**AMENDED AND RESTATED EMPLOYMENT AGREEMENT**THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) by and between**EDUCATION REALTY TRUST, INC.**, a Maryland corporation (the “Company”), and **PAUL O. BOWER**(“Executive” and, together with the Company, the “Parties”) is effective as ofOctober 29, 2008 (the “Effective Date”).**WHEREAS**, Executive has been and currently is engaged by the Company to serve as its **Presidentand Chief Executive Officer**;**WHEREAS**, Executive’s position is a position of trust and responsibility with access to TradeSecrets (defined below), Confidential Information (defined below) and information concerningEmployees (defined below) and Customers (defined below) of the Company;**WHEREAS**, Trade Secrets, Confidential Information and the relationships between the Company andeach of its Employees and Customers are valuable assets of the Company and may not be used for anypurpose other than the Company’s Business (defined below);**WHEREAS**, Executive acknowledges that if Executive were to perform services for a competitorduring the Restricted Period (defined below), it would be inevitable that Executive would disclosethe Company’s Trade Secrets and Confidential Information;**WHEREAS**, the Executive is currently employed by the Company pursuant to the terms of anemployment agreement between the Company and the Executive dated as of January 1, 2008 (the“Prior Agreement”);**WHEREAS**, the Company desires to continue such employment relationship and enter into thisAgreement, which will supersede the Prior Agreement and set forth the terms and conditions underwhich the Executive will continue to serve the Company;**WHEREAS**, the Executive wishes to continue his employment with the Company on the terms andconditions set forth herein; and**WHEREAS**, the Company has agreed to employ Executive in exchange for Executive’s compliancewith the terms of this Agreement.**NOW, THEREFORE**, for good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the Parties agree as follows:1. Definitions. For purposes of this Agreement, all initially capitalized words andphrases used in this Agreement have the following meanings:“Affiliate” shall mean, with respect to any individual or entity, any other individualor entity who, directly or indirectly through one or more intermediaries, controls, is controlledby or is under common control with such individual or entity.
 
 

 
“Agreement” shall have the meaning set forth in the introductory paragraph above.“Application” shall have the meaning set forth in Section 9.“Base Salary” shall have the meaning set forth in Section 4(a).“Board” shall mean the Board of Directors of the Company.“Bonus” shall have the meaning set forth in Section 4(b).“Business” shall mean the business of developing, owning and managing student housingcommunities, providing third-party management services for student housing communities andproviding third-party development consulting services for student housing communities.“Cause” shall mean that Executive has (a) continually failed to substantially perform,or been grossly negligent in the discharge of, his duties to the Company (in any case, other thanby reason of a Disability, physical or mental illness or analogous condition); (b) been convictedof or pled *nolo contendere*to a felony or a misdemeanor with respect to which fraud or dishonestyis a material element; or (c) materially breached any material Company policy or agreement with theCompany.“Change of Control” shall mean the first of the following events to occur after theEffective Date:(a) any Person or group of Persons together with its Affiliates, but excluding (i) theCompany 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 insubstantially the same proportions as their ownership of stock of the Company, is orbecomes, directly or indirectly, the “beneficial owner” (as defined in Rule 13d-3 under theExchange Act) of securities of the Company representing fifty percent (50%) or more of thecombined voting power of the Company’s then outstanding securities (not including in thesecurities beneficially owned by such Person any securities acquired directly from theCompany);(b) the following individuals cease for any reason to constitute a majority of thenumber of directors then serving: individuals who, on the Effective Date, constitute theBoard and any new director (other than a director whose initial assumption of office is inconnection with an actual or threatened election contest, including but not limited to aconsent solicitation, relating to the election of directors of the Company) whoseappointment or election by the Board or nomination for election by the Company’sstockholders was approved or recommended by a vote of at least two-thirds (2/3) of thedirectors then still in office who either were directors on the Effective Date or whoseappointment, election or nomination for election was previously so approved or recommended;
 
