<PAGE>
<PAGE>
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Re: MGI Properties
Registration Statement on Form S-8
Dear Sir or Madam:
On behalf of our client, MGI Properties (the "Company"), transmitted herewith
pursuant to the Securities and Exchange Commission's EDGAR System, in
accordance with the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations promulgated thereunder, is the Company's
Registration Statement on Form S-8, including Exhibits.
On May 2, 1994 the Company wire transferred immediately available funds in
the amount of $2,960.68 to the Commission's account number 9108739 at
Mellon Bank in Pittsburgh, Pennsylvania in payment of the filing fee for the
Registration Statement.
Please direct any inquiry or comment with respect to the filing to the
attention of the undersigned at (212) 753-7200.
Kindly acknowledge receipt of this transmission by date-stamping a copy of
this letter and returning same to the undersigned.
Sincerely yours,
Gary Kaufman
Enclosures
cc: New York Stock Exchange
Phillip C. Vitali
<PAGE>
<PAGE>
As filed with the Securities and Exchange Commission on May 2, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
MGI PROPERTIES
(Exact name of registrant as specified in its charter)
Massachusetts 04-6268740
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
30 Rowes Wharf,
Boston, Massachusetts 02110 02110
(Address of Principal Executive Offices) (Zip Code)
MGI PROPERTIES
1994 STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN FOR KEY EMPLOYEES
1994 STOCK OPTION PLAN FOR TRUSTEES
COMMON SHARES AWARDED TO KEY EMPLOYEES
(Full Title of the Plans)
W. Pearce Coues
Chairman of the Board of Trustees
MGI Properties
30 Rowes Wharf
Boston, Massachusetts 02110
(Name and Address of agent for service)
(617) 330-5335
(Telephone number, including area code, of agent for service)
Copies to:
Victor M. Rosenzweig, Esq.
Olshan Grundman Frome & Rosenzweig
505 Park Avenue
New York, New York 10022
(212) 753-7200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered(1) per share(2) price (2) fee
<S> <C> <C> <C> <C>
Common Shares,
$1.00 par value 582,100 $14.75 $8,585,975.00 $2,960.68
</TABLE>
(1) Represents the sum of the maximum of 400,000 Common Shares
that may be acquired under the 1994 Stock Option and Stock
Appreciation Rights Plan for Key Employees, a maximum of
170,000 Common Shares that may be acquired under the 1994
Stock Option Plan for Trustees and a maximum of 12,100
Common Shares awarded to certain employees of the Registrant.
Pursuant to Rule 416 promulgated under the Securities Act of
1933, as amended (the "Securities Act"), this Registration
Statement also registers such number of additional Common
Shares as may be offered or issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee
and computed in accordance with Securities Act Rule 457(c)
using the average of the high and low prices of the Common
Shares reported on the New York Stock Exchange, Inc.
Composite Tape on April 28, 1994.
<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a)
PROSPECTUS
The Section 10(a) prospectus of the Registrant's
1994 Stock Option and Stock Appreciation Rights Plan for
Key Employees, the Registrant's 1994 Stock Option Plan
for Trustees and for the Common Shares awarded to key
employees of the Registrant are not being filed with the
Securities and Exchange Commission as part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated
by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-
K for the year ended November 30, 1993;
(b) The Registrant's Quarterly Report on Form
10-Q for the quarter ended February 28,
1994; and
(c) The Registrant's Current Report on Form 8-
K filed on February 15, 1994, as amended by
the Report on Form 8-KA filed on April 15,
1994; and
(d) The description of the Registrant's Common
Shares, $1.00 par value, contained in the
Registrant's Registration Statements on Form
8-A filed on March 11, 1988 and June 27,
1989, respectively.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"),
prior to the filing of a post-effective amendment which
indicates that all Common Shares offered hereby have been
sold or which deregisters all Common Shares offered hereby
then remaining unsold, are deemed to be incorporated herein
by reference and to be a part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Shares offered hereby
will be passed upon for the Registrant by the firm of Olshan
Grundman Frome & Rosenzweig, 505 Park Avenue, New
York, New York 10022. Certain members of said firm own
an aggregate of 9,676 Common Shares, and non-qualified
options to purchase an aggregate of 21,400 Common Shares,
of the Registrant.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 5.3 of the Trust's Second Amended and Restated
Declaration of Trust provides as follows:
The Trust shall indemnify each of its Trustees, officers,
employees and agents (including any Person who serves at
its written request as director, officer, partner, trustee or the
like of another organization in which it has any interest as
a shareholder, creditor or otherwise), against all liabilities
and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, counsel
fees, reasonably incurred by him in connection with the
defense or disposition of any action, suit or proceeding,
whether civil or criminal, in which he may be involved or
with which he may be threatened, while acting as Trustee or
as an officer, employee or agent, of the Trust or the
Trustees, as the case may be, or thereafter, by reason of his
being or having been such a Trustee, officer, employee or
agent, except with respect to any matter as to which he shall
have been adjudicated to have acted in bad faith or with
willful misconduct or reckless disregard of his duties or
gross negligence or not to have acted in good faith in the
reasonable belief that his action was in the best interests of
the Trust; provided, however, that a Trustee adjudicated to
have been grossly negligent (i.e., found to have breached his
fiduciary duty of care) may nevertheless be indemnified
pursuant to the provisions of this paragraph consistent with
the provisions of Section 5.2; and provided, further,
however, that as to any matter disposed of by a compromise
payment by such Trustee, officer, employee or agent,
pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other
expenses shall be provided unless such compromise shall be
approved as in the best interest of the Trust by a majority
of the disinterested Trustees or the Trust shall have received
a written opinion of independent legal counsel to the effect
that such Trustee, officer, employee or agent appears to
have acted in good faith in the reasonable belief that his
action was in the best interests of the Trust. The rights
accruing to any Trustee, officer, employee or agent under
these provisions shall not exclude any other right to which
he may be lawfully entitled; provided, however, that no
Trustee, officer, employee or agent may satisfy any right of
indemnity or reimbursement granted herein or to which he
may be otherwise entitled except out of the Trust Property,
and no Shareholder shall be personally liable to any Person
with respect to any claim for indemnity or reimbursement
or otherwise. The Trustees may make advance payments in
connection with indemnification under this Section 5.3,
provided that the indemnified Trustee, officer, employee or
agent shall have given a written undertaking to reimburse
the Trust in the event it is subsequently determined that he
is not entitled to such indemnification.
Any action taken by or conduct on the part of a Trustee,
officer, employee or agent of the Trust in conformity with
or in good faith reliance upon certain provisions of the
Declaration of Trust shall not constitute bad faith, willful
misconduct, gross negligence or reckless disregard of his
duties, or failure to act in good faith in the reasonable belief
that his action was in the best interests of the Trust.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
<PAGE>
<PAGE>
ITEM 8. EXHIBITS.
The following instruments and documents are
included as exhibits to this Registration Statement.
Exhibit
Number Description
4(a) Second Amended and Restated
Declaration of Trust, incorporated by
reference to Exhibit 3 of the Trust's
Annual Report on Form 10-K for the
fiscal year ended November 30, 1981
(File No. 1-6833).
