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): January 10, 2017

 

 

AMERICAN CAMPUS COMMUNITIES, INC.

AMERICAN CAMPUS COMMUNITIES OPERATING PARTNERSHIP LP

(Exact name of Registrant as specified in its Charter)

 

 

 

Maryland

Maryland

 

001-32265

333-181102-01

 

76-0753089

56-2473181

(State or other jurisdiction

of incorporation or organization)

 

(Commission

file number)

 

(I.R.S. Employer

Identification Number)

12700 Hill County Blvd., Suite T-200, Austin, Texas 78738

( Address of Principal Executive Offices) (Zip Code)

Registrant’s 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:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreement

The information contained in Item 5.02 below is incorporated herein by reference.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

(b) and (c) On January 10, 2017, American Campus Communities, Inc. (the “Company”) announced that it is separating the roles of President and Chief Executive Officer, with William C. Bayless, Jr. remaining as Chief Executive Officer and James C. Hopke, Jr. being promoted to the position of President. Mr. Hopke (age 55) served as Executive Vice President and Chief Operating Officer from October 2014 to January 10, 2017, as Executive Vice President-Asset Management from November 2013 to October 2014, as Executive Vice President-Project Management and Construction from November 2007 to November 2013 and as Executive Vice President and Chief Investment Officer from May 2005 to November 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 Company’s 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.

Effective as of January 10, 2017, Jennifer Beese has been promoted to the position of Executive Vice President and Chief Operating Officer. Ms. Beese (age 43) served as Executive Vice President-Operations, Marketing and Leasing from November 2013 to January 10, 2017, and as Senior Vice President of Marketing and Leasing Administration from November 2007 to November 2013. Ms. Beese joined the Company in November 1999, previously holding the position of Vice President of Leasing Administration. From 1994 to 1999, she held various property management positions with JPI.

Effective as of January 10, 2017, Kim K. Voss has been promoted to the position of Executive Vice President and Chief Accounting Officer. Ms. Voss (age 41), a Certified Public Accountant, has served as Executive Vice President and Controller since May 2015 and is responsible for the Company’s accounting and financial reporting functions, including SEC reporting, technical accounting, and Sarbanes Oxley compliance. She served as Senior Vice President and Controller from November 2007 to May 2015 and joined the Company in 2004 to help lead its accounting department through its initial public offering and transition to a publicly traded company. Ms. Voss began her career as an auditor with Arthur Andersen LLP in San Francisco, where her client base consisted primarily of REITs and other real estate entities. Prior to joining the Company, she served as an Assistant Controller with AMB Property Corporation (now Prologis).

Effective as of March 31, 2017, Jonathan A. Graf will resign as the Company’s Executive Vice President and Chief Financial Officer, and will retire from the Company effective as of

 

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June 30, 2017. The Company and Mr. Graf entered into a Separation Agreement and Mutual General Release, dated as of January 10, 2017 (the “Separation Agreement”). The Separation Agreement provides, among other things, that (i) the Company will continue to pay Mr. Graf his base salary to which he is entitled under his current employment agreement through June 30, 2017 and will pay to Mr. Graf $2,138,467 on June 30, 2017, (ii) Mr. Graf will retain all of the restricted stock awards, common units and other stock-based awards previously granted to him that have vested as of June 30, 2017 and all restricted stock awards or other stock-based awards unvested as of June 30, 2017 will vest on such date, and (iii) the Confidentiality and Noncompetition Agreement between the Company and Mr. Graf will survive the termination of Mr. Graf’s employment with the Company. The foregoing provisions are consistent with those set forth in Mr. Graf’s current employment agreement with respect to a termination without cause. The Separation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Also effective as of March 31, 2017, Daniel B. Perry will be promoted to Executive Vice President and Chief Financial Officer. Mr. Perry (age 43) has served as Executive Vice President-Capital Markets since May 2011, as Senior Vice President-Capital Markets from November 2007 to May 2011 and as Vice President of Investments from February 2005 to November 2007. From 2002 to 2005, Mr. Perry held positions in the investment banking division of Citigroup Global Markets, where he assisted with the successful completion of the Company’s initial public offering in 2004. From 1996 to 2001, he worked in the corporate finance divisions of BNP Paribas and NationsBank.

On January 10, 2017, the Company entered into amendments to the employment agreements with each of Mr. Bayless, Mr. Hopke, Ms. Beese, Ms. Voss and Mr. Perry to reflect the respective changes in the positions described above.

