OPTION AWARD AGREEMENT Issued Pursuant to the of Glimcher Realty Trust
Exhibit
4.10
Issued
Pursuant to the
2004
Amended and Restated Incentive Compensation Plan
THIS
OPTION AWARD AGREEMENT (“Agreement”), effective ____ , (the “Effective Date”)
represents the grant of a nonqualified option (“Option”) by Glimcher Realty
Trust (the “Company”), to__________ (the “Participant”) pursuant to the
provisions of the Glimcher Realty Trust 2004 Amended and Restated Incentive
Compensation Plan adopted by its Board of Trustees (the “Board”) on or about
March 15, 2004 (the “Plan”), initially approved by the Company’s shareholders on
May 7, 2004 and, with respect to certain amendments and other matters, again
on
May 11, 2007. The Option granted hereby is intended to be an “NQSO” as such term
is defined in the Plan.
The
Plan
provides a complete description of the terms and conditions governing this
Option. If there is any inconsistency between the terms of this Agreement and
the terms of the Plan, the Plan’s terms shall completely supersede and replace
the conflicting terms of this Agreement. All capitalized terms shall have the
meanings ascribed to them in the Plan, unless specifically set forth otherwise
herein. The parties hereto agree as follows:
1. General
Option Grant Information.
The
individual named above has been selected to be a Participant in the Plan and
receive a nonqualified option grant, as specified below:
(a) Date
of Grant:
(b) Number
of Shares Covered by this Option:
(c) Option
Price:
(d) Date
of Expiration:
_________1
2. Grant
of Option.
The
Company hereby grants to the Participant an Option to purchase the number of
Shares set forth above, at the stated Option Price per share, which is one
hundred percent (100%) of the Fair Market Value of a Share on the Date of Grant,
in the manner and subject to the terms and conditions of the Plan and this
Agreement. The Committee has determined that the Fair Market Value of a Share
on
the Date of Grant is equal to the per share closing market price of the Shares
on the New York Stock Exchange on the Date of Grant.
3. Option
Term.
The term
of this Option begins as of the Date of Grant as detailed above and continues
through the Date of Expiration as detailed above, unless sooner terminated
in
accordance with the terms of this Agreement.
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Insert
date that is one day before the 10th anniversary of the
Effective Date.
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4. Vesting
Period:
This
Option shall vest and be exercisable (immediately if Trustee), as to one-third
of the total Shares covered by the Option, each year over a three year period,
with the first one-third vesting on the first anniversary of the date of grant,
the second one-third vesting on the second anniversary of the date of grant,
and
the third one-third vesting on the third anniversary of the date of
grant.
5. Exercise:
The
Participant, or the Participant’s representative upon the Participant’s death,
may exercise this Option to the extent vested at any time prior to the
termination of the Option as provided in Sections 3 and 8.
6. How
to Exercise:
Once
vested, the Options hereby granted shall be exercised by written notice to
the
Committee or
such
other administrator appointed by the Committee, specifying the number of Shares
subject to this Option Participant desires to exercise. Payment for the Shares
purchased pursuant to the exercise of the Options hereby granted shall be made
by paying the Option Price per Share in full at the time of the exercise of
the
Option.
7. Nontransferability.
(a)
In
General.
Except
as may be provided in clause (b), below, this Option may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution, except as provided
in
the Plan. No assignment or transfer of the Option in violation of this Section
7, whether voluntary or involuntary, by operation of law or otherwise, except
by
will or the laws of descent and distribution or as otherwise required by
applicable law, shall vest in the assignee or transferee any interest
whatsoever.
(b)
Transfers
With The Consent of the Committee.
With
the prior written consent of the Committee, the Option granted hereby may be
transferred by the Participant to any one or more of the following persons
(each, a “Permitted Assignee”): (i) the spouse, parent, issue, spouse of issue,
or issue of spouse (“issue” shall include all descendants whether natural or
adopted) of such Participant; (ii) a trust for the benefit of one or more of
those persons described in clause (i) above or for the benefit of such
Participant, or for the benefit of any such persons and such Participant; or
(iii) an entity in which the Participant or any Permitted Assignee thereof
is a beneficial owner; provided, however, that such Permitted Assignee shall
be
bound by all of the terms and conditions of the Plan and shall execute an
agreement satisfactory to the Company evidencing such obligation; and provided
further, however, that such Participant shall remain bound by the terms and
conditions of this Plan. The Company shall cooperate with a Participant’s
Permitted Assignee and the Company’s transfer agent in effectuating any transfer
permitted pursuant to this Section 7(b).
