Exhibit 4.6
As amended on January 17, 2001
GLIMCHER REALTY TRUST
1993 EMPLOYEE SHARE OPTION PLAN
GLIMCHER REALTY TRUST, a Maryland real estate investment trust (the
"Company"), hereby establishes and adopts the following Employee Share Option
Plan (the "Plan").
RECITALS
WHEREAS, the Company desires to encourage high levels of performance by the
individuals who are key to the success of the Company and to encourage such
individuals to remain in the employ of the Company and its subsidiaries by
increasing their proprietary interest in the Company's growth and success.
WHEREAS, to attain these ends, the Company has formulated the Plan embodied
herein to authorize the granting of incentive awards through grants of share
options ("Options") to those individuals whose judgment, initiative and efforts
are responsible for the success of the Company.
NOW, THEREFORE, the Company hereby constitutes, establishes and adopts the
following Plan and agrees to the following provisions:
ARTICLE 1.
PURPOSE OF THE PLAN
1.1. Purpose. The purpose of the Plan is to secure for the Company the
benefits of the additional incentive inherent in the ownership of the Company's
Common Shares of Beneficial Interest (the "Shares") by selected individuals
whose judgment, initiative and efforts are responsible for the success of the
Company and its subsidiaries and to help the Company and its subsidiaries and
affiliates secure and retain the services of such individuals. Options granted
under the Plan will be either "incentive share options," intended to qualify as
such under the provisions of section 422 of the Internal Revenue Code of 1986,
as from time to time amended (the "Code"), or "nonqualified share options." For
purposes of the Plan, the term "subsidiary" shall mean "subsidiary corporation,"
as such term is defined in section 424(f) of the Code, and "affiliate" shall
have the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
ARTICLE 2.
SHARES SUBJECT TO OPTIONS
2.1. Number of Shares. Subject to the adjustment provisions of Section 7.11
hereof, the aggregate number of Shares which may be issued under Options,
whether as incentive share options or nonqualified share options, exercised
under the Plan shall not exceed 400,000. If, and to the extent, that Options
granted under the Plan terminate, expire or are cancelled without having been
exercised, new Options may be granted under the Plan with respect to the Shares
covered by such terminated, expired or cancelled Options; provided that the
granting and terms of such new Options shall in all respects comply with the
provisions of the Plan. No Options to purchase fractional Shares shall be
granted or issued under the Plan.
2.2. Character of Shares. Shares delivered upon the exercise of Options may
be authorized and unissued Shares or issued Shares held in the Company's
treasury, or both.
2.3. Reservation of Shares. There shall be reserved at all times for sale
under the Plan an aggregate number of Shares equal to the maximum number of
Shares which may be purchased pursuant to Options granted, or that may be
granted, under Articles 4 and 6 hereof.
ARTICLE 3.
ELIGIBILITY
3.1. Options to Employees. (a) Participants who receive Options under
Articles 4 and 6 hereof ("Optionees") shall consist of such key employees (other
than employees who are also Trustees (hereinafter defined) or directors) of the
Company or any of its subsidiaries or affiliates as the Committee (as defined in
Section 4.1(a)) shall select from time to time.
(b) No Option which is intended to qualify as an "incentive share option"
may be granted to any employee who, at the time of such grant, owns, directly or
indirectly (within the meaning of sections 422(b)(6) and 424(d) of the Code),
shares possessing more than ten percent (10%) of the total combined voting power
of all classes of shares of the Company or any of its subsidiaries or
affiliates, unless at the time of such grant, (i) the option price is fixed at
not less than 110% of the Fair Market Value (as defined below) of the Shares
subject to such Option, determined on the date of the grant, and (ii) the
exercise of such Option is prohibited by its terms after the expiration of five
(5) years from the date such Option is granted.
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ARTICLE 4.
