Exhibit 10.8
HERITAGE PROPERTY INVESTMENT TRUST, INC.
AMENDED AND RESTATED 2000 EQUITY INCENTIVE PLAN
TABLE OF CONTENTS
1. Purpose.....................................................................................1
2. Definitions.................................................................................1
3. Term of the Plan............................................................................5
4. Stock Subject to the Plan...................................................................5
5. Administration..............................................................................5
6. Authorization and Eligibility...............................................................7
7. Specific Terms of Awards....................................................................6
8. Adjustments for Corporate Transactions......................................................12
9. Change in Control...........................................................................14
10. Settlement of Awards........................................................................15
11. Unfunded Status of Plan.....................................................................17
12. Non-Transferability of Awards...............................................................17
13. Reservation of Stock........................................................................18
14. Limitation of Rights in Stock; No Special Service Rights....................................18
15. Nonexclusivity of the Plan..................................................................19
16. Termination and Amendment of the Plan.......................................................19
17. Notices and Other Communications............................................................19
18. Governing Law...............................................................................19
HERITAGE PROPERTY INVESTMENT TRUST, INC.
AMENDED AND RESTATED 2000 EQUITY INCENTIVE PLAN
1. PURPOSE
This Plan is intended to encourage ownership of Stock by directors,
employees and consultants of the Company and its Affiliates and to provide
additional incentives for them to promote the success of the Company's business
through the grant of Awards of or pertaining to shares of the Company's Stock.
The Plan is intended to be an incentive stock option plan within the meaning of
Section 422 of the Code but not all Awards granted hereunder are required to be
Incentive Options.
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. AFFILIATE means any corporation, partnership, limited liability
company, business trust, or other entity controlling, controlled by or under
common control with the Company.
2.2. AWARD means the any grant or sale pursuant to the Plan of Options,
SARs, 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.
2.5. COMMON STOCK means common stock, par value $0.001 per share, of the
Company.
2.6. CHANGE IN CONTROL means the occurrence of any of the following after
the date of the approval of the 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 Section 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, (C) the Fund, (D) a company owned, directly or
indirectly, by stockholders of the Company in substantially the same proportions
as their ownership of the Company, or (E) an underwriter temporarily holding
securities
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pursuant to an offering of such securities (an "Investor"), 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 and such Investor's beneficial ownership level then exceeds the
percentage of the Company's outstanding voting stock beneficially owned by the
Fund; 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.
2.7. 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.
2.8. COMMISSION means the Securities and Exchange Commission.
2.9. COMMITTEE means the Compensation Committee of the Board, which in
general is responsible for the administration of the Plan, as provided in
Section 5 of the 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 the Plan shall be exercised, if at all, by the
Board.
2.10. COMPANY means Heritage Property 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.
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2.12. FUND shall mean the New England Teamsters and Trucking Industry
Pension Fund, a trust organized under the laws of the Commonwealth of
Massachusetts and, as of the date of the approval of the Plan by the Board,
the owner of more than eighty percent (80%) of the outstanding voting
securities of the Company.
2.13. GRANT DATE means the date as of which an Option is granted, as
determined under Section 7.1(a).
2.14. INCENTIVE OPTION means an Option which by its terms is to be treated
as an "incentive stock option" within the meaning of Section 422 of the Code.
2.15. NONSTATUTORY OPTION means any Option that is not an Incentive Option.
2.16. OPTION means an option to purchase shares of Stock.
2.17. OPTIONEE means a Participant to whom an Option shall have been
granted under the Plan.
2.18. PARTICIPANT means any holder of an outstanding Award under the Plan.
2.19. PERFORMANCE CYCLE or 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.
2.20. PERFORMANCE SHARES means an Award of Stock which may be earned by the
achievement of performance goals.
2.21. 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.
2.22. PLAN means this 2000 Equity Incentive Plan of the Company, as amended
from time to time.
2.23. PUBLIC MARKET EVENT means the first of either (i) a Public Merger
or (ii) a Qualified Public Offering.
