hme8kexhibit10-1.htm


    EXHIBIT 10.1


    Amendment
Number One

    to

    Home
Properties, Inc.

    Director
Deferred Compensation Plan

    


    


    This
Amendment Number One to the Director Deferred Compensation Plan (the “Plan”) was
duly adopted by the Board of Directors and the Stockholders of Home Properties,
Inc. at meetings duly called and held on May 4, 2010.

    


    1.           Defined
Terms.  All capitalized terms used herein but not defined shall
have the meaning given to them in the Plan.

    


    2.           Amendment to the
Plan.  Section 5(f) of the Plan entitled “Authorized Shares”
shall be amended to increase the aggregate number of shares of Company Common
Stock available for stock payments under the Plan (subject to substitution or
adjustment as provided in the Plan) from 100,000 to 150,000.

    


    


    


    
      
        
           


        

        
          
            
              
              

            

            
              
              

              
                

              

            

             

          

        

      

    

     

    
      HOME
PROPERTIES, INC.

       

      DIRECTOR
DEFERRED COMPENSATION PLAN

       

      (Amended
and Restated as of January 1, 2008)

       

      1.           Purpose

       

      Home
Properties, Inc. (the “Company”) adopted its Home Properties, Inc. Director
Deferred Compensation Plan effective January 1, 1999 (the “Plan”) to assist its
independent directors with their individual tax and financial planning and to
permit the Company to remain competitive in attracting and retaining its
independent directors.  The Plan permits eligible directors to defer
the receipt of annual compensation which they may be entitled to receive from
the Company and, with respect to cash compensation, the Company to contribute
matching contributions on their behalf.

       

      2.           Eligibility

       

      Any
member of the Board of Directors of the Company who is not otherwise an employee
of the Company or any subsidiary is eligible to participate in this
Plan.

       

      3.           Contributions

       

      
        	
                (a)  

              	
                Participant
      Contributions.

              


      

       

      
        
          	
                   
      

                	
                  (1)

                	
                  Amount of
      Deferral.  A participant may elect to defer receipt of
      any whole percent (100 percent maximum) of his or her
      annual  compensation otherwise payable or, in the case of
      restricted stock, granted to the participant by the Company during a
      calendar year.

                


        

         

        
          	
                   
      

                	
                  (2)

                	
                  Time for Electing
      Deferral.  Deferral elections shall be made before the
      beginning of the calendar year during which the participant will perform
      the services to which the compensations relates.  Any election
      to defer shall be made in accordance with subsection 3
    below.

                


        

         

        Notwithstanding
the foregoing, a newly-eligible participant may make an initial deferral
election within 30 days of the time the participant first becomes eligible to
participate in this Plan, provided that deferrals with respect to this election
may be made only with respect to compensation for services to be performed
subsequent to the election.  This initial eligibility rule shall not
apply if the participant is, or ever has been, eligible to participate in
another deferred compensation plan sponsored by the Company that is an “account
balance plan” under the plan aggregation rules of Code Section
409A.

         

        
          
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                  (3)

                	
                  Manner of Electing
      Deferral.  A participant shall elect a deferral by giving
      written notice to the Company in a form prescribed by the Committee
      established pursuant to Section 9 (the “Committee”).  The notice
      shall include (1) the year to which the deferral relates; (2) the
      percentage and type of compensation to be deferred; (3)
      the  period with respect to which the deferral relates; (4) the
      length of the deferral period; and (5) for deferrals relating to services
      performed in 2008 or thereafter, the form of payment as either a lump sum
      payment or annual installment payments over a specified period not to
      exceed 10 years.  A participant may designate a deferral period
      of three, five or ten years for cash deferrals and a deferral period of
      five or ten years for restricted stock deferrals.  If a
      participant elects annual installment payments, the installment payments
      shall be substantially equal in amount, provided that any hypothetical
      dividends credited to the Participant Account (as described in Section
      4(a) below) during the installment payment period shall be paid with the
      final installment payment.  Payment of cash deferrals and
      issuance of stock for restricted stock deferrals will commence on the
      first quarterly dividend payment date occuring after the applicable
      anniversary date of the latest date any compensation is deferred in any
      applicable year.

                


        

         

      

      For
example, a participant may elect in December 2008 to defer for three years
compensation payable in 2009 with respect to 2009
services.  Compensation deferred in 2009 will be paid on the first
Dividend Payment Date occurring after the third anniversary date of the latest
compensation deferred in 2009.

