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-10.2 — Material Contract
| EX-10.2 | 1st Page of 10 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 10.2
BOSTON CAPITAL REAL ESTATE INVESTMENT TRUST, INC.
2004 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of _____________, 20__, between Boston Capital
Real Estate Investment Trust, Inc., a corporation organized under the laws of
the State of Maryland (the "Company"), and the individual identified below,
residing at the address there set out (the "Optionee").
1. GRANT OF OPTION. Pursuant and subject to the Company's 2004 Equity
Incentive Plan (as in effect on the date hereof and as amended from time to
time, the "Plan"), the Company grants to you, the "Optionee," an option (the
"Option") to purchase from the Company all or any part of a total of shares of
the common stock, par value $.001 per share, in the Company (the Company's
"Common Stock"), at a price of $______ per share of Common Stock. The Grant Date
of this Option is as of ____________, 20__. In this Agreement, we refer to the
specific number of shares of Common Stock which are the subject of this Option
as your "Optioned Shares."
2. CHARACTER OF OPTION. This Option is not intended to be treated as an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended.
3. DURATION OF OPTION. Subject to the following sentence, this Option
shall expire at 5:00 p.m. on ______________, 20__(1). However, if your
employment or other association with the Company, the Advisor or their
affiliates ends before that date, this Option shall expire at 5:00 p.m. on
______________, 20__(2) or, if earlier, the date specified in whichever of the
following applies:
(a) If the termination of your employment or other association is on
account of your death or disability, the six-month anniversary of the date your
employment or other association ends.
(b) If the termination of your employment or other association is due
to any other reason other than for Cause, the 30th day after your employment or
other association ends.
(c) If the termination of your employment or other association is for
Cause, immediately upon such termination.
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(1) The day immediately preceding the tenth anniversary of the Grant Date.
(2) Same as described in footnote (1).
4. EXERCISE OF OPTION.
(a) Until this Option expires and subject to the remainder of this
Section 4, you may exercise it as to the Optioned Shares, and from the dates,
identified in (i) and (ii) below, in full or in part, at any time on or after
the applicable exercise date or dates identified therein:
(i) As to all of the Optioned Shares, in the following
installments:
[Download Table]
NUMBER OF OPTIONED INITIAL EXERCISE DATE
SHARES IN EACH INSTALLMENT FOR SHARES IN INSTALLMENT
-------------------------- ------------------------------------
One-fifth First anniversary of the Grant Date
One-fifth Second anniversary of the Grant Date
One-fifth Third anniversary of the Grant Date
One-fifth Fourth anniversary of the Grant Date
One-fifth Fifth anniversary of the Grant Date
(ii) Without duplication, as to all of the Optioned Shares, in the
event of a Change in Control.
(b) During any period that this Option remains outstanding after your
employment or other association with the Company, the Advisor or their
affiliates ends, you may exercise it only to the extent it was exercisable
immediately prior to the end of your employment or other association.
(c) You may pay the exercise price due on exercise by delivering other
shares of Common Stock of equivalent Fair Market Value provided you have owned
such shares of Common Stock for at least six months.
(d) Subject to the foregoing, the procedure for exercising this Option
is as described in Section 7.1(f) of the Plan.
5. TRANSFER OF OPTION. You may not transfer this Option except by will or
the laws of descent and distribution, and, during your lifetime, only you may
exercise this Option.
6. INCORPORATION OF PLAN TERMS. This Option is granted subject to all of
the applicable terms and provisions of the Plan, including but not limited to
the limitations on the Company's obligation to deliver Optioned Shares upon
exercise set forth in Section 10 (SETTLEMENT OF OPTIONS).
7. ACKNOWLEDGMENTS. You acknowledge that you have previously received or
have been advised that you may on request receive a copy of the Plan. You
further acknowledge that the Company makes no representation or warranty to you
as to the tax treatment to you of your receipt or exercise of this Option or
upon your sale or other disposition of the Optioned Shares. You should rely on
your own tax advisors for such advice.
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8. MISCELLANEOUS. This Agreement shall be construed and enforced in
accordance with the laws of The Commonwealth of Massachusetts, without regard to
the conflict of laws principles thereof and shall be binding upon and inure to
the benefit of any successor or assign of the Company and any executor,
administrator, trustee, guardian, or other legal representative of you.
Capitalized terms used but not defined herein shall have the respective meanings
assigned under the Plan. This Agreement may be executed in one or more
counterparts all of which together shall constitute but one instrument. In
making proof of this Agreement it shall not be necessary to produce or account
for more than one such counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date first above written.
BOSTON CAPITAL REAL ESTATE
INVESTMENT TRUST, INC.
