**Exhibit 10.6**

 

 

 

**SOLSTICE HOLDINGS LLCRETENTION AND INCENTIVE EQUITYCOMPENSATION PROGRAM**

 

**(EFFECTIVE AS OF MARCH 8, 2006)**

 

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**TABLE OFCONTENTS**

 
| ** **       | ** **                              | **Page**   |
|------------------|-----------------------------------------|------------|
| ** **       | ** **                              | ** ** |
| ARTICLE I   | ESTABLISHMENT, PURPOSE AND DEFINITIONS  | 1          |
|             |                                    |       |
| 1.1              | ESTABLISHMENT; PURPOSE                  | 1          |
|             |                                    |       |
| 1.2              | DEFINITIONS                             | 1          |
|             |                                    |       |
| ARTICLE II  | INTERESTS AVAILABLE UNDER THIS PROGRAM  | 3          |
|             |                                    |       |
| 2.1              | INTERESTS AVAILABLE UNDER THE IIAP      | 3          |
|             |                                    |       |
| 2.2              | INTERESTS AVAILABLE UNDER THE RECP      | 3          |
|             |                                    |       |
| ARTICLE III | INITIAL INCENTIVE AWARD PLAN            | 3          |
|             |                                    |       |
| 3.1              | INITIAL INCENTIVE AWARDS                | 3          |
|             |                                    |       |
| ARTICLE IV  | RETENTION EQUITY COMPENSATION PLAN      | 5          |
|             |                                    |       |
| 4.1              | RECP                                    | 5          |
|             |                                    |       |
| ARTICLE V   | ADJUSTMENTS TO CLASS A UNITS       | 6          |
|             |                                    |       |
| 5.1              | ADJUSTMENTS                             | 6          |
|             |                                    |       |
| 5.2              | FRACTIONAL RECP INTERESTS               | 6          |
|             |                                    |       |
| 5.3              | FORFEITED INTERESTS AVAILABLE FOR GRANT | 6          |
|             |                                    |       |
| ARTICLE VI  | ADMINISTRATION, GENERAL PROVISIONS      | 7          |
|             |                                    |       |
| 6.1              | ADMINISTRATION OF THE PLAN              | 7          |
|             |                                    |       |
| 6.2              | AMENDMENT AND OTHER MATTERS             | 8          |
|             |                                    |       |
| 6.3              | WITHHOLDING TAXES                       | 8          |
|             |                                    |       |
| 6.4              | GOVERNING LAW                           | 9          |
|             |                                    |       |
| 6.5              | TERMINATION                             | 9          |
|             |                                    |       |
| 6.6              | GENERAL PROVISIONS                      | 9          |
|                  |                                         |            |  |

 

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**SOLSTICE HOLDINGS LLCRETENTION AND INCENTIVE EQUITYCOMPENSATION PROGRAM**

 

**ARTICLE IESTABLISHMENT, PURPOSE AND DEFINITIONS**

 

1.1                                 **ESTABLISHMENT; PURPOSE**.

 

(a)                                  SolsticeHoldings LLC, a Delaware limited liability company (the “Company”),hereby establishes the Solstice Holdings LLC Retention and Incentive EquityCompensation Program (the “RIECP” or the “Program”), effective asof March 8, 2006 (the “Effective Date”).

 

(b)                                 TheProgram consists of the Retention Equity Compensation Plan (the “RECP”)and the Initial Incentive Award Plan (the “IIAP”).

 

(c)                                  Thepurpose of this Program is to assist in attracting and retaining key employeesof or on behalf of CenterPoint Properties Trust, a Maryland real estateinvestment trust and a Subsidiary of the Company, and to provide such personswith long-term incentives and rewards for superior performance and maximizingshareholder value.

 

1.2                                 **DEFINITIONS**. Capitalized terms thatare used but not defined herein shall have the meaning set forth in theOperating Agreement.

 

(a)                                  **“Beneficiary”** means the person or persons designatedby the Participant, in a writing provided to the Company or CenterPoint priorto the Participant’s death, to receive amounts payable to the Participant underthis Program upon the Participant’s death. In the absence of such a writtenbeneficiary designation, the Beneficiary shall be the Participant’s survivingspouse, or if none, the Participant’s estate.

