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EXHIBIT 10.1




BIOMED REALTY TRUST, INC.

BIOMED REALTY, L.P.

2004 INCENTIVE AWARD PLAN




ARTICLE 1




PURPOSE




     The purpose of the BioMed Realty Trust, Inc. and BioMed Realty, L.P. 2004 Incentive Award Plan
(the “Plan”) is to promote the success and enhance the value of BioMed Realty Trust, Inc., a
Maryland corporation (the “Company”), and BioMed Realty, L.P., a Maryland limited partnership (the
“Partnership”), by linking the personal interests of the members of the Board, Employees, and
Consultants to those of Company stockholders and by providing such individuals with an incentive
for performance to generate returns to Company stockholders. The Plan is further intended to
provide flexibility to the Company and the Partnership in their ability to motivate, attract, and
retain the services of members of the Board, Employees, and Consultants upon whose judgment,
interest, and special effort the successful conduct of the Company’s and the Partnership’s
operation is largely dependent.



ARTICLE 2




DEFINITIONS AND CONSTRUCTION




     Wherever the following terms are used in the Plan they shall have the meanings specified
below, unless the context clearly indicates otherwise. The singular pronoun shall include the
plural where the context so indicates.



     2.1 “Administrator” means the Board or a committee of the Board as described in Article 12.



     2.2 “Award” means an Option, a Restricted Stock award, a Stock Appreciation Right award, a
Dividend Equivalents award, a Stock Payment award, a Restricted Stock Unit award, an Other
Stock-Based Award, a Performance Bonus Award, or a Performance-Based Award granted to a Participant
pursuant to the Plan.



     2.3 “Award Agreement” means any written agreement, contract, or other instrument or document
evidencing an Award.



     2.4 “Board” means the Board of Directors of the Company.



     2.5 “Change in Control” means and includes each of the following:



          (a) the acquisition, directly or indirectly, by any “person” or “group” (as those terms are
defined in Sections 3(a) (9), 13(d), and 14(d) of the Exchange Act and the rules thereunder) of
“beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities
entitled to vote generally in the election of directors (“voting securities”) of the




 









 




Company that represent 20% or more of the combined voting power of the Company’s then
outstanding voting securities, other than




               (i) an acquisition by a trustee or other fiduciary holding securities under any employee
benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by
the Company or by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company, or



               (ii) an acquisition of voting securities by the Company or a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same proportions as their
ownership of the stock of the Company, or



               (iii) an acquisition of voting securities pursuant to a transaction described in subsection
(c) below that would not be a Change in Control under subsection (c);



          Notwithstanding the foregoing, neither of the following events shall constitute an
“acquisition” by any person or group for purposes of this subsection (a): (1) a change in the
voting power of the Company’s voting securities based on the relative trading values of the
Company’s then outstanding securities as determined pursuant to the Company’s Articles of
Incorporation, or (2) an acquisition of the Company’s securities by the Company which causes the
Company’s voting securities beneficially owned by a person or group to represent 20% or more of the
combined voting power of the Company’s then outstanding voting securities;




          (b) individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Effective Date whose appointment, election, or
nomination for election by the Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the Board;




          (c) the consummation by the Company (whether directly involving the Company or indirectly
involving the Company through one or more intermediaries) of a merger, consolidation,
reorganization, or business combination, a sale or other disposition of all or substantially all of
the Company’s assets, or the acquisition of assets or stock of another entity, in each case, other
than a transaction




               (i) which results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by being converted into
voting securities of the Company or the person that, as a result of the transaction, controls,
directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of
the Company’s assets or otherwise succeeds to the business of the Company (the Company or such
person, the “Successor Entity”)) directly or indirectly, at least 50% of the



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combined voting power of the Successor Entity’s outstanding voting securities immediately
after the transaction, and




               (ii) after which more than 50% of the members of the board of directors of the Successor
Entity are members of the Incumbent Board at the time of the Board’s approval of the agreement
providing for the transaction or other action of the Board approving the transaction, and



               (iii) after which no person or group beneficially owns voting securities representing 20% or
more of the combined voting power of the Successor Entity; provided, however, that no person or
group shall be treated for purposes of this paragraph (iii) as beneficially owning 20% or more of
combined voting power of the Successor Entity solely as a result of the voting power held in the
Company prior to the consummation of the transaction; or



          (d) the Company’s stockholders approve a liquidation or dissolution of the Company.




     For purposes of subsection (a) above, the calculation of voting power shall be made as if the
date of the acquisition were a record date for a vote of the Company’s stockholders, and for
purposes of subsection (c) above, the calculation of voting power shall be made as if the date of
the consummation of the transaction were a record date for a vote of the Company’s stockholders.



