EXHIBIT 10.2


 


CONSULTING AGREEMENT


JAMES H. RICHARDSON


 


THIS
CONSULTING AGREEMENT
(the “Agreement”) is entered into
between Alexandria Real Estate Equities, Inc. (“Client”) and James H.
Richardson (“Consultant”)
(each, a “Party”), effective as of
the Effective Date (as defined in Section 26 herein).


 


1.          Engagement of Services. 
Subject to the terms of this Agreement, Consultant will render the
services (the “Services”) set forth in the
Project Assignment attached to this Agreement as Exhibit A
(“Project Assignment”),
commencing as February 12, 2009 (the “Consulting Commencement
Date”).  As of February 11,
2009 (the “Resignation Date”), Consultant
resigned as an officer and employee of Client and any of its affiliated
entities, and the Executive Employment Agreement between Consultant and Client
originally made and entered into as of January 1, 2005 and as amended from
time to time thereafter (the “Employment Agreement”),
terminated as a result of Consultant’s voluntary resignation without any
severance compensation or severance benefits owed or to be paid to
Consultant.  Consultant’s resignation
does not affect his position as a director of Client on its Board of Directors.


 


2.          Compensation.  Client will compensate
Consultant for the Services as set forth in the Project Assignment pursuant to
this Agreement, or in such other Project Assignments as Client and Consultant
may agree upon in writing.  Consultant
will be reimbursed for expenses as described in the Project Assignment.  Payment of Consultant’s fees and expenses
will be in accordance with terms and conditions set forth in the applicable
Project Assignment.  Upon termination of
this Agreement for any reason, Consultant will be paid fees on the basis stated
in the Project Assignment(s) for authorized work which has been completed.


 


3.          Ownership of Work Product.  Consultant
hereby assigns to Client all right, title and interest in and to any work
product created or contributed by Consultant pursuant to this Agreement (the “Work Product”), if any, including all
copyrights, trademarks and other intellectual property rights contained
therein.  Consultant agrees to execute,
at Client’s request and expense, all documents and other instruments necessary
or desirable to confirm such assignment, including without limitation, the
copyright assignment set forth as Exhibit B (Assignment
of Copyright).  In the event that
Consultant does not, for any reason, execute such documents within a reasonable
time of Client’s request, Consultant hereby irrevocably appoints Client as
Consultant’s attorney-in-fact for the purpose of executing such documents on
Consultant’s behalf, which appointment is coupled with an interest.  Consultant understands and agrees that
Consultant has no right to use the Work Product except as necessary to perform
the Project Assignment for Client.


 


4.          License and Waiver of Other Rights.  If Consultant
has any rights, including without limitation “artist’s rights” or “moral
rights,” in the Work Product which cannot be assigned, Consultant agrees to
waive enforcement worldwide of such rights against Client.  In the event that Consultant has any such
rights, that cannot be assigned or waived, Consultant unconditionally grants to
Client an exclusive, perpetual, irrevocable, worldwide, fully-paid license,
with the right to sublicense through multiple levels of sublicensees, under any
and all such rights:  (a) to
reproduce, create derivative works of, distribute, publicly perform, publicly
display, digitally transmit, and otherwise use the Work Product in any medium
or format, whether now known or hereafter discovered; (b) to use, make,
have made, sell, offer to sell, import, and otherwise exploit any product or
service based on, embodying, incorporating, or derived from the Work Product;
and (c) to exercise any and all other present or future rights in the Work
Product.


 


5.          Representations and Warranties.  Consultant
represents and warrants that: (a) Consultant has the right and
unrestricted ability to perform the Services required under this Agreement and
to assign the Work Product to Client as set forth in Section 3 (including
without limitation the right to assign any Work Product created by Consultant’s
employees or contractors); (b) Consultant will not knowingly create or
contribute any Work Product that infringes upon any copyright, patent,
trademark, right of publicity or privacy, or any other


 

















 


proprietary right of any person, whether contractual,
statutory or based upon common law; (c) Consultant will take all necessary
or reasonable precautions to prevent injury to any person (including Client
employees, business contacts, tenants or potential tenants) or damage to any
real property or other property (including Client Property and Equipment (as
defined below)) during the term of this Agreement (provided that, Consultant
will not be responsible for any injuries or damages caused by Client’s
employees); and (d) the Services and all Work Product will fully conform
to the specifications, requirements, and other terms in the applicable Project
Assignment and this Agreement.


