EDUCATION REALTY TRUST, INC. RESTRICTED STOCK AWARD AGREEMENT (New Employee Inducement Award)
Exhibit
10.2
(New
Employee Inducement Award)
THIS RESTRICTED STOCK AWARD
AGREEMENT (this “Agreement”)
is made and entered into as of the 12th day of January, 2010 (the “Grant
Date”), between Education Realty Trust, Inc., a Maryland corporation
(together with its subsidiaries, the “Company”),
and Xxxxxxx X. Xxxxxxxx (the “Grantee”).
WHEREAS, the Compensation
Committee (the “Committee”)
of the Company’s Board of Directors (the “Board”)
believes that it is in the best interests of the Company to be able to provide
material inducements for new, key executives to enter into employment with the
Company when the constraints of the Company’s existing equity incentive plans
prevent such grants, and to retain and motivate such executives, to encourage
and reward their contribution to the performance of the Company, and to align
their interests with the interests of the Company’s stockholders;
WHEREAS, the Board previously
appointed the Grantee to serve as President and Chief Executive Officer of the
Corporation effective January 1, 2010;
WHEREAS, as an inducement to
the Grantee to enter into an Executive Employment Agreement with the Company,
and in accordance with the exemptions provided in Section 303A.08 of the New
York Stock Exchange Listed Company Manual, the Compensation Committee has
approved the grant of an award for restricted shares of the Company’s common
stock, $0.01 par value per share (the “Common
Stock”), to the Grantee as provided herein;
NOW THEREFORE, in
consideration of the mutual covenants hereinafter set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Grant of Restricted
Stock.
(a) The
Company hereby grants to the Grantee an award (the “Award”) of
50,000 restricted shares of the Company’s Common Stock (the “Restricted
Shares”) on the terms and conditions set forth in this Agreement and as
otherwise provided in this Agreement.
(b) The
Grantee’s rights with respect to the Award shall remain forfeitable at all times
prior to the dates on which the restrictions shall lapse in accordance with
Sections 2 and
3
hereof.
2. Terms and Rights as a
Stockholder.
(a) Except
as provided herein and subject to such other exceptions as may be determined by
the Committee in its discretion, the “Restricted
Period” for one fifth (1/5) of the Restricted Shares granted herein shall
expire on each anniversary of the Grant Date if and only if the Grantee has been
continuously employed by the Company or any of its subsidiaries from the date of
this Agreement through and including such date.
(b) The
Grantee shall have all rights of a stockholder with respect to the Restricted
Shares, including the right to receive dividends and the right to vote such
shares, subject to the following restrictions:
(i) the
Grantee shall not be entitled to delivery of the stock certificate for any
Restricted Shares until the expiration of the Restricted Period as to such
shares;
(ii) none
of the Restricted Shares may be sold, assigned, transferred, pledged,
hypothecated or otherwise encumbered or disposed of during the Restricted Period
as to such shares; and
(iii) except
as otherwise determined by the Committee at or after the grant of the Award
hereunder, any Restricted Shares as to which the applicable “Restricted Period”
has not expired shall be forfeited, and all rights of the Grantee to such
Restricted Shares shall terminate, without further obligation on the part of the
Company, unless the Grantee remains in the continuous employment of the Company
for the entire Restricted Period.
(c) Notwithstanding
the foregoing, the Restricted Period shall automatically terminate as to all
Restricted Shares awarded hereunder (as to which such Restricted Period has not
previously terminated), upon the occurrence of termination of the Grantee’s
employment with the Company which results from any of the following: (i)
Grantee’s death or “Disability;” (ii) the involuntary termination of Grantee’s
employment by the Company without “Cause;” or (iii) Grantee ceases employment
with the Company for “Good Reason.”
Any shares of Common Stock, any other
securities of the Company and any other property (except for cash dividends)
distributed with respect to the Restricted Shares shall be subject to the same
restrictions, terms and conditions as such Restricted Shares.
3. Termination of
Restrictions. Following the termination of the Restricted
Period, all restrictions set forth in this Agreement relating to such portion or
all, as applicable, of the Restricted Shares shall lapse as to such portion or
all, as applicable, of the Restricted Shares, and a stock certificate for the
appropriate number of shares of Common Stock, free of the restrictions and
restrictive stock legend, shall, upon request, be delivered to the Grantee or
the Grantee’s beneficiary or estate, as the case may be, pursuant to the terms
of this Agreement.
4. Delivery of
Shares.
(a) As
of the date hereof, certificates representing the Restricted Shares shall be
registered in the name of the Grantee and held by the Company or transferred to
a custodian appointed by the Company for the account of the Grantee subject to
the terms and conditions of this Agreement and shall remain in the custody of
the Company or such custodian until their delivery to the Grantee or Grantee’s
beneficiary or estate as set forth in Sections 4(b) and
(c) hereof or
their reversion to the Company as set forth in Section 2(b)
hereof.
