EXHIBIT 10.136
RESTRICTED STOCK AWARD AGREEMENT
Issued Pursuant to the
Glimcher Realty Trust
Amended and Restated 2004 Incentive Compensation Plan
THIS RESTRICTED STOCK AWARD AGREEMENT ("Agreement"), effective
____________________ (the "Effective Date"), represents the grant of restricted
stock ("Stock") by Glimcher Realty Trust (the "Company"), to ___________ (the
"Participant") pursuant to the terms, provisions and definitions of the Glimcher
Realty Trust Amended and Restated 2004 Incentive Compensation Plan adopted by
its Board of Trustees (the "Board") on or about March 15, 2004 (the "Plan") and
approved by the Company's shareholders on May 7, 2004 and later amendment on May
11, 2007. Stock granted hereby is intended to be restricted and shall be subject
to the restrictions set forth in this Agreement and the Plan.
The Plan provides a complete description of the terms and conditions
governing the Stock. If there is any inconsistency between the provisions of
this Agreement and the provisions of the Plan, the Plan's provisions shall
completely supersede and replace the inconsistent or conflicting provisions 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 Stock Grant Information. The individual named above has been
selected to be a Participant in the Plan and receive shares of Stock, as
specified below (the "Shares"):
a. Date of Grant: ________________________________
b. Number of Shares Granted: ____________________
c. Type of Shares Granted: Restricted Common Stock
d. Price Per Share on the Date of Grant: $________
e. Latest Vesting Date: ______________
2. Grant of Stock. The Company hereby grants to the Participant the Shares
set forth above, at the stated per share price, which is one hundred percent
(100%) of the Fair Market Value (defined herein) of a Share on the Date of Grant
(defined above), in the manner and subject to the terms and conditions of the
Plan and this Agreement. The Executive Compensation Committee has determined
that the "Fair Market Value" of a Share on the Date of Grant is equal to the
closing market price of the Shares on the New York Stock Exchange on the Date of
Grant.
3. Restrictions.
a. Transfer Restrictions. Except as otherwise provided in Section 3(c), the
Shares may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will or by the laws of descent and distribution,
at any time prior to the periods and in accordance with the lapsing schedule set
forth below in Section 3(b) below. No sale, transfer, pledge, assignment,
alienation or hypothecation of the Shares in violation of this Section 3(a),
whether voluntary or involuntary, by operation of law or otherwise, shall be
valid as to any person, assignee or transferee with respect to any interest in
the Shares whatsoever. Unless otherwise stated herein, the Participant shall
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continue to be treated as the owner of the Shares for purposes of this Agreement
and shall continue to be bound by all of the terms and provisions hereof. The
restrictions set out in this Section 3(a) are referred to in this Agreement as
the "Transfer Restrictions."
b. Lapse of the Transfer Restrictions. The Shares shall be subject to the
Transfer Restrictions through the Vesting Date specified below and shall lapse
as follows:
Percentage of Shares for which
Vesting Date Transfer Restrictions Shall have Lapsed
Third Annual Anniversary of Date of Grant 33%
Fourth Annual Anniversary of Date of Grant 66%
Fifth Annual Anniversary of Date of Grant 100%
Shares with respect to which the Transfer Restrictions shall have lapsed
under this Section 3(b) (the "Vested Shares") will, effective on and after the
Vesting Date, thereafter be free of the Transfer Restrictions, but such Vested
Shares will continue to be subject to all of the remaining terms and conditions
of this Agreement as applicable. Any Shares for which the Transfer Restrictions
have not yet lapsed in accordance with this Section 3(b) shall, for purposes of
this Agreement, not be considered Vested Shares (the "Non-Vested Shares").
c. Discontinuation of Board Service by the Participant.
