Exhibit 10.1
Glimcher Realty Trust and
Glimcher Properties Limited Partnership
EMPLOYMENT AND CONSULTING AGREEMENT
with
Xxxxxxx Xxxxxxxx
This Employment Agreement ("Agreement") is made this 20th day of January
2005, by and between GLIMCHER REALTY TRUST, a Maryland real estate investment
trust with offices at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (the "Trust"),
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership with
offices at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (the "Partnership";
together with the Trust, the "Company"), and XXXXXXX XXXXXXXX, an individual
residing at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ( "Glimcher").
WHEREAS, Glimcher presently serves as the Chairman of the Board of Trustees
and Chief Executive Officer of the Trust and as the Chairman of the Board and
Chief Executive Officer of Glimcher Properties Corporation ("Corporation"), the
general partner of the Partnership;
WHEREAS, Glimcher has expressed his desire to discontinue his service as
Chief Executive Officer of the Trust and as Chief Executive Officer of the
Corporation, his desire to remain as an employee of the Trust and as
non-executive Chairman of the Board of Trustees of the Trust and as
non-executive Chairman of the Board of Directors of the Corporation, and to help
ensure a successful transition of executive functions;
WHEREAS, Glimcher possesses considerable industry experience and an
intimate knowledge of the business and affairs of the Company, its policies,
methods, personnel, and operations;
WHEREAS, Glimcher, the Trust, and the Partnership are parties to a
Severance Benefits Agreement, dated as of June 11, 1997 (the "Severance Benefits
Agreement"), which remains in full force and effect;
WHEREAS, the Company recognizes Glimcher's extraordinary service to the
Company over the many years since the Company was founded, which service has
been unique, substantial and instrumental in building a highly successful
organization;
WHEREAS, Glimcher and the Company desire to set forth the terms and
conditions of Glimcher's continued employment in order to facilitate appropriate
transfer of his existing duties and responsibilities and Glimcher's consulting
role after termination of his employment hereunder.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions provided herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Employment of Glimcher.
(a) Employment as Non-Executive Chairman of the Board and a Senior
Advisor. The Trust shall employ Glimcher, and Glimcher shall serve, as
non-executive Chairman of the Board of Trustees and as Senior Advisor to the
Trust during the Initial or Renewal Term of this Agreement. Glimcher shall also
serve as non-executive Chairman of the Board of Directors of the Corporation.
Glimcher hereby submits his resignation as Chief Executive Officer of the Trust
and the Corporation and any other offices he may hold with the Trust or the
Corporation, and all entities affiliated with the Trust, the Corporation and the
Partnership, i.e., other than as Chairman of the Board of the Trust and as
Chairman of the Board of the Corporation, such resignations to be effective upon
the commencement of the Initial Term of this Agreement as provided for in
Section 2 below. Glimcher shall not be deemed an executive officer of the Trust
or the Corporation.
(b) Duties as Chairman of the Board. As non-executive Chairman of the
Board of Trustees of the Trust and as non-executive Chairman of the Board of
Directors of the Corporation, Glimcher shall perform all of the duties normally
performed by a non-executive chairman of the Board of Trustees and chairman of
the Board of Directors, respectively, including presiding over the meetings of
the Trustees and the shareholders of the Trust and the Board and the
shareholders of the Corporation at which he shall be present, setting agendas
for meetings of the Board of Trustees and the Board of Directors, representing
the Company in appropriate external matters including industry conferences where
requested by the Chief Executive Officer of the Trust or the Corporation, and
any other duties as may be assigned to Glimcher by the Board of Trustees of the
Trust or the Board of Directors of the Corporation.
