Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement 259 1.12M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 22 82K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 54 245K
4: EX-5.1 Opinion re: Legality 2 16K
5: EX-8.1 Opinion re: Tax Matters 3 21K
6: EX-10.1 Material Contract 16 69K
14: EX-10.10 Material Contract 31± 178K
15: EX-10.11 Material Contract 20 163K
16: EX-10.13 Material Contract 5 27K
17: EX-10.14 Material Contract 72 372K
18: EX-10.15 Material Contract 61 336K
7: EX-10.2 Material Contract 10 43K
19: EX-10.23 Material Contract 34 106K
20: EX-10.24 Material Contract 1 12K
21: EX-10.25 Material Contract 35 112K
22: EX-10.26 Material Contract 1 13K
23: EX-10.27 Material Contract 2 16K
24: EX-10.28 Material Contract 4 27K
25: EX-10.29 Material Contract 3 19K
8: EX-10.3 Material Contract 9 39K
26: EX-10.30 Material Contract 26 91K
27: EX-10.31 Material Contract 1 12K
28: EX-10.32 Material Contract 2 15K
29: EX-10.33 Material Contract 3 17K
30: EX-10.34 Material Contract 2 15K
31: EX-10.35 Material Contract 1 12K
9: EX-10.4 Material Contract 3 17K
10: EX-10.5 Material Contract 13 65K
11: EX-10.7 Material Contract 18 63K
12: EX-10.8 Material Contract 5 32K
13: EX-10.9 Material Contract 19 151K
32: EX-23.1 Consent of Experts or Counsel 2± 14K
33: EX-99 Miscellaneous Exhibit 12 50K
EX-10.3 — Material Contract
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Exhibit 10.3
BOSTON CAPITAL REAL ESTATE INVESTMENT TRUST, INC.
INDEPENDENT DIRECTOR STOCK OPTION PLAN
ARTICLE I
GENERAL
1.1. PURPOSE.
Boston Capital Real Estate Investment Trust, Inc., a Maryland
corporation (the "Company"), hereby adopts this Independent Director Stock
Option Plan (the "Plan"). The purpose of the Plan is to foster and promote the
long-term financial success of the Company by attracting and retaining
outstanding non-employee directors by enabling them to participate in the
Company's growth through the granting of Options (as defined in Article II)
which entitle them to purchase shares of the Company's common stock, par value
$.00l per share ("Shares").
1.2. PARTICIPATION.
Only directors of the Company who at the time an Option is granted are
"Non-Employee Directors" as such term is defined in Rule l6b-3 promulgated under
the Securities Exchange Act of 1934, as amended ("Rule l6b-3"), or any similar
rule which may subsequently be in effect (the "Independent Directors") shall
receive an Option under the Plan.
1.3. SHARES SUBJECT TO THE PLAN.
Shares to be issued upon exercise of Options granted under the Plan may
be in whole or in part from authorized but unissued Shares or treasury Shares of
the Company. A maximum of 100,000 Shares (the "Plan Maximum") may be issued for
all purposes under the Plan (subject to adjustment pursuant to Section 3.2), and
the Company shall reserve 100,000 authorized but unissued Shares as of the date
the Plan is established for issuance upon exercise of Options granted under the
Plan. Any Shares reserved for issuance under Options which for any reason are
canceled or terminated without having been exercised shall not be counted in
determining whether the Plan Maximum has been reached. Options for fractional
shares shall not be granted.
1.4. GENDER AND NUMBER.
Except when otherwise indicated by the context, words in the masculine
gender when used in the Plan shall include the feminine gender, the singular
shall include the plural, and the plural shall include the singular.
