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-10.1 — Material Contract
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Exhibit 10.1
BOSTON CAPITAL REAL ESTATE INVESTMENT TRUST, INC.
2004 EQUITY INCENTIVE PLAN
TABLE OF CONTENTS
[Download Table]
PAGE
1. PURPOSE 1
2. DEFINITIONS 1
3. TERM OF THE PLAN 4
4. STOCK SUBJECT TO THE PLAN 4
5. ADMINISTRATION 4
6. AUTHORIZATION AND ELIGIBILITY 5
7. SPECIFIC TERMS OF AWARDS 5
8. ADJUSTMENTS FOR CORPORATE TRANSACTIONS 8
9. CHANGE IN CONTROL 10
10. SETTLEMENT OF AWARDS 10
11. UNFUNDED STATUS OF PLAN 12
12. NON-TRANSFERABILITY OF AWARDS 13
13. RESERVATION OF STOCK 13
14. LIMITATION OF RIGHTS IN STOCK; NO SPECIAL SERVICE RIGHTS 13
15. NONEXCLUSIVITY OF THE PLAN 13
16. TERMINATION AND AMENDMENT OF THE PLAN 14
17. NOTICES AND OTHER COMMUNICATIONS 14
18. GOVERNING LAW 14
1. PURPOSE
This Plan is intended to enable the Company, the Advisor and their
Affiliates to obtain and retain the services of employees and consultants
essential to the long-range success of the Company by offering such persons an
opportunity to participate in the Company's growth through the ownership of
shares of the Company's Stock. This Plan is not intended to be an incentive
stock option plan within the meaning of Section 422 of the Code.
2. DEFINITIONS
As used in this Plan the following terms shall have the respective
meanings set out below, unless the context clearly requires otherwise:
2.1. ADVISOR means Boston Capital REIT Advisors, LLC, a limited
liability company organized under the laws of the State of Delaware.
2.1. AFFILIATE means any corporation, partnership, limited
liability company, business trust, or other entity controlling, controlled by or
under common control with the Company or the Advisor.
2.2. AWARD means the any grant or sale pursuant to the Plan of
Options, Performance Shares, Performance Units, Restricted Stock, or Stock
Grants.
2.3. AWARD AGREEMENT means an agreement between the Company and the
recipient of an Award, setting forth the terms and conditions of the Award.
2.4. BOARD means the Company's Board of Directors.
2.4. CAUSE means gross negligence or willful misconduct in the
execution of the Participant's duties, or 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.
2.5. CHANGE IN CONTROL means the occurrence of any of the following
after the date of the approval of this Plan by the Board:
(a) any "person" (as defined in Section 3(a) (9) of the
Securities Exchange Act of 1934, as amended, and as modified in Sections 13(d)
and 14(d) of that Act), other than (i) the Company or any of its Affiliates,
(ii) an employee benefit plan of the Company or any of its Affiliates, or a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its Affiliates, (iii) a company owned, directly or
indirectly, by
stockholders of the Company in substantially the same proportions as their
ownership of the Company, or (iv) an underwriter temporarily holding securities
pursuant to an offering of such securities, becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of securities of the Company representing 20% or more of
the shares of voting stock of the Company then outstanding; or
(b) the consummation of a merger or consolidation of the
Company or one of its Affiliates with or into any other company, other than a
merger or consolidation which would result in the holders of the voting
securities of the Company outstanding immediately prior thereto holding
securities which represent immediately after such merger or consolidation more
than 50% of the combined voting power of the voting securities of the Company or
the surviving company or the parent of such surviving company; or
(c) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets, other than a
sale or disposition if the holders of the voting securities of the Company
outstanding immediately prior thereto hold securities that represent immediately
after such merger or consolidation more than 50% of the combined voting power of
the voting securities of the Company or the acquiror or the parent of the
acquiror, or such assets; or
(d) a majority of the Board votes in favor of a decision
that a Change in Control has occurred.
2.6. CODE means the Internal Revenue Code of 1986, as amended from
time to time, or any statute successor thereto, and any regulations issued from
time to time thereunder.
2.7. COMMISSION means the U.S. Securities and Exchange Commission.
2.8. COMMITTEE means the Compensation Committee of the Board, which
in general is responsible for the administration of this Plan, as provided in
Section 5 of this Plan. For any period during which no such committee is in
existence, "Committee" shall mean the Board and all authority and responsibility
assigned the Committee under this Plan shall be exercised, if at all, by the
Board.