 


6.          Independent Contractor Relationship.  Consultant’s
relationship with Client is that of an independent contractor, and nothing in
this Agreement is intended to, or should be construed to, create a partnership,
agency, joint venture or employment relationship.  Subject to Section 14, Consultant is
excluded from participating in any fringe benefit plans or programs as a result
of the performance of the Services, without regard to Consultant’s independent
contractor status, including, but not limited to, health, sickness, accident or
dental coverage, life insurance, disability benefits, severance, accidental
death and dismemberment coverage, unemployment insurance coverage, workers’
compensation coverage, and pension or 401(k) benefit(s) provided by
the Client to its employees.  Consultant
agrees, as an independent contractor, that he is not entitled to unemployment
benefits in the event this Agreement terminates, or workers’ compensation
benefits in the event that Consultant is injured in any manner or becomes ill
while performing the Services under this Agreement.  Consultant, at Consultant’s sole cost,
expense and discretion, will maintain appropriate insurance coverage and
benefits for Consultant and any of Consultant’s employees, including but not
limited to workers’ compensation insurance coverage to the extent such coverage
is required.  Consultant is not
authorized to make any representation, contract or commitment on behalf of
Client unless specifically requested or authorized in writing to do so by a
Client officer or as provided in the applicable Project Assignment.  Consultant is solely responsible for, and
will file, on a timely basis, all tax returns and payments required to be filed
with, or made to, any federal, state or local tax authority with respect to the
performance of Services and receipt of fees under this Agreement.  Consultant is solely responsible for, and
must maintain adequate records of, expenses incurred in the course of performing
Services under this Agreement.  No part
of Consultant’s compensation will be subject to withholding by Client for the
payment of any social security, federal, state or any other employee payroll
taxes.  Client will regularly report any
amounts paid to Consultant by filing Form 1099-MISC with the Internal
Revenue Service as required by law.


 


7.          Confidential Information.  Consultant
agrees to hold Client’s Confidential Information in strict confidence and to
refrain from any disclosure, use or publication of such Confidential
Information, except as expressly authorized in writing by Client, during the
term of this Agreement and thereafter.  “Confidential Information” means any and all information
related to Client’s or its affiliates’ business (including trade secrets,
ideas, media, techniques, specifications, designs, plans, forecasts, reports,
financial statements and models, budgets, technical information, works of
authorship, databases, information systems, software and source documentation,
spreadsheets, analyses or analytical methods, financial or operational models,
algorithms, know-how, processes, customized construction and design features,
fixtures, equipment, building systems, laboratory and office systems, forms of
leases and related documentation, names of actual or prospective investors,
business partners, employees, tenants, customers, vendors, suppliers,
distributors and clients, proposals, bids, forecasts, market information,
information relating to research and development, properties, completed or
potential future property acquisitions, redevelopments, construction projects
and investments, procurement requirements, and the existence of any business
discussions, negotiations, or contractual relationships between Client or its
affiliates and any third party) that is labeled or identified as “confidential”
or “proprietary” or that Consultant otherwise knows, or would reasonably be
expected to know, Client or its affiliates consider to be confidential or
proprietary.  Consultant has a duty to
treat as confidential all of the foregoing whether provided or made accessible
by Client or its affiliates or learned or acquired during the performance of
the Services. Consultant’s obligations set forth in this Section 7 shall
not apply with respect to any portion of the Confidential Information that: (a) was
in the public domain at the time it was communicated to Consultant by Client or
its affiliates; (b) entered the public domain through no fault of
Consultant, subsequent to the time it was communicated to


 

















 


