EMPLOYMENT AGREEMENT
EXHIBIT 99.1
This EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of November
1, 2007, by and between American Campus Communities, Inc. (the “Company”) and Xxxxxxxx X.
Xxxx (“Executive”).
W I T N E S S E T H:
WHEREAS, the Company desires to employ Executive and to enter into an agreement embodying the
terms of such employment and Executive desires to enter into this Agreement and to accept such
employment, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt of which is mutually acknowledged, the Company
and Executive agree as follows:
Section 1. Definitions.
(a) “Accrued Obligations” shall mean (i) all accrued but unpaid Base Salary through
the date of termination of Executive’s employment, (ii) any unpaid Annual Bonus in respect to any
completed fiscal year which has ended prior to the date of termination of Executive’s employment,
(iii) any earned but unpaid holiday, vacation or paid time off; and (iv) any expenses incurred in
accordance with Section 7, below, that remain unpaid or unreimbursed as of the date of termination
of Executive’s employment. The Accrued Obligations shall be paid within five (5) business days of
the termination of Executive’s employment under this Agreement, except amounts payable with respect
to unpaid Annual Bonus, which shall be paid on the earliest of (i) the first (1st)
anniversary of the date upon which Executive’s Annual Bonus was paid in respect of the prior year,
(ii) at such time Annual Bonus amounts are paid to other senior executives, or (iii) March
15th of the calendar year following such termination of Executive’s employment.
(b) “Aggregate Payment” shall have the meaning set forth in Section 9 below.
(c) “Additional Payment” shall have the meaning set forth in Section 9 below.
(d) “Annual Bonus” shall have the meaning set forth in Section 4(b) below.
(e) “Auditor” shall mean a nationally recognized United States public accounting firm,
jointly selected by the Company and Executive, which has not, during the two years preceding the
date of its selection, acted in any way on behalf of the Company or any of its subsidiaries. If
Executive and the Company cannot agree on the firm to serve as the Auditor, then Executive and the
Company shall each select one accounting firm and those two firms shall jointly select the
accounting firm to serve as the Auditor.
(f) “Base Salary” shall mean the salary provided for in Section 4(a) below or any
increased salary granted to Executive pursuant to Section 4(a).
(g) “Board” shall mean the Board of Directors of the Company.
(h) “Cause” shall mean (i) Executive’s act of gross negligence or gross misconduct
that has the effect of injuring the business of the Company and its affiliates, taken as a whole,
in any material respect; (ii) Executive’s conviction of, or plea of guilty or nolo
contendere to, the commission of a felony by Executive; (iii) the commission by Executive
of an act of fraud or embezzlement against the Company or its affiliates; or (iv) Executive’s
willful breach of any material provision of this Agreement or the Noncompete Agreement.
(i) “Change in Control” shall mean:
(i) The acquisition by any individual, entity or group (other than the Company or any employee
benefit plan of the Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934) of securities representing more than 50% of the voting
securities of the Company entitled to vote generally in the election of directors , determined on a
fully-diluted basis (“Company Voting Securities”); provided, however, that
such acquisition shall not constitute a Change in Control hereunder if a majority of the holders of
the Company Voting Securities immediately prior to such acquisition retain directly or through
ownership of one or more holding companies, immediately following such acquisition, a majority of
the voting securities entitled to vote generally in the election of directors of the successor
entity;
(ii) The date upon which individuals who as of the date hereof constitute a majority of the
Board (the “Incumbent Board”) cease to constitute at least a majority of the Board,
provided, that any individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; or
(iii) Consummation of a reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets of the Company (a “Business Combination”), in
each case, unless, following such Business Combination, all or substantially all of the individuals
or entities who were the beneficial owners, respectively, of the Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company’s assets either directly or through one
or more subsidiaries).
(j) “COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
(k) “Code” shall mean the Internal Revenue Code of 1986, as amended.