2.9. COMMON STOCK means common stock, par value $0.00l per share,
of the Company.
2.10. COMPANY means Boston Capital Real Estate Investment Trust,
Inc., a corporation organized under the laws of the State of Maryland.
2.11. FAIR MARKET VALUE means the value of a share of Stock on any
date as determined by the Committee.
2.12. GRANT DATE means the date as of which an Option is granted, as
determined under Section 7.1(a).
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2.13. OPTION means an option to purchase shares of Stock that is not
an "incentive stock option" within the meaning of Section 422 of the Code. No
Option granted under this Plan will constitute an "incentive stock option"
within the meaning of such Section.
2.14. OPTIONEE means a Participant to whom an Option shall have been
granted under this Plan.
2.15. PARTICIPANT means any holder of an outstanding Award under
this Plan.
2.16. PERFORMANCE CYCLE means the period of time selected by the
Committee during which performance is measured for the purpose of determining
the extent to which an award of Performance Shares or Performance Units has been
earned.
2.17. PERFORMANCE SHARES means an Award of Stock which may be earned
by the achievement of performance goals.
2.18. PERFORMANCE UNIT means an Award of Stock or units that are
valued in whole or in part by reference to, or otherwise based on, the value of
Stock and that may be earned by the achievement of performance goals.
2.19. PLAN means this 2004 Equity Incentive Plan of the Company, as
amended from time to time.
2.20. PUBLIC MARKET EVENT means the first of either (i) a Public
Merger or (ii) a Qualified Public Offering.
2.21. PUBLIC MERGER means the closing of a merger of the Company
with or into a public company that has shares listed on NASDAQ NMS, NYSE or any
other national securities market or exchange and the shares issued or to be
issued in such merger are registered pursuant to the Securities Act of 1933, as
amended.
2.22. QUALIFIED PUBLIC OFFERING means the closing of a public
offering of shares of Common Stock pursuant to an effective registration
statement on Form S-11, or successor or equivalent form, of the Commission under
the Securities Act of 1933, as amended, pursuant to which the per share price to
the public is not less than $25.00 (such amount to be subject to proportionate
adjustment in the event of any stock dividend, stock split, combination of
shares, reorganization, recapitalization, reclassifications or other similar
event occurring after the date hereof) and the gross proceeds to the Company are
not less than $50,000,000.
2.23. RESTRICTED STOCK means a grant or sale of shares of Stock to
the Participant subject to restrictions or other forfeiture conditions.
2.24. RESTRICTION PERIOD means the period of time during which any
grant of Restricted Stock remains at risk of forfeiture and return as described
in Section 7.3(d).
2.25. STOCK means shares of Common Stock.
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2.26. STOCK GRANT means the grant of shares of Stock not subject to
restrictions or other forfeiture conditions.
3. TERM OF THE PLAN
Unless this Plan shall have been earlier terminated by the Board,
Awards may be granted hereunder at any time in the period commencing upon the
adoption of this Plan by the Board and ending immediately prior to the tenth
anniversary of the adoption of this Plan by the Board. Awards granted pursuant
to this Plan within such period shall not expire solely by reason of the
termination of this Plan.
4. STOCK SUBJECT TO THE PLAN
At no time shall the number of shares of Stock issued pursuant to or
subject to outstanding Awards granted under this Plan exceed 2,400,000 shares of
Common Stock; subject, however to the provisions of Section 8 of this Plan and
the additional limitation that the maximum number of shares of Stock for which
Options may be granted to any person in any calendar year and the maximum number
of shares of Stock subject to other Awards that may be delivered (or the value
of which may be paid) to any person in any calendar year under this Plan shall
each be 100,000.
For purposes of applying the foregoing limitations, if any Option
expires, terminates, or is cancelled for any reason without having been
exercised in full, or any Award of Restricted Stock should be forfeited by the
recipient thereof, the shares not purchased by the Optionee or forfeited by the
recipient shall again be available for Awards thereafter to be granted under
this Plan. In addition, settlement of any Award shall not count against the
foregoing limitations except to the extent settled in the form of Stock. Shares
of Stock issued pursuant to this Plan may be either authorized but unissued
shares or shares held by the Company in its treasury.
