AMENDMENT, WAIVER AND RETIREMENT AGREEMENT
Exhibit
10.16
THIS AMENDMENT, WAIVER AND RETIREMENT
AGREEMENT (this “Agreement”),
dated March 15, 2010 (the “Effective
Date”), is by and between Education Realty Trust, Inc., a Maryland
corporation (the “Company”),
and Xxxxxx X. Xxxxxx (“Executive”). Capitalized
terms used herein and not otherwise defined shall have the same meanings as in
the Employment Agreement (as defined below).
WHEREAS, Executive’s
employment with the Company is governed by the terms and conditions of that
certain Amended and Restated Employment Agreement, dated October 29, 2008,
between the Company and Executive (the “Employment
Agreement”);
WHEREAS, Section 18 of the
Employment Agreement provides that the Employment Agreement may be amended in a
writing executed by the Company and Executive;
WHEREAS, the Compensation
Committee of the Board of Directors of the Company has approved of and Executive
has agreed to a reduction in Executive’s annual base salary from $171,000.00 to
$140,000.00 effective as of March 1, 2010 (the “Reduction”);
WHEREAS, pursuant to the
definition of “Good Reason” in the Employment Agreement, the Reduction would
constitute Good Reason under the Employment Agreement such that Executive would
be entitled to provide notice of his resignation within ninety (90) days
following the implementation of the Reduction (“Notice”);
WHEREAS, subject to the
Reduction and until the Retirement Date (as defined below) or the earlier
termination of Executive’s employment for Cause, the Company desires for
Executive to remain in the employ of the Company, and Executive desires to
maintain such employment pursuant to the terms and conditions of the Employment
Agreement as amended herein; and
WHEREAS, the Company and
Executive have determined that, effective as of May 1, 2010 (the “Retirement
Date”), Executive’s employment with the Company shall be terminated
pursuant to the Employment Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and premises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive hereby agree as follows:
1. Waiver. Executive
hereby irrevocably and unconditionally agrees that, although the Reduction
constitutes Good Reason under the Employment Agreement, Executive hereby waives
any and all right to provide Notice to the Company as afforded by such
Employment Agreement as a result of the Reduction. If Executive
provides Notice in contravention of this Section 1, such
Notice shall be null and void ab initio and of no force or
effect. This Agreement shall have no affect upon any event that
constitutes Good Reason which occurs after the Effective Date but prior to the
Retirement Date.
2. Employment. Executive
shall remain in the employ of the Company, and such employment shall, subject to
the Reduction, continue to be governed by the terms and conditions of the
Employment Agreement. Notwithstanding anything to the contrary
contained in this Agreement, unless Executive’s employment is earlier terminated
for Cause, Executive and the Company hereby agree that Executive’s employment
with the Company shall be terminated pursuant to Section 5(h) of the
Employment Agreement effective as of the Retirement Date. To the
extent Executive continues to hold any such offices or directorships, Executive
hereby agrees to resign, effective as of the Retirement Date, from all offices
and directorships he then holds with the Company and any and all of the
Company’s subsidiaries and affiliates.
Exhibit
10.16
3. Release by
Executive. On the Retirement Date, Executive shall, as a
precondition to receiving any severance compensation set forth in Section 4 of this
Agreement, execute a release, in substantially the form attached hereto as Exhibit A (the “Release”),
which shall release the Company and its subsidiaries and other affiliates from
any and all liability and claims of any kind as permitted by law.
4. Severance
Compensation. In consideration of Executive’s execution and
non-revocation of this Agreement and the Release and pursuant to Section
6(b) of the Employment Agreement, effective as of the Retirement Date,
Executive shall be entitled to receive and the Company shall pay the severance
compensation set forth in this Section
4, subject to the terms and conditions of this Agreement and the
Release. Except as set forth in this Section
4, the Company shall have no other obligations to Executive.
(a) Accrued Salary, Vacation,
Bonus, Expense Reimbursement and Health Insurance. The Company
shall pay to Executive (i) all accrued but unpaid wages through the Retirement
Date, based upon the Reduction; (ii) all accrued but unpaid vacation through the
Retirement Date, based upon the Reduction; and (iii) all approved, but
unreimbursed, business expenses, provided that a request for reimbursement of
business expenses is submitted in accordance with the Company’s policies and
submitted within five (5) business days of the Retirement
Date. Executive’s benefits under the Company’s major medical health
group plan shall terminate on the Retirement Date, and the Company shall pay any
COBRA continuation coverage premiums required for the coverage of Executive and
Executive’s eligible dependents under the Company’s major medical group health
plan for a period of up to eighteen (18) months (or, if less, the period that
Executive and Executive’s eligible dependents are entitled to under the
applicable provisions of COBRA), provided, however, that Executive and
Executive’s eligible dependents shall be solely responsible for any requirements
which must be satisfied or actions that must be taken in order to obtain such
COBRA continuation coverage other than the payment of COBRA
premiums.
