As filed with the Securities and Exchange Commission on July 2, 1998.
Registration No. 333-
- --------------------------------------------------------------------------------
S E C U R I T I E S A N D E X C H A N G E C O M M I S S I O N
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BERKSHIRE REALTY COMPANY, INC.
------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 04-3086485
- ------------------------------- --------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
470 Atlantic Avenue, Boston, MA 02210
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
BERKSHIRE REALTY COMPANY, INC. AMENDED AND RESTATED STOCK OPTION PLAN
- --------------------------------------------------------------------------------
(Full title of the Plan)
Scott D. Spelfogel
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, Massachusetts 02210
---------------------------------------
(Name and address of agent for service)
(617) 423-2233
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ---------- ---------- -------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, 1,800,000 shares $10.875(1) $19,575,000(1) $5,775
$.01 par value
per share
</TABLE>
- ----------------------------------
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common
Stock as reported on the New York Stock Exchange on June 26, 1998 in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933,
as amended.
<PAGE>
Statement of Incorporation by Reference
Except as otherwise set forth below, this Registration Statement on
Form S-8 incorporates by reference the contents of the Registration Statement on
Form S-8, File No. 333-03997, relating to the Registrant's 1996 Stock Option
Plan (the "Initial Registration Statement").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3 of the Initial Registration Statement is amended and restated in
its entirety as follows:
Item 3. Incorporation of Certain Documents by Reference.
Berkshire Realty Company, Inc. (the "Registrant") is subject to the
informational and reporting requirements of Sections 13(a), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission. The following documents, which are on
file with the Securities and Exchange Commission, are incorporated in this
Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act") that contains, either directly or by
incorporation by reference, audited financial statements for the
Registrant's latest fiscal year for which such statements have been
filed.
(b) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the document referred to in (a) above.
(c) The description of the Common Stock, $.01 par value per
share ("Common Stock"), contained in a registration statement filed
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 9 of the Initial Registration Statement is amended and restated in
its entirety as follows:
Item 9. Undertakings.
1. The 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:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) 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
<PAGE>
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission 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 that time shall be
deemed to be the initial bona fide offering thereof; and
(c) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The 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 in the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer 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 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>
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 25th
day of June, 1998.
BERKSHIRE REALTY COMPANY, INC.
By: /s/ David F. Marshall
----------------------------------
David F. Marshall
President, Chief Executive Officer
and Director of Berkshire Realty
Company, Inc.
POWER OF ATTORNEY
We, the undersigned officers and directors of Berkshire Realty Company,
Inc. hereby severally constitute David F. Marshall and Marianne Pritchard, 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 pre-effective and post-effective 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 Berkshire Realty
Company, Inc. to comply with the provisions of the Securities Act 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 all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signatures Capacity Date
---------- -------- ----
<S> <C> <C>
/s/ Douglas Krupp Chairman of the Board June 26, 1998
- ----------------------- and Director of Berkshire
Douglas Krupp Realty Company, Inc.
/s/ David F. Marshall President, Chief Executive June 26, 1998
- ----------------------- Officer and Director of
David F. Marshall Berkshire Realty Company,
Inc. (Principal Executive
Officer)
/s/ Marianne Pritchard Executive Vice President and June 26, 1998
- ----------------------- Chief Financial Officer of
Marianne Pritchard Berkshire Realty Company, Inc.
(Principal Financial Officer)
/s/ Kenneth J. Richard Senior Vice President of June 26, 1998
- ----------------------- Finance and Accounting and
Kenneth J. Richard Chief Accounting Officer
(Principal Accounting Officer)
/s/ Terrance R. Ahern Director of Berkshire Realty June 25, 1998
- ----------------------- Company, Inc.
Terrance R. Ahern
Director of Berkshire Realty June __, 1998
- ----------------------- Company, Inc.
David M. deWilde
/s/ J. Paul Finnegan Director of Berkshire Realty June 26, 1998
- ----------------------- Company, Inc.
J. Paul Finnegan
/s/ Charles N. Goldberg Director of Berkshire Realty June 26, 1998
- ----------------------- Company, Inc.
Charles N. Goldberg
Director of Berkshire Realty June __, 1998
- ----------------------- Company, Inc.