5. ADMINISTRATION
This Plan shall be administered by the Committee; provided, however,
that at any time and on any one or more occasions the Board may itself exercise
any of the powers and responsibilities assigned the Committee under this Plan
and when so acting shall have the benefit of all of the provisions of this Plan
pertaining to the Committee's exercise of its authorities hereunder. Subject to
the provisions of this Plan, the Committee shall have complete authority, in its
discretion, to make or to select the manner of making all needful determinations
with respect to each Award to be granted by the Company under this Plan in
addition to any other determination allowed the Committee under this Plan
including the employee or consultant to receive the Award and the form of Award.
In making such determinations, the Committee may take into account the nature of
the services rendered by the respective employees and consultants, their present
and potential contributions to the success of the Company, the Advisor and their
Affiliates, and such other factors as the Committee in its discretion shall deem
relevant. Subject to the provisions of this Plan, the Committee shall also have
complete authority to interpret this Plan, to prescribe, amend and rescind rules
and regulations relating to it, to determine the terms and provisions of the
respective Award Agreements (which need not be identical), and to make all other
determinations necessary or advisable for the administration of
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this Plan. The Committee's determinations made in good faith on matters referred
to in this Plan shall be conclusive.
6. AUTHORIZATION AND ELIGIBILITY
Pursuant and subject to the terms of this Plan, the Committee may grant
from time to time and at any time prior to the termination of this Plan one or
more Awards, either alone or combination with any other Awards, to any employee
of or consultant to one or more of the Company, the Advisor and their
Affiliates.
Each grant of an Award shall be subject to all applicable terms and
conditions of this Plan (including but not limited to any specific terms and
conditions applicable to that type of Award set out in the following Section),
and such other terms and conditions, not inconsistent with the terms of this
Plan, as the Committee may prescribe. No prospective Participant shall have any
rights with respect to an Award, unless and until such Participant has executed
an agreement evidencing the Award, delivered a fully executed copy thereof to
the Company, and otherwise complied with the applicable terms and conditions of
such Award.
7. SPECIFIC TERMS OF AWARDS
7.1. OPTIONS.
(a) DATE OF GRANT. The granting of an Option shall take
place at the time specified in the Award Agreement. Only if expressly so
provided in the applicable Award Agreement shall the Grant Date be the date on
which the Award Agreement shall have been duly executed and delivered by the
Company and the Optionee.
(b) EXERCISE PRICE. The price at which shares may be
acquired under each Option shall be not less than 100% of the Fair Market Value
of Stock on the Grant Date.
(c) OPTION PERIOD. No Option may be exercised on or after
the tenth anniversary of the Grant Date.
(c) EXERCISABILITY. An Option may be immediately
exercisable or become exercisable in such installments, cumulative or
non-cumulative, as the Committee may determine; provided, however, that the
right to exercise shall be at a rate of no less than 20% per year over five
years from the Grant Date. In the case of an Option not otherwise immediately
exercisable in full, the Committee may accelerate the exercisability of such
Option in whole or in part at any time.
(d) EFFECT OF TERMINATION OF EMPLOYMENT OR ASSOCIATION.
Unless the Committee shall provide otherwise in the grant of a particular Option
under this Plan, if the Optionee's employment or other association with all of
the Company, the Advisor and their Affiliates is terminated, whether voluntarily
or otherwise, any outstanding Option of the Optionee shall cease to be
exercisable in any respect not later than such date as the Committee may
determine, provided that the right to exercise shall be (i) at least six months
from the date of termination if termination was caused by death or disability,
and (ii) unless employment is terminated for Cause, at least 30 days from the
date of termination if termination was caused by
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other than death or disability; and provided further that for the period it
remains exercisable following termination, any outstanding Option shall be
exercisable only to the extent exercisable at the date of termination. Military
or sick leave shall not be deemed a termination of employment or other
association, provided that it does not exceed the longer of 90 days or the
period during which the absent Optionee's re-employment rights, if any, are
guaranteed by statute or by contract.