Consultant by Client or its affiliates; (c) was
in Consultant’s possession free of any obligation of confidence at the time it
was communicated to Consultant by Client or its affiliates; (d) was
rightfully communicated to Consultant free of any obligation of confidence
subsequent to the time it was communicated to Consultant by Client or its
affiliates; (e) was developed by employees or agents of Consultant
independently of and without reference to any information communicated to
Consultant by Client or its affiliates; or (f) was communicated by Client
to an unaffiliated third party free of any obligation of confidence.  Confidential Information does not include
basic business know-how that is generally known and used within the real estate
or life science industries, including but not limited to basic business
know-how and skills developed during Consultant’s employment with Client.  Consultant may disclose Client’s and its
affiliates’ Confidential Information in response to a valid order by a court or
other governmental body, or as otherwise required by law, after having given
Client and its affiliates sufficient prior notice to permit Client and its
affiliates a reasonable opportunity to lodge objections to such
disclosure.  All Confidential Information
furnished to Consultant by Client and its affiliates, or developed by
Consultant on Client’s behalf, is the sole and exclusive property of Client and
its affiliates or their suppliers or customers. 
Upon request by Client, Consultant agrees to promptly deliver to Client
the original and any copies of such Confidential Information.  Consultant understands and acknowledges that
Client is a public company, and that the disclosure of information relating to
Client and its affiliates is subject to state and federal securities laws.  Consultant agrees not to take any action to
violate applicable federal and state securities laws.


 


8.          Return of Client Property.  Upon
termination of the Agreement or earlier as requested by Client, Consultant
shall deliver to Client all of Client’s property, if any, including equipment
(including, without limitation, computers, personal computing devices, or
similar devices), software programs, documents, records, proposals, notes,
notebooks, lists (including any lists of business contacts, prospects, tenants,
prospective tenants, properties, customers, clients, vendors, suppliers,
distributors, consultants or agents with whom Client does business), files,
promotional literature, and reports, studies, fact sheets, drawings,
specifications, models, brochures, documents and materials relating to
acquisitions or potential acquisitions, documents and materials relating to
redevelopments or developments, agreements, leases, term sheets, letters of
intent and similar documents, draft documents, and any and all materials containing
or disclosing (in whole or in part) Work Product or Confidential Information;
and any and all other materials including, without limitation, computerized
and/or electronic information that refers, relates or otherwise pertains to
Client and/or its officers, directors, agents, employees and consultants, and
any and all business dealings of said persons and entities, which Consultant
received or developed during Consultant’s engagement by Client or which
Consultant otherwise possesses or controls, together with all copies or
reproductions thereof, in whole or in part (collectively, the “Client Property and Equipment”).  Consultant shall not retain any Client
Property and Equipment, including any copies, duplicates, or embodiments
thereof.  Consultant agrees to certify in
writing that Consultant has conducted a diligent search to locate any property
or information described in this paragraph that is within Consultant’s custody
or control and that Consultant has complied with the requirements of this
paragraph.  Consultant further agrees
that any property situated on Client’s premises and owned by Client, including
disks and other storage media or electronic systems, files, filing cabinets,
desks, or other work areas, is subject to inspection by Client personnel at any
time with or without notice.  In the
event of a legal claim by Consultant against Client, Client shall make
available for inspection, under reasonable confidentiality restrictions, such
Client Property and Equipment as is reasonably related to the issues raised by
such claim.  Notwithstanding the
foregoing, Consultant may retain any documents that he received in his capacity
as a director or shareholder of Client, including but not limited to annual
reports distributed to shareholders.


 


9.          No Conflict of Interest.  Consultant
acknowledges and agrees that he will be providing services that are special,
unique or extraordinary, and, due to the nature of his Services, his engagement
in any of the activities prohibited in this Section 9 would necessarily
involve the unauthorized use or disclosure of Confidential Information, and the
proprietary relationships and goodwill of Client.  Accordingly, Consultant shall not, during the
period of Consultant’s engagement by Client and for a period of two (2) years
thereafter, engage in any activity that is or may be (in the reasonable
discretion of Client) competitive with Client, directly or indirectly,


 

















 


and whether or not for compensation, in the business
of owning, operating, acquiring, managing, leasing, expanding, developing or
redeveloping commercial properties throughout the United States containing
either (a) office and laboratory space designed or improved for lease to
pharmaceutical, biotechnology, life science product and services companies, not
for profit scientific research institutions, universities, diagnostic and
personal care products companies, or government agencies (for the purpose of
laboratory research), or (b) office space designed or improved for lease
to data centers; and Consultant acknowledges that to engage in such activity
Consultant would inevitably use Client’s Confidential Information.  Consultant warrants that there is no other
contract or duty on Consultant’s part inconsistent with this Agreement.