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(c) the consummation of a merger or consolidation of the Company or any direct orindirect Subsidiary of the Company with any other corporation or entity regardless of whichentity is the survivor, other than a merger or consolidation which would result in thevoting securities of the Company outstanding immediately prior thereto continuing torepresent (either by remaining outstanding or being converted into voting securities of thesurviving entity) more than fifty percent (50%) of the combined voting power of the votingsecurities of the Company, such surviving entity or any parent thereof outstandingimmediately after such merger or consolidation;(d) the stockholders of the Company approve a plan of complete liquidation orwinding-up of the Company or there is consummated an agreement for the sale or dispositionby the Company of all or substantially all of the Company’s assets; or(e) the occurrence of any transaction or series of transactions deemed by the Board toconstitute a change in control of the Company.Notwithstanding the foregoing, (i) a “Change of Control” shall not be deemed to have occurredby virtue of the consummation of any transaction or series of integrated transactions immediatelyfollowing which the holders of the common stock of the Company immediately prior to suchtransaction or series of transactions continue to have substantially the same proportionateownership in an entity which owns all or substantially all of the assets of the Company immediatelyfollowing such transaction or series of transactions, and (ii) a “Change of Control” shall notoccur for purposes of this Agreement as a result of any primary or secondary offering of Companycommon stock to the general public through a registration statement filed with the Securities andExchange Commission.“Code” means the Internal Revenue Code of 1986, as amended.“Committee” shall have the meaning set forth in Section 4(a).“Company” shall have the meaning set forth in the introductory paragraph above.“Confidential Information” means (a) information of the Company or any Subsidiarythereof, to the extent not considered a Trade Secret under applicable law, that (i) relates to theBusiness of the Company or any Subsidiary thereof; (ii) possesses an element of value to theCompany or any Subsidiary thereof; (iii) is not generally known to the Company’s competitors; and(iv) would damage the Company, or any Subsidiary thereof, if disclosed, and (b) information of anythird party provided to the Company which the Company is obligated to treat as confidential.Confidential Information includes, but is not limited to, future business plans, the composition,description, schematic or design of products, future products or equipment of the Company or anySubsidiary thereof, communication systems, audio systems, system designs and related documentation,advertising or marketing plans, information regarding independent contractors, Employees, clientsand Customers of the Company or any Subsidiary thereof, and information concerning the Company’sfinancial structure and methods and procedures of operation. Confidential Information shall notinclude any information that is or becomes generally available to the public other than as a resultof an unauthorized disclosure, has beenindependently developed and disclosed by others without violating this Agreement or the legalrights of any party or otherwise enters the public domain through lawful means.
 
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“Contact” means any interaction between Executive and a Customer which (a) takes placein an effort to establish, maintain and/or further a business relationship on behalf of theCompany, or any Subsidiary thereof, and (b) occurs during the last year of Executive’s employmentwith the Company (or during Executive’s employment if employed less than one (1) year).“Customer” means any person or entity to whom the Company, or any Subsidiary thereof,has sold or has solicited to sell its products or services.“Defense Costs” has the meaning set forth in Section 13.“Disability” means a physical or mental condition entitling the Executive to benefitsunder the applicable long-term disability plan of the Company or any its Subsidiaries, or if nosuch plan exists, a “permanent and total disability” (within the meaning of Section 22(e)(3) of theCode) or as determined by the Company in accordance with applicable laws.“Duties” means, solely for purposes of Section 8 of this Agreement, managingthe day-to-day operations of the Company (or any Subsidiary thereof), which include, but are notlimited to, the usual and customary duties of a President and Chief Executive Officer of a publiccorporation.“Effective Date” shall have the meaning set forth in the introductory paragraph above.“Employee” means any person who (a) is employed by the Company, or any Subsidiarythereof, at the time Executive’s employment with the Company terminates; (b) was employed by theCompany, or any Subsidiary thereof, during the last year of Executive’s employment with the Company(or during Executive’s employment if employed less than one (1) year); or (c) is employed by theCompany, or any Subsidiary thereof, during the Restricted Period.“Employment Period” shall have the meaning set forth in Section 3(a).“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and therules and regulations promulgated thereunder.“Executive” shall have the meaning set forth in the introductory paragraph above.
 
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“Good Reason” means (a) an adverse diminution in Executive’s title, duties orresponsibilities (provided, however, that a requirement to utilize skills in addition to thoseutilized in Executive’s current position, and/or a change in title and/or direct reports to reflectthe organizational structure of the successor entity following a Change of Control, shall not inand of itself be considered an “adverse diminution” as contemplated by this subsection (a)); (b) areduction of ten percent (10%) or more in Executive’s annual Base Salary; (c) a reduction of tenpercent (10%) or more in Executive’s annual target bonus opportunity (including the failure topay any bonus earned for any year in which a Change of Control occurs pursuant to the terms of anyapplicable plan or arrangement in effect prior to such Change of Control); or (d) the relocation ofExecutive’s principal place of employment to a location more than fifty (50) miles from Executive’sprincipal place of employment, except for required travel on the Company’s business to an extentsubstantially consistent with Executive’s historical business travel obligations. Executive’scontinued employment shall not constitute consent to, or a waiver of rights with respect to, anyact or failure to act constituting Good Reason hereunder, provided that Executive provides theCompany with a written notice of resignation within ninety (90) days following the occurrence ofthe event constituting Good Reason and the Company shall have failed to remedy such act or omissionwithin thirty (30) days following its receipt of such notice.“Incentive Plan” means the Company’s 2004 Incentive Plan, as amended from time totime.“Licensed Materials” means any materials that Executive utilizes for the benefit ofthe Company (or any Subsidiary thereof), or delivers to the Company or the Company’s Customers,which (a) do not constitute Work Product, (b) are created by Executive or of which Executive isotherwise in lawful possession and (c) Executive may lawfully utilize for the benefit of, ordistribute to, the Company or the Company’s Customers.“Parties” shall have the meaning set forth in the introductory paragraph above.“Person” shall mean a “person” as defined in Section 3(a)(9) of the Exchange Act, asmodified 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 underan employee benefit plan of the Company, (c) an underwriter temporarily holding securities pursuantto an offering of such securities, or (d) a corporation owned, directly or indirectly, by thestockholders of the Company in substantially the same proportions as their ownership of stock ofthe Company.“Prior Agreement” shall have the meaning set forth in the recitals above.“Renewal Period” shall have the meaning set forth in Section 3(b).“Restricted Period” means the period of time encompassing Executive’s employment withthe Company and three (3) years after termination of Executive’s employment with the Company.“Separation Conditions” shall have the meaning set forth in Section 6(c).“Subsidiary” means a corporation, partnership or other entity of which a majority ofthe voting interests of such corporation, partnership or other entity are at the time owneddirectly or indirectly through one or more intermediaries or Subsidiaries, or both, by the Company.“Territory” means the continental United States.
 
