THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 99.1
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement (this “Amendment”), dated as of March 23, 2010,
by and between American Campus Communities, Inc. (the “Company”) and Xxxxxxx X. Xxxxxxx, Xx.
(“Executive”).
WHEREAS, the Company and Executive have entered into an employment agreement dated as of
August 11, 2004, as amended (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. Definitions. For purposes of the Employment Agreement, the following terms shall
have the definitions set forth below:
“Restricted Stock Awards” shall mean awards of common stock of the Company issued to
Executive under any benefit or similar plan of the Company.
“Retirement” means a termination of the Term of Employment other than for Cause,
Disability or death, following the date on which the sum of the following equals or exceeds seventy
(70) years: (i) the number of full years of Executive’s employment and other business
relationships with the Company and any predecessor of the Company and (ii) Executive’s age on the
date of termination; provided that (x) Executive’s employment by (or other business relationships
with) the Company and any predecessor of the Company have continued for a period of at least one
hundred twenty (120) contiguous full months at the time of termination and, on the date of
termination, Executive is at least fifty (50) years old; (y) in the case of termination of the Term
of Employment, Executive gives at least six (6) months’ prior written notice to the Company of his
or her intention to retire; and (z) the Noncompete Agreement remains in full force and effect and
Executive enters into a general release of all claims in a form that is reasonably satisfactory to
the Company.
2. Termination of Employment. Section 8 of the Employment Agreement is amended and
restated to read in its entirety as follows:
“(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 reason of Retirement, (iv) a termination by the Company with
or without Cause, or (v) 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, Disability or Retirement. Executive’s
employment shall terminate automatically upon his death or Retirement. 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 terminated due to his death, Disability or Retirement, Executive or his estate or
his beneficiaries, as the case may be, shall be entitled to the Accrued Obligations
and all Restricted Stock Awards shall be 100% vested.
(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 and all unvested Restricted Stock
Awards as of the date of termination shall be forfeited and any rights Executive had
to such unvested Restricted Stock Awards shall become null and void.
(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 and all Restricted Stock Awards shall be 100%
vested;
(ii) An amount equal to 2.99 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;
(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
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the 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 and all unvested Restricted Stock Awards as of the date of
termination shall be forfeited and any rights Executive had to such unvested
Restricted Stock Awards shall become null and void. 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.”
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3. Capitalized Terms. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Employment Agreement.
4. 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.
5. 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. |
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| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Executive Vice President/ Chief Financial Officer |
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| /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||||
| Xxxxxxx X. Xxxxxxx, Xx. | ||||
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