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(b) Certificates
representing Restricted Shares in respect of which the Restricted Period has
lapsed pursuant to this Agreement shall be delivered to the Grantee upon request
following the date on which the restrictions on such Restricted Shares
lapse.
(c) Certificates
representing Restricted Shares in respect of which the Restricted Period lapsed
upon the Grantee’s death shall be delivered to the executors or administrators
of the Grantee’s estate as soon as practicable following the receipt of proof of
the Grantee’s death satisfactory to the Company.
(d) Each
certificate representing Restricted Shares shall bear a legend in substantially
the following form or substance:
THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS AGAINST TRANSFER)
CONTAINED IN THE RESTRICTED STOCK AWARD AGREEMENT (THE “AGREEMENT”) BETWEEN THE
OWNER OF THE RESTRICTED STOCK REPRESENTED HEREBY AND EDUCATION REALTY TRUST,
INC. (THE “COMPANY”). THE RELEASE OF SUCH SHARES FROM SUCH TERMS AND
CONDITIONS SHALL BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
AND ALL OTHER APPLICABLE POLICIES AND PROCEDURES OF THE COMPANY, COPIES OF WHICH
ARE ON FILE AT THE COMPANY.
5. Effect of Lapse of
Restrictions. To the extent that the Restricted Period
applicable to any Restricted Shares shall have lapsed, the Grantee may receive,
hold, sell or otherwise dispose of such Shares free and clear of the
restrictions imposed under this Agreement upon compliance with applicable legal
requirements.
6. No Right to Continued
Employment. This Agreement shall not be construed as giving
the Grantee the right to be retained in the employ of the Company, and the
Company may at any time dismiss Grantee from employment, free from any liability
or any claim under this Agreement but subject to the terms of the Grantee’s
Executive Employment Agreement, if any.
7. Adjustments. The
Committee shall make equitable and proportionate adjustments in the terms and
conditions of, and the criteria included in, this Agreement in recognition of
unusual or nonrecurring events affecting the Company or the financial statements
of the Company or of changes in applicable laws, regulations, or accounting
principals or in the event the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under this
Agreement. The Committee is also authorized to adjust the award under
this Agreement to avoid unwarranted penalties or windfalls.
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8. Definitions. For
purposes of this Agreement, all initially capitalized words and phrases used in
this Agreement have the following meanings:
“Affiliate”
has the meaning set forth in Rule 12b-2 of the regulations promulgated under the
Exchange Act.
“Cause”
means the Grantee has (a) continually failed to substantially perform, or been
grossly negligent in the discharge of, his duties to the Company (in any case,
other than by reason of a Disability, physical or mental illness or analogous
condition); (b) been convicted of or pled nolo contendere to a
felony or a misdemeanor with respect to which fraud or dishonesty is a material
element; or (c) materially breached any material Company policy or agreement
with the Company.
“Change of
Control” shall mean the first of the following events to occur after the
effective date of this Agreement:
(a) any
Person or group of Persons together with its Affiliates, but excluding (i) the
Company or any of its subsidiaries, (ii) any employee benefit plans of the
Company or (iii) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes, directly or indirectly, the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding securities (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company);
(b) the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the effective date of this
Agreement, constitute the Board and any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company’s stockholders was approved
or recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the effective date of this
Agreement or whose appointment, election or nomination for election was
previously so approved or recommended;
(c) the
consummation of a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation or entity
regardless of which entity is the survivor, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving entity)
more than fifty percent (50%) of the combined voting power of the voting
securities of the Company, such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation;
(d) the
stockholders of the Company approve a plan of complete liquidation or winding-up
of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets;
or
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(e) the
occurrence of any transaction or series of transactions deemed by the Board to
constitute a change in control of the Company.
Notwithstanding
the foregoing, (i) a Change of Control shall not be deemed to have occurred by
virtue of the consummation of any transaction or series of integrated
transactions immediately following which the holders of the common stock of the
Company immediately prior to such transaction or series of transactions continue
to have substantially the same proportionate ownership in an entity which owns
all or substantially all of the assets of the Company immediately following such
transaction or series of transactions, and (ii) a Change of Control shall not
occur for purposes of this Agreement as a result of any primary or secondary
offering of Company common stock to the general public through a registration
statement filed with the Securities and Exchange Commission.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Disability”
means a physical or mental condition entitling the Grantee to benefits under the
applicable long-term disability plan of the Company or any of its subsidiaries,
or if no such plan exists, a “permanent and total disability” (within the
meaning of Section 22(e)(3) of the Code) or as determined by the Company in
accordance with applicable laws.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“Good
Reason” means (a) an adverse diminution in Grantee’s title, duties or
responsibilities (provided, however, that a requirement to utilize skills in
addition to those utilized in Grantee’s current position, and/or a change in
title and/or direct reports to reflect the organizational structure of the
successor entity following a Change of Control, shall not in and of itself be
considered an “adverse diminution” as contemplated by this subsection (a)); (b)
a reduction of ten percent (10%) or more in Grantee’s annual base salary; (c) a
reduction of ten percent (10%) or more in Grantee’s annual target bonus
opportunity (including the failure to pay any bonus earned for any year in which
a Change of Control occurs pursuant to the terms of any applicable plan or
arrangement in effect prior to such Change of Control); or (d) the relocation of
Grantee’s principal place of employment to a location more than fifty (50) miles
from Grantee’s principal place of employment, except for required travel on the
Company’s business to an extent substantially consistent with Grantee’s
historical business travel obligations. Grantee’s continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any act or failure to act constituting Good Reason hereunder, provided that
Grantee provides the Company with a written notice of resignation within ninety
(90) days following the occurrence of the event constituting Good Reason and the
Company shall have failed to remedy such act or omission within thirty (30) days
following its receipt of such notice.
