As filed with the Securities and Exchange Commission on November 13, 2000
Registration No. 333-
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)
1998 STOCK OPTION 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 regsitered (1) share (2) price registration fee
---------- -------------- --------- ----- ----------------
<S> <C> <C> <C> <C>
Non-Voting Common 2,400,000 $47.5625 $114,150,000 $30,135.60
Stock
$.015625 par value
---------------------------------------------------------------------------------------------------------
</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) As instructed by Rule 457(h)(1) and estimated in accordance with Rule
457(c) based upon the average of the high and low prices on The New York
Stock Exchange on November 10, 2000.
Page 1 of 20 pages.
Exhibit Index is on page 5.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of General Instructions D and E to Form S-8. The purpose of this
Registration Statement is to register 2,400,000 additional shares of Non-Voting
Common Stock, $.015625 par value per share, to be issued under Registrant's 1998
Stock Option Plan. The contents of a Registration Statement filed August 13,
1999 for the same purpose but relating to different shares (File No. 333-85137 -
Accession No. 0000350797-99-000002) and a Registration Statement filed June 26,
2000 registering additional shares under the same plan (File No. 333-40112 -
Accession No. 0000350797-00-000008) are incorporated herein by reference.
The Company will deliver a prospectus meeting the requirements of Part I of
Form S-8 to all persons granted options to purchase stock pursuant to the Plan
in accordance with the requirements of Rule 428.
2
<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 31st
day of October, 2000.
EATON VANCE CORP.
By: /s/ James B. Hawkes
-------------------------------
James B. Hawkes
President
POWER OF ATTORNEY
We, the undersigned officers and directors of Eaton Vance Corp., hereby
severally constitute and appoint Alan R. Dynner, and Eric G. Woodbury, and each
of them singly, our true and lawful attorneys with full power to any of them,
and to each of them singly, to sign for us and in our names in the capacities
indicated below the Registration Statement on Form S-8 filed herewith and any
and all amendments to said Registration Statement and generally to do all such
things in our name and behalf in our capacities as officers and directors to
enable Eaton Vance Corp. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
3
<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 October 31, 2000
--------------------------- Officer and Director
James B. Hawkes (Principal Executive Officer)
/s/ John G.L. Cabot Director October 27, 2000
---------------------------
John G.L. Cabot
/s/ John M. Nelson Director October 30, 2000
---------------------------
John M. Nelson
/s/ Vincent M. O'Reilly Director October 31, 2000
---------------------------
Vincent M. O'Reilly
/s/ Leo I. Higdon Director October 26, 2000
---------------------------
Leo I. Higdon
/s/ William M. Steul Treasurer (Principal October 31, 2000
--------------------------- Financial Officer)
William M. Steul
/s/ Laurie G. Russell Chief Accounting Officer October 31, 2000
---------------------------
Laurie G. Russell
4
<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 dated September 3, 1998 (SEC
Registration No. 333-62801) and is incorporated
herein by reference).........................................................N/A
Exhibit 5.1 (Opinion and Consent of Nixon Peabody LLP)
(filed herewith).............................................................6-7
Exhibit 23.1 (Consent of Deloitte & Touche LLP)
(filed herewith)...............................................................8
Exhibit 23.2 (Consent of Nixon Peabody LLP is included
in Exhibit 5.1) (filed herewith).............................................6-7
Exhibit 24.1 (Power of Attorney) (filed herewith)..............................3
Exhibit 99.1 (Copy of Registrant's 1998 Stock
Option Plan - Restatement No. 2) (filed herewith)..............................9
5
<PAGE>
Exhibit 5.1
[NIXON PEABODY LLP LETTERHEAD]
101 Federal Street
Boston, Massachusetts 02110-1832
(617) 345-1000
FAX: (617) 345-1300
November 8, 2000
Board of Directors
Eaton Vance Corp.
The Eaton Vance Building
255 State Street
Boston, MA 02109
Ladies and Gentlemen:
We have acted as special counsel for Eaton Vance Corp., a Maryland
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offering of up to and including 2,400,000 shares
(the "Shares") of the Company's non-voting common stock, $0.015625 par value,
pursuant to the Company's 1998 Stock Option Plan - Restatement No. 2 (the
"Plan").
