Exhibit 4.8
SECOND AMENDMENT
TO
AVALONBAY COMMUNITIES, INC.
DEFERRED COMPENSATION PLAN
As Amended and Restated Effective as of January 1, 2011
A.
The AvalonBay Communities, Inc. Deferred Compensation Plan, as amended and restated effective as of January 1, 2011 (the “Plan”), as previously amended, is hereby further amended as follows:
1.
Section 1.10 is hereby amended by adding the following sentence at the end thereof:
“For clarification, the Participant’s Deferral Account includes the amounts credited to the Participant’s Non-Qualified Predetermined Annuity Account, In-Service Distribution Accounts and College Tuition Accounts, if any. A Participant may have multiple Deferral Accounts, one for each Annual Deferral Amount.”
2.
Article 1 is further amended by adding the following definitions:
“1.27 ‘In-Service
Distribution Account’ shall mean an account maintained under the Plan for
Annual Deferral Amounts earned after 2012. Such account shall provide for a
lump sum in-service distribution in the month and year specified by the
Participant prior to the Plan Year in which the Annual Deferral Amount is
earned, so long as the benefit commencement date is at least five years out
from the beginning of the Plan Year of deferral. For purposes of clarification,
for the 2013 Annual Deferral Amounts, the benefit commencement date must be on
or later than January 1, 2018.
1.28 ‘In-Service
College Tuition Account’ shall mean an account maintained under the Plan for
Annual Deferral Amounts earned after 2012. Such account shall provide for four
annual distributions beginning in the month and year specified by the
Participant prior to the Plan Year in which the Annual Deferral Amount is
earned, so long as the benefit commencement date is at least five years from
the beginning of the Plan Year of deferral. For purposes of clarification, for
the 2013 Annual Deferral Amounts, the benefit commencement date for the first
annual installment must be on or after January 1, 2018.”
3.
The Plan is hereby amended by deleting Articles 5 and 6 in their entirety and substituting therefor the following:
“ARTICLE 5 - TERMINATION BENEFIT
5.1 Termination
Benefit. If a Participant Separates his Service with the Sponsor, the
Participant shall receive his or her Deferral Account balances calculated as of
the close of business on or around the date the benefit distribution is
processed.
5.2 Payment
of Termination Benefit.
(a) Timing.
A Participant shall commence to receive his or her Deferral Account in the
seventh month following the Participant’s Separation from Service unless
otherwise provided in the next sentence or in Section 5.4. Effective November
7, 2011, a Participant may also elect, prior to the Plan Year in which the
Annual Deferral Amount is earned, to commence to receive his or her Annual
Deferral Amount (from and after January 1, 2012) in the 67th month or 127th
month following the Participant’s Separation from Service if the form of
benefit payment is a lump sum. If a Participant makes this election and dies
before the benefit commencement date, his or her Deferral Account balances
shall be paid to his or her Beneficiary in a lump sum no later than 90 days
after the Participant’s death.
(b) Form
of Payment. A Participant shall receive his or her Deferral Account balance
in a lump sum upon his or her Separation from Service unless otherwise provided
in the next two sentences. Notwithstanding the foregoing, if a Participant
Retires and such Participant has elected prior to November 22, 2008 to receive
his or her Deferral Account in annual or monthly installments over a period not
exceeding ten (10) years, the Plan shall honor such election if the Deferral
Account balance is at least $25,000 and the Participant will be paid on an
installment basis rather than in a lump sum. Effective November 15, 2012, a
Participant may also elect, prior to the Plan Year in which the Annual Deferral
Amount is earned, to receive his or her Annual Deferral Amount (from and after
January 1, 2013) in annual installments over a ten-year period beginning in the
seventh month after his or her Separation from Service. If the Participant dies
before completion of the installment payments, the unpaid remaining Deferral
Account balance shall be paid to his or her Beneficiary in a lump sum no later
than 90 days after the Participant’s death.”
5.3 Forfeiture
if Termination for Cause. Notwithstanding anything contained herein to the
contrary, if a Participant’s employment with the Company is terminated for
Cause, the portion of his or her Deferral Account attributable to Annual
Deferral Amounts made after 2010, as adjusted pursuant to Section 3.6(d), shall
be forfeited in its entirety.
5.4 Subsequent
Changes in Timing and Form of Payment.