(c) Duties as Senior Advisor. As Senior Advisor to the Trust, Glimcher
will report to the Chief Executive Officer of the Trust and will provide general
strategic advice and counsel to the Chief Executive Officer of the Trust
concerning the ongoing business, new business opportunities, and strategic
opportunities of the Trust, including advice and counsel with respect to any
merger and acquisition activities involving the Trust. In addition, as Senior
Advisor, Glimcher will actively assist the Company in the implementation of two
pending projects, the City Park project, Mason, Ohio, and the Eastland Mall
project, Columbus, Ohio, reporting to the Chief Executive Officer of the Trust
or to such other officer as the Chief Executive Officer or the Board of Trustees
may designate from time to time with respect to these projects. Glimcher shall
not be in charge of any business unit, division or function of the Company or
perform any policy making functions for the Company. Glimcher shall personally
formulate all construction plans and activities for the City Park project, and
he shall report such to the Chief Executive Officer prior to implementation. If
the Chief Executive Officer does not concur, final construction decisions shall
be made by the Board of Trustees of the Trust. During the Initial Term and any
Renewal Term, Glimcher shall devote such time, diligence and attention as
reasonably necessary to perform the duties provided for herein.
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(d) No Relocation. Glimcher shall not be required to relocate outside
the Columbus, Ohio area in order to perform his duties under this Agreement, but
shall undertake such reasonable business travel as may be necessary to perform
such duties.
2. Term; Termination.
(a) Initial Term; Renewal Term. The initial term of Executive's
employment pursuant to this Agreement ("Initial Term") will commence on February
1, 2005 (the "Effective Date") and shall continue in effect through May 31, 2006
(the "Initial Term Expiration Date"); provided, however, that the term of
employment may be renewed for an additional one year period ("Renewal Term") if
the Company proposes such renewal prior to the end of the Initial Term and
Glimcher agrees to the renewal.
(b) Employment Termination. Glimcher's employment hereunder shall
terminate on the Initial Term Expiration Date unless renewed for an additional
one year term by the Company and Glimcher, in which event Glimcher's employment
hereunder shall terminate on the last day of the first anniversary of the
Initial Term Expiration Date. Glimcher's employment hereunder shall also
terminate immediately upon his death, 30 days after the Company gives Glimcher
written notice of termination by reason of and declaring Glimcher's Disability
(as defined below), or 15 days after the Company gives Glimcher written notice
of termination by reason of and declaring and specifying Cause (as defined
below) for termination. Glimcher's employment hereunder may not be terminated by
the Company without cause.
(c) Disability. Disability shall mean that Glimcher has been unable,
by reason of physical or mental disability, to render, for 120 successive days
or for shorter periods aggregating 180 days or more in any 12 month period,
substantially all of the services of the character contemplated by this
Agreement ("Disability"). The determination of whether Glimcher has suffered a
Disability shall be made by the Board of Trustees of the Trust. In the event the
Company gives notice of termination of Glimcher's employment based on Disability
(the "Disability Notice"), Glimcher or his representative may contest the
termination and cause a determination of Disability to be made by Glimcher's
medical doctor, provided that such determination is made by written notice
thereof setting forth such doctor's reasons for his determination and given to
the Company within 30 days following receipt of the Disability Notice. In the
event Glimcher's medical doctor disagrees with the Company's determination of
Disability, the Company may, within 10 days following notice of such
disagreement, cause a determination of Disability to be made by a medical doctor
selected by the Company. If the two medical doctors do not agree with regard to
the determination of Disability, they shall mutually choose a third medical
doctor to examine Glimcher, and the Disability determination of such third
medical doctor shall be binding upon both the Company and Glimcher. Glimcher
shall cooperate with the Company, including submitting to such medical
examinations and testing as the Company shall reasonably deem necessary and
making the results of such examinations and testing available to the Company.