In arriving at the opinions expressed below, we have examined and relied on
the following documents:
(i) the Registration Statement;
(ii) the Plan;
(iii) the Articles of Incorporation of the Company, as amended;
(iv) the By-Laws of the Company in force as of the date hereof;
(v) the certificate of the Assistant Secretary of the Company; and
(vi) certain resolutions of the Board of Directors of the Company.
In addition, we have examined and relied on the originals or copies
certified or otherwise identified to our satisfaction of all such other records,
documents and instruments of the Company and such other persons, and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinions expressed below. We have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to the original documents of all documents submitted to us as
certified or photostatic copies.
6
<PAGE>
Eaton Vance Corp.
November 8, 2000
Page 2
Based upon the foregoing, we are of the opinion that the Shares have been
duly and validly authorized, and upon issuance and delivery in the manner
contemplated by the Registration Statement, the Shares will be validly issued,
fully paid and non-assessable.
The opinions set forth above represents our conclusion as to the
application of the general corporation law of Maryland, exclusive of the
securities or "blue sky" laws of the state of Maryland, about which we express
no opinion, and federal laws to the instant matter, and we can give no assurance
that changes in such laws, or in the interpretation thereof, will not affect the
opinion expressed by us. Moreover, there can be no assurance that a court
considering the issues would not hold contrary to such opinion. Further, the
opinion set forth represents our conclusions based upon the documents reviewed
by us and the facts presented to us. Any material amendments to such documents
or changes in any significant fact could affect the opinion expressed herein.
Our opinion is further qualified to the extent that the validity of any
provision of the Plan or the rights of any grantee under the Plan may be subject
to or affected by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement and to the reference to our Firm in the Registration Statement.
Very truly yours,
/s/ Nixon Peabody LLP
7
<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 report dated November 30, 1999, (which
expresses an unqualified opinion and includes 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) appearing in the Annual
Report on Form 10-K of Eaton Vance Corp. for the year ended October 31, 1999.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Boston, Massachusetts
November 10, 2000
8
<PAGE>
Exhibit 99.1
As effective November 1, 2000
EATON VANCE CORP.
1998 STOCK OPTION PLAN
----------------------
RESTATEMENT NO. 2
-----------------
1. Definitions. As used in this Eaton Vance Corp. 1998 Stock Option Plan
the following terms shall have the following meaning:
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 Option 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.
Director Option means a nonqualified stock option granted to a director
pursuant to the formula plan set forth in Section 8.
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 Option is granted.
Incentive Option means an Option that satisfies the requirements of Section
422 of the Code.
Market Value means the closing price on the New York Stock Exchange for the
Shares for any date.
Nonqualified Option means an Option other than an Incentive Option granted
to an employee.
Option means an option to purchase Shares granted under the Plan.
9
<PAGE>
Option Agreement means an agreement between the Company and an Optionee,
setting forth the terms and conditions of an Option.
Option Price means the price to be paid by an Optionee upon exercise of an
Option.
Optionee means a person eligible to receive an Option to whom an Option
shall have been granted under the Plan.
Plan means this 1998 Stock Option Plan, as amended or restated from time to
time.
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).
Rule 16b-3 means Rule 16b-3, as from time to time in effect and applicable
to the Plan and any Optionee, 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.
Subsidiary means a subsidiary of the Company, as defined in Section 424(f)
of the Code.
2. Purpose. The purpose of the Plan is to advance the interests of the
Company by strengthening the ability of the Company and its Subsidiaries to
attract, retain and motivate directors and 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. Both
Incentive Options and Nonqualified Options may be granted under the Plan. This
Plan is the successor to the Company's 1995 Stock Option Plan - Restatement No.
2.
3. Effective Date. The Plan became effective on July 7, 1998, the date it
was adopted by the Board and approved by the voting stockholders of the Company.
This Restatement No. 2 became effective on November 1, 2000, the date it was
adopted by the Board and approved by the voting stockholders of the Company.