 

(b)                                 **“CenterPoint”**means CenterPoint Properties Trust, aMaryland real estate investment trust, its successors by merger or otherwiseupon or following a Change in Control and any corporation or other entity thatcontrols such successor corporation or entity and that adopts the Program andat such time agrees to be the successor.

 

(c)                                  **“CenterPoint Management Team”** means the CEO and theCFO.

 

(d)                                 **“CEO”**means the Chief Executive Officer ofCenterPoint, who initially shall be Michael M. Mullen.

 

(e)                                  **“CFO”** means the Chief Financial Officer ofCenterPoint, who initially shall be Paul S. Fisher.

 

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(f)                                    **“Committee”** means the Compensation Committee of theBoard, as constituted from time to time and, to the extent of any delegation bythe Board pursuant to this Program to a subcommittee, such subcommittee.

 

(g)                                 **“Company”**has the meaning set forth in theintroductory paragraph of this Program.

 

(h)                                 **“Date of Grant”** means the date specified by the Boardon which a grant of Unvested Class A Units under the RECP or the IIAPshall become effective, which shall not be earlier than the date on which theBoard takes action with respect thereto.

 

(i)                                     **“Effective Date”** has the meaning given to such termin Section 1.1(a).

 

(j)                                     **“Effective Time”** has the meaning given to such termin Section 1.3 of the Merger Agreement.

 

(k)                                  **“Employment Agreement”**means the employment agreementby and between a Participant and CenterPoint (or as applicable, the Company orany of their Subsidiaries that adopts the Program)****settingforth such individual’s terms of employment.

 

(l)                                     **“Evidence of Award”**means, under the RECP or theIIAP, a Class A Unit award agreement, certificate, resolution or othertype or form of writing or other evidence Approved by the Board that setsforth the terms and conditions of the awards granted, which may be in anelectronic medium, may be limited to notation on the books and records ofthe Company and, with the Approval of the Board, need not be signed by arepresentative of the Company or a Participant.

 

(m)                               **“Initial Unvested Class A Units”** has the meaningset forth in Section 2.1.

 

(n)                                 **“IIAP”**means the Initial Incentive Award Plan,further described in Article III hereof.

 

(o)                                 **“Merger Agreement”** means that certain Agreement andPlan of Merger by and among CalEast, Solstice Merger Trust and CenterPointdated December 7, 2005, as amended on February 2, 2006, and as may befurther amended from time to time.

 

(p)                                 **“New Hire”** means a Participant who is commencing, orhas agreed to commence, employment with CenterPoint (or as applicable, theCompany or any of their Subsidiaries that adopts the Program) after theEffective Date.

 

(q)                                 **“Operating Agreement”** means that certain Amended andRestated Limited Liability Company Agreement of Solstice Holdings LLC, aDelaware limited liability company dated as of March 7, 2006, as may beamended from time to time.

 

(r)                                    **“Participant”** means an employee of CenterPoint (or asapplicable, the Company or any of their Subsidiaries that adopts the Program)who is selected from time to time

 

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by the CenterPoint Management Team toparticipate in the Program, as Approved by the Board and has received an awardof Initial Unvested Class A Units or RECP Unvested Class A Units.

 

(s)                                  **“Recommendation Period”** has the meaning set forth in Section 6.1(a).

 

(t)                                    **“RECP”** means the Retention Equity Compensation Plan,further described in Article IV hereof.

 

(u)                                 **“RECP Unvested Class A Units”** has the meaningset forth in Section 2.2.

 

**ARTICLE IIINTERESTS AVAILABLE UNDER THIS PROGRAM**

 

2.1                                 **INTERESTS AVAILABLE UNDER THE IIAP**.The IIAP provides for the one-time grant of restricted Unvested Class AUnits as described in Section 3.1(B)(iii) of the Operating Agreement(“Initial Unvested Class A Units”). Subject to adjustment asprovided in Section 5.1 of this Program, the Initial Unvested Class AUnits available for issuance under the IIAP (Article III) shall have anaggregate value as of the Effective Time of not more than nine million sevenhundred eighty-six thousand two hundred dollars ($9,786,200). The InitialUnvested Class A Units shall be awarded in lieu of any share options,restricted shares and/or performance units that CenterPoint may haveawarded to its employees in CenterPoint’s fiscal year 2006 for CenterPoint’sfiscal year 2005 performance.

