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Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
The Amended and Restated Employment Agreement (the "Agreement") made this 7th
day of August 1998, by and between Camden Property Trust, a Texas real estate
investment trust, (the "Company") and MR. RICHARD J. CAMPO (the "Executive").
WITNESSETH:
WHEREAS the Company is engaged in the business of multifamily management and
development and
WHEREAS the Executive is experienced and knowledgeable in the field; and
WHEREAS Mr. Campo shall work as Chairman & Chief Executive Officer; and
WHEREAS this Agreement shall supersede and replace all prior employment
agreements between the Company and the Executive, including, but not limited to
the Employment Agreement dated July, 22, 1996 (the "Prior Agreement").
NOW THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the parties agree as follows:
1. EMPLOYMENT
The Company employs Mr. Campo as Chairman and Chief Executive Officer (the
"Officer") to perform the duties normally associated with that office under
the control and at the direction of the Board of Trust Managers (the
"Board") and other such duties as may, from time to time, be assigned and
are consistent with the position.
2. EMPLOYMENT TERM
(a) EMPLOYMENT TERM
The term of employment shall begin the 7th day of August,1998, (the
"Commencement Date"). This agreement will expire on July 22nd , 1999
or after the expiration of any Renewal Period (the "Expiration Date").
The term of employment shall annually be extended by one (1) year (the
"Renewal Period") unless written notification is given by either party
to the other at least six (6) months prior to the Expiration Date. The
Commencement Date through and including the Expiration Date is
hereinafter referred to as the "Employment Term."
(b) TERMINATION
The Company agrees to employ the Executive for the period beginning on
the Commencement Date and continuing through the earliest of:
(i) death of the Executive; or
(ii) termination of the Executive by vote of a committee of the
Board for "Disability," as defined below; or
(iii)the discharge of the Executive by vote of the Board "For
Cause", as defined below, or any other termination For
Cause; or
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(iv) the discharge of the Executive by vote of the Board for
any reason other than For Cause;
(v) retirement of the Executive under the terms of the
Company's retirement plan as instituted and amended from
time to time by the Board;
(vi) termination of the Agreement due to a "Change of Control,"
as defined below; or
(vii)the end of the Employment Term.
(c) DISABILITY
The term Disability refers to the physical or mental incapacity of the
Executive that has prevented the execution of the duties of the
office, as outlined below, for three (3) consecutive months or for a
period of more than 180 business days in the aggregate in any 18 month
period and that, in the determination of the Board after consultation
with a medical doctor licensed to practice in the State of Texas
appointed by the Board and the Executive, may be expected to prevent
the Executive for any period of time thereafter from devoting
substantial time and energies to the Duties of the office, as outlined
below. The Executive agrees to submit to reasonable requests for
medical examinations to determine whether a Disability exists.
During the period of incapacitation, as provided above, the salary
otherwise payable to the Executive may, at the absolute discretion of
the Board, be reduced by the amount of any disability benefits or
payment received by the Executive, excluding health insurance benefits
or other reimbursement of medical expenses for the Executive.
(d) FOR CAUSE
The term "For Cause" shall mean any one or more of the following:
(i) material or repeated violation by the Executive of the
the terms of this Agreement or the material or
repeated failure to perform the duties of the office
to include material substandard performance of the
Executive in the achievement of written goals and
objectives set by the Board for two (2) consecutive
years, other than any such failure resulting from the
Executive's Disability;
(ii) excessive absenteeism not related to illness; or
(iii)the Executive's conviction of or plea of nolo contendere
to a felony or conviction of any other crime which
incarcerates the Executive for a period of one (1) year or
longer; or
(iv) the Executive's commission of fraud, embezzlement, theft,
or other felony crimes, in any case, whether or not
involving the Company, that, in the reasonable opinion of
the Board, render the Executive's continued employment
harmful to the Company.
(v) the voluntary resignation of the Executive without the
prior consent of the Board.
