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EXHIBIT 10.76
PRIME RESIDENTIAL, INC.
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is entered into on
Residential, Inc., a Maryland corporation (the
"Company"), and
_, 1995, by and between Prime ("Director").
Director is a non-employee member of the Board of Directors of the Company. The
Company and Director mutually desire to enter into a compensation agreement
whereby
-Director will irrevocably elect to defer receipt of payment for his
services as a member of the Board and whereby the payments so deferred
will be adjusted to reflect the performance of the Company's common stock
during the deferral period.
In consideration of the foregoing, the parties agree as follows:
1. The Company shall pay and Director shall receive compensation for any
and all services rendered by him as a director of the Company from and after
the date hereof to the extent, at the time, and in the manner hereinafter
provided.
2. The Company shall establish and maintain two bookkeeping accounts, the
first to be known as the Director's Deferred Compensation Cash Account
(hereinafter referred to as the "Cash Account"), and the second to be known as
Director's Deferred Compensation Stock Account (hereinafter referred to as the
"Stock Account").
(a) Cash Account
The Company shall regularly credit to the Cash Account (i) the dollar
amount that Director would otherwise (but for this Agreement) have been
entitled to receive for his services as a director of the Board in accordance
with the terms and provisions of any plan, policy, agreement or resolution duly
adopted by the Board from time to time, (ii) the dollar amount of dividends
that would have been payable, as of the record date applicable to any cash
dividend on the Company's common stock (the "Common Stock"), with respect to a
number of shares of common stock equal to the number of notional shares
credited to the Stock Account as of such record date and (iii) the amount of
cash or other property that would have been payable as a result of any stock
dividend or split, recapitalization, merger, consolidation or similar change or
distribution, with respect to a number of shares of Common Stock equal to the
number of notional shares then credited to the Stock Account. Such credits
shall continue for so long as there shall be notional shares of Common Stock
credited to the Stock Account.
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(b) Stock Account
On the tenth day (or, if such day is not a business day, the next business
day thereafter) of January, April, July and October of each year, the Company
shall determine the number of whole shares of Common Stock that could have been
purchased on such date with the amounts then in the Cash Account, based upon
the closing price of such shares as reported for such date in Xxx Xxxx Street
Journal (or, if not so reported for such date, the most recent trading date so
reported). A number of notional shares corresponding to such share amount shall
be credited to the Stock Account and the amount in the Cash Account shall be
reduced accordingly. In addition, the Stock Account shall be credited with
notional securities equal to the amount of securities that would have been
payable, as a result of any stock dividend or split, recapitalization, merger,
consolidation or similar change or distribution, with respect to a number of
shares of Common Stock equal to the number of notional shares then credited to
such Account.
The foregoing accounts shall be established for bookkeeping purposes only,
shall not represent either a cash deposit or actual shares, shall not give
Director any special right in cash or shares held or owned by the Company,
shall be unfunded and unsecured, and shall not give rise to any cause of action
by Director against the Company, except at such time as Director shall become
entitled to receive payment of compensation in accordance with the terms of
this Agreement. Amounts payable under the terms of this Agreement shall be paid
from the general assets of the Company. The Company shall furnish Director
quarterly statements showing the current balances in each of the foregoing
accounts.
3. Director shall be entitled to receive, in cash, all amounts payable
hereunder [in one lump sum payment on 1 [in _ annual installments commencing on
1i except in the event of Director's death, disability or termination of
service as a director of the Board prior to such date, in which case Director
(or his beneficiary designated in accordance with paragraph 4 below) shall be
entitled to receive such payments commencing on the first business day of April
in the calendar year following such death, disability or termination of
service. The amount of each such payment shall be determined by dividing (a)
the sum of (i) the amount then credited to the Cash Account and (ii) the fair
market value of a number of shares of Common Stock equal to the number of
notional shares then credited to the Stock Account (as determined by
multiplying such number by the closing price of the Common Stock as reported
for the last business day preceding the date of such payment in The Wall Street
Journal, by (b) THE NUMBER OF PAYMENTS then remaining due hereunder.
' Select either lump sum or up to 5 annual installments. First payment
date must be more than six months after date of the Agreement. Election must be
made on date of Agreement.
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4. Any payments due hereunder that have not been paid to Director during
his lifetime shall be paid to his surviving spouse or to any other person he
may have designated in a writing filed with the Company for such purpose. The
Company may rely upon the last of any such written designations in its
possession in making any such payments, which shall be made at the same time(s)
and in the same amount(s) as would have been made to Director's surviving
spouse (or other beneficiary designated in accordance with this paragraph)
during the lifetime of such person may be paid to the executor or administrator
of the estate of such person; such payments shall be made at the same time(s)
and in the same amount(s) as would have been made to Director had he survived.
5. The rights of Director (or his surviving spouse or other designated
beneficiary) to receive payments hereunder are personal and are not subject to
acceleration or assignment, and the Company shall have no liability for
payments hereunder to any person at any time or in any manner other than as
herein provided. Notwithstanding the foregoing, the Company shall have the
right, upon resolution duly adopted by its Board of Directors (without giving
effect to any vote by Director), to pay in cash, in advance of any scheduled
date or dates provided for herein, all or any part of the aggregate amount of
payments that would otherwise be due hereunder.
6. This Agreement may be amended only in writing with the consent of
Director and the Company, provided that no such amendment shall have
retroactive effect or modify the cash nature of the amounts payable to Director
hereunder, and provided further, that any such amendments shall become
effective only as to the next succeeding calendar quarter following the date of
such amendment and thereafter.
7. This Agreement shall be binding upon, and shall inure to the benefits
of, the successors and assigns of the Company.
8. If any provision of this Agreement shall be held illegal or invalid for
any reason, such illegality or invalidity shall not affect the remaining
provisions hereof, and this Agreement shall be construed and enforced as if the
invalid provisions had never been set forth herein. As used herein, the
masculine includes feminine, the singular includes the plural and the plural
includes the singular.
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9. This Agreement shall be considered a contract under, and shall for all
purposes be construed in accordance with and governed by the laws of, the State
of Illinois.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in its name and on its behalf pursuant to the authorization of its Board of
Directors, and Director has hereunto set his hand, all on the date first above
written.
PRIME RESIDENTIAL, INC.
By:
Its:
[DIRECTOR]