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(l) “Disability” shall mean any physical or mental disability or infirmity that
prevents the performance of Executive’s duties for a period of (i) six (6) consecutive months or
(ii) an aggregate of twelve (12) months in any twenty-four consecutive month period. Any question
as to the existence, extent or potentiality of Executive’s Disability upon which Executive and the
Company cannot agree shall be determined by a qualified, independent physician selected by the
Company and approved by Executive (which approval shall not be unreasonably withheld). The
determination of any such physician shall be final and conclusive for all purposes of this
Agreement.
(m) “Effective Date” shall mean November 1, 2007.
(n) “Excise Tax” shall mean any tax imposed under Section 4999 of the Code or any
similar tax that may hereafter be imposed.
(o) “Good Reason” shall mean, without Executive’s consent, (i) any material diminution
or change in the nature or scope of Executive’s functions, duties, position, responsibilities, or
reporting relationships that are inconsistent with Executive’s titles (as specified in Section 3(a)
hereof) or this Agreement; (ii) the relocation of Executive’s principal office location more than
fifty (50) miles from its current location; (iii) the failure of the Company to obtain the
assumption in writing of its obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Company in a transaction constituting a “Change in Ownership
or Effective Control” within the meaning of the regulations issued under Section 409A of the Code;
or (iv) a breach by the Company of any material provision of this Agreement.
(p) “Noncompete Agreement” shall mean the Confidentiality and Noncompetition Agreement
attached hereto as Exhibit A.
(q) “Restricted Period” shall have the meaning set forth in the Noncompete Agreement.
(r) “Severance Term” shall have the period specified in Section 8(d)(ii) below.
(s) “Term of Employment” shall mean the period specified in Section 2 below.
Section 2. Acceptance and Term of Employment.
The Company agrees to employ Executive and Executive agrees to serve the Company on the terms
and conditions set forth herein. The Term of Employment hereunder shall commence on the Effective
Date and shall continue until terminated as provided in Section 8 hereof.
Section 3. Position, Duties and Responsibilities; Place of Performance.
(a) During the Term of Employment, Executive shall be employed and serve as the Executive Vice
President, Chief Financial Officer and Treasurer of the Company (together
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with such other position or positions consistent with Executive’s title as the Board shall
specify from time to time) and shall have such duties typically associated with such title and
shall report to the Company’s Chief Executive Officer. Executive also agrees to serve as an
officer and/or director of any subsidiary of the Company without additional compensation. If at
any time during the Term of Employment, Executive is not a Member of the Board of Directors, the
parties acknowledge and agree that Executive shall have the right to be present at any meetings of
the Board at which the other members of the Company’s executive management team are permitted to
attend, and shall receive notification in the same manner and timing as delivered to the Board with
respect to such meetings; provided, however, that Executive shall not be entitled
to be present during the discussion of any agenda item which personally concerns or otherwise
relates to Executive.
(b) Executive shall devote his full business time, attention, skill and best efforts to the
performance of his duties under this Agreement and shall not engage in any other business or
occupation during the Term of Employment, including, without limitation, any activity that
(x) conflicts with the interests of the Company; (y) interferes with the proper and efficient
performance of his duties for the Company, or (z) interferes with the exercise of his judgment in
the Company’s best interests. Notwithstanding the foregoing, nothing herein shall preclude
Executive from (i) serving, with the prior written consent of the Company as a member of the board
of directors or advisory boards (or their equivalents in the case of a non-corporate entity) of
non-competing businesses and charitable organizations, (ii) engaging in charitable activities and
community affairs, and (iii) managing his personal investments and affairs; provided,
however, that the activities set out in clauses (i), (ii) and (iii) shall be limited by
Executive so as not to materially interfere, individually or in the aggregate, with the performance
of his duties and responsibilities hereunder.
(c) Executive’s principal place of employment shall be in Austin, Texas, although Executive
understands and agrees that he may be required to travel from time to time for business reasons.