 

Item 7.01 Regulation FD Disclosure

The press release related to matters described above is attached hereto as Exhibit 99.5.

Such information is furnished pursuant to Item 7.01 and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, or subject to the liabilities of that Section. The information in this Current Report shall not be incorporated by reference in any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, except as shall be expressly set forth by specific reference in such filing.

 

Item 9.01 Financial Statements and Exhibits

(c) 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.

 

Date: January 10, 2017   AMERICAN CAMPUS COMMUNITIES, INC.
  By:  

/s/ Jonathan A. Graf

    Jonathan A. Graf
    Executive Vice President, Chief Financial Officer, Secretary and Treasurer
  AMERICAN CAMPUS COMMUNITIES OPERATING PARTNERSHIP LP
  By:   American Campus Communities Holdings LLC, its general partner
    By:   American Campus Communities, Inc., its sole member
      By:  

/s/ Jonathan A. Graf

       

Jonathan A. Graf

Executive Vice President,

        Chief Financial Officer, Secretary and Treasurer

 

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EXHIBIT INDEX

 

Exhibit
Number

  

Title

99.1    Separation Agreement and Mutual General Release, dated as of January 10, 2017, between American Campus Communities, Inc. and Jonathan A. Graf
99.2    Fourth Amendment to Employment Agreement, dated as of January 10, 2017, between American Campus Communities, Inc. and William C. Bayless, Jr.
99.3    Fifth Amendment to Employment Agreement, dated as of January 10, 2017, between American Campus Communities, Inc. and James C. Hopke, Jr.
99.4    Second Amendment to Employment Agreement, dated as of January 10, 2017, between American Campus Communities, Inc. and Daniel B. Perry
99.5    Press Release, dated January 10, 2017

 

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Exhibit 99.1

SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE

This SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE (this “ Agreement ”) dated as of January 10, 2017 is by and between Jonathan A. Graf (“ Executive ”) and American Campus Communities, Inc., a Maryland corporation (the “ Company ”).

WHEREAS, the Company and Executive have entered into an Employment Agreement dated as of November 1, 2007, as amended (“ Employment Agreement ”);

WHEREAS, Executive shall resign as an officer of the Company and all entities related to the Company, and also resign as an officer, director, manager or similar functionary of all entities related to the Company, effective as of March 31, 2017 (the “ Initial Termination Date ”);

WHEREAS, Executive shall resign as an employee of the Company and all entities related to the Company effective as of June 30, 2017 (the “ Final Termination Date ”); and

WHEREAS, Executive and the Company have agreed to provide each other with a general release of claims as contained herein and in the Supplemental Mutual General Release Agreement in the form attached hereto as Exhibit A (the “ Supplemental Release ”).

NOW, THEREFORE, Executive and the Company agree to enter into this Agreement setting forth their respective obligations related to Executive’s separation as follows:

1. Resignation . Effective as of the Initial Termination Date, Executive resigns as an officer of the Company and all entities related to the Company, and as an officer, director, manager or similar functionary of all entities related to the Company. Effective as the Final Termination Date, Executive resigns as an employee of the Company and all entities related to the Company. The Company and Executive hereby waive any rights to prior notification of the separation of Executive’s employment.

2. Special Compensation and Benefits .

(a) The Company will pay to executive an Annual Bonus for 2016 equal to $575,000 on or before February 3, 2017.

(b) The Company will pay to Executive the Accrued Obligations within five business days of the Final Termination Date. Executive agrees that upon satisfaction of the obligation set forth in Section 2(a), there is no unpaid Annual Bonus owed to him in respect to any fiscal year.

(c) The Company will pay to Executive an amount equal to $2,138,467, less applicable withholding and deductions, in a lump sum payment within five business days of the effective date of the Supplemental Release (the “ Separation Payment ”).

(d) Executive shall retain all of the restricted stock awards, common units and other stock-based awards previously granted to Executive under the Plan or otherwise that have vested as of the Final Termination Date. As of the effective date of the Supplemental Release, any and all portions of any restricted stock awards or other stock-based awards unvested as of the


Final Termination Date previously granted to Executive under the Plan or otherwise shall vest and become non-forfeitable. With respect to all common units held by Executive, Executive shall have all rights as all other common unitholders under the Limited Partnership Agreement of American Campus Communities Operating Partnership LP and, with respect to such restricted stock and other stock-based awards, Executive shall have all rights set forth in the Plan and the applicable award agreements that apply to vested awards.