(d) Cause. Cause shall mean Glimcher's (i) commission of an act of
dishonesty directly involving the Company, including, but not limited to,
misappropriation of funds or property of the Company; (ii) engagement in
activities or conduct intentionally, clearly and materially injurious to the
reputation of the Company; (iii) continued refusal to perform his assigned
duties and responsibilities after written notice by the Company to Glimcher
giving 10 days to resume performance of such duties; (iv) violation of the
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non-competition, non-solicitation, non-disparagement, or non-disclosure
provisions of Section 7 of this Agreement; (v) material breach of any other
provisions (excepting Section 7) of this Agreement following written notice from
the Company specifying the breach and Glimcher's failure to cure such breach
within 30 days of receipt of such notice; or (vi) pleading guilty or no contest
to or conviction of any felony under federal or state law.
3. Compensation.
(a) Initial Term. As compensation for services rendered as
non-executive Chairman of the Board of the Trust and non-executive Chairman of
the Board of Directors of the Corporation, the Company shall pay Glimcher a
salary (the "Chairman Salary") at the annual rate of $100,000 during the Initial
Term and during any Renewal Term. As compensation for services rendered as
Senior Advisor to the Trust, the Company shall pay Glimcher a salary (the
"Advisor Salary") at the annual rate of $250,000 during the Initial Term and
during any Renewal Term and during any Renewal Term. The Chairman Salary and the
Advisor Salary are sometimes referred to in combination herein as the "Salary."
The Salary shall be paid in accordance with the customary payroll practices of
the Company at regular intervals as the Company may establish from time to time
for senior salaried employees.
(b) Bonuses. Glimcher shall not be included in any bonus plans
applicable to senior salaried employees of the Company, but the Board of
Trustees of the Trust, or the Compensation Committee of the Board of Trustees of
the Trust, may award Glimcher cash bonuses from time to time based on their
evaluation of his performance under this Agreement ("Cash Bonuses").
4. Vesting of Options.
(a) Continued Vesting of Options or Other Awards During Employment.
Glimcher's outstanding stock options shall continue to vest as provided for in
stock option agreements presently in place during the term of his employment
hereunder.
(b) Accelerated Vesting. If Glimcher's employment hereunder continues
through May 10, 2006, then 39,193 of the stock options issued to him on March
12, 2004 exercisable at $26.69 per share and vesting on March 12, 2007, and
10,807 of the stock options issued to him on May 10, 2004 exercisable at $19.56
per share and vesting on May 10, 2007 (together the "2007 Options"), shall vest
and become exercisable on May 10, 2006; provided, however, if prior to May 10,
2006, the Company and Glimcher have agreed to a Renewal Term the 2007 Options
shall vest and become exercisable on their original vesting dates in 2007. In
addition, if Glimcher's employment is terminated by reason of death or
Disability, any theretofore unvested stock options and other awards issued to
Glimcher pursuant to the Trust's 2004 Incentive Compensation Plan (the "2004
Plan"), 1997 Incentive Plan (the "1997 Plan"), and 1993 Employee Share Option
Plan ("1993 Plan") shall immediately vest upon the date of Glimcher's death or
Disability. In all such events each vested option shall remain exercisable for
the period provided for in the respective plan and stock option agreement, but
in no event beyond the term of the option.
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5. Expenses. The Trust shall reimburse Glimcher for all out-of-pocket
expenses actually and necessarily incurred by him in the conduct of the business
of the Trust during the Initial Term and any Renewal Term, against reasonable
substantiation submitted with respect thereto.
6. Benefits.
(a) Medical, etc. During the Initial Term and any Renewal Term,
Glimcher shall be entitled to such medical benefits, including hospitalization,
disability insurance, health insurance (including dental insurance), as are
customarily made available to senior executive officers of the Trust from time
to time. Glimcher shall make such contributions to the premiums for such
insurance consistent with the Trust's policy applicable to senior executive
officers of the Trust.
(b) Life Insurance. During the Initial Term and any Renewal Term, the
Trust shall maintain a life insurance policy covering the life of Glimcher under
which the beneficiaries shall be named by Executive on substantially the same
terms as the terms maintained immediately preceding the Effective Date.
(c) Office and Support Staff. In order to more effectively transition
Executive's duties as Chief Executive Officer to the successor Chief Executive
Officer, Glimcher shall occupy office space separated from the Trust premises.
