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Exhibit 10.5
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. D. KEITH ODEN (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. Oden shall work as President & Chief Operating 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. Oden as President & Chief Operating 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 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 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 Terms
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.
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In all events, the Company shall be obligated to pay all salary and
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
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
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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 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
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
treated as described in Section 24 of this Agreement.
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The Executive shall receive, so long as the Disability continues,
to remain eligible for all benefits provided under any long-term
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
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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 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:
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a) provide the Company with any written records or documents
in the Executive's possession relating to such claim
reasonably requested by the Company;
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
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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.
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 bisclosure 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,
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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
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 Business the shares of ownership of which are
publicly traded if the Executive's investment
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.
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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.
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 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.
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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.
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:
D. Keith Oden
Three Greenway Plaza, Suite 1300
Houston, TX 77046
51
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
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, or 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.
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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 t his 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
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 become fully 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/Richard J. Campo
---------------------------------
Name: Richard J. Campo
---------------------------------
Title: Chief Executive Officer
---------------------------------
EXECUTIVE
/s/D. Keith Oden
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D. Keith Oden