EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
EDUCATION REALTY TRUST, INC.
AND
▇▇▇▇ ▇. ▇▇▇▇▇
DECEMBER 6, 2004
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between Education
Realty Trust, Inc. (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇ ("You" or "Your")
(collectively, the "Parties"), is effective as of the date of the consummation
of the Company's initial public offering pursuant to an effective registration
statement on Form S-11 (the "Effective Date"). Unless otherwise indicated, all
capitalized terms used in this Agreement are defined in the "Definitions"
section attached as Exhibit A. Exhibit A is incorporated by reference and is
included in the definition of "Agreement."
WHEREAS, the Company desires to employ You as President and Chief
Executive Officer, and You desire to accept said employment by the Company;
WHEREAS, Your position is a position of trust and responsibility with
access to Confidential Information, Trade Secrets, and information concerning
employees and customers of the Company;
WHEREAS, the Trade Secrets and Confidential Information, and the
relationship between the Company and each of its employees and customers are
valuable assets of the Company and may not be used for any purpose other than
the Company's Business;
WHEREAS, You acknowledge that if You were to perform services for a
competitor during the Restrictive Period, it would be inevitable that You would
disclose the Company's Trade Secrets and Confidential Information;
WHEREAS, the Company has agreed to employ You in exchange for Your
compliance with the terms of this Agreement;
WHEREAS, the Company and You desire to express the terms and conditions
of Your employment in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Employment and Duties
A. Position. The Company shall employ You as President
and Chief Executive Officer.
B. Duties. You agree to perform all duties that are
consistent with Your position and that may otherwise be assigned to You
by the Company from time to time.
C. Reporting. You shall report directly to the Board of
Directors (the "Board") of the Company or any other executive
designated by the Board from time to time.
D. Devotion of Time. You agree to (i) devote all
necessary working time required of Your position, (ii) devote Your best
efforts, skill, and energies to promote and advance the business and/or
interests of the Company, and (iii) fully perform Your obligations
under this Agreement. During Your employment, You shall not render
services to any other entity, regardless of whether You receive
compensation, without the prior written consent of the Company. You
may, however, (i) engage in community, charitable, and educational
activities, (ii) manage Your personal investments, (iii) continue
working with ▇▇▇▇▇ & ▇'▇▇▇▇, Inc.,
provided, however, that such work does not compete with the Company and
does not involve student housing whatsoever, and (iv) with the prior
written consent of the Company, serve on corporate boards or
committees, provided that such activities do not conflict or interfere
with the performance of Your obligations under this Agreement or
conflict with the interests of the Company.
E. Company Policies. You agree to comply with the
policies and procedures of the Company as may be adopted and changed
from time to time, including those described in the Company's employee
handbook. If this Agreement conflicts with such policies or procedures,
this Agreement will control.
F. Fiduciary Duties. As an officer of the Company, You
owe a duty of care and loyalty to the Company, as well as a duty to
perform Your Duties in a manner that is in the best interests of the
Company. You owe such duties to the Company in addition to duties
imposed upon You under applicable law.
2. Term. The term of this Agreement shall be for a period of 3
years, beginning on the Effective Date and ending on the third anniversary of
the Effective Date (the "Employment Period"). Upon expiration of the Employment
Period, this Agreement will automatically renew for a one-year period (each a
"Renewal Period"), unless either Party notifies the other Party, in writing, at
least sixty (60) days prior to the end of the Employment Period or the Renewal
Period that the Agreement will not be renewed. If this Agreement is renewed in
accordance with this Section, each Renewal Period shall be included in the
definition of "Employment Period" for purposes of this Agreement. If this
Agreement is not renewed in accordance with this Section, Your employment will
either (a) terminate, or (b) convert to an at-will relationship, meaning that
You may terminate your employment with the Company at any time and for any
reason whatsoever simply by notifying the Company, and the Company may terminate
your employment at any time with or without cause or advance notice. If this
Agreement is not renewed and Your employment converts to an at-will
relationship, then (a) the period in which You continue to be employed with the
Company shall not be included in the definition of "Employment Period" for
purposes of this Agreement, and (b) this Agreement will no longer be in effect;
provided, however, that the restrictive covenants and all post-termination
obligations contained in this Agreement shall survive termination of this
Agreement.
