PERFORMANCE SHARE AWARD AGREEMENT Issued Pursuant to the Glimcher Realty Trust Amended and Restated
Exhibit
4.16
Issued
Pursuant to the
Amended
and Restated
2004
Incentive Compensation Plan and
2007
Long
Term Incentive Plan for Senior Executives
THIS
PERFORMANCE SHARE AWARD AGREEMENT (“Agreement”),
effective ___________, 2007 (the “Effective
Date”),
represents the allocation of performance shares (“Performance
Shares”)
by
Glimcher Realty Trust, a Maryland real estate investment trust (the
“Company”),
to
_____________________ (the “Participant”)
pursuant to the 2007 Long Term Incentive Plan for Senior Executives (the
“Incentive
Plan”),
which
was adopted on March 8, 2007, in accordance with the Company’s 2004 Incentive
Compensation Plan, which was amended and restated by the Amended and Restated
2004 Incentive Compensation Plan (the “Plan”).
This
Award is made pursuant to and subject to the terms and conditions of the Plan
and the Incentive Plan. The Performance Shares allocated and awarded under
this
Agreement (“Award”)
are
intended to be Performance-Based Compensation within the meaning of the Plan.
This Award represents the right to receive one Share (as defined in the Plan)
for each Performance Share earned by satisfaction of the performance measures
set forth in Section 2 hereof.
If
there
is any inconsistency between the terms of this Agreement, the Incentive Plan,
and the terms of the Plan, then the Plan’s terms shall completely supersede and
replace the conflicting terms of this Agreement and the Incentive Plan. 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. Share
Allocation.
The
individual named above has been selected to participate in the Plan and the
Incentive Plan and receive an allocation of Performance Shares as described
below and, upon the satisfaction of the performance measures stated herein,
a
transfer of the Shares described below:
(a) Date
of Performance Share Allocation:
Xxxxx
0, 0000
(x) Number
of Performance Shares Allocated for Transfer:
______________
(c) Fair
Market Value of Shares represented by Performance Share Allocation (per share
valuation):
$_____________1
2. Performance
Measures.
The
Company will transfer to the Participant the Shares in the amounts described
herein upon the satisfaction of the measures stated below (the "Performance
Measures”):
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(a)
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Dividend
Measure:
The
Company timely pays all quarterly dividends on its common shares
of
beneficial interest during the period of January 1, 2007 to December
31,
2009 (the “Performance
Period”)
at a dividend amount no less than those paid during fiscal year
2006.
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1
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Represents
the initial value of the Performance Shares as determined pursuant
to
Article 9.2 of the Plan. The per share Fair Market Value of the
Shares is
determined pursuant to Article 2.15 of the
Plan.
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1
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(b)
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Total
Shareholder Return Measure: The
total shareholder return (“TSR”)
on the Shares during the Performance Period is at least in the top
60% of
the TSR for the publicly traded shares of common stock of the peer
companies listed in Exhibit A hereto (the “Peer
Companies”).
For purposes of measuring the TSR achievement of the Shares against
the
TSR of the common stock of the Peer Companies, TSR shall be equal
to (i)
the Market Value (as defined below) of the sum of (x) one share of
common
stock plus (y) any additional shares acquired as a result of the
dividend
reinvestment described below with respect to such one share and any
additional shares acquired as a result of the dividend reinvestment,
at
the end of the Performance Period, divided by (ii) the Market Value
of one
share of common stock at the beginning of the Performance Period,
minus
one (1.00). For purposes of measuring TSR under this Section, where
dividends are payable on a share of common stock, dividends shall
be
assumed to be cumulatively reinvested in shares (or fractional shares)
of
common stock at the Market Value of the common stock on the day the
dividends are paid. Also, if the common stock subject to measurement
under
this Section is subject to change(s) (including, without limitation,
the
changes specified in Section 4.4 of the Plan) during the Performance
Period, then the Committee (as defined below) shall have the authority
to
adjust the formula stated above for measuring TSR achievement to
take into
account any such change(s). For purposes of this Agreement, Market
Value
shall mean the closing price of the respective common stock as reported
on
the New York Stock Exchange or such other established national stock
exchange (or exchanges) on the applicable measurement date.
