EXHIBIT 10.4
IRT PROPERTY COMPANY
RESTRICTED STOCK AWARD AGREEMENT
IRT Property Company (the "Company") hereby grants to X. Xxxxxxxx Xxxxxxxx
(the "Executive") 30,000 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: 30,000
Date of Grant: May 30, 2002
Vesting Date(s) of Restricted Stock: 10% on June 1, 2002
20% on June 1, 2003
30% on June 1, 2004
40% on June 1, 2005
Restrictions applicable to Restricted Stock:
(a) The Restricted Stock is subject to each of the following
restrictions. The term "Restricted Shares" means those shares of Common Stock
which are subject to the restrictions imposed hereunder which restrictions have
not then expired or terminated. The Restricted Shares may not be sold,
transferred, exchanged, pledged, encumbered, or hypothecated to or in favor of
any party, other than the Company or a Subsidiary, or be subject to any lien,
pledge, hypothecation, security interest, obligation, or liability of the
Executive to any other party, other than the Company or a Subsidiary. If the
Executive's employment with the Company or any Subsidiary is terminated for any
reason other than death, Disability, or as provided in paragraph (b) below, then
the Executive shall forfeit all of the Executive's right, title, and interest in
and to the Restricted Shares as of the date Executive's employment terminates,
and such Restricted Shares shall automatically be reconveyed to the Company
without further consideration or any act or action by the Executive. The
restrictions imposed under this paragraph (a) shall apply to all shares of
Common Stock or other securities issued with respect to the Restricted Stock
hereunder in accordance with Article 14 of the Plan.
(b) The restrictions imposed under paragraph (a) above will expire on
respective vesting dates shown above, and the period between the grant date and
the date that the respective restrictions expire is referred to herein as the
"Restricted Period". For example, if on May 31, 2002 the Executive has since the
grant date been in the continuous employ of the Company or a Subsidiary, 3,000
shares will vest and no longer be Restricted Shares that are subject to
forfeiture. The foregoing and paragraph (a) notwithstanding, all Restricted
Shares held by the Executive shall immediately vest (i) upon the death or
Disability of the Executive, (ii) upon the Executive's termination of employment
without cause or for "good reason" pursuant to Section 5(a) or 5(c) of that
certain Change in Control Employment Agreement by and between the Company and
the Executive, dated as of January 1, 2000, or (iii) 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.
(c) 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 and until
released from any pledge of such shares of Common Stock of the Company.
(d) The Executive, as the beneficial owner of the Restricted Shares,
shall have full voting and dividend rights with respect to the Restricted Shares
during the Restricted Period.
(e) Certificates representing shares of Restricted Stock shall bear the
following legend:
THE SHARES ARE SUBJECT TO A RESTRICTED STOCK AWARD AGREEMENT DATED AS OF May 30,
2002 (THE "AWARD AGREEMENT"), AND NO SHARES NOR ANY RIGHTS OR INTERESTS THEREIN
MAY BE SOLD, EXCHANGED, PLEDGED, HYPOTHECATED, OR OTHERWISE 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 whole 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 minimum 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. The obligations of the Company under this Agreement will be
conditional on such payment or arrangements, and the Company, and, where
applicable, its Subsidiaries will, to the extent permitted by law, have the
right to deduct any such withholding amounts from any payment of any kind
otherwise due to the Executive.
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. NO RIGHT OF CONTINUED EMPLOYMENT. Nothing in this Agreement shall
interfere with or limit in any way the right of the Company or Subsidiary to
terminate the Executive's employment at any time, nor confer upon the Executive
any right to continue in the employ of the Company or any Parent or Subsidiary.
This Agreement is not intended to, nor shall it effect any change in the terms
or interpretation of any employment or change in control agreement between the
Company or any Subsidiary and the Executive.
4. DELIVERY OF SHARES. Certificates representing the shares of Common
Stock will be delivered by the Company to the Executive as soon as practicable
after vesting of the Restricted Stock and any release from pledge, 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, applicable withholding requirements 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 the Parties' respective permitted successors and assigns, in
accordance with the terms of this Restricted Stock Award Agreement.
6. PLAN CONTROLS. The terms contained in the Plan are incorporated
into and made a part of this Agreement, and this Agreement shall be governed by
and construed in accordance with the Plan. In the event of any actual or
alleged conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of the Plan shall be controlling and determinative.
7. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia. All shares of Restricted
Stock, and shares of Common Stock resulting after the Restricted Period from
such shares of Restricted Stock are hereby pledged to secure the Executive's
obligations under a Secured Promissory Note and a Pledge Agreement of even date
herewith and all certificates representing all such shares shall be held by the
Company until all of the Executive's obligations under the Secured Promissory
Note and Pledge Agreement have been irrevocably paid in full, or otherwise in
the Company's sole discretion, as and to the extent such shares are released.
[signatures appear on following page]
IN WITNESS WHEREOF, IRT Property Company, acting by and through its duly
authorized officers, has caused this Agreement to be executed, and the Executive
has executed this Agreement, all as of May 30, 2002.
IRT PROPERTY COMPANY
By: /s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Date: May 30, 2002
As of May 30, 2002, 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 least 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/ E. Xxxxxxx Xxxxxxxx
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Executive
