FALSE000146608500014660852022-11-082022-11-08
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): November 8, 2022
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Independence Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
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Maryland | 001-36041 | 26-4567130 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
1835 Market Street, Suite 2601
Philadelphia, Pennsylvania, 19103
(Address of Principal Executive Office) (Zip Code)
(267) 270-4800
(Registrant’s telephone number, including area code)
N/A
Former name or former address, if changed since last report
_____________________________________________
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
Common stock | | IRT | | NYSE |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On November 8, 2022, Independence Realty Trust, Inc. (the “Company”) and Ella S. Neyland, the Company’s Chief Operating Officer and a member of the Company’s Board of Directors (the “Board”), agreed that Ms. Neyland will resign from employment as the Company’s Chief Operating Officer and resign from the Board, effective December 15, 2022. Ms. Neyland’s resignation is not because of a disagreement with the Company on any matter relating to the Company’s operations, policies or practices.
Ms. Neyland’s resignation from service as the Company’s Chief Operating Officer will constitute a resignation with Good Reason (as defined in her employment agreement with the Company) and therefore entitle her to (i) accelerated vesting of time-based restricted stock units, (ii) pro-rata vesting of performance-based restricted stock units (based on actual corporate performance), and (iii) severance pay and benefits, in each case in accordance with her pre-existing employment agreement and equity award forms (and in each case subject to her execution of a general release of claims). The applicable equity award forms and Ms. Neyland’s employment agreement (including amendments No. 1 and No. 2 to that employment agreement) were filed as Exhibits 10.15, 10.16, 10.22, 10.23 and 10.24 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (filed with the Securities and Exchange Commission on February 24, 2022).
In connection with Ms. Neyland’s cessation of service, the Company and Ms. Neyland entered into a Consulting Agreement dated November 8, 2022 (the “Consulting Agreement”) pursuant to which Ms. Neyland will provide consulting services to the Company through June 15, 2024. Under the Consulting Agreement, Ms. Neyland will serve as a special consultant to the Chief Executive Officer of the Company, providing advice and counsel specific to the portfolio of assets which the Company acquired from Steadfast Apartment REIT, Inc., for whom Ms. Neyland’s served as President for over 8 years. In exchange for her counsel, Ms. Neyland will receive a consulting fee of $31,100 per month. The foregoing description of the Consulting Agreement is qualified in its entirety by reference to the full text of the form of Consulting Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d)Exhibits.
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| 10.1 | | |
| 104 | | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| Independence Realty Trust, Inc. |
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| November 8, 2022 | By: | /s/ James J. Sebra |
| Name: | James J. Sebra |
| Title: | Chief Financial Officer and Treasurer |
Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the “Agreement”) by and among Independence Realty Trust, Inc., a Maryland corporation (the “Company”) and Ella Neyland (“Consultant”) is entered into on November 8, 2022. The Company and Consultant are referred to herein as the “Parties” (or each separately, a “Party”).
WHEREAS, Executive employment by the Company and its affiliates (the “Company Group”) and her service as an officer and director of any member of the Company Group will cease on December 15, 2022 (the “Termination Date”); and
WHEREAS, to retain the continued benefit of Consultant’s unique knowledge and experience, the Company wishes to engage Consultant to perform certain limited consulting services pursuant to this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and fully intending to be legally bound hereby, Consultant and the Company agree as follows:
1.Consulting Services. During the period beginning on the Termination Date and ending on the date described in Section 3 below (the “Consulting Period”), Consultant will furnish to the Company such consulting or advisory services as the Chief Executive Officer of the Company or his delegate may reasonably request (the “Services”), it being understood by the Parties that (i) Consultant shall be available during the Consulting Period upon reasonable notice and at reasonable times to perform the Services, either in person or by telephone, (ii) in performing the Services, Consultant will not be an employee of the Company, but rather will be an independent contractor, and (iii) Consultant will perform the Services in a timely, professional manner using her reasonable best efforts, and (iv) the Services are not expected to exceed, on average, 30 hours per month and will be scheduled with due regard for Consultant’s other professional obligations.