3. Compensation.
A. Base Salary. During the Employment Period, the
Company will pay You an annual base salary ("Base Salary") of
$300,000.00, minus applicable withholdings, in accordance with the
Company's normal payroll practices. Your Base Salary will be increased
annually at the discretion of the Compensation Committee of the Board
(the "Committee") based upon Your performance and the Company's
performance; provided, however, that the annual increase in Your Base
Salary shall not be less than the percentage increase in the applicable
Consumer Price Index published by the U.S. Bureau of Labor Statistics.
B. Bonus. During the Employment Period, You will receive
an annual bonus of up to 100% of Your Base Salary only if, as
determined by the Committee in its sole discretion, You meet certain
criteria established from year to year by the Committee (the "Bonus").
You will not receive any Bonus if You do not meet such criteria. In
addition, You will not receive any Bonus if, for any reason, You are
not employed on the date on which the Bonus is to be paid. The Bonus
will be subject to all applicable withholdings and will be paid as soon
as reasonably practical after the end of the calendar year.
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C. Restricted Stock. As soon as possible after execution
of this Agreement, the Company will request that the Committee grant
You 45,000 restricted shares of the Company's common stock (the
"Restricted Stock") pursuant to the terms and conditions of the
Restricted Stock Grant Certificate (the "Restricted Stock Certificate")
to be prepared by the Company in accordance with the Stock Incentive
Plan. The Restricted Stock shall vest pursuant to the terms of the
Restricted Stock Certificate.
D. Profits Interest Units. As soon as possible after
execution of this Agreement, the Company will request that the
Committee cause Education Realty Limited Partner LLC, a Delaware
limited liability company controlled by the Company (the "Profits
Interest LLC"), to grant to You Units in Profits Interest LLC that will
result in your receiving with respect to such Units in Profits Interest
LLC current distributions that are equivalent to those distributions
that would be received by a holder of 30,000 Common Partnership Units
in Education Realty Operating Partnership, LP, a Delaware limited
partnership (the "UPREIT"), pursuant to the terms and conditions of the
operating agreement of the Profits Interest LLC, as such agreement may
be amended, restated and supplemented from time to time (the "Profits
Interest LLC Agreement"). A condition to Your receipt of such interest
in the Profits Interest LLC shall be the execution by You of the
Profits Interest LLC Agreement.
E. Benefits Plans. During the Employment Period, You are
eligible to participate in all benefit plans in effect for executives
and employees of the Company, subject to the terms and conditions of
such plans.
F. Vacation. During the Employment Period, You are
entitled to 4 weeks of paid vacation per calendar year. All vacation
must be pre-approved by the Board.
G. Executive Benefits. During the Employment Period, You
will be entitled to receive all other fringe benefits available to
executives of the Company.
H. Business Expenses. During the Employment Period, the
Company will reimburse You for all approved business expenses incurred
by You in the performance of Your duties under this Agreement in
accordance with the policies and procedures of the Company.
4. Termination. This Agreement may be terminated by any of the
following events:
A. Expiration of the Employment Period unless
renewed/extended as set forth above.
B. Mutual written agreement between You and the Company
at any time.
C. Your death.
D. Your disability which renders You unable to perform
the essential functions of Your job even with reasonable accommodation,
as determined in the Company's sole discretion.
E. For Cause, which shall mean a termination by the
Company, upon the action of the Board, because of any one of the
following events:
(i) Your insubordination;
(ii) Your breach of this Agreement;
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(iii) Any act or omission by You which injures, or is
likely to injure, the Company or the business
reputation of the Company;
(iv) Your dishonesty, fraud, malfeasance, negligence or
misconduct;
(v) Your failure to (a) satisfactorily perform Your
duties under this Agreement, (b) follow the direction
of any individual to whom You report, (c) abide by
the policies, procedures, and rules of the Company,
or (d) abide by laws applicable to You in Your
capacity as an employee, executive, or officer of the
Company;
(vi) Your arrest, indictment for, conviction of, or entry
of a plea of guilty or no contest to, a felony or
crime involving moral turpitude;
(vii) Your resignation unless such resignation is based
upon Good Reason; or
(viii) Your refusal to perform duties unless such refusal is
based upon Good Reason.
F. Your resignation for Good Reason.
G. Without Cause, which shall mean any termination of
employment by the Company which is not defined in sub-sections A-F
above.