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 Options under
the Plan shall be 6,000,000 (which at the close of business on November 13,
2000, shall be increased to 12,000,000 to reflect the two-for-one stock split
effective on that date). No Option may be granted if the number of shares to
10
<PAGE>
which such Option 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 Option are
forfeited, canceled, exchanged, or surrendered or such Option is settled in cash
or otherwise terminates without a distribution of Shares to the Participant,
including (i) the number of Shares withheld in payment of any Option Price or
tax obligation relating to the exercise of such Option and (ii) the number of
Shares equal to the number surrendered in payment of any Option Price or tax
obligation relating to the exercise of such Option, such number of Shares will
again be available for Options under the Plan. The Committee may make
determinations and adopt regulations for the counting of Shares relating to any
Option to ensure appropriate counting, avoid double counting (in the case of
substitute Options), 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 Option.
(c) Type of Shares Distributable. Any Shares delivered upon exercise of an
Option 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 such that an adjustment is appropriate
in order to prevent dilution or enlargement of the rights of Optionees under the
Plan, then the Committee shall make such equitable changes or adjustments as it
deems appropriate and, in such manner as it may deem equitable, adjust any or
all of (i) the number and kind of Shares which may thereafter be issued in
connection with Options, (ii) the number and kind of Shares issued or issuable
in respect of outstanding Options or, if deemed appropriate, make provisions for
payment of cash or other property with respect to any outstanding Option, (iii)
the Option Price relating to any Option, and (iv) the number and kind of Shares
set forth in Section 7(d) as the per-person limitation for any three calendar
years; provided, however, in each case that, with respect to Incentive Options,
such adjustment shall be made in accordance with Section 424 of the Code, unless
the Committee determines otherwise. 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, Options 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 Subsidiary 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, a
Subsidiary, or business unit thereof, performance of comparable organizations,
economic and business conditions, personal performance of an Optionee, and any
other circumstances deemed relevant; provided that, unless otherwise determined
by the Committee, no such adjustment shall be made if and to the extent that
such adjustment would cause Options granted to employees who are "covered
employees" within the meaning of Code Section 162(m) to fail to qualify as
11
<PAGE>
"performance-based compensation" under Code Section 162(m) and regulations
thereunder.
5. Administration.
(a) Authority of the Committee. The Plan shall be administered by the
Committee. The Committee shall have full and final authority and discretion to
take the following actions, in each case subject to and consistent with the
provisions of the Plan:
(i) to select employees to whom Options may be granted;
(ii) to determine the type and number of Options to be granted to
employees, the number of Shares to which such an Option may relate, the terms
and conditions of any Option granted to an employee under the Plan (including
the Option Price, any restriction or condition, any schedule for lapse of
restrictions or conditions relating to transferability or forfeiture,
exercisability, or settlement of such an Option, and waivers or accelerations
thereof, and waivers of performance conditions relating to such an option, based
in each case on such considerations as the Committee shall determine), and all
other matters to be determined in connection with any Option granted to an
employee;
(iii) to determine whether, to what extent, and under what circumstances an
Option may be settled, or the Option Price may be paid, in cash, Shares or other
property, or an Option may be canceled, forfeited, exchanged, or surrendered;
(iv) to determine whether, to what extent, and under what circumstances
cash, Shares or other property payable with respect to an Option will be
deferred either automatically, at the election of the Committee, or at the
election of the Optionee, and whether to create trusts and deposit Shares or
other property therein;
(v) to prescribe the form of each Option Agreement, which need not be
identical for each Optionee;
(vi) 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;
(vii) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and any Option,
rules and regulations, Option Agreement, or other agreement or instrument
hereunder; and
(viii) 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.
12
<PAGE>
In its administration of the Plan, the Committee shall not take any action which
would result in a transaction involving a Director Option failing to be exempt
under Rule 16b-3(d). 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 Optionees 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 Option to be granted to an employee who is then subject to Section 16 of the
Exchange Act in respect of the Company, or relating to an Option intended to
constitute "qualified performance-based compensation" within the meaning of Code
Section 162(m) and regulations thereunder, 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 a not 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, Subsidiaries, Optionees, any person claiming
any rights under the Plan from or through any Optionee, 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 Subsidiary 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 Optionee 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 Subsidiary,
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
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 Options may be granted thereafter.
