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EXHIBIT 10.1
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ADVISORY AND NON-COMPETITION AGREEMENT
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This Advisory and Non-Competition Agreement (hereinafter
sometimes
referred to as the "Agreement"), as of November 1, 2004, is by
and between Toll
Brothers, Inc. (hereinafter "Company") and Bruce E. Toll
(hereinafter "BET").
WHEREAS, BET, a founder of the Company, was employed by the
Company for
many years as its President, Chief Operating Officer and
Secretary and in
various capacities with respect to the Company's subsidiaries,
and, more
recently, has been and continues to be retained under a
Consulting and
Non-Competition Agreement, dated March 5, 1998, as amended by an
Amendment
Agreement, dated June 6, 2000 (sometimes referred to herein
collectively as
"Original Consulting Agreement").
WHEREAS, BET's term under the Original Consulting Agreement
expires as
of October 31, 2004;
WHEREAS, the Company desires to have the valuable and
special
knowledge, expertise and services of BET available to the
Company on a
continuing basis after expiration of the Original Consulting
Agreement, and the
Company further desires that BET preserve the Company's
confidences and not
compete with the Company upon termination of his services under
this Agreement
or otherwise; and
WHEREAS, BET, during his many years of service with the Company
in
executive and other capacities, has gained knowledge and
received information
concerning the Company's business and operations of a
proprietary and
confidential nature;
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WHEREAS, in recognition of BET's continuing contributions to
the
Company and in exchange for BET's covenants contained herein,
the Company
desires to employ BET and provide him with the benefits
contained in this
Agreement.
NOW, therefore, in consideration of the mutual obligations and
promises
contained herein, and intending to be legally bound, Company and
BET hereby
agree as follows:
1. Recitals. The foregoing recitals are hereby incorporated
by
reference as if set forth fully herein.
2. Services; Term, and Title. During the three (3) year
period
commencing November 1, 2004 and ending October 31, 2007
(hereinafter "Term,"
which shall include any written extensions), the Company agrees
to employ BET as
follows: BET agrees to make himself available to the Company
and, in particular,
to the Chairman of the Board and Chief Executive Officer of the
Company
("Chairman"), on a reasonable basis and at reasonable times and
places so as not
to interfere with BET's other business interests, to consult
with the Company
and the Chairman concerning matters within his knowledge or
expertise. BET's
services shall, among other things, include providing advice,
assistance,
information and recommendations with regard to suitable
investments to be made
by the Company relating to or compatible with the real estate
industry. BET's
title, in connection with his services hereunder, shall be
Special Advisor to
the Chairman.
3. Compensation. In consideration of BET's continued
availability and
services to the Company, as provided in Paragraph 2, hereof, and
in further
consideration other agreements of BET herein, including BET's
covenants as set
forth in Paragraphs 6, 7, 8 and 9, hereof, the Company agrees to
pay BET the sum
of $675,000 during each year of the Term, payable in accordance
with the
Company's regular pay schedule (which is currently every two
weeks).
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4. Health Insurance. BET will continue to be entitled during the
term
of this Agreement to group health insurance of the type and
amount currently
being provided to Company executives.
5. Termination.
(a) Except as provided in Paragraph 5(b), hereof, in the event,
and
at such time as, (i) BET's services are terminated by the
Company before the end
of the Term or (ii) this Agreement is not renewed or extended on
terms mutually
acceptable to the Company and BET, BET shall be entitled, so
long as BET is in
compliance with the provisions of Paragraphs 6, 7, 8 and 9 of
this Agreement, to
payment of the annual amount payable to him pursuant to Section
3, hereof, over
the three year period starting as of the Termination Date,
defined below, in the
same manner as payments are to be made pursuant to Section 3
hereof. For these
purposes, the term Termination Date means the date as of which
BET's services
hereunder are terminated by the Company or the last day of the
Term of this
Agreement (or any written extension thereof).
(b) The payments provided for under Section 5(a), hereof, shall
not
be made if (i) the termination of BET's services or the
non-renewal or
non-extension of this Agreement is in connection with BET's
death or disability,
(ii) the termination of BET's services or the non-renewal or
non-extension of
this Agreement is for Cause, or (iii) BET voluntarily terminates
this Agreement.
For these purposes, the term "Cause" shall mean any act that
constitutes
embezzlement, theft, commission of a felony or proven dishonesty
in the course
of BET's services with the Company, any material violation of
Paragraphs 6, 7,
8, or 9 of this Agreement, or any willful refusal to perform the
normal duties
of BET's position.
(c) BET agrees that his benefit under the Company's
Supplemental
Executive Retirement Plan ("SERP") shall commence to be paid to
him by reason
of, and following, his separation from service, as provided for
under the terms
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of the SERP, as amended to comply with applicable provisions of
the Internal
Revenue Code (the "Code") and applicable Treasury Regulations,
including new
Code Section 409A added by the American Jobs Creation Act of
2004; provided,
however, that such payments on account of BET's separation from
service shall
not commence until the third anniversary of his separation from
service (which
is intended to coincide with the three year non-competition
period(s) referred
to in Paragraphs 6(i) and (ii) hereof).
6. Non-Compete. During the longer of (i) the Term and for a
period of
three years thereafter, (ii) three years after any other
termination of this
Agreement, r
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