OPTIONS
4.1. Administration. (a) The Plan shall be administered by a committee (the
"Committee") consisting of not fewer than two "disinterested" trustees of the
Company (the trustees of the Company being hereinafter referred to as the
"Trustees"), as designated by the Trustees. The Trustees may remove from, add
members to, or fill vacancies in the Committee. For purposes of the Plan, a
Trustee shall be considered "disinterested" if such Trustee has not, during the
one year prior to his appointment to the Committee, been granted or awarded any
equity securities pursuant to the Plan or any other plan of the Company
entitling Trustees to acquire shares or share options of the Company, except
that: (i) participation in a formula plan meeting the conditions set forth in
paragraph (c)(2)(ii) of Rule 16b-3 ("Rule 16b-3") promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), shall not
disqualify a Trustee from being a disinterested Trustee; (ii) participation in
an ongoing securities acquisition plan meeting the conditions set forth in
paragraph (d)(2)(i) of Rule 16b-3 shall not disqualify a Trustee from being a
disinterested Trustee; (iii) an election to receive an annual retainer fee in
either cash or an equivalent amount of securities, or partly in cash and partly
in securities, shall not disqualify a Trustee from being a disinterested
Trustee; and (iv) participation in a plan shall not disqualify a Trustee from
being a disinterested Trustee for the purpose of administering a plan that does
not permit participation by Trustees.
(b) The Committee is authorized, subject to the provisions of the Plan, to
establish such rules and regulations as it may deem appropriate for the conduct
of meetings and proper administration of the Plan. All actions of the Committee
shall be taken by majority vote of its members.
(c) Subject to the provisions of the Plan, the Committee shall have
authority, in its sole discretion, to interpret the provisions of the Plan and,
subject to the requirements of applicable law, including Rule 16b-3 of the
Exchange Act, to prescribe, amend, and rescind rules and regulations relating to
it as it may deem necessary or advisable. All decisions made by the Committee
pursuant to the provisions of the Plan shall be final, conclusive and binding on
all persons, including Plan participants, the Company, its shareholders,
Trustees and employees and any subsidiary or affiliate of the Company and their
directors, shareholders and employees.
4.2. Grant of Options. The Committee shall determine, within the
limitations of the Plan, the employees of the Company and its subsidiaries and
affiliates to whom Options are to be granted under the Plan, the number of
Shares that may be purchased under each such Option and the option price, and
shall designate such Options at the time of the grant as either "incentive share
options" or "nonqualified share options;" provided, however, that Options
granted to employees of an affiliate (that is not also a subsidiary) or to
non-employees of the Company may only be "nonqualified share options."
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All Options granted pursuant to this Article 4 and Article 6 herein shall
be authorized by the Committee and shall be evidenced in writing by share option
agreements ("Share Option Agreements") in such form and containing such terms
and conditions as the Committee shall determine which are not inconsistent with
the provisions of the Plan, and, with respect to any Share Option Agreement
granting Options which are intended to qualify as "incentive share options," are
not inconsistent with Section 422 of the Code. Granting of an Option pursuant to
the Plan shall impose no obligation on the recipient to exercise such option.
Any individual who is granted an Option pursuant to this Article 4 and Article 6
herein may hold more than one Option granted pursuant to such Articles at the
same time and may hold both "incentive share options" and "nonqualified share
options" at the same time.
4.3. Option Price. Subject to Section 3.1(b), the option price per each
Share purchasable under any "incentive share option" granted pursuant to this
Article 4 and any "nonqualified share option" granted pursuant to Article 6
herein shall not be less than 100% of the Fair Market Value (as hereinafter
defined) of such Share on the date of the grant of such Option. The option price
per share of each Share purchasable under any "nonqualified share option"
granted pursuant to this Article 4 shall be such amount as the Committee shall
determine at the time of the grant of such Option.
ARTICLE 5.
SHARE APPRECIATION RIGHTS
5.1. Grant and Exercise. Share appreciation rights may be granted in
conjunction with all or part of any Option granted under the Plan provided such
rights are granted at the time of the grant of such Option. A "share
appreciation right" is a right to receive cash or Shares, as provided in this
Article 5, in lieu of the purchase of a Share under a related Option. A share
appreciation right or applicable portion thereof shall terminate and no longer
be exercisable upon the termination or exercise of the related Option, and a
share appreciation right granted with respect to less than the full number of
Shares covered by a related Option shall not be reduced until, and then only to
the extent that, the exercise or termination of the related Option exceeds the
number of Shares not covered by the share appreciation right. A share
appreciation right may be exercised by the holder thereof (the "Holder"), in
accordance with Section 5.2 of this Article 5, by giving written notice thereof
to the Company and surrendering the applicable portion of the related Option.
