AMENDMENTNUMBER ONE TO AMENDEDAND RESTATED HOMEPROPERTIES, INC. 2003STOCK BENEFIT PLAN
EX-10.5 6 hme10q3qex105.htm AMENDMENT ONE TO 2003 STOCK BENEFIT PLAN hme10q3qex105.htm
Exhibit 10.5
AMENDMENT NUMBER ONE
TO
AMENDED AND RESTATED
HOME PROPERTIES, INC.
2003 STOCK BENEFIT PLAN
The Amended and Restated 2003 Stock Benefit Plan (the “Plan”) of Home Properties, Inc. (the “Company”), as amended, is hereby amended as described below:
1. Limitations on Amendments to Outstanding Grants. The following language shall be added at the end of Section 2.2(b) of the Plan:
“In no event and notwithstanding anything to the contrary herein, the Committee may not extend the exercise period of any Director’s Options or Stock Options or otherwise amend any of the terms of an outstanding Director’s Option or Stock Option if such extension or amendment would result in a violation of Code Section 409A or if such extension would cause such Director’s Option or Stock Option to no longer be exempt from the provisions of such Section 409A.”
2. Amendment of Plan. Section 2.6 shall be deleted in its entirety and replaced with the following:
“The Plan may be suspended, terminated or reinstated, in whole or in part, at any time by the Board of Directors. This Plan may be amended only with the approval of the holders of a majority of the shares of Common Stock eligible to vote. Notwithstanding the prior sentence, the Board of Directors may from time to time make amendments to the Plan without shareholder consent if such amendments are made to: (i) reflect a change that is of an immaterial nature or to cure any ambiguity; (ii) comply with Section 409A of the Code, Section 422 of the Code with respect to Inventive Stock Options, Rule 16b-3 and the rules of the New York Stock Exchange or any successor or replacement provisions and any regulations issued thereunder; and (iii) to satisfy any requests, conditions or guidelines contained in any order, direction, opinion, ruling or regulation of a federal or state agency or contained in federal or state law; provided, however, that no amendment shall be made if it would result in a violation of Section 409A of the Code..
Except as otherwise provided herein, termination or amendment of the Plan shall not, without the consent of a Participant, affect such Participant’s rights under any award previously granted to such Participant.
Subject to the restrictions contained in Section 3.2 of this Plan, the Committee may also amend or modify the grant of any outstanding Award in any manner to the extent that the Committee would have had the authority to make such Award as so modified or amended; provided, however, that no amendment or modification shall be made if it would result in a violation of Section 409A of the Code.”
3. Termination of Employment. Section 3.7 shall be amended by adding the following new Subsection (g) to the end thereof:
“Notwithstanding the foregoing provisions of this Section 3.7, if a Stock Option is intended to be an Incentive Stock Option, in no event may the time for exercise be later than three (3) months after the Participant’s termination of employment; provided, however, in the case of a Participant’s Total Disability or death within three (3) months after the termination of employment, the Stock Option may be exercised within one (1) year after the date of the Participant’s termination of employment, but in no event after the date of expiration of the term of the Stock Option.”
4. Effect of Leaves of Absence. Section 3.8 shall be amended by adding the following new sentence to the end thereof:
“In case of such leave of absence, the employment relationship shall be deemed to have continued until the later of (i) the date when such leave shall have been ninety (90) days in duration, or (ii) the date as of which the Participant’s rights to re-employment shall have no longer been guaranteed either by statute or contract.”
5. Adjustments Upon Changes in Capitalization. Section 6.1 is revised by deleting the first two sentences therein and replacing them with the following:
“In the event of changes to the outstanding shares of Common Stock of the Company through Business Combination, recapitalization, reclassification, stock split-up, stock dividend, stock consolidation or otherwise, an appropriate and proportionate adjustment shall be made in the number and kind of shares as to which Awards or Director’s Options may be granted to prevent enlargement or dilution of rights. A corresponding adjustment changing the number or kind of shares and/or the purchase price per share of unexercised Stock Options or portions thereof which shall have been granted prior to any such change shall likewise be made to prevent enlargement or dilution of rights.”
6. Interpretation of Plan. The following sentence shall be added at the end of Section 6.10 of the Plan:
“The Plan and awards hereunder are intended to be exempt from Section 409A and shall be interpreted consistently with such intention.”
7. Expiration of Directors’ Options. The following language shall be added to the end of the last sentence of Section 4.6(e) of the Plan:
“or on the stated expiration date, whichever is earlier.”
8. Effective Date. This Amendment Number One shall become effective upon its adoption by the Board of Directors.
Approved by Board of Directors
October 29, 2008
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