PERFORMANCE SHARE AWARD AGREEMENT Issued Pursuant to the Glimcher Realty Trust Amended and Restated 2004 Incentive Compensation Plan and the 2011 Glimcher Long-Term Incentive Compensation Plan

6.     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 for all purposes under this Agreement and the determination of the number of Shares to be transferred to the Participant shall be made in accordance with Section 3 of the Agreement. The term “Change in Control” shall have the meaning set forth in Exhibit A hereto. Any transfer of Shares required under this Section 6 shall be made on the effective date of the Change in Control.

7.     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.  If there is any inconsistency between the terms of this Agreement and the Incentive Plan, then the Incentive Plan’s terms shall completely supersede and replace the conflicting terms of this Agreement.  If there is any inconsistency between the terms of this Agreement and the terms of the Plan, then the Plan’s terms shall completely supersede and replace the conflicting terms of this Agreement. If there is any inconsistency between the terms of the Incentive Plan and the terms of the Plan, then the Plan’s terms shall completely supersede and replace the conflicting terms of the Incentive Plan.

8.     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.

 

9.     Exclusion from Pension Computations.  By acceptance of the allocation and, if any, final award 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 Subsidiary or Affiliates.

 

10.     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.

 

11.     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 180 East Broad Street, Suite 21, Attn: General Counsel, Columbus, Ohio 43215 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.

 

12.     Income Reporting and Withholding Taxes.  The Company shall have the right to report income and to withhold from the Participant, or otherwise require the 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 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. Notwithstanding anything to the contrary in this Section 12, in no event shall any deduction or withholding or remittance made under this Section 12 exceed the minimum statutory withholding requirements under applicable federal, state and local law.

13.     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.

15.     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.

16.     Section 409A of the Code.  This Agreement is intended to comply with Code Section 409A.  If Code Section 409A applies, this Agreement will be administered in accordance with Sections 5.15(b) and 5.15(c) of the Incentive Plan.