EXHIBIT 10.2
LAW OFFICES OF GEORGE DONALDSON [STAMP]
GEORGE DONALDSON (79971)
DANIEL B. HARRIS (117230)
456 Montgomery Street, Suite 1250
San Francisco, CA 94104
Telephone: 415/394-8500
Settlement Counsel and
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
JACK OLIVE, JONATHAN NOBLE, ) Case No. C 89 4331 MHP
M.D., JOHN P. PEDJOE AND ) DERIVATIVE ACTION
ALLSOP, INC. PROFIT SHARING )
PLAN & TRUST, on behalf of )
themselves and all ) AMENDMENT TO THE SECOND
others similarly situated and ) AMENDMENT TO THE MODIFICATION
derivatively on behalf of ) OF STIPULATION OF SETTLEMENT
NATIONAL INCOME REALTY TRUST, )
a California business trust, )
CONTINENTAL MORTGAGE AND EQUITY )
TRUST, a California business )
trust, TRANSCONTINENTAL REALTY )
INVESTORS, a California )
business trust, and INCOME )
OPPORTUNITY REALTY TRUST, a )
California )
business trust, )
)
Plaintiffs, )
)
vs. )
)
GENE E. PHILLIPS; WILLIAM S. )
FRIEDMAN; RICHARD N. LAPP; )
MICHAEL E. SMITH; WILLIE K. )
DAVIS; RAYMOND V. J. SCHRAG; )
RANDALL K. GONZALEZ; JAMES W. )
HAMMOND JR.; NATIONAL REALTY )
ADVISORS, INC., a Texas )
corporation; NATIONAL REALTY, )
L.P., )
)
)
-- caption continues -- )
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AMENDMENT TO THE SECOND AMENDMENT TO THE MODIFICATION OF STIPULATION OF
SETTLEMENT
a Delaware limited partnership; )
AMERICAN REALTY TRUST, INC., a )
Georgia corporation; NATIONAL )
OPERATING L.P., a Delaware )
limited partnership; )
)
Defendants, )
)
-and- )
)
)
NATIONAL INCOME REALTY TRUST, a )
California business trust; )
CONTINENTAL MORTGAGE AND EQUITY )
TRUST, a California business )
trust; TRANSCONTINENTAL REALTY )
INVESTORS, a California )
business trust; and INCOME )
OPPORTUNITY REALTY TRUST, a )
California business trust; )
)
Nominal Defendants. )
)
- --------------------------------------
This amendment to the Second Amendment to the Modification of Stipulation
of Settlement is made and entered into as of February 4, 2002, by and among (i)
Settlement Counsel; (ii) Transcontinental Realty Investors, Inc. ("TRI") and
Income Opportunity Realty Investors, Inc. ("IORI")(collectively referred to as
the "Dallas Trusts"); and (iii) Gene E. Phillips ("Phillips"), Basic Capital
Management, Inc. ("BCM"), American Realty Investors, Inc. ("ARI"), the parent
corporation of American Realty Trust, Inc. ("ART").
The above parties, by and through their respective counsel of record,
hereby amend Exhibits B and C of the Second Amendment to the Modification of
Stipulation of Settlement, made and entered into as October 5, 2001, in the
following respects only. In the case of both Exhibits B and C, the first
sentence of
1
AMENDMENT TO THE SECOND AMENDMENT TO THE MODIFICATION OF STIPULATION OF
SETTLEMENT
the section entitled Conversion Rights shall be deleted and replaced with the
following sentence: "For a 75-day period commencing on the 15th day after the
public issuance of ARI's Form 10-Q to the public following the close date of the
Freeze-Out Merger, the preferred shares herein described may be converted into
shares of ARI common stock."
In the case of both Exhibits B and C, the second sentence of the section
entitled Redemption Rights shall be deleted and replaced with the following
sentence: "Redeemable by ARI no earlier than 90 days after the public issuance
of ARI's Form 10-Q to the public following the close date of the Freeze-Out
Merger at the liquidation preference plus any accrued and unpaid dividends
thereon."
2
AMENDMENT TO THE SECOND AMENDMENT TO THE MODIFICATION OF STIPULATION OF
SETTLEMENT
In all other respects, the Second Amendment remains unchanged.
LAW OFFICES OF GEORGE DONALDSON
456 Montgomery Street, Suite 1250
San Francisco, CA 94104
Telephone: (415) 394-8500
By /s/ GEORGE DONALDSON
-----------------------------------
George Donaldson
Settlement Counsel and Attorneys for
the Plaintiffs
COOLEY GODWARD LLP
One Maritime Plaza, Suite 2000
San Francisco, CA 94111
Telephone: (415) 693-2000
SIMON, WARNER & DOBY, L.L.P.
1700 City Center Tower II
301 Commerce Street
Fort Worth, TX 76102
Telephone: (817) 810-5250
By /s/ HENRY W. SIMON, JR.
-----------------------------------
Henry W. Simon, Jr.
Attorneys for Gene E. Phillips and
Basic Capital Management, Inc.
American Realty Trust, Inc. and
American Realty Investors, Inc.
HELLER EHRMAN WHITE & MCAULIFFE
333 Bush Street, Suite 3000
San Francisco, CA 94104-2878
By /s/ JESSICA S. PERS
-----------------------------------
Jessica S. Pers
Attorneys for the Dallas Trusts
3
AMENDMENT TO THE SECOND AMENDMENT TO THE MODIFICATION OF STIPULATION OF
SETTLEMENT