2.24. 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
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other national stock exchange and the shares issued or to be issued in such
merger are registered pursuant to the Securities Act of 1933, as amended.
2.25. 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.
2.26. RESTRICTED STOCK means a grant or sale of shares of Stock to the
Participant subject to restrictions or other forfeiture conditions.
2.27. 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).
2.28. STOCK means shares of Common Stock.
2.29. STOCK GRANT means the grant of shares of Stock not subject to
restrictions or other forfeiture conditions.
2.30. STOCKHOLDERS' AGREEMENT means the Second Amended and Restated
Stockholders Agreement dated as of March __, 2002 and entered into by and among
(among others) the Company and setting forth, among other provisions, certain
restrictions upon the transfer of shares of Stock, as such agreement shall be
amended.
2.31. STOCK APPRECIATION RIGHT or SAR means a right to receive any excess
in the Fair Market Value of shares of Stock (except as otherwise provided in
Section 7.2(c)) over a specified exercise price.
2.32. TEN PERCENT OWNER means a person who owns, or is deemed within the
meaning of Section 422(b)(6) of the Code to own, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company (or
any Affiliate). Whether a person is a Ten Percent Owner shall be determined with
respect to each Option based on the facts existing immediately prior to the
Grant Date of such Option.
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3. TERM OF THE PLAN
Unless the Plan shall have been earlier terminated by the Board, Awards may
be granted hereunder at any time in the period commencing on the approval of the
Plan by the Board and ending immediately prior to the tenth anniversary of the
adoption of the Plan by the Board. Awards granted pursuant to the Plan within
such period shall not expire solely by reason of the termination of the Plan.
Awards of Incentive Options granted prior to shareholder approval of the Plan
are hereby expressly conditioned upon such approval, but in the event of the
failure of the shareholders to approve the Plan shall thereafter and for all
purposes be deemed to constitute Nonstatutory Options.
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 the Plan exceed 3,600,000 shares of
Common Stock; SUBJECT, HOWEVER, to the provisions of Section 8 of the Plan and
the following additional limitations:
(a) No more than 1,200,000 shares of Stock may be issued pursuant to
or subject at any time to outstanding Awards of Restricted Stock, Performance
Shares, Performance Units or Stock Grants.
(b) No more than 400,000 shares of Stock may be covered by Options
first granted to any one person in any one year.
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 such a
recipient shall again be available for Awards thereafter to be granted under the
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 the Plan may be either authorized but unissued shares or
shares held by the Company in its treasury.
5. ADMINISTRATION
The 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 the 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
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provisions of the 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 the Plan in
addition to any other determination allowed the Committee under the Plan
including the director, 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, consultants, and
directors, their present and potential contributions to the success of the
Company and its Affiliates, and such other factors as the Committee in its
discretion shall deem relevant. Subject to the provisions of the Plan, the
Committee shall also have complete authority to interpret the 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 the 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 the Plan one or
more Awards, either alone or combination with any other Awards, to any
non-employee member of the Board or of any board of directors (or similar
governing authority) of any Affiliate or any employee of or consultant to one or
more of the Company and its Affiliates. However, only employees of the Company,
and of any parent or subsidiary corporations of the Company, as defined in
Sections 424(e) and (f), respectively, of the Code, shall be eligible for the
grant of an Incentive Option.
Each grant of an Award shall be subject to all applicable terms and
conditions of the 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 the
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.
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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 Incentive Option shall be not less than 100% of the Fair Market Value of
Stock on the Grant Date, or not less than 110% of the Fair Market Value of Stock
on the Grant Date if the Optionee is a Ten Percent Owner. The price at which
shares may be acquired under each Nonstatutory Option shall not be so limited
solely by reason of this Section.
(c) OPTION PERIOD. No Incentive Option may be exercised on or after
the tenth anniversary of the Grant Date, or on or after the fifth anniversary of
the Grant Date, if the Optionee is a Ten Percent Owner. The Option period under
each Nonstatutory Option shall not be so limited solely by reason of this
Section.
