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EXHIBIT 10.28
PERSONAL AND CONFIDENTIAL
IRT PROPERTY COMPANY
RESTRICTED STOCK AWARD AGREEMENT
IRT Property Company (the "Company") hereby grants to Xxx X. Xxxxxxxx
(the "Executive") 5,556 shares of the Company's $1.00 par value common stock
("Common Stock") set forth herein ("Restricted Stock") pursuant to the IRT
Property Company 1998 Long Term Incentive Plan, and the Executive hereby
accepts such grant upon such terms and conditions. Capitalized terms used but
not defined herein shall have the meanings specified in the Plan.
RESTRICTED STOCK GRANT
Number of shares of Restricted Stock granted: 5,556
Date of Grant: December 17, 1999
Vesting Date(s) of Restricted Stock: 618 (Shares of Restricted Stock
granted hereby shall vest on January
31 of each year commencing 2000,
with the balance vesting on January
31, 2008)
Restrictions applicable to Restricted Stock:
(a) The Executive must remain in the continuous employ of the
Company or a Subsidiary of the Company until the respective vesting dates shown
above (the "Restricted Period"). For example, if on January 31, 2000 the
Executive has since the grant date been in the continuous employ of the Company
or an affiliate that is consolidated with the Company in the Company's
consolidated financial statements, 618 shares will vest and no longer be
subject to forfeiture. The foregoing notwithstanding, all shares of Restricted
Stock shall immediately vest upon the death or Disability of the Executive, as
provided in Section 7 hereof, or upon any action of the Board of Directors or
the Compensation Committee to vest such shares earlier than the scheduled
vesting date. For purposes hereof, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a full-time basis for
180 consecutive days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected
by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative.
(b) The shares of Common Stock will be issued in the name of the
Executive as Restricted Stock and the certificates representing such shares
will be held by the Company during the Restricted Period until vested.
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(c) The Executive, as beneficial owner of the Restricted Shares,
shall have full voting and dividend rights with respect to the Restricted
Shares during the Restricted Period.
(d) Certificates representing shares of Restricted Stock shall bear
the following legend:
THE SHARES ARE SUBJECT TO A RESTRICTED STOCK AWARD AGREEMENT DATED AS
OF JANUARY 7, 2000 (THE "AWARD AGREEMENT"), AND NO SHARES OR ANY
RIGHTS OR INTERESTS THEREIN MAY BE SOLD, TRANSFERRED OR DISPOSED OF
EXCEPT IN ACCORDANCE WITH THE AWARD AGREEMENT.
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The following additional terms shall apply to this Restricted Stock
Agreement:
1. TAX WITHHOLDING. Prior to the delivery of any certificate or
certificates for shares acquired upon the vesting of Restricted Stock
hereunder, the Executive must satisfy federal, state and local withholding tax
obligations by either (a) delivering to the Company shares of Common Stock, or
(b) directing the Company to withhold certain of such shares, or (c) remitting
to the Company a sufficient amount of cash to satisfy the withholding
requirements. No election to satisfy withholding under (a) or (b) shall be
effective unless approved by the Board of Directors of the Company, in its sole
discretion. If withholding is to be satisfied under either (a) or (b), the
Common Stock used for payment shall have a fair market value (as determined by
the Board) on the date of delivery or withholding, which shall be the date the
withholding tax is determined, equal to the amount of the taxes to be withheld.
Any election by the Executive to satisfy withholding under (a) or (b) must be
made in writing, signed by the Executive and delivered by the Executive prior
to the date the amount of the withholding tax is determined, and shall be
irrevocable. The portion of any withholding tax represented by a fractional
share must be paid in cash.
2. PAYMENT OF WITHHOLDING OBLIGATIONS. Prior to the delivery of
stock certificates to the Executive pursuant to vesting of shares of Restricted
Stock, the Executive shall deliver to the Company his check and/or a stock
certificate registered in the name of the Executive duly assigned to the
Company (with the assignment guaranteed by a bank, trust company, member firm
of the New York Stock Exchange ("NYSE") or other participant in a Signature
Guarantee Medallion Program), or directions for withholding of shares (as
applicable) which the Board of Directors has permitted the Executive to
transfer for satisfying federal and state withholding tax obligations.
3. TRANSFERABILITY. None of the shares of Restricted Stock granted
hereby or any interest therein are transferable or assignable prior to vesting.
Until vesting, neither the shares nor any interest therein may be sold, pledged
or transferred in any manner, nor
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will any assignee or transferee thereof be recognized as an owner by the
Company for any purpose.
4. DELIVERY OF SHARES. Certificates representing the shares of
Common Stock shall be delivered as soon as practicable after vesting of the
shares of Restricted Stock, but such delivery may be postponed for such period
as may be required for the Company with reasonable diligence to comply if
deemed advisable by the Company, with registration requirements under the 1933
Act, listing requirements under the rules of the NYSE, and requirements under
any other law or regulation applicable to the issuance or transfer of such
shares.
5. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of any successor of the Company, in accordance with the terms of
this Restricted Stock Award Agreement.
6. MISCELLANEOUS. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
7. VESTING ON CHANGE OF CONTROL. Upon the occurrence of a Change
of Control, all of the shares of Restricted Stock granted under this Agreement
shall vest immediately.
8. CERTAIN DEFINITIONS.
(a) Affiliate 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:
(1) 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 then
outstanding 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 Company Common Stock, the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (1), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition by a
Person who was on July 1, 1999 the beneficial owner of 25% or more of the
Outstanding Company Voting Securities, (ii) any acquisition by the Company,
provided no Change of Control has previously occurred or would result therefrom
under subsections 8(b)(2) and 8(b)(3) of this Agreement, (iii) any acquisition
by any employee benefit plan (or related
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trust) sponsored or maintained by the Company or any Affiliated Company, or
(iv) any acquisition by any Person pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection 8(b)(3); or
(2) Individuals who, as of July 1, 1999, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to July 1, 1999 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
(3) 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, (i) 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 then
outstanding shares of common stock and the combined voting power of 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,
(ii) 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 the Business Combination, and (iii)
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.
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(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.
IN WITNESS WHEREOF, the Company has caused this Restricted Stock Award
Agreement to be executed and delivered as of the date shown below by the
undersigned officer thereunto duly authorized.
IRT PROPERTY COMPANY
By: /s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Dated as of: January 7, 2000
As of the day and year first above written, I hereby accept the above
Restricted Stock grant in accordance with and subject to the terms and
conditions set forth above, and pledge all such Restricted Stock to the
Company, and I agree that any shares of Common Stock, together with all
substitutions and replacements therefore received by me hereunder will not be
sold or otherwise disposed of by me except in a manner in compliance with
applicable securities laws. I agree to notify the Company at lease five
business days in advance of any proposed sale or other disposition of any such
shares following the vesting thereof and as permitted by the Pledge Agreement.
/s/ Xxx X. Xxxxxxxx
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Executive: Xxx X. Xxxxxxxx
Date: January 7, 2000
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