Upon giving such notice and surrender, the Holder shall be entitled to receive
an amount determined in the manner prescribed in Section 5.2 of this Article 5.
Options which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the related share appreciation rights have been
exercised.
5.2. Terms and Conditions. Share appreciation rights shall be subject to
such terms and conditions, not inconsistent with the provisions of the Plan, as
shall be determined from time to time by the Committee, including the following:
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(a) share appreciation rights shall be exercisable only at such time or
times and to the extent that the Options to which they relate shall be
exercisable in accordance with the provisions of the Plan.
(b) Upon the exercise of a share appreciation right, a Holder shall be
entitled to receive up to, but no more than, an amount in cash or whole Shares
equal to the excess of the then Fair Market Value of one Share over the option
price per Share specified in the related Option multiplied by the number of
Shares in respect of which the share appreciation right shall have been
exercised. The Holder shall specify in his written notice of exercise, whether
payment shall be made in cash or in whole Shares. Each share appreciation right
may be exercised only at the time and so long as a related Option, if any, would
be exercisable or as otherwise permitted by applicable law; provided, however,
that no share appreciation right granted under the Plan to a person then subject
to Section 16 of the Exchange Act shall be exercised during the first six months
of its term for cash.
(c) No share appreciation right shall be transferable by a Holder otherwise
than by will or by the laws of descent and distribution, and share appreciation
rights shall be exercisable, during the Holder's lifetime, only by the Holder.
(d) Upon the exercise of a share appreciation right, the Option or part
thereof to which such share appreciation right is related shall be deemed to
have been exercised for the purpose of the limitation of the number of Shares to
be issued under the Plan, as set forth in Section 2.1 of the Plan.
(e) Share appreciation rights granted in connection with an Option may be
exercised only when the Fair Market Value of the Shares subject to the Option
exceeds the option price at which Shares can be acquired pursuant to the Option.
ARTICLE 6.
RELOAD OPTIONS
6.1. Authorization of Reload Options. Concurrently with the award of any
Option (such Option hereinafter referred to as the "Underlying Option") to any
participant in the Plan, the Committee may grant one or more reload options
(each, a "Reload Option") to such participant to purchase for cash or Shares a
number of Shares as specified below. A Reload Option shall be exercisable for an
amount of Shares equal to (i) the number of Shares delivered by the Optionee to
the Company to exercise the Underlying Option, and (ii) to the extent authorized
by the Committee, the number of Shares used to satisfy any tax withholding
requirement incident to the exercise of the Underlying Option. The grant of a
Reload Option will become effective upon the exercise of an Underlying Option or
Reload Option by delivering to
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the Company Shares held by the Optionee for at least 6 months. Notwithstanding
the fact that the Underlying Option may be an "incentive share option," a Reload
Option is not intended to qualify as an "incentive share option" under Section
422 of the Code.
6.2. Reload Option Amendment. Each Share Option Agreement shall state
whether the Committee has authorized Reload Options with respect to the
Underlying Option. Upon the exercise of an Underlying Option or other Reload
Option, the Reload Option will be evidenced by an amendment to the underlying
Share Option Agreement.
6.3. Reload Option Price. The option price per Share deliverable upon the
exercise of a Reload Option shall be the Fair Market Value of a Share on the
date the grant of the Reload Option becomes effective.
6.4. Term and Exercise. Each Reload Option is fully exercisable six months
from the effective date of grant. The term of each Reload Option shall be equal
to the remaining option term of the Underlying Option.
6.5. Termination of Employment. No additional Reload Options shall be
granted to Optionees when Options and/or Reload Options are exercised pursuant
to the terms of this Plan following termination of the Optionee's employment.
