Exhibit 10.109
OPTION AWARD AGREEMENT
Issued Pursuant to the
2004 Incentive Compensation Plan
of Glimcher Realty Trust
THIS OPTION AWARD AGREEMENT ("Agreement"), effective __________, (the
"Effective Date") represents the grant of an incentive option ("Option") by
Glimcher Realty Trust (the "Company"), to ___________ (the "Participant")
pursuant to the provisions of the Glimcher Realty Trust 2004 Incentive
Compensation Plan adopted on or about March 22, 2004 (the "Plan"). The Option
granted hereby is intended to be an "ISO", as such term is defined in the Plan,
within the meaning of Section 422 of the Code to the maximum extent permissible
under the Code. To the extent that the Option does not qualify as an ISO, the
Option or the portion thereof which does not so qualify shall constitute a
separate nonqualified option.
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 an incentive 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 is equal to the per share closing market price of the
Shares on the NYSE on the Date of Grant.
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.
1
4. Vesting Period: This Option shall vest and be exercisable, 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.(1)
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. 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, and may be exercised or surrendered during
Participant's lifetime only by the Participant or his or her guardian or legal
representative. 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.
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
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.(2)
(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 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
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, 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
----------------
(1) ISOs may be issued only to employees.
(2) In the case of an ISO, any extension pursuant to this Section 8(a) will
cause the Option to lose its ISO status.
2
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.
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.
3
15. Withholding Taxes; Disqualifying Dispositions. (a) The Company shall
have the right to withhold from a Participant, or otherwise require such
Participant or assignee to pay, any Withholding Taxes arising as a result of (i)
the grant of any Award, exercise of an Option, or any other taxable event
occurring pursuant to the Plan or this Agreement, or (ii) a Disqualifying
Disposition (as defined below) of Shares. If the Participant 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 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 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.
(b) Participant agrees to notify the Company in writing immediately
after such Participant makes a "Disqualifying Disposition" of any Shares
acquired pursuant to the exercise of the Option. A "Disqualifying Disposition"
is any disposition (including any sale) of such shares before the later of (i)
two years after the date the Participant was granted the Option or (ii) one year
after the date the Participant acquired Shares by exercising the Option. If the
Participant has died before such shares are disposed of, these holding period
requirements do not apply.
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
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.
4
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.
(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
5
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.
[Remainder of page intentionally blank.]
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
GLIMCHER REALTY TRUST
By: ______________________
Name: Xxxxxxx Xxxxxxxx
Title: Chairman & CEO
ACCEPTED:
__________________________
Participant
__________________________
Address
__________________________
City State Zip Code
7