ARTICLE II
STOCK OPTION AWARDS
2.1. AWARD OF STOCK OPTIONS.
(a) Effective on the later of (i) the date on which an Independent
Director becomes a member of the Board of Directors of the Company or (ii) the
date this Plan is adopted by the stockholders of the Company, each Independent
Director who satisfies the conditions set forth in Section 1.2 will
automatically be awarded a stock option (an "Initial Option") under the Plan to
purchase 5,000 Shares (subject to adjustment pursuant to Section 3.2). Effective
on the date of each Annual Meeting of Stockholders of the Company (an "Annual
Meeting"), commencing with the Company's Annual Meeting in 2004, each
Independent Director then in office who satisfies the conditions set forth in
Section 1.2 will automatically be awarded a stock option (a "Subsequent Option"
or the "Subsequent Options," collectively with the "Initial Options" referred to
herein as an "Option" or "Options") to purchase 5,000 Shares (subject to
adjustment pursuant to Section 3.2). The Options are not intended to qualify as
"incentive stock options" as defined in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
(b) Notwithstanding any other provision of this Plan, no Options
shall be issued pursuant to Section 2.1(a) to the extent that the issuance of
such Options would (i) enable the Independent Directors as a group to hold more
than 10% of the outstanding Shares if such Options were exercised; (ii) result
in the Company being "closely-held" within the meaning of Code Section 856(h);
(iii) cause the Company to own, directly or constructively, 10% or more of the
ownership interests in a tenant of the property of the Company (or of the
property of one or more partnerships, limited liability companies or other
entities in which the Company is a partner or member), within the meaning of
Code Section 856 (d) (2) (B); or (iv) cause, in the opinion of counsel to the
Company, the Company to fail to qualify (or create, in the opinion of counsel to
the Company, a material risk that the Company would no longer qualify) as a real
estate investment trust within the meaning of Code Section 856. To the extent
that the issuance of Options pursuant to Section 2.1(a) would violate any of
these limitations, the number of Shares that may be purchased under the Options
to be issued to each of the Independent Directors shall be reduced PRO RATA. To
the extent that the number of Shares which may be purchased under Options issued
to an Independent Director is reduced in any year as a result of the application
of these limitations, Options to purchase such Shares shall be issued to the
Independent Director in any subsequent year in which issuance of such Options,
after taking into account the Options to be issued to the Independent Directors
in such subsequent year under Section 2.1(a), would not violate the limitations
imposed by this Section 2.1(b). To the extent that the issuance of an Option is
delayed until a subsequent year under this Section 2.1, the Option shall be
treated for all purposes under this Plan as having been issued in such
subsequent year.
2.2. STOCK OPTION CERTIFICATES.
The award of an Option shall be evidenced by an agreement executed by an
officer of the Company.
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2.3. OPTION PRICE.
The purchase price of a Share (the "Option Price") under each Initial
Option granted during the term of the Company's initial public offering shall be
$10.00 per Share, and thereafter the Option Price under each Initial Option or
Subsequent Option granted shall be the Fair Market Value (as defined in Section
3.5) of a Share on the last business day preceding the date on which the
Independent Director becomes a member of the Board of Directors of the Company,
in the case of an Initial Option, or the last business day preceding the date of
any Annual Meeting, in the case of a Subsequent Option.
2.4. EXERCISE AND TERM OF OPTIONS.
(a) Options may be exercised by the delivery of written notice of
exercise and payment of the aggregate Option Price for the Shares to be
purchased to the Secretary of the Company. The Option Price may be paid in cash
(including check, bank draft or money order) or, unless in the opinion of
counsel to the Company doing so may result in a possible violation of law, by
delivery of Shares already owned by the Independent Director, valued at Fair
Market Value on the date of the exercise. As soon as practicable after receipt
of each notice and full payment, the Company shall deliver to the Independent
Director a certificate or certificates representing the purchased Shares. An
Independent Director shall have none of the rights of a shareholder until a
certificate or certificates for Shares underlying the Option(s) exercised are
issued and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such certificate or certificates are
issued.
(b) Each certificate for Shares issued upon exercise of an Option,
unless at the time of exercise such Shares are registered with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Act"), shall bear the following legend:
"NO SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THESE SHARES SHALL BE
MADE EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT REGISTRATION IS NOT REQUIRED."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the Act of
the securities represented thereby) shall also bear the above legend unless, in
the opinion of such counsel as shall be reasonably approved by the Company, the
securities represented thereby no longer need be subject to such restrictions.
Each certificate for Shares issued upon exercise of an Option shall also
bear any legends required by the Company's Articles of Incorporation and the
transferability of the certificate and the Shares represented thereby shall be
subject to the restrictions contained in the Company's Articles of
Incorporation.
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(c) Options granted hereunder shall lapse on the first to occur of
(i) the tenth anniversary of the date of grant, (ii) the removal for Cause of
the Independent Director as a director of the Company, or (iii) 30 days
following the date the Independent Director ceases to be a director of the
Company for any reason, except death or disability, as provided below. In the
event such Option or Options have not lapsed prior thereto due to occurrence of
one of the foregoing events, an Independent Director's Options shall (subject to
Section 3.1) become exercisable as follows: (i) 20% of the shares on the date of
grant, (ii) an additional 20% of the shares on each anniversary following the
date of grant for a period of four years until 100% of the shares become
exercisable. Notwithstanding the foregoing, Options granted under this Plan
shall continue to be exercisable in the case of death or disability for a period
of six months after death or the disabling event, provided that the death or
disabling event occurs while the person is an Independent Director and prior to
his removal for Cause, resignation or ceasing to be a director of the Company
for any other reason and the Option is otherwise exercisable on the date of the
death or disabling event; PROVIDED, HOWEVER, if the Option is exercised within
the first six months after it becomes exercisable, any Shares issued pursuant to
such exercise may not be sold until the six month anniversary of the date of the
grant of the Option. An Independent Director is removed "for Cause" for gross
negligence or willful misconduct in the execution of his duties; or for
conviction of, or entry of a plea of guilty or NOLO CONTENDERE to, any felony or
any act of fraud, embezzlement, misappropriation, or a crime involving moral
turpitude.