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(e) CHANGE OF CONTROL
A "change of control" shall be determined to have occurred when any
one or more of the following events occur:
(i) at any time during any twelve (12) month period, the Trust
Managers in office at the beginning of such period cease
to constitute a majority of the Company's Board of Trust
Managers, disregarding any vacancies occurring during such
period by reasons of death or disability but deeming any
individual whose election, or nomination for election, to
fill such vacancy to have been in office at the beginning
of such one (1) year prior;
(ii) there is a report filed on Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report or item
therein), each as promulgated pursuant to the Securities
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), disclosing that any person (as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the
Exchange Act) of securities representing over 25% of the
combined voting power of the securities of the Company
entitled to vote generally in the election of Trust
Managers (the "Voting Shares") of the Company or could
become the owner of over 25% of the Company's Common
Shares of Beneficial Interest through the conversion of
the Company's debt or equity securities;
(iii)the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or
Schedule 14A (or any successor schedule, form or report or
item therein) that a change in control of the Company has
occurred or will occur in the future pursuant to any
then-existing contract or transaction; or
(iv) a merger or consolidation occurs to which the Company is
party and the Company is not the surviving entity; or
(v) the sale of at least fifty (50%) percent of the Company's
assets to any person or entity or in a series of related
transactions.
The determination as to which party to a merger, consolidation or
reorganization is the "surviving entity" within the meaning of Section 2(e)
shall be made on the basis of the relative equity interest of the
shareholders in the entity existing after the merger, consolidation or
reorganization, as follows: if following any merger, consolidation or
reorganization the holders of outstanding Voting Shares of the Company
immediately prior to the merger, consolidation or reorganization own equity
securities possessing more than 50% of the voting power of the entity
existing following the merger, consolidation or reorganization, the Company
shall be the surviving entity. In all other cases, the Company shall not be
the surviving entity. In making the determination of ownership of equity
securities by the shareholders of an entity immediately after the merger,
consolidation or reorganization pursuant to this paragraph, equity
securities which the shareholders owned immediately before the merger,
consolidation or reorganization as shareholders of another party to the
transaction shall be disregarded. Further, for purposes of this paragraph
only, outstanding voting securities of an entity shall be calculated by
assuming the conversion of all equity securities convertible (immediately
or at some future time) into shares entitled to vote.
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Notwithstanding the foregoing provisions of Section 2(e), unless otherwise
determined in a specific case by majority vote of the Board of Trust
Managers of the Company, a "Change of Control" will not be deemed to have
occurred for purposes of Section 2(e) solely because (A) an entity in which
the Company, directly or indirectly, beneficially owns 50% or more of the
voting securities (a "Subsidiary"), or (B) any employee share ownership
plan or any other employee benefit plan of the Company or any Subsidiary
either files or becomes obligated to file a report or a proxy statement
under or in response to Schedule 13D, Schedule 14D-1, Form 8-K, or Schedule
14A (or any successor schedule, form, or report or item therein) under the
Exchange Act disclosing beneficial ownership by it of shares of Voting
Shares, whether in excess of 25% or otherwise, or because the Company
reports that a change in control of the Company has occurred or will occur
in the future by reason of such beneficial ownership.
3. DUTIES
The Executive will devote substantially all of his time, skill, energy,
knowledge, and best efforts during the Employment Term to such duties, and
will, faithfully and diligently endeavor to the best of his ability,
further the best interests of the Company. The Executive may:
(i) continue to serve as general partner in, or as an officer,
director, or shareholder of a corporation that is a
general partner in, the limited partnerships listed in
Schedule A to the Prior Agreement; and
(ii) continue to serve as a director or shareholder, directly
or indirectly, in the corporations listed in Schedule A to
the Prior Agreement; and
(iii)serve in the future as an officer, director, shareholder,
or limited partner in any business venture which is not
prohibited by Section 9(c).
At no time shall the Executive be requested to perform duties that are not
commensurate with the duties of a senior executive of the Company.
4. LOCATION OF EMPLOYMENT
The Executive shall be located in or about Houston, Texas. The Executive
shall travel to such geographical locations as may be appropriate from time
to time to carry out the duties of the office as outlined in Section 3,
Duties.
5. COMPENSATION
For all services rendered by the Executive to the Company, the Company
shall pay:
(a) BASE SALARY
For services rendered, the Company shall pay the Executive an annual
salary of $258,000, "the base salary" payable in arrears monthly or
semi-monthly as the Board may elect from time to time during the
Employment Term. The Board shall conduct an annual review of the
Executive's Base Salary. The Executive shall be entitled to receive
increases in the Base Salary, if any, that may be determined by the
Board at its sole discretion. Any increases to the Executive's Base
Salary shall be effective January 1 for each year of the Employment
Term.
In no event shall the Executive's base salary be reduced, except as
provided for under Section 2(c), Disability.
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(b) ANNUAL INCENTIVE COMPENSATION
In further consideration of the Executive's service, the Executive
shall be eligible to receive an annual incentive compensation as
determined by the Board.