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Following
the satisfaction of the Performance Measures and prior to any transfer of Shares
by the Company pursuant to this Agreement, the Executive Compensation Committee
of the Company’s Board of Trustees, or
such
other person, group, or entity appointed by the Board of Trustees to administer
each of the Plan and the Incentive Plan
(the
“Committee”),
shall
certify in writing that the Performance Measures have been satisfied. The
Committee is prohibited from revising any Performance Measure or modifying
the
amount of compensation payable under Section 3 herein
for achievement of the respective Performance Measure upon the attainment of
the
respective measure, unless such revision, amendment, or modification is
permitted pursuant to the terms of the Plan and Inventive Plan and so modified,
amended, or revised in accordance with the terms of the Plan and the Incentive
Plan. Additionally, in the event that any Peer Company (i) ceases during the
Performance Period to have its common shares of stock publicly traded, (ii)
issues a public announcement during the Performance Period of the commencement
of a formal investigation by an agency of the United States government, (iii)
ceases during the Performance Period to qualify as a real estate investment
trust (“REIT”)
under
the Code, or (iv) ceases during the Performance Period to operate primarily
in
the retail sector of the REIT industry, then such Peer Company shall
automatically cease to be a member of the Peer Companies.
3.
Transfer of Shares.
If the
Company satisfies the Performance Measures and the Committee certifies the
achievement of the Performance Measures, the Company shall transfer to the
Participant, subject to Section 5 herein, Shares to the Participant as follows
(the number of Shares to be transferred is based upon the level of achievement
of the TSR Measure):
2
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If
the Relative TSR Performance
(Percentile
Rank vs. Peer Companies) is:
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The
number of Shares
to
be transferred is:
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90th
percentile and above
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200%
of Performance Shares Allocated for Transfer
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80th
percentile to 89th
percentile
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170%
of Performance Shares Allocated for Transfer
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70th
percentile to 79th
percentile
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140%
of Performance Shares Allocated for Transfer
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60th
percentile to 69th
percentile
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110%
of Performance Shares Allocated for Transfer
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50th
percentile to 59th
percentile
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80%
of Performance Shares Allocated for Transfer
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40th
percentile to 49th
percentile
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50%
of Performance Shares Allocated for Transfer
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Below
40th
percentile
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0%
of Performance Shares Allocated for
Transfer
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The
Shares transferred by the Company may be subject to any restrictions deemed
appropriate by the Committee or required by applicable law. Except as provided
in Section 7 hereof, the Shares shall be transferred as soon as practicable
during the 2010 calendar year, but not earlier than the first business day
following the completion of the year end audit of the Company’s financial
statements covering the last year of the Performance Period (the “Transfer
Date”).
4. Evaluation
of Achievement of the Performance Measures.
In
evaluating whether any or all of the Performance Measures have been satisfied,
the Committee may consider or not consider in its evaluation the occurrence
of
any of the following events during the Performance Period: (a) asset write-downs
by the Company, (b) litigation or claim judgments or settlements, (c) the effect
of changes in tax laws, accounting principles, or other laws or provisions
affecting reported results, (d) any reorganization and restructuring programs,
(e) extraordinary nonrecurring items as described in Accounting Principles
Board
Opinion No. 30, as amended, superseded, modified, or revised, and/or in
management’s discussion and analysis of financial condition and results of
operations appearing in the Company’s annual report to shareholders for the
applicable year, (f) acquisitions or divestitures, and (g) foreign exchange
gains and losses. To the extent such inclusions or exclusions affect Share
transfers to the Participant under Section 3 herein, they shall be prescribed
in
a form that meets the requirements of Section 162(m) of the Code for
deductibility.
5. Forfeiture.
If the
Participant terminates employment prior to the end of the Performance Period
with the Company, or any Subsidiary or Affiliate, for any reason other than
Disability (as defined below) or death, this Award shall be forfeited and no
Shares shall be transferred.
3
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6.
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Waiver
of Forfeiture Provisions
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(a) General.