In order to encourage effective performance, during the Initial Term and any
Renewal Term, the Trust shall reimburse Glimcher for the reasonable rent for
office space in a building located in Columbus, Ohio and the reasonable
compensation of one secretary, and shall make available the use of the Company's
driver on a part-time basis to drive Glimcher for business purposes consistent
with the current arrangement provided by the Company.
7. Non-Competition; Non-Solicitation; Non-Disparagement; Non-Disclosure;
and Prior Consents.
(a) Non-Competition. During the Initial Term and any Renewal Term of
this Agreement and for a period of two years following the termination of
Glimcher's employment under this Agreement (the "Restricted Period"), Glimcher
shall not, without the prior written consent of the Board of Trustees of the
Trust, serve as an employee, agent, partner, shareholder, member, officer or
director of or consultant for, or in any other capacity participate, engage or
have, directly or indirectly, a financial or other interest in any Competitive
Business (as hereinafter defined), provided, however, that notwithstanding
anything to the contrary contained in this Agreement, Glimcher may own up to
2.0% of the outstanding shares of capital stock of a company whose securities
are registered under Section 12 of the Securities Exchange Act of 1934
("Permitted Investments"); and provided further that notwithstanding anything to
the contrary contained in this Agreement, Glimcher may pursue any business
activities for which the Board of Trustees has previously granted consent and
waived corporate opportunity rights.
(b) Definition of Competitive Business. As used herein, the term
"Competitive Business" shall mean participation, directly or indirectly, in the
planning, development or operation of any mall or any enclosed group of retail
establishments operating as a single property (a "Project") in any city or town
and its greater standard metropolitan statistical area (each, a "Market") in
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which the Company (i) conducts its business at such time, (ii) has commenced and
not subsequently abandoned development activities or (iii) has previously
proposed a Project to its Board of Trustees to be undertaken at any time in the
next five years in such Market and the Board of Trustees has not yet rejected
such Project.
(c) Non-Solicitation of Employees. During the Restricted Period,
without the prior written consent of the Trust, neither Glimcher nor any entity
of which he serves as a director, officer, trustee, member, manager, general
partner or limited partner, shall, directly or indirectly, employ or retain any
person who was employed or retained by the Company during the one-year period
prior to the proposed engagement or retention by Executive of any of the
aforesaid persons; provided, however, that notwithstanding the foregoing,
Glimcher may employ his current assistant, Xxxxxx Xxxxxxxx.
(d) Non-Disparagement. During the Restricted Period, Glimcher shall
not make any disparaging comments which may be harmful to the Company's
reputation.
(e) Non-Disclosure. During the Restricted Period, Glimcher shall not
make any Unauthorized Disclosure. For purposes of this Agreement, "Unauthorized
Disclosure" shall mean any disclosure by Glimcher without the prior written
consent of the Company's Chief Executive Officer to any person other than a
person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by Glimcher of his duties hereunder or as may be legally
required, of any confidential information relating to the business or prospects
of the Company (including but not limited to, any confidential information with
respect to any of the Company's information and procedures for the selection of
mall development sites, information, methods and procedures for the cost
effective development and construction of malls, the terms of leases
arrangements with and other information concerning retail chain stores and other
mall tenants, and the Company's properties, customers, services, methods,
strategies, business plans, and business policies and practices; provided,
however, that such term shall not include the use or disclosure by Glimcher,
without consent, of any information known generally to the public or not treated
by the Company as confidential (other than as a result of disclosure by Glimcher
in violation of this subsection).
(f) Prior Written Consent. During the Restricted Period, in the event
Glimcher proposes to embark upon the development of any malls or enclosed group
of retail establishments operating as a single property in any city or town in
the United States or Canada, Glimcher shall first notify the Board of Trustees
of the Trust of the proposal and seek the prior written consent of the Trust.