2.Payment for Consulting Services. In consideration of Consultant’s obligation to remain available to and to perform the Services, the Company will pay to Consultant a retainer of $31,100 per month (the “Consulting Fees”) for each full month of the Consulting Period. Such monthly amounts will be payable in arrears, in each case within 10 business days following the end of the applicable month.
3.Early Termination of Consulting Period. The Consulting Period will end on the earliest to occur of (i) June 15, 2024, (ii) Consultant’s death, (iii) Consultant’s material breach of this Agreement or of any surviving provision of the Employment Agreement between Executive and the Company dated September 1, 2020, as amended (the “Employment Agreement”), and (iv) the 60th day following the Termination Date, if by that date the release of claims contemplated by Section 4(b)(ii) of the Employment Agreement has not been executed by Consultant and become irrevocable. Upon early termination of the Consulting Period pursuant to Section 3(ii), (iii) or
(iv), payment of the Consulting Fee for the final month of service will be pro-rated for the number of days actually served in that month.
4.Independent Contractor Status.
(a)Consultant agrees and acknowledges that (i) the Services will be in the nature of consulting only, (ii) after the Termination Date, her relationship with the Company Group will be as an independent contractor and not an employee, (iii) she will not be eligible to participate in any incentive or employee benefit plan, program or arrangement of the Company Group as a result of her engagement hereunder, and (iv) she will have sole responsibility to pay all taxes arising from any payments made pursuant to this Agreement, including any social security taxes and any other federal, state or local taxes.
(b)After the Termination Date, Consultant will not (i) have the authority to act as, and shall not hold herself out as, a representative or agent of the Company Group, (ii) have authority to bind the Company Group, and (iii) have any policy making authority with respect to the Company Group.
5.Separation from Service. The Parties have considered the nature and volume of services expected to be performed by Consultant under this Agreement and concluded that the existence or performance of this Agreement will not alter their conclusion that Consultant will experience a “separation from service” (as defined in Treas. Reg. § 1.409A-1(h)) with the Company Group on the Termination Date. In addition, the Parties acknowledge and agree that the Consulting Payments are not a substitute for any other amount payable to Consultant by the Company Group. Nonetheless, the Company Group makes no guaranty regarding the tax treatment of any compensation paid or payable to Consultant and will have no liability to Consultant if compensation paid or payable to her does not receive the expected tax treatment.
6.Confidential Information. Consultant may be provided or have access to confidential, trade secret, and/or proprietary information of the Company Group (“Confidential Information”) in the course of providing the Services. At all times in the future, Consultant will keep secret and will not disclose, except internally within the Company Group, any Confidential Information, and will not use such Confidential Information on behalf of any person or entity other than members of the Company Group; provided, however, Consultant understands that nothing in this Agreement prohibits her from reporting to any governmental authority information concerning possible violations of law or regulation, and that Consultant may disclose trade secret information to a government official or an attorney and use it in certain court proceedings without fear of prosecution, liability or retaliation, provided Consultant does so in compliance with 18 U.S.C. § 1833.
7.Entire Agreement. This Agreement constitutes the entire agreement between Consultant and the Company with respect to the subject matter hereof. Amendments to this Agreement will not be effective unless they are in writing and signed by Consultant and a duly authorized representative of the Company.
8.Choice of Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement will be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without giving effect to any conflict-of-law rules or provisions.
9.Binding Effect. This Agreement will be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns, if any. This Agreement may be assigned by the Company to any other member of the Company Group, or to an acquirer in connection with a sale of all or substantially all of the assets of the Company. This Agreement is personal to Consultant and may not be assigned by her.
10.Captions. The captions and headings set forth in this Agreement are for convenience of reference only and will not be construed as a part of this Agreement.
11.Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Signature Page Follows.
IN WITNESS WHEREOF, Consultant and the Company have caused this Agreement to be duly executed on the day and year first written above.
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| | | CONSULTANT |
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| | | /s/ Ella S. Neyland |
| | | Ella S. Neyland |
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| | | INDEPENDENCE REALTY TRUST, INC. |
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| | | By: | /s/ Scott F. Schaeffer |
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| | | Name: | Scott F. Schaeffer |
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| | | Title: | Chairman of the Board and Chief Executive Officer |