(b) Severance
Payment. In addition to the severance compensation set forth
in Section
4(a), the Company shall pay to Executive a severance payment of
$171,000.00 (the “Severance
Payment”). Payment of the Severance Payment shall commence on
the sixtieth (60th) day following the Retirement Date and shall be paid over a
period of twelve (12) months, in accordance with the Company’s regular payroll
practices, provided that Executive shall have executed this Agreement and the
Release and that the statutory or other revocation periods set forth in Section 4(g) and
Section 4(h) of
the Release shall have expired prior to such date (the “Severance
Period”).
(c) No Other
Payments. Executive acknowledges that this Section 4 sets forth
all of the severance compensation owed to Executive under the Employment
Agreement. Executive acknowledges that no other promise or agreements
of any kind have been made to Executive or with Executive by any person or
entity whatsoever to cause Executive to sign this
Agreement. Executive further acknowledges and agrees that the
payments or benefits that may be due under this Section 4 shall
constitute full accord and satisfaction of all obligations, including without
limitation any and all severance obligations, in connection with Executive’s
employment.
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Exhibit
10.16
(d) Conditions to Severance
Payment. In connection with the Separation Conditions set
forth in Section
6(c) of the Employment Agreement, Executive acknowledges that he would
not be entitled to receive payments or benefits that may be due under this Section 4 but for
Executive’s execution and non-revocation of this Agreement and the Release and
his compliance with the restrictive covenants set forth in Section 8 of the
Employment Agreement and any and all post-termination obligations set forth in
the Employment Agreement, this Agreement and/or the Release. For the
avoidance of doubt, Executive and the Company hereby agree that for purposes of
Executive’s continued compliance with the post-termination obligations set forth
in the Employment Agreement, references in Section 8(f)-(i) of
the Employment Agreement to the “Restricted Period” (Non-Competition; Non-Solicitation of
Customers; Non-Recruitment of Employees; and Post-Employment Disclosure)
shall mean the period of time encompassing the Severance Period.
5. Disclaimer of
Liability. Executive acknowledges that this Agreement shall
not in any way be construed as an admission by the Company or Executive of any
wrongful or illegal act against the other or any other person, and that the
Company and Executive expressly disclaim any liability of any nature whatsoever
arising from or related to the subject of this Agreement.
6. Governing
Law. This Agreement and the rights and obligations of
Executive hereunder shall be governed by and construed and enforced in
accordance with the substantive laws of the State of Tennessee.
7. Amendment. This
Agreement may not be clarified, modified, changed or amended except in writing
and signed by the Company or a successor-in-interest of the Company and
Executive.
8. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision, and there shall be
added automatically as part of this Agreement a provision as similar in its
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the Effective
Date.
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By:
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/s/ Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxxx
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Title:
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CEO
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Executive
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx, individually
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Exhibit
A
FORM
OF RELEASE
THIS RELEASE (this “Release”),
dated May 1, 2010 (the “Retirement
Date”), is by and between Education Realty Trust, Inc., a Maryland
corporation (the “Company”),
and Xxxxxx X. Xxxxxx (“Executive”). Capitalized
terms used herein and not otherwise defined shall have the same meanings as in
the Agreement (as defined below).
WHEREAS, the Company and
Executive have entered into an Amendment, Waiver and Retirement Agreement, dated
March 15, 2010, which is incorporated herein by reference (the “Agreement”);
WHEREAS, Executive’s
employment with the Company has been terminated effective as of the Retirement
Date; and
WHEREAS, pursuant to Section 4 of the
Agreement, Executive shall, as a precondition to receiving any severance
compensation set forth in Section 4 of the
Agreement, execute this Release.