(c) LONG-TERM INCENTIVE COMPENSATION
In further consideration of the Executive's service, the Executive
shall be eligible to receive a long-term incentive compensation as
determined by the Board.
(d) TAXES
All compensation paid to the Executive shall be subject to applicable
employment and withholding taxes.
The Executive shall be responsible for any taxes resulting from a
determination that any portion of any benefits supplied to the
Executive may be reimbursing personal as well as business expenses.
6. EMPLOYEE BENEFITS
(a) BENEFITS
The Executive shall receive group health/dental insurance, life
insurance, disability insurance, and other similar benefits available
to the Company's employees. Benefits may be changed, modified, or
revoked at the sole discretion of the Company.
The Executive shall not be deemed to have a vested interest in any of
the Company plans or programs.
The Executive shall receive benefits not generally provided to Company
employees from time to time at the sole discretion of the Board.
(b) VACATION
The Executive is entitled to receive twenty- (20) business days paid
vacation annually for each year of the Employment Term. Such vacation
shall be taken at such times that are consistent with the reasonable
business needs of the Company. All vacation shall be subject to the
policies and procedures of the Company.
(c) FRINGE BENEFITS
The Executive shall receive fringe benefits as such benefits may exist
from time to time at the sole discretion of the Board.
7. BUSINESS EXPENSES
The Executive is authorized to incur reasonable, ordinary and necessary
business expenses in the performance of the duties outlined above during
the Employment Term in accordance with policies established by the Board.
The Executive shall account to the Company for all such expenses. The
Company shall reimburse the Executive or pay the expenses in accordance
with the policies established by the Board.
8. TERMINATION
In the event of termination, the Executive's rights and the Company's
obligations shall terminate except as herein provided.
In all events, the Company shall be obligated to pay all salary and
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benefits accrued to the Executive through and including the date of
termination. Additionally, the Executive shall be entitled to receive the
minimum bonus for the contract year during which the termination occurs,
prorated through and including the date of termination.
(a) TERMINATION FOR REASON OTHER THAN FOR CAUSE
Upon the occurrence of a change of control or if the Employment Term
is terminated for reasons other than For Cause, the Executive shall be
entitled to receive a severance payment (the "Severance Benefit")
equal to 2.99 times (I) Executive's annualized compensation that would
be included in Executive's gross income in the year in which the first
event constituting a change of control occurs or the taxable year in
which the termination occurs, as applicable, or, if higher, (ii) the
average annual compensation that was included in the gross income of
the Executive for the three (3) most recent taxable years that ended
before the date of termination or the date of the change of control,
as applicable, plus 2.99 times Executive's targeted annual incentive
compensation for the fiscal year in which the event first constituting
a change of control occurs.
Gross income includes, but is not limited to:
(i) base salary;
(ii) annual bonus amounts;
(iii)deferred compensation amounts; and
(iv) the value, in good faith, of share options, restricted
share grants and dividend equivalent rights granted to
the Executive and any other benefits received by the
Executive from the Company, (assuming for purposes of
such calculation that all grants have vested).
For purposes of making the calculation in Section 8(a)(iv) above, the Board
shall make such calculation and shall use the Black-Scholes pricing model
for its calculation; provided, however, that if the Black-Scholes pricing
model cannot be used to value the types of benefit being valued, the Board
shall use any other reasonable method of calculation based upon the
recommendation of the Company's independent compensation consultant (or if
there is none, an independent compensation consultant retained by the Board
for such purpose.)
However, gross income shall not include untaxed fringe benefits.
Following the occurrence of a Change of Control or termination of
employment for a reason other than For Cause, the Company will pay to the
Executive the Severance Benefit in immediately available funds, in United
States Dollars, within five business days after the first occurrence of a
Change of Control or termination, as applicable. In addition, during the
Severance Period, the Company will arrange to provide the Executive
Employee Benefits that are welfare benefits (but not share options, share
purchase, share appreciation, dividend equivalent rights or similar
compensatory benefits) substantially similar to those which the Executive
was receiving or entitled to receive immediately prior to the Change of
Control. Such one year period will be considered service with the Company
for the purpose of determining service credits and benefits due and payable
to the Executive under the Company's retirement income, supplemental
executive retirement, and other benefit plans of the Company applicable to
the Executive, the Executive's dependents, or the Executive's beneficiaries
immediately prior to the Change of Control. If and to the extent that any
benefit described in the immediately preceding sentence is not or cannot be
paid or provided under any policy, plan, program or arrangement of the
Company, then the Company will itself pay or provide for the payment of
such Employee Benefits to the Executive, and, if applicable, the
Executive's dependents and beneficiaries. Employee Benefits otherwise
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receivable by the Executive pursuant to this Section 8 will be reduced to
the extent comparable welfare benefits are actually received by the
Executive from another employer during the Severance Period.