 


10.        Term and Termination.


 


10.1       Term. 
The initial term of this Agreement is from the Consulting Commencement
Date hereof through December 31, 2011 (the “Initial Term”), unless the Agreement is
terminated earlier as provided in Section 10.2.  At the conclusion of the Initial Term (or any
subsequent term if the Agreement is extended beyond the Initial Term), the
Agreement will terminate unless extended by mutual written agreement of the
Parties.  “Term”
shall refer to the Initial Term plus any subsequent term.


 


10.2       Termination.  During the Term of the Agreement, either party may
terminate this Agreement, or any Project Assignment hereunder, with or without
cause at any time upon thirty (30) days prior written notice to the other
party.  In addition, during the Term of
the Agreement, either party may terminate this Agreement immediately upon
giving written notice in the event of the other party’s material breach of the
Agreement.  In addition, Consultant may
terminate this Agreement as provided under Section 19.


 


10.3       Survival. 
The rights and obligations contained in the following Sections:  3 (Ownership of Work Product), 4 (License and
Waiver of Other Rights), 5 (Representations and Warranties), 6 (Independent
Contractor Relationship), 7 (Confidential Information), 8 (Return of Client
Property), 9 (No Conflict of Interest), 11 (Nonsolicitation), 12
(Noninterference with Business), 13 (Indemnification; Limitation of Liability),
17 (Governing Law), 18 (Severability), 19 (No Assignment or
Subcontracting), 20 (Notices), 21 (Remedies), 22 (Waiver), and 23 (Dispute
Resolution) will survive any termination or expiration of the Term of the
Agreement.


 


11.        Nonsolicitation.  Consultant acknowledges that,
because of the nature of Consultant’s work for Client, Consultant’s
solicitation, servicing or retention of certain tenants (“Tenants”),
or certain brokers, vendors, suppliers, distributors, consultants, or partners
with whom Client does business from time to time related to Consultant’s work
for Client (each such person or entity, a “Supplier”)
would necessarily involve the unauthorized use or disclosure of Confidential
Information, and the proprietary relationships and goodwill of Client.  Accordingly, during the Term of this
Agreement and for a period of one (1) year following the termination of
the Agreement for any reason (the “Post-Termination Period”),
Consultant shall not, without Client’s express written consent, directly or
indirectly solicit:  (a) any Tenant
of Client with which Consultant actually engaged in business transactions on
behalf of Client during the two (2) year period prior to the termination
of the Agreement (the “Pre-Termination Period”);
(b) any Tenant of Client served during such Pre-Termination Period by an
office of Client located in any geographic area where Consultant provided
services to Client pursuant to this Agreement or any prior employment or
consulting agreement with Client; or (c) any Supplier or strategic partner
of Client during the Pre-Termination Period (i) to perform services within
the life sciences or data center fields, or (ii) that is then providing,
or is under contract to provide during the one year Post-Termination Period,
services to Client, which would be interrupted or impeded as a result of such
solicitation.  Consultant further agrees
that for a period of two (2) years following the termination of the
Agreement, Consultant shall not, without Client’s express written consent,
directly or indirectly solicit, induce, or attempt to solicit or induce, any
Tenant or Supplier to terminate his, her or its relationship with Client for
any purpose, including but not limited to the purpose of associating with or
becoming a Tenant or Supplier, whether or not exclusive, of Consultant or any
entity of which Consultant is or becomes a partner, stockholder, principal,


 

















 


member, employee, officer, director, principal,
contractor, agent, trustee or consultant. 
Consultant understands that Consultant is not prohibited from accepting
engagement by a Tenant, Supplier or strategic partner, provided such Consultant
acts in accordance herewith.


 


12.        Noninterference with Business.  During the
Term of this Agreement and for a period of one (1) year following the
termination of the Agreement, Consultant shall not, directly or indirectly,
solicit, induce, encourage or attempt to solicit, induce or encourage any
person known to Consultant to be an employee or independent contractor of
Client to terminate his or her engagement by or other relationship with Client
for any purpose whatsoever, including but not limited to the purpose of associating
with any entity of which Consultant is or becomes an employee, officer,
director, partner, stockholder, agent, trustee, consultant, or contractor, or
any competitor of Client.