i. Non-Cause Termination or Discontinuation of a Participant's Board
Service. If the Participant's service on the Board is discontinued or terminated
for any reason, other than For Cause (as defined below), then such Participant,
or any guardian or legal representative of the Participant if the Participant
becomes disabled, shall be permitted to keep any Non-Vested Shares; however,
such shares shall be subject to the Transfer Restrictions and vesting schedule
stated in Section 3(b). In the event the Participant dies while serving on the
Board, the Non-Vested Shares may be transferred to such other persons by will or
the laws of descent and distribution, provided that the Non-Vested Shares so
transferred shall be subject to the Transfer Restrictions and vesting schedule
stated in Section 3(b).
ii. For Cause Termination or Discontinuation of a Participant's Board
Service. If a Participant's service on the Board is discontinued or terminated
For Cause, then any Non-Vested Shares shall be immediately forfeited, returned
to and canceled by the Company, and shall be deemed to have been forfeited by
the Participant; provided that the Executive Compensation Committee (exclusive
of the Participant, if necessary) of the Board may, in its sole and absolute
discretion, allow the Participant to retain the Non-Vested Shares (either in
whole or in part) upon such terms and conditions as may be specified in writing
by the Executive Compensation Committee. For purposes of the Section 3(c)(ii),
"For Cause" shall mean a Participant's: (A) commission of an act of dishonesty
directly involving the Company, including, but not limited to, misappropriation
of funds or property of the Company or any Affiliate or Subsidiary; (B)
continued engagement in activities or conduct injurious to the reputation of the
Company (as determined by a committee of independent members of the Board of
Trustees exclusive of the Participant) after written notice from the Chairman of
the Board (or the Lead Independent Trustee if the Participant is the Chairman of
the Board) to the Participant giving five (5) Business Days to cease such
activity; (C) continued refusal to perform the Participant's assigned duties and
responsibilities as a member of the Board of Trustees or any of its committees
after written notice from the Chairman of the Board (or the Lead Independent
Trustee if the Participant is the Chairman of the Board) to the Participant
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giving five (5) Business Days to resume performance of such duties; (D) a
material violation or breach (as determined by a committee of independent
members of the Board of Trustees exclusive of the Participant) of any agreement,
policy, guideline, regulation, charter provision, rule, or code of the Company
or Board (including any committee thereof) that governs the conduct of the
Participant; or (E) pleading guilty or no contest to or conviction of any felony
under federal or state law. For purposes of this section a "Business Day," shall
be any day other than a Saturday, Sunday, or holiday as designated and
recognized under federal law.
4. 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 Executive Compensation Committee may adopt for administration of the Plan.
It is expressly understood that the Executive Compensation 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.
5. Reservation of Shares. At all times there shall be reserved for issuance
and/or delivery upon grant such number of shares of Stock as shall be required
for issuance or delivery upon the grant of the Shares hereunder.
6. Adjustments. The Shares subject to this Agreement shall also be subject
to adjustment in accordance with Section 4.4 of the Plan.
7. Exclusion from Pension Computations. By acceptance of the grant pursuant
to this Agreement, the Participant hereby agrees that any income or gain
realized upon the receipt of the Stock hereof, upon the disposition of the
Shares received, or upon the lapse of the restrictions pursuant to the terms of
this Agreement, is special incentive compensation and shall not be taken into
account, to the extent provided under the applicable plan documents and 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.
8. Amendment. The Executive Compensation Committee may, with the consent of
the Participant, at any time or from time to time amend the provisions, terms
and conditions of this Agreement, and may at any time or from time to time amend
the provisions, terms and conditions of this Agreement in accordance with the
Plan and applicable law.
9. 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 Xxxxx Xxxxxx, 00xx Xxxxx,
Attn: General Counsel, 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.
10. Withholding Taxes. The Company shall have the right to withhold from a
Participant, or otherwise require such Participant to pay, any Withholding Taxes
(defined below) arising as a result of the grant of any Shares, the lapse of any
Transfer Restrictions on any Shares, the transfer of any Shares, any tax
election by the Participant, or any other taxable event. If the Participant
shall fail to make such Withholding Tax payments when and as 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
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kind otherwise due to such Participant or to take such other action as may be
necessary to satisfy such Withholding Taxes. If the Participant makes an
election pursuant to Section 83(b) of the Code concerning a Restricted Share
Award then the Participant shall submit a copy of such election to the Company.