There will be no right of set-off or counterclaim in respect of any claim,
debt of obligation against any payment to or benefit for the Executive
provided for in this Agreement, except as expressly provided herein.
Notwithstanding any other provision hereof, the parties' respective rights
and obligations under this Section 8 and under Sections 11 and 16 will
survive any termination or expiration of this Agreement following a Change
of Control or termination of employment, other than for cause.
Executive will not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment.
"Employee Benefits" means the perquisites, benefits and service credit for
benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements in which the
Executive is entitled to participate, including, without limitation, any
share option, share purchase, share appreciation, dividend equivalent
rights, savings, pension, supplemental executive retirement or other
retirement income or welfare benefit, deferred compensation, incentive
compensation, group or other life, health, medical/hospital, or other
insurance (whether funded by actual insurance or self-insured by the
Company), disability, salary continuation, expense reimbursement, and other
employee benefit policies, plans, programs or arrangements that may now
exist or any equivalent successor policies, plans, programs or arrangements
that may be adopted hereafter by the Company, providing perquisites,
benefits and service credit for benefits at least as great in the aggregate
as are payable thereunder prior to a Change of Control.
"Severance Period" means the period of time commencing on the date of an
occurrence of each change of control and continuing until the earliest of
(i) the expiration of one year after each occurrence of an event
constituting a change of control, (ii) the Executive's death, or (iii) the
Executive's attainment of age 65.
(b) TERMINATION BY REASON OF DEATH
If the Employment Term is terminated by reason of Death, the Executive
shall be entitled to receive a severance payment equal to the
Severance Benefit. Vesting of benefits shall be treated as described
in Section 24 of this Agreement.
(c) TERMINATION BY REASON OF DISABILITY
If the Employment Term is terminated by reason of Disability, the
Executive shall be entitled to receive a severance payment equal to
the Severance Benefit. Vesting of benefits shall be treated as
described in Section 24 of this Agreement.
The Executive shall receive, so long as the Disability continues, to
remain eligible for all benefits provided under any long-term
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disability program(s) of the Company in effect at the time of such
termination, subject to the terms and conditions of any such
program(s), as may be amended, changed, modified, or terminated for
all employees of the Company.
(d) ADDITIONAL PAYMENTS
(i) Notwithstanding anything in this Agreement to the contrary, in
the event it is determined (as hereafter provided) that any payment or
distribution by the Company to or for the benefit of the Executive,
whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise pursuant to or by reason of
any other agreement, policy, plan, program or arrangement, including
without limitation any share option, share appreciation right,
dividend equivalent right, restricted shares of similar right, the
lapse or termination of any restriction on or the vesting or exercise
ability of any of the foregoing (any such payment or distribution, a
"Payment"), would be subject to the excise tax imposed by Section 4999
of the Internal Revenue code of 1986, as amended (the "Code") (or any
successor provision thereto),by reason of being considered "contingent
on a change in ownership or control" of the Company, within the
meaning of Section 280G of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local law, or any
interest or penalties with respect to such tax (such tax or taxes,
together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the Executive will
be entitled to receive an additional payment or payments(collectively,
a "Gross-Up Payment"); PROVIDED, HOWEVER, that no Gross-up Payment
will be made with respect to the Excise Tax, if any, attributable to
(A) any incentive share option ("ISO") granted prior to the execution
of this Agreement or (B) any share appreciation or similar right,
whether or not limited, granted in tandem with any ISO described in
clause (A) of this sentence. The Gross-Up Payment will be in an amount
such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including
any Excise Tax imposed upon the Gross-Up Payment, the Executive will
have received an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payment.
