Unassociated Document
As
Filed with the Securities and Exchange Commission on June 30,
2010
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Registration
No. 333 -
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE
SECURITIES
ACT OF 1933
EDUCATION
REALTY TRUST, INC.
(Exact
name of registrant as specified in its charter)
Maryland
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20-1352180
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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530
Oak Court Drive, Suite 300
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Memphis,
Tennessee
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38117
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Education
Realty Trust, Inc. Employee Stock Purchase Plan
(Full
Title of the Plan)
Randall
H. Brown
Education
Realty Trust, Inc.
530
Oak Court Drive, Suite 300
Memphis,
Tennessee 38117
(Name and
Address of Agent For Service)
(901)
259-2500
(Telephone
Number, Including Area Code, of Agent For Service)
Copies
to:
John
A. Good, Esq.
Helen
W. Brown, Esq.
Bass,
Berry & Sims PLC
100
Peabody Place, Suite 900
Memphis,
Tennessee 38103
(901)
543-5900
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
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Smaller
reporting company ¨
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title of each class of securities
to be registered
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Amount to be
registered(1)
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Proposed maximum
offering price per
share(1)(2)
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Proposed maximum
aggregate offering price
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Amount of
registration
fee
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Common
Stock, $0.01 par value per share
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300,000
shares
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$ |
6.48 |
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$ |
1,944,000 |
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$ |
138.61 |
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers additional shares that may become
issuable under the Education Realty Trust, Inc. Employee Stock Purchase
Plan by reason of certain corporate transactions or events, including any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results in
an increase in the number of the registrant’s outstanding shares of common
stock.
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(2)
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Established
solely for purposes of determining the registration fee pursuant to
provisions of Rule 457(h) under the Securities Act by averaging the high
and low sale prices of the registrant’s common stock as reported by the
New York Stock Exchange on June 25,
2010.
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EXPLANATORY
NOTE
Education
Realty Trust, Inc., or the Company, has prepared this registration statement in
accordance with the requirements of Form S-8 under the Securities Act of 1933,
as amended, or the Securities Act, to register 300,000 shares of its common
stock, par value $0.01 per share, or Common Stock, that are reserved for
issuance under the Education Realty Trust, Inc. Employee Stock Purchase Plan, or
the Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan
Information.
The
document(s) containing the information specified in Part I of Form S-8 will be
sent or given to participants in the Plan as specified by Rule 428(b)(1) under
the Securities Act. Such documents are not being filed with the Securities and
Exchange Commission, or the Commission, but constitute, along with the documents
incorporated by reference into this registration statement, a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
Item
2. Company Information and Employee Plan Annual Information.
The
Company will furnish without charge to each person to whom the prospectus is
delivered, upon the written or oral request of such person, a copy of any and
all of the documents incorporated by reference in Item 3 of Part II of this
registration statement, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference to the information that is
incorporated). Those documents are incorporated by reference in the Section
10(a) prospectus. Requests should be directed to Education Realty Trust, Inc.,
530 Oak Court Drive, Suite 300, Memphis, TN 38117, Attention: Corporate
Secretary; Telephone number (901) 259-2500.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents By Reference.
The
following documents filed by the Company with the SEC under the Securities
Exchange Act of 1934, as amended, or the Exchange Act, are incorporated by
reference in this registration statement:
· Annual
Report on Form 10-K for the year ended December 31, 2009 (including portions of
the Company’s definitive Proxy Statement for the 2010 Annual Meeting of
Stockholders incorporated therein by reference);
· Quarterly
Report on Form 10-Q for the quarter ended March 31, 2010;
· Current
Report on Form 8-K filed on January 12, 2010 (excluding the information
furnished under Item 7.01 and Exhibit 99.1);
· Current
Report on Form 8-K filed on February 2, 2010 (excluding the information
furnished under Item 7.01 and Exhibit 99.1);
· Current
Report on Form 8-K filed on February 17, 2010 (excluding the information
furnished under Item 7.01 and Exhibit 99.1);
· Current
Report on Form 8-K filed on April 14, 2010;
· Current
Report on Form 8-K filed on May 21, 2010;
· Current
Report on Form 8-K filed on June 2, 2010 (excluding the information furnished
under Exhibit 99.1);
· Current
Report on Form 8-K filed on June 4, 2010; and
· The
description of the Company’s common stock contained in the Company’s
registration statement on Form 8-A filed on January 25, 2005.
Except
for information “furnished” under Item 2.02 or Item 7.01 of Form 8-K or other
information “furnished” to the Commission which is not deemed filed and not
incorporated by reference in this registration statement, all documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment to
this registration statement which indicates that all of the shares of the
Company’s Common Stock offered have been sold or which deregisters all such
shares then remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or
deemed incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Maryland
law permits the Company to include in its charter a provision limiting the
liability of its directors and officers to the Company and its stockholders for
money damages, except for liability resulting from (i) the actual receipt of an
improper benefit or profit in money, property or services or (ii) active and
deliberate dishonesty established by a final judgment and material to the cause
of action. The Company’s charter contains a provision that eliminates directors’
and officers’ liability to the maximum extent permitted by Maryland
law.
The
Maryland General Corporation Law, or MGCL, requires a corporation unless its
charter provides otherwise, which the Company’s charter does not, to indemnify a
director or officer who has been successful, on the merits or otherwise, in the
defense of any proceeding to which he or she is made, or threatened to be made,
a party by reason of his or her service in that capacity. The MGCL permits a
corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made or threatened to be made a party by reason of their service in those or
other capacities unless it is established that:
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an
act or omission of the director or officer was material to the matter
giving rise to the proceeding and:
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was
committed in bad faith; or
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was
the result of active and deliberate
dishonesty;
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the
director or officer actually received an improper personal benefit in
money, property or services; or
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in
the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was
unlawful.