Paul D. Kazilionis
/s/ E. Robert Roskind
- ----------------------- Director of Berkshire Realty June 26, 1998
E. Robert Roskind Company, Inc.
/s/ Arthur P. Solomon
- ----------------------- Director of Berkshire Realty June 26, 1998
Arthur P. Solomon Company, Inc.
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- -------
4.1 Restated Certificate of Incorporation, as
amended(1)
4.2 Bylaws, as amended(2)
5 Opinion of Hale and Dorr LLP
10 Berkshire Realty Company, Inc.
Amended and Restated Stock Option Plan
23.1 Consent of Coopers & Lybrand L.L.P.,
Independent Accountants
23.2 Consent of Hale and Dorr LLP
(included in Exhibit 5).
24 Power of Attorney (included in the signature
pages of this Registration Statement).
- ----------------------
1 Incorporated herein by reference to Exhibit 3.3 filed with the
Registrant's Registration Statement on Form S-4 (File No. 33-37592),
Exhibit 3.11 filed with the Registrant's Post-Effective Amendment No. 1
to the Registration Statement on Form S-4 (File No. 33-37592) and
Exhibit 4.1 filed with the Registrant's Amendment No. 1 to Current
Report on Form 8-K/A, dated October 14, 1997.
2 Incorporated herein by reference to Exhibit 3(ii) filed with the
Registrant's Amendment No. 1 to Current Report on Form 8-K/A, dated
October 14, 1997.
Hale and Dorr LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 [bullet] Fax 617-526-5000
Exhibit 5
July 2, 1998
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, Massachusetts 02210
Re: Amended and Restated Stock Option Plan
Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed on July 2, 1998 with the
Securities and Exchange Commission relating to 1,800,000 shares of the Common
Stock, $.01 par value per share ("Shares"), of Berkshire Realty Company, Inc., a
Delaware corporation (the "Company"), issuable under the Company's Amended and
Restated Stock Option Plan (the "Plan").
We have examined the Restated Certificate of Incorporation, as amended,
and the By-laws, as amended, of the Company and originals, or copies certified
to our satisfaction, of all pertinent records of the meetings of the directors
and stockholders of the Company, the Registration Statement and such other
documents relating to the Company as we have deemed material for the purposes of
this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as copies and the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Company has duly authorized for issuance the Shares, and the Shares, when issued
and paid for in accordance with the terms of the Plan and at a price per share
in excess of the par value per share for such Shares, will be legally issued,
fully paid and nonassessable.
Washington, D.C. Boston, MA London, UK*
- --------------------------------------------------------------------------------
HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
<PAGE>
Berkshire Realty Company, Inc.
July 2, 1998
Page 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions, and we disclaim any obligation to advise you
of any change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
Very truly yours,
/s/ Hale and Dorr LLP
---------------------
HALE AND DORR LLP
Exhibit 10
BERKSHIRE REALTY COMPANY, INC.
AMENDED AND RESTATED STOCK OPTION PLAN
FEBRUARY 12, 1998
--------------------------------------
1. Purpose
The purpose of this Berkshire Realty Company, Inc. Amended and Restated
Stock Option Plan (the "Plan") is to advance the interests of Berkshire Realty
Company, Inc., a Delaware corporation ("Berkshire Realty"); its Operating
Partnership, BRI OP Limited Partnership, a Delaware limited partnership; and
their respective subsidiaries (hereinafter collectively "BRI" or the "Company"),
by stimulating the efforts of key employees and consultants on behalf of BRI,
heightening the desire of key employees to continue in employment with BRI,
assisting BRI in competing effectively with other enterprises for the service of
new employees and consultants necessary for the continued improvement of the
Company's operations, and to attract and retain the best available personnel for
service as directors of Berkshire Realty. This Plan permits the grant of
Incentive Stock Options as defined in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"), as well as Options which are not Incentive
Stock Options pursuant to Code Section 422.
2. Definitions
(a) "Board of Directors" means the Board of Directors of Berkshire
Realty.
(b) "Committee" means the Compensation Committee appointed by the
Board of Directors from amongst its members.
(c) "Disablement" means a physical condition arising from an illness
or injury which renders an individual incapable of performing
work. The determination of the Committee as to an individual's
Disablement shall be made in accordance with the standards and
procedures of the Company's then-current Long Term Disability Plan
and shall be conclusive on all parties.
(d) "Exchange Act" means the Securities Act of 1934, as amended.