NOW, THEREFORE, in
consideration of the mutual covenants and premises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive hereby agree as follows:
1. Release. Executive,
on his own behalf and on behalf of his heirs, successors and assigns, hereby
irrevocably and unconditionally releases and forever discharges the Company and
its current and former subsidiaries and other affiliates, and their current and
former agents, employees, representatives, officers, directors, stockholders,
trustees and attorneys (in both their official and personal capacities), and
each of their predecessors, successors, assigns and/or heirs (all of which are
hereafter collectively referred to as the “Released
Parties”) from any and all debts, liabilities, claims, demands, actions
or causes of action, suits, judgments or controversies of any kind whatsoever
(except as set forth below) arising from Executive’s relationship (including
without limitation as a stockholder) to, employment with or service as an
employee, officer, director, or manager of the Company or its subsidiaries and
affiliates (collectively, the “Claims”)
against the Released Parties, that now exist or that may arise in the future out
of any matter, transaction or event occurring prior to or on the Retirement
Date, including without limitation, any claims of breach of contract or for
severance or other termination pay, or claims of harassment or discrimination
(for example, on the basis of age, sex, race, handicap, disability, religion,
color or national origin) under any federal, state or local law, rule or
regulation, including, but not limited to, the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §621, et seq. Except
as set forth below, Executive further agrees not to file or bring any claim,
suit, civil action, complaint, arbitration or administrative action (any of the
foregoing, an “Action”)
in any city, state or federal court or agency or arbitration tribunal with
respect to any Claim against any of the Released Parties or (except as may be
required by law) assist any other person or entity with any Action against any
of the Released Parties. Notwithstanding anything to the contrary
contained in this Release, Executive does not release any of the Released
Parties and shall not be prohibited from filing or bringing an Action with
respect to any right Executive otherwise may have now or in the future to (i)
receive distributions or dividends made in respect of the Company’s common stock
or units of limited partnership interest in Education Realty Operating
Partnership, LP and University Towers Operating Partnership, LP; (ii) be
indemnified by the Company under the Second Articles of Amendment and
Restatement or Amended and Restated Bylaws of the Company (as the same are
currently in effect), any resolution adopted by the Board of Directors of the
Company, or any other separate written agreement or instrument requiring the
Company to indemnify Executive; (iii) receive workers’ compensation claims; or
(iv) vested benefits payable under retirement and other employee benefit plans
covering Executive (which benefits shall be governed by the terms and provisions
of the applicable plan).
Exhibit
10.16
2. Severance
Compensation. In consideration of Executive’s execution and
non-revocation of this Release and the Agreement, the Company shall pay to
Executive all severance compensation set forth in Section 4 of the
Agreement in accordance with the terms and conditions set forth
therein.
3. Disclaimer of
Liability. Executive acknowledges that this Release shall not
in any way be construed as an admission by the Company or Executive of any
wrongful or illegal act against the other or any other person, and that the
Company and Executive expressly disclaim any liability of any nature whatsoever
arising from or related to the subject of this Release.
2
Exhibit
10.16
4. COMPETENCY. EXECUTIVE
ACKNOWLEDGES THE FOLLOWING:
(a) THAT
HE FULLY COMPREHENDS AND UNDERSTANDS ALL OF THE TERMS OF THIS RELEASE AND THEIR
LEGAL EFFECTS;
(b) THAT
HE IS COMPETENT TO EXECUTE THIS RELEASE;
(c) THAT
THE RELEASE IS EXECUTED KNOWINGLY AND VOLUNTARILY AND WITHOUT RELIANCE UPON ANY
STATEMENT OR REPRESENTATION OF ANY RELEASED PARTY OR ITS
REPRESENTATIVES;
(d) THAT
HE HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS
RELEASE AND THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF HIS
CHOICE REGARDING THIS RELEASE;
(e) THAT
EXECUTIVE DOES NOT WAIVE RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE DATE THIS
RELEASE IS EXECUTED;
(f) THAT
EXECUTIVE WAIVES RIGHTS OR CLAIMS UNDER THIS RELEASE ONLY IN EXCHANGE FOR
CONSIDERATION IN ADDITION TO ANYTHING OF VALUE TO WHICH THE EXECUTIVE WAS
ALREADY ENTITLED;
(g) THAT
HE HAS HAD A PERIOD OF TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THIS
RELEASE; AND
(h) THAT
FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING THE EXECUTION OF THIS RELEASE,
EXECUTIVE MAY REVOKE THIS RELEASE AND IT SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE SEVEN-DAY PERIOD HAS EXPIRED OR SUCH LATER DATE AS
PROVIDED FOR HEREIN.
5. Enforcement
of Laws. Nothing in this
Release affects the rights and responsibilities of the Equal Employment
Opportunity Commission (the “Commission”) to enforce the
anti-discrimination laws, and this Release does not affect Executive’s right to
file a charge or participate in an investigation or proceeding with the
Commission. However, Executive waives any rights or claims, known or
unknown, to participate in any recovery under any proceeding or investigation by
the Commission or any state or local commission concerned with the enforcement
of anti-discrimination laws.
6. Parties
in Interest. This Release is for the benefit of the Released
Parties and shall be binding upon Executive and his representatives and
heirs.
7. Governing
Law. This Release and the rights and obligations of Executive
hereunder shall be governed by and construed and enforced in accordance with the
substantive laws of the State of Tennessee.
8. Severability. If
any provision of this Release is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable and this
Release shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision, and there shall be
added automatically as part of this Release a provision as similar in its terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
3
Exhibit
10.16
[Signature
Page Follows]
IN WITNESS WHEREOF, the
parties hereto have executed this Release as of the Retirement
Date.
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By:
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Name:
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Title:
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Executive
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Xxxxxx
X. Xxxxxx, individually
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