6.6. Applicability of Other Sections. Except as otherwise provided in this
Article 6, the provisions of Article 7 applicable to Options shall apply equally
to Reload Options.
ARTICLE 7.
GENERALLY APPLICABLE PROVISIONS
7.1. Option Period. Subject to Section 3.1(b), the period for which an
Option is exercisable shall not exceed ten (10) years from the date such Option
is granted. After the Option is granted, the option period may not be reduced.
7.2. Fair Market Value. If the Shares are listed or admitted to trading on
a securities exchange registered under the Exchange Act, the "Fair Market Value"
of a Share as of a specified date shall mean the average of the high and low
price of the shares for the day immediately preceding the date as of which Fair
Market Value is being determined (or if there was no reported sale on such date,
on the last preceding date on which any reported sale occurred) reported on the
principal securities exchange on which the Shares are listed or admitted to
trading. If the Shares are not listed or admitted to trading on any such
exchange but are listed as a national market security on the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ"),
traded in the over-the-counter market or listed or traded on any similar system
then in use, the Fair Market Value of a Share shall be the average of the high
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and low sales price for the day immediately preceding the date as of which the
Fair Market Value is being determined (or if there was no reported sale on such
date, on the last preceding date on which any reported sale occurred) reported
on such system. If the Shares are not listed or admitted to trading on any such
exchange, are not listed as a national market security on NASDAQ and are not
traded in the over-the-counter market or listed or traded on any similar system
then in use, but are quoted on NASDAQ or any similar system then in use, the
Fair Market Value of a Share shall be the average of the closing high bid and
low asked quotations on such system for the Shares on the date in question. If
the Shares are not publicly traded, Fair Market Value shall be determined by the
Committee in its sole discretion using appropriate criteria. An Option shall be
considered granted on the date the Committee acts to grant the Option or such
later date as the Committee shall specify.
7.3. Exercise of Options. Options granted under the Plan shall be exercised
by the Optionee thereof (or by his or her executors, administrators, guardian or
legal representative, as provided in Sections 7.6 and 7.7 hereof) as to all or
part of the Shares covered thereby, by the giving of written notice of exercise
to the Company, specifying the number of Shares to be purchased, accompanied by
payment of the full purchase price for the Shares being purchased. Full payment
of such purchase price shall be made within five (5) business days following the
date of exercise and shall be made (i) in cash or by certified check or bank
check, (ii) with the consent of the Committee, by delivery of a promissory note
in favor of the Company upon such terms and conditions as determined by the
Committee, (iii) with the consent of the Committee, by tendering previously
acquired Shares (valued at its Fair Market Value, as determined by the Committee
as of the date of tender), or (iv) with the consent of the Committee, any
combination of (i), (ii) and (iii); provided, however, that payment may not be
pursuant to (iii) above unless the Optionee shall have owned the Shares being
tendered in payment for a period of at least six months prior to the date of
exercise of the Option. Such notice of exercise, accompanied by such payment,
shall be delivered to the Company at its principal business office or such other
office as the Committee may from time to time direct, and shall be in such form,
containing such further provisions consistent with the provisions of the Plan,
as the Committee may from time to time prescribe. In no event may any Option
granted hereunder be exercised for a fraction of a Share. The Company shall
effect the transfer of Shares purchased pursuant to an Option as soon as
practicable, and, within a reasonable time thereafter, such transfer shall be
evidenced on the books of the Company. No person exercising an Option shall have
any of the rights of a holder of Shares subject to an Option until certificates
for such Shares shall have been issued following the exercise of such Option. No
adjustment shall be made for cash dividends or other rights for which the record
date is prior to the date of such issuance.
7.4. Non-Transferability of Options. No Option shall be assignable or
transferable by the Optionee, other than by will or the laws of descent and
distribution, and may be exercised during the life of the Optionee only by the
Optionee or his guardian or legal representative.