5. Company's Post-Termination Obligations
A. If this Agreement terminates for the reasons set
forth in Sections 4.A, B, C, D, or E above, then the Company will pay
You all accrued but unpaid wages, based on Your then current Base
Salary, through the termination date. The Company shall have no other
obligations to You, including under any provision of this Agreement,
Company policy, or otherwise; however, You shall continue to be bound
by Section 7 and all other post-termination obligations to which You
are subject, including, but not limited to, the obligations contained
in this Agreement.
B. If this Agreement terminates for any of the reasons
set forth in Sections 4.F or G above, then the Company will pay You (i)
all accrued but unpaid wages through the termination date, based on
Your then current Base Salary; (ii) a payment for all accrued but
unpaid vacation through Your termination date, based on Your then
current Base Salary; (iii) a payment for all approved, but
unreimbursed, business expenses, provided that a request for
reimbursement of business expenses is submitted in accordance with the
Company's policies and submitted within five (5) business days of Your
termination date; (iv) a payment for all earned and accrued but unpaid
bonuses; and (v) payment of any COBRA continuation coverage premiums
required for the coverage of You and Your eligible dependents under the
Company's major medical group health plan for a period of up to 18
months (or, if less, the period that You and Your eligible dependents
are entitled to such COBRA continuation coverage).(1) In addition, the
Company will continue to pay You Your then current Base Salary for
either the remainder of the initial Employment Period (excluding any
Renewal Period), to be paid in accordance with the Company's regular
payroll practices, or for a period of twelve (12) months, to be paid
over a period of 12 months in accordance with the Company's regular
payroll practices, whichever is
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(1) You and Your eligible dependents shall be solely responsible for
any requirements which must be satisfied or actions that must be taken in order
to obtain such COBRA continuation coverage other than the payment of COBRA
premiums.
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greater. Except as set forth in this Section 5.B, the Company shall
have no other obligations to You. The Company's obligation to provide
the payments set forth in this Section 5.B above shall be conditioned
upon the following (the "Separation Conditions"):
(i) Your execution and non-revocation of a Separation &
Release Agreement in a form prepared by the Company
by which You release the Company from any and all
liability and claims of any kind; and
(ii) Your compliance with the restrictive covenants
(Section 7) and all post-termination obligations,
including, but not limited, the obligations contained
in this Agreement.
C. If You do not execute an effective Separation &
Release Agreement as set forth above, the Company will not provide any
payments or benefits to You under Section 5.B. The Company's obligation
to make the separation payments set forth in Section 5.B shall
terminate immediately upon any breach by You of any post-termination
obligations to which You are subject.
6. Change of Control. Notwithstanding the provisions of Section 5,
if, within one (1) year following a Change of Control, the Company terminates
Your employment without Cause, as defined in Section 4.G, or You resign for Good
Reason, then the Company will pay You (i) all accrued but unpaid wages through
the termination date, based on Your then current Base Salary; (ii) a separation
payment equal to 3x the sum of (A) Your then current Base Salary, and (B) Your
average Bonus for the two (2) year period prior to Change of Control or the time
period within which the Company was in existence prior to Change of Control,
whichever is shorter, which separation payment shall be paid within thirty (30)
days of Your termination date; (iii) a payment for all earned and accrued but
unpaid bonuses; and (iv) payment of any COBRA continuation coverage premiums
required for the coverage of You and Your eligible dependents under the
Company's major medical group health plan for a period of up to 18 months (or,
if less, the period that You and Your eligible dependents are entitled to such
COBRA continuation coverage).(2) The payments and benefits set forth in this
Section 6 shall be provided to You in lieu of any benefits to which You may be
entitled to receive under Section 5.B above; provided, however, that Your right
to receive the separation payments and benefits set forth in this Section 6
shall be subject to the Separation Conditions set forth in Section 5.B above.
The separation payments and benefits set forth in this Section 6 shall
constitute full satisfaction of the Company's obligations under this Agreement,
any Company policy, or otherwise.
7. Your Post-Termination Obligations.
A. Return of Materials. Upon the termination of Your
employment for any reason, You will return to the Company all of the
Company's property, including, but not limited to, keys, passcards,
credit cards, customer lists, rolodexes, tapes, software, computer
files, marketing and sales materials, and any other property, record,
document or piece of equipment belonging to the Company.
