As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. __________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
EATON VANCE CORP.
-----------------
(Exact name of issuer as specified in its charter)
Maryland 04-2718215
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Number)
The Eaton Vance Building, 255 State Street, Boston, Massachusetts 02109
-----------------------------------------------------------------------
(Address of Principal Executive Offices - Zip Code)
1999 RESTRICTED STOCK PLAN
--------------------------
(Full title of the Plan)
Alan R. Dynner, Esq.
Eaton Vance Corp.
The Eaton Vance Building, 255 State Street
Boston, MA 02109
----------------
(Name and address of agent for service)
(617)482-8260
-------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
Proposed Proposed
Title of maximum maximum
Securities offering aggregate
to be Amount to be price per offering Amount of
registered registered (1) share (2) price (3) registration fee (3)
---------- -------------- --------- --------- --------------------
<S> <C> <C> <C> <C>
Non-Voting Common Stock 500,000 $32.78125 $16,390,625 $4,556.59
$.015625 par value shares
</TABLE>
(1) Plus such additional number of shares as may be issuable pursuant to the
Plan in the event of a stock dividend, stock split, recapitalization,
reorganization, merger or other similar corporate transaction or event.
(2) The proposed maximum aggregate offering price has been estimated pursuant
to Rule 457(c) under the Securities Act of 1933 solely for the purpose of
calculating the registration fee. It is not known how many shares will be
purchased under the Plan or at what price such shares will be purchased.
The estimate of the proposed maximum aggregate offering price has been
calculated based on the offering of 500,000 shares, being the aggregate
number of shares of Non-Voting Common Stock available for issuance under
the Plan, at a purchase price of $32.78125 per share, which is the average
of the high and low prices of the Company's Non-Voting Common Stock as
reported on the New York Stock Exchange on October 27, 1999.
Page 1 of 24 pages.
Exhibit Index is on page 9.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of General Instruction D to Form S-8. The purpose of this
Registration Statement is to register 500,000 shares of Non-Voting Common Stock,
$.015625 par value per share (the "Stock"), of Eaton Vance Corp. (the "Company"
or the "Registrant"), which shares have been reserved for issuance upon the sale
of restricted Stock to key employees of the Company and its affiliates pursuant
to the Company's 1999 Restricted Stock Plan.
The Company will deliver a prospectus meeting the requirements of Part I of
Form S-8 to all persons who purchase restricted Stock pursuant to the Plan in
accordance with the requirements of Rule 428.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(SEC File No. 1-8100) are incorporated as of their respective dates in this
Registration Statement by reference:
(a) the Company's Annual Report to security holders which contains audited
financial statements for its fiscal year ended October 31, 1998;
(b) the Company's Annual Report on Form 10-K for the year ended October
31, 1998 and the Exhibits thereto, filed under Section 15(d) of the
Securities Exchange Act of 1934;
(c) the Company's quarterly reports on Form 10-Q for the quarters ended
January 31, 1999, April 30, 1999 and July 31, 1999, filed under
Section 15(d) of the Securities Exchange Act of 1934;
(d) that portion of the Company's Form 8-B dated February 4, 1981, filed
under Section 12 of the Securities Exchange Act of 1934, that
describes the Company's Non-Voting Common Stock, and all amendments or
reports filed for the purpose of updating such description; and
(e) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since October 31, 1998
and prior to the termination of the offering of securities covered by
this Registration Statement.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 after the date hereof and prior to
the filing of a post-effective amendment which indicates that the securities
offered hereby have been sold or which deregisters the securities covered hereby
then remaining unsold, shall also be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
3
<PAGE>
Item 6. Indemnification of Directors and Officers.
Article NINTH, section (8) of the Company's Articles of Incorporation
provides that, to the extent permitted by the laws of Maryland, the Company
shall indemnify any person that (a) is serving as a director or officer of the
Company, (b) any person that has served as an officer or director of the
Company, and (c) any person who at the request of the Company is serving or has
served as a director, officer, trustee, partner, employee, agent or other
representative of another corporation, joint stock company, syndicate,
association, firm, trust, partnership or other entity, against all liabilities
and expenses, including without limitation attorneys' fees and judgments,
penalties, fines and amounts paid in settlement, reasonably incurred by such
person in connection with any threatened, pending or completed action, suit, or
other proceeding, whether civil, criminal, administrative, investigative or
legislative, in which such person may be involved or with which he may be
threatened by reason of serving or having served in such position.
The Maryland General Corporation law provides that a Maryland corporation
may indemnify a director unless it is established that: (i) the act or omission
of the director was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty; or
(ii) the director actually received an improper personal benefit in money,
property or services; or (iii) in the case of any criminal proceeding, the
director had reasonable cause to believe that the act or omission was unlawful.
Indemnification requires a determination made in accordance with applicable
statutory standards by the Board of Directors or by independent legal counsel
(who may be regular counsel to the Company) or by the holders of not less than a
majority of the total number of shares of Common Stock of the Company then
outstanding.
