Contract
Exhibit
10.2
HOME
PROPERTIES, INC.
HOME
PROPERTIES, L.P.
AMENDMENT
NUMBER ONE TO EMPLOYMENT AGREEMENT
WHEREAS,
Home Properties, L.P., a New York limited partnership (the "Company"), Home
Properties, Inc., a Maryland corporation ("HME") and Xxxxxx X. Xxxxxxxxxx (the
“Employee”) entered into that certain Amended and Restated Employment Agreement,
dated November 20, 2006 (the “Agreement”); and
WHEREAS,
the Company and the Employee want to amend the Agreement to take into account
federal tax law changes under Section 409A of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder.
NOW
THEREFORE, the Company and Employee hereby agree to the following amendments,
which shall be effective as of the effective date of the Agreement:
1. Section
4.3 (Definition of Good Reason) is amended by deleting this paragraph in its
entirety and replacing it with the following:
4.3 Definition
of Good Reason. As used herein, "Good Reason" shall mean: (a)
a material breach of this Agreement by the Company or HME that is not cured
within 60 days after receiving notice of such breach, which notice must be
provided within 90 days of the initial existence of the Good Reason condition,
with the determination as to whether there has been a breach and whether the
breach is material to be determined by the Corporate Governance/Nominating
Committee in the reasonable and good faith exercise of its discretion; or (b)
any requirement by the Company that the Employee relocate to a principal place
of business outside of the Rochester, New York metropolitan area. In
no event will Employee have Good Reason to resign if the Employee resigns more
than one year following the initial existence of the Good Reason
condition.
2. Section
4.5.2 (Additional Separation Pay) is amended by deleting this paragraph in its
entirety and replacing it with the following:
4.5.2 Additional
Separation Pay. In the event of a termination of this
Agreement described in Section 4.5.1 of this Agreement, if the Employee executes
the release and waiver under Section 4.5.3 of this Agreement and such release is
not revoked, and the Employee has complied with Section 4.9 of this Agreement,
then in addition to the payments to be made pursuant to Section 4.5.1 of this
Agreement: (i) the Company shall pay to the Employee within 20 business days
after termination (but no earlier than the expiration of the revocation period
for the release, and in no event later than the date that is 2 1/2 months after
the end of the year in which the termination occurred), a lump sum equal to the
greater of 2.9 multiplied by (x) the Employee's Base Salary, and (y) incentive
compensation determined in accordance with Section 3.2 of this Agreement for the
year preceding the date of termination; (ii) the Company shall pay to the
Employee prior to March 15th of the year following termination, the incentive
compensation that the Employee would have earned based on his targeted bonus as
provided in Section 3.2 of this Agreement pro-rated for the portion of the year
that the Employee was an employee; (iii) all restrictions on restricted stock
held by the Employee shall lapse; (iv) all options previously issued to the
Employee shall vest and remain exercisable until the earlier of their expiration
date or one year following the date of termination; and (v) the fringe benefits
provided to the Employee during the Term of this Agreement pursuant to Section
3.4 of this Agreement shall continue until the earlier to occur of (A) December
31, 2010, or (B) the Employee receives substantially equivalent benefits from a
subsequent employer. In the event that the termination occurs before the amount
of the incentive compensation for services rendered in the year preceding the
date of termination has been finally determined, then the payment to the
Employee shall be an estimate based on the Employee's targeted bonus with an
adjustment to be made promptly upon the determination of the actual amount
pursuant to the Company's Incentive Compensation Plan.
3. Section
4.8.1 (Section 409A of the Code) is amended by adding the following new sentence
to the end thereof:
In
accordance with and to the extent required by Section 409A, all reimbursement
and in-kind post-employment benefits provided under the Agreement will be
subject to the following rules:
|
|
§
|
The
amount of expenses eligible for reimbursement, or in-kind benefits
provided, during a calendar year may not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other calendar
year.
|
|
|
§
|
The
reimbursement of an eligible expense will be made on or before the last
day of the calendar year following the calendar year in which the expense
was incurred.
|
|
|
§
|
The
right to reimbursement or in-kind benefits is not subject to liquidation
or exchange for another benefit.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates set forth below,
[Signature
Page Follows]
-
2 -
HOME
PROPERTIES, L.P.
By: Home
Properties, Inc.
Its:
General Partner
Date:
October 29,
2008 By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X.
Xxxxxxx
Executive
Vice President and Chief Financial Officer
HOME
PROPERTIES, INC.
Date: October
29,
2008 By: /s/ Xxxxxxx X. Xxxxxx,
III
Xxxxxxx
X. Xxxxxx, III
Chair of
Compensation
Committee
of the Board of Directors
Date: October
29, 2008 By: /s/ Xxxxxx X.
Xxxxxxxxxx
Xxxxxx X.
Xxxxxxxxxx
