EXHIBIT 10.1
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is made as of the 27th day of
March, 2006 to be effective as of January 1, 2006 between Home Properties, Inc.
(the "Company"), a Maryland corporation and Xxxxxx Xxxxxxxxx ("Employee").
WITNESSETH
WHEREAS, the parties hereto desire to establish a formal and continuing
agreement for the creation and oversight of a development department within the
Company:
NOW THEREFORE, the Company and Employee hereby agree as follows:
1. DEFINITIONS.
"Affiliate" means any person, corporation, company, partnership or other
legal entity, which controls, is controlled by or is under common control with
the Company.
"Board of Directors" means the Board of Directors of Home Properties, Inc.
"Development Business" means the creation, operation and management of a
development department within the Company and its Affiliates as outlined in the
Development Plan (hereinafter defined).
"Development Plan" means the Development Plan and Development Proforma
attached hereto as Exhibit A and made a part hereof.
"Employment Agreement" means that certain Employment Agreement by and
between Employee and Home Properties, Inc. dated October 28, 2003.
"Person" shall mean an individual, a corporation, trust, partnership, sole
proprietorship and other legal entity.
2. DUTIES AND OBLIGATIONS. Effective the 1st day of January, 2006 (the
"Effective Date"), the Company hereby engages Employee as an employee, and
Employee hereby accepts such engagement on the following terms and
conditions:
A. Duties.
(1) Tasks. Employee is responsible to xxxxxx all activities reasonably
contemplated in the Development Plan including, but not limited to:
(a) creation, staffing and leadership of a development department (the
"Development Department") and the undertaking by such Development
Department of the activities outlined in the Development Plan; (b)
oversight, completion and initial rent-up of the Liberty Commons
Development; (c) oversight, completion and initial rent-up of Phase I
of the Xxxxxxx Park Department; (d) planning of future phases of the
Xxxxxxx Park Development, and; (e) identification and fostering of
future development opportunities contemplated in the Development Plan.
(2) Reporting. Employee shall report on the progress of all
development efforts on a quarterly basis to the Company's Real Estate
Investment Committee. Notwithstanding the foregoing, Employee is
obligated to immediately inform the Company's Chief Executive Officer
and the Board of Directors (by contacting the Chair of the Real Estate
Investment Committee) of any material and unexpected event.
(3) As Reasonably Needed. During the term of Employee's engagement
under this Agreement, Employee shall be available during normal
business hours and at such other times and places as shall be
reasonably requested by the executive officers to assist the Company
in conducting its Development Business and such other similar tasks as
may be requested of Employee by the executive officers or Board of
Directors.
(4) Location. Employee will be provided an office and access to
support staff as needed to perform the services requested of Employee.
B. Limitations. Employee's services shall be in addition to and not in
lieu of those set forth in the Employment Agreement. This Agreement
neither amends nor supersedes the Employment Agreement, which
Employment Agreement remains in full force and effect. Employee shall
perform the services requested pursuant to this Agreement in
accordance with Employee's own methods and judgment. Employee may,
during the terms of this Agreement, act as an officer or director of
any other business or activity except as expressly prohibited by this
Agreement.
3. COVENANTS AS TO CONFIDENTIAL INFORMATION AND NON-COMPETE. Employee is
subject to the same Covenants as to Confidential Information and
Non-Compete as set forth in Section 6 of the Employment Agreement. Section
6 of the Employment Agreement is incorporated by reference as if fully set
forth herein.
4. COMPENSATION. In consideration of the performance by Employee of his
obligations under this Agreement, including but not limited to the
non-compete agreement set forth in paragraph 3 above, Employee shall
receive:
A. Compensation of $250,000.00 ("Base Salary") payable as follows:
Upon execution of this Agreement Employee shall be paid the sum of
$41,666.66. Thereafter, Employee shall be paid equal monthly
installments of $20,833.33 each in arrears, beginning on March 31,
2006 and continuing on the last day of each month thereafter. Payments
shall be made by check payable to Employee.
B. Bonus of up to $150,000 payable within sixty days (60) days after
December 31, 2006 upon achievement of the following objectives on or
before that date. Achievement of the following objectives shall be
determined at the sole discretion of the Chief Executive Officer of
the Company after consultation with the Compensation Committee of the
Board of Directors.
(1) $50,000 payable if the actual Net FFO Contribution of
development activities for the year 2006 exceeds the budgeted Net
FFO Contribution for development activities for the year 2006 set
forth in the Development Proforma set forth in Exhibit A.
(2) $25,000 payable if one or more previously unidentified viable
development opportunities are identified for the Company.
(3) $75,000 payable if the project plan and subdivision plan for
the redevelopment of Falkland Chase are submitted to Xxxxxxxxxx
County so that project approval is reasonably expected to be
obtained in 2007. See Exhibit B for further details.
The Base Salary and Bonus shall be paid pursuant to the Company's standard
payroll policies and shall be subject to withholding or deductions as may be
mutually agreed between the Company and Employee or required by law.
5. TERM. The term of this Agreement shall commence on January 1, 2006 and
shall continue until December 31, 2006 or until terminated as provided
below.
6. TERMINATION. Either party may terminate this Agreement with or without
cause upon 30 days notice.
7. MISCELLANEOUS TERMS. This Agreement shall be subject to the following terms
and conditions:
A. Notices. Any notices required or permitted to be given under this
Agreement [other than that specified in Paragraph A(2)] shall be in
writing and deemed to have been duly given or made if delivered
personally or by facsimile on a business day, or sent by certified
mail or recognized overnight courier and will be given when received
by the addressee:
If to Company:
Home Properties, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxx and Xxx XxXxxxxxx
If to Employee:
Xxxxxx X. Xxxxxxxxx
00 Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
The notice specified in Paragraph A (2) shall be given promptly to the Chief
Executive Officer and the Chair of the Real Estate Investment Committee in any
manner that a reasonable person would agree to be effective.
B. Assignment. This Agreement is personal to Employee and Employee
may not assign or delegate the rights or obligations hereunder.
C. Severability. Each paragraph of this Agreement is severable and
should any court or other governmental body or competent
jurisdiction declare any provision of this Agreement invalid or
unenforceable by reason of any rule of law or public policy, all
other provisions hereunder shall remain in full force and effect.
D. Waiver of Breach. The waiver by the Company of a breach by
Employee of any provision of this Agreement shall not operate to
be construed as a waiver of any subsequent breach by Employee.
E. Binding Effect. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company, including any
acquirer of substantially all of the business or assets of the
Company and its Affiliates.
F. Entire Agreement and Changes. This Agreement contains the entire
agreement of the parties and may be changed only by an agreement
in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
G. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall constitute one and
the same instrument.
H. Applicable Law; Jurisdiction. This Agreement shall be governed of
the State of New York both as to interpretation and performance
and without regard to its principles on conflicts of laws. The
parties submit to the exclusive jurisdiction of the Courts of the
State of New York, federal and state, located in Monroe County
for the resolution of any dispute, which does or may arise under
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
COMPANY:
HOME PROPERTIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx, President and
Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Co-Chair of the Board
By: /s/ Xxxxxxxx X. Xxxxx, Xx.
Xxxxxxxx X. Xxxxx, Xx.
Chair, Compensation Committee
By: /s/ Xxxxxxx Xxxxxxxxxx, III
Xxxxxxx Xxxxxxxxxx, III.
Chair, Governance Committee
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