B. Set-Off. If You have any outstanding obligations to
the Company upon the termination of Your employment for any reason, You
hereby authorize the Company to deduct any amounts owed to the Company
from Your final paycheck and/or any amounts that would otherwise be due
to You, including under Sections 5 or 6 above.
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(2) Id.
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C. Non-Disparagement. During Your employment and upon
the termination of Your employment with the Company for any reason, You
will not make any disparaging or defamatory statements, whether written
or verbal, regarding the Company.
D. Restrictive Covenants. You acknowledge that the
restrictions contained in this Section 7 are reasonable and necessary
to protect the legitimate business interests of the Company, and will
not impair or infringe upon Your right to work or earn a living after
Your employment with the Company ends.
(i) Trade Secrets and Confidential Information. You
represent and warrant that: (a) You are not subject
to any legal or contractual duty or agreement that
would prevent or prohibit You from performing the
duties contemplated by this Agreement or otherwise
complying with this Agreement, and (b) You are not in
breach of any legal or contractual duty or agreement,
including any agreement concerning trade secrets or
confidential information owned by any other party.
You agree that You will not: (a) use, disclose, or
reverse engineer the Trade Secrets or the
Confidential Information for any purpose other than
the Company's Business, except as authorized in
writing by the Company; (b) during Your employment
with the Company, use, disclose, or reverse engineer
(1) any confidential information or trade secrets of
any former employer or third party, or (2) any works
of authorship developed in whole or in part by You
during any former employment or for any other party,
unless authorized in writing by the former employer
or third party; or (c) upon Your resignation or
termination (1) retain Trade Secrets or Confidential
Information, including any copies existing in any
form (including electronic form), which are in Your
possession or control, or (2) destroy, delete, or
alter the Trade Secrets or Confidential Information
without the Company's written consent.
The obligations under this Section 7 shall remain in
effect as long as the information constitutes a trade
secret or Confidential Information under applicable
law. The confidentiality, property, and proprietary
rights protections available in this Agreement are in
addition to, and not exclusive of, any and all other
rights to which the Company is entitled under federal
and state law, including, but not limited to, rights
provided under copyright laws, trade secret and
confidential information laws, and laws concerning
fiduciary duties.
(ii) Non-Competition. During the Restricted Period, You
agree that You shall not perform the Duties,
individually or on behalf of any person, firm,
partnership, association, business organization,
corporation or entity engaged in the Business within
the Territory. The Parties agree and acknowledge
that: (a) the periods of restriction and Territory of
restriction contained in this Agreement are fair and
reasonable in that they are reasonably required for
the protection of the Company and that the Territory
is the area in which You perform services for
Company; and (b) by having access to information
concerning employees and actual or prospective
Customers of Company, You shall obtain a competitive
advantage as to the Company.
(iii) Non-Solicitation of Customers. During the Restricted
Period, You will not, directly or indirectly, solicit
any Customer of the Company for the purpose of
providing any goods or services competitive with the
Business within the
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Territory. The restrictions set forth in this Section
7 apply only to the Customers with whom You had
Contact.
(iv) Non-Recruit of Employees. During the Restricted
Period, You will not, directly or indirectly,
solicit, recruit or induce any Employee to (a)
terminate his or her employment relationship with the
Company or (b) work for any other person or entity
engaged in the Business.
E. Post-Employment Disclosure. During the Restricted
Period, You shall provide a copy of this Agreement to persons and/or
entities for whom You work or consult as an owner, partner, joint
venturer, employee or independent contractor. If, during the Restricted
Period, You work or consult for another person or entity as an owner,
partner, joint venturer, employee or independent contractor, You shall
provide the Company with such person or entity's name, the nature of
such person or entity's business, Your job title, and a general
description of the services You will provide.
F. Resignation. Upon the termination of Your employment
with the Company for any reason and upon the request of the Company,
You shall deliver to the Company a written resignation from all
offices, membership on the Board, and fiduciary positions in which You
serve for the Company and each of its subsidiaries and affiliates.
8. Work Product. Your employment duties may include inventing in
areas directly or indirectly related to the Business of the Company or to a line
of business that the Company may reasonably be interested in pursuing. All Work
Product shall constitute work made for hire. If (a) any of the Work Product may
not be considered work made for hire, or (b) ownership of all right, title, and
interest to the legal rights in and to the Work Product will not vest
exclusively in the Company, then, without further consideration, You assign all
presently-existing Work Product to the Company, and agree to assign, and
automatically assign, all future Work Product to the Company.