By:
--------------------------------- ----------------------------------------
Title: Signature of Optionee
------------------------------
----------------------------------------
Name of Optionee
Optionee's Address:
----------------------------------------
----------------------------------------
----------------------------------------
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BOSTON CAPITAL REAL ESTATE INVESTMENT TRUST, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK GRANT AGREEMENT
THIS AGREEMENT dated as of ___________, 20__ (the "Issuance Date"), by and
between Boston Capital Real Estate Investment Trust, Inc., a corporation
organized under the laws of the State of Maryland (the "Company"), and the
individual identified below, residing at the address there set out (the
"Recipient")
W I T N E S S E T H T H A T:
Whereas, the Recipient's association with the Company is considered by the
Company to be important for its growth; and
Whereas, the Company desires to grant to the Recipient shares of the
Company's common stock, par value $.001 per share (the "Common Stock"), pursuant
to the Company's 2004 Equity Incentive Plan (as in effect on the date hereof and
as amended from time to time, the "Plan") and otherwise according to the terms
and conditions hereof;
Now, therefore, in consideration of the promises and mutual covenants
herein set forth, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby mutually covenant and agree as
follows:
1. DEFINITIONS
For all purposes of this Agreement, the following terms shall have the
respective meanings set out below, unless the context clearly requires
otherwise:
"Escrow Holder" has the meaning assigned such term in Section 6 hereof.
"Permitted Transferee" has the meaning assigned such term in Section 3.1
hereof.
"Restricted Shares" means, at the time of reference thereto, that number of
the Shares as shall not have become Vested Shares.
"Shares" means (i) the shares of Common Stock acquired by the Recipient
pursuant to this Agreement, and (ii) any shares of stock or other securities
issued in respect of or in replacement for the shares of Common Stock described
in clause (i), as further described in Section 5 hereof.
"Termination" means the voluntary or involuntary termination of the
Recipient's employment or other association with all of the Company, the Advisor
and their Affiliates, for any or no reason whatsoever, including death or
disability; provided, however, that military or sick leave shall not be deemed a
termination of employment or other association if it does not exceed the longer
of 90 days or the period during which the Recipient's reemployment rights, if
any, are guaranteed by statute or by contract.
"Termination Date" means the date of the Recipient's Termination, as
reasonably fixed and determined by the Company.
"Vested Shares" means, at the time of reference thereto, that number of
Shares as shall have been released from the escrow on or prior to such time, if
any.
All other capitalized terms used but not defined herein shall have the
respective meanings given such terms in the Plan.
2. ISSUANCE OF STOCK
2.1. The Company hereby agrees to issue to the Recipient an aggregate of
_______ shares of Common Stock.
2.2. Upon receipt by the Company of a copy of this Agreement duly
executed and completed by the Recipient, the Company shall issue in the
name of the Recipient duly executed certificates evidencing the Shares
endorsed with the legends set forth in Section 7.5 and Section 8.3 below.
Certificates evidencing Shares shall be held in escrow as hereinafter
provided.
3. RESTRICTION ON TRANSFER
3.1. Subject to the remaining provisions of this Section and except for
the escrow described in Section 6, none of the Restricted Shares or any
beneficial interest therein shall be sold, transferred, assigned, pledged,
encumbered or otherwise disposed of in any way at any time (including,
without limitation, by operation of law) other than (i) to the Company or
its assignees or (ii) to any other person upon (but only upon) death by
will, bequest or operation of law (a "Permitted Transferee").
3.2. All Permitted Transferees of Restricted Shares or any interest
therein shall be required as a condition of such transfer to agree in
writing, in form satisfactory to the Company, that they shall receive and
hold such Restricted Shares or interest subject to the provisions of this
Agreement. Any sale, transfer, assignment, pledge, encumbrance or other
disposition of Restricted Shares other than in accordance with this Section
shall be void. The Company shall not be required (i) to transfer on its
books any Restricted Shares sold, transferred or otherwise disposed of in
violation of this Section or (ii) to treat as owner of any Restricted
Shares, to accord the right to vote Restricted Shares to, or to pay
dividends in respect of Restricted Shares to, any person purporting to have
acquired Restricted Shares or any beneficial interest therein unless such
Restricted Shares or interest were acquired in compliance with the
provisions of this Section.
4. FORFEITURE OF RESTRICTED SHARES
4.1. As of the Recipient's Termination Date, all of the Restricted Shares
that have not become Vested Shares as of such Termination Date shall
automatically, without any action on the part of the Company, be cancelled,
and the Recipient shall cease to have any rights to any such Restricted
Shares from and after such Termination Date.
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4.2. The Restricted Shares shall become Vested Shares, as follows:
(a) VESTING BASED ON CONTINUED EMPLOYMENT OR ASSOCIATION. One-fifth
(20%) of the Restricted Shares shall become Vested Shares as of each of the
first five anniversaries of the Issuance Date.