8. Termination
of Option:
(a)
In
General.
The
Option, which is exercisable as provided in Paragraph 5 above, shall terminate
and be of no force or effect if the Participant ceases to perform services
of
any kind (whether as an employee or Trustee) for the Company or any of its
Subsidiaries or Affiliates for any reason other than death or disability;
provided,
however,
that
under conditions satisfactory to the Company, the Committee may, in its sole
discretion, allow any Options granted to such Participant not previously
exercised or expired to be exercisable for a period of time to be specified
by
the Committee; provided,
further,
that in
no instance may the term of the Option, as so extended, exceed the date of
expiration set forth in Section 1(d), above.
(b)
Death.
In the
event a Participant dies while employed by the Company or any of its
Subsidiaries or Affiliates, any Option(s) held by such Participant (or his
or
her Permitted Assignee) and not previously expired or exercised shall, to the
extent exercisable on the date of death, be exercisable by the estate of such
Participant or by any person who acquired such Option by bequest or inheritance,
or by the Permitted Assignee, at any time within one year after the death of
the
Participant, unless earlier terminated pursuant to its terms, provided,
however,
that in
no instance may the term of the Option, as so extended, exceed the date of
expiration set forth in Section 1(d) above.
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(c)
Disability.
In the
event a Participant ceases to perform services of any kind (whether as an
employee or Trustee) for the Company or any of its Subsidiaries or Affiliates
due to permanent and total disability, the Participant, or his guardian or
legal
representative, or a Permitted Assignee, shall have the unqualified right to
exercise any Option(s) which have not been previously exercised or expired
and
which the Participant was eligible to exercise as of the first date of permanent
and total disability (as determined in the sole discretion of the Committee),
at
any time within one year after the first date of permanent and total disability,
unless earlier terminated pursuant to its terms, provided,
however,
that in
no instance may the term of the Option, as so extended, exceed the date of
expiration set forth in Section 1(d), above. For purposes of this Agreement,
the
term “permanent and total disability” means the Participant is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
12 months, and the permanence and degree of which shall be supported by medical
evidence satisfactory to the Committee. Notwithstanding anything to the contrary
set forth herein, the Committee shall determine, in its sole and absolute
discretion, (1) whether a Participant has ceased to perform services of any
kind
due to a permanent and total disability and, if so, (2) the first date of such
permanent and total disability.
9. Administration.
This
Agreement and the rights of the Participant hereunder are subject to all the
terms and conditions of the Plan, as the same may be amended from time to time,
as well as to such rules and regulations as the Committee may adopt for
administration of the Plan. It is expressly understood that the Committee is
authorized to administer, construe, and make all determinations necessary or
appropriate to the administration of the Plan and this Agreement, all of which
shall be binding upon the Participant. Any inconsistency between the Agreement
and the Plan shall be resolved in favor of the Plan.
10. Reservation
of Shares.
The
Company hereby agrees that at all times there shall be reserved for issuance
and/or delivery upon exercise of the Option such number of Shares as shall
be
required for issuance or delivery upon exercise hereof.
11. Adjustments.
The
number of Shares subject to this Option, and the exercise price, shall be
subject to adjustment in accordance with Section 4.4 of the Plan.
12. Exclusion
from Pension Computations.
By
acceptance of the grant of this Option, the Participant hereby agrees that
any
income or gain realized upon the receipt or exercise hereof, or upon the
disposition of the Shares received upon its exercise, is special incentive
compensation and shall not be taken into account, to the extent permissible
under applicable law, as “wages”, “salary” or “compensation” in determining the
amount of any payment under any pension, retirement, incentive, profit sharing,
bonus or deferred compensation plan of the Company or any of its Subsidiaries
or
Affiliates.
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13. Amendment.
The
Committee may, with the consent of the Participant, at any time or from time
to
time amend the terms and conditions of the Option, and may at any time or from
time to time amend the terms of this Option in accordance with the Plan.