(b) Certificate of First Amendment of
Second Amended and Restated
Declaration of Trust, incorporated by
reference to Exhibit 3 of the Trust's
Annual Report on Form 10-K for the
fiscal year ended November 30, 1981
(File No. 1-6833).
(c) Certificate of Second Amendment of
Second Amended and Restated
Declaration of Trust, incorporated by
reference to the Trust's Report on
Form 8-K filed on January 13, 1983
(File No. 1-6833).
(d) Certificate of Third Amendment of
Second Amended and Restated
Declaration of Trust, incorporated by
reference to Exhibit 3(d) to
Amendment No. 1 to the Trust's
Registration Statement on Form S-2
filed on June 7, 1985 (Reg. No. 2-
97795).
(e) Certificate of Fourth Amendment of
Second Amended and Restated
Declaration of Trust, dated October
17, 1986, incorporated by reference to
the Trust's Annual Report on Form
10-K for the year ended November
30, 1986 (File No. 1-6833).
(f) Certificate of Fifth Amendment of
Second Amended and Restated
Declaration of Trust, dated March 25,
1987, incorporated by reference to
Exhibit 3(f) of the Trust's Annual
Report on Form 10-K for the year
ended November 30, 1987 (File No.
1-6833).
(g) Certificate of Sixth Amendment of
Second Amended and Restated
Declaration of Trust, dated February
10, 1988, incorporated by reference to
Exhibit 4(g) of the Trust's
Registration Statement on Form S-8
filed on May 3, 1988 (Reg. No. 33-
21584).
(h) Certificate of Seventh Amendment of
Second Amended and Restated
Declaration of Trust, dated June 30,
1988, incorporated by reference to
Exhibit 4.8 of the Trust's Registration
Statement on Form S-4 filed on
November 10, 1988 (Reg. No. 33-
25495).
(i) Certificate of Eighth Amendment of
Second Amended and Restated
Declaration of Trust, dated March 27,
1989, incorporated by reference to
Exhibit 3(i) of the Trust's Annual
Report on Form 10-K for the fiscal
year ended November 30, 1989.
(j) Certificate of Ninth Amendment of
Second Amended and Restated
Declaration of Trust, dated March 18,
1993, incorporated by reference to
Exhibit 10(n) of the Trust's
Registration Statement on Form S-3
filed on March 16, 1993, as amended
(Reg. No. 33-59602) (File No. 1-
6833).
(k) Rights Agreement, dated as of June
21, 1989 between the Trust and The
First National Bank of Boston as
Rights Agent, incorporated by
reference to Exhibit 1 to the Trust's
Registration Statement on Form 8-A,
filed June 27, 1989 (File No. 1-6833).
(l) Mortgage Growth Investors Incentive
Stock Option Plan for Key
Employees, incorporated by reference
to the Trust's Definitive Proxy
Statement dated March 15, 1982 (File
No. 1-6833).
(m) Mortgage Growth Investors Stock
Option Plan for Trustees,
incorporated by reference to the
Trust's Definitive Proxy Statement
dated March 15, 1982 (File No. 1-
6833).
(n) Form of Incentive Option Agreement,
incorporated by reference to the
Trust's Definitive Proxy Statement
dated March 15, 1982 (File No. 1-
6833).
(o) Form of Nonqualified Option
Agreement, incorporated by reference
to the Trust's Definitive Proxy
Statement dated March 15, 1982 (File
No. 1-6833).
(p) MGI Properties 1988 Stock Option
and Stock Appreciation Rights Plan,
incorporated by reference to the
Trust's Definitive Proxy Statement
dated February 19, 1988 (File No. 1-
6833).
(q) Form of Incentive Option Agreement,
incorporated by reference to the
Trust's Registration Statement on
Form S-8 filed on May 3, 1988 (Reg.
No. 33-21584).
(r) Form of Nonqualified Option
Agreement, incorporated by reference
to the Trust's Registration Statement
on Form S-8 filed on May 3, 1988
(Reg. No. 33-21584).
(s) Form of Nonqualified Option
(Trustee) Agreement, incorporated by
reference to the Trust's Registration
Statement on Form S-8 filed on May
3, 1988 (Reg. No. 33-21584).
(t) MGI Properties 1994 Stock Option
and Stock Appreciation Rights Plan
for Key Employees, incorporated by
reference to the Registrant's
Definitive Proxy Statement dated
February 16, 1994 (File No. 1-6833).
(u) MGI Properties 1994 Stock Option
Plan for Trustees, incorporated by
reference to the Registrant's
Definitive Proxy Statement dated
February 16, 1994 (File No. 1-6833).
(v) Form of Incentive Option
Agreement.*
(w) Form of Nonqualified Option
Agreement.*
(x) Form of Nonqualified Option
(Trustee) Agreement.*
5 Opinion of Olshan Grundman Frome
& Rosenzweig.*
24.1 Consent of Olshan Grundman Frome
& Rosenzweig (included in their
opinion filed as Exhibit 5).*
24.2 Consent of KPMG Peat Marwick.*
25 Power of Attorney (included on the
Signature Page to this Registration
Statement).*
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(1) To include any prospectus required by
section 10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts
or events arising after the effective date of the 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;
(3) 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 A(1) and
A(2) 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 Registrant
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 the 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.
The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant'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
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 the initial bona fide offering thereof.
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 liabilities (other than the
payment by the Registrant of expenses incurred or paid by
a director, officer or 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 an 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.<PAGE>
<PAGE>
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act, 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, County of
Suffolk, Commonwealth of Massachusetts, on April 29,
1994.
MGI PROPERTIES
By: /s/ W. Pearce Coues
W. Pearce Coues
Chairman of the Board of Trustees and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that
each person whose signature appears below constitutes and
appoints W. Pearce Coues, Robert Ware and Phillip C.
Vitali, and each of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and
perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his
substitute may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by
the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signatures Capacity Date
<S> <C> <C>
/s/ W. Pearce Coues
W. Pearce Coues Chairman of the Board of
Trustees and Chief Executive Officer
(Principal Executive Officer) April 29, 1994
/s/ Phillip C. Vitali
Phillip C. Vitali Executive Vice President and
Treasurer (Principal Financial Officer
and Principal Accounting Officer) April 29 ,1994
/s/ Herbert D. Conant
Herbert D. Conant Trustee April 29 ,1994
/s/ Francis P. Gunning
Francis P. Gunning Trustee April 29 ,1994
/s/ Colin C. Hampton
Colin C. Hampton Trustee April 29 ,1994
/s/ George M. Lovejoy, Jr.
George M. Lovejoy, Jr. Trustee April 29 ,1994
/s/ Rodger P. Nordblom
Rodger P. Nordblom Trustee April 29 ,1994
</TABLE>
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
<S> <C> <C>
4(a) Second Amended and Restated Declaration of
Trust, incorporated by reference to Exhibit 3 of
the Trust's Annual Report on Form 10-K for the
fiscal year ended November 30, 1981 (File No.
1-6833).*
(b) Certificate of First Amendment of Second
Amended and Restated Declaration of Trust,
incorporated by reference to Exhibit 3 of the
Trust's Annual Report on Form 10-K for the
fiscal year ended November 30, 1981 (File No.