Article NINTH, section (8) of the Company's Articles of Incorporation
provides that the indemnification right provided therein is not exclusive of and
will not otherwise affect any other rights to which such person may be entitled
(whether under any law, By-Law, agreement, director vote, stockholder vote or
otherwise), shall inure to the benefit of such person's heirs, executors,
administrators and personal representatives, and shall continue as to a person
who has ceased to serve in such position.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
There are filed with the Registration Statement (or incorporated by
reference pursuant to Rule 411) the following exhibits:
4.1 Specimen certificate representing the Non-Voting Common Stock is filed
as Exhibit No. 4.1 to the registration statement on Form S-8 of the
Company dated September 3, 1998 (SEC Registration No. 333-62801) and
is incorporated herein by reference.
5.1 Opinion of Piper & Marbury L.L.P., as to legality of the shares being
registered (see Page 10).
4
<PAGE>
23.1 Consent of Deloitte & Touche LLP (See Page 12).
23.2 Consent of Piper & Marbury L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney (See Page 13).
99.1 Copy of Registrant's 1999 Restricted Stock Plan (see Page 14).
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Company pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
5
<PAGE>
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer of controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on this 29th
day of October, 1999.
EATON VANCE CORP.
By: /s/ James B. Hawkes
------------------------------------
James B. Hawkes
President
7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ James B. Hawkes President, Chief
- -------------------------- Executive Officer October 29, 1999
James B. Hawkes and Director
(Principal Executive
Officer)
John G.L. Cabot* Director October 29, 1999
- --------------------------
John G. L. Cabot
John M. Nelson* Director October 29, 1999
- --------------------------
John M. Nelson
Vincent M. O'Reilly* Director October 29, 1999
- --------------------------
Vincent M. O'Reilly
Benjamin A. Rowland, Jr.* Director October 29, 1999
- --------------------------
Benjamin A. Rowland, Jr.
Ralph Z. Sorenson* Director October 29, 1999
- --------------------------
Ralph Z. Sorenson
/s/ William M. Steul Treasurer (Principal October 29, 1999
- -------------------------- Financial Officer)
William M. Steul
/s/ Laurie G. Russell Vice President October 29, 1999
- -------------------------- (Principal Accounting
Laurie G. Russell Officer)
* Signed on behalf of the Director by William M. Steul as attorney-in-fact
pursuant to the Power of attorney filed with the Registration Statement.
8
<PAGE>
EXHIBIT INDEX
Sequential
Page No.
----------
Exhibit 4.1 (Specimen certificate representing
the Non-Voting Common Stock is filed as Exhibit
No. 4.1 to the registration statement on Form S-8
of the Company September 3, 1998 [SEC Registration
No. 333-62801] and is incorporated herein by reference).......................10
Exhibit 5.1 (Opinion and Consent of
Piper & Marbury L.L.P.) (filed herewith)......................................10
Exhibit 23.1 (Consent of Deloitte & Touche LLP) (filed herewith)..............12
Exhibit 23.2 (Consent of Piper & Marbury L.L.P. is
included in Exhibit 5.1) (filed herewith).....................................10
Exhibit 24.1 (Power of Attorney) (filed herewith).............................13
Exhibit 99.1 (Copy of Registrant's 1999 Restricted
Stock Plan, (filed herewith)..................................................14
9
<PAGE>
Exhibit 5.1
PIPER & MARBURY
L.L.P.
Charles Center South
36 South Charles Street
Baltimore, Maryland 21201-3018
410-550-2530
Fax: 410-530-0489
October 29, 1999
Eaton Vance Corp.
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as special Maryland counsel for Eaton Vance Corp., a Maryland
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 which is being filed by the Company under the Securities Act of 1933, as
amended, (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), and which registers 500,000 shares of the
Non-Voting Common Stock of the Company (the "Shares") to be issued pursuant to
the Company's 1999 Restricted Stock Plan (the "Plan"). This opinion is being
furnished to you at your request in connection with the filing of the
Registration Statement.
In rendering the opinion expressed herein, we have reviewed originals or
copies, certified or otherwise identified to our satisfaction, of the charter
and by-laws of the Company, the Registration Statement, the Plan, the
proceedings of the Board of Directors of the Company or a committee thereof
relating to the authorization and issuance of the Shares, a short-form good
standing certificate for the Company issued by the Maryland State Department of
Assessments and Taxation, a Certificate of Corporate Officer dated the date
hereof (the "Certificate") and such other statutes, certificates, instruments,
and documents relating to the Company and matters of law as we have deemed
necessary for the issuance of this opinion.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity with
originals of all documents submitted to us as copies (and the authenticity of
the originals of such copies), and the accuracy and completeness of all public
records reviewed by us. As to any facts material to this opinion which we did
not independently establish or verify, we have relied solely upon the
Certificate.
