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Exhibit 10.51
SEVERANCE BENEFITS AGREEMENT
AGREEMENT, dated as of June 11, 1997, by and among GLIMCHER REALTY TRUST, a
Maryland real estate investment trust, with offices at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx, 00000 ("GRT"), GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, with offices at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxx, 00000 ("GPLP"), and XXXXXXX X. XXXXXXXX, an individual residing at 000
Xxxxx Xxxxxxxx, Xxxxxxxx, Xxxx, 00000 (the "Executive").
WHEREAS, GRT, GPLP and/or their subsidiaries and affiliates, including
entities in which GRT or GPLP own a majority of any non-voting stock
(collectively, the "Company"), have employed, or may employ in the future, the
Executive as an employee of the Company to perform certain services to the
Company upon terms and conditions upon which the Company and the Executive have
previously agreed, or may in the future agree (the "Services");
WHEREAS, the Company recognizes that the Executive's contributions to the
past and future growth of the Company have been and will be substantial; and
WHEREAS, to induce the Executive to remain in the employ of the Company,
the parties hereto desire to set forth certain severance benefits which GPLP
will pay to the Executive in the event of a Change in Control of GRT (as defined
in Section 2 hereof).
IT IS AGREED:
1. TERM. This Agreement shall commence on the date hereof and shall
terminate upon the earlier of (a) the date on which GPLP and GRT have satisfied
all of their obligations hereunder, or (b) the date on which the Executive is no
longer an employee of the Company for any reason whatsoever including, without
limitation, termination without cause. Notwithstanding the termination of this
Agreement subsequent to a Change in Control of GRT, in the event that the
Executive is an employee of the Company at the moment immediately prior to a
Change in Control of GRT, the Executive shall be entitled to receive all
benefits described hereunder and the provisions hereof related thereto shall
survive such termination.
2. CHANGE IN CONTROL OF GRT. For purposes of this Agreement, a "Change in
Control of GRT" shall be deemed to occur if:
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(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 GRT is then subject to such reporting requirement, provided, however,
that there shall not be deemed to be a Change in Control of GRT if
immediately prior to the occurrence of what would otherwise be a Change in
Control of GRT (a) the Executive is the other party to the transaction (a
"Control of GRT Event") that would otherwise result in a Change in Control
of GRT or (b) the Executive is an Executive officer, trustee, director or
more than 5% equity holder of the other party to the Control of GRT Event
or of any entity, directly or indirectly, controlling such other party;
(ii) GRT 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 GRT if (a) immediately prior thereto the circumstances in (i)(a)
or (i)(b) above exist, or (b) (1) the shareholders of GRT, 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 GRT immediately before such Transaction and (2) the
individuals who were members of GRT'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) GRT acquires assets of another company or a subsidiary of GRT
merges or consolidates with another company (each, an "Other Transaction")
and (a) the shareholders of GRT, immediately before such Other Transaction
own, directly or indirectly, immediately
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following such Other Transaction 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 GRT immediately before such Other Transaction or (b) the
individuals who were members of GRT'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
the board of trustees, as the case may be, of the Other Surviving
Corporation, or of a corporation or other entity beneficially directly or
indirectly owning 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 GRT if immediately
prior thereto the circumstances in (i)(a) or (i)(b) above exist.
3. COMPENSATION UPON A CHANGE IN CONTROL OF GRT. If the Executive is an
employee of the Company at the moment immediately prior to a Change in Control
of GRT, the Executive shall be entitled to receive the compensation and benefits
set forth below.
(a) GPLP shall pay to the Executive, not later than the date of any Change
in Control of GRT, unless otherwise agreed to in writing, a lump sum severance
payment (the "Severance Payment") equal to three (3) times the Base Amount (as
defined below). For purposes of this Section 3(a), the Base Amount shall mean
the Executive's annual compensation during the calendar year period preceding
the calendar year in which the Change in Control of GRT occurs. For purposes of
determining annual compensation in the preceding sentence, there shall be
included (i) all base salary and bonuses paid or payable to the Executive by the
Company with respect to the preceding calendar year, (ii) all grants of
restricted common shares of beneficial interest of GRT (the "Shares"), if any,
with respect to such preceding calendar year, which Shares shall be valued based
on their date of grant Fair Market Value (as defined in Section 7.2 of the GRT's
1993 Employee Share Option Plan or 1993 Trustee Share Option Plan, as the case
may be, or any other plan or agreement pursuant to which they are issued), and
(iii) the fair market value of any other property or rights given or awarded to
the Executive by the Company with respect to such preceding calendar year.
(b) Any Shares now or hereafter issued to the Executive pursuant to any
restricted Share grant shall vest on
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the day immediately prior to the date of a Change in Control of GRT and no
longer be subject to repurchase or any other forfeiture restrictions.