(e) EXERCISE OF OPTION. An Option may be exercised by the
Optionee giving written notice, in the manner provided in Section 17, specifying
the number of shares of Stock with respect to which the Option is then being
exercised. The notice shall be accompanied by payment in the form of cash, or
certified or bank check payable to the order of the Company in an amount equal
to the exercise price of the shares to be purchased or, if the Committee had so
authorized on the grant of any particular Option hereunder (and subject such
conditions, if any, as the Committee may deem necessary to avoid adverse
accounting effects to the Company) by delivery of that number of shares of Stock
having a Fair Market Value equal to the exercise price of the shares to be
purchased. Payment of any exercise price may also be made through and under the
terms and conditions of any formal cashless exercise program maintained by the
Company if the Stock becomes traded on a national securities exchange or market,
or from the proceeds of any formal loan program the Committee may establish for
the purpose of facilitating the exercise of Options by some or all Optionees.
Receipt by the Company of such notice and payment shall constitute the exercise
of the Option. Within 30 days thereafter but subject to the remaining provisions
of this Plan, the Company shall deliver or cause to be delivered to the Optionee
or his or her agent a certificate or certificates for the number of shares then
being purchased. Such shares shall be fully paid and nonassessable.
7.2. RESTRICTED STOCK.
(a) PURCHASE PRICE. Shares of Restricted Stock shall be
issued under this Plan for such consideration, in cash, other property or
services, as is determined by the Committee.
(b) ISSUANCE OF CERTIFICATES. Each Participant receiving
a Restricted Stock Award, subject to subsection (c) below, shall be issued a
stock certificate in respect of such shares of Restricted Stock. Such
certificate shall be registered in the name of such Participant, and, if
applicable, shall bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such Award substantially in the following form:
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 an Award Agreement entered into by the registered owner and the
Company. Copies of such Plan and Agreement are on file in the offices
of the Company at One Boston Place, Suite 2100, Boston, MA 02108-4406.
(c) ESCROW OF SHARES. The Committee may require that the
stock certificates evidencing shares of Restricted Stock be held in custody by a
designated escrow agent (which may but need not be the Company) until the
restrictions thereon shall have lapsed,
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and that the Participant deliver a stock power, endorsed in blank, relating to
the Stock covered by such Award.
(d) RESTRICTIONS AND RESTRICTION PERIOD. During the
period set by the Committee commencing with the date of such Award, i.e., the
Restriction Period, Restricted Stock shall be subject to forfeiture and return
to the Company (for such consideration, if any, as the Committee shall have
determined at grant) on the basis of such conditions, related to the
Participant's performance of services, the performance of the Company, the
Advisor or their Affiliates or otherwise, as the Committee may determine. Any
such risks of forfeiture and return may be waived, or the Restriction Period
shortened, at any time by the Committee on such basis as it deems appropriate.
(e) RIGHTS PENDING LAPSE OF RESTRICTIONS OR FORFEITURE OF
AWARD. Except as otherwise provided in this Plan, at all times prior to lapse of
any risk of forfeiture and return applicable to, or forfeiture of, an Award of
Restricted Stock, the Participant shall have all of the rights of a stockholder
of the Company, including the right to vote the shares, and the right to receive
any dividends with respect to the shares of Restricted Stock. The Committee, as
determined at the time of Award, may permit or require the payment of cash
dividends to be deferred and, if the Committee so determines, reinvested in
additional Restricted Stock to the extent shares are available under Section 4.
(f) EFFECT OF TERMINATION OF EMPLOYMENT OR ASSOCIATION.
Unless otherwise determined by the Committee at or after grant and subject to
the applicable provisions of the Award Agreement, upon termination, whether
voluntarily or otherwise, of a Participant's employment or other association
with the Company, the Advisor or their Affiliates for any reason during the
Restriction Period, all shares of Restricted Stock still subject to risk of
forfeiture and return shall be returned to the Company; 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 absent Participant's reemployment rights, if any, are guaranteed by
statute or by contract.
(g) LAPSE OF RESTRICTIONS. If and when the Restriction
Period expires without a prior forfeiture of the Restricted Stock, the
certificates for such shares shall be delivered to the Participant promptly if
not theretofore so delivered.
7.3. STOCK GRANTS. Stock Grants shall be awarded solely in
recognition of significant contributions to the success of the Company, the
Advisor or their Affiliates, in lieu of compensation otherwise already due and
in such other limited circumstances as the Committee deems appropriate. Stock
Grants shall be made without forfeiture conditions of any kind.