(d) EXERCISABILITY. An Option may be immediately exercisable or
become exercisable in such installments, cumulative or non-cumulative, as the
Committee may determine. 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, provided the acceleration of the
exercisability of any Incentive Option would not cause the Option to fail to
comply with the provisions of Section 422 of the Code.
(e) EFFECT OF TERMINATION OF EMPLOYMENT OR ASSOCIATION. Unless the
Committee shall provide otherwise in the grant of a particular Option under the
Plan, if the Optionee's employment or other association with the Company and its
Affiliates is terminated, whether voluntarily or otherwise, any outstanding
Option of the Optionee shall cease to be exercisable in any respect not later
than ninety (90) days following such termination and, for the period it remains
exercisable following termination, 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 ninety (90) days or the period during which the absent
Optionee's reemployment rights, if any, are guaranteed by statute or by
contract.
(f) 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 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
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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 an established 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 the Plan,
the Company shall deliver or cause to be delivered to the Optionee or his agent
a certificate or certificates for the number of shares then being purchased.
Such shares shall be fully paid and nonassessable.
(g) LIMITED PUT OPTION. Options granted prior to a Public Market
Event may include a provision obligating the Company to redeem at the request of
the Optionee up to fifteen percentage (15%) of the shares of Stock covered
thereby for their Fair Market Value in the event no Public Market Event should
occur prior to July 9, 2004, subject to such other terms and conditions as the
Committee may in the circumstances approve.
(h) LIMIT ON INCENTIVE OPTION CHARACTERIZATION. An Incentive Option
shall be considered to be an Incentive Option only to the extent that the number
of shares of Stock for which the Option first becomes exercisable in a calendar
year do not have an aggregate Fair Market Value (as of the date of the grant of
the Option) in excess of the "current limit". The current limit for any Optionee
for any calendar year shall be $100,000 MINUS the aggregate Fair Market Value at
the date of grant of the number of shares of Stock available for purchase for
the first time in the same year under each other Incentive Option previously
granted to the Optionee under the Plan, and under each other incentive stock
option previously granted to the Optionee under any other incentive stock option
plan of the Company and its Affiliates, after December 31, 1986. Any shares of
Stock which would cause the foregoing limit to be violated shall be deemed to
have been granted under a separate Nonstatutory Option, otherwise identical in
its terms to those of the Incentive Option.
(i) NOTIFICATION OF DISPOSITION. Each person exercising any Incentive
Option granted under the Plan shall be deemed to have covenanted with the
Company to report to the Company any disposition of such shares prior to the
expiration of the holding periods specified by Section 422(a)(1) of the Code
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and, if and to the extent that the realization of income in such a disposition
imposes upon the Company federal, state, local or other withholding tax
requirements, or any such withholding is required to secure for the Company an
otherwise available tax deduction, to remit to the Company an amount in cash
sufficient to satisfy those requirements.
7.2. SARS.
(a) TANDEM OR STAND-ALONE. SARs may be granted in tandem with an
Option (at or, in the case of a Nonstatutory Option, after, the award of the
Option), or alone and unrelated to an Option. SARs in tandem with an Option
shall terminate to the extent that the related Option is exercised, and the
related Option shall terminate to the extent that the tandem SARs are exercised.
(b) EXERCISE PRICE. SARs shall have an exercise price of not less
than fifty percent (50%) of the Fair Market Value of the Stock on the date of
award, or in the case of SARs in tandem with Options, the exercise price of the
related Option.
(c) OTHER TERMS. Except as the Committee may deem inappropriate or
inapplicable in the circumstances, SARs shall be subject to terms and conditions
substantially similar to those applicable to a Nonstatutory Option. In addition,
an SAR related to an Option which can only be exercised during limited periods
following a Change in Control may entitle the Participant to receive an amount
based upon the highest price paid or offered for Stock in any transaction
relating to the Change in Control or paid during the thirty (30) day period
immediately preceding the occurrence of the change in control in any transaction
reported in the stock market in which the Stock is normally traded.