(e) "Fair Market Value" for a particular day means the closing price
of Berkshire Realty stock on the immediately prior trading day.
(f) "Incentive Stock Option" means a right to purchase Shares from the
Company that is granted under the Plan and that is intended to
meet the requirements of Section 422 of the Code or any successor
provision thereto.
(g) "Non-Employee Director" shall have the meaning as defined by Rule
16b-3.
<PAGE>
(h) "Non-Qualified Option" means a right to purchase Shares from the
Company that is granted under the Plan and that is not intended to
be an Incentive Stock Option.
(i) "Option" means an Incentive Stock Option or a Non-Qualified
Option.
(j) "Option Agreement" means any written agreement, contract or other
instrument or document evidencing any grant of Options, which may,
but need not, be executed or acknowledged by a Participant.
(k) "Outside Director" shall have the meaning as defined in Code
section 162 (m).
(l) "Plan" means the Berkshire Realty Company, Inc. Amended and
Restated Stock Option Plan, as herein set forth.
(m) "Retirement" means retirement from active employment with the
Company at or after age 62. The determination of the Committee as
to an individual's Retirement shall be conclusive on all parties.
(n) "Rule 16b-3" means Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or
regulation thereto as in effect from time to time.
(o) "Shares" means the common shares of the Company, $.01 par value,
or the number and kind of shares of stock or other securities
which shall be substituted or adjusted for such shares.
(p) "Subsidiary" means any corporation (other than Berkshire Realty)
in an unbroken chain of corporations beginning with Berkshire
Realty where each of the corporations in the unbroken chain other
than the last corporation owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
3. Participants
"Participants" in the Plan shall be those key BRI employees and those
consultants (including, but not limited to, key employees of companies providing
services to BRI) to whom Options may be granted from time to time by the
Committee. Participants shall also include Non-Employee Directors of Berkshire
Realty to whom Options are granted in accordance with Section 6. No Option shall
be granted to any person if immediately after the grant of such Option such
person would own stock, including stock subject to outstanding Options held by
him or her, amounting to more than five percent (5%) of the total combined
voting power or value of all classes of stock of the Company or any Subsidiary.
4. Effective Date and Termination of the Plan
The Berkshire Realty Company, Inc. 1996 Stock Option Plan (the
"Original Plan") was adopted by the Board of Directors on February 8, 1996 and
became effective upon approval of the shareholders on May 2, 1996 (the "Original
Effective Date"). On February 12, 1998, the Berkshire Realty Company, Inc.
Amended and Restated Stock Option Plan (the "Plan") was approved by the Board of
Directors for submission to the shareholders to replace the Original Plan in its
entirety and the Plan is effective upon shareholder approval. The Plan shall
terminate when all Shares of stock subject to Options granted under this Plan
shall have been acquired through exercise of such Options or on May 1, 2001,
whichever is earlier,
<PAGE>
or at such earlier time as the Board of Directors may determine. Termination of
the Plan will not affect the rights and obligations arising under Options
theretofore granted and then in effect.
5. Shares Subject to the Plan and to Options
The stock subject to Options authorized to be granted under the Plan
shall consist of 3,300,000 Shares of Berkshire Realty's common stock, $.01 par
value, or the number and kind of Shares of stock or other securities which shall
be substituted or adjusted for such Shares as provided in Section 7. Such Shares
may be authorized and unissued Shares of Berkshire Realty's common stock. All or
any Shares of stock subject to an Option which for any reason terminates
unexercised may again be made subject to an Option under the Plan.
6. Grant, Terms and Conditions of Options
Options may be granted at any time and from time to time prior to the
termination of the Plan to those key employees of BRI and those consultants
(including, but not limited to, key employees of companies providing services to
BRI) who, in the Committee's judgment, are largely responsible through their
judgment, interest, ability and special efforts for the successful conduct of
BRI's business. However, prior to the adoption of the Amended Stock Plan, no
Participant shall be granted Options in any one year to purchase a number of
Berkshire Realty's common stock in excess of one percent (1%) of the number of
Shares of Berkshire Realty's common stock outstanding on January 1, 1996.
Following approval of the Amended Stock Plan, no participant shall be granted
Options in any one year to purchase a number of Berkshire Realty's common stock
in excess of one percent (1%) of the number of Shares of Berkshire Realty's
common stock outstanding on January 1, 1998.