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“Trade Secrets” means information of the Company (or any Subsidiary thereof), and itslicensors, suppliers, clients and Customers, without regard to form, including, but not limited to,technical or non-technical data, a formula, a pattern, a compilation, a program, a device, amethod, a technique, a drawing, a process, financial data, financial plans, product plans or a listof actual or potential Customers or suppliers which is not commonly known by or available to thepublic and which information (a) derives economic value, actual or potential, from not beinggenerally known to, and not being readily ascertainable by proper means by, other persons who canobtain economic value from its disclosure or use and (b) is the subject of efforts that arereasonable under the circumstances to maintain its secrecy.“Without Cause” which shall mean any termination of employment by the Company which isnot defined in Section 5(a) through Section 5(g) of this Agreement.“Work Product” means (a) any data, databases, materials, documentation, computerprograms, inventions (whether or not patentable), designs and/or works of authorship, including butnot limited to, discoveries, ideas, concepts, properties, formulas, compositions, methods,programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures,audio, video, images of Executive and artistic works, and (b) any subject matter protected underpatent, copyright, proprietary database, trademark, trade secret, rights of publicity, confidentialinformation or other property rights, including all worldwide rights therein, that is or wasconceived, created or developed in whole or in part by Executive while employed by the Company andthat either (i) is created within the scope of Executive’s employment; (ii) is based on, resultsfrom or is suggested by any work performed within the scope of Executive’s employment and isdirectly or indirectly related to the Business of the Company or a line of business that theCompany may reasonably be interested in pursuing; (iii) has been or will be paid for by theCompany; or (iv) was created or improved in whole or in part by using the Company’s time,resources, data, facilities or equipment.2. Employment and Duties.(a) The Company shall employ Executive as President and Chief Executive Officer. Executiveshall perform all duties that are consistent with Executive’s position and that may otherwise beassigned to Executive by the Company from time to time. Executive shall report directly to theBoard of the Company or any other executive designated by the Board from time to time.(b) Executive agrees to (i) devote all necessary working time required of Executive’sposition; (ii) devote Executive’s best efforts, skill and energies to promote and advance theBusiness and/or interests of the Company and its Subsidiaries; and (iii) fully perform Executive’sobligations under this Agreement.(c) During Executive’s employment, Executive shall not render services to any other entity,regardless of whether Executive receives compensation, without the prior written consent of theCompany. Executive may, however, (i) engage in community, charitable and educational activities;(ii) manage Executive’s personal investments; (iii) continue working with Allen & O’Hara, Inc.,provided, however, that such work does not compete with the Company and does not involve studenthousing whatsoever; and (iv) with the prior writtenconsent of the Board (or a designated committee thereof), serve on corporate boards orcommittees, provided that such activities do not conflict or interfere with the performance ofExecutive’s obligations under this Agreement or conflict with the interests of the Company.
 
