EXHIBIT 10.118
Glimcher Realty Trust and
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Glimcher Properties Limited Partnership
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EMPLOYMENT AND CONSULTING AGREEMENT
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with
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Xxxxxxx Xxxxxxxx
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Amendment No. 1
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This Amendment No. 1 (the "Amendment") to the Employment & Consulting
Agreement ("Agreement") is made as of this 25th day of July 2007 (the "Effective
Date"), 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 Senior Advisor to the Trust and as the Chairman of the Board of Directors of
Glimcher Properties Corporation ("Corporation"), the general partner of the
Partnership;
WHEREAS, Glimcher holds certain unexercised non-qualified stock options
from the Trust's Amended and Restated 1997 Incentive Plan (the "Options" and as
listed in Exhibit A hereto) that are scheduled to expire ninety (90) days
following the termination of Glimcher's employment under the Agreement;
WHEREAS, Glimcher and the Company have agreed that upon Glimcher's request,
the Company will further extend the term of certain of the Options (the
"Extension");
WHEREAS, Glimcher and the Company have agreed that the compensation that
Glimcher receives from the Trust pursuant to Section 8 of the Agreement shall be
reduced by the eventual compensation expense recognized by the Trust as a result
of the Extension (the "Payment Adjustment"); and
WHEREAS, Glimcher and the Company desire to set forth the terms and
conditions of the Payment Adjustment and such other additional modifications to
the Agreement in this Amendment.
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 to amend the Agreement as follows:
1. Definition of Disability. Section 2(c) of the Agreement, is hereby
deleted in its entirety and amended to read as follows:
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(c) Disability. Disability shall mean that Glimcher is, by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of
not less than twelve (12) months, 1) unable to engage in any substantial
gainful activity, or 2) receiving income replacement benefits for a period
of not less than three (3) months under an accident or health plan of the
Company. Alternatively, Xx. Xxxxxxxx will be considered disabled if
determined to be totally disabled by the Social Security Administration, or
such successor agency ("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 thirty (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 ten (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.
2. Extension of Options. Section 4 of the Agreement is hereby amended to
add the following section:
(c) If, following the termination of his employment under the Agreement,
Glimcher has not exercised all of the unexercised non-qualified stock
options that he holds under the 1997 Plan (the "Options") and submits a
written request to the Trust's Executive Compensation Committee (the
"Committee") requesting an extension (the "Request") no less than one (1)
business day before the respective Option's then current expiration date,
then the Options to which such Request relates shall be extended to the
date that is the earlier of either: (i) the respective option's Original
Expiration Date (as shown in Exhibit A hereto) or (ii) the third
anniversary of the date that Glimcher's employment terminates under the
Agreement; provided that Glimcher is not in violation of any provision of
the Agreement at the time the Committee receives the Request. The date of
the Request will establish the measurement date used to determine the
compensation expense as set forth in Section 8(f) of this Agreement.
Glimcher may submit multiple Requests pertaining to any of the Options
pursuant to this Section 4(c), but no one grant of the Options listed in
Exhibit A may be the subject of more than one (1) Request.
3. Compensation Expense. Section 8 of the Agreement is hereby amended to
add the following section:
(f) Set-Off for Compensation Expense. The Trust may, at its option, reduce
the amount of any payment(s) that it makes to Glimcher pursuant to this
Section 8 by the amount of compensation expense (the "Expense") that it
recognizes, as determined in accordance with generally accepted accounting
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principles following the conclusion of the Trust's fiscal year-end
financial audit as conducted by the Trust's independent registered public
accounting firm, in connection with the extension of the term for certain
Options under Section 4(c). If Glimcher's employment is terminated pursuant
to Section 8(d) of the Agreement or Glimcher materially breaches Section
7(a) of the Agreement, then the portion of the Expense that has not been
subtracted from any of the payments payable under Section 8 of the
Agreement shall be due and payable by Glimcher to the Trust.
4. Conflicts. If there is any inconsistency between the terms of this
Amendment and the terms of the Agreement, then the Agreement's terms shall
completely supersede and replace the conflicting terms of this Amendment.
5. Definitions; Effect of Amendment. All capitalized terms, not otherwise
defined herein, shall have the meanings ascribed to them in the Agreement.
Except as otherwise stated herein, all of the other provisions of the Agreement
not changed by this Amendment shall remain in full force and effect.
6. Counterparts. This Amendment 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.
7. Entire Agreement. This Amendment and the Agreement sets forth the entire
agreement of the parties and is intended to supersede all prior employment
negotiations, understandings and agreements has to the matters stated herein. No
provision of this Amendment or the 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 that this Amendment may be modified, if and as deemed necessary
and appropriate, to comply with Section 409A of the Internal Revenue Code.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
GLIMCHER REALTY TRUST
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Executive Vice President, Chief By: /s/ Xxxxxxx Xxxxxxxx
Financial Officer & Treasurer --------------------
Xxxxxxx Xxxxxxxx
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: GLIMCHER PROPERTIES CORPORATION, its
general partner
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Executive Vice President, Chief
Financial Officer & Treasurer
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Exhibit A
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Grant Date Expiration Original Exercise Options Remaining
Date Expiration Price Received on Unexercised
Date Grant Date Options
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March 12, 2004 August 31, 2007 March 11, 2014 $26.69 117,580 117,580
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