 


13.        Indemnification; Limitation of Liability. 
Client agrees to indemnify Consultant and hold Consultant harmless with
respect to Services performed in good faith by Consultant except with regard to
gross negligence, willful misconduct, or material breach by Consultant; and, in
any event, Consultant’s liability to Client for claims arising from Services
performed hereunder shall be limited to the total amount of fees (including but
not limited to retainers) paid hereunder. 
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS
AGREEMENT.  EACH PARTY’S TOTAL CUMULATIVE
LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES AND EXPENSES OWED BY
CLIENT TO CONSULTANT FOR SERVICES PERFORMED UNDER THIS AGREEMENT.


 


14.        Stock Awards and Other Benefits.


 


14.1.     Stock Awards.  During Consultant’s employment
with Client, Consultant was granted certain options to purchase shares of
Client’s common stock (the “Options”) and
Consultant was granted certain shares of restricted stock of Client (the “Restricted Stock”). 
Consultant acknowledges that the Options were fully vested as of the
Resignation Date.  During the Term of
this Agreement, the Restricted Stock will continue to vest and the forfeiture
provisions for the Restricted Stock will not be triggered.  Notwithstanding anything to the contrary in
Client’s Amended and Restated 1997 Stock Award and Incentive Plan or the
applicable Restricted Stock agreements, vesting of the Restricted Stock will
cease, and the forfeiture provisions for the Restricted Stock will be
triggered, upon the termination of the Term of this Agreement, regardless of
whether Consultant continues to serve as a director on the Board of Directors
of Client.  During the period that ends
upon the later of the termination of the Term of this Agreement or the
termination of Consultant’s service as a director on the Board of Directors of
Client, the post-termination exercise period for the Options will not be
triggered.  Except as provided in this Section 14.1,
the Options and Restricted Stock will continue to be governed in all respects
by the terms of Client’s Amended and Restated 1997 Stock Award and Incentive
Plan and the applicable Option and Restricted Stock agreements.  Consultant acknowledges that any Options that
currently qualify as incentive stock options will lose that qualification three
(3) months after Consultant’s final day of employment with Client.  Client advises Consultant to seek independent
tax advice concerning the Options and Restricted Stock.


 


14.2.     Other Benefits.  Upon termination of Consultant’s
employment with Client, as of the Resignation Date, (a) with respect to
Client’s 401(k) Profit Sharing Plan (the “401(k) Plan”),
Consultant shall not be eligible to make any further elective deferrals and
will not receive any further employer profit sharing or other discretionary
employer contributions under the 401(k) Plan, other than any such profit
sharing contribution and employer “safe harbor” contribution made for the 2009
plan year to which Consultant may be entitled pursuant to the terms of the 401(k) Plan,
and shall be entitled to receive a distribution of his account under the 401(k) Plan
pursuant to the terms of the 401(k) Plan; (b) with respect to Client’s
Cash Balance Pension Plan (the “Cash Balance Plan”),
Consultant shall not be eligible to accrue any further benefits under the Cash
Balance Plan, provided that Consultant’s accrued benefit under the Cash Balance
Plan as of his employment termination date shall be credited with interest
earnings pursuant to the terms of the Cash Balance Plan until Consultant


 

















 


receives a distribution of such benefit in accordance
with the terms of the Cash Balance Plan; (c) with respect to Client’s Executive
Profit Sharing Plan (the “Profit Sharing Plan”),
Consultant shall not be eligible to receive any further employer profit sharing
or other discretionary employer contributions under the Profit Sharing Plan,
other than any such profit sharing contribution made for the 2009 plan year to
which Consultant may be entitled pursuant to the terms of the Profit Sharing
Plan, and shall be entitled to receive a distribution of his account under the
Profit Sharing Plan pursuant to the terms of the Profit Sharing Plan; and (d) with
respect to Client’s 2000 Deferred Compensation Plan (the “DCP”),
(i) Consultant shall not be eligible to defer any compensation received
from Client for services rendered after the Resignation Date or to be credited
with any matching or other employer contribution from Client under the DCP, (ii) Consultant
shall receive payment of the portion of his account under the DCP attributable
to deferrals made prior to January 1, 2005 under the DCP upon the earlier
of (1) his termination of service (including service rendered pursuant to
this Agreement) with Client and (2) a date Consultant may elect in
accordance with the terms of the DCP (provided, however, that such portion of
his account that is attributable to amounts deferred under the 2000 Venture
Investment Deferred Compensation Plan (the “VIP”)
prior to January 1, 2005 as to which a “Distribution Event” under the
terms of the VIP has not yet occurred, shall be made upon the occurrence of a
Distribution Event), and (iii) Consultant shall receive payment of the
portion of his account under the DCP attributable to deferrals made on or after
January 1, 2005 under the DCP on the date that is six (6) months and
one (1) day following the Resignation Date, or as soon as practicable
thereafter.  Notwithstanding the
foregoing, in the event of any conflict between the provisions of this Section 14.1
or 14.2 and the terms of the various plans discussed in this Section 14.1
and 14.2, the terms of the various plans shall control unless otherwise provided
herein.


