares of Common Stock.


 


The minimum number
of shares with respect to which this Option may be exercised at any one time
shall be 100 shares, unless the number of shares with respect to which this
Option is being exercised is the total number of shares subject to exercise
under this Option at the time.


 


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Notwithstanding
any other provision hereof or of the Plan, no portion of this Option shall be
exercisable after the Expiration Date hereof.


 


3.             Non-transferability of Option. 
This Option is personal to the Optionee, is non-assignable and is not
transferable in any manner, by operation of law or otherwise, other than by
will or the laws of descent and distribution. 
This Stock Option is exercisable, during the Optionee’s lifetime, only
by the Optionee, and thereafter, only by the Optionee’s legal representative or
legatee.


 


4.             Termination of Employment. 
If the Optionee’s employment (or other business relationship) by the
Company or a Subsidiary (as defined in the Plan) is terminated, the period
within which to exercise the Option may be subject to earlier termination as
set forth below.


 


(a)           Termination Due to Death.  If the Optionee’s employment (or other
business relationship) terminates by reason of death, any Option held by the
Optionee shall be automatically vested on the date of termination and shall be
exercisable by the Optionee’s legal representative or legatee for a period of
twelve (12) months from the date of termination, or until the Expiration Date,
if earlier.


 


(b)           Termination Due to Disability. 
If the Optionee’s employment (or other business relationship) terminates
by reason of Disability (as defined below), any Option held by the Optionee
shall be automatically vested on the date of termination, and shall be
exercisable for a period of twelve (12) months from the date of termination, or
until the Expiration Date, if earlier. 
The death of the Optionee during the twelve (12) month period provided
in this Section 4(b) shall extend such period for six (6) months
from the date of death or until the Expiration Date, if earlier.


 


(c)           Termination by Reason of Retirement. 
If the Optionee’s employment terminates by reason of Retirement (as
defined below), any Option held by the Optionee shall be automatically vested
on the date of termination, and shall be exercisable for a period of twelve
(12) months from the date of termination, or until the Expiration Date, if
earlier.  The death of the Optionee
during the twelve (12) month period provided in this Section 4(c) shall
extend such period for six (6) months from the date of death, or until the
Expiration Date, if earlier.


 


(d)           Termination for Cause.  If the Optionee’s
employment (or other business relationship) terminates for Cause (as defined
below), any Option held by the Optionee shall immediately terminate and be of
no further force and effect.


 


(e)           Termination Without Cause. 
If the Optionee’s employment (or other business relationship) is
terminated by the Company without Cause, any option held by the Optionee shall
be automatically vested on the date of termination, and shall be exercisable
for a period of twelve (12) months from the date of termination, or until the
Expiration Date, if earlier.  The death
of the Optionee during the twelve (12) month period provided in this Section 4(e) shall
extend such period for six (6) months from the date of death, or until the
Expiration Date, if earlier.


 


(f)            Termination at the Election of the Optionee. 
If the Optionee’s employment (or other business relationship) is
voluntarily terminated at the election of the Optionee (i.e., is terminated
other than for death, Disability, Retirement, or a termination at the Company’s
election whether for Cause or without Cause), any option held by the Optionee
may be exercised, to the extent exercisable on the date of termination, for a
period of three (3) months from the date of termination, or until the
Expiration Date, if earlier.  For
clarification, it is noted that this means that the remaining unvested portion
of the Option shall terminate immediately and be of no further force or effect.


 


For this purpose, neither
a transfer of employment from the Company to a Subsidiary (or from a Subsidiary
to the Company) nor an approved leave of absence shall be deemed a “termination
of employment.”  The Administrator’s
determination of the reason for termination of the Optionee’s employment shall
be conclusive and binding on the Optionee and his or her representatives or
legatees.


 


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For purposes of this
Option, following terms shall have the
meaning specified below:


 


“Cause” shall mean
a vote of the Board resolving that the Optionee should be dismissed as a result
of (i) any material breach by the Optionee of any agreement to which the
Optionee and the Company are parties, (ii) any act (other than retirement)
or omission to act by the Optionee which may have a material and adverse effect
on the business of the Company or any Subsidiary or on the Optionee’s ability
to perform services for the Company or any Subsidiary, including, without
limitation, the commission of any crime (other than ordinary traffic
violations), or (iii) any material misconduct or neglect of duties by the
Optionee in connection with the business or affairs of the Company or any
Subsidiary.


 


“Disability” shall
mean the Optionee’s inability to perform his normal required services for the
Company and its Subsidiaries for a period of six consecutive months by reason
of the individual’s mental or physical disability, as determined by the
Committee in good faith in its sole discretion.