Section 4. Compensation. During the Term of Employment, Executive shall be entitled to the
following compensation:
(a) Base Salary. Executive shall be paid an initial Base Salary (the “Base
Salary”), at the annual rate of no less than $191,500, subject to applicable and authorized
deductions and withholdings and payable in accordance with the regular payroll practices of the
Company. Such Base Salary may be increased by the Board in its discretion, but in no event may be
decreased.
(b) Annual Bonus. Executive shall be eligible for an annual cash bonus award
determined by the Compensation Committee of the Board in respect of each fiscal year during the
Term of Employment (the “Annual Bonus”); provided, however, that in the
event the Company adopts an annual bonus plan for its senior executives, Executive shall
participate in such plan on the same basis as other senior executives of the Company (with
appropriate adjustment due to differences in title and salary). Executive shall receive the Annual
Bonus in respect of any year at the same time as bonuses are paid to other executive officers of
the
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Company, but in no event later than ninety (90) days after the end of the fiscal year for
which the bonus is payable.
(c) Legal Fees. The Company shall reimburse Executive for reasonable and necessary
attorneys’ fees incurred by Executive in the review and analysis of this Agreement, prior to
Executive’s execution of this Agreement.
Section 5. Employee Benefits.
During the Term of Employment, Executive shall be entitled to participate in health,
insurance, retirement and other benefits provided to other senior executives of the Company.
Executive shall also be entitled to at least the same number of holidays, vacation, sick days and
other benefits as are generally allowed to senior executives of the Company in accordance with the
Company policy in effect from time to time, or as otherwise granted by the Compensation Committee
of the Board.
Section 6. Key-Man Insurance.
At any time during the Term of Employment, the Company shall have the right to insure the life
of Executive for the sole benefit of the Company, in such amounts, and with such terms, as it may
determine. All premiums payable thereon shall be the obligation of the Company. Executive shall
have no interest in any such policy, but agrees to cooperate with the Company in taking out such
insurance by submitting to physical examinations, supplying all information required by the
insurance company, and executing all necessary documents, provided that no financial obligation is
imposed on Executive by any such documents.
Section 7. Reimbursement of Business Expenses.
Executive is authorized to incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company shall promptly reimburse him for all business
expenses incurred in connection with carrying out the business of the Company, subject to
documentation in accordance with the Company’s policy, as in effect from time to time.
Section 8. Termination of Employment.
(a) General. The Term of Employment shall terminate upon the earliest to occur of
(i) Executive’s death, (ii) a termination by reason of a Disability, (iii) a termination by the
Company with or without Cause, or (iv) a termination by Executive with or without Good Reason.
Upon any termination of Executive’s employment for any reason, except as may otherwise be requested
by the Company, Executive shall be deemed to have resigned from any and all directorships,
committee memberships or any other positions Executive holds with the Company or any of its
affiliates.
(b) Termination Due to Death or Disability. Executive’s employment shall terminate
automatically upon his death. The Company may terminate Executive’s employment immediately upon
the occurrence of a Disability, such termination to be effective upon Executive’s receipt of
written notice of such termination. In the event Executive’s employment is
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terminated due to his death or Disability, Executive or his estate or his beneficiaries, as
the case may be, shall be entitled to the Accrued Obligations.
(c) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect unless the provisions of this subsection
(i) are complied with. The Board shall give Executive not less than ten (10) business days written
notice of the Board’s intention to terminate Executive for Cause, such notice to state in detail
the particular act or acts or failure or failures to act that constitute the grounds on which the
proposed termination for Cause is based. Executive shall have ten (10) business days after the
date that such written notice has been received by Executive in which to cure such conduct, to the
extent such cure is possible. If he fails to cure such conduct, the termination shall be effective
on the date immediately following the expiration of the ten (10) business day notice period.
(ii) In the event the Company terminates Executive’s employment for Cause, he shall be
entitled to the Accrued Obligations.