Based upon the foregoing, having regard for such legal considerations as we
deem relevant, and limited in all respects to applicable Maryland law, we are of
the opinion and advise you that that the Shares have been duly authorized and,
upon issuance and delivery of the Shares in accordance with the terms of the
Plan and issuance and delivery of stock certificates representing the Shares,
the Shares will be validly issued, fully paid, and non-assessable.
10
<PAGE>
In addition to the qualifications set forth above, this opinion is subject
to the qualification that we express no opinion as to the laws of any
jurisdiction other than the State of Maryland. We assume that the issuance of
the Shares will not cause the Company to issue shares of Non-Voting Common Stock
in excess of the number of such shares authorized by the Company's Charter. This
opinion concerns only the effect of the laws (exclusive of the securities or
"blue sky" laws and the principles of conflict of laws) of the State of Maryland
as currently in effect. We assume no obligation to supplement this opinion if
any applicable laws change after the date hereof or if any facts or
circumstances come to our attention after the date hereof that might change this
opinion. This opinion is limited to the matters set forth herein, and no other
opinion should be inferred beyond the matters expressly stated.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm and to our opinion in
the Registration Statement and the prospectus which is a part thereof. In giving
our consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Piper & Marbury L.L.P.
11
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Eaton Vance Corp. on Form S-8 of our reports dated November 24, 1998 (which
express an unqualified opinion and include an explanatory paragraph relating to
a change in the method of accounting for offering costs incurred in connection
with the distribution of closed-end funds in 1998), appearing in and
incorporated by reference in the Annual Report on Form 10-K of Eaton Vance Corp.
for the year ended October 31, 1998, and to the reference to us under the
heading "Experts" in the prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
October 29, 1999
12
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
The undersigned, a Director of Eaton Vance Corp., a Maryland corporation
(the "Company"), does hereby appoint any one of James B. Hawkes, Alan R. Dynner
and William M. Steul to be the undersigned's agent and attorney-in-fact, each
with the power to act fully hereunder without the others and with full power of
substitution to act in the name and on behalf of the undersigned:
To sign or to transmit electronically in the name and on behalf of the
undersigned, as a Director of the Company, and file with the Securities and
Exchange Commission on behalf of the Company, an Annual Report on Form 10-K
for the fiscal year ending October 31, 1999, any registration statements
for the registration of the Company's Non-Voting Common Stock and related
interests to be issued pursuant to the Company's employee benefit,
compensation and stock plans, any registration statements for the
registration of the Company's Non-Voting Common Stock for resale by the
holders thereof who acquired or will acquire such Stock pursuant to the
Company's employee benefit, compensation or stock plans, and any amendments
or supplements to such Annual Report on Form 10-K and such registration
statements; and
To execute and deliver, either through a paper filing or electronically,
any agreements, instruments, certificates or other documents which said
agent and attorney-in-fact shall deem necessary or appropriate in
connection with the filing of such Annual Report on Form 10-K, registration
statements and prospectuses and amendments or supplements thereto and
generally to act for and in the name of the undersigned with respect to
such filings as fully as could the undersigned if then personally present
and acting.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
effective the 14th day of July, 1999.
/s/ John G.L. Cabot /s/ Benjamin A. Rowland, Jr.
- ------------------------------- ---------------------------------
John G.L. Cabot Benjamin A. Rowland, Jr.
/s/ John M. Nelson /s/ Vincent M. O'Reilly
- ------------------------------- ---------------------------------
John M. Nelson Vincent M. O'Reilly
/s/ Ralph Z. Sorenson
----------------------------
Ralph Z. Sorenson
13
<PAGE>
Exhibit 99.1
EATON VANCE CORP.
1999 RESTRICTED STOCK PLAN
1. Definitions. As used in this Eaton Vance Corp. 1999 Restricted Stock Plan the
following terms shall have the following meaning:
Affiliate means any corporation, partnership, limited liability company,
business trust or other entity controlling, controlled by or under common
control with the Company.
Award means any grant or sale pursuant to the Plan of Restricted Stock.
Award Agreement means an agreement between the Company and the recipient of
an Award, setting forth the terms and conditions of the Award.
Board means the Company's Board of Directors.
Code means the Internal Revenue Code of 1986, as amended from time to time.
References to any provision of the Code shall be deemed to include successor
provisions and regulations and other guidance issued thereunder.
Committee means the Compensation Committee of the Board, or such other
Board committee as may be appointed by the Board to administer the Plan pursuant
to Section 5. The Committee shall consist solely of two or more Directors of the
Company.
Company means Eaton Vance Corp., a Maryland corporation, or any successor
corporation.
Exchange Act means the Securities Exchange Act of 1934, as amended from
time to time. References to any provision of the Exchange Act shall be deemed to
include successor provisions thereto and regulations and other guidance issued
thereunder.
Grant Date means the date on which an Award is granted.
Market Value means the closing price on the New York Stock Exchange for the
Shares for any date.
Participant means any recipient of an Award.
Plan means this 1999 Restricted Stock Plan, as amended or restated from
time to time.