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(d) Executive agrees to comply with the policies and procedures of the Company as may beadopted and changed from time to time, including those described in the Company’s employeehandbook, Code of Business Conduct and Ethics and other policies set forth by the Company from timeto time. If this Agreement conflicts with such policies or procedures, this Agreement will control.(e) As an officer of the Company, Executive owes a duty of care and loyalty to the Company aswell as a duty to perform such duties in a manner that is in the best interests of the Company.3. Term.(a) The term of this Agreement shall be for a period of three (3) years, beginning on theeffective date of the Prior Agreement and ending on the third anniversary of the effective date ofthe Prior Agreement (the “Employment Period”).(b) Upon expiration of the Employment Period, this Agreement will automatically renew forone-year (1) periods (each a “Renewal Period”), unless either Party notifies the otherParty, in writing, at least sixty (60) days prior to the end of the Employment Period or theRenewal Period that this Agreement will not be renewed. Each Renewal Period shall be included inthe definition of “Employment Period” for purposes of this Agreement.(c) If either Party sends a notice of such Party’s intent not renew this Agreement inaccordance with Section 3(b), Executive’s employment will either (i) terminate; or (ii)convert to an at-will relationship, meaning that Executive may terminate Executive’s employmentwith the Company at any time and for any reason whatsoever simply by notifying the Company and thatthe Company may terminate Executive’s employment at any time with or without cause or advancenotice.(d) If this Agreement is not renewed and Executive’s employment converts to an at-willrelationship, then (i) the period in which Executive continues to be employed with the Companyshall not be included in the definition of “Employment Period” for purposes of this Agreement and(ii) this Agreement will no longer be in effect, provided, however, that the restrictive covenantsapplicable to and all post-termination obligations of Executive contained in Section 8 of thisAgreement shall survive termination of this Agreement.4. Compensation.(a) During the Employment Period, the Company will pay to Executive an annual base salary(“Base Salary”) as determined from time to time by the Compensation Committee of the Board(the “Committee”), minus applicable withholdings, payable in accordance with the Company’snormal payroll practices. Executive’s Base Salary will beadjusted annually at the discretion of the Committee based upon the performance of Executiveand the Company.
 
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(b) During the Employment Period, Executive will be eligible to receive an annual bonustargeted at one hundred percent (100%) of Base Salary if, as determined by the Committee in itssole discretion, Executive meets certain criteria established from year to year by the Committee(the “Bonus”). Executive will not receive any Bonus if Executive does not meet suchcriteria. The Bonus will be subject to all applicable withholdings and will be paid betweenJanuary 1 and March 15 of the year following the end of the year in which the Bonus was earned,unless otherwise provided herein.(c) During the Employment Period, Executive shall be eligible to participate in all benefitplans in effect for executives and Employees of the Company, subject to the terms and conditions ofsuch plans.(d) During the Employment Period, Executive shall be entitled to four (4) weeks of paidvacation per calendar year.(e) During the Employment Period, Executive shall be entitled to receive all other fringebenefits available to executives of the Company.(f) During the Employment Period, the Company will reimburse Executive for all approvedbusiness expenses incurred by Executive in the performance of Executive’s duties under thisAgreement in accordance with the policies and procedures of the Company.5. Termination. This Agreement may be terminated by any of the following events:(a) Either Party sends notice in accordance with Section 3(b) of such Party’s intentnot to renew the Agreement;(b) Mutual written agreement between Executive and the Company at any time;(c) Executive’s death;(d) Executive’s Disability which renders Executive unable to perform the essential functionsof Executive’s job even with reasonable accommodation;(e) By the Company for Cause;(f) By Executive for Good Reason;(g) Resignation by Executive without Good Reason; or(h) Without Cause, which shall mean any termination of employment by the Company which is notdefined in Section 5(a) through Section 5(g) above.
 
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6. Company’s Post-Termination Obligations.(a) If this Agreement terminates for the reasons set forth in Section 5(a),Section 5(b), Section 5(c), Section 5(d), Section 5(e) orSection 5(g) above, then the Company will pay Executive (i) all accrued but unpaid wages,based on Executive’s then current Base Salary, through the termination date; (ii) all approved, butunreimbursed, business expenses, provided that a request for reimbursement of business expenses issubmitted in accordance with the Company’s policies and submitted within five (5) business days ofExecutive’s termination date; (iii) solely in the event this Agreement is terminated pursuant toSection 5(a), all earned and accrued but unpaid bonuses, but only if Executive was employedfor the entire annual Bonus period; (iv) solely in the event this Agreement is terminated pursuantto either Section 5(c) or Section 5(d) during an annual Bonus period, all earnedand accrued but unpaid bonuses prorated to the date of Executive’s death or Disability; and (v)solely in the event this Agreement is terminated pursuant to either Section 5(c) orSection 5(d), any COBRA continuation coverage premiums required for the coverage ofExecutive and Executive’s eligible dependents under the Company’s major medical group health planfor a period of up to eighteen (18) months (or, if less, the period that Executive and Executive’seligible dependents are entitled to under the applicable provisions of COBRA), provided, however,that Executive and Executive’s eligible dependents shall be solely responsible for any requirementswhich must be satisfied or actions that must be taken in order to obtain such COBRA continuationcoverage other than the payment of COBRA premiums. The Company shall have no other obligations toExecutive, including under any provision of this Agreement, Company policy or otherwise; however,Executive shall continue to be bound by Section 8 and all other post-terminationobligations to which Executive is subject, including, but not limited to, the obligations containedin this Agreement.(b) If this Agreement terminates for any of the reasons set forth in Section 5(f) orSection 5(h) above, then the Company will pay Executive (i) all accrued but unpaid wagesthrough the termination date, based on Executive’s then current Base Salary; (ii) all accrued butunpaid vacation through the termination date, based on Executive’s then current Base Salary; (iii)all approved, but unreimbursed, business expenses, provided that a request for reimbursement ofbusiness expenses is submitted in accordance with the Company’s policies and submitted within five(5) business days of Executive’s termination date; (iv) all earned and accrued but unpaid bonuses;and (v) any COBRA continuation coverage premiums required for the coverage of Executive andExecutive’s eligible dependents under the Company’s major medical group health plan for a period ofup to eighteen (18) months (or, if less, the period that Executive and Executive’s eligibledependents are entitled to under the applicable provisions of COBRA), provided, however, thatExecutive and Executive’s eligible dependents shall be solely responsible for any requirementswhich must be satisfied or actions that must be taken in order to obtain such COBRA continuationcoverage other than the payment of COBRA premiums. In addition, the Company will continue to payExecutive’s then current Base Salary for either the remainder of the initial three-year EmploymentPeriod (excluding any Renewal Period), to be paid in accordance with the Company’s regular payrollpractices, or for a period of twelve (12) months, to be paid over a period of twelve (12) months inaccordance with the Company’s regular payroll practices, whichever is greater. Except as set forthin this Section 6(b), the Company shall have no other obligations to Executive.
 