Options will be granted to Non-Employee Directors as follows: As of the
effective date of this plan each of the four Non-Employee Directors then serving
on the Board of Directors received an initial stock option grant of 12,000
Shares. Thereafter, each new Non-Employee Director has received and additional
new Non-Employee Directors will receive an initial stock option grant of 5,000
Shares at the time of his or her appointment or election to the position of
director; and each Non-Employee Director continuing in office in the past has
received and each Non-Employee Director continuing in office in the future will
receive an annual stock option grant of 3,000 Shares on the date of each annual
shareholder meeting of Berkshire Realty. In addition as of the effective date of
the Original Plan, each Non-Employee Director serving on the Audit Committee or
the Compensation Committee of the Board of Directors (or both) received an
additional initial stock option grant of 1,000 Shares and has received and will
continue to receive additional annual stock option grants of 1,000 Shares for
each such committee served on. The chair of each such committee received (in
lieu of said 1,000 Share grant) an additional initial stock option grant of
2,000 Shares and has received and will continue to receive (in lieu of said
1,000 Share grant) additional annual grants of 2,000 Shares for each such
committee chaired. Each new non-employee director appointed to the Audit or
Compensation Committee has received and additional new non-employee directors
will receive an initial stock option grant of 1,000 shares for each such
committee served on as of the date of the first meeting that he or she serves as
a committee member and further each such new non-employee director will receive
additional annual stock option grants of 1,000 shares, thereafter. The Committee
will have no discretion to select which Non-Employee Directors will be granted
Options or to determine the number of Option Shares, price, vesting schedule or
any other term of the Options granted to Non-Employee Directors. All Options
granted to Non-Employee Directors will be Non-Qualified Options.
No Participant shall have any rights as a stockholder with respect to
any Shares of stock subject to Option hereunder until said Shares have been
issued. Each Option shall be evidenced by an Option
<PAGE>
Agreement which will expressly identify the Option as an Incentive Stock Option
or as a Non-Qualified Stock Option. Furthermore, the grant of an Incentive Stock
Option pursuant to this Plan shall in no way be construed as an alternative to
the right of an optionee to purchase stock pursuant to any present or future
grant of a Non-Qualified Option under any of BRI's current or future stock
plans. Options granted pursuant to the Plan need not be identical, but each
Option is subject to the Plan and must contain and be subject to the following
terms and conditions:
(a) Price: The purchase price under each Option granted to employees
shall be established by the Committee. In no event will the Option
price be less than 100% of the Fair Market Value of the stock on
the date of the grant. For purposes of the Plan, Fair Market Value
on a particular date means the closing price of Berkshire Realty's
stock on the immediately prior trading day. The Option price must
be paid in full at the time of the exercise. The price may be paid
in cash; cash equivalents or secured notes acceptable to the
Committee; subject to such rules as may be established by the
Committee by arrangement with a broker where payment of the Option
price is made pursuant to an irrevocable direction to the broker to
deliver all or part of the proceeds from the sale of the Option
Shares to the Company; by the surrender of Shares of common stock
owned by the optionee exercising the Option and having a Fair
Market Value on the date of the exercise equal to the Option price;
or, in any combination of the foregoing.
(b) Duration and Exercise or Termination of Option: Each Option granted
to an employee or consultant shall be exercisable in such manner
and at such times as the Committee shall determine. Each Option
granted must expire within a period of ten (10) years from the
grant date. An employee's Option Agreement may provide for
accelerated exercisability in the event of the employee's death,
Disablement or Retirement or other events in accordance with
policies established by the Committee and may provide for
expiration prior to the end of its terms in the event of the
termination of the employee's service. A consultant's Option
Agreement may provide for accelerated exercisability in the event
of the consultant's death, Disablement, retirement from employment
at or after age 62 or other events in accordance with policies
established by the Committee and may provide for expiration prior
to the end of its terms in the event of the termination of the
consultant's service.
Wherever in this Plan or any Option Agreement, a Participant
is permitted to pay the exercise price of an Option or taxes
relating to the exercise of an Option by delivering Shares,
the Participant may, subject to procedures satisfactory to the
Committee, satisfy such delivery requirement by presenting
proof of beneficial ownership of such Shares, in which case
the Company shall treat the Option as exercised without
further payment and shall withhold such number of Shares from
the Shares acquired by the exercise of the Option.