(e) From and after the effective date of the Supplemental Release Executive shall remain on the Company’s then-in-effect health, vision and dental benefit plans (with family coverage) through and including December 31, 2019; provided, that if prior to such date, Executive is eligible to receive health insurance benefits from a subsequent employer, benefits under this Section 2(e) shall cease as of the date Executive becomes so eligible. Executive acknowledges and agrees that as a result of the foregoing, he will have no right to COBRA benefits under any of the Company’s health benefit plans.

(f) As of the Initial Termination Date, neither the Company nor any of its affiliates shall have any obligation to Executive arising out of the Employment Agreement.

(g) On the Final Termination Date, Executive and the Company shall sign and deliver to the other the Supplemental Release. Should Executive or the Company fail to sign and deliver the Supplemental Release on the Final Termination Date, he or it shall be deemed to have willfully breached a material provision of this Agreement. In the event of a breach of this Section 2(g), the non-breaching party shall be entitled to an order of specific performance from a court of competent jurisdiction requiring the breaching party to sign and deliver the Supplemental Release to the other and the breaching party hereby consents to the entry of such an order.

(h) From the Effective Date through the Final Termination Date, the Company shall continue to pay Executive his Base Salary at the rate of $417,150 per year, payable as provided under Section 4(a) of the Employment Agreement and Executive shall be entitled to participate in health, insurance, retirement and other benefits to which he is entitled under Section 5 of the Employment Agreement, subject to the terms and conditions of the applicable plan. Except as expressly set forth herein, the Company shall have no obligation to make to Executive any payment, benefit, award or grant pursuant to the Employment Agreement or otherwise.

(i) From and after the date of this Agreement until the Final Termination Date, Executive shall cooperate in all respects in order to effect an orderly transition of Executive’s functions to other officers and Executive may engage in activities relating to the exploration of other business interests, subject to the provisions of the Noncompete Agreement. From and after the Initial Termination Date, Executive will cease to have any responsibility as an officer of the Company or any of its affiliates and cease to have day-to-day responsibility for running any business division of the Company. The parties agree none of the actions described in this Section 2(i) will be deemed to be a breach of the Employment Agreement (or entitle the Company to terminate Executive’s employment for Cause or entitle Executive to terminate his employment for Good Reason) or this Agreement.

 

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3. General Release by Executive . In return for the special compensation and benefits referenced in this Agreement, Executive agrees to the following:

(a) Executive agrees, on behalf of himself and all of his heirs or personal representatives, to release the Company and all of its subsidiaries, affiliates, predecessors and successors, and all of their present or former officers, directors, managers, representatives, employees, agents, employee benefit programs, and the trustees, administrators, fiduciaries and insurers of such programs (collectively, the “ Company Released Parties ”), from any and all claims for relief of any kind, whether known to Executive or unknown, which in any way arise out of or relate to Executive’s employment at the Company or any of the other Company Released Parties, the separation of his employment at the Company or any of the other Company Released Parties, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date (as defined in Section 4(l) below), including, but not limited to, any and all claims of discrimination, retaliation or wrongful discharge of any kind, and any contractual, tort or other common law claims. This settlement and waiver includes all such claims, whether for breach of contract, quasi-contract, implied contract, quantum meruit , unjust enrichment, compensation, deferred compensation, equity interest, any tort claims, including without limitation fraud and misrepresentation, and any and all claims under any applicable federal laws, including, but not limited to, the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Americans with Disabilities Act, as amended, the Equal Pay Act, as amended, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act of 1974, as amended, the Family and Medical Leave Act, as amended, the Fair Labor Standards Act, as amended, or under any applicable state or local laws or ordinances or any other legal restrictions on the Company’s rights, including Chapter 21 of the Texas Labor Code and Section 451 of the Texas Labor Code.

Executive further agrees not to file a suit of any kind against the Company or any of the other Company Released Parties relating to his employment at the Company or any of the other Company Released Parties, the separation thereof, any agreements between the Company or any of other the Company Released Parties and Executive, including but not limited to the Employment Agreement, or any facts or events occurring at any time up to the Effective Date, or to participate voluntarily in any employment-related claim brought by any other party against the Company or any of the other Company Released Parties. Even if a court rules that Executive may file a lawsuit against the Company or any of the other Company Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, the separation thereof, or any facts or events occurring at any time up to the Effective Date, Executive agrees not to accept any money damages or any other relief in connection with any such lawsuit. Executive understands that this Agreement effectively waives any right he might have to sue the Company or any of the other Company Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or the separation of Executive’s employment. However, Executive recognizes and understands that this release does not prohibit him from filing an administrative charge with any state or federal agency.