Such written consent shall not be withheld if the Trust cannot reasonably
demonstrate that it proposes in good faith to develop, purchase or otherwise
establish a mall or enclosed group of retail establishments operating as a
single property in such market during the next five years.
(g) Delivery of Documents upon Termination. Glimcher shall deliver to
the Company or its designee at the termination of Glimcher's employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, and other documents (if any exist) and all copies thereof, made, composed
or received by Glimcher, solely or jointly with others, that are in Glimcher's
possession, custody, or control at termination and that are related in any
manner to the past, present, or anticipated business of the Company. In this
regard, the Executive hereby grants and conveys to the Company all right, title
and interest in and to, including without limitation, the right to possess,
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print, copy, and sell or otherwise dispose of, any reports, records, papers,
summaries, photographs, drawings or other documents, and writings, and copies,
abstracts or summaries thereof, that may be prepared by Glimcher or under
Glimcher's direction or that may come into the Glimcher's possession in any way
during the term of Glimcher's employment with the Company that relate in any
manner to the past, present or anticipated business of the Company.
(h) Intellectual Property. Glimcher hereby assigns, and binds his
heirs, executors, and administrators to assign, to the Company any and all
inventions, discoveries, ideas, concepts, improvements, copyrightable works, and
other developments (the "Developments") conceived, made, discovered or developed
by Glimcher, solely or jointly with others, during the term of Glimcher's
employment by the Company, whether during or outside of usual working hours and
whether on the Company's premises or not, that relate in any manner to the past,
present or anticipated business of the Company, its subsidiaries and/or
affiliates. All works of authorship created by Glimcher, solely or jointly with
others, shall be considered works made for hire under the Copyright Act of 1976,
as amended, and shall be owned entirely by the Company. Any and all such
Developments shall be the sole and exclusive property of the Company, whether
patentable, copyrightable, or neither, and Glimcher shall assist and fully
cooperate in every way, at the Company's expense, in securing, maintaining, and
enforcing, for the benefit of the Company or its designee, patents, copyrights
or other types of proprietary or intellectual property protection for such
Developments. Within one year following the end of the termination of Glimcher's
employment under this Agreement and without limiting the generality of the
foregoing, any Development of Glimcher relating to any subject matter on which
Glimcher worked or was informed during his employment by the Company shall be
conclusively presumed to have been conceived and made prior to the termination
of his employment (unless Glimcher clearly proves that such Development was
conceived and made following the termination of his employment), and shall
accordingly belong and be assigned to the Company and shall be subject to this
Agreement. By signing this Agreement, Glimcher does not concede that the
intellectual property described herein actually exists.
(i) Remedies. Glimcher agrees that any breach of the terms of this
Section would result in irreparable injury and damage to the Company for which
the Company would have no adequate remedy at law. Glimcher therefore also agrees
that in the event of said breach or any threat of breach, the Company shall be
entitled to an immediate injunction and restraining order to prevent such
breach, threatened breach, or continued breach by Glimcher or any and all
persons and entities acting for or with Glimcher, without having to prove
damages, and to all costs and expenses, including reasonable attorneys' fees and
costs, in addition to any other remedies to which the Company may be entitled
under this Agreement, at law or in equity. The aforesaid remedies do not apply
to any business activities properly conducted by Glimcher pursuant to Sections
7(a) or (f) hereof. The terms of this paragraph shall not prevent the Company
from pursuing any other available remedies for any breach or threatened breach
hereof, including but not limited to the recovery of damages from Glimcher.
Glimcher and the Company further agree that the provisions of the covenants not
to compete, solicit, disparage and disclose are reasonable and that the Company
would not have entered into this Agreement but for the inclusion of such
covenants herein. Should a court determine, however, that any provision of the
covenants is unreasonable, either in period of time, geographical area, or
otherwise, the parties hereto agree that the covenant should be interpreted and
enforced to the maximum extent which such court deems reasonable.