14. Notices.
Any
notice which either party hereto may be required or permitted to give to the
other shall be in writing, and may be delivered personally or by mail, postage
prepaid, or overnight courier, addressed as follows: if to the Company, at
its
office at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000 or at such other address
as
the Company by notice to the Participant may designate in writing from time
to
time; and if to the Participant, at the address shown below his or her signature
on this Agreement, or at such other address as the Participant by notice to
the
Company may designate in writing from time to time. Notices shall be effective
upon receipt.
15. Withholding
Taxes.
The
Company shall have the right to withhold from a Participant (or a Permitted
Assignee thereof), or otherwise require such Participant or assignee to pay,
any
Withholding Taxes arising as a result of the grant of any Award, exercise of
an
Option, or any other taxable event occurring pursuant to the Plan or this
Agreement. If the Participant (or a Permitted Assignee thereof) shall fail
to
make such tax payments as are required, the Company (or its Affiliates or
Subsidiaries) shall, to the extent permitted by law, have the right to deduct
any such Withholding Taxes from any payment of any kind otherwise due to such
Participant or to take such other action as may be necessary to satisfy such
Withholding Taxes. In satisfaction of the requirement to pay Withholding Taxes,
the Participant (or Permitted Assignee) may make a written election which may
be
accepted or rejected in the discretion of the Committee, (i) to have withheld
a
portion of any Shares or other payments then issuable to the Participant (or
Permitted Assignee) pursuant to any Award, or (ii) to tender other Shares to
the
Company (either by actual delivery or attestation, in the sole discretion of
the
Committee, provided that,
except
as otherwise determined by the Committee, the Shares that are tendered must
have
been held by the Participant for at least six (6) months prior to their tender
to satisfy the Option Price or have been purchased on the open market), in
either case having an aggregate Fair Market Value equal to the Withholding
Taxes.
16. Registration;
Legend.
The
Company may postpone the issuance and delivery of Shares upon any exercise
of
this Option until (a) the admission of such Shares to listing on any stock
exchange or exchanges on which Shares of the Company of the same class are
then
listed and (b) the completion of such registration or other qualification of
such Shares under any state or federal law, rule or regulation as the Company
shall determine to be necessary or advisable. The Participant shall make such
representations and furnish such information as may, in the opinion of counsel
for the Company, be appropriate to permit the Company, in light of the then
existence or non-existence with respect to such Shares of an effective
Registration Statement under the Securities Act of 1933, as amended, to issue
the Shares in compliance with the provisions of that or any comparable
act.
The
Company may cause the following or a similar legend to be set forth on each
certificate representing Shares or any other security issued or issuable upon
exercise of this Option unless counsel for the Company is of the opinion as
to
any such certificate that such legend is unnecessary:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD
OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS
ESTABLISHED BY AN OPINION FROM COUNSEL TO THE COMPANY.
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17. Miscellaneous.
(a) This
Agreement shall not confer upon the Participant any right to continuation of
employment by the Company, nor shall this Agreement interfere in any way with
the Company’s right to terminate the Participant’s employment at any
time.
(b) The
Participant shall have no rights as a stockholder of the Company with respect
to
the Shares subject to this Option Agreement until such time as the purchase
price has been paid, and the Shares have been issued and deliv-ered to the
Participant.
(c) With
the
approval of the Board, the Committee may terminate, amend, or modify the Plan;
provided, however, that no such termination, amendment, or modification of
the
Plan may in any way adversely affect the Participant’s rights under this
Agreement.
(d) This
Agreement shall be subject to all applicable laws, rules, and regulations,
and
to such approvals by any governmental agencies or national securities exchanges
as may be required.
(e) To
the
extent not preempted by federal law, this Agreement shall be governed by, and
construed in accordance with the laws of the State of New York.
(f) All
obligations of the Company under the Plan and this Agreement, with respect
to
the Option, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substan-tially all of the
business and/or assets of the Company.
(g) The
provisions of this Agreement are severable and if any one or more provisions
are
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
(h) By
accepting
this Award or other benefit under the Plan, the Participant and each person
claiming under or through the Participant shall be conclusively deemed to have
indicated their acceptance and ratification of, and consent to, any action
taken
under the Plan by the Company, the Board or the Committee.
(i) The
Participant, every person claiming under or through the Participant, and the
Company hereby waives to the fullest extent permitted by applicable law any
right to a trial by jury with respect to any litigation directly or indirectly
arising out of, under, or in connection with the Plan or this Award Agreement
issued pursuant to the Plan.
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18. Exculpation.