1-6833).*
(c) Certificate of Second Amendment of Second
Amended and Restated Declaration of Trust,
incorporated by reference to the Trust's Report
on Form 8-K filed on January 13, 1983 (File
No. 1-6833).*
(d) Certificate of Third Amendment of Second
Amended and Restated Declaration of Trust,
incorporated by reference to Exhibit 3(d) to
Amendment No. 1 to the Trust's Registration
Statement on Form S-2 filed on June 7, 1985.*
(e) Certificate of Fourth Amendment of Second
Amended and Restated Declaration of Trust,
dated October 17, 1986, incorporated by
reference to the Trust's Annual Report on Form
10-K for the year ended November 30, 1986.*
(f) Certificate of Fifth Amendment of Second
Amended and Restated Declaration of Trust,
dated March 25, 1987, incorporated by reference
to Exhibit 3(f) of the Trust's Annual Report on
Form 10-K for the year ended November 30,
1987.*
(g) Certificate of Sixth Amendment of Second
Amended and Restated Declaration of Trust,
dated February 10, 1988, incorporated by
reference to Exhibit 4(g) of the Trust's
Registration Statement on Form S-8 filed on
May 3, 1988.*
(h) Certificate of Seventh Amendment of Second
Amended and Restated Declaration of Trust,
dated June 30, 1988, incorporated by reference
to Exhibit 4.8 of the Trust's Registration
Statement on Form S-4 filed on November 10,*
1988 (Reg. No. 33-25495).
(i) Certificate of Eighth Amendment of Second
Amended and Restated Declaration of Trust,
dated March 27, 1989, incorporated by reference
to Exhibit 3(i) of the Trust's Annual Report on
Form 10-K for the fiscal year ended November
30, 1989.*
(j) Certificate of Ninth Amendment of Second
Amended and Restated Declaration of Trust,
dated March 18, 1993, incorporated by reference
to Exhibit 10(n) of the Trust's Registration
Statement on Form S-3 filed on March 16,
1993, as amended (Reg. No. 33-59602).*
(k) Rights Agreement, dated as of June 21, 1989
between the Trust and The First National Bank
of Boston as Rights Agent, incorporated by
reference to Exhibit 1 to the Trust's Registration
Statement on Form 8-A, filed June 27, 1989.*
(l) Mortgage Growth Investors Incentive Stock
Option Plan for Key Employees, incorporated by
reference to the Trust's Definitive Proxy
Statement dated March 15, 1982 (File No. 1-
6833).*
(m) Mortgage Growth Investors Stock Option Plan
for Trustees, incorporated by reference to the
Trust's Definitive Proxy Statement dated March
15, 1982 (File No. 1-6833).*
(n) Form of Incentive Option Agreement,
incorporated by reference to the Trust's
Definitive Proxy Statement dated March 15,
1982 (File No. 1-6833).*
(o) Form of Nonqualified Option Agreement,
incorporated by reference to the Trust's
Definitive Proxy Statement dated March 15,
1982 (File No. 1-6833).*
(p) MGI Properties 1988 Stock Option and Stock
Appreciation Rights Plan, incorporated by
reference to the Trust's Definitive Proxy
Statement dated February 19, 1988.*
(q) Form of Incentive Option Agreement,
incorporated by reference to the Trust's
Registration Statement on Form S-8 filed on
May 3, 1988.*
(r) Form of Nonqualified Option Agreement,
incorporated by reference to the Trust's
Registration Statement on Form S-8 filed on
May 3, 1988.*
(s) Form of Nonqualified Option (Trustee)
Agreement, incorporated by reference to the
Trust's Registration Statement on Form S-8 filed
on May 3, 1988.*
(t) MGI Properties 1994 Stock Option and Stock
Appreciation Rights Plan for Key Employees,
incorporated by reference to the Registrant's
Definitive Proxy Statement dated February 16,
1994 (File No. 1-6833).*
(u) MGI Properties 1994 Stock Option Plan for
Trustees, incorporated by reference to the
Registrant's Definitive Proxy Statement dated
February 16, 1994 (File No. 1-6833).*
(v) Form of Incentive and Nonqualified Option
Agreement.
(w) Form of nonqualified Option Agreement.
(x) Form of Nonqualified Option (Trustee)
Agreement.
5 Opinion of Olshan Grundman Frome &
Rosenzweig.
24.1 Consent of Olshan Grundman Frome &
Rosenzweig (included in their opinion filed as
Exhibit 5).
24.2 Consent of KPMG Peat Marwick.
25 Power of Attorney (included on the Signature
Page to this Registration Statement).
_________________
* Previously filed.
<PAGE>
<PAGE>
EXHIBIT 10(v)
Form of Incentive Option Agreement
<PAGE>
<PAGE>
STOCK OPTION AND STOCK
APPRECIATION RIGHTS AGREEMENT, made as of this
___ day of _____________, 199_, between MGI Properties
(the "Trust") and [insert name], an employee of the Trust
(the "Optionee").
NOW, THEREFORE, the Trust and the
Optionee, by his acceptance of the grant of these stock
options intended to qualify as incentive stock options under
the Internal Revenue Code of 1986 ("ISO") and related
stock appreciation rights ("SAR"), agree as follows:
1. Grant of ISO and SAR. The Trust hereby
grants to the Optionee as a separate inducement and
agreement in connection with his acting as an employee of
the Trust and not in lieu of any salary or other remuneration
for services, an ISO to purchase all or any part of an
aggregate of _______ Common Shares of the Trust (either
unissued or treasury), $1.00 par value (the "Shares"), and a
maximum of ______ SAR in connection therewith, on the
terms and conditions hereinafter set forth and further subject
to the provisions of the Trust's 1994 Stock Option and
Stock Appreciation Rights Plan for Key Employees (the
"1994 Plan"), which provisions are incorporated by
reference herein.
2. Purchase Price. The exercise price shall be
$______ per Share, the closing price of the Trust's Shares
on the New York Stock Exchange on __________ __,
199__.
3. Term of Option. Notwithstanding anything to
the contrary contained herein or in the 1994 Plan, the ISO
and SAR granted hereunder shall expire no later than 11:59
P.M. on ___________ __, _____ (the "Termination Date").
4. Termination as an Employee.
(a) The ISO and SAR shall be exercisable
according to the terms hereof while the Optionee remains an employee
of the Trust and for three years after termination of employment for
any reason; provided, however, if any ISO is exercised after the
allowed periods set forth in the next sentence, or such
longer periods as may then be in effect under the Internal
Revenue Code of 1986, as amended (the "Code"), then the
ISO shall convert into a non-qualified option. The allowed
periods under current law are as follows: (i) if the Optionee
dies or becomes totally and permanently disabled while an
employee of the Trust or while entitled to exercise an ISO
and SAR hereunder, the legal representative of the Optionee
or the person who acquired the ISO and SAR by bequest or
inheritance may exercise the ISO and SAR for one year
from the date of death or disability, and (ii) if the Optionee
retires or is dismissed other than "for cause" (as such term
is defined under the 1994 Plan), the Optionee may exercise
the ISO and SAR for three (3) months after the date of
termination of his employment. In no event may the ISO
and SAR be exercised after the Termination Date.