(ii) Subject to the provisions of Section 8(d)(vi), all determinations
required to be made under this Section 8(e), including whether an
Excise Tax is payable by the Executive and the amount of such Excise
Tax and whether a Gross-Up Payment is required to be paid by the
Company to the Executive and the amount of such Gross-Up Payment, if
any, will be made by a nationally recognized accounting firm (the
"Accounting Firm") selected by the Executive in the Executive's sole
discretion. The Executive will direct the Accounting Firm to submit
its determination and detailed supporting calculations to both the
Company and the Executive within 30 calendar days after the
Executive's termination date, and any such other time or times as may
be requested by the Company of the Executive. If the Accounting Firm
determines that any Excise Tax is payable by the Executive, the
Company will pay the required Gross-Up Payment to the Executive within
five business days after receipt of such determination and
calculations with respect to any Payment to the Executive. If the
Accounting firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination,
furnish the Company and the Executive an opinion that the Executive
has substantial authority not to report any Excise Tax on the
Executive's federal, state or local income or other tax return. As a
result of the uncertainty in the application of Section 4999 of the
Code (or any successor provision thereto) and the possibility of
similar uncertainty regarding applicable state or local tax law at the
time of any determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the
Company should have been made (an "Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the
Company exhausts or fails to pursue its remedies pursuant to Section
8(d)(vi) and the Executive
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thereafter is required to make a payment of any Excise Tax, the
Executive will direct the Accounting Firm to determine the amount of
the Underpayment that has occurred and to submit its determination and
detailed supporting calculations to both the Company and the Executive
as promptly as possible. Any such Underpayment will be promptly paid
by the Company to, or for the benefit of, the Executive within five
business days after receipt of such determination and calculations.
(iii)The Company and the Executive will each provide the Accounting
Firm access to and copies of any books, records and documents in the
possession of the Company or the Executive, as the case may be,
reasonably requested by the Accounting Firm, and otherwise cooperate
with the Accounting Firm in connection with the preparation of and
issuance of the determinations and calculations contemplated by
Section 8(d)(ii). Any determination by the Accounting Firm as to the
amount of the Gross-Up Payment will be binding upon the Company and
the Executive.
(iv) The federal, state, and local income or other tax returns filed
by the Executive will by prepared and filed on a consistent basis with
the determination of the Accounting Firm with respect to the Excise
Tax payable by the Executive. The Executive will make proper payment
of the amount of any Excise Payment and,at the request of the Company,
provide to the Company true and correct copies (with any amendments)
of the Executive's federal tax return as filed with the Internal
Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such
payment. If prior to the filing of the Executive's federal income tax
return, or corresponding state or local tax return, if relevant, the
Accounting Firm determines that the amount of the Gross-Up Payment
should be reduced, the Executive will within five business days pay to
the Company the amount of such reduction.
(v) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated
herein will be borne by the Company. If such fees and expenses are
initially paid by the Executive, the Company will reimburse the
Executive the full amount of such fees and expenses within five
business days after receipt from the Executive of a statement therefor
and reasonable evidence of the Executive's payment thereof.
(vi) The Executive will notify the Company in writing of any claim by
the Internal Revenue Service or any other taxing authority that, if
successful, would require the payment by the Company of a Gross-Up
Payment. Such notification will be given as promptly as practicable
but no later than 10 business days after the Executive actually
receives notice of such claim and the Executive will further apprise
the Company of the nature of such claim and the date on which such
claim is requested to be paid (in each case, to the extent known by
the Executive). The Executive will not pay such claim prior to the
earlier of (i) the expiration if the 30-calendar day period following
the date on which the Executive gives such notice to the Company and
(ii) the date that any payment of amount with respect to such claim
is due. If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the
Executive will:
a) provide the Company with any written records or documents in the
Executive's possession relating to such claim reasonably
requested by the Company;
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b) take such action in connection with contesting such claim as the
Company may reasonably request in writing from time to time,
including without limitation accepting legal representation with
respect to such claim by attorney competent in respect of the
subject matter and reasonably selected by the Company;
c) cooperate with the Company in good faith in order effectively to
contest such claim; and
d) permit the Company to participate in any proceedings relating to
such claims;
provided, however, that the Company will bear and pay directly all costs
and expenses (including interest and penalties) incurred in connection with
such contest and will indemnify and hold harmless the Executive, on an
after-tax basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limiting the
foregoing provisions of this Section 8(d), the Company will control all
proceedings taken in connection with the contest of any claim contemplated
by this Section 8(d)(vi) and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim (provided, however, that the
Executive may participate therein at the Executive's own cost and expense)
and may, at its option, either direct the Executive to pay the tax claimed
and sue for a refund or contest the claim in any permissible manner, and
the Executive will prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction, and in one or
more appellate courts, as the Company may determine; provided, however,
that is the Company directs the Executive to pay the tax claimed and sue
for a refund, the Company will advance the amount of such payment to the
Executive on an interest-free basis and will indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income or
other tax, including interest or penalties with respect thereto, imposed
with respect to such advance; and provided further, however, that any
extension of the statute of limitations relating to payment of taxes for
the taxable year of the Executive with respect to which the contested
amount if claimed to be due is limited solely to such contested amount. The
Company's control of any such contested claim will be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive will be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(vii)If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 8(d)(vi), the Executive receives any refund
with respect to such claim, the Executive will (subject to the Company's
complying with the requirements of Section 8(e)(vi) pay to the Company the
amount of such refund (together with any interest paid or credited thereon
after (vii) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to any taxes applicable thereto) within 30 calendar
days after such receipt and the Company's satisfaction of all accrued
obligations under this Agreement. If, after the receipt by the Executive of
any amount advanced by the Company pursuant to Section 8(d)(vi), a
determination is made that the Executive will not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such determination prior to the expiration
of 30 calendar days after such determination, then such advance will be
forgiven and will not be required to be repaid and the amount of any such
advance will offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid by the Company to the Executive pursuant to this
Section 8.