 

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Further, this release does not waive Executive’s rights to enforce this Agreement. In addition, this release does not give up Executive’s rights, if any, to COBRA benefits under the Company’s standard benefit programs applicable to Executive. Further, this release does not waive Executive’s rights to vested equity interests, vested 401(k) or pension monies or Executive’s rights to indemnification under the Company’s charter or bylaws or the Indemnification Agreement, dated as of November 1, 2007, between Executive and the Company.

(b) General Release by the Company . Except as set forth in the last paragraph of this Section 3, the Company agrees, on behalf of itself and all of its parent companies, subsidiaries, affiliates, predecessors and successors, to release Executive and his heirs (collectively, the “ Executive Released Parties ”), from any and all claims for relief of any kind, whether known to it or unknown, which in any way arise out of or relate to Executive’s employment at the Company any of the other Company Released Parties, the separation of Executive’s employment at the Company or any of the other Company Released Parties, or any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date. This settlement and waiver includes all claims, whether for breach of contract, quasi-contract, implied contract, quantum meruit , unjust enrichment, any tort claims, including without limitation misrepresentation, breach of fiduciary duty, and any and all claims under any applicable law.

Except as set forth in the last paragraph of this Section 3, the Company further agrees not to file a suit of any kind against Executive or any of the other Executive Released Parties relating to Executive’s employment at the Company, the separation thereof, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or to participate voluntarily in any employment-related claim brought by any other party against Executive or any of the other Executive Released Parties. Except as set forth in the last paragraph of this Section 3, even if a court rules that the Company may file a lawsuit against Executive or any of the other Executive Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, or the separation thereof, the Company agrees not to accept any money damages or any other relief in connection with any such lawsuit. The Company understands that this Agreement effectively waives any right it might have to sue Executive or any of the other Executive Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or the other Company Released Parties and Executive, including but not limited to the Employment Agreement, the separation of Executive’s employment, or any facts or events occurring at any time up to the Effective Date, except as set forth in the last paragraph of this Section 3.

Notwithstanding the generality of the foregoing, nothing contained herein shall release the Executive or the other Executive Released Parties from any claim relating to (i) a breach by Executive of any provision of any agreement that survives the execution hereof, including but not limited to the Noncompete Agreement, (ii) Executive’s obligations set forth herein or (iii) Executive’s fraud, willful misconduct, gross negligence or illegal act.

 

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4. Restrictive Covenants and Miscellaneous Provisions .

(a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other Confidential Information (as defined in the Noncompete Agreement) of the Company or any of the other Company Released Parties and shall not make use of such trade secrets or Confidential Information in any fashion at any time, including in any future employment, work or business.

(b) Executive agrees to comply at all times after the date hereof with the provisions of the Noncompete Agreement. Executive acknowledges and agrees that the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Final Termination Date from, among other things, (x) engaging in Competitive Activities (as defined in the Noncompete Agreement), and (y) encouraging, soliciting or inducing any employee of the Company to terminate such person’s employment, and (ii) shall survive the separation of his employment, regardless of the separation reason, and shall survive the execution of this Agreement.

(c) Executive understands and agrees that the Company shall have the right to and may sue him for breach of this Agreement if he violates the provisions of the Noncompete Agreement or this Agreement. Executive further acknowledges that but for his agreements to comply with his obligations described in this Agreement and the Noncompete Agreement, the Company would not provide him with the compensation, benefits and consideration set forth herein.

(d) The parties acknowledge and agree that (a) a breach of any material provision of this Agreement by the Company shall entitle Executive to terminate this Agreement and the Employment Agreement for Good Reason, in which event Executive shall be entitled to the payments and benefits set forth in Section 8(e) of the Employment Agreement, and (b) a breach of any material provision of this Agreement by Executive shall entitle the Company to terminate this Agreement and the Employment Agreement for Cause, in which event Executive shall be entitled to the payment set forth in Section 8(c)(ii) of the Employment Agreement (but no other payment or other benefits or consideration set forth herein).