The Company will have the right to obtain, and hold in its own name,
copyrights, patents, design registrations, proprietary database rights,
trademarks, rights of publicity, and any other protection available in the Work
Product. At the Company's request, You agree to perform, during or after Your
employment with the Company, any acts to transfer, perfect and defend the
Company's ownership of the Work Product, including, but not limited to: (a)
executing all documents (including a formal assignment to the Company) necessary
for filing an application or registration for protection of the Work Product (an
"Application"), (b) explaining the nature of the Work Product to persons
designated by the Company, (c) reviewing Applications and other related papers,
or (d) providing any other assistance reasonably required for the orderly
prosecution of Applications.
You agree to provide the Company with a written description of any Work
Product in which You are involved (solely or jointly with others) and the
circumstances attendant to the creation sufficient of such Work Product.
9. License. During Your employment and after Your employment
with the Company ends, You grant to the Company an irrevocable, nonexclusive,
worldwide, royalty-free license to: (i) make, use, sell, copy, perform, display,
distribute, or otherwise utilize copies of the Licensed Materials, (ii) prepare,
use and distribute derivative works based upon the Licensed Materials, and (ii)
authorize others to do the same. You shall notify the Company in writing of any
Licensed Materials You deliver to the Company.
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10. Release. During Your employment and after Your employment with
the Company ends, You consent to the Company's use of Your image, likeness,
voice, or other characteristics in the Company's products or services. You
release the Company from any causes of action that You have or may have arising
out of the use, distribution, adaptation, reproduction, broadcast, or exhibition
of such characteristics.
11. Injunctive Relief. You agree that if You breach Section 7 of
this Agreement: (a) the Company would suffer irreparable harm; (b) it would be
difficult to determine damages, and money damages alone would be an inadequate
remedy for the injuries suffered by the Company, and (c) if the Company seeks
injunctive relief to enforce this Agreement, You will waive and will not (i)
assert any defense that the Company has an adequate remedy at law with respect
to the breach, (ii) require that the Company submit proof of the economic value
of any Trade Secret or Confidential Information, or (iii) require the Company to
post a bond or any other security. Nothing contained in this Agreement shall
limit the Company's right to any other remedies at law or in equity.
12. Payment of Defense Costs. If You are individually named as a
defendant in a lawsuit relating to or arising out of the performance of Your
duties for the Company pursuant to this Agreement, then the Company agrees to
pay the reasonable attorneys' fees and expenses You incur in defending such
lawsuit (the "Defense Costs"). The Company will not pay any damages or any other
sums or relief for which You are held liable. Payment of the Defense Costs shall
be the Company's only obligation under this Section. If You are held liable,
then You agree to reimburse the Company for all Defense Costs the Company paid
to You or on Your behalf. The Company's obligation under this Section shall not
apply to any claim or lawsuit brought by the Company against You.
13. Severability. The provisions of this Agreement are severable.
If any provision of this Agreement is determined to be unenforceable, in whole
or in part, then such provision shall be modified so as to be enforceable to the
maximum extent permitted by law. If such provision cannot be modified to be
enforceable, the provision shall be severed from this Agreement to the extent
unenforceable. The remaining provisions and any partially enforceable provisions
shall remain in full force and effect.
14. Attorneys' Fees. In the event of litigation relating to this
Agreement, the prevailing party shall be entitled to recover attorneys' fees and
costs of litigation in addition to all other remedies available at law or in
equity.
15. Waiver. Either Party's failure to enforce any provision of
this Agreement shall not act as a waiver of that or any other provision. Either
Party's waiver of any breach of this Agreement shall not act as a waiver of any
other breach.
16. Entire Agreement. This Agreement, including Exhibit A that is
incorporated by reference, constitutes the entire agreement between the Parties
concerning the subject matter of this Agreement. This Agreement supersedes any
prior communications, agreements or understandings, whether oral or written,
between the Parties relating to the subject matter of this Agreement. Other than
terms of this Agreement, no other representation, promise or agreement has been
made with You to cause You to sign this Agreement.
17. Amendments. This Agreement may not be amended or modified
except in writing signed by both Parties.