Qualified Performance-Based Award means an Award which the Committee shall
have designated at grant as intended to provide "performance-based compensation"
within the meaning of Code Section 162(m) or which, although not so designated,
the Committee believes provides "performance-based compensation" as so defined
and was granted to a person who is or the Committee determines is reasonably
likely to become a "covered employee" within the meaning of Code Section 162(m).
14
<PAGE>
Qualified Member means a member of the Committee who is a "non-employee
director" within the meaning of Rule 16b-3(b)(3) and an "outside director"
within the meaning of Treasury Regulation 1.162-27(e)(3) under Code Section
162(m).
Restricted Stock means a grant or sale of Shares to a Participant pursuant
to this Plan which Shares are subject to a Risk of Forfeiture.
Restriction Period means the period of time during which any grant or sale
of Restricted Stock, or portion thereof, remains subject to a Risk of
Forfeiture, as described in Section 8(d) and the applicable Award Agreement.
Risk of Forfeiture means a limitation on the right of the Participant to
retain an Award of Shares, including a right in the Company to reacquire the
Shares at less than their then Market Value, arising because of the occurrence
or non-occurrence of specified events or conditions.
Rule 16b-3 means Rule 16b-3, as from time to time in effect and applicable
to the Plan and any Participant, promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act.
Shares means shares of Non-Voting Common Stock of the Company or such other
securities as may be substituted or resubstituted therefor pursuant to Section
4.
2. Purpose. The purpose of the Plan is to advance the interests of the Company
by strengthening the ability of the Company and its Affiliates to attract,
retain and motivate key employees by providing them with an opportunity to
purchase Shares and thus participate in the ownership of the Company, including
the opportunity to share in any appreciation in the value of such Shares. It is
intended that the Plan will strengthen the mutuality of interest between such
persons and the stockholders of the Company.
3. Effective Date. The Plan is effective on October 13, 1999, the date it was
adopted by the Board, but subject to its eventual approval by the voting
stockholders of the Company. Awards granted prior to receipt of stockholder
approval are expressly conditioned upon voting stockholder approval, and shall
be void ab initio in the event such approval is not obtained within twelve (12)
months of October 13, 1999.
4. Stock Subject to the Plan; Adjustments.
(a) Shares Reserved. Subject to adjustment as hereinafter provided, the
total number of Shares reserved for issuance in connection with Awards under the
Plan shall be 500,000. No Award may be granted if the number of Shares to which
such Award relates, when added to the number of Shares previously issued under
the Plan, exceeds the number of Shares reserved under this Section 4(a). Shares
issued under the Plan shall be counted against this limit in the manner
specified in Section 4(b).
(b) Manner of Counting Shares. If any Shares subject to an Award are
forfeited, canceled, exchanged, or surrendered or such Award is settled in cash
or otherwise terminates without the Participant's retention of the Shares
covered by the Award, including (i) the number of Shares withheld in payment of
any tax obligation relating to the grant of such Award and (ii) the number of
Shares equal to the number surrendered in payment of any tax obligation relating
to the lapse of the Restriction Period applicable to an Award, such number of
15
<PAGE>
Shares will again be available for Awards under the Plan. The Committee may make
determinations and adopt regulations for the counting of Shares relating to any
Award to ensure appropriate counting, avoid double counting (in the case of a
substitute Award), and provide for adjustments in any case in which the number
of Shares actually distributed differs from the number of Shares previously
counted in connection with such Award.
(c) Type of Shares Distributable. Any Shares of Restricted Stock delivered
may consist, in whole or in part, of authorized and unissued Shares or Shares
reacquired by the Company through purchase in the open market or in private
transactions.
(d) Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, or other
property) which is unusual and non-recurring, or any recapitalization, stock
split, reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase or share exchange, or other similar corporate
transaction or event affects the Shares, then the Committee shall make such
equitable changes or adjustments as it deems appropriate and, in such manner as
it may deem equitable, adjust (i) any or all of the number and kind of Shares
which may thereafter be issued in connection with Awards and (ii) where the Risk
of Forfeiture applicable to any then outstanding Restricted Stock is a right to
repurchase such Restricted Stock, the price at which the Company may repurchase
such Restricted Stock. In addition, the Committee is authorized to make
adjustments in the terms and conditions of, and any criteria and performance
objectives or goals included in, Awards in recognition of unusual or
non-recurring events (including events described in the preceding sentence, as
well as acquisitions and dispositions of assets or all or part of businesses)
affecting the Company or any Affiliate or any business unit, or the financial
statements thereof, or in response to changes in applicable laws, regulations,
accounting principles, tax rates and regulations, or business conditions or in
view of the Committee's assessment of the business strategy of the Company, an
Affiliate, or business unit thereof, performance of comparable organizations,
economic and business conditions, personal performance of a Participant, and any
other circumstances deemed relevant; provided that, unless otherwise determined
by the Committee, no such adjustment shall be made in respect of a Qualified
Performance-Based Award if and to the extent that such adjustment would cause
such Qualified Performance-Based Award to provide other than "performance-based
compensation" within the meaning of Code Section 162(m).