(b) Notwithstanding the foregoing, the Optionee
may exercise the ISO and SAR granted hereunder at any time up to two
years after his employment with the Trust ceases for any
reason; however, if the ISO and SAR is exercised after the
periods set forth in the preceding paragraph, or such longer
periods for the valid exercise of an incentive option as may
be established under the Code, such ISO shall no longer be
a valid incentive option but shall convert into a non-
qualified option.
5. Non-Transferability. The ISO and SAR
granted hereunder shall not be assignable by the Optionee,
except by the laws of descent and distribution or pursuant
to a qualified domestic relations order, and may be
exercised during the lifetime of the Optionee only by the
Optionee.
6. Exercise Upon Sale, Merger or Other
Reorganization Transaction. Notwithstanding any other
provision hereof, in the event that the Trust, its
shareholders, or both, enter into a written agreement to
dispose of all or substantially all of the assets or stock of
the Trust by means of a sale, merger, consolidation,
reorganization, liquidation or similar transaction (other than
a reorganization, merger or consolidation effected solely to
change the Trust's name or domicile), the ISO and SAR
issued pursuant hereto shall become immediately
exercisable, whether or not such Options were exercisable
prior to such event, during the period of time beginning
with the date on which the Trust agrees in writing to enter
into such transaction, and ending on the earlier of the date
the ISO and SAR would otherwise have expired or the date
on which the transaction is consummated. The Optionee
may in writing request that, in lieu of exercising the ISO, he
may receive cash equal to the difference between the sale
price or merger consideration per share and the exercise
price multiplied by the number of Shares subject to the ISO
issued hereunder; provided, however, that such cash shall be
paid not earlier than the closing date of the transaction
subject to this Paragraph 6. Upon the consummation of the
transaction, any unexercised ISO and SAR issued hereunder
shall terminate and cease to be effective. In the event that
the Trust's agreement to enter into any such transaction is
terminated, the unexercised portion of any ISO and SAR
shall revert to the status they had before the Trust agreed to
enter into the transaction in question. Any exercise of an
ISO and SAR made before the agreement to enter into the
transaction was terminated shall remain effective after the
termination of the agreement, notwithstanding that the ISO
and SAR may have become exercisable solely by reason of
the Trust entering into the agreement. If any ISO is
exercised pursuant to this Paragraph 6 earlier than provided
for by Paragraph 8(c), then such ISO shall convert into a
non-qualified option.
7. Anti-Dilution. The ISO and SAR granted
pursuant to this Agreement shall continue notwithstanding
any change or exchange of the Shares subject to the 1994
Plan and/or to the ISO and SAR whether through
recapitalization, stock split, split-up, split-off, spin-off,
merger, consolidation, reorganization, stock dividend,
combination of shares or exchange of shares. In the event of
such a change or exchange and with respect to other dilutive
or anti-dilutive events, appropriate adjustments may be made
by the Employees' Committee as to the number of Shares
subject to the ISO and SAR and/or in their per-share
exercise price as shall be equitable to prevent dilution or
enlargement of rights hereunder. Any such adjustment shall
comply with the rules of Section 425(a) of the Code, if
applicable. Adjustment of the number of Shares subject to
the ISO and SAR shall not make the ISO and SAR become
exercisable as to a fractional Share. Subject to the foregoing
limitations, the terms of any such adjustment shall be
determined by the Employees' Committee, and such
determination made in good faith shall be final. In no event
shall any adjustment be made that would render the ISO
other than an "incentive stock option" for purposes of
Section 422A of the Code.
8. Exercise of ISO.
(a) Eligibility. Except as provided in Paragraphs
4 and 6 hereof, the ISO and SAR may not be exercised unless the Optionee
shall have continued to be an employee of the Trust from the date hereof
to the date of the exercise of the ISO and SAR.
(b) Investment. Upon the exercise of the ISO and SAR
(and prior to the issuance of the certificate or certificates for the
Shares in respect of which the ISO and SAR is exercised),
the Optionee shall execute a warranty that he is purchasing
the Shares for investment, in the form attached hereto as
Exhibit A. It is understood, however, that the Trust has filed
or will file registration statements with the Securities and
Exchange Commission registering Shares issuable pursuant
to grants made under the Plan on Form S-8. Accordingly,
the grant made hereby to the Optionee is made from the
Trust's reserve of such Shares. The Trust will use its best
efforts to maintain the effectiveness of such registration
statements, but shall not be obligated to do so.
(c) Time of Exercise. Subject to Section 4, the ISO
and SAR are exercisable at any time and from time to time from and after
the date hereof, and to and including the Termination Date, except that
the ISO and SAR may not be exercised as to fractional Shares, and the
aggregate fair market value (determined at the time of grant) of the stock
with respect to which the ISO is exercisable for the first time by the
Optionee during any calendar year (under all incentive stock option plans
of the Trust or its parent or subsidiary corporations) shall not exceed
$100,000. Any right to acquire Shares under this Agreement or any other
incentive stock option agreement that is not exercisable in any year
because of this Paragraph 8(c) shall become exercisable for the first
time in the first subsequent calendar year in which the exercisability
of such rights does not violate the fair market value limitation of the
previous sentence.
(d) SAR. An SAR shall be exercisable by the Optionee at
any time the Option to which it relates could be exercised, but only upon
a showing of "hardship" by the Optionee and upon consent of the Employees'
Committee; provided, however, that there shall be no hardship requirement
in the event of a Hostile Change in Control (as defined in the 1994 Plan).
The Employees' Committee shall promulgate a standard for determining a
"hardship," said standard to be applied uniformly to all Optionees under
the 1994 Plan.
Upon the exercise of an SAR and surrender of the related Option, the
Trust shall issue Shares having a fair market value equal to, but in
no event in excess of, the appreciation since the date of grant in the
fair market value of the Shares subject to the related Option
(the "Differential").
Notwithstanding the foregoing, and except in the event of a
Hostile Change in Control, the SAR may be exercised only
if prior to the exercise thereof, or, simultaneously with the
exercise thereof, the Optionee or his successor has exercised
or exercises an equivalent number of Options granted
pursuant to the 1994 Plan (whether related or unrelated to
the SAR). After a Hostile Change in Control an Optionee
may exercise all Options in full as SAR, without limitation.
If a Hostile Change in Control which would otherwise result in
the abrogation of the hardship requirement and if the prior or
simultaneous exercise of Option requirement, will, in the
nonreviewable judgment of the Employee's Committee, be
deemed to constitute a "golden parachute" as defined by
Section 280G of the Code ("Section 280G"), the Employees'
Committee shall reduce the number of Shares which may
otherwise be issued as a result of the exercise of the SAR
to the extent necessary to avoid Section 280G treatment as
a "golden parachute." Notwithstanding such an adjustment,
however, the Trust makes no warranty as to the avoidance
of Section 280G treatment.