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9. CONFIDENTIALITY AND NON-COMPETITION
All information (the "Confidential Information")includes all confidential
information of the Company and/or its subsidiaries, including information
entrusted to the Company and/or any of its subsidiaries by third parties,
not otherwise publicly disclosed or available, other than as a result of
wrongful disclosure by the Executive, which, during the Employment Term:
(i) is disclosed by any of them to the Executive; or
(ii) the Executive had access or otherwise had reason to
know; or
(iii) was developed or discovered by the Executive.
Confidential Information includes, but is not limited to, whether or not
legended or otherwise identified as "confidential":
(i) property lists, prospective properties lists, and
details of agreement with sellers; and
(ii) acquisition, expansion, marketing, financial, and other
business information and plans; and
(iii) research and development and data related thereto; and
(iv) other compilations of data; and
(v) computer programs and/or records; and
(vi) sources of supply; and
(vii) confidential information developed by consultants and
contractors; and
(viii)purchasing, operating, and other costs data; and
(ix) employee information; and
(x) manuals, memoranda, projections, minutes, plans,
drawings, designs, formula books and specifications.
(a) RESTRICTION ON USE AND DISCLOSURE
The Executive acknowledges that the Confidential Information is
valuable and proprietary to the Company or to third parties which have
entrusted the Company and/or its subsidiaries, and, except as required
by the Executive's Duties, the Executive shall not use, publish,
disseminate, or otherwise disclose any Confidential information
without prior written consent of the Company.
(b) RETURN OF DOCUMENTS
Upon termination of the Executive's employment, the Executive shall
forthwith deliver to the Company all plans, designs, drawings,
specifications, listings, manuals, records, notebooks, and similar
repositories of or containing Confidential Information, including all
copies, then in the Executive's possession or control, whether
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prepared by the Executive or others. Upon such termination the
Executive shall retain no copies of any such documents.
(c) RESTRICTION ON COMPETITIVE EMPLOYMENT
The term Business shall mean:
(i) the business of the Company and its subsidiaries as
described in the Company's most recent Form 10-K; and
(ii) any other business in which the Company or any of its
subsidiaries is engaged during the Executive's Employment
Term.
The term Territories shall refer to those metropolitan areas in which the
Company owns properties or otherwise is engaged in the Business, including
any areas where the Company has specific plans to acquire or develop
properties within the following six (6) months following the date of
termination or change of control, as applicable, and all outlying areas
located within a thirty (30) mile radius of each such metropolitan area.
Except as noted in Section 3, Duties, during the Employment Term and the
twelve months (12) months following the termination of this Agreement (the
"Non-Competition Period"), absent the Company's prior written approval, the
Executive shall not, as owner, part-owner, shareholder, partner, director,
principal, agent, employee, consultant, or otherwise, within the
Territories, directly or indirectly engage or participate in activities
relating to, or render services to or invest in any firm or business
engaged or about to become engaged in, the Business, provided that the
Executive may:
(i) engage in the activities as noted in Section 3, Duties;
(ii) make passive investments in an enterprise engaged in the
the Business the shares of ownership of which are
publicly traded if the Executive's investment constitutes
constitutes less than 2% of the total equity of such
enterprise.
(d) INDUCEMENT / ENTICEMENT
During the Employment Term and the Non-Competition Period, the
Executive shall not, directly or indirectly:
(i) induce, or attempt to induce, any employees or agents or
consultants of or to the Company or any subsidiary of the
Company to do anything from which the Executive is
restricted by reason of Section 9(a) through 9(c),
inclusive; or
(ii) offer or aid others to offer employment to anyone who is
an employee, agent or consultant of or to the Company or
an subsidiary of the Company at the time of termination
of the Executive.