7.4. PERFORMANCE UNITS AND PERFORMANCE SHARES.
(a) VALUE. Each Performance Unit shall have an initial
value that is established by the Committee at the time of grant. Each
Performance Share shall have an initial value equal to the Fair Market Value of
a share of Stock on the date of grant
(b) EARNING OF PERFORMANCE UNITS AND SHARES. The
Committee shall set performance goals in its discretion which, depending on the
extent to which
7
they are met within the period required, will determine the number and value of
Performance Units or Shares that will be paid out to the Participant. After the
applicable Performance Cycle has ended, the holder of Performance Units and
Shares shall be entitled to receive payout on the number and value of
Performance Units and Shares earned by the Participant over the Performance
Cycle, to be determined as a function of the extent to which the corresponding
performance goals have been achieved.
(c) FORM AND TIMING OF PAYMENT. Payment of earned
Performance Units and Shares shall be made in a single lump sum following the
close of the applicable Performance Cycle. At the discretion of the Committee,
Participants may be entitled to receive any dividends declared with respect to
Stock which have been earned in connection with grants of Performance Units or
Performance Shares which have been earned, but not yet distributed to
Participants. The Committee may permit or, if it so provides at grant require, a
Participant to defer such Participant's receipt of the payment of cash or the
delivery of Stock that would otherwise be due to such Participant by virtue of
the satisfaction of any requirements or goals with respect to Performance Units
or Shares. If any such deferral election is required or permitted, the Committee
shall establish rules and procedures for such payment deferrals.
(d) EFFECT OF TERMINATION OF EMPLOYMENT OR ASSOCIATION.
Unless otherwise determined by the Committee at or after grant and subject to
the applicable provisions of the Award agreement and this Section, upon
termination of a Participant's employment or other association with all of the
Company, the Advisor and their Affiliates for any reason during the Performance
Period, the Participant shall forfeit any payment which otherwise would become
due in respect of an Award of Performance Units or Shares; 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 absent Participant's reemployment rights, if any, are
guaranteed by statute or by contract.
8. ADJUSTMENTS FOR CORPORATE TRANSACTIONS
8.1. STOCK DIVIDEND, ETC. In the event of any distribution on Stock
payable in Stock or any split-up or contraction in the number of shares of Stock
after the date of an Award Agreement evidencing an Award, the remaining number
of shares of Stock subject to such Award and the price to be paid for any share
subject to the Award, if any, shall be proportionately adjusted.
8.2. STOCK RECLASSIFICATION. In the event of any reclassification
or change of outstanding shares of Stock, immediately thereafter (and subject to
further adjustment for subsequent events) any outstanding Award shall thereafter
relate to shares of stock or other securities equivalent in kind and value to
those shares which the Participant would have received if he or she had held of
record the full remaining number of shares of Stock subject to the Award
immediately prior to such reclassification or change.
8.3. CONSOLIDATION OR MERGER. Subject to the remainder of this
Section 8.3, in the event of any consolidation or merger of the Company with or
into another company or in case of any sale or conveyance to another company or
entity of the property of the Company as a whole or substantially as a whole,
immediately thereafter (and subject to further adjustment for
8
subsequent events) any outstanding Award shall thereafter relate to shares of
stock or other securities equivalent in kind and value to those shares and other
securities the Participant would have received if he or she had held of record
the full remaining number of shares of Stock subject to the Award immediately
prior to such consolidation, merger, sale or conveyance. However, unless any
Award Agreement evidencing the grant of an Option shall provide different or
additional terms, in any such transaction the Committee, in its discretion, may
provide instead that any outstanding Option shall terminate, to the extent not
exercised by the Optionee prior to termination, either (a) at the close of a
period of not less than ten days specified by the Committee and commencing on
the Committee's delivery of written notice to the Optionee of its decision to
terminate such Option without payment of consideration as provided in the
following clause or (b) as of the date of the transaction, in consideration of
the Company's payment to the Optionee of an amount of cash equal to difference
between the aggregate Fair Market Value of the shares of Stock for which the
Option is then exercisable and the aggregate exercise price for such shares
under the Option.