5. Administration.
(a) Authority of the Committee. The Plan shall be administered by the
Committee. The Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions of
the Plan;
(i) to select key employees of the Company or any of its Affiliates
(including directors who are such employees) to whom Awards may be granted;
(ii) to determine the number of Shares of Restricted Stock to be granted to
key employees, the terms and conditions of any Award granted (including the
Restriction Period and the conditions relating to transferability and the
applicable Risk of Forfeiture, and waivers or accelerations thereof, based in
each case on such considerations as the Committee shall determine), and all
other matters to be determined in connection with any Award granted to a key
employee;
16
<PAGE>
(iii) to determine the form, terms and conditions of each Award Agreement;
(iv) to adopt, amend, suspend, waive, and rescind such rules and
regulations and appoint such agents as the Committee may deem necessary or
advisable to administer the Plan;
(v) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and any Award,
rules and regulations, Award Agreement, or other agreement or instrument
hereunder; and
(vi) to make all other decisions and determinations as may be required
under the terms of the plan or as the Committee may deem necessary or advisable
for the administration of the Plan.
Other provisions of the Plan notwithstanding, the Board may perform any function
of the Committee under the Plan, including for the purpose of ensuring that
transactions under the Plan by Participants who are then subject to Section 16
of the Exchange Act in respect of the Company are exempt under Rule 16b-3. In
any case in which the Board is performing a function of the Committee under the
Plan, each reference to the Committee herein shall be deemed to refer to the
Board, except where the context otherwise requires.
(b) Manner of Exercise of Committee Authority. At any time that a member of
the Committee is not a Qualified Member, any action of the Committee relating to
an Award to be granted to a key employee who is then subject to Section 16 of
the Exchange Act in respect of the Company, or relating to a Qualified
Performance-Based Award, may be taken either (i) by a subcommittee composed
solely of two or more Qualified Members, or (ii) by the Committee but with each
such member who is not a Qualified Member abstaining or recusing himself or
herself from such action, provided that, upon such abstention or recusal, the
Committee remains composed solely of two or more Qualified Members. Such action,
authorized by such a subcommittee or by the Committee upon the abstention or
recusal of such non-Qualified Member(s), shall be the action of the Committee
for purposes of the Plan. Any action of the Committee with respect to the Plan
shall be final, conclusive, and binding on all persons, including the Company,
Affiliates, Participants, any person claiming any rights under the Plan from or
through any Participant, and stockholders of the Company. The express grant of
any specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority of the
Committee. The Committee may delegate to officers or managers of the Company or
any Affiliate the authority, subject to such terms as the Committee shall
determine, to perform administrative functions and such other functions as the
Committee may determine, to the extent permitted under applicable law and, with
respect to any Participant who is then subject to Section 16 of the Exchange Act
in respect of the Company, to the extent performance of such function will not
result in a subsequent transaction failing to be exempt under Rule 16b-3(d).
(c) Limitation of Liability. Each member of the Committee shall be entitled
in good faith to rely or act upon any report or other information furnished to
him or her by any officer or other employee of the Company or any Affiliate, the
Company's independent certified public accountants, or other professional
retained by the Company to assist in the administration of the plan. No member
of the Committee, nor any officer or employee of the Company acting on behalf of
the Committee, shall be personally liable for any action, determination, or
interpretation taken or made in good faith with respect to the Plan, and all
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members of the Committee and any officer or employee of the Company acting on
their behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action, determination, or
interpretation.
6. Duration of the Plan. This Plan shall terminate ten years from the original
effective date hereof, unless terminated earlier pursuant to Section 12, and no
Awards may be granted thereafter.
7. 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 to any employee of one or more of the
Company and its Affiliates (including any director who is such an employee). No
employee shall have any claim to be granted an Award under the Plan, however,
and there is no obligation for uniformity of treatment of employees. Further, no
employee shall be granted Awards covering more than 100,000 Shares (subject to
adjustment as provided in Section 4(d)) in any fiscal year of the Company.
8. Terms and Conditions Applicable to All Awards.
(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 an Award of
Restricted Stock, 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 (including, without
limitation, the right of Eaton Vance Corp. to repurchase the shares) of the
Eaton Vance Corp. 1999 Restricted Stock Plan and an Award Agreement entered
into by the registered owner and Eaton Vance Corp. Copies of such Plan and
Agreement are on file in the offices of Eaton Vance Corp.
(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 Shares covered by such Award.
(d) Restrictions and Restriction Period. During the period or periods
established by the Committee and set forth in the Award Agreement, i.e., the
Restriction Period, each Award of Restricted Stock shall be subject to
limitations on transferability and a Risk of Forfeiture (which may take the form
of a right of the Company to repurchase the Restricted Stock for such
consideration, if any, as the Committee shall have determined at grant) arising
on the basis of such conditions related to the continuation of employment or the
attainment of performance goals or otherwise as the Committee may determine. Any
such Risk of Forfeiture may be waived, or the Restriction Period shortened, at
any time by the Committee on such basis as it deems appropriate.
