UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 1, 2007
AMERICAN CAMPUS COMMUNITIES, INC.
(Exact name of Registrant as specified in its Charter)
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Maryland
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001-32265
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760753089
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(State or other jurisdiction of
incorporation or organization)
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(Commission file number)
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(I.R.S. Employer
Identification Number)
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805 Las Cimas Parkway Suite 400
Austin, TX 78746
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (512) 732-1000
Not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement
American Campus Communities, Inc. (the Company) has entered into an employment agreement,
effective as of November 1, 2007, with Jonathan A. Graf pursuant to which Mr. Graf will serve as
the Companys Executive Vice President, Chief Financial Officer and Treasurer. The employment
agreement requires Mr. Graf to devote substantially full-time attention and business time to the
Companys affairs. The term of the agreement will end upon Mr. Grafs termination of employment as
discussed below.
The employment agreement provides for:
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an annual base salary of $191,500, subject to increase in accordance with the
Companys normal executive compensation practices;
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eligibility for annual cash performance bonuses determined by the Compensation
Committee of the Board of Directors of the Company on the same basis as other
executives of the Company (with appropriate adjustments due to title and salary); and
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participation in other employee benefit plans applicable generally to the Companys
senior executives.
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The employment agreement provides that if Mr. Grafs employment is terminated by the Company
without cause or by Mr. Graf for good reason (each as defined in the employment agreement), Mr.
Graf will be generally entitled to the following severance payments and benefits, subject to his
execution and non-revocation of a general release of claims:
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a cash payment equal to 100% times the sum of his then-current annual base salary
plus the average annual bonus paid or payable in respect of the last prior three years,
payable over the remaining term of his noncompetition agreement;
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his prorated annual bonus for the year in which the termination occurs; and
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payment towards the cost of health continuation coverage in an amount equal to the
difference between the amount paid by Mr. Graf for health insurance coverage under the
Companys health benefit plan immediately prior to such termination and the cost of
continuation coverage under COBRA, for the remaining term of his noncompetition
agreement, subject to reduction to the extent he receives comparable benefits from a
subsequent employer.
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The employment agreement with Mr. Graf is attached hereto as Exhibit 99.1 and is incorporated
herein by reference. The foregoing summary description of the employment agreement is qualified in
its entirety by reference to the employment agreement.
Concurrently with the execution of the employment agreement, the Company entered into a
confidentiality and noncompetition agreement with Mr. Graf under which he has agreed not to (i)
conduct, directly or indirectly, any business involving the development, acquisition, sale or
1
management of facilities whose primary function and purpose is student housing and/or the
provision of third party student housing services to providers of student housing, whether such
business is conducted by him individually or as principal, partner, officer, director, consultant,
employee, stockholder or manager of any person, partnership, corporation, limited liability company
or any other entity; or (ii) own interests in student housing properties that are competitive,
directly or indirectly, with any business carried on by the Company or its successors, subsidiaries
and affiliates. Mr. Graf will be bound by his non-competition covenant for so long as he is an
employee of the Company and for a two-year tail period thereafter, unless his employment is
terminated by the Company without cause or by him with good reason (in each case, as defined in
his employment agreement) or by him for any reason at any time prior to the first anniversary of a
change in control of the Company, in which case his covenant not to compete will lapse upon the
first anniversary of his termination.
The form of confidentiality and noncompetition agreement is attached hereto as Exhibit 99.2
and is incorporated hereby by reference. The foregoing summary description of the confidentiality
and noncompetition agreement is qualified in its entirety by reference to the confidentiality and
noncompetition agreement.
The Company has entered into an amendment to employment agreement, effective as of November 1,
2007, with each of William C. Bayless, Jr., Brian B. Nickel, Greg A. Dowell and James C. Hopke, Jr.
The Company has also amended its 2004 Incentive Award Plan, effective as of November 2, 2007. The
primary purpose of each such amendment was to cause the employment agreements and the 2004
Incentive Award Plan, as the case may be, to comply with applicable provisions of Section 409A of
the Internal Revenue Code of 1986, as amended, and the Treasury Regulations issued thereunder.
