RESTRICTED STOCK AWARD AGREEMENT Issued Pursuant to the Glimcher Realty Trust
Exhibit
10.109
FORM
AGREEMENT
Issued
Pursuant to the
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 (the “Board”)
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”):
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a.
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Date
of Grant:
________________________________
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|
b.
|
Number
of Shares Granted:
____________________
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|
c.
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Type
of Shares
Granted:________________________
|
|
d.
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Price
Per Share on the Date of Grant:
$________
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e.
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Latest
Vesting Date:
______________
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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
Executive 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, 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.”
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Exhibit
10.109
FORM
AGREEMENT
b. Employee
Forfeiture Restrictions.
Upon
the termination of the Participant’s employment with the Company, or any of its
subsidiaries or affiliates, for any reason, all Shares that are not the Vested
Shares (as defined below) held by the Participant, or any guardian or legal
representative, 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 (the “Forfeiture Restrictions”); provided that the
Executive Compensation Committee of the Board may, in its sole and absolute
discretion, allow the Participant to retain the Shares for a period of time
after such termination date to be specified in writing by the Executive
Compensation Committee.
c. Lapse
of Employee Forfeiture and Transfer 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) and Transfer Restrictions under Section 3(a) hereof shall lapse
as
follows:
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Vesting
Date
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Percentage
of Shares for which
Forfeiture
and Transfer Restrictions Shall have Lapsed
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|
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Third
Annual Anniversary of Date of Grant
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33%
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|
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Fourth
Annual Anniversary of Date of Grant
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66%
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Fifth
Annual Anniversary of Date of Grant
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100%
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To
the
extent the Forfeiture Restrictions and Transfer 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) and Transfer Restrictions
under Section 3(a) hereof, but such Vested Shares will continue to be subject
to
all of the remaining terms and conditions of this Agreement as applicable.
Any
Shares for which the Forfeiture Restrictions and Transfer 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. 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 Executive Compensation Committee
may adopt for administration of the Plan. It is expressly understood that the
Executive 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.
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Exhibit
10.109
FORM
AGREEMENT
5. 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.
6. Adjustments.
The
Shares subject to this Agreement shall also be subject to adjustment in
accordance with Section 4.4 of the Plan.
7. 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.
8. Amendment.
The
Executive 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 and applicable
law.
9. 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 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇: General Counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ 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.
10. 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
or Transfer 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 Executive Compensation Committee, to tender other Shares to the Company
(either by actual delivery or attestation, in the sole discretion of the
Executive Compensation Committee, provided that, except as otherwise determined
by the Executive 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.
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Exhibit
10.109
FORM
AGREEMENT
11. 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 (THE “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.
12.
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 Executive Compensation 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 or be contrary to applicable
law.
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Exhibit
10.109
FORM
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 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.
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 Executive 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.
j. This
Agreement, the Plan, and any certificate representing the Stock granted
hereunder shall constitute the entire agreement and understanding between the
Participant and the Company concerning the grant of the Stock hereunder and
with
respect to the subject matter contained herein. This Agreement, the Plan, and
any certificate representing the Stock granted hereunder supersede all prior
agreements and the understandings between the Parties with respect to the grant
of the Stock hereunder and with respect to the subject matter contained
herein.
13. 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.
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Exhibit
10.109
FORM
AGREEMENT
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
By:
______________________
Print
Name:
Title:
ACKNOWLEDGED
& ACCEPTED:
______________________________________
Signature
Print
Name:_____________________________
Address:
______________________________
______________________________
______________________________
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