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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