8.4. OTHER. In the event of any corporate action not specifically
covered by the preceding Sections, including but not limited to an extraordinary
cash distribution on Stock, a corporate separation or other reorganization or
liquidation, the Committee may make such adjustment of outstanding Awards and
their terms, if any, as it, in its sole discretion, may deem equitable and
appropriate in the circumstances.
8.5. ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. The Committee may make adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events described in this
Section) affecting the Company or the financial statements of the Company or of
changes in applicable laws, regulations, or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under this Plan.
8.6. RELATED MATTERS. Any adjustment in Awards made pursuant to
this Section 8 shall be determined and made, if at all, by the Committee and
shall include any correlative modification of terms, including of Option
exercise prices, risks of forfeiture, performance goals and other financial
objectives and applicable repurchase prices for Restricted Stock, which the
Committee may deem necessary or appropriate so as to ensure the rights of the
Participants in their respective Awards are not substantially diminished nor
enlarged as a result of the adjustment and corporate action. No fraction of a
share shall be purchasable or deliverable upon exercise, but in the event any
adjustment hereunder of the number of shares covered by an Award shall cause
such number to include a fraction of a share, such number of shares shall be
adjusted to the nearest smaller whole number of shares. In the event of changes
in the outstanding Stock by reason of any stock dividend, split-up, contraction,
reclassification, or change of outstanding shares of Stock of the nature
contemplated by this Section 8, the number and kind of shares of Stock available
for the purposes of this Plan as stated in Section 4 shall be correspondingly
adjusted.
9
9. CHANGE IN CONTROL. Except as otherwise provided below, upon the
occurrence of a Change in Control:
(a) Any and all Options shall become immediately exercisable, and
shall remain exercisable throughout their remaining term;
(b) Any Restriction Period imposed on Restricted Stock which is
not performance-based shall lapse;
(c) The target payout opportunities attainable under all
outstanding Awards of performance-based Restricted Stock, Performance Units and
Performance Shares shall be deemed to have been fully earned for the entire
Performance Cycle(s) as of the effective date of the Change in Control. The
vesting of all Awards denominated in Stock shall be accelerated as of the
effective date of the Change in Control, and there shall be paid out to
Participants within 30 days following the effective date of the Change in
Control a pro rata number of shares based upon an assumed achievement of all
relevant targeted performance goals and upon the length of time within the
Performance Cycle which has elapsed prior to the Change in Control. Awards
denominated in cash shall be paid pro rata to Participants in cash within 30
days following the effective date of the Change in Control, with the proration
determined as a function of the length of time within the Performance Cycle
which has elapsed prior to the change in Control, and based on an assumed
achievement of all relevant targeted performance goals.
None of the foregoing shall apply, however, (i) in the case of any
Award pursuant to an Award Agreement requiring other or additional terms upon a
Change in Control (or similar event), (ii) subject to any contrary Award
Agreement, if the Board, acting prior to the Change in Control, shall vote that
such Change in Control shall not have the effects herein described or (iii) if
specifically prohibited under applicable laws, or by the rules and regulations
of any governing governmental agencies or national securities exchanges.
10. SETTLEMENT OF AWARDS
10.1. IN GENERAL. Options and Restricted Stock shall be settled in
accordance with their terms. All other Awards may be settled in cash or Stock,
or partly in cash and partly in Stock, as determined by the Committee at or
after grant and subject to any contrary Award Agreement. The Committee may not
require settlement of any Award in Stock to the extent issuance of such Stock
would be prohibited or unreasonably delayed by reason of any other provision of
this Plan.
10.2. VIOLATION OF LAW. Notwithstanding any other provision of this
Plan, if, at any time, in the reasonable opinion of the Company, the issuance of
shares of Stock covered by an Award may constitute a violation of law, then the
Company may delay such issuance and the delivery of a certificate for such
shares until (i) approval shall have been obtained from such governmental
agencies, other than the Commission, as may be required under any applicable
law, rule, or regulation and (ii) in the case where such issuance would
constitute a violation of a law administered by or a regulation of the
Commission, one of the following conditions shall have been satisfied:
10
(a) the shares are at the time of the issue of such
shares effectively registered under the Securities Act of 1933, as amended; or
(b) 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.
The Company shall make all reasonable efforts to bring about
the occurrence of these events.