(e) REDUCTION OF NON-COMPETITION PERIOD
If this Agreement shall be terminated by the Company pursuant to
Section 2(b)(iv), Termination for reason other than For Cause, the
provisions of Sections 9(c) and 9(d) shall terminate on the first
business day following the termination of the Executive.
Unless otherwise provided, the provisions of Sections 9(a) through
9(d), inclusive, shall survive the termination of this Agreement for
the duration of the Non-Competition Period.
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10. REMEDIES FOR THE COMPANY
The Executive acknowledges that remedy at law for any breach or attempted
breach of the Executive's obligations under Section 9, Confidentiality and
Non-Competition, may be inadequate, agrees that the Company may be entitled
to specific performance and injunctive and other equitable remedies in case
of any such breach or attempted breach, and further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
The termination of the Employment Term pursuant to Section 2(a)(iii),
Discharge For Cause, shall not be deemed to be a waiver by the Company of
any breach by the Executive of this Agreement or any other obligation owed
the Company, and, notwithstanding such a termination, the Executive shall
be liable for all damages attributable to such a breach.
11. REMEDIES FOR THE EXECUTIVE
In the event the Executive is terminated For Cause and it is ultimately
determined the Company lacked "cause", the:
(i) Executive's termination shall be treated as a Termination
for reason other than For Cause, as it pertains to
Section 8(a); and
(ii) Executive shall reserve the right to seek remedy for
breach of the Agreement by the Company including, but not
limited to, any other such damages as may be suffered
and/or incurred by the Executive, the Executive's costs
incurred during the dispute, and reasonable attorney's
fees in connection with such dispute; and
(iii)Executive shall receive all Severance Benefits under
Section 8(a), Termination for reason other than For
Cause, with interest of 8% annually on all payments
considered past due from the date at which such payment
payment would have been made.
12. NO WAIVER
No Waiver or non-action by either party with respect to any breach by the
other party of any provision of this Agreement,nor the waiver or non-action
with respect to the provisions of similar agreement with other employees or
the breach thereof, shall be deemed or construed to be a waiver of any
succeeding breach of such provision,or as a waiver of the provision itself.
13. INVALID PROVISIONS
Should any portion of this Agreement be adjusted or held invalid,
unenforceable or void, such holding shall not have the effect of
invalidating or voiding the remainder of this Agreement and the parties
hereby agree that the portion so held invalid, unenforceable,or void shall,
if possible, be deemed amended or reduced in scope,or otherwise be stricken
from this Agreement to the extent required for the purposes of validity and
enforcement thereof.
14. SUCCESSOR AND ASSIGNS
Neither the Executive nor the Company may assign its rights, duties, or
obligations hereunder without consent of the other.
15. SURVIVAL OF THE EXECUTIVE'S OBLIGATIONS
Except with respect to any termination under Section 2(b)(iv), the
Executive's obligations under Sections 9 and 10 shall survive regardless of
whether or not the Executive's employment is terminated, voluntarily or
involuntarily, by the employer or the Executive, with or without cause.
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16. SURVIVAL OF THE COMPANY'S OBLIGATIONS
The Company's obligations under Sections 8 and 11 shall survive regardless
of whether or not the Executive's employment is terminated, voluntarily or
involuntarily, by the employer or the Executive, with or without cause.
17. PRIOR AGREEMENTS
This Agreement incorporates the entire agreement between both parties with
respect to the subject matter hereof and supersedes all prior agreements,
documents, or other instruments with respect to the matters covered herein.
18. GOVERNING LAW
This Agreement shall be governed by, and interpreted in accordance with the
provisions of, the law of the State of Texas, without reference to
provisions that refer a matter to the law of any other jurisdiction. Each
party hereto hereby irrevocably submits itself to the non-exclusive
personal jurisdiction of the Federal and State courts sitting in Texas.
19. NO ORAL MODIFICATIONS
This Agreement may not be changed or terminated orally, and no change,
termination, or waiver of this Agreement or of any of the provisions herein
contained shall be binding unless made in writing and signed by both
parties, and, in the case of the Company, by a person designated by the
Board.
Without limiting the foregoing, any change or changes, from time to time,
in the Executive's salary or duties or both shall not be, nor be deemed to
be, a change, termination, or waiver of this Agreement or of any of the
provisions herein contained.
