EXHIBIT 10.106
OPTION AWARD AGREEMENT
Issued Pursuant to the
2004 Amended and Restated Incentive Compensation Plan
of Glimcher Realty Trust
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.
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(1) Insert date that is one day before the 10th anniversary of the Effective
Date.
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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.
4. Vesting Period: Provided the Participant continues to perform services
(whether as an employee or Trustee) for the Company, any of its Subsidiaries, or
Affiliates through the third anniversary of the Date of Grant, 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
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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. All unvested Options held by the Participant shall terminate when the
Participant ceases to perform services of any kind (whether as an employee or
Trustee) for the Company, any of its Subsidiaries, or Affiliates for any reason
other than death or disability, provided that the Committee may, in its sole and
absolute discretion, allow the Participant to retain certain unvested Options
for a period of time after the Participant ceases to perform services, provided,
further, that in no instance shall the period of time that the Participant is
permitted to retain such unvested Options extend beyond 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.
(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.
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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.
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
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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.
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
delivered 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 substantially 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.
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(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.
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:
(i) 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) 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:
(a) immediately prior thereto the circumstances in (i)(a) or
(i)(b) above exist, or
(b) (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
(iii) 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
By: ________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of Board & Chief
Executive Officer
ACCEPTED:
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Participant
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Address
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City State Zip Code
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