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(c) The Company’s obligation to provide the payments set forth in Section 6(b) aboveshall be conditioned upon the following (the “Separation Conditions”):(i) Executive’s (or, in the case of Executive’s death or Disability, the Executive’sestate or trustee, as applicable) execution and non-revocation of a separation agreement ina form prepared by the Company, which will include a general release from liability so thatExecutive will release the Company and its Subsidiaries from any and all liability andclaims of any kind as permitted by law; and(ii) Executive’s compliance with the restrictive covenants (Section 8) and allpost-termination obligations, including, but not limited to, the obligations contained inthis Agreement.(d) If Executive does not execute an effective separation agreement as set forth inSection 6(c) above, the Company will not provide any payments or benefits to Executiveunder Section 6(b). The Company’s obligation to make the separation payments set forth inSection 6(b) shall terminate immediately upon any breach by Executive of anypost-termination obligations to which Executive is subject.7. Change of Control.(a) Notwithstanding anything to the contrary in the Incentive Plan or award agreement, upon aChange of Control, all of Executive’s outstanding unvested equity-based awards (including stockoptions and restricted stock) granted pursuant to the Incentive Plan shall vest and becomeimmediately exercisable and unrestricted, without any action by the Board or any committee thereof.(b) Notwithstanding the provisions of Section 6, if, within one (1) year following aChange of Control, the Company terminates Executive’s employment Without Cause pursuant toSection 5(h), or Executive resigns for Good Reason, then the Company will pay Executive thefollowing amounts:(i) all accrued but unpaid wages through the termination date, based on Executive’sthen current Base Salary;(ii) a separation payment equal to two point ninety-nine times (2.99x) the sum of (A)Executive’s then current Base Salary, and (B) Executive’s average Bonus for the two (2) yearperiod prior to the Change of Control, which separation payment shall be paid within thirty(30) days of Executive’s termination date;(iii) a payment for all earned and accrued but unpaid bonuses;(iv) a payment for all approved, but unreimbursed, business expenses, provided that arequest for reimbursement of business expenses is submitted inaccordance with the Company’s policies and submitted within five (5) business days ofExecutive’s termination date; and
 
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(v) payment of any COBRA continuation coverage premiums required for the coverage ofExecutive and Executive’s eligible dependents under the Company’s major medical group healthplan for a period of up to eighteen (18) months (or, if less, the period that Executive andExecutive’s eligible dependents are entitled to under the applicable provisions of COBRA),provided, however, that Executive and Executive’s eligible dependents shall be solelyresponsible for any requirements which must be satisfied or actions that must be taken inorder to obtain such COBRA continuation coverage other than the payment of COBRA premiums.The payments and benefits set forth in this Section 7 shall be provided to Executivein lieu of any benefits to which Executive may be entitled to receive under Section6(b) above, provided, however, that Executive’s right to receive the separation paymentsand benefits set forth in this Section 7 shall be subject to the SeparationConditions set forth in Section 6(c) above. The separation payments and benefitsset forth in this Section 7 shall constitute full satisfaction of the Company’sobligations under this Agreement, any Company policy or otherwise.8. Executive’s Post-Termination Obligations.(a) Return of Materials. Upon the termination of Executive’s employment for anyreason, Executive shall return to the Company all of the Company’s property, including, but notlimited to, keys, passcards, credit cards, customer lists, rolodexes, tapes, software, computerfiles, marketing and sales materials and any other property, record, document or piece of equipmentbelonging to the Company.(b) Set-Off. If Executive has any outstanding obligations to the Company upon thetermination of Executive’s employment for any reason, Executive hereby authorizes the Company todeduct any amounts owed to the Company from Executive’s final paycheck and/or any amounts thatwould otherwise be due to Executive, including under Section 6 or Section 7 above.(c) Non-Disparagement. During Executive’s employment and upon the termination ofExecutive’s employment with the Company for any reason, Executive shall not make any disparaging ordefamatory statements, whether written or verbal, regarding the Company.(d) Restrictive Covenants. Executive acknowledges that the restrictions contained inthis Section 8 are reasonable and necessary to protect the legitimate business interests ofthe Company and will not impair or infringe upon Executive’s right to work or earn a living afterExecutive’s employment with the Company terminates.
 