In the
event the Participant’s employment with, or performance of services for the
Company, or any Affiliate or Subsidiary, is terminated or otherwise ceases
for
any reason other than the Participant’s death or Disability, the Participant’s
Award shall terminate unless the Committee, in its sole and absolute discretion,
allows the Participant, subject to subsection (d) hereof, to retain for the
duration of the Performance Period the Participant’s eligibility to receive a
transfer of Shares in respect of the Performance Shares allocated to the
Participant in Section 1(b) herein. Any
determination by the Committee to extend the Participant’s eligibility under
this Section 6(a) shall be specified in writing. Any such transfer of Shares
shall be made on the Transfer Date.
(b) Death.
In the
event the Participant’s employment with, or performance of services for the
Company, or any Affiliate or Subsidiary, is terminated or otherwise ceases
as a
result of the Participant’s death, the Participant’s Award shall terminate
unless the Committee, in its sole and absolute discretion, allows the
Participant’s estate, subject to subsection (d) hereof, to retain for the
duration of the Performance Period the Participant’s eligibility to receive a
transfer of Shares in respect of the Performance Shares allocated to the
Participant in Section 1(b) herein. Any
determination by the Committee to extend the Participant’s eligibility on behalf
of the Participant’s estate under this Section 6(b) shall be specified in
writing. Any such transfer of Shares shall be made on the Transfer Date, and
the
Performance Shares granted hereunder, and/or the right to receive Shares on
the
Transfer Date, shall be transferred to a legal representative or administrator
of the Participant’s estate, unless such issuance is otherwise restricted by
applicable law.
(c) Disability.
In the
event the Participant’s employment with, or performance of services for the
Company, or any Affiliate or Subsidiary, is terminated or otherwise ceases
as a
result of the Participant’s Disability, the Participant’s Award shall terminate
unless the Committee, in its sole and absolute discretion, allows the
Participant, subject to subsection (d) hereof, to retain for the duration of
the
Performance Period the Participant’s eligibility to receive a transfer of Shares
in respect of the Performance Shares allocated to the Participant in Section
1(b) herein. Any
determination by the Committee to extend the Participant’s eligibility under
this Section 6(c) shall be specified in writing. Any such transfer of Shares
shall be made on the Transfer Date. For purposes of this Agreement, the term
“Disability” means the Participant is unable to engage in any substantially
gainful activity by reason of any medically determinable physical or mental
impairment, 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, (i) whether the Participant has ceased to perform services of any
kind due to a Disability and, if so, (ii) the first date of such
Disability.
(d) Reduction
of Award.
If the
Committee elects, pursuant to this Section 6, to allow the Participant or his
or
her estate to retain the Participant’s or his or her estate’s eligibility to
receive a transfer of Shares in respect of the Performance Shares allocated
to
the Participant in Section 1(b) herein, then notwithstanding anything to the
contrary, the number of Performance Shares allocated to the Participant may
be
reduced to an amount determined by the Committee, in its sole and absolute
discretion, as set forth in the writing extending the Participant’s or his or
her estate’s eligibility to receive a transfer of Shares in respect of the
Performance Shares allocated hereunder. The
balance of the Performance Shares allocated to the Participant in Section (1)(b)
herein shall be forfeited.
7. Change
in Control.
If a
Change in Control of the Company occurs during the Performance Period then
the
Performance Period shall conclude on the effective date of the Change in Control
and achievement of the TSR Measure will be based upon the value of the per
share
consideration provided for Shares in connection with the Change in Control
transaction compared to the TSR of the common shares of the Peer Companies
as of
such date. The term “Change in Control” shall have the meaning set forth in
Exhibit B hereto. Any transfer shall be made on the effective date of the Change
in Control.
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8. Administration.
This
Agreement and the rights of the Participant hereunder are subject to all the
terms and conditions of the Plan and the Incentive Plan, as either may be
amended from time to time, as well as to such rules and regulations as the
Committee, or such other person, group, or entity appointed by the Board of
Trustees to administer the Plan and the Incentive Plan, may adopt for
administration of the Plan and the Incentive 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,
the
Incentive Plan and this Agreement, all of which shall be binding upon the
Participant.
9. Reservation
of Shares.
The
Company hereby agrees that at all times there shall be reserved for issuance
and/or delivery such number of Shares as shall be required for transfer pursuant
to this Award and Agreement.
10. Adjustments.
The
Shares subject to this Agreement shall also be subject to adjustment in
accordance with Section 4.4 of the Plan.