(b) CHANGE IN CONTROL. All of the Restricted Shares shall become
Vested Shares in the event of a Change in Control.
5. ADJUSTMENT FOR STOCK SPLITS, ETC.
In the event the shares of Common Stock or other capital stock of the
Company shall be subdivided or combined into a greater or smaller number of
shares, or the Company shall pay any stock dividend or make any other issuance
of shares of capital stock in respect of Common Stock, or upon a merger,
consolidation, reorganization, split-up, combination, or recapitalization or the
like of the Company, or the exchange of the shares of Common Stock or other
capital stock granted hereunder for other securities of the Company or of
another corporation, all references under this Agreement to Shares, Vested
Shares, or Restricted Shares, or to Common Stock, shall be appropriately
adjusted or revised to reflect such capital transaction.
6. ESCROW OF RESTRICTED SHARES
6.1. The Restricted Shares issued under this Agreement shall be held in
escrow by the Company, as escrow holder (the "Escrow Holder"), together
with a stock assignment executed in blank by the Recipient, until such
Restricted Shares become Vested Shares hereunder.
6.2. The Recipient hereby appoints the Company, in its capacity as Escrow
Holder, as his or her irrevocable attorney-in-fact to execute in his or her
name, acknowledge and deliver all stock powers and other instruments as may
be necessary or desirable with respect to the Restricted Shares.
6.3. When any portion of the Shares have become Vested Shares, upon the
Recipient's request the Company, as Escrow Holder, shall promptly cause a
new certificate to be issued for such Shares and shall deliver such
certificate to the Recipient.
6.4. Subject to the terms hereof, the Recipient shall have all the rights
of a stockholder with respect to the Restricted Shares while they are held
in escrow, including without limitation the right to vote the Restricted
Shares and receive any cash dividends declared thereon. If, from time to
time during the term of this Agreement, there occurs any corporate or other
action giving rise to substituted or additional securities by reason of
ownership of the Restricted Shares as provided in Section 5, such
substituted or additional securities shall be immediately subject to this
escrow and deposited with the Escrow Holder.
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7. COMPLIANCE WITH SECURITIES LAW
7.1. The Recipient represents and warrants, and each Permitted Transferee
shall, as a condition of transfer, represent and warrant, that he or she is
acquiring the Shares on his or her own account for the purpose of
investment and not with a view to, or for sale in connection with, the
distribution of any such Shares.
7.2. Without limiting the scope, substance and applicability of any of
the other restrictions on the transferability of the Shares that are set
forth elsewhere in this Agreement, the Recipient agrees, and each Permitted
Transferee shall, as a condition of transfer, agree, that none of the
Shares or any beneficial interest therein shall be sold, transferred,
assigned, pledged, encumbered or otherwise disposed of in any way
(including, without limitation, by operation of law) unless and until (i)
such Shares or such beneficial interest, as the case may be, proposed to be
sold, transferred, assigned, pledged, encumbered or otherwise disposed of
are registered pursuant to an effective registration filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, or (ii) if required by the Company, the Company shall have
received an opinion, in form and substance satisfactory to the Company,
from the Company's legal counsel to the effect that the sale, transfer,
assignment, pledge, encumbrance or other disposition of such Shares or such
beneficial interest, as the case may be, does not require registration
under the Securities Act of 1933, as amended, or any applicable state
securities laws.
7.3. The Recipient acknowledges and agrees, and each Permitted Transferee
shall, as a condition of transfer, acknowledge and agree, that neither the
Company nor any agent of the Company shall be under any obligation to
recognize any transfer of any Shares if, in the opinion of counsel for the
Company, such transfer would result in violation by the Company of any
federal or state law with respect to the offering, issuance or sale of
securities.
7.4. The Recipient hereby agrees, and each Permitted Transferee shall, as
a condition of transfer, agree, that, at the written request of the Company
or any managing underwriter of any underwritten public offering of
securities of the Company, the Recipient or such Permitted Transferee will
not, without the prior written consent of the Company or such managing
underwriter, sell, make any short sale of, loan, grant any option for the
purchase of, pledge or otherwise encumber, or otherwise dispose of, any
Shares during the 180 day period commencing on the effective date of the
registration statement relating to such underwritten public offering of
securities.
7.5. The certificates representing the Shares shall be endorsed with a
legend, in addition to any other legends required by this Agreement,
substantially as follows:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The shares have been
acquired for investment and not with a view to distribution or
resale and may not be mortgaged, pledged, hypothecated or otherwise
transferred without an effective registration statement for such
shares
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under the Securities Act of 1933, as amended, or an opinion of
counsel for the Corporation that registration is not required under
such Act.