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(e) Rights Pending Lapse of Risk of Forfeiture. Except as otherwise
provided in the Plan, at all times prior to lapse of the Risk of Forfeiture
applicable to, or forfeiture or repurchase of, an Award of Restricted Stock, the
Participant shall have all of the rights of a stockholder of the Company as to
such Shares, including the right to receive any dividends paid with respect to
the Shares. The Committee, as determined at the time of an 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 shall be forfeited or subject to repurchase;
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.
(g) Lapse of Restrictions. Subject to Section 11 below (relating to
satisfaction of withholding obligations), if and when the Risk of Forfeiture
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.
(h) Non-Transferability. No Award shall be transferable by the Participant
otherwise than by will or the laws of descent and distribution.
(i) Buyouts. The Committee or its delegate may at any time offer to buy out
any outstanding Award for a payment in cash, Shares or other property based on
such terms and conditions as the Committee shall determine.
9. Awards to Participants Outside the United States. The Committee may modify
the terms of any Award under the Plan granted to a Participant who is, at the
time of grant or during the term of the Award, resident or primarily employed
outside of the United States in any manner deemed by the Committee to be
necessary or appropriate in order that such Award shall conform to laws,
regulations, and customs of the country in which the Participant is then
resident or primarily employed, or so that the value and other benefits of the
Award to the Participant, as affected by foreign tax laws and other restrictions
applicable as a result of the Participant's residence or employment abroad,
shall be comparable to the value of such an Award to a Participant who is
resident or primarily employed in the United States. An Award may be modified
under this Section 9 in a manner that is inconsistent with the express terms of
the Plan, so long as such modifications will not contravene any applicable law
or regulation.
10. Additional Requirements of Qualified Performance-Based Awards. In addition
to or in lieu of a Risk of Forfeiture based on the provisions of Section 8(d)
above, the retention of any Qualified Performance-Based Award shall be
contingent upon achievement of a pre-established performance goal or goals and
other terms set forth in this Section 10.
(a) Performance Goals Generally. The performance goals for such Award shall
include one or more business criteria and may (but need not) include a targeted
level or levels of performance with respect to each such criterion, as specified
by the Committee consistent with this Section 10, which level may also be
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expressed in terms of a specified increase or decrease in the particular
criteria compared to a past period. Performance goals shall be objective and
shall otherwise meet the requirements of Code Section 162(m), including the
requirement that the outcome of performance goals be "substantially uncertain"
at the time established. The Committee may determine that such Award shall be
granted upon achievement of any one performance goal or that two or more of the
performance goals must be attained as a condition to vesting or delivery of
Shares or retention or non-forfeiture of such Award. Performance goals may
differ for separate Awards granted to any one Participant or to different
Participants, and may be different for performance periods.
(b) Business Criteria. One or more of the following business criteria for
the Company, on a consolidated basis, and/or for specified subsidiaries,
Affiliates, business units, funds or ventures of the Company (except with
respect to the total stockholder return and earnings per share criteria), shall
be used by the Committee in establishing performance goals for such Award: (1)
earnings per share; (2) revenues; (3) cash flow; (4) cash flow return on
investment; (5) return on assets, return on investment, return on capital, or
return on equity; (6) identification and/or consummation of investment
opportunities or completion of specified projects in accordance with corporate
business plans; (7) operating margin; (8) net income, net operating income,
pretax earnings, pretax earnings before interest and depreciation and
amortization, pretax operating earnings after interest expense and before
incentives and service fees and extraordinary or special items, or operating
earnings; (9) total stockholder return; (10) commissions paid or payable to
certain marketing personnel which are subjected to the Participant's customary
override commissions; (11) any of the above goals as compared to the performance
of a published or special index deemed applicable by the Committee including,
but not limited to, the Standard & Poor's 500 Stock Index or other indexes or
groups of comparable companies referenced in the Company's annual report on Form
10-K in respect to Item 401(l) of Regulation S-K; (12) new exchange fund assets
acquired during a performance period; (13) the value of all financial assets
resulting from an extraordinary acquisition of assets; and (14) the performance
of one or more of the Eaton Vance funds as compared to a peer group or index or
other benchmark deemed applicable by the Committee. The specific performance
goal or goals established by the Committee with respect to such Award or the
terms of the Award Agreement shall be subject to adjustment by the Committee for
any change in law, regulations and interpretations occurring after the grant
date of the Award so as to enable all compensation to a Covered Employee
attributable to the Award to constitute "performance-based compensation" within
the meaning of Code Section 162(m).
(c) Timing For Establishing Performance Goals. Achievement of performance
goals in respect of such Award shall be measured over the applicable performance
period. Performance goals shall be established not later than 90 days after the
beginning of any performance period applicable to such Award, or at such other
date as may be required or permitted for "performance-based compensation" under
Code Section 162(m).