       

      For
deferrals made prior to 2008, notwithstanding the foregoing, in the event the
participant retires or otherwise ceases to be a member of the Board of
Directors, vested benefits payments shall be paid on the Company’s first
quarterly dividend payment date following retirement or such cessation
notwithstanding any later date specified in the participant’s election
form.  For deferrals relating to services performed in 2008 or
thereafter, a Participant may elect to receive payment of deferred amounts on
(i) a specified payment date, (ii) termination of directorship, or (iii) the
earlier of a specified payment date or termination of
directorship.  For purposes of the Plan, retiring or terminating as a
Director shall mean a separation from service with the Company (within the
meaning of Section 409A).

       

      If a
participant dies before receiving all vested benefits in his or her Participant
Account, the remaining balance shall be paid to the participant’s estate in a
lump sum as soon as administratively practicable following the participant’s
death, and in no event later than March 15th of the calendar year following the
calendar year in which the death occurred, notwithstanding any later date(s)
specified in the participant’s election form(s).

       

      
        	
                (b)  

              	
                Company Matching
      Contributions.  The Company shall contribute 10 percent
      of the cash amount each participant defers.  The Company’s
      contribution  shall be made as of the same date as the
      participant’s deferral to which it relates and shall be deferred to the
      same payment date as the related participant deferral.  The
      Company shall not contribute any additional amounts with respect to any
      participant’s election to defer the recognition of income on restricted
      stock.

              


      

       

      
        
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        4.           Participant Accounts

      

       

      For each
participant there shall be established a Participant Account (the
“Account”).  The maintenance of individual Participant Accounts is for
bookkeeping purposes only.  The Company is not obligated to make
actual contributions to fund this Plan or to acquire or set aside any particular
assets for the discharge of its obligations, nor is any participant to have any
property rights in any particular assets held by the Company, whether or not
held for the purpose of funding the Company’s obligations
hereunder.

       

      
        	
                (a)  

              	
                Valuation of
      Accounts.  A participant’s Account shall be valued as of
      each day there occurs a transaction affecting the Account. Each cash
      deferral or Company contribution shall be reflected by crediting the
      Account with the number of shares of Company Common Stock that could be
      purchased at the Common Stock’s then fair market value with the amounts
      deferred by the participant, or contributed by the Company on behalf of a
      participant.  With respect to the deferral of the recognition of
      income on restricted stock, a participant’s Account shall be credited with
      the same number of shares of the Company Common Stock as the number of
      shares of restricted stock the recognition of income on which has been
      deferred.  For purposes of making these credits:  (a)
      the participant’s quarterly compensation and meeting fees will be deemed
      to have been made on the Dividend Payment Date occurring during the
      quarter for which the quarterly payment is made and during which the
      meeting date(s) occurred; and (b) restricted stock will be deemed to have
      been granted on the date that it is actually granted.  In
      addition, each Account will be credited with the number of shares of
      Company Common Stock that could be purchased with hypothetical dividends
      that would be paid with respect to all shares previously allocated to the
      Account on the same date and at the same price that shares are purchased
      for participants in the dividend reinvestment feature of the Company’s
      Dividend Reinvestment and Direct Stock Purchase
      Plan.  Distributions from, or forfeiture of, the Account shall
      be recorded as of the day of such distributions or
      forfeitures.  The Account shall also be adjusted as of the date
      of any transaction requiring additions to or distributions from the
      Account to reflect any gains (or losses) in the fair market value of
      Company Common Stock held in the Account.  Three subaccounts
      shall be established within the Account to track separately participant
      cash contributions, Company cash contributions and participant restricted
      stock contributions and the earnings and distributions on
      each.  The Common Stock’s fair market value shall be the
      composite closing price for a share of the Company’s Common Stock as
      listed on the New York Stock Exchange on the date before the transaction
      occurs.