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7.5. Termination of Employment. In the event of the termination of
employment of an Optionee for any reason (other than death or disability as
provided below), any Option(s) granted to such Optionee under this Plan and not
previously exercised or expired shall be deemed cancelled and terminated on the
day of such termination, unless the Committee decides, in its sole discretion,
to extend the term of the Option for a period not to exceed three months after
the date of such termination, provided, however, that in no instance may the
term of the Option, as so extended, exceed the maximum term set forth in Section
3.1(b)(ii) or 7.1 above. Notwithstanding the foregoing, in the event of the
termination of employment of an Optionee for any reason other than death or
disability, under conditions satisfactory to the Company, the Committee may, in
its sole discretion, allow any nonqualified share options granted to such
Optionee under the Plan and not previously exercised or expired to be
exercisable for a period of time to be specified by the Committee, provided,
however, that in no instance may the term of the Option, as so extended, exceed
the maximum term set forth in Section 7.1 above.
7.6. Death. In the event an Optionee dies while employed by the Company or
any of its subsidiaries or affiliates, any Option(s) granted to him not
previously expired or exercised shall, to the extent exercisable on the date of
death, be exercisable by the estate of such Optionee or by any person who
acquired such Option by bequest or inheritance, at any time within 1 year after
the death of the Optionee, unless earlier terminated pursuant to its terms,
provided, however, that if the term of such Option would expire by its terms
within six months after the Optionee's death, the term of such Option shall be
extended until six months after the Optionee's death, provided further, however,
that in no instance may the term of the Option, as so extended, exceed the
maximum term set forth in Section 3.1(b)(ii) or 7.1 above.
7.7. Disability. In the event of the termination of employment of an
Optionee due to total disability, the Optionee, 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 Optionee was
eligible to exercise as of the first date of total disability (as determined by
the Committee), at any time within one (1) year after such termination or
separation, unless earlier terminated pursuant to its terms, provided, however,
that if the term of such Option would expire by its terms within six months
after such termination or separation, the term of such Option shall be extended
until six months after such termination or separation, provided further,
however, that in no instance may the term of the Option, as so extended, exceed
the maximum term set forth in Section 3.1(b)(ii) or 7.1 above. The term "total
disability" shall, for purposes of this Plan, be defined in the same manner as
such term is defined in Section 22(e)(3) of the Code.
7.8. Six-Month Holding Period. Notwithstanding anything to the contrary in
the Plan, each Option (or the Shares underlying the Option) granted to an
individual who is an officer of the Company (within the meaning of Section 16(b)
of the Exchange Act) must be held by such individual for a combined period of at
least six months from the date the Option is granted (or until such earlier date
as satisfies any legal requirement for exemption under Rule 16b-3 of the
Exchange Act and as satisfies all other applicable law); provided that the sale,
transfer or other disposition of any Shares underlying any Option shall be
permitted within such
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period to the extent the sale, transfer or other disposition is exempt under
Rule 16b-3 of the Exchange Act and all other applicable law.
7.9. Amendment and Modification of the Plan. The Trustees may, from time to
time, alter, amend, suspend or terminate the Plan as it shall deem advisable,
subject to any requirement for shareholder approval imposed by applicable law;
provided that the Trustees may not amend the Plan in any manner that would
result in noncompliance with Rule 16b-3 of the Exchange Act or any applicable
law; and further provided that the Trustees may not, without the approval of the
Company's shareholders, amend the Plan to (a) increase the number of Shares that
may be the subject of Options under the Plan (except for adjustments pursuant to
Section 7.11 hereof), (b) reduce the minimum option price specified by Sections
3.1(b) and 4.3 hereof, (c) increase the maximum permissible term of any Option
specified by Section 7.1 hereof, or (d) remove responsibility for administering
the Plan from the Committee.
7.10. Tax Withholding. The Company shall notify the Optionee of any income
tax withholding requirements arising as a result of the exercise of an Option or
share appreciation rights. The Company shall have the right to require such
Optionee to pay such withholding taxes. If the Optionee shall fail to make such
tax payments as are required, the Company or its subsidiaries or affiliates
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to such Optionee or to take such
other action as may be necessary to satisfy such withholding obligations.