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(e) Trade Secrets and Confidential Information.(i) Executive represents and warrants that Executive (A) is not subject to any legal orcontractual duty or agreement that would prevent or prohibit Executive from performing the dutiescontemplated by this Agreement or otherwise complying with this Agreement, and (B) is not in breachof any legal or contractual duty or agreement, including any agreement concerning trade secrets orconfidential information owned by any other party.(ii) Executive agrees that Executive will not (A) use, disclose or reverse engineer TradeSecrets or Confidential Information for any purpose other than the Company’s Business, except asauthorized in writing by the Company; (B) during Executive’s employment with the Company, use,disclose or reverse engineer (1) any confidential information or trade secrets of any formeremployer or third party or (2) any works of authorship developed in whole or in part by Executiveduring any former employment or for any other party, unless authorized in writing by the formeremployer or third party; or (C) upon Executive’s resignation or termination with the Company (1)retain Trade Secrets or Confidential Information, including any copies existing in any form(including electronic form), which are in Executive’s possession or control or (2) destroy, deleteor alter Trade Secrets or Confidential Information without the Company’s prior written consent.(iii) The obligations under this Section 8 shall remain in effect as long as TradeSecrets and Confidential Information constitute trade secrets or confidential information underapplicable law. The confidentiality, property and proprietary rights protections available in thisAgreement are in addition to, and not exclusive of, any and all other rights to which the Companyis entitled under federal and state law, including, but not limited to, rights provided undercopyright laws, trade secret and confidential information laws and laws concerning fiduciaryduties.(f) Non-Competition. During the Restricted Period, Executive agrees that Executiveshall not perform services which are substantially similar and/or equivalent to 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 andacknowledge that (i) the periods of restriction and Territory of restriction contained in thisAgreement are fair and reasonable in that they are reasonably required for the protection of theCompany and that the Territory is the area in which Executive performs services for the Company and(ii) by having access to information concerning Employees and actual or prospective Customers ofthe Company or any of its Subsidiaries, Executive shall obtain a competitive advantage as to theCompany.(g) Non-Solicitation of Customers. During the Restricted Period, Executive will not,directly or indirectly, solicit any Customer of the Company for the purpose of providing any goodsor services competitive with the Business within the Territory. The restrictions set forth in thisSection 8(g) apply only to the Customers with whom Executive had Contact.(h) Non-Recruitment of Employees. During the Restricted Period, Executive will not,directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his or heremployment relationship with the Company or any of its Subsidiaries or (ii) work for any otherperson or entity engaged in the Business.
 
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(i) Post-Employment Disclosure. During the Restricted Period, Executive shall providea copy of this Agreement to persons and/or entities for whom Executive works or consults as anowner, partner, joint venturer, employee or independent contractor. If, during the RestrictedPeriod, Executive works or consults for another person or entity as an owner, partner, jointventurer, employee or independent contractor, Executive shall provide the Company with such personor entity’s name, the nature of such person or entity’s business, Executive’s job title and ageneral description of the services Executive will provide.(j) Resignation. Upon the termination of Executive’s employment with the Company forany reason and upon the request of the Company, Executive shall deliver to the Company a writtenresignation from all offices, membership on the Board and fiduciary positions in which Executiveserves for the Company and each of its Subsidiaries and Affiliates.9. Work Product. Executive’s employment duties may include creating, developingand/or inventing in areas directly or indirectly related to the Business of the Company or to aline of business that the Company may reasonably be interested in pursuing. If ownership of allright, title and interest to the legal rights in and to the Work Product will not vest exclusivelyin the Company, then, without further consideration, Executive assigns all presently-existing WorkProduct to the Company and agrees to assign, and automatically assigns, all future Work Product tothe 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 anyother protection available in the Work Product. At the Company’s request, Executive agrees toperform, during or after Executive’s employment with the Company, any acts to transfer, perfect anddefend the Company’s ownership of the Work Product, including, but not limited to (a) executing alldocuments (including a formal assignment to the Company) necessary for filing an application orregistration for protection of the Work Product (an “Application”); (b) explaining thenature of the Work Product to persons designated by the Company; (c) reviewing Applications andother related papers; or (d) providing any other assistance reasonably required for the orderlyprosecution of Applications. Executive agrees to provide the Company with a written description ofany Work Product in which Executive is involved (solely or jointly with others) and thecircumstances attendant to the creation of such Work Product.10. License. During Executive’s employment and after Executive’s employment with theCompany terminates, Executive grants to the Company an irrevocable, nonexclusive, worldwide,royalty-free license to (a) make, use, sell, copy, perform, display, distribute or otherwiseutilize copies of the Licensed Materials; (b) prepare, use and distribute derivative works basedupon the Licensed Materials; and (c) authorize others to do the same. Executive shall notify theCompany in writing of any Licensed Materials Executive delivers to the Company.11. Release. During Executive’s employment and after Executive’s employment with theCompany terminates, Executive consents to the Company’s use of Executive’s image, likeness, voiceor other characteristics in the Company’s products or services. Executivereleases the Company from any causes of action that Executive has or may have arising out ofthe use, distribution, adaptation, reproduction, broadcast or exhibition of such characteristics.
 