 


15.        OFAC.  Consultant is currently:  (a) in compliance with, and shall at all
times during the term of this Agreement remain in compliance with, the
regulations of the Office of Foreign Assets Control (“OFAC”)
of the U.S. Department of Treasury and any statute, executive order, or
regulation relating thereto (collectively, the “OFAC Rules”);
(b) not listed on, and shall not during the term of this Agreement be
listed on, the Specially Designated Nationals and Blocked Persons List
maintained by OFAC and/or on any other similar list maintained by OFAC or other
governmental authority pursuant to any authorizing statute, executive order, or
regulation; and (c) not a person or entity with whom a U.S. person is
prohibited from conducting business under the OFAC Rules.


 


16.        Systems Usage Policy. 
Contemporaneous with signing this Agreement, Consultant must sign, date
and return to Client the Systems Usage Policy for External Users attached
hereto as Exhibit C.  Any breach by Consultant of the Systems Usage
Policy for External Users shall be considered a breach of this Agreement
(including for purposes of Section 10.2).


 


17.        Governing Law.  This Agreement is governed by
the laws of the State of California without reference to any conflict of laws
principles that would require the application of the laws of any other
jurisdiction.


 


18.        Severability.  If any provision of this Agreement is, for any reason, held to be invalid
or unenforceable, the other provisions of this Agreement will be unimpaired and
the invalid or unenforceable provision will be deemed modified so that it is
valid and enforceable to the maximum extent permitted by law in a manner
consistent with the intent of the parties insofar as possible.


 


19.        No Assignment or Subcontracting.  This Agreement
and Consultant’s rights and obligations under this Agreement may not be
assigned, delegated, subcontracted, or otherwise transferred, in whole or in
part, by operation of law or otherwise, by Consultant without Client’s express
prior written consent.  Any attempted
assignment, delegation, or transfer in violation of the foregoing will be null
and void.  Client may assign this
Agreement, or any of its rights under this Agreement, to any third party with
or without Consultant’s consent. 
Notwithstanding the foregoing, if Client assigns this Agreement to a
third party (other than any subsidiary 


 

















 


entities of Client) without Consultant’s written
consent (which shall not be unreasonably withheld), then Consultant may
terminate this Agreement upon providing five (5) business days prior
written notice to Client.


 


20.        Notices.  All notices or reports permitted or required
under this Agreement shall be in writing and shall be delivered by personal
delivery, overnight courier upon written verification of receipt, facsimile
transmission or by certified or registered mail, return receipt requested; and
shall be deemed given upon personal delivery, facsimile transmission, or five (5) days
after deposit in the mail, or one (1) day after deposit with an overnight
courier.  Notices to Client for all
purposes shall be sent to the attention of Client’s Chief Executive Officer at
the address set forth in this Section 20 and to Consultant as set forth in
the signature block below.  Either party
may change its address at any time by specifying such change to the other party
in writing.  Notices to Client shall be
directed to: Chief Executive Officer, Alexandria Real Estate Equities, Inc.,
385 East Colorado Blvd., Suite 299, Pasadena, California 91101; Facsimile:
(626) 578-0770.


 


21.        Remedies.  Client’s and/or
its affiliates’ remedies for any breach of
this Agreement by Consultant will include damages (as provided in Section 13),
injunctive relief, specific performance, and restitution.  Consultant acknowledges that any breach of this Agreement by Consultant
would cause irreparable injury to Client and/or its affiliates for which monetary damages would not be an
adequate remedy and, therefore, Client and/or its affiliates will be entitled to injunctive relief (including
specific performance).  The rights and
remedies provided to each Party in this Agreement are cumulative and in
addition to any other rights and remedies available to such Party at law or in
equity.