     The Administrator shall have full and final authority, which shall be exercised in its
discretion, to determine conclusively whether a Change in Control of the Company has occurred
pursuant to the above definition, and the date of the occurrence of such Change in Control and any
incidental matters relating thereto.



     2.6 “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     2.7 “Committee” means the committee of the Board described in Article 12.



     2.8 “Company Consultant” means any consultant or adviser if:



          (a) The consultant or adviser renders bona fide services to the Company or any Company
Subsidiary;




          (b) The services rendered by the consultant or adviser are not in connection with the offer or
sale of securities in a capital-raising transaction and do not directly or indirectly promote or
maintain a market for the Company’s securities; and




          (c) The consultant or adviser is a natural person who has contracted directly with the Company
or any Company Subsidiary to render such services.




     2.9 “Company Employee” means any employee (as defined in accordance with Section 3401(c) of
the Code) of the Company or any entity which is then a Company Subsidiary.



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     2.10 “Company Subsidiary” means (i) any “subsidiary corporation” of the Company as defined in
Section 424(f) of the Code and any applicable regulations promulgated thereunder, (ii) any other
entity of which a majority of the outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Company, or (iii) any partnership or limited liability company of
which 50% or more of the capital and profits interest is owned, directly or indirectly, by the
Company or by one or more Company Subsidiaries or by the Company and one or more Company
Subsidiaries; provided, however, that “Company Subsidiary” shall not include the Partnership or any
Partnership Subsidiary.



     2.11 “Consultant” means any Company Consultant or any Partnership Consultant.



     2.12 “Covered Employee” means an Employee who is, or is likely to become, a “covered employee”
within the meaning of Section 162(m) (3) of the Code.



     2.13 “Disability” means a permanent and total disability within the meaning of Section
22(e)(3) of the Code, as it may be amended from time to time.



     2.14 “Dividend Equivalents” means a right granted to a Participant pursuant to Article 8 to
receive the equivalent value (in cash or Stock) of dividends paid on Stock.



     2.15 “Effective Date” shall have the meaning set forth in Section 13.1.



     2.16 “Eligible Individual” means any person who is a member of the Board, a Consultant or an
Employee, as determined by the Administrator.



     2.17 “Employee” means any Company Employee or Partnership Employee.



     2.18 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.



     2.19 “Fair Market Value” means, as of any date, the value of Stock determined as follows:



          (a) If the Stock is listed on any established stock exchange or a national market system,
including without limitation the Nasdaq Global Market or The Nasdaq Capital Market, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such exchange or system for the date of determination (or the last trading
date prior to the date of determination if the Stock does not trade on the date of determination),
as reported in The Wall Street Journal or such other source as the Administrator deems reliable;




          (b) If the Stock is regularly quoted by a recognized securities dealer but selling prices are
not reported, its Fair Market Value shall be the mean of the closing bid and asked prices for the
Stock on the date of determination (or the last trading date prior to the date of determination if
the Stock does not trade on the date of determination) as reported in The Wall Street Journal or
such other source as the Administrator deems reliable; or




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          (c) In the absence of an established market for the Stock, the Fair Market Value thereof shall
be determined in good faith by the Administrator.




     2.20 “Incentive Stock Option” means an Option that is intended to be an incentive stock option
and meets the requirements of Section 422 of the Code or any successor provision thereto.



     2.21 “Independent Director” means a member of the Board who is not a Company Employee or a
Partnership Employee.



     2.22 “Non-Employee Director” means a member of the Board who qualifies as a “Non-Employee
Director” as defined in Rule 16b-3(b) (3) of the Exchange Act, or any successor definition adopted
by the Board.



     2.23 “Non-Qualified Stock Option” means an Option that is not intended to be an Incentive
Stock Option.



     2.24 “Option” means a right granted to a Participant pursuant to Article 5 of the Plan to
purchase a specified number of shares of Stock at a specified price during specified time periods.
An Option may be either an Incentive Stock Option or a Non-Qualified Stock Option.



     2.25 “Other Stock-Based Award” means an Award granted or denominated in Stock or units of
Stock pursuant to Section 8.4 of the Plan or denominated in other equity interests, including,
without limitation, equity interests of the Partnership, such as partnership profits interests,
that are convertible or exchangeable into Stock.



     2.26 “Participant” means any Eligible Individual who, as a member of the Board, a Consultant
or an Employee, has been granted an Award pursuant to the Plan.



     2.27 “Partnership Agreement” means the Agreement of Limited Partnership of BioMed Realty,
L.P., dated as of April 30, 2004, as the same may be amended, modified or restated from time to
time.