(d) Special Definitions. For purposes of this Section: "performance period"
means the period over which an applicable performance goal or goals must be met;
"extraordinary acquisition of assets" means an unusual or nonrecurring event
affecting the Company or any Affiliate, or any business division or unit or the
financial statements of the Company or any Affiliate, involving the acquisition
of new financial assets to be managed or administered for advisory or other fees
by any Affiliate or any business division or unit, such as the acquisition of
investment companies or partnerships (or their assets) previously managed by
other persons, the acquisition of other investment advisory or management firms
(or their assets) or the formation of joint ventures, partnerships or similar
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entities with other firms, provided that such fees shall be based upon such
assets and payable to the Affiliate or business division or unit upon
consummation of the transaction (but the formation of new investment companies
or partnerships by the Company or any Affiliate or the acquisition of new
private accounts to be managed by the Company or any Affiliate in the ordinary
course of its business shall not constitute an extraordinary acquisition of
assets); and "new exchange fund assets" means all financial assets acquired
during a performance period resulting from the private offering of shares or
units of one or more exchange funds offered and managed by any Affiliate or
Affiliates of the Company, including all qualifying assets acquired by an
exchange fund during a performance period to ensure the nontaxability of the
exchange of contributed securities for shares or units of the fund (with all
financial assets acquired by an exchange fund during a performance period valued
as at the close of business on the exchange date, using the valuation of such
assets employed by the fund at such date).
11. Withholding Taxes, Delivery of Shares. Each Award, and the Company's (and
any escrow holder's) obligation to deliver Shares at any time at or after the
grant of an Award, shall be subject to the Participant's satisfaction of all
applicable federal, state and local income and employment tax withholding
obligations which may at grant or thereafter from time to time arise. The
Participant may satisfy the obligations by electing (a) to make a cash payment
to the Company, or (b) if authorized by the Committee in the Award Agreement, to
have the Company withhold Shares with a value equal to the minimum amount
required to be withheld, or (c) if authorized by the Committee in the Award
Agreement, to deliver to the Company Shares owned by the Participant for at
least six (6) months with a value equal to the minimum amount required to be
withheld. The value of Shares to be withheld or delivered shall be based on the
Market Value on the date the amount of tax to be withheld is to be determined.
The Participant's election to have Shares withheld for this purpose will be
subject to the following restrictions: (1) the election must be made prior to
the date the amount of withholding tax is to be determined, (2) the election
must be irrevocable, and (3) the election will be subject to the disapproval of
the Committee.
12. Termination or Amendment of Plan. The Board may at any time terminate the
Plan or make such changes in or additions to the Plan as it deems advisable
without further action on the part of the shareholders of the Company, provided
that no such termination or amendment shall adversely affect or impair any then
outstanding Award without the consent of the Participant holding that Award.
13. Change of Control - Automatic Lapse of Restrictions. Notwithstanding
anything to the contrary herein, the Board or the Committee shall include in the
Award Agreement for each Award granted under this Plan the following provision,
and such inclusion may be effected by incorporating this provision by reference
to this Section 13:
This Award shall be fully and immediately vested, and the Shares covered
hereby no longer subject to any restriction or forfeiture, upon the
occurrence of a Change of Control of the Company; provided, however, that
if this Award is a Qualified Performance-Based Award, there shall be no
such full vesting unless and until the earlier of (A) the attainment of the
performance goal or goals set forth in the Award Agreement or (B) when the
Participant is no longer a "covered employee" within the meaning of Code
Section 162(m). A "Change of Control" shall mean:
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(a) The acquisition, other than from the Company, by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of either (i) the then
outstanding non-voting common stock of the Company (the "Non-Voting Stock") or
(ii) the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the "Company
Voting Securities"); provided, that any acquisition by (x) the Company or any of
its subsidiaries, or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries or (y) any Person that is
eligible, pursuant to Rule 13d-1(b) under the Exchange Act, to file a statement
on Schedule 13G with respect to its beneficial ownership of Company Voting
Securities, whether or not such Person shall have filed a statement on Schedule
13G, unless such Person shall have filed a statement on Schedule 13D with
respect to beneficial ownership of 25% or more of the Company Voting Securities,
shall not constitute a Change of Control; and provided, further, that the
provisions of this subsection (a) shall apply whether or not the Company Voting
Securities or the Non-Voting Stock is registered or required to be registered
under the Exchange Act; or
(b) Individuals who, as of the date hereof, constitute the Company's Board
of Directors (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board, provided, that any individual becoming a director of
the Company ("Director") subsequent to the date of the Award whose election or
nomination for election by the Company's shareholders, was approved by at least
a majority of the Directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company (as such terms are used in Rule
14a-11 of the Regulation 14A promulgated under the Exchange Act); or
(c) Approval by the shareholders of the Company of a reorganization, merger
or consolidation (a "Business Combination"), in each case with respect to which
all or substantially all of the individuals and entities who won the respective