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12. Injunctive Relief. Executive agrees that, if Executive breaches Section 8of this Agreement, (a) the Company would suffer irreparable harm; (b) damages would be difficult todetermine, and money damages alone would be an inadequate remedy for the injuries suffered by theCompany; and (c) if the Company seeks injunctive relief to enforce this Agreement, Executive herebywaives and will not (i) assert any defense that the Company has an adequate remedy at law withrespect to the breach; (ii) require that the Company submit proof of the economic value of anyTrade Secret or Confidential Information; or (iii) require the Company to post a bond or any othersecurity. Nothing contained in this Agreement shall limit the Company’s right to any otherremedies at law or in equity.13. Payment of Defense Costs. If Executive is individually named as a defendant in alawsuit relating to or arising out of Executive’s employment with the Company, then the Companyagrees to pay the reasonable attorneys’ fees and expenses Executive incurs in defending suchlawsuit (the “Defense Costs”). The Company will not pay any damages or any other sums orrelief for which Executive is held liable. If Executive is held liable, then Executive agrees toreimburse the Company for all Defense Costs the Company paid to Executive or on Executive’s behalf.The Company’s obligation under this Section 13 shall not apply to any claim or lawsuitbrought by the Company against Executive. Payment of the Defense Costs shall be the Company’s onlyobligation under this Section 13; provided, however, that nothing in this Section13 shall be construed to limit either Party’s rights or obligations under any indemnificationagreement or the Company’s organizational documents, as applicable.14. Severability. The provisions of this Agreement are severable. If any provisionof this Agreement is determined to be unenforceable, in whole or in part, then such provision shallbe modified so as to be enforceable to the maximum extent permitted by law. If such provisioncannot be modified to be enforceable, the provision shall be severed from this Agreement to theextent unenforceable. The remaining provisions and any partially enforceable provisions shallremain in full force and effect.15. Attorneys’ Fees. In the event of litigation relating to this Agreement, theprevailing Party shall be entitled to recover attorneys’ fees and costs of litigation in additionto all other remedies available at law or in equity.16. Waiver. Either Party’s failure to enforce any provision of this Agreement shallnot act as a waiver of that or any other provision. Either Party’s waiver of any breach of thisAgreement shall not act as a waiver of any other breach.17. Entire Agreement. This Agreement constitutes the entire agreement between theParties concerning the subject matter of this Agreement. This Agreement supersedes any priorcommunications, agreements or understandings, whether oral or written, between the Parties relatingto the subject matter of this Agreement, including without limitation the Prior Agreement. Otherthan the terms of this Agreement, no other representation, promise or agreement has been made withExecutive to cause Executive to sign this Agreement.
 