 


22.        Waiver.  The waiver by Client of a breach of any
provision of this Agreement by Consultant must be in writing to be effective
and shall not operate or be construed as a waiver of any other or subsequent
breach by Consultant.


 


23.        Dispute Resolution.  Any dispute
arising out of or relating to this Agreement, Consultant’s engagement by
Client, or between Consultant and Client or Client’s officers, directors,
agents or consultants, shall be submitted to final, binding and confidential
arbitration by one arbitrator under the then-existing rules and procedures
of JAMS, Inc. (“JAMS”) in
arbitration proceedings conducted in Los Angeles, California.  BY AGREEING TO THIS PROCEDURE, BOTH
CONSULTANT AND CLIENT WAIVE THE RIGHT TO RESOLVE ANY DISPUTE THROUGH A TRIAL BY
JURY OR JUDGE OR ADMINISTRATIVE PROCEEDING. 
The arbitrator shall have no power or authority to modify, enlarge or
add to the terms and provisions of this Agreement, except as otherwise
expressly agreed herein.  Judgment upon
the award of the arbitrator shall be binding upon the parties and may be
entered in any court having jurisdiction. 
The arbitrator shall award to the prevailing party reasonable attorneys’
fees and expenses from the other party, including any expert fees, which fees
and expenses shall be in addition to any other relief which may be
awarded.  This arbitration obligation
extends to, without limitation, claims or causes of action for wrongful
termination, impairment of ability to compete in the open labor market, breach
of an express or implied agreement, breach of the covenant of good faith and fair
dealing, breach of fiduciary duty, fraud, misrepresentation, defamation,
slander, libel, infliction of emotional distress, disability, loss of future
earnings, and claims under any applicable state Constitution, the United States
Constitution, and any applicable state and federal laws, including, but not
limited to, the Civil Rights Act of 1964 (as amended), the Fair Labor Standards
Act (as amended), the National Labor Relations Act (as amended), the
Labor-Management Relations Act (as amended), the Worker Retraining and
Notification Act of 1988 (as amended), the Americans With Disabilities Act of
1990 (as amended), the Rehabilitation Act of 1973 (as amended), the Employee
Retirement Income Security Act of 1974 (as amended), the Age Discrimination in
Employment by Act of 1967 (as amended), and any and all similar state laws, rules and
regulations.  Consultant’s obligations
under this Agreement are of a unique character that gives them particular
value; breach of any of such obligations will result in irreparable and
continuing damage to Client for which there will be no adequate remedy at law;
and, in the event of such breach, Client will be entitled to an award in
arbitration for injunctive relief and/or a decree for specific performance, and
such other and further relief as may 


 

















 


be proper (including monetary damages if appropriate);
and such injunctive relief from a court as may be necessary to avoid
irreparable harm pending the outcome of arbitration.


 


24.        Miscellaneous.  This Agreement constitutes the
complete, final, and exclusive embodiment of the entire agreement between the
parties relating to the subject matter hereof and supersedes all prior or
contemporaneous oral or written agreements and representations concerning such
subject matter.  The terms of this
Agreement will govern all services undertaken by Consultant for Client as of
the Consulting Commencement Date; provided, however, that in the event of any
conflict between the terms of this Agreement and any Project Assignment, the
terms of the applicable Project Assignment will control.  This Agreement may only be modified or
amended in a written agreement executed by Consultant and a duly authorized
officer of Client.  Any ambiguity in this
document shall not be construed against either party as the drafter.  The headings of the Sections and Paragraphs
of this Agreement are inserted for ease of reference only, and will have no
effect in the construction or interpretation of this Agreement.  This Agreement and any amendment or
supplement to this Agreement may be executed in two or more counterparts, each
of which will constitute an original but all of which will together constitute
a single instrument.  Transmission by
facsimile or PDF of an executed counterpart signature page hereof by a
party hereto shall constitute due execution and delivery of this Agreement by
such party.