beneficial owners of the Non-Voting Stock and of the Company Voting Securities
immediately prior to such Business Combination will not, following such Business
Combination, beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding non-voting stock and the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors of the corporation or other entity resulting from the
Business Combination in substantially the same proportion as their ownership
immediately prior to such Business Combination of the Non-Voting Stock and
Company Voting Securities, as the case may be; or
(d) Approval by the shareholders of the Company of (i) a complete
liquidation or dissolution of the Company, or (ii) a sale or other disposition
of all or substantially all of the assets of the Company, or (iii) a sale or
disposition of Eaton Vance Management (or any successor thereto) or of all or
substantially all of the assets of Eaton Vance Management (or any successor
thereto), or (iv) an assignment by any direct or indirect investment adviser
subsidiary of the Company of investment advisory agreements pertaining to more
than 50% of the aggregate assets under management of all such subsidiaries of
the Company, in the case of (ii), (iii) or (iv) other than to a corporation or
other entity with respect to which, following such sale or disposition or
assignment, more than 60% of, respectively, the outstanding non-voting stock and
the combined voting power of the then outstanding voting securities entitled to
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vote generally in the election of directors is then owned beneficially, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners of the Non-Voting Stock and Company Voting Securities
immediately prior to such sale, disposition or assignment in substantially the
same proportion as their ownership of the Non-Voting Stock and Company Voting
Securities, as the case may be, immediately prior to such sale, disposition or
assignment.
Notwithstanding the foregoing, the following events shall not cause, or be
deemed to cause, and shall not constitute, or be deemed to constitute, a Change
of Control:
(1) The acquisition, holding or disposition of Company Voting
Securities deposited under the Voting Trust Agreement dated as of October
30, 1997 or of the voting trust receipts issued therefor, or any change in
the persons who are voting trustees thereunder, or the acquisition, holding
or disposition of Company Voting Securities deposited under any subsequent
replacement voting trust agreement or of the voting trust receipts issued
therefor, or any change in the persons who are voting trustees under any
such subsequent replacement voting trust agreement; provided, that any such
acquisition, disposition or change shall have resulted solely by reason of
the death, incapacity, retirement, resignation, election or replacement of
one or more voting trustees.
(2) Any termination or expiration of a voting trust agreement under
which Company Voting Securities have been deposited or the withdrawal
therefrom of any Company Voting Securities deposited thereunder, if all
Company Voting Securities and/or the voting trust receipts issued therefor
continue to be held thereafter by the same persons in the same amounts, or
if contemporaneously there shall be a Business Combination or change in the
capitalization of the Company as described in clause (3) below.
(3) A Business Combination or change in the capitalization of the
Company pursuant to which the holders of the Non-Voting Stock of the
Company become holders of voting securities of the Company or of the
corporation or other entity resulting from such Business Combination, in
substantially the same proportion as their ownership of Non-Voting Stock
immediately prior to such Business Combination or change in capitalization.
14. General Provisions.
(a) Compliance with Legal and Exchange Requirements. The Plan, the granting
of Awards thereunder, and the other obligations of the Company under the Plan
and any Award Agreement, shall be subject to all applicable federal and state
laws, rules and regulations, and to such approvals by any regulatory or
governmental agency as way be required. The Company, in its discretion, may
postpone the issuance or delivery of Shares under any Award until completion of
such stock exchange listing or registration or qualification of such Shares or
other required action under any state, federal or foreign law, rule or
regulation as the Company may consider appropriate, and may require any
Participant to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of Shares in
compliance with applicable laws, rules and regulations.
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(b) Compliance with Code Section 162(m) and Rule 16b-3. If any provision of
the Plan or any Award Agreement relating to a Qualified Performance-Based Award
or to a person subject to Section 16 of the Exchange Act does not comply or is
inconsistent with the requirements of Code Section 162(m) or Rule l6b-3, such
provision shall be construed or deemed to be amended or to be null and void to
the extent necessary to conform to such requirements. The foregoing shall not
apply in the event of any noncompliance or inconsistency between a provision of
an Award Agreement relating to a Qualified Performance-Based Award and the
requirements of Code Section 162(m) if the Award Agreement expressly so
provides.
(c) No Right to Continued Employment. Neither the Plan nor any action taken
thereunder shall be construed as giving any employee the right to be retained in
the employ of the Company or any of its Affiliates, nor shall it interfere in
any way with the right of the Company or any of its Affiliates to terminate any
employee's employment at any time.
(d) Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board nor its submission to the voting stockholders of the Company for approval
shall be construed as creating any limitations on the power of the Board to
adopt each other incentive arrangements as it may deem desirable, including the
granting of restricted stock, stock options and other awards otherwise than
under the Plan, and such arrangements may be either applicable generally or only
in specific cases.
(e) Governing Law. The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan, and any Award Agreement shall be
determined in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to principles of conflicts of laws, and applicable federal
law.
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