(d) Termination By The Company Without Cause. The Company may terminate Executive’s
employment at any time without Cause, effective upon Executive’s receipt of written notice of such
termination. In the event Executive’s employment is terminated by the Company without Cause (other
than due to death or Disability), Executive shall be entitled to:
(i) The Accrued Obligations;
(ii) An amount equal to one (1) times the sum of (x) the annual Base Salary as of the date of
termination, plus (y) an average of the Annual Bonus paid or payable to Executive under the terms
of this Agreement in the three (3) fiscal years immediately prior to the fiscal year in which
Executive’s termination of employment occurs; provided, however, that if Executive
has been employed under the terms of this Agreement for less than three (3) fiscal years as of the
date of such termination, the bonus (y) to be included in this amount shall be based on the
percentage of Base Salary represented by the average Annual Bonus as a percent of the corresponding
average annual compensation received by Executive under the terms of this Agreement;
provided, further, that if the bonus (y) to be included in this amount is with
respect to the 2005 or the 2006 fiscal year, such amount shall be equal to the greater of (A) the
Annual Bonus paid or payable to Executive with respect to the 2005 fiscal year or (B) 50% of
Executive’s Base Salary as of the date of termination, such amount shall be payable in full no
later than March 15th of the calendar tax year following such termination of Executive’s
employment;
(iii) A pro rata Annual Bonus for the year in which such termination occurs, equal to the
greater of (x) the Annual Bonus paid or payable in respect of the fiscal year immediately prior the
fiscal year in which Executive’s termination of employment occurs, or (y) Executive’s target Annual
Bonus for the year in which such termination occurs, multiplied by a fraction, the numerator of
which equals the number of days elapsed from the commencement of the fiscal year in which such
termination occurs through the date of such termination, and the
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denominator of which equals 365; such amount shall be payable in full no later than March
15th of the calendar tax year following such termination of Executive’s employment; and
(iv) Payment for his benefit towards the cost of health continuation coverage of an amount
equal to the difference between the amount paid by Executive for health insurance coverage under
the Company’s health benefit plan immediately prior to such termination and the cost of
continuation coverage under COBRA, through the period ending on the expiration of the Restricted
Period; provided, that if prior to the expiration of the Restricted Period Executive is eligible to
receive health insurance benefits from a subsequent employer, payments under this subsection (iv)
shall cease as of the date Executive becomes eligible.
(e) Termination By Executive With Good Reason. Executive may terminate his employment
with Good Reason by providing the Company thirty (30) days’ written notice setting forth in
reasonable specificity the event that constitutes Good Reason, within sixty (60) days of the
occurrence of such event. During such thirty (30) day notice period, the Company shall have a cure
right (if curable), and if not cured within such period, Executive’s termination will be effective
upon the expiration of such cure period, and Executive shall be entitled to the same payments and
benefits as provided in Section 8(d) above for a termination without Cause.
(f) Termination By Executive Without Good Reason. Executive may terminate his
employment without Good Reason by providing the Company thirty (30) days’ written notice of such
termination. In the event of a termination of employment by Executive under this Section 8(f),
Executive shall be entitled to the Accrued Obligations. In the event of termination of Executive’s
employment under this subsection (f), the Company may, in its sole and absolute discretion, at any
time after notice of termination has been given by Executive, terminate Executive’s employment
(which in no event shall be treated as a termination without Cause or an event of Good Reason),
provided that the Company shall continue to pay to Executive his then current Base Salary and
continue benefits provided pursuant to Section 5 for the duration of the unexpired notice period.
(g) Mitigation; Offset. In the event of any termination of employment under this
Section 8, Executive shall be under no obligation to mitigate amounts payable hereunder by seeking
other employment or otherwise, and there shall be no offset against any payments or amounts due to
Executive under the terms of this Agreement on account of any subsequent employment by Executive or
otherwise.