Each initial 12,000 or 5,000 Share Option and each subsequent
3,000 Share Option granted to a Non-Employee Director, and
each 2,000 or 1,000 Share Option granted to a Non- Employee
Director by virtue of his or her committee chairmanship or
membership will become exercisable beginning one year from the
date of the annual meeting of the shareholders on which date
the Options were granted. If a Non-Employee Director is
appointed by the Board of Directors to begin serving as a
director or committee member or chair on a date not coincident
with an annual meeting date, the director will be granted the
initial Share Options as of the date of the first meeting at
which he or she serves as director, committee member or
committee chair, as the case may be; however, his or her
Options will
<PAGE>
become first exercisable beginning one year from the date of
the next occurring annual meeting and he or she will not
receive an additional grant of Options on the date of such
next occurring annual meeting.
(c) Suspension or Termination of Option: Unless the following
provisions are waived or modified by the Committee in connection
with the entering into, extension or modification of an employment
agreement, each Option shall provide that if the Chief Executive
Officer of Berkshire Realty or his designee reasonably believes
that a Participant other than a Non- Employee Director has
committed an act of misconduct as described in this Section, the
Chief Executive Officer may suspend the Participant's right to
exercise any Option pending a determination by the Board of
Directors. If the Board of Directors determines a Participant other
than a Non-Employee Director has committed an act of embezzlement,
fraud, dishonesty, nonpayment of any obligation to the Company ,
breach of fiduciary duty or deliberate disregard of BRI rules
resulting in loss, damage or injury to the Company, or if a
Participant makes an unauthorized disclosure of any BRI trade
secret or confidential information, or engages in any conduct
constituting unfair competition, neither Participant nor his estate
shall be entitled to exercise any Option whatsoever. In making such
determination, the Board of Directors shall act fairly and shall
give the Participant an opportunity to appear and present evidence
on his or her behalf at a hearing before a committee of the Board
of Directors. For any Participant who is an "executive officer" for
purposes of Section 16 of the Securities Exchange Act of 1934, the
determination of the Board of Directors shall be subject to the
approval of the Committee.
(d) Termination of Non-Employee Director's Service: Subject to
Section 6(b), upon the termination of the Participant's
service as a Non-Employee Director, his or her rights to
exercise an Option then held shall be only as follows:
(1) Death. Upon the death of a Non-Employee Director
while in service as a Non- Employee Director of
Berkshire Realty, the Non-Employee Director's rights
will be exercisable by his or her estate or
beneficiary at any time within twelve (12) months
next succeeding the date of death. The number of
Shares exercisable by the estate or beneficiary will
be the total number of unexercised Options under the
Non- Employee Director's Option on the date of his or
her death. If a Non-Employee Director shall die
within thirty (30) days of his or her termination of
service as a Non-Employee Director with Berkshire
Realty, an Option will be exercisable by his or her
estate or beneficiary at any time during that twelve
(12) months succeeding the date of termination, but
only to the extent the number of Shares to which such
Option was exercisable as of the date of such
termination. A Non-Employee Director's estate shall
mean his or her legal representative of other person
who so acquires the right to exercise the Option.
(2) Disablement. Upon the Disablement of a Non-Employee
Director, any Option which he or she holds, whether
or not then exercisable, may be exercised after the
date of the Disablement within twelve (12) months.
(3) Retirement. Upon the Retirement of a Non-Employee
Director, the Non-Employee Director's rights to
Non-Qualified Options may be exercised for a period
of twelve months after Retirement.
<PAGE>
(4) Other Reasons. Upon the termination of a Non-Employee
Director's service as a Non-Employee Director for any
reason other than those stated above, the Non-
Employee Director may, within ninety (90) days
following such termination, exercise the Option to
the extent such Option was exercisable on the date of
termination.
(e) Transferability of Option: No Option may be assigned,
alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant otherwise than by will or by the
laws of descent and distribution, and any such purported
assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the
Company; provided that the designation of a beneficiary shall
not constitute an assignment, alienation, pledge, attachment,
sale, transfer or encumbrance.