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(j) Survival. The provisions of this Section shall survive any
termination of this Agreement, and the existence of any claim or cause of action
by Glimcher against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants and agreements of this Section; provided, however, that this
paragraph shall not, in and of itself, preclude Glimcher from defending against
the enforceability of the covenants and agreements of this Section.
8. Following Termination of Employment; Consulting, Non-Competition and
Special Contributions Consideration. As additional compensation for Glimcher's
agreement to provide services under this Agreement, Glimcher's unique and
substantial contributions to the Company throughout the years, Glimcher's
agreement as set out in Section 7(a) hereof to a two year non-competition
restriction after termination of employment under this Agreement (the
"Post-Employment Non-Competition Period"), and Glimcher's agreement to consult
to the Company as reasonably requested during the Post-Employment
Non-Competition Period, the Trust shall pay Glimcher, subject to subsection (c)
hereof, $2,000,000 as set forth below:
(a) Consulting Payment. In consideration of Glimcher's agreement to
consult to the Trust as reasonably requested during the Post-Employment
Non-Competition Period, $360,000 shall be payable by the Trust to Glimcher
in cash (the "Consulting Payment"), at the rate of $20,000 per month
payable on the last day of each month during the Post-Employment
Non-Competition Period commencing on the last day of the seventh month of
the Post-Employment Non-Competition Period.
(b) Non-Competition Payment. In consideration of Glimcher's agreement
not to compete with the Trust, not to solicit employees of the Trust, not
to disparage the Trust, and not to disclose confidential information of the
Trust, all as provided in Section 7 of this Agreement, $810,000 shall be
payable by the Trust to Glimcher in cash (the "Non-Competition Payment"),
at the rate of $45,000 per month payable on the last day of each month
during the Post-Employment Non-Competition Period commencing on the last
day of the seventh month of the Post-Employment Non-Competition Period.
(c) Special Contributions Payment. In consideration of Glimcher's
special, unique and substantial contributions to the Company throughout the
years, $830,000 shall be payable by the Trust to Glimcher in cash (the
"Special Contributions Payment") to be paid to Glimcher on the last day of
the seventh calendar month of the Post-Employment Non-Competition Period.
(d) Termination for Cause; Material Breach of Non-Competition
Agreement. Notwithstanding the foregoing, in the event Glimcher's
employment has been terminated for Cause by the Company or Glimcher has
materially breached the non-competition agreement set forth in Section 7(a)
of this Agreement, such termination or material breach shall cause and
constitute a forfeiture of any remaining unpaid installments of the
Consulting Payment and the Non-Competition Payment effective as of the
first date of such breach.
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(e) Death or Disability of Executive. Notwithstanding the provisions
of subsections (a), (b) and (c) hereof, but subject to subsection (d)
hereof, in the event of the death or Disability of Glimcher during his
employment under this Agreement or during the Post-Employment
Non-Competition Period, the Company shall pay to Glimcher or to the estate
or heirs of Glimcher, as appropriate, within 90 days after his Disability
or death, the Consulting Payment and the Non-Competition Payment less any
installments already paid to Glimcher thereon under subsection (a) and (b)
hereof, and the Special Contributions Payment if not already paid to
Glimcher under Section (c) above.