(a) Changes
Regarding Timing and Form of Payment Following Separation from Service. A
Participant may make a subsequent election to defer the benefit commencement
date under this Article 5 on account of his or her Separation from Service. If
the original benefit commencement date for the Participant is the seventh month
following his or her Separation from Service, he or she may elect to change to
a benefit commencement date of either the 67th month or the 127th month
following his or her Separation from Service but only if the form of benefit
payment is a lump sum. Accordingly, a Participant who elected installment
payments or a lump sum payment payable in the seventh (7th) month after his or
her Separation from Service may elect a lump sum payment payable in the 67th
month or the 127th month following his or her Separation from Service. If the
original benefit commencement date for the Participant is the 67th month
following his or her Separation from Service, he or she may elect to change to
a benefit commencement date of the 127th month following his or her Separation
from Service but only if the form of benefit payment is a lump sum. Accordingly,
a Participant who elected a lump sum payment beginning in the 67th month after
his or her Separation from Service may elect a lump sum payment payable in the
127th month following his or her Separation from Service. If the original
commencement date is the 127th month following his or her Separation from
Service, the Participant may not make this subsequent election.
(b) Changes
Regarding Timing and Form of In-Service Distribution. A Participant may
also elect to defer the benefit commencement date of his or her In-Service
Distribution Account or In-Service College Tuition Account to a month and year
that is at least five years later than the original specified benefit
commencement date. A Participant may also elect to change the form of payment
under his or her In-Service College Tuition Account from four-year annual
installments to a lump sum.
(c) Each
subsequent election is not effective until at least 12 months after the date on
which the subsequent election is made. Accordingly, if the Participant
Separates from Service before the end of the 12-month period, the subsequent
election is not effective. If a Participant makes this subsequent election and
dies before the new benefit commencement date, his or her Deferral Account
balance shall be paid to his or her Beneficiary in a lump sum no later than 90
days after the Participant’s death.
(d) No
more than two (2) subsequent elections may be made by any one (1) Participant.
(e) For
purposes of a subsequent election under this Section 5.4, installment payments
shall be treated as a single payment.”
“ARTICLE 6 - SHORT-TERM PAYOUTS
6.1 Short-Term
Payouts. From and after November 15, 2012, the Plan shall permit each
Participant to elect short-term payouts during employment by designating that
his or her Annual Deferral Amount be credited to an In-Service Distribution
Account or an In-Service College Tuition Account. Each such election shall be
made prior to the Plan Year in which the Annual Deferral Account is earned and
shall specify the year and month in which the in-service distribution shall be
made or shall commence from either the In-Service Distribution Account or
In-Service College Tuition Account. If the Participant dies or otherwise
Separates from Service prior to full payment of his or her In-Service
Distribution Account or In‑Service College Tuition Account, the provisions of
Article 4 or 5, as the case may be, governing timing and form of distribution
shall apply instead of this Section 6.1.
6.2 Grandfathered
Election. To the extent a Participant has previously filed an election to
receive his Non-Qualified Predetermined Annuity Account at a specified time,
whether in a lump sum or in annual, quarterly or monthly installments over a
period not exceeding ten (10) years, the Plan shall continue to honor such
elections during the Participant’s employment.
6.3 Withdrawal
for Unforeseeable Financial Emergencies. If a Participant experiences an
Unforeseeable Financial Emergency, the Participant may petition the Retirement
Planning Committee to receive a partial or full payout from the Plan. The
Committee shall determine if the event meets the criteria to be an
Unforeseeable Financial Emergency. If approved, the amount of the withdrawal
shall not exceed the lesser of the Participant’s Deferral Account balance or
the amount reasonably needed to satisfy the Unforeseeable Financial Emergency
and income taxes on the withdrawn amount. If, subject to the sole discretion of
the Retirement Planning Committee, the petition for a withdrawal is approved,
any distribution shall be made within 30 days of the date of approval. The
Participant will be eligible to again participate in the Plan effective the
Plan Year following the Unforeseeable Financial Emergency. The Retirement
Planning Committee may permit a Participant to suspend his or her Annual
Deferral Amount in the event of an Unforeseeable Financial Emergency.”
B.
The effective date of this Second Amendment is as of November 15, 2012.
C.
Except as amended herein, the Plan is confirmed in all other respects.
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