(e) Executive agrees that on or before the Final Termination Date he will return to the Company all of the Company’s property in his possession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys.

(f) This Agreement does not constitute an admission of any kind by the Company, but is simply an accommodation that offers certain extra benefits to which Executive would not otherwise be entitled in return for his agreeing to and signing this document.

(g) Executive agrees not to make any statements that disparage the reputation of the Company or any of the other Company Released Parties, or their properties or services. Executive agrees that any breach or violation of this non-disparagement provision shall entitle

 

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the Company to sue him on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(g) shall survive the separation of Executive’s employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent Executive from providing truthful testimony under oath or to a government agency.

(h) The Company agrees not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to sue the Company on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(h) shall survive the separation of Executive’s employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent any Company official from providing truthful testimony under oath or to a government agency.

(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.

(j) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Travis County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.

(k) Capitalized terms used herein and not otherwise defined shall the meanings assigned to such terms in the Employment Agreement.

(l) Executive is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between Executive and the Company and Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to Executive by the Company, or any of its agents, to cause Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing this Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to 21 days from the date he received this Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to William C. Bayless, Jr., American Campus Communities, Inc., 12700 Hill Country Blvd., Suite T-200, Austin, Texas 78738. However, if Executive elects to cancel this Agreement, Executive understands that he will not be entitled to the Separation Payment or other benefits or consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs this Agreement without revocation (the “ Effective Date ”). Executive understands that the Company will have no duty to provide him with the Separation Payment or other benefits or consideration described in this Agreement until after the Effective Date.

 

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date written below.

 

       

AMERICAN CAMPUS COMMUNITIES, INC., a

Maryland corporation

Date: January 10, 2017     By:  

/s/ William C. Bayless, Jr.

      William C. Bayless, Jr.
      President and Chief Executive Officer
Date: January 10, 2017    

/s/ Jonathan A. Graf

    Jonathan A. Graf

 

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EXHIBIT A

SUPPLEMENTAL MUTUAL GENERAL RELEASE AGREEMENT

This Supplemental Mutual General Release Agreement (this “ Agreement ’) is entered into on as of June 30, 2017 by and between American Campus Communities, Inc., a Maryland corporation (the “ Company ”) and Jonathan A. Graf (“ Executive ”).

WHEREAS, the Company and Executive entered into a Separation Agreement dated January 10, 2017 (the “ Separation Agreement ”);

WHEREAS, the Company and Executive agreed to sign and deliver this Agreement as a material inducement to have the other enter into the Separation Agreement; and

WHEREAS, Executive has resigned as an officer of the Company and all entities related to the Company, and also resign as an officer, director, manager or similar functionary of all entities related to the Company, effective as of March 31, 2017;

WHEREAS, Executive shall resign as an employee of the Company and all entities related to the Company effective as of June 30, 2017 (the “ Final Termination Date ”);

NOW, THEREFORE, Executive and the Company hereby agree to enter into this Agreement setting forth their respective supplemental obligations related to Executive’s separation as follows:

1. Compliance with the Separation Agreement . The parties agree that delivery of this Agreement shall fulfill their obligations under Section 2(g) of the Separation Agreement with respect to delivery of the Supplemental Release.

2. General Release by Executive . In return for the special compensation and benefits referenced in the Separation Agreement and this Agreement, Executive agrees to the following:

(a) Executive agrees, on behalf of himself and all of his heirs or personal representatives, to release the Company and all of its subsidiaries, affiliates, predecessors and successors, and all of their present or former officers, directors, managers, representatives, employees, agents, employee benefit programs, and the trustees, administrators, fiduciaries and insurers of such programs (collectively, the “ Company Released Parties ”), from any and all claims for relief of any kind, whether known to Executive or unknown, which in any way arise out of or relate to Executive’s employment at the Company or any of the other Company Released Parties, the separation of his employment at the Company or any of the other Company Released Parties, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date (as defined in Section 3(h) below), including, but not limited to, any and all claims of discrimination, retaliation or wrongful discharge of any kind, and any contractual, tort or other common law claims. This settlement and waiver includes all such claims, whether for breach of contract, quasi-contract, implied contract, quantum meruit , unjust enrichment, compensation, deferred compensation, equity

 

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interest, any tort claims, including without limitation fraud and misrepresentation, and any and all claims under any applicable federal laws, including, but not limited to, the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Americans with Disabilities Act, as amended, the Equal Pay Act, as amended, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act of 1974, as amended, the Family and Medical Leave Act, as amended, the Fair Labor Standards Act, as amended, or under any applicable state or local laws or ordinances or any other legal restrictions on the Company’s rights, including Chapter 21 of the Texas Labor Code and Section 451 of the Texas Labor Code.