The exercise of an SAR shall automatically result in the surrender
of the related Option by the Optionee on a share for share basis to
the extent Shares under such related Option are used to calculate
the Differential. Shares issued pursuant to the exercise of an SAR
shall not thereafter be available for granting further Options under
the 1994 Plan. An SAR shall terminate and may no longer be exercised
upon the termination of the related Option other than as a consequence
of the exercise of the SAR.
The SAR may only be exercised in accordance with rules and regulations
adopted by the Employees' Committee from time to time.
9. Method of Exercise. The ISO and SAR shall
be exercisable only by delivery of written notice to the
Secretary of the Trust at the Trust's executive offices
(presently 30 Rowes Wharf, Boston, Massachusetts 02110)
prior to the expiration of the ISO and SAR as specified in
Paragraphs 3 and 4 hereof. Such notice shall state the
election to exercise the ISO and SAR and the number of
Shares in respect of which it is being exercised, and shall be
signed by the person or persons so exercising such ISO and
SAR. The date the Trust receives written notice shall be the
exercise date. In the event the ISO and SAR shall be
exercised pursuant to the provisions of Paragraph 4 hereof
by a person or persons other than the Optionee, such notice
shall be accompanied by proof satisfactory to the Trust of
the right of such person or persons to exercise the ISO and
SAR. Upon receipt of notice, payment in full of the
purchase price for the Shares as to which the ISO is being
exercised, and an executed warranty in the form attached
hereto as Exhibit A, the Trust shall issue and deliver a
certificate or certificates representing such number of
Shares. Upon receipt of notice of exercise of SAR, an
executed warranty in the form attached hereto as Exhibit
"A" and either a showing of "hardship" satisfactory to the
Employees' Committee or the occurrence of a Hostile
Change in Control, the Employees' Committee shall,
without transfer or issue tax to the Optionee or other person
entitled to exercise the SAR, deliver to the person exercising
such SAR certificates for the Trust's Common Shares which
are issuable upon exercise of the SAR.
10. Payment. The purchase price shall be
payable in United States dollars upon the exercise of the
ISO and shall be paid in cash, by certified check or by bank
draft. In lieu of cash, certified check or bank draft, the
purchase price may be satisfied by (x) the delivery of
Shares of the Trust (in proper form for transfer and
accompanied by all requisite stock transfer tax stamps or
cash in lieu thereof) owned by the Optionee for at least the
holding periods required under Section 425 of the Code and
having a fair market value equal to the exercise price
applicable to that portion of the ISO being exercised, the
fair market value of the Shares so delivered to be
determined in accordance with Article VI of the 1994 Plan
or as may be required in order to comply with or to
conform to the requirements of any applicable laws or
regulations, or (y) through the written election of the
Optionee to have Shares withheld from the Shares otherwise
to be received upon the exercise of an Option and having a
fair market value equal to the cash exercise price applicable
to the portion of the ISO being exercised by the withholding
of such Shares, the fair market value of the Shares so
withheld to be determined in accordance with Article VI of
the 1994 Plan or as may be required in order to comply
with or to conform to the requirements of any applicable
laws or regulations.
11. Notices. Any notice to be given to the Trust
shall be addressed to the Secretary of the Trust at the
Trust's office referred to in Paragraph 9 above, and any
notice given to the Optionee shall be addressed to the
Optionee at the address then appearing on the personnel
records of the Trust, or at such other address as either party
may hereafter designate in writing to the other. Except for
purposes of determining the exercise date, any such notice
shall be deemed to have been duly given if and when
enclosed in a properly sealed envelope, addressed as
aforesaid and deposited, first class postage prepaid, in the
United States mails.
12. Miscellaneous.
(a) The Optionee acknowledges and agrees that the
ISO and SAR are subject to the terms and conditions of the applicable
Plan and the Code provisions pursuant to which each such Plan was
adopted.
(b) The Trust is a Massachusetts Trust and all
persons dealing with the Trust must look solely to the property of the
Trust for the enforcement of any claims against the Trust. Neither the
Trustees, officers, agents nor shareholders of this Trust assume any
personal liability in connection with its business or assume any
personal liability for obligations entered into on its behalf.
(c) All capitalized terms shall have the meanings
ascribed thereto in the 1994 Plan, unless the context requires otherwise
or such terms are otherwise defined herein.
IN WITNESS WHEREOF, the Trust has caused
this Stock Option Agreement to be duly executed by its
officers thereunto duly authorized.
MGI PROPERTIES
By:_______________
(Seal)
ACCEPTED:
________________________________
Optionee
<PAGE>
<PAGE>
Exhibit A
PURCHASE FOR INVESTMENT
I, [insert name of optionee], in connection with
exercising options to purchase _________ shares of MGI
Properties, do hereby represent and warrant that I am
purchasing the shares for my own account for investment
only and not with a view to the resale or distribution
thereof. I will not resell or distribute the shares acquired in
connection herewith unless (1) a Registration Statement with
respect to these shares is on file with the Securities and
Exchange Commission, has become effective and is current,
or (2) a specific exemption from the registration
requirements is available to me. If I sell the shares acquired
in connection herewith under (2), I will first obtain a
favorable written opinion from counsel approved by MGI
Properties that such exemption is available to me.
Date:
________________________
[insert name of optionee]
<PAGE>
<PAGE>
EXHIBIT 10(w)
Form of Nonqualified Option Agreement
<PAGE>
<PAGE>
STOCK OPTION AND STOCK APPRECIATION RIGHTS AGREEMENT,
made as of this ___ day of _____________, 199_, between MGI Properties
(the "Trust") and [insert name], an employee of the Trust (the "Optionee").
NOW, THEREFORE, the Trust and the
Optionee, by his acceptance of the grant of these stock
options ("SO") and related stock appreciation rights
("SAR"), agree as follows:
1. Grant of SO and SAR. The Trust hereby
grants to the Optionee as a separate inducement and
agreement in connection with his acting as an employee of
the Trust and not in lieu of any salary or other remuneration
for services, an SO to purchase all or any part of an
aggregate of _______ Common Shares of the Trust (either
unissued or treasury), $1.00 par value (the "Shares"), and a
maximum of ________ SAR in connection therewith, on the
terms and conditions hereinafter set forth and further subject
to the provisions of the Trust's 1994 Stock Option and
Stock Appreciation Rights Plan for Key Employees (the
"1994 Plan"), which provisions are incorporated by
reference herein.
2. Purchase Price. The exercise price shall be
$______ per Share, the closing price of the Trust's Shares
on the New York Stock Exchange on __________ __,
199__.
3. Term of Option. Notwithstanding anything to
the contrary contained herein or in the 1994 Plan, the SO
and SAR granted hereunder shall expire no later than 11:59
P.M. on ___________ __, _____ (the "Termination Date").
4. Termination as an Employee. The SO and
SAR shall be exercisable according to the terms hereof
while the Optionee remains an employee of the Trust and
for two years after termination of employment for any
reason. In no event may the SO and SAR be exercised after
the Termination Date.
5. Non-Transferability. The SO and SAR granted
hereunder shall not be assignable by the Optionee, except by
the laws of descent and distribution or pursuant to a
qualified domestic relations order, and may be exercised
during the lifetime of the Optionee only by the Optionee.