18. Successors and Assigns. This Agreement shall be assignable to,
and shall inure to the benefit of, the Company's successors and assigns,
including, without limitation, successors through merger, name change,
consolidation, or sale of a majority of the Company's stock or assets, and shall
be
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binding upon You. You shall not have the right to assign Your rights or
obligations under this Agreement. The covenants contained in Section 7 of this
Agreement shall survive cessation of Your employment with the Company,
regardless of who causes the cessation or the reason for cessation.
19. Governing Law. The laws of the State of Tennessee shall govern
this Agreement. If Tennessee's conflict of law rules would apply another state's
laws, the Parties agree that Tennessee law shall still govern.
20. No Strict Construction. If there is a dispute about the
language of this Agreement, the fact that one Party drafted the Agreement shall
not be used in its interpretation.
21. Notice. Whenever any notice is required, it shall be given
in writing addressed as follows:
To Company: Attention: Chief Financial Officer
Education Realty Trust, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Executive: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notice shall be deemed given and effective three (3) days after the
deposit in the U.S. mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
Party may change the address to which notices shall be delivered or mailed by
notifying the other party of such change in accordance with this Section.
22. Consent to Jurisdiction and Venue. You agree that any claim
arising out of or relating to this Agreement shall be brought in a state or
federal court of competent jurisdiction in Tennessee. You consent to the
personal jurisdiction of the state and/or federal courts located in Tennessee.
You waive (i) any objection to jurisdiction or venue, or (ii) any defense
claiming lack of jurisdiction or improper venue, in any action brought in such
courts.
23. AFFIRMATION. YOU acknowledge that YOU HAVE carefully read this
Agreement, YOU know and understand its terms and conditions, and YOU HAVE had
the opportunity to ask the Company any questions YOU may have had prior to
signing this Agreement.
24. Compliance with Code ss.409A. Notwithstanding any provision of
this Agreement to the contrary, it is the intent of the parties hereto that this
Agreement shall not create or provide for any "nonqualified deferred
compensation plan" (as defined in Code ss.409A(d)(1)) unless such "nonqualified
deferred compensation plan" shall meet the requirements of Code ss.409A(a)(2),
(3) and (4), and this Agreement and any plans, agreements or arrangements
between the parties shall be interpreted accordingly. If any "nonqualified
deferred compensation plan" created or provided for pursuant to this Agreement
shall fail to meet the requirements of Code ss.409A(a)(2), (3) or (4) due to a
term or provision of such "nonqualified deferred compensation plan" prior to
taking into account the provisions of this paragraph 24, such "nonqualified
deferred compensation plan" and its corresponding terms or provisions causing
such failure shall be deemed to be modified and shall be interpreted (1) so as
not to allow any distributions or payments to be made until one of the events
listed in Code ss.409A(a)(2)(A) have occurred,
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(2) so as not to allow any acceleration of the time or schedule of any payment
or distribution in accordance with Code ss.409A(a)(3), and (3) so that any
elections regarding deferrals, or the timing or form of distributions or
payments, shall comply with the provisions of Code ss.409A(a)(4). For example,
should this Agreement provide for a payment from a "nonqualified deferred
compensation plan" earlier than the occurrence of an event listed in Code
ss.409A(a)(2)(A), such payment shall not occur until the occurrence of an event
listed in Code ss.409A(a)(2)(A) notwithstanding any terms or provisions of any
document effectuating such "nonqualified deferred compensation plan" to the
contrary, and this Agreement shall be deemed to be modified accordingly.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective as of the Effective Date.
EDUCATION REALTY TRUST, INC.:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Executive Vice President/
Chief Financial Officer
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Date: 12/6/04
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▇▇▇▇ ▇. ▇▇▇▇▇:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Date: 12/6/04
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EXHIBIT A
DEFINITIONS
A. "Business" shall mean the business of owning and managing off-campus
student housing communities, providing third-party management services
for student housing communities, and providing third-party development
consulting services for student housing communities.
B. "Change of Control" means (i) the sale, transfer, or other disposition
of eighty percent (80%) or more of the aggregate value of the Company's
assets, as reasonably determined by the Board, or (ii) a sale of fifty
percent (50%) or more of the then outstanding voting stock of the
Company in a single transaction or a series of related transactions.