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18. Amendments. This Agreement may not be amended or modified except in a writingsigned by both Parties.19. Successors and Assigns. This Agreement shall be assignable to, and shall inure tothe benefit of, the Company’s successors and assigns, including, without limitation, successorsthrough merger, name change, consolidation or sale of a majority of the Company’s stock or assetsand shall be binding upon Executive. Executive shall not have the right to assign Executive’srights or obligations under this Agreement. The covenants contained in Section 8 of thisAgreement shall survive the termination of Executive’s employment with the Company, regardless ofwhich Party causes the termination or the reason for the termination.20. Governing Law. The laws of the State of Tennessee shall govern this Agreement. IfTennessee’s conflict of law rules would apply another state’s laws, the Parties agree thatTennessee law shall still govern.21. No Strict Construction. If there is a dispute about the language of thisAgreement, the fact that one Party drafted this Agreement shall not be considered in itsinterpretation.22. Notice. Whenever any notice is required, it shall be given in writing addressed asfollows:       To Company: Attention: Chief Financial Officer    Education Realty Trust, Inc.    530 Oak Court Drive, Suite 300    Memphis, Tennessee 38117       To Executive: Paul O. Bower    9200 Rocky Cannon Road    Cordova, Tennessee 38018Notice shall be deemed given and effective when deposited in the U.S. mail, sent to thereceiving party by electronic means or when actually received. Either Party may change the addressto which notices shall be delivered or mailed by notifying the other party of such change inaccordance with this Section.23. Consent to Jurisdiction and Venue. Executive agrees that any claim arising out ofor relating to this Agreement shall be brought in a state or federal court of competentjurisdiction in Tennessee. Executive consents to the personal jurisdiction of the state and/orfederal courts located in Tennessee. Executive waives (a) any objection to jurisdiction or venue,or (b) any defense claiming lack of jurisdiction or improper venue in any action brought in suchcourts.24. Affirmation. Executive acknowledges that Executive has carefully read thisAgreement, Executive knows and understands its terms and conditions and Executive has had theopportunity to ask the Company any questions Executive may have had prior to signing thisAgreement.
 
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25. Compliance with Code Section 409A.(a) It is intended that (i) each payment or installment of payments provided under thisAgreement is a separate “payment” for purposes of Code Section 409A, and (ii) that the paymentssatisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A,including those provided under Treasury Regulations 1.409A-1(b)(4) (regarding short-termdeferrals), 1.409A-1(b)(9)(iii) (regarding the two-times, two (2) year exception) and1.409A-1(b)(9)(v) (regarding reimbursements and other separation pay). Notwithstanding anything tothe contrary herein, if the Company determines (i) that on the date of Executive’s “separation fromservice” (as such term is defined under Treasury Regulation 1.409A-1(h)) or at such other time thatthe Company determines to be relevant, Executive is a “specified employee” (as such term is definedunder Treasury Regulation 1.409A-1(i)(1)) of the Company, and (ii) that any payments to be providedto Executive pursuant to this Agreement are or may become subject to the additional tax under CodeSection 409A(a)(1)(B) or any other taxes or penalties imposed under Code Section 409A if providedat the time otherwise required under this Agreement, then such payments shall be delayed until thedate that is six (6) months after the date of Executive’s “separation from service” (as such termis defined under Treasury Regulation 1.409A-1(h)) or, if sooner, the date of Executive’s death.Any payments delayed pursuant to this Section 25 shall be made in a lump sum on the firstday of the seventh month following Executive’s “separation from service” (as such term is definedunder Treasury Regulation 1.409A-1(h)) or, if sooner, the date of Executive’s death. It isintended that Agreement shall comply with the provisions of Section 409A of the Code and theTreasury Regulations relating thereto so as not to subject the Executive to the payment ofadditional taxes and interest under Section 409A of the Code. In furtherance of this intent, thisAgreement shall be interpreted, operated, and administered in a manner consistent with theseintentions.(b) In addition, to the extent that any reimbursement, fringe benefit or other, similar planor arrangement in which the Executive participates during the term of Executive’s employment underthis Agreement or thereafter provides for a “deferral of compensation” within the meaning ofSection 409A of the Code, (i) the amount eligible for reimbursement or payment under such plan orarrangement in one calendar year may not affect the amount eligible for reimbursement or payment inany other calendar year (except that a plan providing medical or health benefits may impose agenerally applicable limit on the amount that may be reimbursed or paid), and (ii) subject to anyshorter time periods provided herein or the applicable plans or arrangements, any reimbursement orpayment of an expense under such plan or arrangement must be made on or before the last day of thecalendar year following the calendar year in which the expense was incurred.(c) By accepting this Agreement, Executive hereby agrees and acknowledges that neither theCompany nor its Subsidiaries make any representations with respect to the application of Section409A of the Code to any tax, economic or legal consequences of any payments payable to theExecutive hereunder. Further, by the acceptance of this Agreement, the Executive acknowledges that(i) Executive has obtained independent tax advice regarding the application of Section 409A of theCode to the payments due to the Executive hereunder, (ii) Executive retains full responsibility forthe potential application of Section 409A of the Code to the tax and legal consequences of paymentspayable to the Executive hereunder and (iii) theCompany shall not indemnify or otherwise compensate the Executive for any violation of Section409A of the Code that my occur in connection with this Agreement. The parties agree to cooperatein good faith to amend such documents and to take such actions as may be necessary or appropriateto comply with Code Section 409A.[SIGNATURES ON FOLLOWING PAGE]
 
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**IN WITNESS WHEREOF**, the Parties hereto have executed this Agreement effective as of theEffective Date.         **EDUCATION REALTY TRUST, INC.**           By:         Name: Randall H. Brown      Title: Executive Vice President/Chief      Financial Officer           Date:                         Paul O. Bower           Date:           
 
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