 


25.        Release of Claims.  Except as
otherwise set forth in this Agreement, in exchange for the consideration under
this Agreement to which Consultant would not otherwise be entitled, Consultant
hereby generally and completely releases Client and its parent or subsidiary
entities, successors, predecessors and affiliates, and its and their directors,
officers, employees, shareholders, agents, attorneys, insurers, affiliates and
assigns (collectively, the “Released Parties”)
from any and all claims, liabilities and obligations, both known and unknown,
that arise out of or are in any way related to events, acts, conduct, or
omissions occurring prior to or on the date Consultant signs this Agreement
(collectively, the “Released Claims”).  The Released Claims include, but are not
limited to:  (a) all claims arising
out of or in any way related to Consultant’s employment with Client, or the
termination of that employment; (b) all claims related to compensation or
benefits from Client, including salary, bonuses, commissions, vacation pay,
expense reimbursements, severance pay, fringe benefits, profit sharing, carried
interest, stock, stock options, or any other ownership or equity interests; (c) all
claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing (including, but not limited to, claims
based on or arising under the Employment Agreement); (d) all tort claims,
including claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (e) all federal, state, and local
statutory claims, including claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under the federal Civil Rights Act of
1964 (as amended), the federal Americans with Disabilities Act of 1990, the
federal Age Discrimination in Employment Act of 1967 (as amended) (the “ADEA”), the California Labor Code (as amended), and the
California Fair Employment and Housing Act (as amended).  Notwithstanding the foregoing, the following
are not included in the Released Claims (the “Excluded
Claims”): (a) Consultant’s right to a potential “Performance
Bonus” for fiscal year 2008 pursuant to the terms of Section 3.2 of the
Employment Agreement; (b) any rights or claims for indemnification
Consultant may have pursuant to any written indemnification agreement with
Client to which he is a party or under applicable law; (c) any rights
which are not waivable as a matter of law; and (d) any claims for breach
of this Agreement.  In addition, nothing
in this Agreement prevents Consultant from filing, cooperating with, or
participating in any proceeding before the Equal Employment Opportunity
Commission, the Department of Labor, the California Department of Fair
Employment and Housing, or any other government agency, except that Consultant
acknowledges and agrees that he hereby waives his right to any monetary
benefits in connection with any such claim, charge or proceeding.  Consultant represents and warrants that,
other than the Excluded Claims, Consultant is not aware of any claims he has or
might have against any of the Released Parties that are not included in the
Released Claims.  Consultant agrees that
all parties released herein (other than Client) are third party beneficiaries
of this Agreement who may enforce the terms of such release.


 

















 


26.        ADEA Waiver. 
Consultant acknowledges that he is knowingly and voluntarily waiving and
releasing any rights he may have under the ADEA, and that the consideration
given for the waiver and release in the preceding paragraph hereof is in
addition to anything of value to which he is already entitled.  Consultant further acknowledges that he has
been advised as required by the ADEA, that:  (a) his waiver and
release do not apply to any rights or claims that may arise after the date that
he signs this Agreement; (b) he should
consult with an attorney prior to signing this Agreement (although he may
choose voluntarily not to do so); (c) he has
twenty-one (21) days to consider this Agreement (although he may choose
voluntarily to sign it earlier); (d) he has seven
(7) days following the date he signs this Agreement to revoke it by
providing written notice of revocation to Client’s Chief Executive Officer; and
(e) this Agreement will not be effective until
the date upon which the revocation period has expired, which will be the eighth
calendar day after the date that this Agreement is signed by Consultant (the “Effective Date”).


 


27.        Section 1542 Waiver. 
In giving the releases set forth in this Agreement, which includes
claims which may be unknown to Consultant at present, Consultant acknowledges
that he has read and understands Section 1542 of the California Civil Code
which reads as follows:  “A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or her
settlement with the debtor.” 
Consultant hereby expressly waives and relinquishes all rights and
benefits under that section and any law or legal principle of similar effect in
any jurisdiction with respect to Consultant’s release of claims herein,
including but not limited to the release of unknown and unsuspected claims.


 


IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the Effective Date as provided herein.


 


	
  ALEXANDRIA
  REAL ESTATE EQUITIES, INC.

  	
  JAMES
  H. RICHARDSON

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Joel S. Marcus

  	
   

  	
  /s/
  James H. Richardson

  
	
   

  	
  Joel
  S. Marcus, Chief Executive Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
    September 9,
  2009

  	
   

  	
  Date:

  	
    8/22/09