(c) GRT and GPLP shall cause the Company to maintain in full force and
effect for the Executive's continued benefit for 18 months following a Change in
Control of GRT, all life, accident, medical and dental insurance benefit plans
and programs or arrangements in which the Executive was entitled to participate
immediately prior to the date of a Change in Control of GRT; provided that the
Executive's continued participation is possible under the general terms and
provisions of such plans and programs; and provided, further, that in the event
that the Executive becomes employed by any third party during such 18-month
period, then upon the date of such employment the Executive shall no longer be
entitled to any of the accident, medical or dental insurance benefits described
in the preceding clause. Subject to the preceding sentence, in the event that
the Executive's participation in any such plan or program is barred, GRT and
GPLP shall arrange to cause the Company to provide the Executive with benefits
substantially similar to those which the Executive was entitled to receive under
such plans and programs. Subject to the first sentence of this paragraph, at the
end of the period of coverage, the Executive shall have the option to have
assigned to him at no cost to the Executive and with no apportionment of prepaid
premiums, any assignable insurance policy owned by the Company and relating
specifically to the Executive.
(d) All options to purchase Shares now or hereafter granted to the
Executive shall vest on the day immediately prior to the date of a Change in
Control of GRT and become fully exercisable in accordance with their terms.
(e) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 3 by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided for in this Section 3 be
reduced by any compensation earned by him as the result of employment by another
employer or by retirement benefits after the date of termination, or otherwise,
except as specifically provided in this Section 3.
4. ADDITIONAL AMOUNT. Whether or not Section 3 hereof is applicable, if in
the opinion of tax counsel selected by the Executive and reasonably acceptable
to the Company, the Executive has or will receive any compensation or recognize
any income (whether or not pursuant to this Agreement or any plan or other
arrangement of the Company and whether or not the Executive's employment with
the Company has terminated) which constitutes an
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"excess parachute payment" within the meaning of Section 280G(b)(1) of the
Internal Revenue Code of 1986, as amended (the "Code") (or for which a tax is
otherwise payable under Section 4999 of the Code), then GPLP shall pay the
Executive an additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by the Executive under Section 4999 of the Code with respect
to all such excess parachute payments (or otherwise), including without
limitation the Additional Amount, plus (ii) all federal, state and local income
taxes payable by Executive with respect to the Additional Amount. The amounts
payable pursuant to this Section 4 shall be paid by GPLP to the Executive not
later than the date of any Change in Control of GRT, unless otherwise agreed to
in writing.
5. EXPENSES. GPLP shall pay or reimburse the Executive, as the case may be,
for all legal fees and related expenses (including the costs of experts,
evidence and counsel) paid by the Executive as a result of (i) the Executive
seeking to obtain or enforce any right or benefit provided by this Agreement, or
(ii) any action taken by the Company against the Executive in enforcing its
rights hereunder; provided, however, that GPLP shall reimburse the legal fees
and related expenses described in this Section 5 only if and when a final
judgement has been rendered in favor of the Executive and all appeals related to
any such action have been exhausted.
6. NO EMPLOYMENT RIGHTS OR OBLIGATIONS. Nothing contained herein shall
confer upon the Executive the right to continue in the employment or service of
the Company or affect any right that the Company may have to terminate the
employment or service of the Executive at any time for any reason.
7. GRT GUARANTY. GRT guarantees the satisfaction of all obligations of, and
the full and prompt payment of all amounts payable by, GPLP hereunder. In
addition, GRT guarantees the satisfaction of all obligations of the Company
hereunder.
8. GOVERNING LAW; ARBITRATION. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Maryland,
without regard to Maryland's conflicts of law principles. Any dispute or
controversy arising under this Agreement, or out of the interpretation hereof,
or based upon the breach hereof, shall be resolved by arbitration held at the
offices of the American Arbitration Association in the City of Philadelphia in
accordance with the rules and regulations of such association prevailing at the
time of the demand for arbitration by either party hereto, and the decision of
the arbitrator or arbitrators shall be final and binding upon both parties
hereto, provided, however, that the arbitrator or arbitrators shall only have
the power and authority to interpret,
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and not to modify or amend, the terms and provisions hereof. Judgment upon an
award rendered by the arbitrator or arbitrators may be entered in any court
having jurisdiction thereof. Notwithstanding anything contained in this Section
8, either party shall have the right to seek preliminary injunctive relief in
any court in the City of Philadelphia in aid of, and pending the final decision
in, the arbitration proceeding.
9. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the
parties and is intended to supersede all prior negotiations, understandings and
agreements with respect to the subject matter hereof. 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.
10. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of, be binding upon and be enforceable by GRT and GPLP, their successors
and assigns and the Executive, and the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
11. 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 telex, telegram or mailgram, 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 given in the manner provided for in this
Section 11. All notices shall be deemed to have been given as of the date of
personal delivery, transmittal or mailing thereof.
12. SEVERABILITY. If any provision in this Agreement is determined to be
invalid, it shall not affect the validity or enforceability of any of the other
remaining provisions hereof.
13. GRT EXCULPATION. This Agreement and all documents, agreements,
understandings and arrangements relating to the matters described herein have
been executed by the undersigned representative of GRT in his/her capacity as an
officer or trustee of GRT which has been formed as a Maryland real estate
investment trust pursuant to an Amended and Restated Declaration of Trust of
GRT, as amended, and not individually, and neither the trustees, officers or
shareholders of GRT shall be bound or have any personal liability hereunder or
thereunder. The Executive shall look solely to the assets of GRT for
satisfaction of any liability of GRT in respect of this Agreement and all
documents, agreements, understandings and arrangements
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relating to this transaction and will not seek recourse or commence any action
against any of the trustees, officers or shareholders of GRT 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GLIMCHER REALTY TRUST
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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