7.3. RESTRICTED STOCK.
(a) PURCHASE PRICE. Shares of Restricted Stock shall be issued under
the 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
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Heritage Property Investment Trust, Inc. Amended and Restated 2000 Equity
Incentive Plan and an Award Agreement entered into by the registered owner
and Heritage. Copies of such Plan and Agreement are on file in the offices
of Heritage at 535 Boylston Street, Boston, MA 02116-3766.
(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, 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 performance of services, Company or
Affiliate performance 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 the 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 of a
Participant's employment or other association with the Company and its
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 ninety (90) days or the period during which the absent
Participant's reemployment rights, if any, are guaranteed by statute or by
contract.
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(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.
7.4. STOCK GRANTS. Stock Grants shall be awarded solely in recognition of
significant contributions to the success of the Company or its 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.
7.5. 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 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
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applicable provisions of the Award agreement and this Section, upon termination
of a Participant's employment or other association with the Company and its
Affiliates for any reason during the Performance Period, the Participant shall
forfeit any payment which otherwise 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 ninety (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 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 (10) 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
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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 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 the 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 the Plan as stated in Section 4 shall be correspondingly
adjusted.
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9. CHANGE IN CONTROL
9.1. TREATMENT OF OUTSTANDING AWARDS. Except as otherwise provided below,
upon the occurrence of a Change in Control:
(a) Any and all Options and SARs 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 thirty
(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 thirty (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
9.2. POOLING OF INTERESTS ACCOUNTING. Notwithstanding any other
provisions of the Plan to the contrary, in the event that the consummation of
a Change in Control is contingent on using pooling of interest accounting
methodology, the Committee may take any action necessary to preserve the use
of the pooling of interests accounting.
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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
the Plan.
10.2. VIOLATION OF LAW. Notwithstanding any other provision of the 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:
(a) the shares are at the time of the issue of such shares
effectively registered under the Act; 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 said 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 the
Stockholders' Agreement. In the event of any conflict between the provisions of
this Plan and the provisions of the Stockholders' Agreement, the provisions of
the Stockholders' Agreement shall control, but insofar as possible the
provisions of the Plan and such Agreement shall be construed so as to give full
force and effect to all such provisions.
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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 the 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 the 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 the 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
sale of, loan, grant any option for the purchase of, pledge or otherwise
encumber, or otherwise dispose of, any shares of Stock during the one
hundred-eighty (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 the Plan may bear a reference to the
investment representation made in accordance with Section 10.4 in addition to
any other applicable restriction under the Plan, the terms of the Award and if
applicable under the Stockholders' Agreement and to the fact that no
registration statement has been filed with the Commission in respect to said
Stock. All certificates for shares of Stock or other securities delivered under
the 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
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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 the 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 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 the 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
The Plan is intended to constitute an "unfunded" plan for incentive
compensation, and the 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 the Plan to deliver Stock or payments with respect
to Options, Stock Appreciation Rights and other Awards hereunder, provided,
however, that the existence of such trusts or other arrangements is consistent
with the unfunded status of the Plan.
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
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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 a Nonstatutory Option, SAR, 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 the 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
the 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 agent. Any
Stock to be issued pursuant to Awards granted under the 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 the 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 (or any Affiliate), or interfere in any
way with the right of the Company (or any Affiliate), subject to the terms of
any separate employment or consulting agreement or provision of law or corporate
articles or by-laws to the contrary, at any time to terminate such employment or
consulting agreement or to increase or decrease, or otherwise adjust, the other
terms and conditions of the recipient's employment or other association with the
Company and its Affiliates.
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15. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the
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 limitation, the granting of stock
options and restricted stock other than under the 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 the Plan or make such modifications of
the Plan as it shall deem advisable. No termination or amendment of the 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 the 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 535 Boylston Street, Boston, MA
02116-3766 Attention: Chief Financial Officer, Telecopier: (617) 267-4557, 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
The 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:
Date of Shareholder Approval: