EDUCATION REALTY TRUST, INC. RESTRICTED STOCK AWARD AGREEMENT (2011 LTIP — Time Vested)
Exhibit
10.7
(2011
LTIP — Time Vested)
THIS
RESTRICTED STOCK 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 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
Shares.
(a)
The Company hereby grants to the Grantee an award (the “Award”)
of_________ shares of the Company’s Common Stock on the terms and conditions set
forth in this Agreement and as otherwise provided in the LTIP (the “Restricted
Shares”).
(b) The
Grantee’s rights with respect to the Award shall remain forfeitable at all times
prior to the dates on which the Restricted Shares vest in accordance with Section 2 and Section 3 hereof (the
“Restricted
Period”).
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 sole and absolute discretion, one-third (1/3) of the
Restricted Shares granted herein shall vest annually on January 1, 2012, 2013
and 2014, 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 vesting dates.
(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
Restricted 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 provided herein or 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) in connection with the following events:
(i) Grantee’s
employment is terminated (1) as a result of the Grantee’s death or Disability,
(2) by the Company without Cause, or (3) by the Grantee for Good Reason;
or
(ii) a
Change of Control occurs.
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 or in the LTIP 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 the LTIP 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 Section 4(b) and
Section 4(c)
hereof or their reversion to the Company as set forth in Section 2(b)
hereof.
(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
GRANTEE 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 LTIP AND
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 the LTIP and this Agreement upon compliance with
applicable legal requirements.
6. 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.
7. Adjustments. The
Committee shall make equitable and proportionate adjustments 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.
8. Amendment to
Award. Subject to the restrictions contained in the LTIP, the
Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate the Award, 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.
9. Withholding of
Taxes. If the Grantee makes an election under Section 83(b) of
the Code with respect to the Award, 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 shall 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 Committee may 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 (as defined in Section 2.13 of the
2004 Incentive Plan) of the shares.
10. 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.
11. 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 LTIP or 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.
12. Notices. All
notices required to be given under this Grant 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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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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13. 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.
14. 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.
15. 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
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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Name:
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Title:
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GRANTEE:
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Name:
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Signature
Page to Restricted Stock Award Agreement