Exhibit 10.104
RESTRICTED STOCK AWARD AGREEMENT
Issued Pursuant to the
Glimcher Realty Trust
2004 Incentive Compensation Plan
THIS RESTRICTED STOCK AWARD AGREEMENT ("Agreement"), effective
_____________ (the "Effective Date"), represents the grant of restricted stock
("Stock") by Glimcher Realty Trust (the "Company"), to ___________ (the
"Participant") pursuant to the terms, provisions and definitions of the Glimcher
Realty Trust 2004 Incentive Compensation Plan adopted by its Board of Trustees
on or about March 15, 2004 (the "Plan") and approved by the Company's
shareholders on May 7, 2004. Stock granted hereby is intended to be restricted
and shall be subject to the restrictions set forth in this Agreement and the
Plan.
The Plan provides a complete description of the terms and conditions
governing the Stock. If there is any inconsistency between the provisions of
this Agreement and the provisions of the Plan, the Plan's provisions shall
completely supersede and replace the inconsistent or conflicting provisions 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 Stock Grant Information. The individual named above has been
selected to be a Participant in the Plan and receive shares of Stock, as
specified below (the "Shares"):
a. Date of Grant: ________________________________
b. Number of Shares Granted: _____________________
c. Type of Shares Granted:________________________
d. Price Per Share on the Date of Grant: $________
e. Latest Vesting Date: ______________
2. Grant of Stock. The Company hereby grants to the Participant the Shares
set forth above, at the stated per share price (which is one hundred percent
(100%) of the Fair Market Value (defined herein) of a Share on the Date of
Grant) in the manner and subject to the terms and conditions of the Plan and
this Agreement. The Compensation Committee has determined that the "Fair Market
Value" of a Share on the Date of Grant is equal to the average of the high and
low selling price of a Share on the preceding trading day.
3. Restrictions
a. Transfer Restrictions. Except as otherwise provided in Section 4, the
Shares may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated, other than by will or by the laws of descent and distribution,
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at any time prior to the periods and in accordance with the lapsing schedule set
forth below in Section 3(c). No sale, transfer, pledge, assignment, alienation
or hypothecation of the Shares in violation of this Section 3(a), whether
voluntary or involuntary, by operation of law or otherwise, shall be valid as to
any person, assignee or transferee with respect to any interest in the Shares
whatsoever. The Participant shall continue to be treated as the owner of the
Shares for purposes of this Agreement and shall continue to be bound by all of
the terms and provisions hereof. The restrictions set out in this Section 3(a)
are referred to in this Agreement as the "Transfer Restrictions."
b. Employee Forfeiture Restrictions. Upon the termination of the
Participant's employment with the Company for any reason other than the
Participant's death or Disability, all of the Non-Vested Shares (as defined
below) held by the Participant at the effective date of such termination, shall
immediately be returned to and canceled by the Company and shall be deemed to
have been forfeited by the Participant.
c. Lapse of Employee Forfeiture Restrictions. To the extent the Participant
remains in the continuous employment of the Company through the Vesting Date
specified below, the Forfeiture Restrictions under Section 3(b) hereof shall
lapse as follows:
Percentage of Shares for which
Forfeiture Restrictions
Vesting Date Shall have Lapsed
------------ ------------------------------
First Anniversary of Date of Grant 33%
Second Anniversary of Date of Grant 66%
Third Anniversary of Date of Grant 100%
To the extent the Forfeiture Restrictions shall have lapsed under this Section
3(c) with respect to the Shares, those Shares (the "Vested Shares") will,
effective on and after the Vesting Date, thereafter be free of the Forfeiture
Restrictions set forth in Section 3(b) hereof, but such Vested Shares will
continue to be subject to all of the remaining terms and conditions of this
Agreement, including but not limited to the Transfer Restrictions set forth in
Section 3(a). Any Shares for which the Forfeiture Restrictions have not yet
lapsed in accordance with this Section 3(c) hereof shall, for purposes of this
Agreement, be considered ("Non-Vested Shares").