7.11. Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities, the issuance of warrants
or other rights to purchase Shares or other securities, or other similar
corporate transaction or event affects the Shares with respect to which Options
have been or may be issued under the Plan, such that an adjustment is determined
by the Committee to be appropriate in order to prevent dilution or enlargement
of the benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as the Committee may deem
equitable, adjust any or all of (i) the number and type of Shares that
thereafter may be made the subject of Options, (ii) the number and type of
Shares subject to outstanding Options and share appreciation rights, and (iii)
the grant or exercise price with respect to any Option, or, if deemed
appropriate, make provision for a cash payment to the holder of any outstanding
Option; provided, in each case, that with respect to "incentive share options,"
no such adjustment shall be authorized to the extent that such adjustment would
cause such options to violate Section 422(b) of the Code or any successor
provision; and provided further, that the number of Shares subject to any Option
denominated in Shares shall always be a whole number.
7.12. Right of Discharge Reserved. Nothing in the Plan nor the grant of an
Option hereunder shall confer upon any employee or other individual the right to
continue in the employment or service of the Company or any subsidiary or
affiliate of the Company or affect any right
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that the Company or any subsidiary or affiliate of the Company may have to
terminate the employment or service of (or to demote or to exclude from future
Options under the Plan) any such employee or other individual at any time for
any reason. Except as specifically provided by the Committee, the Company shall
not be liable for the loss of existing or potential profit from an Option
granted in the event of termination of an employment or other relationship even
if the termination is in violation of an obligation of the Company or any
subsidiary or affiliate of the Company to the employee or other individual.
7.13. Nature of Payments. All Options made pursuant to the Plan are in
consideration of services performed for the Company or any subsidiary or
affiliate of the Company. Any income or gain realized pursuant to Options under
the Plan and any share appreciation rights constitutes a special incentive
payment to the Optionee or Holder and shall not be taken into account, to the
extent permissible under then applicable law, as compensation for purposes of
any of the employee benefit plans of the Company or any subsidiary or affiliate
of the Company except as may be determined by the Committee or by the Trustees
or directors of the applicable subsidiary or affiliate of the Company.
7.14. Severability. If any provision of the Plan shall be held unlawful or
otherwise invalid or unenforceable in whole or in part, such unlawfulness,
invalidity or unenforceability shall not affect any other provision of the Plan
or part thereof, each of which remain in full force and effect. If the making of
any payment or the provision of any other benefit required under the Plan shall
be held unlawful or otherwise invalid or unenforceable, such unlawfulness,
invalidity or unenforceability shall not prevent any other payment or benefit
from being made or provided under the Plan, and if the making of any payment in
full or the provision of any other benefit required under the Plan in full would
be unlawful or otherwise invalid or unenforceable, then such unlawfulness,
invalidity or unenforceability shall not prevent such payment or benefit from
being made or provided in part, to the extent that it would not be unlawful,
invalid or unenforceable, and the maximum payment or benefit that would not be
unlawful, invalid or unenforceable shall be made or provided under the Plan.
7.15. Gender and Number. In order to shorten and to improve the
understandability of the Plan document by eliminating the repeated usage of such
phrases as "his or her" and any masculine terminology herein shall also include
the feminine, and the definition of any term herein in the singular shall also
include the plural except when otherwise indicated by the context.
7.16. Governing Law. The Plan and all determinations made and actions taken
thereunder, to the extent not otherwise governed by the Code or the laws of the
United States, shall be governed by the laws of the State of Maryland and
construed accordingly.
7.17. Effective Date and Termination of Plan.
(a) The Plan shall become effective on the later of (i) the date of its
adoption by the Trustees, and (ii) the date of approval of the Plan by the
Company's shareholders.
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(b) Options may be granted under the Plan at any time and from time to time
on or prior to the tenth (10th) anniversary of the effective date of the Plan as
set forth in Section 7.17(a) above, on which date the Plan will expire except as
to Options and related share appreciation rights then outstanding under the
Plan. Such outstanding Options and share appreciation rights shall remain in
effect until they have been exercised or terminated, or have expired.
7.18. Captions. The captions in this Plan are for convenience of reference
only, and are not intended to narrow, limit or affect the substance or
interpretation of the provisions contained herein.
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