FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT 99.5
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (this “Amendment”), dated as of November 1, 2007,
by and between American Campus Communities, Inc. (the “Company”) and Xxxx X. Xxxxxx (“Executive”).
WHEREAS, the Company and Executive have entered into an employment agreement dated as of April
28, 2005 (the “Employment Agreement”); and
WHEREAS, the Company and Executive desire to amend the Employment Agreement as set forth
herein.
NOW, THEREFORE, the Company and Executive agree as follows:
1. Position, Duties and Responsibilities. The first sentence of Section 3(a) of the
Employment Agreement is amended and restated to read in its entirety as follows:
“During the Term of Employment, Executive shall be employed and serve as the Senior
Executive Vice President and Chief Operating Officer of the Company (together 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.”
2. Accrued Obligations. Section 1(a) of the Employment Agreement is amended and
restated to read in its entirety as follows:
“(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.”
3. Good Reason. Section 1(n) of the Employment agreement is amended and restated to
read in its entirety as follows:
“(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.”
4. Termination By The Company Without Cause. Section 8(d) of the Employment Agreement
is amended and restated to read in its entirety as follows:
“(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 two (2) 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 denominator of
which equals 365; such amount shall be payable in full no
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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.”
5. Capitalized Terms. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Employment Agreement.
6. Ratification. Except as otherwise expressly provided in this Amendment, the
Employment Agreement is hereby ratified and confirmed and shall continue in full force and effect
in accordance with its terms.
7. Counterparts. This Amendment may be executed in identical counterparts, which when
taken together shall constitute one and the same instrument. A counterpart transmitted by
facsimile shall be deemed an original for all purposes.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
| AMERICAN CAMPUS COMMUNITIES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Xxxxxxx X. Xxxxxxx, Xx. | ||||
| President and Chief Executive Officer | ||||
| /s/ Xxxx X. Xxxxxx
|
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