6. Exercise Upon Sale, Merger or Other
Reorganization Transaction. Notwithstanding any other
provision hereof, in the event that the Trust, its
shareholders, or both, enter into a written agreement to
dispose of all or substantially all of the assets or stock of
the Trust by means of a sale, merger, consolidation,
reorganization, liquidation or similar transaction (other than
a reorganization, merger or consolidation effected solely to
change the Trust's name or domicile), the SO and SAR
issued pursuant hereto shall become immediately
exercisable, whether or not such Options were exercisable
prior to such event, during the period of time beginning
with the date on which the Trust agrees in writing to enter
into such transaction, and ending on the earlier of the date
the SO and SAR would otherwise have expired or the date
on which the transaction is consummated. The Optionee
may in writing request that, in lieu of exercising the SO, he
may receive cash equal to the difference between the sale
price or merger consideration per share and the exercise
price multiplied by the number of Shares subject to the SO
issued hereunder; provided, however, that such cash shall be
paid not earlier than the closing date of the transaction
subject to this Paragraph 6. Upon the consummation of the
transaction, any unexercised SO and SAR issued hereunder
shall terminate and cease to be effective. In the event that
the Trust's agreement to enter into any such transaction is
terminated, the unexercised portion of any SO and SAR
shall revert to the status they had before the Trust agreed to
enter into the transaction in question. Any exercise of an SO
and SAR made before the agreement to enter into the
transaction was terminated shall remain effective after the
termination of the agreement, notwithstanding that the SO
and SAR may have become exercisable solely by reason of
the Trust entering into the agreement.
7. Anti-Dilution. The SO and SAR granted
pursuant to this Agreement shall continue notwithstanding
any change or exchange of the Shares subject to the 1994
Plan and/or to the SO and SAR whether through
recapitalization, stock split, split-up, split-off, spin-off,
merger, consolidation, reorganization, stock dividend,
combination of shares or exchange of shares. In the event of
such a change or exchange and with respect to other dilutive
or anti-dilutive events, appropriate adjustments may be made
by the Employees' Committee as to the number of Shares
subject to the SO and SAR and/or in their per-share exercise
price as shall be equitable to prevent dilution or enlargement
of rights hereunder. Adjustment of the number of Shares
subject to the SO and SAR shall not make the SO and SAR
become exercisable as to a fractional Share. Subject to the
foregoing limitations, the terms of any such adjustment shall
be determined by the Employees' Committee, and such
determination made in good faith shall be final.
8. Exercise of SO.
(a) Eligibility. Except as provided in Paragraphs
4 and 6 hereof, the SO and SAR may not be exercised unless the Optionee
shall have continued to be an employee of the Trust from the date
hereof to the date of the exercise of the SO and SAR.
(b) Investment. Upon the exercise of the SO and
SAR (and prior to the issuance of the certificate or certificates for
the Shares in respect of which the SO and SAR is exercised),
the Optionee shall execute a warranty that he is purchasing
the Shares for investment, in the form attached hereto as
Exhibit A. It is understood, however, that the Trust has filed
or will file registration statements with the Securities and
Exchange Commission registering Shares issuable pursuant
to grants made under the Plan on Form S-8. Accordingly,
the grant made hereby to the Optionee is made from the
Trust's reserve of such Shares. The Trust will use its best
efforts to maintain the effectiveness of such registration
statements, but shall not be obligated to do so.
(c) Time of Exercise. Subject to Section 4, the SO
and SAR are exercisable at any time and from time to time from and after
the date hereof, and to and including the Termination Date, except that
the SO and SAR may not be exercised as to fractional Shares.
(d) SAR. An SAR shall be exercisable by the Optionee
at any time the Option to which it relates could be exercised, but only
upon a showing of "hardship" by the Optionee and upon consent of the
Employees' Committee; provided, however, that there shall be no hardship
requirement in the event of a Hostile Change in Control (as defined
in the 1994 Plan). The Employees' Committee shall promulgate a
standard for determining a "hardship," said standard to be applied
uniformly to all Optionees under the 1994 Plan.
Upon the exercise of an SAR and surrender of the related Option, the
Trust shall issue Shares having a fair market value equal to, but in
no event in excess of, the appreciation since the date of grant in the
fair market value of the Shares subject to the related Option (the
"Differential").
Notwithstanding the foregoing, and except in the event of a
Hostile Change in Control, the SAR may be exercised only
if prior to the exercise thereof, or, simultaneously with the
exercise thereof, the Optionee or his successor has exercised
or exercises an equivalent number of Options granted
pursuant to the 1994 Plan (whether related or unrelated to
the SAR). After a Hostile Change in Control an Optionee
may exercise all Options in full as SAR, without limitation.
If a Hostile Change in Control which would otherwise result in
the abrogation of the hardship requirement and if the prior or
simultaneous exercise of Option requirement will, in the nonreviewable
judgment of the Employee's Committee, be deemed to constitute a "golden
parachute" as defined by Section 280G of the Code ("Section 280G"), the
Employees' Committee shall reduce the number of Shares which may
otherwise be issued as a result of the exercise of the SAR to the
extent necessary to avoid Section 280G treatment as a "golden parachute."
Notwithstanding such an adjustment, however, the Trust makes no
warranty as to the avoidance of Section 280G treatment.
The exercise of an SAR shall automatically result in the surrender
of the related Option by the Optionee on a share for share basis to
the extent Shares under such related Option are used to calculate
the Differential. Shares issued pursuant to the exercise of an SAR
shall not thereafter be available for granting further Options under
the 1994 Plan. An SAR shall terminate and may no longer be exercised
upon the termination of the related Option other than as a consequence
of the exercise of the SAR.
The SAR may only be exercised in accordance with rules and regulations
adopted by the Employees' Committee from time to time.
9. Method of Exercise. The SO and SAR shall
be exercisable only by delivery of written notice to the
Secretary of the Trust at the Trust's executive offices
(presently 30 Rowes Wharf, Boston, Massachusetts 02110)
prior to the expiration of the SO and SAR as specified in
Paragraphs 3 and 4 hereof. Such notice shall state the
election to exercise the SO and SAR and the number of
Shares in respect of which it is being exercised, and shall be
signed by the person or persons so exercising such SO and
SAR. The date the Trust receives written notice shall be the
exercise date. In the event the SO and SAR shall be
exercised pursuant to the provisions of Paragraph 4 hereof
by a person or persons other than the Optionee, such notice
shall be accompanied by proof satisfactory to the Trust of
the right of such person or persons to exercise the SO and
SAR. Upon receipt of notice, payment in full of the
purchase price for the Shares as to which the SO is being
exercised, and an executed warranty in the form attached
hereto as Exhibit A, the Trust shall issue and deliver a
certificate or certificates representing such number of
Shares. Upon receipt of notice of exercise of SAR, an
executed warranty in the form attached hereto as Exhibit
"A" and either a showing of "hardship" satisfactory to the
Employees' Committee or the occurrence of a Hostile
Change in Control, the Employees' Committee shall,
without transfer or issue tax to the Optionee or other person
entitled to exercise the SAR, deliver to the person exercising
such SAR certificates for the Trust's Common Shares which
are issuable upon exercise of the SAR.
