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EXHIBIT 10.24
PERSONAL AND CONFIDENTIAL
IRT PROPERTY COMPANY
FIRST AMENDMENT TO THE RESTRICTED STOCK
AWARD AGREEMENT AND PLEDGE AGREEMENT
AND SECURED PROMISSORY NOTE
The Restricted Stock Award Agreement (the "Award Agreement"), the
Secured Promissory Note (the "Note"), and the Pledge Agreement (the "Pledge
Agreement"), each dated June 18, 1998, by and among IRT Property Company (the
"Company") and Xxxxxx X. XxXxxxx (the "Executive"), are each hereby amended as
follows:
A. THE AWARD AGREEMENT
The Award Agreement is hereby amended by adding the following Paragraphs 7 and
8:
" 7. VESTING ON CHANGE OF CONTROL. Notwithstanding any other
provisions of this Agreement, upon the occurrence of a Change of Control, all
of the shares of Restricted Stock granted to the Executive under the Award
Agreement shall be vested immediately.
8. CERTAIN DEFINITIONS.
(a) Affiliated Company shall mean any corporation,
partnership, limited liability company, trust and/or other entity
controlled by, controlling or under common control with, the
Company. Unless the context clearly requires otherwise, as used
herein, the Company shall include all its Affiliated Companies.
(b) Change of Control shall mean:
(i) The acquisition by any Person of beneficial
ownership (within the meaning of SEC Rule 13d-3 under the
Exchange Act) of 25% or more of the combined voting power of (x)
all then outstanding shares of Company common stock ("Outstanding
Company Common Stock") and (y) all outstanding voting securities
of the Company entitled to vote generally in the election of
directors and all outstanding securities and/or rights to acquire
(whether by conversion, exchange or otherwise) voting securities
of the Company entitled to vote generally in the election of
directors (collectively with the Outstanding Voting Common Stock,
the "Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection 8(b)(i), the following
acquisitions shall not constitute a Change of Control: (r) any
acquisition by a Person who was on November 1, 1997 the
beneficial owner of 25% or more of the Outstanding Company Voting
Securities, (s) any acquisition by the Company, provided no
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Change in Control has previously occurred or would result
therefrom under subsections 8(b)(ii) and 8(b)(iii) of this
Agreement, (t) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
Affiliated Company, or (u) any acquisition by any Person pursuant
to a transaction which complies with clauses (x), (y) and (z) of
subsection (iii) of this Section 8(b); or
(ii) Individuals who, as of November 1, 1997, constituted
the Board (the "Incumbent Board"), cease for any reason to
constitute at least a majority of the entire Board; provided,
however, that any individual becoming a director subsequent to
November 1, 1997 whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation, a sale, liquidation or partial liquidation, or
other disposition of all or substantially all (e.g., 50% or more)
of the assets of the Company in one or a series of transactions,
and/or any combination of the foregoing (a "Business
Combination"), in each case, unless, following such Business
Combination, (x) all or substantially all of the Persons who were
the beneficial owners, respectively, of the outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially owns
(within the meaning of SEC Rule 13d-3 under the Exchange Act),
directly or indirectly, more than 60% of, respectively, the
combined voting power of the then outstanding shares of Company
Common Stock and/or the then outstanding voting securities
entitled to vote generally in the election of directors, as the
case may be, of the entity resulting from such Business
Combination (including, without limitation, an entity which as a
result of such transaction beneficially owns (within the meaning
of SEC Rule 13d-3 under the Exchange Act) the Company or all or
substantially all (e.g., 50% or more) of the Company's assets
either directly or through one or more subsidiaries,
partnerships, limited liability companies, trusts and/or other
entities or Persons) in substantially the same proportions as
their beneficial ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (y) no
Person (excluding any corporation or other entity resulting from
such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation or entity
resulting from such Business Combination) beneficially owns
(within the meaning of SEC Rule 13d-3 under the Exchange Act),
directly or indirectly, 25% or more of the combined voting power
of the then outstanding voting securities of such corporation or
entity except to the extent that such ownership existed prior to
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the Business Combination, and (z) at least a majority of the
members of the board of directors or other governing body
(including trustees and/or general partners) of the corporation
or entity resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for
such Business Combination.
(c) Exchange Act shall mean the Securities Exchange Act
of 1934, as amended and the rules and regulations of the
Securities and Exchange Commission ("SEC") thereunder.
(d) Person shall mean any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act)."
B. THE NOTE
The following is hereby inserted as the penultimate paragraph on page 3 of the
Note:
" Upon the occurrence of a Change of Control as defined in the
Award Agreement, as amended, the entire principal amount of the Note and
all accrued and unpaid interest thereunder shall be forgiven and such
Note shall be deemed paid in full without the necessity of any payment
from the Borrower."
C. THE PLEDGE AGREEMENT
Section 12 of the Pledge Agreement is hereby amended to read in its entirety as
follows:
"Section 12. Termination. Upon payment in full of the Note, or upon a
Change of Control as defined in the Award Agreement as amended, this
Agreement shall terminate. Upon termination of this Agreement in
accordance with its terms, the Secured Party agrees to take such actions
as the Pledgor may reasonably request (a) to return the Collateral to
the Pledgor, and (b) to evidence the termination of this Agreement."
The foregoing amendments are entered into in consideration of the
continued service by Executive to the Company, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged.
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The Executive and the Company, intending to be legally bound, have
executed or caused this Agreement to be executed by the undersigned thereunto
duly authorized officer, to be effective as of December 17, 1999.
IRT PROPERTY COMPANY
By: /s/ Xxxxxx X. XxXxxxx
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Its President and CEO
/s/ Xxxxxx X. XxXxxxx
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Executive: Xxxxxx X. XxXxxxx
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