              


      

       

      
        
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                (b)  

              	
                Vesting.  All
      amounts credited to participant cash contribution subaccounts shall be
      fully vested at all times.  Except for the possible claims of
      the Company’s general creditors, they shall not be subject to forfeiture
      on account of any action by a participant or by the Company, including
      termination of the participant’s directorship.  Amounts credited
      to a participant’s Company cash contribution subaccount shall become fully
      vested on the first Dividend Payment Date occurring after the third
      anniversary of the date first credited to the subaccount if the
      participant has  continuously been a director of the Company
      through the third anniversary of the contribution date, or if the
      participant ceases to be a director on account of disability, death or
      retirement or upon a change in control as hereinafter
      provided.  For this purpose, “disability” shall mean the
      participant is unable to engage in any substantial gainful activity by
      reason of any medically determinable physical or mental impairment which
      can be expected to result in death or can be expected to last for a
      continuous period of not less than 12 months.  A participant’s
      restricted stock subaccount shall become vested in accordance with the
      vesting provisions of the restricted stock grant.  Amounts
      payable under this Plan shall be paid only to the participant provided
      that in the event of his or her death payments shall be made to his or her
      estate.

              


      

       

      If a
participant’s Company subaccount becomes forfeitable, he or she shall forfeit
both Company contributions and the earnings thereon.’

       

      5.           Payment of Deferred
Amounts

       

      No
withdrawal may be made from an Account except as provided in this section
5.

       

      
        	
                (a)  

              	
                Commencement of
      Benefits.  Payments of vested amounts from an Account
      shall normally be made in a lump sum or annual installment payments,
      commencing on the first quarterly dividend payment date occurring after
      the applicable anniversary date of the latest date any compensation is
      deferred in any applicable year.

              


      

       

      
        	
                (b)  

              	
                Hardship
      Withdrawals.  Except for earlier payments expressly
      authorized by this Plan and Code Section 409A, no benefit may be paid
      earlier than the date specified in a deferral
      election.  Notwithstanding the payment terms set forth in a
      participant’s deferral election, however, the Committee may, in its sole
      discretion, authorize an in-service withdrawal on account of a
      participant’s Unforeseeable Financial Emergency.  A distribution
      based upon Unforeseeable Financial Emergency shall not exceed the lesser
      of the participant’s account balance, or the amount reasonably needed to
      satisfy the Unforeseeable Financial Emergency plus amounts necessary to
      pay taxes reasonably anticipated as a result of the payouts, after taking
      into account the extent to which the Unforeseeable Financial Emergency is
      or may be relieved through reimbursement or compensation by insurance or
      otherwise or by liquidation of the participant’s assets (to the extent the
      liquidation of assets would not itself cause severe financial
      hardship).  A distribution based upon Unforeseeable Financial
      Emergency shall be permitted only to the extent permitted under Section
      409A.

              


      

       

      For
purposes of the Plan, the term “Unforeseeable Financial Emergency” shall mean an
unanticipated emergency that is caused by an event beyond the control of the
participant that would result in severe financial hardship to the participant
resulting from (i) an illness or accident of the participant, the participant’s
spouse or a dependent of the participant, (ii) a loss of the participant’s
property due to casualty, or (iii) such other extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
participant, all as determined in the sole discretion of the
Committee.

       

       

      
        
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                (c)  

              	
                Subsequent Deferral
      Election.  No subsequent deferral election shall be
      permitted to extend the payment of benefits beyond the payment date set
      forth in the relevant deferral election, except for a subsequent deferral
      election that satisfies all of the following
  conditions:

              


      

       

      
        	
                ·  

              	
                the
      subsequent election must be made 12 months or more prior to the
      previously-selected payment date;
and

              


      

       

      
        	
                ·  

              	
                the
      new payment commencement date must be at least five years later than the
      previously-selected payment date;
and

              


      

       

      
        	
                ·  

              	
                the
      subsequent election may not be effective until at least 12 months after
      the date on which it is made.

              


      

       

      Only one
such subsequent deferral election may be made after the initial deferral
election.

       

      
        	
                (d)  

              	
                Form of
      Payment.  Payments for any reason other than a change in
      control shall be made only in stock provided that any fractional shares
      from an Account shall be paid in
cash.

              


      

       

      
        	
                (e)  

              	
                Change in
      Control.  In the event of a change in control, all
      account balances shall become fully and immediately vested and shall be
      paid, in cash or stock as the Committee in its sole discretion may
      determine, within five days of the change in control. For this purpose,
      the term “change in control” means a change that is a change in the
      ownership, a change in the effective control or a change in the ownership
      of a substantial portion of the assets of the Company, all as defined in
      IRS regulations under Code Section 409A, provided that such change also
      satisfies one of the following:

              


      

       

      
        	
                i.  

