Ex-10.1



 





AMENDED AND RESTATED




ALLEN & O’HARA DEVELOPMENT COMPANY, LLC




STUDENT HOUSING DEVELOPMENT

BONUS PROGRAM




EFFECTIVE DATE: JULY 2l, 2005




          WHEREAS, it is in the best interest of Allen & O’Hara Development Company, LLC (the “Company”)
to provide an incentive bonus program (“Program”) for certain officers and employees of the Company
(“Program Participants”) engaged in the pursuit of student housing development projects in the
highly competitive student housing business; and




          WHEREAS, the purpose of the Program is to provide a meaningful financial incentive (“Bonus”)
to Program Participants to encourage the successful development of Projects on time, within budget,
and resulting in the actual receipt of substantial development fees and, to the fullest extent
possible, new management contracts for the Company.




          NOW, THEREFORE, as of the Effective Date, the Company hereby implements the Program subject to
the following terns and conditions:




1.      The purpose of the Program is to provide a Bonus to Program Participants to encourage the
successful development of Projects on time, within budget, and resulting in the actual receipt of
substantial development fees and, to the fullest extent possible, new management contracts for the
Company in the highly competitive student housing business. Projects for which a Bonus may be paid
under this Bonus Program are those Projects approved by the Executive Committee of Education Realty
Trust, Inc.



2.      The Program shall be administered by a commirtee consisting of Paul O. Bower, Sole Director of
the Sole Member of the Company, William W. Harris, III, President of the Company, and Randall H.
Brown, Secretary and Treasurer of the Company (the “Program Committee”). All decisions,
interpretations, and conflict resolutions regarding the Program will be made by the Program
Committee and are final. The Sole Member of the Company shall have the sole discretion to appoint
or remove members of the Program Committee.



3.      The Program Participants are William W. Harris, III, Charles M. Harris, Wallace L. Wilcox, Craig
L. Cardwell, Thomas Trubiana and William Bugg. Program Participants may be added or deleted from
the Program at the sole determination of the Program Committee.



4.      Bonuses may, but need not be, awarded by the Program Committee for each Project. Bonuses shall
be awarded to Program Participants in the sole discretion of the Program Committee. The Program
Committee shall determine which Program Participants shall receive a bonus for each Project and
shall determine the percentage of the Bonus Pool to be awarded to each Program Participant so
selected. The Bonus Pool for each Project shall consist of an amount equal to five percent (5%) of
the Development Fee actually paid to and received by the Company (or an entity owned by the
Company) for a successfully negotiated, financed and closed Project.



 









 




For purposes of clarification, the total amount of all Bonuses payable to Program Participants for
a particular Project shall not exceed five percent (5%) of the Development Fee received by the
Company for that Project without regard to how the bonus amounts may be allocated among the Program
Participants for that Project.



Bonuses will be carried as Development Fees are paid to and received by the Company. Payment of
earned Bonuses shall be made to Program Participants following the end of the calendar quarter in
which Development Fees from the Project are received by the Company. Development Fees may be
identified as “Development Fees,” “Construction Management Fees” or some similar title, but in no
case shall reimbursed out-of-pocket expenses be included.




5.      Payment of the full amount of the Bonus is subject to successful completion of the Project, on
time, within budget, and with the Program Participants’ continued involvement in the Project, all
as determined by the Program Committee. Failure to meet these conditions may result in an
adjustment to any amount due a Program Participant, from that or any other Project, including
elimination of all or a portion of any future Bonus.



6.      The calculation of the Bonus shall include a deduction for any payment made directly or
indirectly to third parties, such as, without limitation, Project cost overruns or liquidated
damages paid by the Company or an affiliate, co-developer fees, finder’s fees, or third-party
construction management fees, for the rebate or return of previously received fees, or for other
pursuit costs that are not reimbursed by project financings, such as architects fees, advisory and
consulting fees, modeling costs, renderings, and the like. Any such payments, or pursuit costs
incurred for successful or unsuccessful efforts, may be deducted from the Bonus pool prior to
allocation among Program Participants, at the sole discretion of the Program Committee. Any
deferral of the Company’s development fee will likewise defer payment of Bonus payments to the
Program Participants.



7.      The allocation of Bonuses among the Program Participants will be recommended by William W.
Harris, III, subject to the approval of the Program Committee.



8.      All Projects under negotiation as of or following the Effective Date are eligible for the
Program if approved by the Executive Committee.



9.      In the event a Program Participant’s employment with the Company is terminated, voluntarily or
involuntarily, for any reason or no reason, no unpaid Bonus, whether earned or unearned, shall be
paid to such person and such person shall no longer be a Program Participant. Furthermore, any
Program Participant no longer an employee of the Company shall have no right, claim or entitlement
to Bonus payments such person may assert is earned, deferred or accrued but unpaid. The intent of
this Program is that Bonus payments shall only be paid to Program Participants actually employed by
the Company at the time of the actual payment of the Bonus regardless of when such Bonus payment
may have been deemed earned. Any Bonus not paid because of such termination may, in the discretion
of the Program Committee, (i) remain in the Bonus Pool for distribution at the discretion of the
Program Committee to one or more remaining Program Participants or (ii) be returned to the Company.



 









 





10.      The Program may not be altered or amended except in writing executed by the Company. Program
Participants shall not be entitled to rely upon any representations, alterations or amendments to
the Program not set forth in a writing executed by the Company.



11.      The provisions of this Program shall be treated confidentially by Program Participants and
distribution of this Program shall be limited to the Program Participants, members of the Company,
officers and such employees of the Company with a need to know the provisions of the Program in
order to administer the Program.



12.      This Program is not intended to create a contract of employment between Program Participants
and the Company. In addition, none of the provisions, terms and conditions of the Program guarantee
Program Participants continued or permanent employment with the Company. In the absence of a
written contract of employment signed by the parties, the employment relationship between the
Company and Program Participants is “at-will” and thus may be terminated by either the Company or a
Program Participant. In the event that any statements provided by any members, officers or
representatives of the Company are inconsistent with this paragraph, the provisions of this
paragraph shall govern.



ALLEN & O’HARA DEVELOPMENT COMPANY, LLC

By: Allen & O’Hara Education Services, Inc., its sole member




	 	 	 	 	 
	By:

	 	 	 	  
	 

	 	 

Pau. O. Bower, President