(h) Release. Notwithstanding any provision herein to the contrary, the Company may
require that, prior to payment of any amount or provision of any benefit pursuant to
subsections (d) or (e) of this Section 8, Executive shall have executed a complete release of the
Company and its affiliates and related parties in such form as is reasonably required by the
Company, and any waiting periods contained in such release shall have expired.
Section 9. Additional Payment.
(a) In the event that payments or benefits made or provided to Executive under this Agreement
and under any other plan, program or agreement of the Company, or any of their respective
affiliates (the “Aggregate Payment”) are or become subject to the Excise Tax,
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the Company shall pay to Executive an additional amount (the “Additional Payment”)
such that the net amount retained by Executive with respect to the Aggregate Payment, after
deduction of any Excise Tax on the Aggregate Payment and any Federal, state and local income tax
and Excise Tax on the Additional Payment (and any interest and penalties thereon), but before
deduction for any Federal, state or local income or employment tax withholding on such Aggregate
Payment, shall be equal to the amount of the Aggregate Payment.
(b) The determination of whether the Aggregate Payment will be subject to the Excise Tax and,
if so, the amount to be paid to Executive and the time of payment pursuant to this Section 9 shall
be made by the Auditor. All fees and expenses of the Auditor shall be borne solely by the Company.
(c) For purposes of determining the amount of the Additional Payment, Executive shall be
deemed to pay:
(i) Federal income taxes at the highest applicable marginal rate of Federal income taxation
for the calendar year in which the Additional Payment is to be made, and
(ii) Any applicable state and local income taxes at the highest applicable marginal rate of
taxation for the calendar year in which the Additional Payment is to be made, net of the maximum
reduction in Federal incomes taxes which could be obtained from the deduction of such state or
local taxes if paid in such year.
(d) In the event that the Excise Tax is subsequently determined by the Auditor or pursuant to
any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken
into account hereunder in calculating the Additional Payment made, Executive shall repay to the
Company, at the time that the amount of such reduction in the Excise Tax is finally determined, the
portion of such prior Additional Payment that would not have been paid if such Excise Tax had been
applied in initially calculating such Additional Payment.
(e) In the event that the Excise Tax is subsequently determined by the Auditor or pursuant to
any proceeding or negotiations with the Internal Revenue Service to exceed the amount taken into
account hereunder at the time the Additional Payment is made (including, but not limited to, by
reason of any payment the existence or amount of which cannot be determined at the time of the
Additional Payment), the Company shall make an additional payment in respect of such excess (plus
any interest or penalty payable with respect to such excess) at the time that the amount of such
excess is finally determined.
Section 10. Noncompete Agreement.
As a condition to his employment pursuant to this Agreement, Executive shall execute the
Noncompete Agreement. Executive hereby represents and warrants to the Company that he will comply
with all obligations under the Noncompete Agreement and further agrees that the Noncompete
Agreement will survive any termination of this Agreement or Executive’s employment, or subsequent
service relationship with the Company; if any. Executive agrees that any breach of his obligations
under the Noncompete Agreement shall likewise and to the same extent be viewed as a breach
hereunder.
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Section 11. Representations and Warranties of Executive.
Executive represents that:
(a) Executive is entering into this Agreement voluntarily and that his employment hereunder
and compliance with the terms and conditions hereof will not conflict with or result in the breach
by him of any agreement to which he is a party or by which he may be bound;
(b) he has not, and in connection with his employment with the Company will not, violate any
non-solicitation or other similar covenant or agreement by which he is or may be bound;
(c) in connection with his employment with the Company he will not use any confidential or
proprietary information he may have obtained in connection with employment with any prior employer;
and
(d) during the Term of Employment, Executive will not in any way attempt to limit the
financial risk with respect to unvested options to purchase shares of the Company or any other
stock-based awards granted under the Company’s 2004 Incentive Award Plan or otherwise, by means of
any hedging (including without limitation, selling short) or other techniques.
Section 12. Taxes.
The Company may withhold from any payments made under this Agreement all applicable taxes,
including but not limited to income, employment and social insurance taxes, as shall be required by
law.
