EDUCATION REALTY TRUST, INC. RESTRICTED STOCK UNIT AWARD AGREEMENT (2011 LTIP — Performance Vested)
Exhibit
10.8
(2011
LTIP — Performance Vested)
THIS
RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”)
is made and entered into as of the 1st day of January 2011 between Education
Realty Trust, Inc., a Maryland corporation (together with its subsidiaries, the
“Company”),
and ______________________ (the Grantee”). Capitalized
terms not otherwise defined herein shall have the meaning ascribed to such terms
in the Education Realty Trust, Inc. 2011 Long-Term Incentive Plan (the “LTIP”).
WHEREAS,
awards granted under the LTIP shall be issued pursuant to the Company’s 2004
Incentive Plan, as amended from time to time (the “2004
Incentive Plan”);
and
WHEREAS,
pursuant to the LTIP, the Committee has approved an award for performance-vested
restricted stock units 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 Units; Eligible Shares.
(a)
The Company hereby grants to the Grantee an award (the “Award”) of
_____________ Restricted
Stock Units on the terms and conditions set forth in this Agreement and as
otherwise provided in the LTIP (the “RSUs”).
(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 Section 2
hereof.
(c) Prior
to the Determination Date (as defined below), no dividend equivalents shall be
paid or payable with respect to the RSUs covered by this Award, and the Grantee
shall not be entitled to voting rights with respect to the RSUs covered by this
Award.
(d) Upon
the completion of the Performance Period set forth in the LTIP and the
Committee’s determination of the achievement of the performance targets set
forth on Schedule
A of the LTIP (the “Determination
Date”), the number of RSUs granted hereby shall be immediately reduced to
equal the number of Eligible Shares determined in accordance with the
LTIP. Grantee shall have no further rights with respect to any RSUs
in excess of the Eligible Shares, and such excess number shall be deemed
cancelled for purposes of the 2004 Incentive Plan.
(e) Each
Eligible Share equals one share of the Company’s common stock, $.01 par value
per share (“Common
Shares”), and shall be entitled to voting and dividend rights from the
date of issuance after the Determination Date.
2.
Terms; Restricted
Period.
(a) Except
as provided herein and subject to such other exceptions as may be determined by
the Committee in its sole and absolute discretion, the “Restricted Period” for
the RSUs granted herein shall expire on the Determination Date with respect to
RSUs that become Eligible Shares, as determined by the Committee on such
Determination Date. After the Determination Date, any RSUs that are not Eligible
Shares shall be forfeited. None of the RSUs may be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered or disposed of during
the Restricted Period for the RSUs.
(b) Except
as set forth below or as the Committee may otherwise determine in its sole and
absolute discretion, termination of a Grantee’s employment prior to the end of
the Performance Period shall result in the forfeiture of all RSUs granted
hereunder by the Grantee, and no payments shall be made with respect
thereto. Notwithstanding the foregoing, if Grantee’s employment is
terminated prior to the end of the Performance Period as a result of Grantee’s
death or Disability, the Committee shall determine the number of RSUs that will
convert to Eligible Shares by (i) applying the performance criteria set forth in
the LTIP using the effective date of the Disability (to be determined by the
Committee in it sole and absolute discretion) or the date of death, as
applicable, and by appropriately and proportionately adjusting the performance
criteria for such shortened Performance Period and (ii) multiplying the number
of Eligible Shares so determined by .3333 if the death or Disability occurs in
2011, .6667 if the if the death or Disability occurs in 2012, and 1 if the if
the death or Disability occurs in 2013 (rounding the resulting number of
Eligible Shares to the nearest whole number) and the Restricted Period for such
Eligible Shares shall terminate.
(c) If
a Change of Control (as such term is defined in Section 10 of the
LTIP) occurs prior to the end of the Performance Period, the Committee shall
determine the number of RSUs that will convert to Eligible Shares by (i)
applying the performance criteria set forth in the LTIP using the effective date
of the Change of Control as the end of the Performance Period, and by
appropriately and proportionately adjusting the performance criteria for such
shortened Performance Period, and (ii) multiplying the number of Eligible Shares
so determined by .3333 if the Change of Control occurs in 2011, .6667 if the
Change of Control occurs in 2012, and 1 if the Change of Control occurs in 2013
(rounding the resulting number of Eligible Shares to the nearest whole
number).
3.