     2.28 “Partnership Consultant” means any consultant or adviser if:



          (a) The consultant or adviser renders bona fide services to the Partnership or any Partnership
Subsidiary;




          (b) The services rendered by the consultant or adviser are not in connection with the offer or
sale of securities in a capital-raising transaction and do not directly or indirectly promote or
maintain a market for the Company’s securities; and




          (c) The consultant or adviser is a natural person who has contracted directly with the
Partnership or any Partnership Subsidiary to render such services.




     2.29 “Partnership Employee” means any employee (as defined in accordance with Section 3401(c)
of the Code) of the Partnership or any entity which is then a Partnership Subsidiary.



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     2.30 “Partnership Subsidiary” means (i) any entity of which a majority of the outstanding
voting stock or voting power is beneficially owned directly or indirectly by the Partnership, or
(ii) any partnership or limited liability company of which 50% or more of the capital and profits
interest is owned, directly or indirectly, by the Partnership or by one or more Partnership
Subsidiaries or by the Partnership and one or more Partnership Subsidiaries.



     2.31 “Performance-Based Award” means an Award granted to selected Covered Employees pursuant
to Articles 6 and 8, but which is subject to the terms and conditions set forth in Article 9.



     2.32 “Performance Bonus Award” has the meaning set forth in Section 8.5.



     2.33 “Performance Criteria” means the criteria that the Administrator selects for purposes of
establishing the Performance Goal or Performance Goals for a Participant for a Performance Period.
The Performance Criteria that will be used to establish Performance Goals are limited to the
following: net earnings (either before or after interest, taxes, depreciation and amortization),
sales or revenue, net income (either before or after taxes), operating earnings, cash flow
(including, but not limited to, operating cash flow and free cash flow), return on net assets,
return on stockholders’ equity, return on sales, gross or net profit margin, working capital,
earnings per share, price per share of Stock, and funds from operations, in each case as determined
according to U.S. generally accepted accounting principles or in accordance with standards
established by the Board of Governors of the National Association of Real Estate Investment Trusts
in its March 1995 White Paper (as amended in November 1999 and April 2002, and as further amended
from time to time), any of which may be measured either in absolute terms or as compared to any
incremental increase or as compared to results of a peer group. The Administrator shall, within
the time prescribed by Section 162(m) of the Code, define in an objective fashion the manner of
calculating the Performance Criteria it selects to use for such Performance Period for such
Participant.



     2.34 “Performance Goals” means, for a Performance Period, the goals established in writing by
the Administrator for the Performance Period based upon the Performance Criteria. Depending on the
Performance Criteria used to establish such Performance Goals, the Performance Goals may be
expressed in terms of overall Company performance or the performance of a Subsidiary, division or
other operational unit. The Administrator, in its discretion, may, within the time prescribed by
Section 162(m) of the Code, adjust or modify the calculation of Performance Goals for such
Performance Period in order to prevent the dilution or enlargement of the rights of Participants
(i) in the event of, or in anticipation of, any unusual or extraordinary corporate item,
transaction, event, or development, or (ii) in recognition of, or in anticipation of, any other
unusual or nonrecurring events affecting the Company, or the financial statements of the Company,
or in response to, or in anticipation of, changes in applicable laws, regulations, accounting
principles, or business conditions.



     2.35 “Performance Period” means the one or more periods of time, which may be of varying and
overlapping durations, as the Administrator may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Participant’s right to, and the
payment of, a Performance-Based Award.



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     2.36 “Plan” means this BioMed Realty Trust, Inc. and BioMed Realty, L.P. 2004 Incentive Award
Plan, as it may be amended from time to time.



     2.37 “Public Trading Date” means the first date upon which Stock is listed (or approved for
listing) upon notice of issuance on any securities exchange or designated (or approved for
designation) upon notice of issuance as a national market security on an interdealer quotation
system.



     2.38 “Qualified Performance-Based Compensation” means any compensation that is intended to
qualify as “qualified performance-based compensation” as described in Section 162(m) (4) (C) of the
Code.



     2.39 “REIT” means a real estate investment trust within the meaning of Sections 856 through
860 of the Code.



     2.40 “Restricted Stock” means Stock awarded to a Participant pursuant to Article 6 that is
subject to certain restrictions and may be subject to risk of forfeiture or repurchase.



     2.41 “Restricted Stock Unit” means an Award granted pursuant to Section 8.3.



     2.42 “Securities Act” shall mean the Securities Act of 1933, as amended from time to time.



     2.43 “Stock” means the common stock of the Company, par value $0.01 per share, and such other
securities of the Company that may be substituted for Stock pursuant to Article 11.