Notwithstanding the foregoing, the Committee may in the
applicable Option Agreement evidencing an Option granted under
the Plan or at any time thereafter in an amendment to an
Option Agreement provide that Options granted hereunder which
are not intended to qualify as Incentive Stock Options may be
transferred by the Participant to whom such Option was granted
(the "Grantee") without consideration, subject to such rules
as the Committee may adopt to preserve the purposes of the
Plan, to:
(1) the Grantee's spouse, children or grandchildren (including
adopted and stepchildren and grandchildren) (collectively,
the "Immediate Family");
(2) a trust solely for the benefit of the Grantee and his or her
Immediate Family; or
(3) a partnership or limited liability company whose only
partners or shareholders are the Grantee and his or her
Immediate Family members;
(each transferee described in clauses (1), (2) and (3) above
is hereinafter referred to as a "Permitted Transferee");
provided that the Grantee gives the Committee advance written
notice describing the terms and conditions of the proposed
transfer and the Committee notifies the grantee in writing
that such a transfer would comply with the requirements of the
Plan and any applicable Option Agreement evidencing the
Option.
The terms of any Option transferred in accordance with the
immediately preceding sentence shall apply to the Permitted
Transferee and any reference in the Plan or in an Option
Agreement to an optionee, Grantee or Participant shall be
deemed to refer to the Permitted Transferee, except that (a)
Permitted Transferees shall not be entitled to transfer any
Options, other than by will or the laws of descent and
distribution; (b) Permitted Transferees shall not be entitled
to exercise any transferred Options unless there shall be in
effect a registration statement on an appropriate form
covering the Shares to be acquired pursuant to the exercise of
such Option if the Committee determines that such a
registration statement is necessary or appropriate, (c) the
Committee or the Company shall not be required to provide any
notice to a Permitted Transferee, whether or not such notice
is or would otherwise have been required to be given to the
Grantee under the Plan or otherwise and (d) the consequences
of termination of the Grantee's employment by, or services to,
the Company under the terms of the Plan and the applicable
Option Agreement shall continue to be applied with respect to
the Grantee, following which the Options shall be exercisable
<PAGE>
by the Permitted Transferee only to the extent, and for the
periods, specified in the Plan and the applicable Option
Agreement.
(f) Modification or Assumption of Options: The Committee may
modify, extend or assume outstanding Options (whether granted
by BRI or by another issuer) in return for the grant of new
Options for the same or a different number of Shares and at
the same or a different exercise price.
(g) Other Terms and Conditions: Options may also contain such
other provisions, which shall not be inconsistent with any of
the foregoing terms, as the Committee shall deem appropriate.
No Option, however, nor anything contained in the Plan shall
confer upon any Participant any right to continue in BRI's
employ or service nor limit in any way BRI's right to
terminate his or her employment or service at any time.
7. Adjustment of and Changes in the Stock
(a) Notwithstanding any provisions of the Plan to the contrary, in the
event that the Shares of common stock of Berkshire Realty shall be
changed into or exchanged for a different number or kind of Shares
of stock or other securities of Berkshire Realty or of another
corporation (whether by reason of merger, consolidation,
recapitalization, reclassification, split-up, combination of
Shares, or otherwise), or if the number of Shares of common stock
of Berkshire Realty shall be increased through a stock split or the
payment of a stock dividend, then there shall be substituted for or
added to each Share of common stock theretofore appropriated or
thereafter subject or which may become subject to an option under
the Plan, the number and kind of Shares of stock or other
securities into which each outstanding Share of common stock of
Berkshire Realty shall so be changed, or for which each such Share
shall be exchanged, or to which each such Share shall be entitled,
as the case may be. Outstanding Options shall also be amended as to
any price or other terms if necessary to reflect the foregoing
events. In the event there shall be any other change in the number
or kind of the outstanding Shares of common stock of Berkshire
Realty, or any other stock or other securities into which such
common stock shall have been changed, or for which it shall have
been exchanged, then if the Committee shall, in its sole
discretion, determine that such change equitably requires an
adjustment in any Option theretofore granted under the Plan, such
adjustment shall be made in accordance with such determination.
(b) No right to purchase fractional Shares shall result from any
adjustment in Options pursuant to this Section 7. In case of
any such adjustment, the Shares subject to the Option shall be
rounded down to the nearest whole Share. Notice of any
adjustment shall be given by the Company to each Participant
who shall have been so adjusted and such adjustment (whether
or not notice is given) shall be effective and binding for all
purposes of the Plan.