(d) Notwithstanding any other terms or provisions herein to the
contrary, no Option may be exercised if, in the opinion of the Company's
counsel, such exercise would jeopardize the Company's status as a real estate
investment trust under the Code.
ARTICLE III
3.1. NONTRANSFERABILITY; BENEFICIARIES.
No Option awarded under the Plan shall be transferable by the
Independent Director otherwise than by will or, if the Independent Director dies
intestate, by the laws of descent and distribution. All Options exercised during
the Independent Director's lifetime shall be exercised only by the Independent
Director or his legal representative. Any transfer contrary to this Section 3.1
will nullify the Option. After the death of an Independent Director, any
exercisable portion of the Option may, prior to the time such Option becomes
unexercisable under the Plan or the applicable option agreement, be exercised by
the Independent Director's personal representative or by any person empowered to
do so under the deceased Independent Director's will or under the then
applicable laws of descent and distribution.
3.2. ADJUSTMENT UPON CERTAIN CHANGES.
(a) If the outstanding Shares are (i) increased or decreased, or (ii)
changed into, or exchanged for, a different number or kind of shares or
securities of the Company, through a reorganization or merger in which the
Company is the surviving entity, or through a
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combination, recapitalization, reclassification, stock split, stock dividend,
stock consolidation or otherwise, an appropriate adjustment shall be made in the
number and kind of Shares that may be issued pursuant to an Option and in the
minimum number of Shares that must be issued and outstanding prior to the
issuance of the Initial Options pursuant to Section 2.1(a)(iii). A corresponding
adjustment to the consideration payable with respect to all Options granted
prior to any such change shall also be made. Any such adjustment, however, shall
be made without change in the total payment, if any, applicable to the portion
of the Option not exercised but with a corresponding adjustment in the Option
Price for each Share.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon sale of all or substantially all of the Company's property, the Plan
shall terminate, and any outstanding Options shall terminate and be forfeited.
However, holders of Options may exercise any Options that are otherwise
exercisable immediately prior to the dissolution, liquidation, consolidation or
merger.
Notwithstanding the foregoing, the Board of Directors may provide in writing in
connection with, or in contemplation of, any such transaction for any or all of
the following alternatives (separately or in combinations): (i) for the
assumption by the successor corporation of the Options theretofore granted or
the substitution by such corporation for such Options of awards covering the
stock of the successor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices; (ii) for
the continuance of the Plan by such successor corporation in which event the
Plan and the Options shall continue in the manner and under the terms so
provided; or (iii) for the payment in cash or Shares in lieu of and in complete
satisfaction of such Options.
3.3. AMENDMENT, SUSPENSION AND TERMINATION OF PLAN.
The Board of Directors may suspend or terminate the Plan or any portion
thereof at any time and may amend it from time to time in such respects as the
Board of Directors may deem advisable in order that any Options thereunder shall
conform to or otherwise reflect any change in applicable laws or regulations, or
to permit the Company or the Independent Directors to enjoy the benefits of any
change in applicable laws or regulations, or in any other respect the Board of
Directors may deem to be in the best interests of the Company; provided,
however, that no such amendment shall without stockholder approval to the extent
required by law, or any agreement or the rules of any stock exchange upon which
the Shares may be listed or of any national market system on which Shares may be
traded: (a) except as provided in Section 3.2, materially increase the number of
Shares which may be issued under the Plan; (b) materially modify the
requirements as to eligibility for participation in the Plan; (c) materially
increase the benefits accruing to Independent Directors under the Plan; or (d)
extend the termination date of the Plan. No such amendment, suspension or
termination shall: (x) impair the rights of Independent Directors affected
thereby; or (y) make any change that would disqualify the Plan, or any other
plan of the Company intended to be so qualified, from the exemption provided by
Rule l6b-3.
5
3.4. TAX WITHHOLDING.
(a) The Company shall have the power to withhold, or require an
Independent Director to remit to the Company, an amount sufficient to satisfy
any withholding or other tax due from the Company with respect to any amount
payable and/or Shares issuable under the Plan, and the Company may defer such
payment or issuance unless indemnified to its satisfaction.