Such amendments are attached hereto as Exhibits 99.3, 99.4, 99.5, 99.6 and 99.7 and are
incorporated herein by reference. The foregoing summary description of such amendments is
qualified in its entirety by reference to such amendments.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officer
Brian B. Nickel has been appointed as the Companys Senior Executive Vice President-Capital
Market Strategies, Chief Investment Officer and Secretary effective as of November 1, 2007, at an
annual base salary of $297,000. Mr. Nickel served as Executive Vice President, Chief Financial
Officer and Secretary of the Company from May 2005 to November 1, 2007 and as Executive Vice
President, Chief Investment Officer and Secretary of the Company from October 2003 to May 2005.
Mr. Nickel has served on the Companys Board of Directors since August 2004. Mr. Nickel joined the
Companys predecessor entities in June 1996 as Director of Business Development and has served in
various capacities including Director of Acquisitions, Vice President of Acquisitions, Vice
President of On-campus Development, and Senior Vice President of Development. Prior to joining the
Company, Mr. Nickel held positions in the investment banking firm of Kidder, Peabody Company and
with the corporate finance group of LaSalle Partners. Age: 35.
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Greg A. Dowell has been appointed as the Companys Senior Executive Vice President and Chief
Operating Officer effective as of November 1, 2007 at an annual base salary of $228,750. Mr.
Dowell served as Executive Vice President and Chief of Operations of the Company from May 2005
until November 1, 2007 and as Senior Vice President and Chief of Operations of the Company from
August 2004 until May 2005. Mr. Dowell joined the Companys predecessor entities in October 2001
as Senior Vice President Management Services. Prior to this, Mr. Dowell was employed by Century
Development from 1991 to 2001 where he began his tenure as accountant and ultimately served as
Senior Vice President over the operations of their 29 property student housing portfolio. Age: 43.
Jonathan A. Graf has been appointed as the Companys Executive Vice President, Chief Financial
Officer and Treasurer effective as of November 1, 2007. Mr. Graf served as Senior Vice President,
Chief Accounting Officer and Treasurer of the Company since from May 2005 until November 1, 2007
and as Vice President and Controller of the Company from October 2004 until May 2005. From
September 1994 to September 2004, he served in various capacities at Southern Union Company, most
recently as Vice President and Controller. From 1988 until 1994, he was an audit manager and
information systems auditor at Ernst & Young LLP. Age: 42.
James C. Hopke, Jr. has been appointed as the Companys Executive Vice President- Project
Management and Construction effective as of November 1, 2007. Mr. Hopke served as Executive Vice
President and Chief Investment Officer of the Company from May 2005 until November 1, 2007. From
November 2002 to April 2005, Mr. Hopke served as Vice President, Asset Management and Advisory
Services for Wachovia Securities Real Estate Capital Markets group. From February 2000 to
November 2002, he served as Senior Vice President, Acquisitions of the Companys predecessor
entities. Mr. Hopke was previously a Vice President of JPI Development and Insignia Financial
Group, and is a former MAI Member of The Appraisal Institute. Age: 45.
The information contained in Item 1.01 is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
The Exhibits to this Report are listed on the Exhibit Index attached hereto.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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Date: November 5, 2007
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AMERICAN CAMPUS COMMUNITIES, INC.
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By:
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/s/ Jonathan A. Graf
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Jonathan A. Graf
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Executive Vice President, Chief Financial
Officer and Treasurer
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4
EXHIBIT INDEX
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Exhibit
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Number
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Title
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99.1
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Employment Agreement, dated as of November 1, 2007, between Jonathan A. Graf and American
Campus Communities, Inc.
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99.2
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Form of Confidentiality and Noncompetition Agreement. Incorporated by reference to Exhibit 10.9 to American Campus Communities, Inc.s Registration Statement on Form S-1 (Registration No. 333-114813).
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99.3
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Amendment No. 2 to Employment Agreement, dated as of November 1, 2007, between William C. Bayless, Jr. and American Campus Communities, Inc.
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99.4
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Amendment No. 2 to Employment Agreement, dated as of November 1, 2007, between Brian B. Nickel and American Campus Communities, Inc.
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99.5
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Amendment No. 1 to Employment Agreement, dated as of November 1, 2007, between Greg A. Dowell and American Campus Communities, Inc.
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99.6
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Amendment No. 1 to Employment Agreement, dated as of November 1, 2007, between James C. Hopke, Jr. and American Campus Communities, Inc.
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99.7
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Amendment No. 1 to American Camus Communities, Inc. 2004 Incentive Award Plan, dated as of November 2, 2007.
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99.8
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Employment Agreement, dated as of August 11, 2004, between William C. Bayless, Jr. and American Campus Communities, Inc. Incorporated by reference to Exhibit 10.6 to American Campus Communities, Inc.s Registration Statement on Form S-1 (Registration No. 333-114813).