4. Waiver of Restrictions
a. General. In the event the Participant's employment with, or performance
of services for the Company or any of its Subsidiaries or Affiliates is
terminated or otherwise ceases for any reason other than the Participant's death
and disability, the Compensation Committee may, in its sole and absolute
discretion, allow the Participant to retain the Shares for a period of time to
be specified in writing by the Compensation Committee.
b. Death. In the event the Participant's employment with, or performance of
services for the Company or any of its Subsidiaries or Affiliates is terminated
or otherwise ceases as a result of the Participant's death, any Vested Shares
shall be transferable on the date of death, unless such transfer is otherwise
restricted by applicable law, by the estate of such Participant, or by any
person who acquired such Vested Shares by bequest or inheritance, at any time
within one (1) year after the death of the Participant.
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c. Disability. In the event the Participant's employment with, or
performance of services for the Company or any of its Subsidiaries or Affiliates
is terminated or otherwise ceases as a result of the Participant's Disability,
the Participant, or his guardian or legal representative, shall have the
unqualified right to transfer, unless such transfer is otherwise restricted by
applicable law, any Vested Shares, at any time within one year after the first
date of the Participant's Disability. For purposes of this Agreement, the term
"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 Compensation Committee. Notwithstanding anything to the
contrary set forth herein, the Compensation Committee shall determine, in its
sole and absolute discretion, (1) whether a Participant has ceased to perform
services of any kind due to a Disability and, if so, (2) the first date of such
Disability.
5. 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 Compensation Committee may adopt for administration of the Plan. It is
expressly understood that the Compensation 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.
6. Reservation of Shares. The Company hereby agrees that at all times there
shall be reserved for issuance and/or delivery upon grant such number of shares
of Stock as shall be required for issuance or delivery upon the grant of the
Shares hereunder.
7. Adjustments. The Shares subject to this Agreement shall also be subject
to adjustment in accordance with Section 4.4 of the Plan.
8. Exclusion from Pension Computations. By acceptance of the grant pursuant
to this Agreement, the Participant hereby agrees that any income or gain
realized upon the receipt of the Stock hereof, upon the disposition of the
Shares received, or upon the lapse of the 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.
9. Amendment. The Compensation Committee may, with the consent of the
Participant, at any time or from time to time amend the provisions, terms and
conditions of this Agreement, and may at any time or from time to time amend the
provisions, terms and conditions of this Agreement in accordance with the Plan.
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10. 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.
11. 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 grant of any Shares, the lapse of any
Forfeiture Restrictions on any Shares, the transfer of any Shares, any tax
election by the Participant, or any other taxable event. If the Participant
shall fail to make such Withholding Tax payments when and as 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. If the Participant makes an
election pursuant to Section 83(b) of the Code concerning a Restricted Share
Award then the Participant shall submit a copy of such election to the Company.
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 Compensation Committee, to tender other Shares to the Company (either by
actual delivery or attestation, in the sole discretion of the Compensation
Committee, provided that, except as otherwise determined by the Compensation
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 ▇▇▇▇▇ ▇▇▇▇▇ 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.
12. 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 Stock 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 the Stock granted hereunder unless
counsel for the Company is of the opinion as to any such certificate that such
legend is unnecessary:
THE SALE OR TRANSFER OF THE COMMON SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY, OR BY OPERATION OF LAW,
IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
GLIMCHER REALTY TRUST 2004 INCENTIVE COMPENSATION PLAN ("PLAN"), AND
IN THE ASSOCIATED RESTRICTED STOCK AGREEMENT FOR THE HOLDER HEREOF. A
COPY OF THE PLAN AND SUCH RESTRICTED STOCK AGREEMENT MAY BE OBTAINED
FROM GLIMCHER REALTY TRUST.
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13. 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, to the extent permitted by applicable law, have
full voting rights as a stockholder of the Company with respect to the Shares
granted hereunder and the right to receive applicable dividends for the Stock
granted hereunder.
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 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 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 executing this Agreement and 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 Compensation 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
Agreement issued pursuant to the Plan.
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14. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
GLIMCHER REALTY TRUST
By: ______________________
Print Name:
Title:
ACKNOWLEDGED & ACCEPTED:
_______________________________________
Signature
Print Name:____________________________
Address: ______________________________
______________________________
______________________________
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