Executive further agrees not to file a suit of any kind against the Company or any of the other Company Released Parties relating to his employment at the Company or any of the other Company Released Parties, the separation thereof, any agreements between the Company or any of other the Company Released Parties and Executive, including but not limited to the Employment Agreement, or any facts or events occurring at any time up to the Effective Date, or to participate voluntarily in any employment-related claim brought by any other party against the Company or any of the other Company Released Parties. Even if a court rules that Executive may file a lawsuit against the Company or any of the other Company Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, the separation thereof, or any facts or events occurring at any time up to the Effective Date, Executive agrees not to accept any money damages or any other relief in connection with any such lawsuit. Executive understands that this Agreement effectively waives any right he might have to sue the Company or any of the other Company Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or the separation of Executive’s employment. However, Executive recognizes and understands that this release does not prohibit him from filing an administrative charge with any state or federal agency.

Further, this release does not waive Executive’s rights to enforce this Agreement. In addition, this release does not give up Executive’s rights, if any, to COBRA benefits under the Company’s standard benefit programs applicable to Executive. Further, this release does not waive Executive’s rights to vested equity interests, vested 401(k) or pension monies or Executive’s rights to indemnification under the Company’s charter or bylaws or the Indemnification Agreement, dated as of November 1, 2007, between Executive and the Company.

(b) General Release by the Company . Except as set forth in the last paragraph of this Section 2, the Company agrees, on behalf of itself and all of its parent companies, subsidiaries, affiliates, predecessors and successors, to release Executive and his heirs (collectively, the “ Executive Released Parties ”), from any and all claims for relief of any kind, whether known to it or unknown, which in any way arise out of or relate to Executive’s employment at the Company any of the other Company Released Parties, the separation of Executive’s employment at the Company or any of the other Company Released Parties, or any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date. This settlement and waiver includes all claims,

 

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whether for breach of contract, quasi-contract, implied contract, quantum meruit, unjust enrichment, any tort claims, including without limitation misrepresentation, breach of fiduciary duty, and any and all claims under any applicable law.

Except as set forth in the last paragraph of this Section 2, the Company further agrees not to file a suit of any kind against Executive or any of the other Executive Released Parties relating to Executive’s employment at the Company, the separation thereof, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or to participate voluntarily in any employment-related claim brought by any other party against Executive or any of the other Executive Released Parties. Except as set forth in the last paragraph of this Section 2, even if a court rules that the Company may file a lawsuit against Executive or any of the other Executive Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, the separation thereof, or any facts or events occurring at any time up to the Final Termination Date, the Company agrees not to accept any money damages or any other relief in connection with any such lawsuit. The Company understands that this Agreement effectively waives any right it might have to sue Executive or any of the other Executive Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or the separation of Executive’s employment, except as set forth in the last paragraph of this Section 2.

Notwithstanding the generality of the foregoing, nothing contained herein shall release the Executive or the other Executive Released Parties from any claim relating to (i) a breach by Executive of any provision of any agreement that pursuant to the Separation Agreement survives the execution thereof, including but not limited to the Noncompete Agreement, (ii) Executive’s obligations set forth in this Agreement, the Separation Agreement or (iii) Executive’s fraud, willful misconduct, gross negligence or illegal act.

3. Miscellaneous Provisions .

(a) Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Separation Agreement.

(b) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other Confidential Information (as defined in the Noncompete Agreement) of the Company or any of the other Company Released Parties and shall not make use of such trade secrets or Confidential Information in any fashion at any time, including in any future employment, work or business.

(c) Executive agrees to comply at all times after the Final Termination Date with the provisions of the Noncompete Agreement. Executive acknowledges and agrees that the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Final Termination Date from, among other things, (x) engaging in Competitive Activities (as defined in the Noncompete Agreement), and (y) encouraging, soliciting or inducing any employee of the Company to terminate such person’s employment, and (ii) shall survive the separation of his employment, regardless of the separation reason, and shall survive the execution of this Agreement.