(c) Any other provision hereof to the contrary notwithstanding
(except Section 6(b)) in the event Berkshire Realty is a party
to a merger or other reorganization, outstanding Options shall
be subject to the agreement of merger or reorganization. Such
agreement may provide, without limitation, for the assumption
of outstanding Options by the surviving corporation or its
parent, for their continuation by Berkshire Realty (if
Berkshire Realty is a surviving corporation), for accelerated
vesting and accelerated expiration, or for settlement in cash.
<PAGE>
8. Listing or Qualification of Stock
In the event the Board of Directors determines in its discretion that
the listing or qualification of the Plan Shares on any securities exchange or
under any applicable law or governmental regulation is necessary as a condition
to the issuance of such Shares under the Option, the Option may not be exercised
in whole or in part unless such listing, qualification, consent or approval has
been unconditionally obtained.
9. Administration and Amendment of the Plan
The Plan shall be administered by the Committee. The Committee shall
consist of two or more directors of Berkshire Realty, who shall be appointed by
the Board of Directors, and who are expected, but not required to be
"Non-Employee Directors" (within the meaning of Rule 16b-3) and "Outside
Directors" (within the meaning of Code Section 162(m)) to the extent that Rule
16b-3 and Code Section 162(m), respectively, are applicable to the Company and
the Plan. The Board shall fill vacancies and may from time to time remove or add
members. If at any time such a Committee has not been so designated, the Board
shall constitute the Committee.
The mere fact that an Committee member shall fail to qualify as a
Non-Employee Director or Outside Director within the meaning of Rule 16b-3 and
Code Section 162(m), respectively, shall not invalidate any Option granted by
the Committee which Option is otherwise validly granted under the Plan.
The Board of Directors may also appoint one or more separate committees
of the Board of Directors, each composed of one or more directors of Berkshire
Realty who need not be disinterested, who may administer the Plan with respect
to employees or consultants who are not executive officers or directors of BRI,
may grant Options to such employees or consultants and may determine all of the
terms of such Options. Notwithstanding the foregoing, the Committee may delegate
to one or more officers of the Company, the authority to grant awards to
Participants who are not officers or directors of the Company subject to Section
16 of the Exchange Act or "covered employees" within the meaning of Section
162(m) of the Code.
The Board of Directors may amend or terminate the Plan as desired,
without further action by Berkshire Realty's shareholders except to the extent
required by applicable law and provided further that any such amendment or
termination that would impair the rights of any Participant or any holder or any
beneficiary of any Option theretofore granted shall not to that extent be
effective without the consent of the affected Participant, holder or
beneficiary.
Notwithstanding the above, the provisions of Section 6 relating to
Non-Employee Directors may not be amended more than once every six months,
except to comply with changes to the Code or the rules thereunder.
10. Time of Granting Options
The effective date of each Option granted hereunder shall be the date
on which the grant was made. Within a reasonable time thereafter, Berkshire
Realty will execute and deliver an Option Agreement to the Participant.
<PAGE>
11. Withholding
To the extent required by applicable federal, state, local or foreign
law, a Participant shall make arrangements satisfactory to the Company for the
satisfaction of any withholding tax obligations that arise by reason of an
Option exercise or any sale of Shares. Berkshire Realty shall not be required to
issue Shares until such obligations are satisfied. The Committee may permit
these obligations to be satisfied in whole or in part by delivery of Shares
owned by the Participant (which are not subject to any pledge or other security
interest and which have been owned by the Participant for at least 6 months)
with a Fair Market Value equal to such withholding liability or by having the
Company withhold from the number of Shares otherwise issuable pursuant to the
exercise of the Option a number of Shares with a Fair Market Value equal to such
withholding liability.
Notwithstanding any provision of this Plan to the contrary, in
connection with the transfer of an Option to a Permitted Transferee pursuant to
Section 6(e) of the Plan, the Grantee shall remain liable for any withholding
taxes required to be withheld upon the exercise of such Option by the Permitted
Transferee.
Exhibit 23.1
[Letterhead of Coopers & Lybrand]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Berkshire Realty Company, Inc. and Subsidiaries on Form S-8 (File No. 333- )
of our report dated January 16, 1998, except for Note V for which the date is
February 27, 1998, on our audits of the consolidated financial statements and
financial statement schedule of Berkshire Realty Company, Inc. and Subsidiaries
as of December 31, 1997 and 1996 and for the years ended December 31, 1997, 1996
and 1995.
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
June 30, 1998
