CONSULTING AGREEMENT
Exhibit
10.110
This
Consulting Agreement (this “Agreement”)
is
made as of the 22nd day of February, 2007 by and between GLIMCHER REALTY TRUST,
a Maryland real estate investment trust (“Company”),
and
XXXXXX X. XXXXXX, an individual resident of Florida
(“Consultant”).
RECITALS
1. Consultant
has served as a Trustee of the Company for many years.
2. Consultant
is not being nominated for re-election to the Board of Trustees of the Company
at the 2007 annual meeting of shareholders.
3. Company
desires
to
retain the services of Consultant to perform certain consulting services upon
commencement of the Term, as hereinafter defined.
4. The
parties
desire
to set forth herein the terms and conditions of their agreements and
understandings.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises and covenants of the parties
as hereinafter set forth, the parties hereby agree as follows:
ARTICLE
I
Consulting
Services
1.1 Agreement
to Provide Consulting Services.
Consultant shall report to the Chief Executive Officer of the Company and will
provide such advice and counsel to the Chief Executive Officer of the Company
as
the Chief Executive Officer designates in writing (the “Services”).
Consultant shall not take any action on behalf of or with respect to the Company
or communicate with any trustee, officer or employee of the Company concerning
the
business and affairs of the Company,
except
as may be designated in writing by the Chief Executive Officer of the
Company.
1.2 Consulting
Fee and Expenses.
(a) Consulting
Fee.
The
Company shall pay Consultant, for Consultant’s Services, a consulting fee of
$120,000, of which (i) $60,000 shall be due and payable upon the first business
day of the month following commencement of the Term; and (ii) the balance of
which shall be payable in twelve (12) equal monthly installments of $5,000
each,
commencing upon the first business day of the month following commencement
of
the Term. The
compensation to be paid hereunder is fixed and determined and not dependant
upon
the extent to which Company utilizes the services made available to it by
Consultant. The
Company may withhold any applicable federal, state and local taxes.
(b) Travel
Expenses.
The
Company shall reimburse Consultant for all reasonable travel expenses incurred
by him in rendering Services hereunder provided that Company may require
reasonable documentation of such expenses prior to reimbursement.
(c) Prior
Secretarial Expenses.
Promptly
after execution of this Agreement, the Company shall pay Consultant the sum
of
$14,000 in reimbursement for secretarial expenses incurred by Consultant during
his tenure as a member of the Board of Trustees of the Company.
ARTICLE
II
General
Provisions
2.1 Term.
This
Agreement shall take effect on the date immediately following the earlier of
(i)
resignation by Consultant from the Board of Trustees of the Company; or (ii)
expiration of Consultant’s current term as a member of the Board of Trustees of
the Company and shall remain in full force and effect for a period of one (1)
year thereafter (the “Term”)
unless
terminated pursuant to the provisions of this Agreement.
2.2 Rights
of Termination.
This
Agreement may be terminated as follows:
(a) By
either
party, upon prior written notice, if a material breach of or default under
this
Agreement shall occur; or
(b) By
Company immediately upon Consultant’s death or incompetence, as determined by a
court of competent jurisdiction, or for Cause, regardless whether the Term
of
this Agreement has commenced. For the purposes of this Agreement, “Cause”
will
mean (i) commission of an act of dishonesty directly involving the Company,
including, but not limited to, misappropriation of funds or property of the
Company; (ii) continued refusal to perform his assigned duties and
responsibilities after written notice by the Company to Consultant giving 10
days to resume performance of such duties; (iii) the wrongful disclosure or
use
of the Company’s trade secrets or other confidential information or the breach
of any obligation of confidentiality under this Agreement; (iv) failure to
comply with the policies and procedures of the Company, its Board of Trustees
and or any committee of the Board of Trustees; or (v) any malicious and
intentional action by Consultant that is detrimental to Company.
Either
party may exercise its right to terminate at any time while the event giving
rise to such right to terminate continues, without prejudice to any other right
or remedy the terminating party may have as a result of such event.
2.3 Rights
and Obligations Upon Termination.
(a) If
Consultant’s services are terminated pursuant to paragraph 2.2(a) or paragraph
2.2(b) or Consultant voluntarily terminates his services, Consultant shall
not
be entitled to the payment of any compensation accruing hereunder after the
effective date of termination.
(b) If
Company terminates this Agreement without Cause, Company shall pay Consultant
the compensation contemplated hereunder to the end of the Term of this
Agreement.
(c) Upon
termination of this Agreement and payment of all monies due Consultant as of
the
termination date, the Company shall thereafter have no further obligations
to
Consultant whatsoever.
2.4 Confidentiality.
In
consideration of the covenants of the Company hereunder, Consultant hereby
acknowledges his obligation to hold in strictest confidence for the Company
all
trade secrets and other confidential information relating to the Company’s
business and affairs which come or have come to his knowledge during the period
of his engagement as a member of the Board of Trustees of the Company or during
his employment by the Company under this Agreement. Consultant shall not
communicate with any person, other than the Chief Executive Officer of the
Company, with respect to any matter regarding the Company or the scope of his
duties under this Agreement. If Consultant is requested pursuant to, or required
by, applicable law, regulation or legal process to disclose any such
information, to the extent permitted by applicable law, rule, regulation or
legal process, Consultant will notify the Company promptly so that the Company
may seek a protective order or other appropriate remedy or, in its sole
discretion, waive compliance with the terms of this Agreement. If no such
protective order or other remedy is obtained, or the Company does not waive
compliance with the terms of this letter agreement, Consultant will furnish
only
that portion of the information that counsel advises Consultant is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the information.
2.5 Miscellaneous
Provisions.
This
Agreement shall be governed by and construed under the laws of the State of
Ohio. This Agreement constitutes the entire agreement of the parties with
respect to the matters set forth herein. This Agreement, or any part hereof,
may
not be amended, modified, waived or changed except in writing signed by both
parties hereto. This Agreement, or any obligation or right hereunder, shall
not
be assignable or delegable by either party without the express written consent
of the other party hereto. This Agreement
shall be
binding upon and inure to the benefit of Consultant and Company and their
respective permitted successors and assigns.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
CONSULTANT
/s/
Xxxxxx X. Xxxxxx
XXXXXX
X. XXXXXX
|
By:
/s/
Xxxxxxx X. Xxxxxxxx
XXXXXXX
X. XXXXXXXX
President
and Chief Executive Officer
|
2