In satisfaction of the requirement to pay Withholding Taxes, the Participant may
make a written election which may be accepted or rejected in the discretion of
the Executive Compensation Committee, to tender other Shares to the Company
(either by actual delivery or attestation, in the sole discretion of the
Executive Compensation Committee, provided that, except as otherwise determined
by the Executive Compensation 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 Xxxxx Xxxxx or have been purchased on the open market), having an
aggregate Fair Market Value equal to the Withholding Taxes. "Withholding Taxes"
means any federal, state, or local income, employment, payroll, or similar tax
related to the Shares that are required to be withheld by the Company.
11. Registration; Legend. The Company may postpone the issuance and
delivery of Shares under this Agreement until (a) the admission of such Shares
to listing on any stock exchange or exchanges on which Stock 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 the Stock granted hereunder unless
counsel for the Company is of the opinion as to any such certificate that such
legend is unnecessary:
THE SALE OR TRANSFER OF THE COMMON SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY, OR BY OPERATION OF LAW, IS
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE GLIMCHER
REALTY TRUST AMENDED AND RESTATED 2004 INCENTIVE COMPENSATION PLAN (THE
"PLAN") AND IN THE ASSOCIATED RESTRICTED STOCK AWARD AGREEMENT FOR THE
HOLDER HEREOF. A COPY OF THE PLAN AND SUCH RESTRICTED STOCK AWARD AGREEMENT
MAY BE OBTAINED FROM GLIMCHER REALTY TRUST.
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12. Miscellaneous.
a. This Agreement shall not confer upon the Participant any right to
continuation of service in any capacity to the Company nor shall this Agreement
interfere in any way with the Company's right to terminate the Participant's
service at any time.
b. The Participant shall, to the extent permitted by applicable law and the
Plan, have full voting rights as a stockholder of the Company with respect to
the Shares granted hereunder and the right to receive applicable dividends for
the Stock granted hereunder.
c. With the approval of the Board, the Executive Compensation 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 or be contrary to
applicable law.
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 Shares, 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.
h. By executing this Agreement and 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 Executive Compensation 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
Agreement issued pursuant to the Plan.
j. This Agreement, the Plan, and any certificate representing the Stock
(including an electronic certificate) granted hereunder shall constitute the
entire agreement and understanding between the Participant and the Company
concerning the grant of the Stock hereunder and with respect to the subject
matter contained herein. This Agreement, the Plan, and any certificate
representing the Stock (including an electronic certificate) granted hereunder
supersede all prior agreements and the understandings between the Parties with
respect to the grant of the Stock hereunder and with respect to the subject
matter contained herein.
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13. Exculpation. This Agreement and all documents, agreements,
understandings and arrangements relating hereto have been executed on behalf of
the Company 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 Award and all documents, agreements,
understanding and arrangements relating hereto and will not seek recourse or
commence any action against any of the trustees, officers, agents or
shareholders of the Company or any of the trustees, directors, agents, officers
or shareholders of any Subsidiary or Affiliate 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
14. Change in Control. Any Non-Vested Shares granted to the Participant
hereunder shall immediately vest in their entirety on the day immediately prior
to the date of a Change in Control of the Company and no longer be subject to
Transfer Restrictions stated herein. For purposes of this section, a "Change in
Control of the Company" shall be deemed to occur if:
(a) 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: (i) 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 (ii) 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;
(b) 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:
(i) immediately prior thereto the circumstances in (a)(i) or (a)(ii)
above exist, or
(ii) (A) 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 (B) the individuals who
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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
(c) the Company acquires assets of another company or a subsidiary of the
Company merges or consolidates with another company (each an "Other
Transaction") and (i) 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 (ii) 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 (a)(i) or (a)(ii) above
exist.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
GLIMCHER REALTY TRUST
By: _____________________________
Name:
Title:
ACKNOWLEDGED & ACCEPTED:
--------------------------------
Signature
Print Name:_____________________
Address: ______________________
______________________
______________________
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