10. Payment. The purchase price shall be
payable in United States dollars upon the exercise of the SO
and shall be paid in cash, by certified check or by bank
draft. In lieu of cash, certified check or bank draft, the
purchase price may be satisfied by (x) the delivery of
Shares of the Trust (in proper form for transfer and
accompanied by all requisite stock transfer tax stamps or
cash in lieu thereof) owned by the Optionee for at least six
months and having a fair market value equal to the exercise
price applicable to that portion of the SO being exercised,
the fair market value of the Shares so delivered to be
determined in accordance with Article VI of the 1994 Plan
or as may be required in order to comply with or to
conform to the requirements of any applicable laws or
regulations, or (y) through the written election of the
Optionee to have Shares withheld from the Shares otherwise
to be received upon the exercise of an Option and having a
fair market value equal to the cash exercise price applicable
to the portion of the SO being exercised by the withholding
of such Shares, the fair market value of the Shares so
withheld to be determined in accordance with Article VI of
the 1994 Plan or as may be required in order to comply
with or to conform to the requirements of any applicable
laws or regulations.
11. Notices. Any notice to be given to the Trust
shall be addressed to the Secretary of the Trust at the
Trust's office referred to in Paragraph 9 above, and any
notice given to the Optionee shall be addressed to the
Optionee at the address then appearing on the personnel
records of the Trust, or at such other address as either party
may hereafter designate in writing to the other. Except for
purposes of determining the exercise date, any such notice
shall be deemed to have been duly given if and when
enclosed in a properly sealed envelope, addressed as
aforesaid and deposited, first class postage prepaid, in the
United States mails.
12. Miscellaneous.
(a) The Optionee acknowledges and agrees that the
SO and SAR are subject to the terms and conditions of the applicable Plan
and the Code provisions pursuant to which each such Plan was adopted.
(b) The Trust is a Massachusetts Trust and all
persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust. Neither
the Trustees, officers, agents nor shareholders of this Trust assume
any personal liability in connection with its business or assume any
personal liability for obligations entered into on its behalf.
(c) All capitalized terms shall have the meanings
ascribed thereto in the 1994 Plan, unless the context requires otherwise
or such terms are otherwise defined herein.
IN WITNESS WHEREOF, the Trust has caused
this Stock Option Agreement to be duly executed by its
officers thereunto duly authorized.
MGI PROPERTIES
By:_______________
(Seal)
ACCEPTED:
________________________________
Optionee
<PAGE>
<PAGE>
Exhibit A
PURCHASE FOR INVESTMENT
I, [insert name of optionee], in connection with
exercising options to purchase _________ shares of MGI
Properties, do hereby represent and warrant that I am
purchasing the shares for my own account for investment
only and not with a view to the resale or distribution
thereof. I will not resell or distribute the shares acquired in
connection herewith unless (1) a Registration Statement with
respect to these shares is on file with the Securities and
Exchange Commission, has become effective and is current,
or (2) a specific exemption from the registration
requirements is available to me. If I sell the shares acquired
in connection herewith under (2), I will first obtain a
favorable written opinion from counsel approved by MGI
Properties that such exemption is available to me.
Date:
[insert name of optionee]
<PAGE>
<PAGE>
EXHIBIT 10(x)
Form of Nonqualified Option (Trustee) Agreement
<PAGE>
<PAGE>
TRUSTEE OPTION AGREEMENT
STOCK OPTION AGREEMENT, made as of
the ____ day of _____ 199_, between MGI Properties (the
"Trust") and [insert name of trustee], a Trustee of the Trust
(the "Optionee").
NOW, THEREFORE, the Trust and the
Optionee, by his acceptance of the grant of this non-
qualified stock option ("SO"), agree as follows:
1. Grant of Option. The Trust hereby grants
to the Optionee as a separate inducement and agreement in connection
with his acting as a Trustee of the Trust and not in lieu of any
compensation or other remuneration for services, and on the terms
and conditions hereinafter set forth and subject to the provisions
of the Trust's 1994 Stock Option Plan for Trustees (the "Plan"), which
provisions are hereby incorporated by reference herein, an SO to
purchase all or any part of an aggregate of _________ Common Shares of
the Trust (either unissued or treasury), $1.00 par value (the "Shares").
The Optionee acknowledges and understands that the Plan is not intended
to meet the requirements for an employee benefit plan under Rule 16b-3
of the Securities Exchange Act of 1934, as amended ("Rule 16b-3"), and,
accordingly, the SO granted under the Plan shall not be entitled to the
treatment accorded option grants under Rule 16b-3 plans.
2. Purchase Price. The exercise price shall be
$______ per share, the closing price of the Trust's Shares on the New
York Stock Exchange on ______ __, 199_.
3. Term of Option. Notwithstanding anything to the
contrary contained herein or in the Plan, the SO granted hereunder shall
expire no later than 11:59 P.M. on ______ __, 199_ (the "Termination Date").
4. Termination as a Trustee. The SO shall be
exercisable according to the terms hereof while the Optionee remains
a Trustee of the Trust and for two (2) years after he ceases to be a
Trustee of the Trust for any reason, but in no event may the SO be
exercised after the Termination Date.
5. Non-Transferability. The SO granted hereunder shall
not be assignable by the Optionee, except by the laws of descent or
distribution or pursuant to a qualified domestic relations order, and
may be exercised during the lifetime of the Optionee only by the Optionee.
6. Exercise Upon Sale, Merger or Other Reorganization
Transaction. Upon the dissolution or liquidation of the Trust, or upon a
reorganization, merger or consolidation of the Trust with one or more
corporations or trusts as a result of which the Trust is not the
surviving entity, or upon a sale of substantially all of the property
or more than 80% of the then outstanding Shares of the Trust to another
corporation or trust, the Trust shall give to the Optionee at the time of
adoption of the plan for liquidation, dissolution, merger or sale either
(1) a reasonable time thereafter within which to exercise the SO prior
to the effective date of such liquidation or dissolution, merger or sale,
or (2) the right to exercise the SO as to an equivalent number of shares of
stock of the entity succeeding the Trust or acquiring its business by
reason of such liquidation, dissolution, merger, consolidation or
reorganization.
7. Anti-Dilution. If the outstanding Shares are
increased, decreased, changed into or exchanged into a different number
or kind of Shares or securities of the Trust through reorganization,
recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, an appropriate and
proportionate adjustment shall be made to the maximum number and kind
of Shares as to which options may be granted under the Plan. A corresponding
adjustment changing the number or kind of Shares allocated to the
unexercised SO or portion thereof, which shall have been granted prior
to any such change, shall likewise be made. Any such adjustment in the
outstanding SO shall be made without change in the purchase price
applicable to the unexercised portion of the SO with a corresponding
adjustment in the exercise price of the Shares covered by the SO.
Notwithstanding the foregoing, there shall be no adjustment for the
issuance of Shares on conversion of notes, preferred stock or exercise
of warrants or Shares issued by the Board of Trustees for such
consideration as the Board of Trustees deems appropriate.
8. Exercise of Option.
(a) Eligibility. Except as provided in Paragraphs 4
and 6 hereof, the SO may not be exercised unless the Optionee shall have
continued to be a Trustee of the Trust from the date hereof to the date
of the exercise of the SO.