(b) Subject to the consent of the Board of Directors of the Company,
due to the exercise of an Option, an Independent Director may make an
irrevocable election (an "Election") to: (a) have Shares otherwise issuable
hereunder withheld; or (b) tender back to the Company Shares received; or (c)
deliver back to the Company previously acquired Shares of the Company having a
Fair Market Value sufficient to satisfy all or part of the Independent
Director's estimated tax obligations associated with the transaction. Such
Election must be made by an Independent Director prior to the date on which the
relevant tax obligation arises. The Board of Directors of the Company may
disapprove of any Election, may suspend or terminate the right to make
Elections, or may provide with respect to any Option under this Plan that the
right to make Elections shall not apply to such Option.
3.5. DEFINITION OF FAIR MARKET VALUE.
"Fair Market Value" on any date shall mean the average of the Closing
Price (as defined below) per Share for the five (5) consecutive Trading Days (as
defined below) ending on such date. The "Closing Price" on any date shall mean
the last sale price, regular way (as defined below), or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the principal national securities exchange on which the Shares are
listed or admitted to trading or, if the Shares are not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not so
quoted, the average of the high bid and bow asked prices in the over-the-counter
market, as reported by The NASDAQ Stock Market, Inc. ("NASDAQ") or, if NASDAQ is
no longer in use, the principal, automated quotation system that may then be in
use or, if the Shares are not quoted by any such organization, the average of
the closing bid and asked prices as selected by the Board or the price at which
the Company is then offering Shares to the public if the Company is then engaged
in a public offering of Shares, or if the Company is not then offering Shares to
the public, the price per share at which a stockholder may purchase Shares
pursuant to the Company's Dividend Reinvestment Plan (the "DRP") if such DRP is
then in existence, or if the DRP is not then in existence, the fair market value
of a Share as determined by the Company, in its sole discretion. "Trading Day"
shall mean a day on which the principal national securities exchange or national
market system on which the Shares are listed or admitted to trading is open for
the transaction of business or, if the Shares are not listed or admitted to
trading on any national securities exchange or national automated quotation
system, shall mean any day other than a Saturday, a Sunday or a day on which
banking institutions in The Commonwealth of Massachusetts are authorized or
obligated by law or executive order to close.
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The term "regular way" means a trade that is effected in a recognized
securities market for clearance and settlement pursuant to the rules and
procedures of the National Securities Clearing Corporation, as opposed to a
trade effect "ex-clearing" for same day or next day settlement.
3.6. PLAN NOT EXCLUSIVE.
The adoption of the Plan shall not preclude the adoption by appropriate
means of any other stock option or other incentive plan for Independent
Directors or other directors of the Company.
3.7. LISTING, REGISTRATION AND LEGAL COMPLIANCE.
Each Option shall be subject to the requirement that if at any time
counsel to the Company shall determine that the listing, registration or
qualification thereof or of any Shares or other property subject thereto upon
any securities exchange or market or under any foreign, federal or state
securities or other law or regulation, or the consent or approval of any
governmental body or the taking of any other action to comply with or otherwise,
with respect to any such law or regulation, is necessary or desirable as a
condition to or in connection with the aware of such Option or the issue,
delivery or purchase of Shares or other property thereunder, no such Option may
be exercised or paid in Shares or other property unless such listing,
registration, qualification, consent, approval or other action shall have been
effected or obtained free of any conditions not acceptable to the Company, and
the holder of the award will supply the Company with such certificates,
representations and information as the Company shall request and shall otherwise
cooperate with the Company in effecting or obtaining such listing, registration,
qualification, consent, approval or other action. The Company may at any time
impose any limitations upon the exercise, delivery or payment of any Option
which, in the opinion of the Board of Directors of the Company, are necessary or
desirable in order to cause the Plan or any other plan of the Company to comply
with Rule l6b-3. If the Company, as part of an offering of securities or
otherwise, finds it desirable because of foreign, federal or state legal or
regulatory requirements to reduce the period during which Options may be
exercised, the Board of Directors of the Company may, without the holders'
consent, so reduce such period on not less than 15 days' written notice to the
holders thereof.
3.8. RIGHTS OF INDEPENDENT DIRECTORS.
Nothing in the Plan shall confer upon any Independent Director any right
to serve as an Independent Director for any period of time or to continue
serving at his present or any other rate of compensation.
3.9. NO OBLIGATION TO EXERCISE OPTION.
The granting of an Option shall impose no obligation upon the
Independent Director to exercise such Option.
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3.10. REQUIREMENTS OF LAW; GOVERNING LAW.
The granting of Options under this Plan 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. The
Plan, and all agreements hereunder, shall be construed in accordance with and
governed by the laws of The Commonwealth of Massachusetts. The provisions of
this Plan shall be interpreted so as to comply with the conditions or
requirements of Rule l6b-3, unless a contrary interpretation of any such
provision is otherwise required by applicable law.
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The following does not form part of the Plan but is included solely for
informational purposes:
Date of Board Approval:
Date of Shareholder Approval:
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