OPTION AWARD AGREEMENT Issued Pursuant to the
Exhibit
4.11
Issued
Pursuant to the
2004
Amended and Restated Incentive Compensation Plan
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 Amended and Restated Incentive
Compensation Plan adopted by its Board of Trustees (the “Board”) on or about
March 15, 2004 (the “Plan”), initially approved by the Company’s shareholders on
May 7, 2004 and, with respect to certain amendments and other matters, again
on
May 11, 2007. 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.1
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:
_________2
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 New York
Stock Exchange on the Date of Grant.
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ISOs
may be issued only to employees.
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Insert
a date that is one day before the 10th anniversary of the Date of
Grant.
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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.
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.3
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.3
(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.
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In
the case of an ISO, any extension pursuant to this Section 8(a) will
cause
the Option to lose its ISO
status
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(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 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.
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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 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 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.
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.
4
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.
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 deliv-ered 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 substan-tially 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.
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(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 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.
19. Change
in Control.
The
unvested portion of any Option granted to the Participant hereunder shall
immediately vest in its entirety on the day immediately prior to the date of
a
Change in Control of the Company and become fully exercisable in accordance
with
its terms. For purposes of this section, a “Change in Control of the Company”
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 date hereof, whether or not the Company is then
subject to such reporting requirement; provided,
however,
that there shall not be deemed to be a Change in Control of the Company
if
immediately prior to the occurrence of what would otherwise be a
Change in
Control of the Company: (a) the Participant is the other party to
the
transaction (a “Control
of the Company Event”)
that would otherwise result in a Change in Control of the Company
or (b)
the Participant is an executive officer, trustee, director or more
than 5%
equity holder of the other party to the Control of the Company Event
or of
any entity, directly or indirectly, controlling such other
party;
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(ii)
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the
Company 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
the Company if:
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(a)
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immediately
prior thereto the circumstances in (i)(a) or (i)(b) above exist,
or
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(b)
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(1)
the shareholders of the Company, 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 the Company immediately before such Transaction and
(2) the
individuals who were members of Company’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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the
Company acquires assets of another company or a subsidiary of the
Company
merges or consolidates with another company (each an “Other
Transaction”)
and (a) the shareholders of the Company, immediately before such
Other
Transaction own, directly of indirectly, immediately following such
Other
Transaction fifty percent (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 the Company immediately before such Other Transaction
or (b)
the individuals who were members of Company’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 the Company if immediately prior thereto the circumstances
in
(i)(a) or (i)(b) above exist.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
| GLIMCHER REALTY TRUST | ||
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| By: | ||
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
President, CEO & Trustee
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ACCEPTED:
Participant
Address
City State Zip
Code
8