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99.9
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Amendment No. 1 to Employment Agreement, dated as of April 28, 2005, between William C. Bayless, Jr. and American Campus Communities, Inc. Incorporated by reference to Exhibit 99.6 to Current Report on Form 8-K of American Campus Communities, Inc. (File No. 001-32265) filed on May 3, 2005.
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99.10
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Employment Agreement, dated as of August 11, 2004, between Brian B. Nickel and American Campus Communities, Inc. Incorporated by reference to Exhibit 10.7 to American Campus Communities, Inc.s Registration Statement on Form S-1 (Registration No. 333-114813).
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99.11
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Amendment No. 1 to Employment Agreement, dated as of April 28, 2005, between Brian B. Nickel and American Campus Communities, Inc. Incorporated by reference to Exhibit 99.7 to Current Report on Form 8-K of American Campus Communities, Inc. (File No. 001-32265) filed on May 3, 2005.
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5
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Exhibit
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Number
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Title
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99.12
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Employment Agreement, dated as of April 18, 2005, between James C. Hopke, Jr., and American Campus Communities, Inc. Incorporated by reference to Exhibit 99.1 to Current Report on Form 8-K of American Campus Communities, Inc. (File No. 001-32265) filed on May 3, 2005.
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99.13
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Employment Agreement, dated as of April 28, 2005, between Greg A. Dowell and American Campus Communities, Inc. Incorporated by reference to Exhibit 99.2 to Current Report on Form 8-K of American Campus Communities, Inc. (File No. 001-32265) filed on May 3, 2005.
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99.14
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American Campus Communities, Inc. 2004 Incentive Award Plan. Incorporated by reference to Exhibit 10.2 to the Registration Statement on Form S-11 (Registration No. 333-114813) of American Campus Communities, Inc.
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EXHIBIT 99.1
EMPLOYMENT AGREEMENT
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 Jonathan A.
Graf (
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 Executives employment, (ii) any unpaid Annual Bonus in respect to any
completed fiscal year which has ended prior to the date of termination of Executives 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 Executives employment. The Accrued Obligations shall be paid within five (5) business days of
the termination of Executives employment under this Agreement, except amounts payable with respect
to unpaid Annual Bonus, which shall be paid on the earliest of (i) the first (1
st
)
anniversary of the date upon which Executives 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
15
th
of the calendar year following such termination of Executives 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) Executives 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) Executives 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) Executives
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 Companys 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 Companys 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 Executives 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 Executives 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 Executives consent, (i) any material diminution
or change in the nature or scope of Executives functions, duties, position, responsibilities, or
reporting relationships that are inconsistent with Executives titles (as specified in Section 3(a)
hereof) or this Agreement; (ii) the relocation of Executives 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 Executives 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 Companys 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 Companys 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 Companys 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) Executives 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
Executives 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 Companys 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) Executives 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 Executives 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
. Executives employment shall terminate
automatically upon his death. The Company may terminate Executives employment immediately upon
the occurrence of a Disability, such termination to be effective upon Executives receipt of
written notice of such termination. In the event Executives 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 Boards 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 Executives employment for Cause, he shall be
entitled to the Accrued Obligations.
(d)
Termination By The Company Without Cause
. The Company may terminate Executives
employment at any time without Cause, effective upon Executives receipt of written notice of such
termination. In the event Executives 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
Executives 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
Executives Base Salary as of the date of termination, such amount shall be payable in full no
later than March 15
th
of the calendar tax year following such termination of Executives
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 Executives termination of employment occurs, or (y) Executives 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
15
th
of the calendar tax year following such termination of Executives 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 Companys 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, Executives 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 Executives
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 Executives 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,
-7-
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 Executives 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.
-8-
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 Companys 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 Companys
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
. Executives 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 Executives
devisee, legatee or other designee or, if there be no such designee, to Executives estate.
-9-
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
Companys 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 Executives last known address, as
reflected in the Companys 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
-10-
attorneys 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 Executives 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.
* * *
[Signatures to appear on the following page.]
-11-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.
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AMERICAN CAMPUS COMMUNITIES, INC.
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By:
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/s/ William C. Bayless, Jr.
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William C. Bayless, Jr.
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President and Chief Executive Officer
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/s/ Jonathan A. Graf
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Jonathan A. Graf
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-12-
EXHIBIT 99.4
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (this Amendment), dated as of November 1,
2007, by and between American Campus Communities, Inc. (the Company) and Brian B. Nickel
(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.
