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EXHIBIT 10.25
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 W. Xxxxxxxx Xxxxx, III (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:
(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 the then
outstanding shares of Company common stock ("Outstanding Company Common
Stock") and (y) all then outstanding voting securities of the Company
entitled to vote generally in the election of directors and/or 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 November 1, 1997 the
beneficial owner of 25% or more of the Outstanding Company Voting
Securities, (ii) any acquisition by the
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Company, provided no Change in 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 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 (3) of
this Section 8(b); or
(2) Individuals who, as of November 1, 1997, 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 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
(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
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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.
(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/ W. Xxxxxxxx Xxxxx, III
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Executive: W. Xxxxxxxx Xxxxx, III
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