(b) Investment. Upon the exercise of the SO (and prior
to the issuance of the certificate or certificates for the Shares in
respect of which the SO is exercised), the Optionee shall execute a
warranty that he is purchasing the Shares for investment, in the form
attached hereto as Exhibit A. It is understood, however, that the Trust
has filed a Registration Statement with the Securities and Exchange
Commission registering the Shares issuable pursuant to grants made under
the Plan on Form S-8, which Registration Statement became effective in
1994. Accordingly, the grant made hereby to the Optionee is made from
the Trust's reserve of such Shares. The Trust will use its best efforts
to maintain the effectiveness of such registration statement, but shall not
be obligated to do so.
(c) Time of Exercise. Subject to Paragraphs 4 and 6,
the SO is exercisable at any time and from time to time from and after
the date hereof, and to and including the Termination Date, except that
the SO may not be exercised as to fractional Shares.
9. Method of Exercise. The SO shall be exercisable
only by delivery of written notice to the Secretary of the Trust at the
Trust's executive offices (presently 30 Rowes Wharf, Boston, Massachusetts
02110) prior to the expiration of the SO as specified in Paragraphs 3
and 4 hereof. Such notice shall state the election to exercise the SO
and the number of shares in respect of which it is being exercised, and
shall be signed by the person or persons so exercising such SO. The date
the Trust receives written notice shall be the exercise date. In the event
the SO shall be exercised pursuant to the provisions of Paragraph 4
hereof by a person or persons other than the Optionee, such notice shall
be accompanied by proof satisfactory to the Trust of the right of such
person or persons to exercise the SO. Upon receipt of notice, payment in
full of the purchase price for the Shares as to which the SO is being
exercised, and the executed warranty in the form attached hereto as
Exhibit A, the Trust shall issue and deliver a certificate or certificates
representing such number of Shares.
10. Payment. The purchase price shall be payable
in United States dollars upon the exercise of an SO and shall be paid
in cash, by certified check or by bank draft. In lieu of cash, certified
check or bank draft, payment of the purchase price may be made (i) by
delivering to the Trust, Shares of the Trust (in proper form for
transfer and accompanied by all requisite stock transfer tax stamps
or cash in lieu thereof) owned by the Optionee for at least six months
and having a fair market value equal to the cash exercise price
applicable to that portion of the SO being exercised by the delivery of
such Shares, the fair market value of the Shares so delivered to be
determined in accordance with Article VI of the Plan or as may be
required in order to comply with or to conform to the requirements of
any applicable laws or regulations; or (ii) through the written election
of the Optionee to have Shares withheld from the Shares otherwise to be
received upon the exercise of an SO and having a fair market value equal
to the cash exercise price applicable to the portion of the SO being
exercised by the withholding of such Shares, the fair market value of
the Shares so withheld to be determined in accordance with Article VI
of the Plan or as may be required in order to comply with or to
conform to the requirements of any applicable laws or regulations.
11. Notices. Any notice to be given to the Trust shall
be addressed to the Secretary of the Trust at the Trust's office referred
to in Paragraph 9 above, and any notice given to the Optionee shall be
addressed to the Optionee at the address then appearing on the personnel
records of the Trust, or at such other address as either party may
hereafter designate in writing to the other. Except for purposes of
determining the exercise date, any such notice shall be deemed to have
been duly given if and when enclosed in a properly sealed envelope,
addressed as aforesaid and deposited, first class postage prepaid,
in the United States mails.
12. Miscellaneous.
(a) The Optionee acknowledges and agrees that this SO
is subject to the terms and conditions of the Plan.
(b) The Trust is a Massachusetts Trust and all persons
dealing with the Trust must look solely to the property of the Trust for the
enforcement of any claims against the Trust. Neither the Trustees, officers,
agents nor shareholders of this Trust assume any personal liability in
connection with its business or assume any personal liability for
obligations entered into on its behalf.
(c) All capitalized terms shall have the meanings
ascribed thereto in the Plan, unless the context requires otherwise or
such terms are otherwise defined herein.
IN WITNESS WHEREOF, the Trust has caused
this Stock Option Agreement to be duly executed by its
officers thereunto duly authorized.
MGI PROPERTIES
_______________
Name: (Seal)
Title:
ACCEPTED:
________________________________
[Insert Name of trustee]
<PAGE>
<PAGE>
Exhibit A
PURCHASE FOR INVESTMENT
I, [insert name of trustee], in connection with
exercising options to purchase ______________ shares of
MGI Properties, do hereby represent and warrant that I am
purchasing the shares for my own account for investment
only and not with a view to the resale or distribution
thereof. I will not resell or distribute the shares acquired in
connection herewith unless (1) a Registration Statement with
respect to these shares is on file with the Securities and
Exchange Commission, has become effective and is current,
or (2) a specific exemption from the registration
requirements is available to me. If I sell the shares acquired
in connection herewith under (2), I will first obtain a
favorable written opinion from counsel approved by MGI
Properties that such exemption is available to me.
Date:
________________________________
[insert name of trustee]
<PAGE>
<PAGE>
EXHIBIT 5
Opinion of Olshan Grundman Frome & Rosenzweig
<PAGE>
<PAGE>
Olshan Grundman Frome & Rosenzweig
505 Park Avenue
New York, NY 10022
April 29, 1994
MGI Properties
30 Rowes Wharf
Boston, Massachusetts 02110
Re: MGI Properties (the "Company")
Ladies and Gentlemen:
You have requested our opinion in connection with the registration
statement on Form S-8 (the "Registration Statement") being filed by
you with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended (the "Act"),
582,100 common shares, par value $1.00 per share (the "Shares"), to
be offered pursuant to the Company's 1994 Stock Option and Stock
Appreciation Rights Plan for Key Employees, 1994 Stock Option Plan
for Trustees and the award of Shares to key employees of the Company
(collectively, the "Plans").
On the basis of such investigation as we have deemed necessary, we are
of the opinion that (i) the Shares (other than the Shares awarded to key
employees) will be, when issued upon due exercise of options granted under
the Plans in accordance with the provisions of the Plans and in accordance
with stock option agreements entered into in accordance with the provisions
of the Plans (including payment of the option exercise price provided for
therein), legally issued, fully paid and non-assessable and (ii) the Shares
awarded to key employees are legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not hereby admit
that we come within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
OLSHAN GRUNDMAN FROME & ROSENZWEIG
<PAGE>
<PAGE>
EXHIBIT 24.2
Consent of KPMG Peat Marwick
<PAGE>
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Trustees
MGI Properties:
We consent to incorporation by reference in the registration statement
on Form S-8 of MGI Properties of our report dated January 6, 1994,
relating to the consolidated balance sheets of MGI Properties as of
November 30, 1993 and 1992 and the related consolidated statements of
earnings, shareholders' equity and cash flows and related schedules
for each of the years in the three-year period ended November 30, 1993,
which report appears in the November 30, 1993 annual report on Form 10-K
of MGI Properties.
KPMG PEAT MARWICK
Boston, Massachusetts
April 29, 1994
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