 

2.2                                 **INTERESTS AVAILABLE UNDER THE RECP**.The RECP provides for the grant of interests of restricted Unvested Class AUnits (the “RECP Unvested Class A Units”). Subject to adjustment asprovided in Section 5.1 of this Program, the RECP Unvested Class AUnits available for issuance under the RECP (Article IV) shall have anaggregate value as of the Effective Time of not more than ten million dollars($10,000,000).

 

**ARTICLE IIIINITIAL INCENTIVE AWARD PLAN**

 

3.1                                 **INITIAL INCENTIVE AWARDS**. The Boardmay authorize grants of Initial Unvested Class A Units under thisIIAP, which shall be one-time grants, to those Participants selected to receivesuch one-time grants as of the Effective Time, and after such grants are made,no additional grants under the IIAP may be made. Such grants shall be madeupon the terms and conditions, in addition to those found in the OperatingAgreement, as the Board may determine in accordance with this Program,including the following provisions:

 

(a)                                  Each grant shallconstitute an immediate transfer of the ownership of the Initial Unvested Class AUnits awarded under the IIAP to the Participant in consideration

 

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of the performance of services, entitlingsuch Participant to Distributions and other rights, as provided in theOperating Agreement, subject to the substantial risk of forfeiture andrestrictions on transfer hereinafter referred to.

 

(b)                                 Each grant will bemade without any additional consideration from the Participant.

 

(c)                                  Each grant of InitialUnvested Class A Units will be subject to the terms and conditions of theOperating Agreement. Upon issuance of Initial Unvested Class A Units, tothe extent a Participant has not already executed the signature page ofthe Operating Agreement or an addendum thereto, such Participant shall sign anaddendum to the Operating Agreement agreeing to be bound by the provisions ofthe Operating Agreement.

 

(d)                                 Each grant (i) shallprovide that the Class A Units covered thereby shall be subject to a “substantialrisk of forfeiture” within the meaning of Section 83 of the Code for aperiod not to exceed five (5) years (which may include pro-rata orgraded vesting over such period) to be determined by the Board on the Date ofGrant and (ii) may provide for the earlier lapse of such substantialrisk of forfeiture in the event of a Change in Control or in the case ofcertain events of termination of a Participant’s employment.

 

(e)                                  Each grant shallprovide that, during the period for which such substantial risk of forfeitureis to continue, the transferability of the Initial Unvested Class A Unitsshall be prohibited or restricted in the manner and to the extent prescribed bythe Board on the Date of Grant or as prescribed in the Operating Agreement. Suchrestrictions may include without limitation rights of repurchase or firstrefusal in favor of the Company or provisions subjecting the Initial Unvested Class AUnits to a continuing substantial risk of forfeiture in the hands of anytransferee.

 

(f)                                    Each grant ofInitial Unvested Class A Units awarded under the IIAP shall be evidencedby an Evidence of Award, which Evidence of Award shall contain such terms andprovisions as the Board may determine consistent with this Program and theOperating Agreement, as applicable, including, but not limited to, vesting andforfeiture provisions.

 

(g)                                 Except as otherwiseprovided in the Operating Agreement, a Participant’s Evidence of Award****or a Participant’s Employment Agreement, as applicable, ifa Participant’s employment with CenterPoint (or as applicable, the Company orany of their Subsidiaries that adopts the Program) is terminated for anyreason, the Participant shall immediately forfeit all Initial Unvested Class AUnits held. Upon such forfeiture, the Participant will no longer be entitled toany further payments or Distributions from the Company and will have no furtherrights under the IIAP with respect to those forfeited Initial Unvested Class AUnits.

 

(h)                                 Upon the vesting of aParticipant’s Initial Unvested Class A Units, such Class A Unitsshall become Vested Class A Units subject to the terms of the Operating

 

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Agreement relating to Vested Class AUnits, including, but not limited to the required repurchase by the Companyunder Section 3.5(D) of the Operating Agreement.

 

**ARTICLE IVRETENTION EQUITY COMPENSATION PLAN**

 

4.1                                 **RECP**. The Board may authorizegrants of RECP Unvested Class A Units under this RECP to Participants(other than members of the CenterPoint Management Team) upon such terms andconditions, in addition to those found in the Operating Agreement, as the Boardmay determine in accordance with this Program, including the followingprovisions:

 

(a)                                  Each grant shallconstitute an immediate transfer of the ownership of the RECP Unvested Class AUnits awarded under the RECP to the Participant in consideration of theperformance of services, entitling such Participant to Distributions and otherrights, as provided in the Operating Agreement, subject to the substantial riskof forfeiture and restrictions on transfer hereinafter referred to.