This
Option and all documents, agreements, understandings and arrangements relating
hereto have been executed by the undersigned in his/her capacity as an officer
or Trustee of the Company, which has been formed as a Maryland real estate
investment trust pursuant to an Amended and Restated Declaration of Trust of
the
Company dated as of November 1, 1993, as amended, and not individually, and
neither the Trustees, officers or shareholders of the Company nor the trustees,
directors, officers or shareholders of any subsidiary or affiliate of the
Company shall be bound or have any personal liability hereunder or thereunder.
Each party hereto shall look solely to the assets of the Company for
satisfaction of any liability of the Company in respect of this Option and
all
documents, agreements, understanding and arrangements relating hereto and will
not seek recourse or commence any action against any of the Trustees, officers
or shareholders of the Company or any of the trustees, directors officers or
shareholders of any subsidiary or affiliated of the Company, or any of their
personal assets for the performance or payment of any obligation hereunder
or
thereunder. The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties
hereto.
19. Change
in Control.
The
unvested portion of any Option granted to the Participant hereunder shall
immediately vest in its entirety on the day immediately prior to the date of
a
Change in Control of the Company and become fully exercisable in accordance
with
its terms. For purposes of this section, a “Change in Control of the Company”
shall be deemed to occur if:
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(i)
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there
shall have occurred a change in control of a nature that would be
required
to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A
promulgated under the Securities Exchange Act of 1934, as amended
(the
“Exchange
Act”),
as in effect on the date hereof, whether or not the Company is then
subject to such reporting requirement; provided,
however,
that there shall not be deemed to be a Change in Control of the Company
if
immediately prior to the occurrence of what would otherwise be a
Change in
Control of the Company: (a) the Participant is the other party to
the
transaction (a “Control
of the Company Event”)
that would otherwise result in a Change in Control of the Company
or (b)
the Participant is an executive officer, trustee, director or more
than 5%
equity holder of the other party to the Control of the Company Event
or of
any entity, directly or indirectly, controlling such other
party;
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(ii)
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the
Company merges or consolidates with, or sells all or substantially
all of
its assets to, another company (each, a “Transaction”);
provided,
however,
that a Transaction shall not be deemed to result in a Change in Control
of
the Company if:
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(a)
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immediately
prior thereto the circumstances in (i)(a) or (i)(b) above exist,
or
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(b)
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(1)
the shareholders of the Company, immediately before such transaction,
own,
directly or indirectly, immediately following such Transaction in
excess
of fifty percent (50%) of the combined voting power of the outstanding
voting securities of the corporation or other entity resulting from
such
Transaction (the “Surviving
Corporation”)
in substantially the same proportion as their ownership of the voting
securities of the Company immediately before such Transaction and
(2) the
individuals who were members of Company’s Board of Trustees immediately
prior to the execution of the agreement providing for such Transaction
constitute at least a majority of the members of the board of directors
or
the board of trustees, as the case may be, of the Surviving Corporation,
or of a corporation or other entity beneficially, directly or indirectly,
owning a majority of the outstanding voting securities of the Surviving
Corporation; or
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(iii)
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the
Company acquires assets of another company or a subsidiary of the
Company
merges or consolidates with another company (each an “Other
Transaction”)
and (a) the shareholders of the Company, immediately before such
Other
Transaction own, directly of indirectly, immediately following such
Other
Transaction fifty percent (50%) or less of the combined voting power
of
the outstanding voting securities of the corporation or other entity
resulting from such Other Transaction (the “Other
Surviving Corporation”)
in substantially the same proportion as their ownership of the voting
securities of the Company immediately before such Other Transaction
or (b)
the individuals who were members of Company’s Board of Trustees
immediately prior to the execution of the agreement providing for
such
Other Transaction constitute less than a majority of the members
of the
board of directors or board of trustees, as the case may be, of the
Other
Surviving Corporation, or of a corporation or other entity beneficially,
directly or indirectly, owing a majority of the outstanding voting
securities of the Other Surviving Corporation; provided,
however,
that an Other Transaction shall not be deemed to result in a Change
in
Control of the Company if immediately prior thereto the circumstances
in
(i)(a) or (i)(b) above exist.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
| GLIMCHER REALTY TRUST | ||
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Name:
Xxxxxxx X. Xxxxxxxx
Title:
President & CEO
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ACCEPTED:
Participant
Address
City State Zip
Code
7