13
<PAGE>
7. Options for Employees.
(a) Eligible Employees. Options may be granted to those employees of the
Company or of any of its Subsidiaries as are selected by the Committee.
(b) Restrictions on Incentive Options. Incentive Options shall be subject
to the following restrictions:
(i) Limitation on Number of Shares. To the extent that the aggregate Market
Value on the Grant Date of the Shares with respect to which an Option that would
otherwise constitute an Incentive Option (when aggregated, if appropriate, with
incentive stock options granted before the Option under this Plan or any other
plan maintained by the Company or any Subsidiary of the Company) is exercisable
for the first time by the Optionee during any calendar year exceeds $100,000,
the Option shall be treated as a Nonqualified Option.
(ii) 10% Stockholder. If any Optionee to whom an Incentive Option is
granted is on the Grant Date the owner of stock (as determined under Section
424(d) of the Code) possessing more than 10% of the total combined voting power
of all classes of stock of the Company or any of its Subsidiaries, then the
following special provisions shall be applicable to that Incentive Option:
(A) The Option Price per Share shall not be less than 110% of the
Market Value on the Grant Date; and
(B) The Incentive Option shall expire not more than five years after
the Grant Date.
(c) Price. Subject to the conditions on certain Incentive Options in
Section 7(b), the Option Price per Share payable upon the exercise of each
Incentive Option shall be not less than 100% of the Market Value on the Grant
Date. The Option Price per Share of stock payable upon exercise of each
Nonqualified Option shall be determined by the Committee, provided that the
Option Price shall not be less than 100% of the Market Value on the Grant Date.
(d) Limitation on Number of Shares to be Granted to Each Optionee. Each
Option Agreement shall specify the number of Shares to which it pertains. No
Optionee may receive, during any three calendar year period, Options to purchase
more than 1,800,000 Shares (which at the close of business on November 13, 2000
shall be increased to 3,600,000 Shares to reflect the two-for-one stock split
effective on that date). If any Option granted to an employee is canceled, the
canceled Option continues to be counted against the maximum number of Shares for
which Options may be granted to that employee under the Plan. If, after grant of
an Option to an employee, the Option Price is reduced, the transaction will be
treated as a cancellation of the Option and the grant of a new Option, and in
such case both the Option that is deemed to be canceled and the Option that is
deemed to be granted reduce the maximum number of Shares for which Options may
be granted to that employee under the Plan. The preceding two sentences apply
only to calculating the maximum number of Shares available to an Optionee during
14
<PAGE>
any three calendar year period, and shall not apply to or affect the manner of
counting Shares pursuant to Section 4(b).
(e) Exercise of Options. Subject to the terms and conditions set forth in
the Option Agreement, each Option shall be exercisable for the full amount or
for any part thereof and at such intervals or in such installments as the
Committee may determine at the time it grants the Option; provided, however,
that no Option shall be exercisable with respect to any Shares later than ten
years after the Grant Date.
8. Formula Plan; Options for Directors. Upon first election to the Board of
Directors of the Company of a person who was not, within twelve months preceding
election, either an officer of employee of the Company or any Subsidiary, such
person shall be granted a Director Option to purchase the number of Shares
calculated by dividing $100,000 by the Market Value of the Shares on the Grant
Date. On the third Friday of December in each year, each director who is not an
employee of the Company and its Subsidiaries shall receive a Director Option to
purchase the number of Shares calculated by dividing $100,000 by the Market
Value of the Shares on the Grant Date. In the event that on any Grant Date there
is not a sufficient number of Shares available to implement fully the preceding
sentences, then each such director shall receive a pro rata portion of the
Director Option contemplated by the preceding sentences. The Option Price for
each Director Option shall be the Market Value on the Grant Date or, in the
event there is no Market Value available on the Grant Date, on the date next
following the Grant Date for which a Market Value is available. Each Director
Option shall become exercisable in four equal installments upon each of the
first four anniversaries of the Grant Date. No Director Option shall be
exercisable later than ten years after the Grant Date. It is intended that each
Director Option automatically granted pursuant to this Section 8 shall be made
pursuant to a formula plan as defined in Release No. 34-37260 of the Securities
and Exchange Commission (adopting restated Rule 16b-3).