 

(b)                                 Each grant will bemade without any additional consideration from the Participant.

 

(c)                                  Each grant of RECPUnvested Class A Units will be subject to the terms and conditions of theOperating Agreement. Upon issuance of RECP Unvested Class A Units, to theextent a Participant has not already executed the signature page of theOperating Agreement or an addendum thereto, each Participant shall sign anaddendum to the Operating Agreement agreeing to be bound by the provisions ofthe Operating Agreement.

 

(d)                                 Each grant (i) shallprovide that the Class A Units covered thereby shall be subject to a “substantialrisk of forfeiture” within the meaning of Section 83 of the Code for aperiod not to exceed ten (10) years (which may include pro-rata orgraded vesting over such period) to be determined by the Board on the Date ofGrant and (ii) may provide for the earlier lapse of such substantialrisk of forfeiture in the event of a Change in Control or in the case ofcertain events of termination of a Participant’s employment.

 

(e)                                  Each grant shallprovide that, during the period for which such substantial risk of forfeitureis to continue, the transferability of the RECP Unvested Class A Unitsshall be prohibited or restricted in the manner and to the extent prescribed bythe Board on the Date of Grant or as prescribed in the Operating Agreement. Suchrestrictions may include without limitation rights of repurchase or firstrefusal in the Company or provisions subjecting the RECP Unvested Class AUnits to a continuing substantial risk of forfeiture in the hands of anytransferee.

 

(f)                                    Each grant of RECPUnvested Class A Units awarded under the RECP shall be evidenced by anEvidence of Award, which Evidence of Award shall contain such terms andprovisions as the Board may determine consistent with this Program and

 

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the Operating Agreement, as applicable,including, but not limited to, vesting and forfeiture provisions.

 

(g)                                 Except as provided inthe Operating Agreement, a Participant’s Evidence of Award****ora Participant’s Employment Agreement, as applicable, if a Participant’semployment with CenterPoint (or as applicable, the Company or any of theirSubsidiaries that adopts the Program) is terminated for any reason, theParticipant shall immediately forfeit all RECP Unvested Class A Units held.Upon such forfeiture, the Participant will no longer be entitled to any furtherpayments or Distributions from the Company and will have no further rightsunder the RECP with respect to those forfeited RECP Unvested Class AUnits.

 

(h)                                 Upon the vesting of aParticipant’s RECP Unvested Class A Units, such Class A Units shallbecome Vested Class A Units subject to the terms of the OperatingAgreement relating to Vested Class A Units, including, but not limited tothe required repurchase by the Company under Section 3.5(D) of theOperating Agreement.

 

(i)                                     The members of theCenterPoint Management Team will not be entitled to participate in the RECP.

 

**ARTICLE VADJUSTMENTS TO CLASS A UNITS**

 

5.1                                 **ADJUSTMENTS**. The Board****may make or provide for such adjustments in the numberof restricted Unvested Class A Units granted hereunder or for substitutionof the restricted Unvested Class A Units granted hereunder for other fair,equitable and valuable consideration as may be required in order toprevent dilution or expansion of the rights of Participants that otherwisewould result from (i) any Membership Interest dividend, MembershipInterest split, combination of Membership Interests, recapitalization or otherchange in the capital structure of the Company, (ii) any merger,consolidation, spin-off, spin-out, split-off, split-up, reorganization, partialor complete liquidation or other distribution of assets, issuance of warrantsor other rights to purchase securities or (iii) any other transaction orevent having an effect similar to any of the foregoing.

 

5.2                                 **FRACTIONAL RECP INTERESTS**. TheCompany may issue fractional restricted Unvested Class A Unitspursuant to this Program. The Board****may alsoprovide for the elimination of fractions or for the settlement thereof in cash.

 

5.3                                 **FORFEITED INTERESTS AVAILABLE FOR GRANT.**An Unvested Class A Unit that is forfeited shall again be available tobe granted pursuant to the terms hereunder.