10.3. EXECUTION OF STOCKHOLDERS' AGREEMENT; INTERPRETATION. Whenever
Stock is to be issued pursuant to an Award, if the Committee so directs at or
after grant, the Company shall be under no obligation to issue such shares until
such time, if ever, as the recipient of the Award (and any person who exercises
any Option, in whole or in part), shall have become a party to and bound by a
stockholders' agreement with (among others) the Company, setting forth, among
other provisions, certain restrictions upon the transfer of such shares of
Stock. In the event of any conflict between the provisions of this Plan and the
provisions of any such stockholders' agreement, the provisions of such
stockholders' agreement shall control, but insofar as possible the provisions of
this Plan and such Agreement shall be construed so as to give full force and
effect to all such provisions.
10.4. INVESTMENT REPRESENTATION. The Company shall be under no
obligation to issue any shares covered by any Award unless the shares to be
issued pursuant to Awards granted under this Plan have been effectively
registered under the Securities Act of 1933, as amended, or the Participant
shall give a written representation to the Company, which is satisfactory in
form and substance to its counsel and upon which the Company may reasonably
rely, that he or she is acquiring the shares for 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.
10.5. REGISTRATION. If the Company shall deem it necessary or
desirable to register under the Securities Act of 1933, as amended, or other
applicable statutes any shares of Stock issued or to be issued pursuant to
Awards granted under this Plan, or to qualify any such shares of Stock for
exemption from the Securities Act of 1933, as amended, or other applicable
statutes, then the Company shall take such action at its own expense. The
Company may require from each recipient of an Award, or each holder of shares of
Stock acquired pursuant to this Plan, such information in writing for use in any
registration statement, prospectus, preliminary prospectus or offering circular
as is reasonably necessary for such purpose and may require reasonable indemnity
to the Company and its officers and directors from such holder against all
losses, claims, damage and liabilities arising from such use of the information
so furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made. In addition, the Company may require
of any such person that he or she agree that, without the prior written consent
of the Company or such managing underwriter, he or she will not sell, make any
short
11
sale of, loan, grant any option for the purchase of, pledge or otherwise
encumber, or otherwise dispose of, any shares of Stock during the 180-day period
commencing on the effective date of the registration statement relating to such
underwritten public offering of securities.
10.6. PLACEMENT OF LEGENDS; STOP ORDERS; ETC. Each share of Stock to
be issued pursuant to Awards granted under this Plan may bear a reference to the
investment representation made in accordance with Section 10.4 in addition to
any other applicable restriction under this Plan, the terms of the Award and any
stockholders' agreement and to the fact that no registration statement has been
filed with the Commission in respect to such Stock. All certificates for shares
of Stock or other securities delivered under this Plan shall be subject to such
stock transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of any stock exchange upon
which the Stock is then listed, and any applicable federal or state securities
law, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
10.7. TAX WITHHOLDING. Whenever shares of Stock are issued or to be
issued pursuant to Awards granted under this Plan, the Company shall have the
right to require the recipient to remit to the Company an amount sufficient to
satisfy federal, state, local or other withholding tax requirements if, when,
and to the extent required by law (whether so required to secure for the Company
an otherwise available tax deduction or otherwise) prior to the delivery of any
certificate or certificates for such shares. However, in such cases,
Participants may elect, subject to the approval of the Committee, to satisfy the
withholding requirement, in whole or in part, by having the Company withhold
shares to satisfy their tax obligations. With respect to any withholding
required upon the exercise of Options or upon the lapse of restrictions on
Restricted Stock, participants may only elect to have shares withheld having a
Fair Market Value on the date the tax is to be determined equal to the minimum
statutory total tax which could be imposed on the transaction. All elections
shall be irrevocable, made in writing, signed by the Participant, and shall be
subject to any restrictions or limitations that the Committee deems appropriate.
The obligations of the Company under this Plan shall be conditional on
satisfaction of all such withholding obligations and the Company shall, to the
extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the recipient of an Award.
11. UNFUNDED STATUS OF PLAN
This Plan is intended to constitute an "unfunded" plan for incentive
compensation, and this Plan is not intended to constitute a plan subject to the
provisions of the Employee Retirement Income Security Act of 1974, as amended.