C. "Confidential Information" means (i) information of the Company, to the
extent not considered a Trade Secret under applicable law, that (a)
relates to the business of the Company, (b) possesses an element of
value to the Company, (c) is not generally known to the Company's
competitors, and (d) would damage the Company if disclosed, and (ii)
information of any third party provided to the Company which the
Company is obligated to treat as confidential. Confidential Information
includes, but is not limited to, (i) future business plans, (ii) the
composition, description, schematic or design of products, future
products or equipment of the Company, (iii) communication systems,
audio systems, system designs and related documentation, (iv)
advertising or marketing plans, (v) information regarding independent
contractors, employees, clients and customers of the Company, and (vi)
information concerning the Company's financial structure and methods
and procedures of operation. Confidential Information shall not include
any information that (i) is or becomes generally available to the
public other than as a result of an unauthorized disclosure, (ii) has
been independently developed and disclosed by others without violating
this Agreement or the legal rights of any party, or (iii) otherwise
enters the public domain through lawful means.
D. "Contact" means any interaction between You and a Customer which (i)
takes place in an effort to establish, maintain, and/or further a
business relationship on behalf of the Company, and (ii) occurs during
the last year of Your employment with the Company (or during Your
employment if employed less than a year).
E. "Customer" means any person or entity to whom the Company has sold its
products or services, or solicited to sell its products or services.
F. "Duties" means managing the day-to-day operations of the Company, which
includes, but is not limited to, the usual and customary duties of a
President and Chief Executive Officer of a public corporation.
G. "Employee" means any person who (i) is employed by the Company at the
time Your employment with the Company ends, (ii) was employed by the
Company during the last year of Your employment with the Company (or
during Your employment if employed less than a year), or (iii) is
employed by the Company during the Restricted Period.
H. "Good Reason" shall exist if (i) the Company, without Your written
consent, materially reduces Your then current title, duties or
responsibilities, provided, however, that the occurrence of the Change
of Control and the corresponding change in Your duties and
responsibilities one (1) or more year(s) after the Change of Control
shall not, by itself, be sufficient to qualify as Good Reason under
this clause, (ii) You provide written notice to the Company of such
action and
provide the Company with thirty (30) days to remedy such action (the
"Cure Period"), (iii) the Company fails to remedy such action within
the Cure Period, and (iv) You resign within ten (10) days of the
expiration of the Cure Period. Good Reason shall not include any
isolated, insubstantial or inadvertent action that (i) is not taken in
bad faith, and (ii) is remedied by the Company within the Cure Period.
I. "Licensed Materials" means any materials that You utilize for the
benefit of the Company, or deliver to the Company or the Company's
customers, which (i) do not constitute Work Product, (ii) are created
by You or of which You are otherwise in lawful possession, and (iii)
You may lawfully utilize for the benefit of, or distribute to, the
Company or the Company's customers.
J. "Restricted Period" means the time period during Your employment with
the Company, and for three years after Your employment with the Company
ends.
K. "Territory" means the states of Alabama, Arizona, California, Colorado,
Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland,
Michigan, Missouri, Mississippi, North Carolina, Ohio, Oklahoma,
Pennsylvania, South Carolina, Tennessee and Texas.
L. "Trade Secrets" means information of the Company, and its licensors,
suppliers, clients and customers, without regard to form, including,
but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or
a list of actual or potential customers or suppliers which is not
commonly known by or available to the public and which information (i)
derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
M. "Work Product" means (i) any data, databases, materials, documentation,
computer programs, inventions (whether or not patentable), designs,
and/or works of authorship, including but not limited to, discoveries,
ideas, concepts, properties, formulas, compositions, methods, programs,
procedures, systems, techniques, products, improvements, innovations,
writings, pictures, audio, video, images of You, and artistic works,
and (ii) any subject matter protected under patent, copyright,
proprietary database, trademark, trade secret, rights of publicity,
confidential information, or other property rights, including all
worldwide rights therein, that is or was conceived, created or
developed in whole or in part by You while employed by the Company and
that either (i) is created within the scope of Your employment, (ii) is
based on, results from, or is suggested by any work performed within
the scope of Your employment and is directly or indirectly related to
the Business of the Company or a line of business that the Company may
reasonably be interested in pursuing, (iii) has been or will be paid
for by the Company, or (iv) was created or improved in whole or in part
by using the Company's time, resources, data, facilities, or equipment.
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