 

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**ARTICLE VIADMINISTRATION, GENERAL PROVISIONS**

 

6.1                                 **ADMINISTRATION OF THE PLAN**.

 

(a)                                  Except as otherwiseprovided in this Section 6.1(a), the Board shall administer the Program.With respect to any determinations to be made pursuant to the provisions of Article 3and Article 4, the CenterPoint Management Team shall make recommendationsto the Board, and the Board may approve or request that the CenterPointManagement Team revise such recommendation. To the extent the Board requeststhat the CenterPoint Management Team revise such recommendation, and until arevised recommendation is approved by the Board, the CenterPoint ManagementTeam will have a period not to exceed thirty (30) days from the date theinitial recommendation is presented to the Board (the “Recommendation Period”)to provide revised recommendations for approval by the Board. The Board shallconvene as often as reasonably required during the Recommendation Period. Tothe extent the Board has not approved a recommendation from the CenterPointManagement Team on or prior to the expiration of the Recommendation Period, theCommittee shall make a recommendation to the Board, after advising theCenterPoint Management Team of such recommendation, and the Board shall makeand approve any determination it considers necessary or appropriate, in itssole discretion.

 

(b)                                 The Board may fromtime to time reserve a specified number of RECP Unvested Class A Units,subject to adjustment as provided in Section 5.1 of this Program, forgrants to New Hires in connection with their employment with CenterPoint (or asapplicable, the Company or any of their Subsidiaries that adopts the Program)or to any Participant in connection with a promotion or other form ofspecial recognition Approved in writing by the Board.

 

(c)                                  Subject to Section 6.1(a),the Board shall have full authority regarding all matters relating to thedischarge of its responsibilities under this Program, and the interpretationand construction by the Board of the provisions of this Program, or anyEvidence of Award shall be made in the sole discretion of the Board and shallbe final and conclusive.

 

(d)                                 The Board may delegateto the Committee, to one or more subcommittees of the Committee, to one or moreof its members, or to one or more officers of the Company or CenterPoint, or toone or more agents or advisors, such administrative duties or powers as it may deemadvisable, and the Board, the Committee, or any person to whom duties or powershave been delegated as aforesaid, may employ one or more persons to renderadvice with respect to any responsibility the Board, the Committee or suchperson may have under the Program.

 

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6.2                                 **AMENDMENT AND OTHER MATTERS**.

 

(a)                                  The Board may atany time and from time to time, in its discretion amend, alter or terminate theProgram in whole or in part; provided, however, that any suchamendment or alteration will not affect the rights of Participants or theirsuccessors under any Class A Units without their consent; and providedfurther that any provisions relating to the Program set forth in theOperating Agreement may be amended or altered only with the Approval ofthe Board and with the consent of the Members as provided for in the OperatingAgreement.

 

(b)                                 In connection with amerger, acquisition or other such similar transaction, the Board may grantunder this Program any award of restricted Unvested Class A Units inexchange for the surrender and cancellation of an award that was not grantedunder this Program (including but not limited to an award that was granted byCenterPoint (or as applicable, the Company or any of their Subsidiaries thatadopts the Program), or by another corporation that is acquired by CenterPoint(or as applicable, the Company or any of their Subsidiaries that adopts theProgram)****by merger or otherwise, prior to theadoption of this Program by the Board), and any such award or combination ofawards so granted under this Program may or may not cover the samenumber of equity interests as had been covered by the canceled award and shallbe subject to such other terms, conditions and discretion as would have beenpermitted under this Program had the canceled award not been granted.

 

(c)                                  This Program, anyEvidence of Award or any action taken hereunder will not confer upon anyParticipant any right with respect to continuance of employment or otherservice with CenterPoint (or as applicable, the Company or any of theirSubsidiaries that adopts the Program), nor will it interfere in any way withany right CenterPoint (or as applicable, the Company or any of theirSubsidiaries that adopts the Program) would otherwise have to terminate suchParticipant’s employment or other service at any time.

 

(d)                                 The Board may consistentwith this Program amend the terms of any award of restricted Unvested Class AUnits granted under this Program prospectively or retroactively; provided,however, that no such amendment shall impair the rights of anyParticipant under such Participant’s Class A Units without suchParticipant’s consent.

 

6.3                                 **WITHHOLDING TAXES**.