20. NOTICES
All notices and other communications required or permitted hereunder shall
be made in writing, and shall be deemed properly given if delivered
personally, mailed by certified mail, postage prepaid and return receipt
requested, sent by facsimile, or sent by Express Mail or Federal Express or
other nationally recognized express delivery service, as follows:
If to the Company or the Board:
Camden Property Trust
Three Greenway Plaza, Suite 1300
Houston, TX 77046
Attention: Board of Trust Managers
If to the Executive:
Richard J. Campo
Three Greenway Plaza, Suite 1300
Houston, TX 77046
Notice given by hand, Express Mail, Federal Express, or other such express
delivery service shall be effective upon actual receipt. Notice given by
facsimile transmission shall be effective upon actual receipt of received
during the recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received during the
35
recipient's normal business hours. All notices sent by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery.
Any party may change any address to which notice shall be given to it by
giving notice as provided above of such change in address.
21. EXECUTIVE'S REPRESENTATION AND WARRANTIES
The Executive represents and warrants that he is legally free to make and
perform this Agreement, that he has no obligation to any other person or
entity that would affect or conflict with any of his obligations hereunder,
and that the complete performance of his obligations hereunder will not
violate any law, regulation, order, or decree of any governmental or
jurisdictional body or contract by which he is bound.
22. EXPENSES; SECURITY
It is the intent of the Company that the Executive not be required to incur
legal fees and the related expenses associated with the interpretation,
enforcement or defense of the Executive's rights to compensation upon a
Change of Control by litigation or otherwise because the cost and expense
thereof would substantially detract from the benefits intended to be
extended to the Executive hereunder. Accordingly, if it should appear to
the Executive that the Company has failed to comply with any of its
obligations under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare the agreement
to pay Executive compensation upon a change of control void or
unenforceable, or institutes any litigation or other action or proceeding
designed to deny, r to recover from, the Executive the benefits provided or
intended to be provided to the Executive hereunder, the Company irrevocably
authorizes the Executive from time to time to retain counsel of the
Executive's choice, at the expense of the Company as hereinafter provided,
to advise and represent the Executive in connection with any such
interpretation, enforcement or defense, including without limitation the
initiation or defense of any litigation or other legal action, whether by
or against the Company or any Trust Manager, officer, shareholder, or other
person affiliated with the Company, in any jurisdiction. Notwithstanding
any existing or prior attorney-client relationship between the Company and
such counsel, the Company irrevocably consents to the Executive's entering
into an attorney-client relationship with such counsel, and in that
connection the Company and the Executive agree that a confidential
relationship will exist between the Executive and such counsel. Without
regard to whether the Executive prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys' and related fees and
expenses incurred by the Executive in connection with any of the foregoing.
23. ENTIRE AGREEMENT
The parties expressly agree that this Agreement is contractual in nature
and not a mere recital, and that it contains all the terms and conditions
of the agreement between the parties with respect to the matters set forth
herein. All prior negotiations, agreements, arrangements, understandings
and statements between the parties relating to the matters set forth herein
that have occurred at any time or contemporaneously with the execution of
this Agreement (including, but not limited to, the Prior Agreement) are
superseded and merger into this completely integrated Agreement. The
Recitals set forth above shall be deemed to be part of this Agreement.
24. VESTING OF BENEFITS
Notwithstanding anything in this Agreement, the Company's employee benefit
36
plans, any agreement entered into under such plans,or under any retirement,
pension, profit sharing or other similar plan, upon the occurrence of a
change of control, as defined in Section 2(e), or termination for reason of
death or disability or If Executive is terminated other than For Cause all
deferred or unvested portions of any award made to Executive under any of
the foregoing plans and agreements shall automatically becomefully vested
in Executive and shall be in effect and redeemable by or payable to
Executive, or Executive's designated beneficiary or estate, on the same
conditions (other than vesting) as would have applied had the change of
control, or termination for reason of death or disability or the
termination other than For Cause, as applicable, not occurred, including,
but not limited to, the right to exercise any share options for a period of
10 years from the date of grant. All unvested awards under the plans shall
immediately vest upon the change of control, or termination for reason of
death or disability or if Executive is terminated other than For Cause and
the Executive or Executive's designated beneficiary or estate shall have
the right to exercise any vested awards during the balance of the awards'
term.
EXECUTED as of the date first written above.
CAMDEN PROPERTY TRUST
By: /s/D. Keith Oden
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Name: D. Keith Oden
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Title: President
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EXECUTIVE
/s/Richard J. Campo
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Richard J. Campo