9. Severance Benefits Agreement. The Severance Benefits Agreement dated
June 11, 1997 by and among the Trust, the Partnership and Glimcher shall remain
effective, and Glimcher shall be entitled to the benefits thereunder so long as
Glimcher is an employee of the Trust immediately prior to a change of control of
the Trust as provided in the Severance Benefits Agreement; provided, however,
the fair market value of any rights given or awarded to Glimcher under this
Agreement, including the Consulting Payment, the Non-Competition Payment and the
Special Contributions Payment, shall be included in the calculation of the
Severance Payment under Section 3(a) of the Severance Benefits Agreement only to
the extent that the Company actually pays Glimcher the Salary or any Cash
Bonuses under Section 3(a) and 3(b), respectively, of this Agreement, in which
case such salary and bonus payments will be included in the "Base Amount" for
calculation of the Severance Payment under Section 3(a) of the Severance
Benefits Agreement; provided further, that the $250,000 special performance
bonus paid to Glimcher in 2004 with respect to the Polaris Mall project shall
not be included in the "Base Amount" for calculation of the Severance Payment
under Section 3(a) of the Severance Benefits Agreement; and provided further,
that if a change in control of the Trust, as defined in the Severance Benefits
Agreement, occurs prior to the Initial Term Expiration Date, the amount of the
salary and bonus included in the calculation of the "Base Amount" for Glimcher
shall not be less than the amount of salary and bonus paid or payable to
Glimcher by the Company with respect to the calendar year 2004, and if a change
of control of the Trust occurs after the Initial Term Expiration Date, the
amount of salary and bonus included in the calculation of the "Base Amount" for
Glimcher shall not exceed $350,000.
10. Indemnification. The Trust shall indemnify Glimcher in the performance
of his duties as an employee subsequent to the termination of his employment
under this Agreement to the fullest extent allowable by applicable law, and
shall continue to maintain Glimcher as a named beneficiary under any liability
insurance policies maintained for Trustees and other officers of the Trust, for
six years after the termination of this Agreement.
11. Liability Insurance in Event of Change in Control. Glimcher shall
become, and continue as, a named beneficiary under any liability insurance
policies maintained by the Company after a Change in Control of the Trust (as
hereinafter defined) for persons who were trustees and/or officers prior to a
Change in Control of the Trust to the extent they provide coverage for events
prior to the Change in Control of the Trust. The Company agrees to maintain the
insurance coverage referred to above unless and to the extent any modification
in indemnification and insurance coverage applies uniformly to all officers and
trustees of the Company, as the case may be, for at least six years after the
Change in Control.
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12. Governing Law: Jurisdiction. This Agreement shall be construed and
interpreted under the laws of the State of Ohio. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought against either of the parties exclusively in the
courts of the State of Ohio, County of Franklin, or if it has or can acquire
jurisdiction, in the United States District Court for the Southern District of
Ohio, Eastern Division, and each of the parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such action or
proceeding, and waives any objection to venue laid therein.
13. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one and the same document.
14. Entire Agreement. This Agreement sets forth the entire agreement of
the parties and is intended to supersede all prior employment negotiations,
understandings and agreements. No provision of this Agreement may be waived or
changed, except by a writing signed by the party to be charged with such waiver
or change. The parties agree to amend this Agreement if and as deemed necessary
and appropriate to comply with Section 409A of the Internal Revenue Code after
the issuance of further guidance promulgated thereunder.
15. Successors.
(a) Benefit of Glimcher's Representatives, etc. This Agreement shall
inure to the benefit of and be enforceable by Glimcher's personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees.
(b) Company Successors in Interest. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree in writing to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. Failure of the Company to
obtain and deliver to Glimcher such assumption and agreement prior to (but
effective only upon) such succession shall be a breach of this Agreement. As
used in this Agreement, "Company" shall mean the Company as hereinbefore defined
and any successors to their respective businesses and/or assets as aforesaid
which assumes and agrees to perform this Agreement, expressly, by operation of
law, or otherwise.
16. Notices. All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when given by facsimile or overnight courier
or when mailed first class postage prepaid, by registered or certified mail,
return receipt requested, addressed to the party to receive the same at his or
its address above set forth, or such other address as the party to receive the
same shall have specified by written notice. All notices shall be deemed to have
been given as of the date of personal delivery, facsimile transmittal or mailing
thereof, as the case may be. Any notice by the Trust or the Partnership shall be
deemed notice by the Company, and any notice to the Trust or the Partnership
shall be deemed notice to the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GLIMCHER REALTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: GLIMCHER PROPERTIES CORPORATION,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
11
