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EXHIBIT 10.2
AMENDMENT TO EMPLOYMENT AGREEMENT
Reference is made to that certain Employment Agreement (the "Employment
Agreement") dated as of March 9, 1998 by and between Xxxxx Xxxxx ("Executive")
and AvalonBay Communities, Inc., a Maryland corporation and successor by name
change to Bay Apartment Communities, Inc. (the "Company").
Whereas, Executive has recently consented to a promotion from the position
of Senior Vice President-Development and Acquisitions to Chief Operating
Officer; and
Whereas, Executive and the Company desire to amend the Employment Agreement
to reflect such change in position and to make certain clarifications and
related changes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree to
amend the Employment Agreement as follows (section references are to sections in
the Employment Agreement):
1. References in the Employment Agreement to the "Effective Date" shall
hereafter refer to "March 29, 1999," and thus the Original Term of the
Employment Agreement, as amended, shall terminate on March 29, 2002.
2. The first paragraph of Section 2(a) of the Employment Agreement is
hereby amended to read in its entirety as follows (for convenience, language
deleted from such paragraph is [bracketed]; and language added to such
paragraph is CAPITALIZED:
During the Employment Period, Executive shall be employed in the business
of the Company and its affiliates. Executive shall serve as a corporate
officer of the Company with the title of [Senior Vice-President Development
and Acquisitions] CHIEF OPERATING OFFICER. Executive's duties and authority
shall be commensurate with his title and position with the Company, and
shall INCLUDE RESPONSIBILITY FOR OVERSEEING THE COMPANY'S OVERALL
DEVELOPMENT, CONSTRUCTION, ACQUISITION AND PROPERTY OPERATION ACTIVITIES
AND EFFORTS. [not be materially diminished from, or materially inconsistent
with, his primary duties and authority with Avalon immediately prior to the
date of this Agreement.]
3. References in the Employment Agreement to "Braintree, Massachusetts"
(including, without limitation, the references in Sections 2(b) and 7(b)(4)) are
hereby changed to "Quincy, Massachusetts."
4. In the last sentence of the second paragraph of Section 2(a), the word
"Midwest" before the phrase "projects of Xxxxxxxx Xxxx Residential" is hereby
deleted.
5. The first sentence of Section 3(a) is hereby amended to read in its
entirety as follows (for convenience, language deleted from such sentence is
[bracketed]; and language added to such sentence is CAPITALIZED:
"During the Employment Period, the Executive shall receive an annual rate
of base salary ("Base Salary") in an amount, [not less than $300,000] FROM
AND AFTER MARCH 29, 1999, OF NOT LESS THAN $330,000."
6. In Section 8, the definitions of "Competing Enterprise" and "Restricted
Activities" are hereby amended by changing the phrase "residential real estate"
in each such definition wherever such phrase appears to "multifamily rental real
estate" and, further, by deleting clause (a) from the definition of "Competing
Enterprise."
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7. In the event that the Company has or hereafter makes any special,
mid-year or other non-routine grant of equity outside of the Company's
restricted stock and option annual compensation programs, or in the event that
the Company grants, outside of the current restricted stock and option annual
compensation programs, any equity based compensation pursuant to a "shareholder
value" or other long-term plan under which equity grants may be made based on
multi-year Company results, the value of any such mid-year, special, or
"shareholder value" or long-term plan equity based compensation shall not be
included in the calculation of Covered Compensation or Covered Average
Compensation, and the value of such equity shall have no impact on any cash
payments made under Section 7(c) of the Agreement.
Capitalized terms used herein and not defined herein have the meanings given
thereto in the Employment Agreement.
IN WITNESS WHEREOF, this amendment is entered into and is effective as of this
30th day of July, 1999.
AVALONBAY COMMUNITIES, INC.
/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Executive Chairman
/s/ Xxxxx Xxxxx
Executive: Xxxxx Xxxxx