Settlement. Settlement
of an Eligible Share shall be made within 30 days (with the date of payment
selected by the Company in its sole discretion) of the expiration of the
Restricted Period. Settlement of Eligible Shares pursuant to this
Award shall be made through the issuance to the Grantee (or to the executors or
administrators of Grantee’s estate, after the Company’s receipt of notification
of Grantee’s death, as the case may be) of a stock certificate for a number of
Common Shares equal to the number of Eligible Shares to be
settled. Following receipt of such Common Shares, the Grantee may
receive, hold, sell or otherwise dispose of such Common Shares free and clear of
the restrictions imposed under the LTIP and this Agreement.
4.
No Right to Continued
Employment. This Agreement shall not be construed as giving
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 the LTIP but subject to the terms of the Grantee’s Employment
Agreement, if any.
5.
Adjustments. The
Committee shall make equitable and proportionate adjustments (consistent with
Sections 162(m) and 409A of the Code and other applicable Sections therein) in
the terms and conditions of, and the criteria included in, this Award in
recognition of the events described in Section 10 of the
2004 Incentive Plan. In addition, the Committee may appropriately
adjust any evaluation of performance under criteria set forth in the LTIP and
Schedule A thereto to exclude any of the following events that occurs during a
Performance Period: (i) asset impairments or write-downs, (ii) litigation or
claim judgments or settlements, (iii) the effect of changes in tax law,
accounting principles or other such laws or provisions affecting reported
results, (iv) accruals for reorganization and restructuring programs, (v) any
extraordinary non-recurring items as described in Accounting Principles Board
Opinion No. 30 and/or in management’s discussion and analysis of financial
condition and results of operations appearing in the Company’s annual report to
shareholders for the applicable year and (vi) the effect of adverse federal,
governmental or regulatory action, or delays in federal, governmental or
regulatory action; provided that the Committee commits to make any such
adjustments within the 90 day period set forth in Section 14.3 of the
2004 Incentive Plan. Notwithstanding the foregoing, the Committee
shall not have the discretion to increase the amounts payable under this Award
if the Participant is a Covered Officer (as defined in Section 10 of the
LTIP) in manner that is inconsistent with Section 162(m) of the
Code.
2
6.
Amendment to
Award. Subject to the restrictions contained in the 2004
Incentive Plan and the LTIP, the Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate
the Award (consistent with Sections 162(m) and 409A of the Code and other
applicable Sections therein), 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 the Award shall not to that extent be effective without the
consent of the Grantee, holder or beneficiary affected.
7.
Withholding of
Taxes. Upon the lapse of the Restricted Period and the
issuance of Common Shares with respect to any portion of this Award, the Company
shall satisfy any applicable withholding obligations or withholding taxes
(“Withholding
Taxes”) as set forth by Internal Revenue Service guidelines for the
employer’s minimum statutory withholding with respect to Grantee and issue
Common Shares to the Grantee without restriction. As a condition to
receiving settlement of the RSUs hereunder, the Company may require Grantee to
pay to the Company, and the Company shall have the right and is hereby
authorized to withhold from any payments hereunder or from any compensation or
other amount owing to Grantee, an amount of cash necessary for the Company to
satisfy any Withholding Taxes in respect of this Award. In its sole
and absolute discretion, the Committee may satisfy the required Withholding
Taxes by withholding from the Common Shares otherwise issuable pursuant to
settlement of the Award that number of whole shares necessary to satisfy
Withholding Taxes with respect to such shares based on the Fair Market Value (as
defined in Section
2.13 of the 2004 Incentive Plan) of the Common Shares as of the date the
Restricted Period ends.
8.
LTIP
Governs. The Grantee hereby acknowledges receipt of a copy of
the LTIP and agrees to be bound by all the terms and provisions
thereof. The terms of this Agreement are governed by the terms of the
LTIP.
9.
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 the Award,
or would disqualify the Award 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 the LTIP or
the Award, such provision shall be stricken as to such jurisdiction, person or
Award, and the remainder of the LTIP and Award shall remain in full force and
effect.
10.
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.
|
To
the Company:
|
To
the Grantee:
|
|
|
000
Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000-0000
Attn: Corporate
Secretary
|
|
The
address then maintained with respect to the Grantee in the Company’s
records.
|
3
11.
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.
12.
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.
13.
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 in its sole and absolute
discretion. Any determination made hereunder shall be final, binding
and conclusive on the Grantee and the Company for all purposes.
Signature
Page Follows
4
IN WITNESS WHEREOF, the parties have
caused this Restricted Stock Unit Award Agreement to be duly executed effective
as of the day and year first above written.
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
GRANTEE:
|
||
|
Name:
|
||
Signature
Page to Restricted Stock Unit Award Agreement