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-Capital Market Strategies, Chief Investment Officer and
Secretary of the Company (together with such other position or positions consistent
with Executives 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 Companys
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 Executives employment, (ii) any unpaid
Annual Bonus in respect to any completed fiscal year which has ended prior to the
date of termination of Executives 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
Executives employment. The Accrued Obligations shall be paid within five (5)
business days of the termination of Executives 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 Executives
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 15
th
of the
calendar year following such termination of Executives 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 Executives consent, (i) any
material diminution or change in the nature or scope of Executives functions,
duties, position, responsibilities, or reporting relationships that are
inconsistent with Executives titles (as specified in Section 3(a) hereof) or this
Agreement; (ii) the relocation of Executives 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 Executives employment at any time without Cause, effective upon
Executives receipt of written notice of such termination. In the event Executives
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 Executives 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 Executives Base Salary
as of the date of termination, such amount shall be payable in full no later than
March 15
th
of the calendar tax year following such termination of
Executives 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 Executives termination of
employment occurs, or (y) Executives 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
2
later than March 15
th
of the calendar tax year following such
termination of Executives 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 Companys 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.
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
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AMERICAN CAMPUS COMMUNITIES, INC.
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By:
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/s/ William C. Bayless, Jr.
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William C. Bayless, Jr.
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President and Chief Executive Officer
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/s/ Brian B. Nickel
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Brian B. Nickel
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4
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 Greg A. Dowell (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 Executives 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 Companys 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 Executives employment, (ii) any unpaid
Annual Bonus in respect to any completed fiscal year which has ended prior to the
date of termination of Executives 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
Executives employment. The Accrued Obligations shall be paid within five (5)
business days of the termination of Executives 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 Executives
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 15
th
of the
calendar year following such termination of Executives 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 Executives consent, (i) any
material diminution or change in the nature or scope of Executives functions,
duties, position, responsibilities, or reporting relationships that are
inconsistent with Executives titles (as specified in Section 3(a) hereof) or this
Agreement; (ii) the relocation of Executives 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 Executives employment at any time without Cause, effective upon
Executives receipt of written notice of such termination. In the event Executives
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 Executives 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 Executives Base Salary
as of the date of termination, such amount shall be payable in full no later than
March 15
th
of the calendar tax year following such termination of
Executives 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 Executives termination of
employment occurs, or (y) Executives 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
2
later than March 15
th
of the calendar tax year following such
termination of Executives 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 Companys 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.
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
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AMERICAN CAMPUS COMMUNITIES, INC.
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By:
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/s/ William C. Bayless, Jr.
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William C. Bayless, Jr.
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President and Chief Executive Officer
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/s/ Greg A. Dowell
Greg A. Dowell
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4
EXHIBIT 99.6
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 James C. Hopke, Jr.
(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
Executive Vice President-Project Management and Construction of the Company
(together with such other position or positions consistent with Executives 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 Companys 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 Executives employment, (ii) any unpaid
Annual Bonus in respect to any completed fiscal year which has ended prior to the
date of termination of Executives 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
Executives employment. The Accrued Obligations shall be paid within five (5)
business days of the termination of Executives 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 Executives
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 15
th
of the
calendar year following such termination of Executives employment.
3.
Good Reason
. Section 1(o) of the Employment agreement is amended and restated to
read in its entirety as follows:
(o)
Good Reason
shall mean, without Executives consent, (i) any
material diminution or change in the nature or scope of Executives functions,
duties, position, responsibilities, or reporting relationships that are
inconsistent with Executives titles (as specified in Section 3(a) hereof) or this
Agreement; (ii) the relocation of Executives 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 Executives employment at any time without Cause, effective upon
Executives receipt of written notice of such termination. In the event Executives
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 Executives 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 Executives Base Salary
as of the date of termination, such amount shall be payable in full no later than
March 15
th
of the calendar tax year following such termination of
Executives 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 Executives termination of
employment occurs, or (y) Executives 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 15
th
of the calendar tax year following such
termination of Executives 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 Companys 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.
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AMERICAN CAMPUS COMMUNITIES, INC.
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By:
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/s/ William C. Bayless, Jr.
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William C. Bayless, Jr.
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President and Chief Executive Officer
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/s/ James C. Hopke, Jr.
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James C. Hopke, Jr.
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