              	
                a
      change of a nature that would be required to be reported in response to
      Item 6(e) of Schedule 14A of Regulation 14A or to Item 5.01 of Form 8-K
      promulgated under the Securities Exchange Act of 1934, as
      amended;

              


      

       

      
        	
                ii.  

              	
                any
      “person” (as such term is used in Sections 13(d) and 14(d)(2) of such Act)
      is or becomes the beneficial owner, directly or indirectly, of securities
      of the Company representing 30% or more of the combined voting power of
      the Company’s then outstanding securities;
or

              


      

       

      
        	
                iii.  

              	
                during
      any period of twenty-four (24) consecutive months, individuals who at the
      beginning of such period constitute the Board of Directors of the Company
      cease for any reason to constitute at least a majority thereof unless the
      election, or the nomination for election by the Company’s shareholders, of
      each new director was approved by a vote of at least two-thirds of the
      directors then still in office who were directors at the beginning of the
      period.

              


      

       

       

      
        
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                (f)  

              	
                Authorized
      Shares.  An aggregate of 100,000 shares of Company Common
      Stock (subject to substitution or adjustment as provided below) shall be
      available for stock payments under this Plan.  Such shares may
      be authorized and unissued shares or may be treasury shares. In the event
      of any change in the Common Stock of the Company by reason of any stock
      dividend, recapitalization, reorganization, merger, consolidation,
      split-up, combination, or exchange of shares, or rights offering to
      purchase Common Stock at a price substantially below fair market value, or
      of any similar change affecting the Common Stock, the number and kind of
      shares which thereafter are available for stock payments under the Plan
      shall be appropriately adjusted consistent with such change in such manner
      as the Committee may deem equitable to prevent substantial dilution or
      enlargement of the rights granted to, or available for, participants in
      the Plan.

              


      

       

      6.           Participant’s Rights
Unsecured

       

      The right
of any participant or, if applicable, the participant’s estate, to receive
benefits under the provisions of this Plan shall be an unsecured claim against
the general assets of the Company.  Any amounts held in an Account,
including amounts that may be set aside by the Company for the purpose of
meeting its obligations under this Plan, are a part of the Company’s general
assets and shall be reachable by the general creditors of the
Company.

       

      7.           Statement of Account

       

      Statements
will be sent to participants no less frequently than annually setting forth the
value of their Accounts.

       

      8.           Transferability

       

      The
rights of a participant under this Plan shall not be transferable other than by
will or by the laws of descent and distribution and are exercisable during the
participant’s lifetime only by the participant or by his guardian or legal
representative.

       

      9.           Plan Administrator

       

      The
administrator of this Plan shall be a Committee of the Board of Directors of the
Company from time to time designated by the Board.  The Committee’s
members shall not be employees of the Company.  The Committee shall
have the authority to adopt rules and regulations for carrying out the Plan and
to interpret, construe and implement the provisions of the Plan.  The
Committee may delegate some or all of its functions to another person as it may
deem appropriate.  The Board of Directors has designated the
Management and Directors Committee of the Board of Directors as administrator of
the Plan until further notice.

       


      
        
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      10.           Amendment

       

      This Plan
may at any time or from time to time be amended, modified or terminated by the
Company’s Board of Directors, , provided that any such amendment, modification
or termination shall comply with the requirements of Code Section
409A.  No amendment, modification or termination shall, without the
consent of a participant, adversely affect such participant’s accruals in his or
her Account.

       

      11.           Dividend Payment Date

       

      In the
event that the Company does not pay a dividend on the Common Stock in any
calendar quarter, the Dividend Payment Date in that quarter for purposes of this
Plan shall be deemed to be the last day of February, May, August or November in
the relevant quarter, or if such date is not a business day, the next succeeding
business day.

       

      12.           Section 409A

       

      This Plan
shall be governed by and subject to the requirements of Section 409A and shall
be interpreted and administered in accordance with that intent.  If
any provision of this Plan would otherwise conflict with or frustrate this
intent, that provision will be interpreted and deemed amended so as to avoid the
conflict.  The Committee reserves the right to take any action it
deems appropriate or necessary to comply with the requirements of Section 409A
and may take advantage of such transition rules under Section 409A as it deems
necessary or appropriate.

       

      13.           Governing Law

       

      This Plan
and any participant elections hereunder shall be interpreted and enforced in
accordance with the laws of the State of New York.

       

      14.           Effective Date

       

      The
effective date of this Amended and Restated Plan is January 1,
2008.

      
        
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