Section 13. Successors and Assigns; No Third-Party Beneficiaries.
(a) The Company. This Agreement shall inure to the benefit of and be enforceable by,
and may be assigned by the Company to, any purchaser of all or substantially all of the Company’s
business or assets, any successor to the Company or any assignee thereof (whether direct or
indirect, by purchase, merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would, be required to perform it if no such
purchase, succession or assignment had taken place.
(b) Executive. Executive’s rights and obligations under this Agreement shall not be
transferable by Executive by assignment or otherwise, without the prior written consent of the
Company; provided, however, that if Executive shall die, all amounts then payable
to Executive hereunder shall be paid in accordance with the terms of this Agreement to Executive’s
devisee, legatee or other designee or, if there be no such designee, to Executive’s estate.
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Section 14. Waiver and Amendments.
Any waiver, alteration, amendment or modification of any of the terms of this Agreement shall
be valid only if made in writing and signed by the parties hereto; provided,
however, that any such waiver, alteration, amendment or modification is consented to on the
Company’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder
shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions
hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
Section 15. Severability and Governing Law.
If any covenants or such other provisions of this Agreement are found to be invalid or
unenforceable by a final determination of a court of competent jurisdiction: (a) the remaining
terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or
provision hereof shall be deemed replaced by a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable term or provision
hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 16. Notices.
(a) Every notice or other communication relating to this Agreement shall be in writing, and
shall be mailed to or delivered to the party for whom it is intended at such address as may from
time to time be designated by it in a notice mailed or delivered to the other party as herein
provided, provided that, unless and until some other address be so designated, all notices or
communications by Executive to the Company shall be mailed or delivered to the Company at its
principal executive office, and all notices or communications by the Company to Executive may be
given to Executive personally or may be mailed to Executive at Executive’s last known address, as
reflected in the Company’s records.
(b) Any notice so addressed shall be deemed to be given: (i) if delivered by hand, on the
date of such delivery; (ii) if mailed by courier or by overnight mail, on the first business day
following the date of such mailing; and (iii) if mailed by registered or certified mail, on the
third business day after the date of such mailing.
Section 17. Dispute Resolution.
Any controversy arising out of or relating to this Agreement or the breach hereof (other than
claims for injunctive relief arising under the Noncompete Agreement) shall be settled by binding
arbitration in accordance with the Employment Dispute Resolution Rules of the American Arbitration
Association (with the exception that there will be a panel of three arbitrators rather than a
single arbitrator) and judgment upon the award rendered may be entered in any court having
jurisdiction thereof. The costs of any such arbitration proceedings shall be borne equally by the
Company and Executive, and neither party shall be entitled to recover
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attorney’s fee or costs expended in the course of such arbitration or enforcement of the
awarded rendered thereunder. The location for the arbitration shall be Austin, Texas. Any award
made by such arbitrator shall be final, binding and conclusive on the parties for all purposes, and
judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
Section 18. Section Headings.
The headings of the sections and subsections of this Agreement are inserted for convenience
only and shall not be deemed to constitute a part thereof affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section 19. Entire Agreement.
This Agreement, together with the Noncompete Agreement, constitutes the entire understanding
and agreement of the parties hereto regarding the employment of Executive. This Agreement
supersedes all prior negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement.
Section 20. Survival of Operative Sections.
Upon any termination of Executive’s employment, the provisions of Section 8 through Section 21
of this Agreement shall survive to the extent necessary to give effect to the provisions thereof.
Section 21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same instrument. The
execution of this Agreement may be by actual or facsimile signature.
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[Signatures to appear on the following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.
| AMERICAN CAMPUS COMMUNITIES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Xxxxxxx X. Xxxxxxx, Xx. | ||||
| President and Chief Executive Officer | ||||
| /s/ Xxxxxxxx X. Xxxx | ||||
| Xxxxxxxx X. Xxxx | ||||
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