9. Terms and Conditions Applicable to All Options.
(a) Non-Transferability. Except as otherwise expressly provided in an
Option Agreement, no Option shall be transferable by the Optionee otherwise than
by will or the laws of descent and distribution, and each Option shall be
exercisable during the Optionee's lifetime only by him or her.
(b) Notice of Exercise and Payment. An Option shall be exercisable only by
delivery of a written notice to the Company's Treasurer or any other officer of
the Company designated by the Committee to accept such notices on its behalf,
specifying the number of Shares for which it is exercised. If the Shares are not
at that time effectively registered under the Securities Act of 1933, as
amended, the Optionee shall include with such notice a letter, in form and
substance satisfactory to the Company, confirming that the Shares are being
purchased for the Optionee's own account for investment and not with a view to
distribution. Payment shall be made in full at the time the Option is exercised.
Payment shall be made by (i) cash or check, (ii) delivery and assignment to the
Company of already-owned Shares having a Market Value as of the date of exercise
equal to the exercise price, (iii) if approved by the Committee, delivery of the
Optionee's promissory note for the exercise price, or (iv) any combination of
(i), (ii) or (iii) above.
15
<PAGE>
(c) No Rights to Options; No Stockholder Rights. No employee shall have any
claim to be granted an Option under the Plan, and there is no obligation for
uniformity of treatment of employees. No Option shall confer upon the Optionee
any rights as a stockholder or any claim to dividends paid with respect to any
Shares to which the Option relates unless and until such Shares are duly issued
to him or her in accordance with the terms of the Option.
(d) Cancellation and Rescission of Options. The Committee may provide in
any Option Agreement that, in the event an Optionee violates a term of the
Option Agreement or other agreement with or policy of the Company or a
Subsidiary, takes or omits to take actions that are deemed to be in competition
with the Company or its Subsidiaries, an unauthorized solicitation of customers,
suppliers, or employees of the Company or its Subsidiaries, or an unauthorized
disclosure or misuse of proprietary or confidential information of the Company
or its Subsidiaries, or takes or omits to take any other action as may be
specified in the Option Agreement, the Optionee shall be subject to forfeiture
of such Option or portion, if any, of the Option as may then remain outstanding
and also to forfeiture of any amounts of cash, Shares or other property received
by the Optionee upon exercise or settlement of such Option or in connection with
such Option during such period (as the Committee may provide in the Option
Agreement) prior to the occurrence which gives rise to the forfeiture.
(e) Options to Optionees Outside the United States. The Committee may
modify the terms of any Option under the Plan granted to an Optionee who is, at
the time of grant or during the term of the Option, 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 Option shall conform to laws,
regulations, and customs of the country in which the Optionee is then resident
or primarily employed, or so that the value and other benefits of the Option to
the Optionee, as affected by foreign tax laws and other restrictions applicable
as a result of the Optionee's residence or employment abroad, shall be
comparable to the value of such an Option to an Optionee who is resident or
primarily employed in the United States. An Option may be modified under this
Section 9(f) 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. Termination of Options. Each Option shall terminate and may no longer
be exercised if the Optionee ceases to perform services for the Company or a
Subsidiary, in accordance with the following provisions:
(i) if the Optionee's services shall have been terminated by resignation or
other voluntary action, or if such services shall have been terminated
involuntarily for cause, all of the Optionee's Options shall terminate and may
no longer be exercised;
(ii) if the Optionee's services shall have been terminated for any reason
other than cause, resignation or other voluntary action before his or her
eligibility to retire, and before his or her disability or death, he or she may
at any time within a period of fifteen (15) months after such termination of
service exercise his or her Options to the extent that the Options were
exercisable on the date of termination of service;
16
<PAGE>
(iii) if the Optionee's service shall have been terminated because of
disability within the meaning of Section 22(e)(3) of the Code, he or she may at
any time within a period of fifteen (15) months after such termination of
service exercise his or her Options to the extent that such Options were
exercisable on the date of termination of service; and
(iv) if the Optionee dies at a time when he or she might have exercised an
Option, then his or her estate, personal representative or beneficiary to whom
it has been transferred pursuant to Section 9(a) hereof may at any time within a
period of fifteen (15) months after the Optionee's death exercise the Option to
the extent the Optionee might have exercised it at the time of death;
provided, however, that the Committee may, at its sole discretion, provide
specifically in an Option Agreement for such other period of time (shorter or
longer than as set forth above) during which an Optionee may exercise an Option
after termination of the Optionee's services as the Committee may approve,
subject to the overriding limitation that no Option may be exercised to any
extent by anyone after the date of expiration of the Option.