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However,
under the MGCL, a Maryland corporation may not, and the Company will not,
indemnify for an adverse judgment in a suit by or in the right of the
corporation or for a judgment of liability on the basis that personal benefit
was improperly received, unless in either case a court orders indemnification
and then only for expenses. In addition, the MGCL permits a corporation to, and
the Company will, advance reasonable expenses to a director or officer upon the
corporation’s receipt of:
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a
written affirmation by the director or officer of his or her good faith
belief that he or she has met the standard of conduct necessary for
indemnification by the corporation;
and
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·
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a
written undertaking by the director or officer or on the director’s or
officer’s behalf to repay the amount paid or reimbursed by the corporation
if it is ultimately determined that the director or officer did not meet
the standard of conduct.
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The
Company’s charter authorizes it to obligate the Company and the Company’s bylaws
obligate the Company, to the fullest extent permitted by Maryland law, to
indemnify and, without requiring a preliminary determination of the ultimate
entitlement to indemnification, pay or reimburse reasonable expenses in advance
of final disposition of a proceeding to:
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any
present or former director or officer who is made, or threatened to be
made, a party to the proceeding by reason of his or her service in that
capacity; or
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any
individual who, while a director or officer of the Company and at the
Company’s request, serves or has served another corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan
or any other enterprise as a director, officer, partner or trustee and who
is made, or threatened to be made, a party to the proceeding by reason of
his or her service in that
capacity.
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The
Company’s bylaws also authorize it, subject to approval from its Board of
Directors or a Committee thereof, to indemnify and advance expenses to any
person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
The
partnership agreements of Education Realty Operating Partnership, LP, or
Operating Partnership, and University Towers Operating Partnership, LP, or
University Towers Partnership, provide that the Company, as general partner of
the Operating Partnership and University Towers Partnership, and its officers
and directors are indemnified to the fullest extent permitted by
law.
The
Company has entered into indemnification agreements with its executive officers
and directors.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following is a list of exhibits to this registration statement:
4.1
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Form
of Certificate for Common Stock of Education Realty Trust, Inc.
(Incorporated by reference to Exhibit 4.1 to the Company’s Annual Report
on Form 10-K, filed on March 16, 2010)
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5.1
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Opinion
of Venable LLP (filed herewith)
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23.1
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Consent
of Independent Registered Public Accounting Firm, Deloitte & Touche
LLP (filed herewith)
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23.2
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Consent
of Venable LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on the Signature Page of this registration
statement)
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99.1
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Education
Realty Trust, Inc. Employee Stock Purchase Plan (filed
herewith)
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Item
9. Undertakings.
The
undersigned registrant hereby undertakes:
(a)(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however, that,
paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement;
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Memphis, State of Tennessee, on June 30, 2010.
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EDUCATION
REALTY TRUST, INC.
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By:
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/s/ Randy Churchey
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Randy
Churchey
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President,
Chief Executive Officer and
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Director
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POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, each person whose signature appears below hereby
constitutes and appoints Randy Churchey, Randall H. Brown and J. Drew Koester,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place, and stead, in
any and all capacities, to sign any and all amendments to this registration
statement, including any post-effective amendments and any amendment pursuant to
Rule 462(b) under the Securities Act, and to file the same, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agents full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
on Form S-8 has been signed by the following persons in the capacities and on
the dates indicated.
Signature
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Title
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Date
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/s/
Randy Churchey
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President,
Chief Executive Officer and Director
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June
30, 2010
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Randy
Churchey
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(Principal
Executive Officer)
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/s/
Randall H. Brown
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Executive
Vice President, Chief Financial Officer,
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June
30, 2010
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Randall
H. Brown
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Treasurer
and Secretary (Principal Financial Officer)
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/s/
J. Drew Koester
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Vice
President, Assistant Secretary and Chief
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June
30, 2010
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J.
Drew Koester
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Accounting
Officer (Principal Accounting Officer)
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/s/
Paul O. Bower
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Chairman
of the Board of Directors
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June
30, 2010
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Paul
O. Bower
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/s/
Monte J. Barrow
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Director
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June
30, 2010
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Monte
J. Barrow
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/s/
William J. Cahill, III
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Director
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June
30, 2010
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William
J. Cahill, III
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/s/
John L. Ford
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Director
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June
30, 2010
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John
L. Ford
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/s/
Howard A. Silver
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Director
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June
30, 2010
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Howard
A. Silver
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/s/
Wendell W. Weakley
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Director
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June
30, 2010
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Wendell
W. Weakley
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EXHIBIT
INDEX
Exhibit
Number
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Exhibit
Description
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4.1
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Form
of Certificate for Common Stock of Education Realty Trust, Inc.
(Incorporated by reference to Exhibit 4.1 to the Company’s Annual Report
on Form 10-K, filed on March 16, 2010)
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5.1
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Opinion
of Venable LLP (filed herewith)
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23.1
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Consent
of Independent Registered Public Accounting Firm, Deloitte & Touche
LLP (filed herewith)
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23.2
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Consent
of Venable LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on the Signature Page of this registration
statement)
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99.1
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Education
Realty Trust, Inc. Employee Stock Purchase Plan (filed
herewith)
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