 

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(d) Executive understands and agrees that the Company shall have the right to and may sue him for breach if he violates the provisions of the Noncompete Agreement, the Separation Agreement or this Agreement. Executive further acknowledges that but for his agreements to comply with his obligations described in this Agreement, the Separation Agreement and the Noncompete Agreement, the Company would not provide him with the compensation, benefits and consideration set forth in Section 2 and elsewhere in the Separation Agreement.

(e) Executive warrants that he has returned to the Company all of the Company’s property in his possession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys.

(f) Executive understands that this Agreement does not constitute an admission of any kind by the Company, but is simply an accommodation that offers certain extra benefits to which he would not otherwise be entitled in return for his agreeing to and signing this document.

(g) Executive acknowledges that in the course of Executive’s employment with the Company, Executive has gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. Executive agrees to cooperate fully with the Company, including without limitation providing truthful testimony and meeting promptly with Company counsel upon reasonable notice, and to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense.

(h) Executive is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between Executive and the Company and Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to Executive by the Company, or any of its agents, to cause Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing this Agreement, and that he has had sufficient opportunity to do so. Executive understands and agrees that he shall not sign this Agreement before the Final Termination Date. Executive understands that he may have up to 21 days from the date he received this Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to William C. Bayless, Jr., American Campus Communities, Inc., 12700 Hill Country Blvd., Suite T-200, Austin, Texas 78738. However, if Executive elects to cancel this Agreement, Executive understands that he will not be entitled to the consideration referenced in this Agreement. Executive realizes this Agreement is

 

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not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs this Agreement without revocation (the “ Effective Date ”). Executive understands that the Company will have no duty to provide him with the consideration described in this Agreement until after the Effective Date.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date written below.

 

        AMERICAN CAMPUS COMMUNITIES, INC.
Date: June 30, 2017     By:  

 

      William C. Bayless, Jr.
      President and Chief Executive Officer
Date: June 30, 2017    

 

    Jonathan A. Graf

 

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Exhibit 99.2

FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT

This Fourth Amendment to Employment Agreement (this “Amendment”), dated as of January 10, 2017, by and between American Campus Communities, Inc. (the “Company”) and William C. Bayless, Jr. (“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 . Section 3(a) of the Employment Agreement is amended to delete “President and Chief Executive Officer” and replace it with “Chief Executive Officer.”

2. Capitalized Terms . Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Employment Agreement.

3. 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.

4. 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.


IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

AMERICAN CAMPUS COMMUNITIES, INC.
By:  

/s/ James C. Hopke, Jr.

  James C. Hopke, Jr.
  President

/s/ William C. Bayless, Jr.

William C. Bayless, Jr.

 

2

Exhibit 99.3

FIFTH AMENDMENT TO EMPLOYMENT AGREEMENT

This Fifth Amendment to Employment Agreement (this “Amendment”), dated as of January 10, 2017, 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, 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 . Section 3(a) of the Employment Agreement is amended to delete “Executive Vice President and Chief Operating Officer” and replace it with “President.” It is currently contemplated that Executive will report to the Chief Executive Officer.

2. Capitalized Terms . Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Employment Agreement.

3. 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.

4. 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.


IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

AMERICAN CAMPUS COMMUNITIES, INC.

By:  

/s/ William C. Bayless, Jr.

  William C. Bayless, Jr.
  Chief Executive Officer

/s/ James C. Hopke, Jr.

James C. Hopke, Jr.

 

2

Exhibit 99.4

SECOND AMENDMENT TO EMPLOYMENT AGREEMENT

This Second Amendment to Employment Agreement (this “Amendment”), dated as of January 10, 2017, by and between American Campus Communities, Inc. (the “Company”) and Daniel B. Perry (“Executive”).

WHEREAS, the Company and Executive have entered into an employment agreement dated as of May 4, 2011, 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 . Effective as of March 31, 2017, Section 3(a) of the Employment Agreement is amended to delete “Executive Vice President of Capital Markets” and replace it with “Executive Vice President and Chief Financial Officer.” It is currently contemplated that Executive will report to the Chief Executive Officer of the Company.

2. Capitalized Terms . Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Employment Agreement.

3. 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.

4. 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.


IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

AMERICAN CAMPUS COMMUNITIES, INC.
By:  

/s/ William C. Bayless, Jr.