 

(a)                                  To the extent thatthe Company or CenterPoint is required to withhold federal, state, local orforeign taxes in connection with any payment made or benefit realized by aParticipant or other person under this Program, and the amounts available tothe Company for the withholding are insufficient, it shall have the right torequire the Participant or the Participant’s Beneficiary to remit to theCompany or CenterPoint an amount sufficient to satisfy all federal, state andlocal withholding tax requirements in connection with any payment made orbenefit realized by the Participant or the Participant’s

 

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Beneficiary in connection with an award underthis Program. The Board may make mutually agreed-upon arrangements withthe Participant or the Participant’s Beneficiary for the satisfaction of suchrequired withholding liability, which may include, but not be limited to,the relinquishment of any restricted Unvested Class A Unit.

 

(b)                                 If the Company orCenterPoint is obligated to pay any amount to a governmental agency (orotherwise makes a payment to a governmental agency) because of (A) aParticipant’s status or otherwise specifically attributable to a Participant inhis or her capacity as a Participant with respect to federal, state or localwithholding taxes imposed with respect to (i) any issuance of Class AUnits to a Participant by the Company under this Program or (ii) anypayments to a Participant or (B) a Participant’s breach of the OperatingAgreement or violation of any law, rule or regulation in his, her or itscapacity as a Participant, then the Company shall reduce the Distributions thatwould otherwise be made to such Participant or if such Distributions areinsufficient to pay such obligation such Participant shall, to the fullestextent permitted by law, indemnify the Company in full for the entire amountpaid (including, without limitation, any interest, penalties and expensesassociated with such payments).

 

6.4                                 **GOVERNING LAW**. The Program and allgrants and awards and actions taken thereunder shall be governed by andconstrued in accordance with the internal substantive laws of the State ofDelaware.

 

6.5                                 **TERMINATION**. No grant will be madeunder this Program more than ten (10) years after the date on which thisProgram is first approved by the Board, but all grants made on or prior to suchdate will continue in effect thereafter subject to the terms thereof and ofthis Program.

 

6.6                                 **GENERAL PROVISIONS**.

 

(a)                                  No award ofrestricted Unvested Class A Units may be made under this Program ifsuch award, and the receipt of cash thereunder, would be, in the opinion ofcounsel selected by the Board, contrary to law or the regulations of any dulyconstituted authority having jurisdiction over this Program.

 

(b)                                 Except as otherwiseprovided in the Operating Agreement or any Evidence of Award, any action takenhereunder shall not be construed as conferring upon any Participant any right (i) ofownership in the Company; (ii) to participate in the management of thebusiness and affairs of CenterPoint (or as applicable, the Company or any oftheir Subsidiaries that adopts the Program); or (iii) to vote on orapprove any matters requiring the consent or approval of the Members.

 

(c)                                  For purposes of thisProgram, the continuous employment of the Participant with CenterPoint (or asapplicable, the Company or any of their Subsidiaries that adopts the Program)shall not be deemed interrupted, and the Participant shall not be deemed tohave ceased to be employed by CenterPoint (or as applicable, the Company or anyof their Subsidiaries that adopts the Program)****byreason of the transfer of his or her employment among CenterPoint, or as applicable,the Company or any of their Subsidiaries that adopts the Program.

 

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(d)                                 Absence on leaveapproved in accordance with the policies, procedures and practices ofCenterPoint (or as applicable, the Company or any of their Subsidiaries thatadopts the Program) shall not be considered interruption or termination ofservice of any employee for any purposes of this Program or awards grantedhereunder, except that no awards may be granted to an employee while he orshe is absent on leave unless otherwise determined by the Board.

 

(e)                                  This Program shall bebinding upon, and shall inure to the benefit of the Company and any successor. TheCompany may assign and transfer this Program, and delegate its duties hereunder,to a Subsidiary of CenterPoint or the Company.

 

(f)                                    This Program shallbe unfunded and shall not create (or be construed to create) a trust orseparate fund.

 

(g)                                 If any provision ofthe Program is or becomes invalid, illegal or unenforceable in anyjurisdiction, or would disqualify the Program or any award under any law deemedapplicable by the Board, the Board shall replace each invalid, illegal orunenforceable provision with a valid, legal and enforceable provision whichwill most nearly and equitably satisfy the economic effect of the invalid,illegal or unenforceable provision.

 

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