11. Exclusion
from Pension Computations. By
acceptance of the allocation and, if any, grant pursuant to this Agreement,
the
Participant hereby agrees that any income or gain realized upon the receipt
of
the Shares hereunder, upon the disposition of the Shares received, or upon
the
lapse of any 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.
12. Amendment.
The
Committee may at any time or from time to time amend the provisions, terms
and
conditions of this Agreement in accordance with the Plan, the Incentive Plan,
and applicable law.
13. 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, Xxxxx 00, Xxxx: 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 provided under this Section shall be effective upon
receipt.
14. 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 transfer of any Shares hereunder, any tax election by the
Participant, or any other taxable event triggered by obligations, income, rights
or privileges received or granted hereunder. If the Participant shall fail
to
make such Withholding Tax payments when and as required, the Company (or its
Affiliate or Subsidiary) 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, 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 obligation hereunder 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.
5
15. 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 the Shares 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 a legend to be set forth
on
each certificate representing the Shares to be transferred hereunder setting
forth any restriction on transfer of such Shares at law or otherwise as
determined by the Company unless counsel for the Company is of the opinion
as to
any such certificate that such legend is unnecessary.
16.
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 Agreement until such time as such Shares shall be
transferred to the Participant pursuant to the terms of this Agreement, the
Plan, and the Incentive Plan.
(c) With
the
approval of the Board of Trustees, the Committee may terminate, amend, or modify
the Plan or the Incentive Plan; provided, however, that no such termination,
amendment, or modification of the Plan or the Incentive 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, without regard
to the principles of conflicts of law which might otherwise apply.
(f) All
obligations of the Company under the Incentive Plan, 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 substan-tially all
of
the business and/or assets of the Company.
6
(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 any allocation, award, or other benefit
under the Plan and the Incentive 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 and the Incentive Plan by the Company, the Board of Trustees 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, the Incentive Plan,
this
Agreement, or any Award issued under this Agreement pursuant to the
Plan.
(j) This
Agreement, the Incentive Plan, the Plan, and any certificate representing the
Shares to be transferred hereunder shall constitute the entire agreement and
understanding between the Participant and the Company concerning any Award
issued, allocated, or granted hereunder and with respect to the subject matter
contained herein. This Agreement, the Incentive Plan, the Plan, and any
certificate representing the Shares to be transferred hereunder supersede all
prior agreements and the understandings between the parties hereto with respect
to any Award issued, allocated, or granted hereunder and with respect to the
subject matter contained herein.
17. Exculpation.
This
Agreement 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 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 that pertain to the subject matter hereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
By:
______________________
Print
Name:
Title:
7
ACKNOWLEDGED
& ACCEPTED:
______________________________________
Signature
Print
Name:_____________________________
Address:
______________________________
______________________________
______________________________
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EXHIBIT
A
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1.
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Taubman
Centers, Inc.
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2.
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The
Macerich Company
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3.
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General
Growth Properties, Inc.
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4.
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Simon
Property Group, Inc.
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5.
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CBL
& Associates Properties, Inc.
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6.
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Pennsylvania
Real Estate Investment Trust
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7.
|
Federal
Realty Investment Trust
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8.
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Kimco
Realty Corp.
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9.
|
Acadia
Realty Trust
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10.
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Regency
Centers Corp.
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11.
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Developers
Diversified Realty Corporation
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12.
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Tanger
Factory Outlet Centers, Inc.
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13.
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Xxxxxxxxxx
Realty Investors
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14.
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Kite
Realty Group Trust
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15.
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Ramco-Xxxxxxxxxx
Properties Trust
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16.
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Cedar
Shopping Centers, Inc.
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EXHIBIT
B
A
Change
in Control of Glimcher Realty Trust (“GRT”) shall be deemed to occur
if:
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(i)
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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 Effective Date, 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 Participant 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 Participant 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;
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(ii)
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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 fifty percent (50%) or more 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
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(iii)
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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 of indirectly, immediately following such Other Transaction
less
than fifty percent (50%) 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 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 GRT if immediately prior thereto the circumstances in
(i)(a) or
(i)(b) above exist.
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Notwithstanding
the foregoing, no transaction shall be deemed to be a Change in Control if
it
does not constitute a change in control as contemplated under regulations under
Section 409A of the Code.
10