 


“Retirement” shall
mean the termination of the Optionee’s employment (and other business relationships)
with the Company and its Subsidiaries, other than for Cause, following the date
on which the sum of the following equals or exceeds 70 years: (i) the
number of full years of the Optionee’s employment and other business
relationships with the Company and any predecessor Company and (ii) the
Optionee’s age on the date of termination; provided that:


 


(x)            the Optionee’s employment by (or other
business relationships with) the Company and any predecessor company of the
Company have continued for a period of at least 120 continuous full months at
the time of termination and, on the date of termination, the Optionee is at
least 50 years old;


 


(y)           in the case of termination of employment,
the Optionee gives at least six months’ prior written notice to the Company of
his or her intention to retire; and


 


(z)            in the case of termination of employment,
the Optionee enters into a “Non-Compete and Non-Solicitation Agreement,” as
hereinafter defined, and a general release of all claims in a form that is
reasonably satisfactory to the Company.


 


As used in the
foregoing sentence, “Non-Compete and Non-Solicitation Agreement” shall mean a
written agreement between the Optionee and the Company providing that, for a
period of at least 12 months following the Optionee’s termination of employment
with the Company (A) the Optionee shall not, without the prior written
consent of the Company, become associated with, or engage in any “Restricted
Activities” with respect to any “Competing Enterprise,” as such terms are
hereinafter defined, whether as an officer, employee, principal, partner,
agent, consultant, independent contractor or shareholder, and (B) the
Optionee shall not, without the prior written consent of the Company, solicit
or attempt to solicit for employment with or on behalf of any Competing
Enterprise any employee of the Company or any of its affiliates or any person
who was formerly employed by the Company or any of its affiliates within the
preceding six months, unless such person’s employment was terminated by the
Company or any of such affiliates.  “Competing
Enterprise,” for purposes of this section, shall mean any person, corporation,
partnership, venture or other entity which is engaged in the business of
managing, owning, leasing, or joint-venturing multifamily rental real estate
within 30 miles of multifamily rental real estate owned or under management by
the Company or its affiliates.  “Restricted
Activities,” for purposes of this section, shall mean executive, managerial,
directorial, administrative, strategic, business development or supervisory
responsibilities and activities relating to any aspects of multifamily rental
real estate ownership, management, multifamily rental real estate franchising,
and multifamily rental real estate joint-venturing.


 


5.             Option Shares.  The Option
Shares are shares of the Common Stock of the Company as constituted on the date
of this Option, subject to adjustment as provided in the Plan.


 


6.             Effect of a Sale Event.  Upon the
occurrence of a Sale Event, as defined in the Plan, this Option shall
automatically become fully exercisable.


 


7.             No Special Employment Rights. 
This Option will not confer upon the Optionee any right with respect to
continuance of employment by the Company or a Subsidiary, nor will it interfere
in any way with any right of the Optionee’s employer to terminate the Optionee’s
employment at any time.


 


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8.             Rights as a Shareholder.  The Optionee
shall have no rights as a shareholder with respect to any shares of Common
Stock that may be purchased upon exercise of this Option unless and until a
certificate or certificates representing such shares are duly issued and
delivered to the Optionee.  Except as
otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.


 


9.             Incorporation of Plan. 
Notwithstanding anything herein to the contrary, this Stock Option shall
be subject to and governed by all the terms and conditions of the Plan,
including the powers of the Administrator set forth in Section 2(b) of
the Plan.  In the event of any
discrepancy or inconsistency between this Agreement and the Plan, the terms and
conditions of the Plan shall control.


 


10.           Withholding Taxes.  The Optionee
shall, not later than the date as of which the exercise of this Option becomes
a taxable event for federal income tax purposes, pay to the Company (or make
arrangements satisfactory to the Company for payment of any Federal, state and
local taxes required by law to be withheld on account of such taxable
event.  The Optionee may elect to have
the minimum required tax withholding obligation satisfied, in whole or in part,
by authorizing the Company to withhold from shares of Common Stock to be issued
a number of shares of Stock with an aggregate Fair Market Value that would
satisfy the withholding amount due.


 


11.           Non-Solicitation.  Optionee
hereby agrees that, for a period of at least 12 months following Optionee’s termination
of employment with the Company for any reason, Optionee shall not, without the
prior written consent of the Company, solicit or attempt to solicit for
employment with or on behalf of any other person, firm or entity any employee
of the Company or any of its affiliates or any person who was formerly employed
by the Company or any of its affiliates within the preceding six months, unless
such person’s employment was terminated by the Company or any of such
affiliates.


 


12.           Miscellaneous.  Notices hereunder
shall be mailed or delivered to the Company at its principal place of business,
2900 Eisenhower Avenue, Suite 300, Alexandria, Virginia 22314,
Attention:  Director of Compensation and
Benefits, and shall be mailed or delivered to Optionee at his address set forth
in the Company’s records, or in either case at such other address as one party
may subsequently furnish to the other party in writing.  This Option shall be governed by the laws of
the State of Maryland, except to the extent such law is preempted by federal
law.


 


[End
of Text]


 


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