“Person”
shall mean a “person” as defined in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (a) the Company (or any subsidiary thereof), (b) a trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, (c) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (d) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company.
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9. Amendment to
Award. Subject to the restrictions contained in this
Agreement, the Committee may waive any conditions or rights under, amend any
terms of, or alter, suspend, discontinue, cancel or terminate this Agreement,
prospectively or retroactively; provided that any such waiver, amendment,
alteration, suspension, discontinuance, cancellation or termination that would
adversely affect the rights of the Grantee or any holder or beneficiary of this
Agreement shall not to that extent be effective without the consent of the
Grantee, holder or beneficiary affected.
10. Withholding of
Taxes. If the Grantee makes an election under Section 83(b) of
the Code with respect to award made under this Agreement, the award made
pursuant to this Agreement shall be conditioned upon the prompt payment to the
Company of any applicable withholding obligations or withholding taxes by the
Grantee (“Withholding
Taxes”). Failure by the Grantee to pay such Withholding Taxes
will render this Agreement and the award granted hereunder null and void ab initio and the Restricted
Shares granted hereunder will be immediately cancelled. If the
Grantee does not make an election under Section 83(b) of the Code with respect
to the award, upon the lapse of the Restricted Period with respect to any
portion of Restricted Shares (or property distributed with respect thereto), the
Company shall satisfy the required Withholding Taxes as set forth by Internal
Revenue Service guidelines for the employer’s minimum statutory withholding with
respect to Grantee and issue vested shares to the Grantee without
restriction. The Company shall satisfy the required Withholding Taxes
by withholding from the Shares included in the Award that number of whole shares
necessary to satisfy such taxes as of the date the restrictions lapse with
respect to such Shares based on the fair market value of the
Shares.
11. Administration. Subject
to applicable law, all designations, determinations, interpretations, and other
decisions under or with respect to this Agreement or any Award shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive and binding upon all persons.
12. Severability. If
any provision of this Agreement is, or becomes, or is deemed to be invalid,
illegal, or unenforceable in any jurisdiction or as to any Person, or would
disqualify this Agreement under any laws deemed applicable by the Committee,
such provision shall be construed or deemed amended to conform to the applicable
laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of this
Agreement, such provision shall be stricken as to such jurisdiction, Person, and
the remainder of this Agreement shall remain in full force and
effect.
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13. Notices. All
notices required to be given under this Agreement shall be deemed to be received
if delivered or mailed as provided for herein, to the parties at the following
addresses, or to such other address as either party may provide in writing from
time to time.
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To
the Company:
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To
the Grantee:
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000
Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000-0000
Attn: Corporate
Secretary
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The
address then maintained with respect to the Grantee in the Company’s
records.
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14. Governing
Law. The validity, construction and effect of this Agreement
shall be determined in accordance with the laws of the State of Maryland without
giving effect to conflicts of laws principles.
15. Successors in
Interest. This Agreement shall inure to the benefit of and be
binding upon any successor to the Company. This Agreement shall inure
to the benefit of the Grantee’s legal representatives. All
obligations imposed upon the Grantee and all rights granted to the Company under
this Agreement shall be binding upon the Grantee’s heirs, executors,
administrators and successors.
16. Resolution of
Disputes. Any dispute or disagreement which may arise under,
or as a result of, or in any way related to, the interpretation, construction or
application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding
and conclusive on the Grantee and the Company for all purposes.
(remainder
of page left blank intentionally)
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IN WITNESS WHEREOF, the
parties have caused this Restricted Stock Award Agreement to be duly executed
effective as of the day and year first above written.
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By:
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/s/ Xxxx X. Xxxxx
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Name:
Xxxx X. Xxxxx
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Title:
Chairman of the Board of Directors
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GRANTEE:
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/s/ Xxxxxxx X.
Xxxxxxxx
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Xxxxxxx
X. Xxxxxxxx
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