With respect to any payments not yet made to a Participant by the Company,
nothing contained herein shall give any such Participant any rights that are
greater than those of a general creditor of the Company. In its sole discretion,
the Committee may authorize the creation of trusts or other arrangements to meet
the obligations created under this Plan to deliver Stock or payments with
respect to Options and other Awards hereunder, provided, however, that the
existence of such trusts or other arrangements is consistent with the unfunded
status of this Plan.
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12. NON-TRANSFERABILITY OF AWARDS
Except as otherwise provided in this Section, Awards shall not be
transferable, and no Award or interest therein may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will or
by the laws of descent and distribution. All of a Participant's rights in any
Award may be exercised during the life of the Participant only by the
Participant or the Participant's legal representative. However, the committee
may, at or after the grant of an Award of an Option or shares of Restricted
Stock, provide that such Award may be transferred by the recipient to an
immediate family member; provided, however, that any such transfer is without
payment of any consideration whatsoever, that no transfer of an Option shall be
valid unless first approved by the Committee, acting in its sole discretion, and
that any Restricted Stock so transferred shall remain subject to any applicable
restriction on transfer and risk of forfeiture. For this purpose, "immediate
family member" means an individual's parents, siblings, spouse and issue,
spouses of such issue and any trust for the benefit of, or the legal
representative of, any of the preceding persons, or any partnership
substantially all of the partners of which are one or more of such persons or
the Participant.
13. RESERVATION OF STOCK
The Company shall at all times during the term of this Plan and any
outstanding Options granted hereunder reserve or otherwise keep available such
number of shares of Stock as will be sufficient to satisfy the requirements of
this Plan (if then in effect) and such Options and shall pay all fees and
expenses necessarily incurred by the Company in connection therewith.
14. LIMITATION OF RIGHTS IN STOCK; NO SPECIAL SERVICE RIGHTS
A Participant shall not be deemed for any purpose to be a stockholder
of the company with respect to any of the shares of Stock issuable pursuant to
an Award, except to the extent that, in the case of an Option, the Option shall
have been exercised with respect thereto and, in addition, a certificate shall
have been issued therefor and delivered to the Participant or his or her agent.
Any Stock to be issued pursuant to Awards granted under this Plan shall be
subject to all restrictions upon the transfer thereof which may be now or
hereafter imposed by the Certificate of Incorporation and the By-laws of the
Company. Nothing contained in this Plan or in any Award Agreement shall confer
upon any recipient of an Award any right with respect to the continuation of his
or her employment or other association with the Company, the Advisor or any of
their Affiliates, or interfere in any way with the right of the Company, the
Advisor or any of 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 to increase or decrease, or otherwise adjust, the other terms and
conditions of the Participant's employment or other association with the
Company, the Advisor or any of their Affiliates.
15. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of this Plan by the Board nor the submission of
this Plan to the shareholders of the Company shall be construed as creating any
limitations on the power of the Board to adopt such other incentive arrangements
as it may deem desirable, including without
13
limitation, the granting of stock options and restricted stock other than under
this Plan, and such arrangements may be either applicable generally or only in
specific cases.
16. TERMINATION AND AMENDMENT OF THE PLAN
The Board may at any time terminate this Plan or make such
modifications of this Plan as it shall deem advisable. No termination or
amendment of this Plan may, without the consent of any recipient of an Award
granted hereunder, adversely affect the rights of such recipient under such
Award.
The Committee may amend the terms of any Award theretofore granted,
prospectively or retroactively, provided as amended such Award is consistent
with the terms of this Plan, but no such amendment shall impair the rights of
the recipient of such Award without his or her consent.
17. NOTICES AND OTHER COMMUNICATIONS
Any notice, demand, request or other communication hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by first class registered, certified or
overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may
be, (i) if to the recipient of an Award, at his or her residence address last
filed with the Company, and (ii) if to the Company, at One Boston Place, Boston,
MA 02108-4406, Attention: President, Telecopier: (617) 624-8999, or to such
other address or telecopier number, as the case may be, as the addressee may
have designated by notice to the addressor. All such notices, requests, demands
and other communications shall be deemed to have been 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.
18. GOVERNING LAW
This Plan and all Award Agreements and actions taken thereunder shall
be governed, interpreted and enforced in accordance with the laws of The
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
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The following does not form part of this Plan but is included solely for
informational purposes:
Date of Board Approval: April __, 2004
Date of Shareholder Approval: April __, 2004
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