8. GENERAL PROVISIONS
8.1. This Agreement shall be governed and enforced in accordance with the
terms of the Plan and the laws of The Commonwealth of Massachusetts,
without regard to the conflict of laws principles thereof, and shall be
binding upon the heirs, personal representatives, executors,
administrators, successors and assigns of the parties.
8.2. This Agreement embodies the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and
thereof, supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way and may only be modified or
amended in writing signed by the Company and the Recipient.
8.3. The certificates representing the Shares shall be endorsed with the
following legend:
The transferability of this certificate and the shares represented
by this certificate are subject to the terms and conditions of the
Boston Capital Real Estate Investment Trust, Inc., 2004 Equity
Incentive Plan and a Restricted Stock Grant agreement entered into
by the registered owner and Boston Capital Real Estate Investment
Trust, Inc. Copies of such Plan and Agreement are on file in the
offices of Boston Capital Real Estate Investment Trust, Inc., c/o
Boston Capital Corporation, One Boston Place, Suite 2100, Boston, MA
02108-4406.
8.4. All notices or communications provided for under this Agreement
shall be given in writing and by hand or by registered mail, return receipt
requested, postage prepaid, and shall be addressed
(i) in the case of the Recipient, to his or her address set out at
the end of this Agreement, and
(ii) in the case of the Company, to the Company at
c/o Boston Capital Corporation
One Boston Place, Suite 2100
Boston, MA 02108-4406
Attention: President
With a copy to:
Nestor M. Nicholas, Esq.
Nixon Peabody LLP
5
101 Federal Street
Boston, MA 02110-1832
Notices given as hereinabove provided shall be deemed received (i)
in the case of personal delivery, on the date of such delivery; (ii) in the
case of mailing, when received by the addressee; and (iii) in the case of
facsimile transmission, when confirmed by facsimile machine report. Any
party hereto may designate a change of address by written notice to the
other parties given at least ten days before such change is to become
effective for the purposes of this Agreement.
8.5. The rights and obligations of each party under this Agreement shall
inure to the benefit of and be binding upon such party's heirs, legal
representatives, successors and permitted assigns. The rights and
obligations of the Company under this Agreement shall be assignable by the
Company to any one or more persons or entities without the consent of the
Recipient or any other person. The rights and obligations of any person
other than the Company under this Agreement may only be assigned with the
prior written consent of the Company.
8.6. No consent to or waiver of any breach of default in the performance
of any obligations hereunder shall be deemed or construed to be a consent
to or waiver of any other breach or default in the performance of any of
the same or any other obligations hereunder. Failure on the part of any
party to complain of any act or failure to act of any other party or to
declare any party in default, irrespective of the duration of such failure,
shall not constitute a waiver of rights hereunder and no waiver hereunder
shall be effective unless it is in writing, executed by the party waiving
the breach or default hereunder.
8.7. If any provision of this Agreement shall be held illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other severable provision of this
Agreement.
8.8. The headings in this Agreement are for convenience of identification
only, do not constitute a part hereof, and shall not affect the meaning or
construction hereof.
8.9. The Recipient agrees upon request to execute any further documents
or instruments necessary or desirable to carry out the purposes or intent
of this Agreement.
8.10. In case of any dispute hereunder, the parties will submit to the
exclusive jurisdiction and venue of any court of competent jurisdiction
sitting in the county in which the Company's headquarters in The
Commonwealth of Massachusetts is located, and will comply with all
requirements necessary to give such court jurisdiction over the parties and
the controversy. Each party hereto, in addition to being entitled to
exercise all rights granted by law including recovery of damages (but
subject to the remainder of this subsection), will be entitled to specific
performance of his, her or its rights under this Agreement. The parties
hereto agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach of the provisions of this
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Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate. EACH PARTY HEREBY
WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES.
8.11. Nothing contained in this Agreement shall confer upon the Recipient
any right with respect to the continuation of his or her employment by or
other association with the Advisor, the Company or their Affiliates, or
interfere in any way with the right of the Advisor, the Company or their
Affiliates, subject to the terms of any separate employment or other
agreement or provision of law or corporate articles or by-laws to the
contrary, at any time to terminate such employment or other agreement or
otherwise modify the terms and conditions of the Recipient's employment by
or other association with the Advisor, the Company or their affiliates.
8.12. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument. In making proof of
this Agreement it shall not be necessary to produce or account for more
than one such counterpart.
IN WITNESS WHEREOF, the parties have duly executed this Agreement under
seal as of the month, day and year first set forth above.
BOSTON CAPITAL REAL ESTATE RECIPIENT
INVESTMENT TRUST, INC.
By:
--------------------------------- ----------------------------------------
Title: Signature
------------------------------
----------------------------------------
Name of Recipient
Recipient's Address:
----------------------------------------
----------------------------------------
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