11. Withholding Taxes; Delivery of Shares. The Company's obligation to
deliver Shares upon exercise of an Option shall be subject to the Optionee's
satisfaction of all applicable federal, state and local income and employment
tax withholding obligations. The Optionee may satisfy the obligations by
electing (a) to make a cash payment to the Company, or (b) to have the Company
withhold Shares with a value equal to the amount required to be withheld, or (c)
to deliver to the Company already-owned Shares with a value equal to the 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 Optionee'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 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:
(a) that no such termination or amendment shall adversely affect or impair
any then outstanding Option without the consent of the Optionee holding that
Option; and
(b) that any such amendment which:
(i) increases the maximum number of Shares subject to this Plan,
(ii) changes the class of persons eligible to participate in this
Plan, or
(iii) materially increases the benefits accruing to participants under
this Plan
shall be subject to approval by the voting stockholders of the Company within
one year from the effective date of such amendment and shall be null and void if
such approval is not obtained.
17
<PAGE>
13. Change of Control - Automatic Vesting of Options. Notwithstanding
anything to the contrary herein, the Board or the Committee shall include in the
Option Agreement for each unvested Option granted under this Plan the following
provision, and such inclusion may be effected by incorporating this provision by
reference to this Section 13:
This Option shall be immediately exercisable and the Optionee shall become
eligible to purchase any and all shares covered by each Option at any time or
from time to time after the occurrence of a Change of Control of the Company. A
"Change of Control" shall mean:
(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 Securities
Exchange Act of 1934, as amended (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 Option 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 were 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
18
<PAGE>
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
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.
19
<PAGE>
14. General Provisions.
(a) Compliance with Legal and Exchange Requirements. The Plan, the granting
and exercising of Options thereunder, and the other obligations of the Company
under the Plan and any Option 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 may be required. The Company, in its
discretion, may postpone the issuance or delivery of Shares under any Option
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
Optionee 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.
(b) Compliance with Section 162(m) and Rule 16b-3. If any provision of the
Plan or any Option Agreement relating to a "covered employee" or 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 regulations thereunder or Rule
16b-3, such provision shall be construed or deemed amended to the extent
necessary to conform to such requirements.
(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 Subsidiaries, nor shall it interfere in
any way with the right of the Company or any of its Subsidiaries to terminate
any employee's employment at any time.
(d) Taxes. The Company or any Subsidiary is authorized to withhold from any
payment relating to an Option under the Plan, or any distribution of Shares, or
any payroll or other payment to an Optionee, amounts of withholding and other
taxes due in connection with any transaction involving an Option, and to take
such other action as the Committee may deem advisable to enable the Company and
Optionees to satisfy obligations for the payment of withholding taxes and other
tax obligations relating to any Option or exercise thereof. This authority shall
include authority to withhold or receive Shares or other property and to make
cash payments in respect thereof in satisfaction of an Optionee's tax
obligations.
(e) 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 such other incentive arrangements as it may deem desirable, including the
granting of stock options and other awards otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
(f) Governing Law. The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan, and any Option 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.
20