  William C. Bayless, Jr.
  Chief Executive Officer

/s/ Daniel B. Perry

Daniel B. Perry

 

2

Exhibit 99.5

 

LOGO

American Campus Communities Announces a Series of Executive Promotions and Upcoming Retirement of CFO

AUSTIN, Texas, January 10, 2017— American Campus Communities (NYSE: ACC), the nation’s largest owner, manager and developer of high-quality student housing properties in the U.S., today announced it is advancing its succession plan with a series of internal promotions to ensure the company is fully exploiting the breadth of executive talent available to further advance the company’s long term strategic business plan and to facilitate orderly executive succession well into the next decade.

Effective immediately, the company is separating the roles of President and Chief Executive Officer, with Bill Bayless remaining as CEO and Jim Hopke, Chief Operating Officer, being promoted to the position of President. In this role, Jim will continue to report directly to the CEO and provide executive oversight of day-to-day business operations, advance the company’s asset and portfolio management functions, and focus on furthering American Campus’ best in class operating platform including strategic oversight of the company’s next gen systems development working closely with Chief Technology Officer Jorge de Cardenas.

Also effective immediately, Jennifer Beese, Executive Vice President of Operations, Marketing, and Leasing is being promoted to the position of Chief Operating Officer and will continue to report directly to Mr. Hopke. Ms. Beese will continue to provide executive oversight of marketing, leasing and property operations, and functional support services. She will also assume executive responsibility for human resources, corporate administration and company culture. Hopke and Beese have a combined 30 plus years with the company and have been leading its operations since 2014.

In addition, Jon Graf will step down as Chief Financial Officer on March 31, 2017 and will be retiring from the company on June 30, 2017. Graf has been an integral part of the executive team, having joined the company in conjunction with its IPO in 2004; initially serving as Corporate Controller, being promoted to Chief Accounting Officer in 2005, and ultimately serving as Chief Financial Officer since 2007. He led the company’s financial operations through periods of substantial growth during which American Campus came to be recognized as the industry’s ‘best in class’ company. He will continue to work closely with his successors in the finance and accounting departments during the upcoming transition period.

Daniel Perry, EVP of Corporate Finance & Capital Markets, who for years has been the company’s lead executive interacting with investors, analysts and the banking community will be promoted to Chief Financial Officer, effective March 31, 2017. Perry joined the company in 2005 from Citigroup where he had worked on the company’s IPO.

Effective immediately, Kim Voss, EVP and Controller, who joined the company in 2004 from AMB, is being promoted to the position of Chief Accounting Officer reporting directly to the CFO. Voss has provided executive oversight of the company’s corporate accounting, property accounting and public company reporting since her promotion to EVP in May of 2015.


“On behalf of the entire Board of Directors, I’d like to recognize and thank Jon Graf for more than a decade of service to American Campus and wish him well in his retirement from the company,” said Ed Lowenthal, Independent Chairman of the Board. “For nearly a decade, the Board has been working hand in hand with Bill on executive development and succession planning. These promotions represent a milestone related to that work and set the stage for smooth executive succession in the decades ahead .”

“It is very exciting to see each one of these talented executives continue to advance their careers with American Campus”, said Bill Bayless, CEO. “Jim and I look forward to fully developing the next generation of executives that will lead this company for decades to come. Jennifer, Daniel and Kim, along with William Talbot, our Chief Investment Officer, have been impact players throughout their careers at American Campus and I am confident they will make even greater contributions at the next levels of executive leadership. It’s truly an honor for me to continue to lead the industry’s most talented group of executives as CEO.”

Forward-Looking Statements

In addition to historical information, this press release contains forward-looking statements under the federal securities law. These statements are based on current expectations, estimates and projections about the industry and markets in which American Campus operates, management’s beliefs, and assumptions made by management. Forward-looking statements are not guarantees of future performance and involve certain risks and uncertainties, which are difficult to predict.

About American Campus Communities

American Campus Communities, Inc. is the largest owner, manager and developer of high-quality student housing communities in the United States. The company is a fully integrated, self-managed and self-administered equity real estate investment trust (REIT) with expertise in the design, finance, development, construction management and operational management of student housing properties. As of September 30, 2016, American Campus Communities owned 170 student housing properties containing approximately 105,300 beds. Including its owned and third-party managed properties, ACC’s total managed portfolio consisted of 205 properties with approximately 133,600 beds. Visit www.americancampus.com .

American Campus Communities, Inc.

Gina Cowart, 512-732-1000

Media Relations