     2.44 “Stock Appreciation Right” or “SAR” means a right granted pursuant to Article 7 to
receive a payment equal to the excess of the Fair Market Value of a specified number of shares of
Stock on the date the SAR is exercised over the Fair Market Value of such number of shares of Stock
on the date the SAR was granted as set forth in the applicable Award Agreement.



     2.45 “Stock Payment” means (a) a payment in the form of shares of Stock, or (b) an option or
other right to purchase shares of Stock, as part of any bonus, deferred compensation or other
arrangement, made in lieu of all or any portion of the compensation, granted pursuant to Section
8.2.



     2.46 “Subsidiary” means any Company Subsidiary or Partnership Subsidiary.



ARTICLE 3




SHARES SUBJECT TO THE PLAN




     3.1 Number of Shares.



          (a) Subject to Article 11 and Section 3.1(b), the aggregate number of shares of Stock which
may be issued or transferred pursuant to Awards under the Plan shall be 2,500,000 shares.




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          (b) To the extent that an Award terminates, expires, or lapses for any reason, any shares of
Stock subject to the Award shall again be available for the grant of an Award pursuant to the Plan.
Additionally, any shares of Stock tendered or withheld to satisfy the grant or exercise price or
tax withholding obligation pursuant to any Award shall again be available for the grant of an Award
pursuant to the Plan. To the extent permitted by applicable law or any exchange rule, shares of
Stock issued in assumption of, or in substitution for, any outstanding awards of any entity
acquired in any form of combination by the Company, the Partnership or any Subsidiary shall not be
counted against shares of Stock available for grant pursuant to this Plan. Notwithstanding the
foregoing, Other Stock-Based Awards covering units in the Partnership shall reduce the maximum
aggregate number of shares of Stock that may be issued under this Plan, or to any one Participant
pursuant to Section 3.3, on a one-for-one basis, i.e., each such unit shall be treated as an award
of Stock.




     3.2 Stock Distributed. Any Stock distributed pursuant to an Award may consist, in whole or in
part, of authorized and unissued Stock or Stock purchased on the open market.



     3.3 Limitation on Number of Shares Subject to Awards. Notwithstanding any provision in the
Plan to the contrary, and subject to Article 11, the maximum number of shares of Stock with respect
to one or more Awards that may be granted to any one Participant during a rolling three-year period
(measured retrospectively from the date of any grant) shall be 1,500,000; provided, however, that
the foregoing limitation shall not apply prior to the Public Trading Date and, following the Public
Trading Date, the foregoing limitation shall not apply until the earliest of: (a) the first
material modification of the Plan (including any increase in the number of shares reserved for
issuance under the Plan in accordance with Section 3.1); (b) the issuance of all of the shares of
Stock reserved for issuance under the Plan; (c) the expiration of the Plan; (d) the first meeting
of stockholders at which members of the Board are to be elected that occurs after the close of the
third calendar year following the calendar year in which occurred the first registration of an
equity security of the Company under Section 12 of the Exchange Act; or (e) such other date
required by Section 162(m) of the Code and the rules and regulations promulgated thereunder.



ARTICLE 4




ELIGIBILITY AND PARTICIPATION




     4.1 Eligibility. Persons eligible to participate in this Plan include Employees, Consultants
and all members of the Board, as determined by the Administrator.



     4.2 Participation. Subject to the provisions of the Plan, the Administrator may, from time to
time, select from among all Eligible Individuals those to whom Awards shall be granted and shall
determine the nature and amount of each Award. No individual shall have any right to be granted an
Award pursuant to this Plan.



ARTICLE 5




STOCK OPTIONS




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     5.1 General. The Administrator is authorized to grant Options to Eligible Individuals on the
following terms and conditions:



          (a) Exercise Price. The exercise price per share of Stock subject to an Option shall be
determined by the Administrator and set forth in the Award Agreement; provided that the exercise
price for any Option shall not be less than par value.




          (b) Time and Conditions of Exercise. The Administrator shall determine the time or times at
which an Option may be exercised in whole or in part; provided that the term of any Option granted
under the Plan shall not exceed ten years. The Administrator shall also determine the performance
or other conditions, if any, that must be satisfied before all or part of an Option may be
exercised.




          (c) Payment. The Administrator shall determine the methods, terms and conditions by which the
exercise price of an Option may be paid, and the form and manner of payment, including, without
limitation, payment in the form of cash, promissory note bearing interest at no less than such rate
as shall then preclude the imputation of interest under the Code, shares of Stock, or other
property acceptable to the Administrator and payment through the delivery of a notice that the
Participant has placed a market sell order with a broker with respect to shares of Stock then
issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient
portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise
price; provided that payment of such proceeds is then made to the Company upon settlement of such
sale), and the methods by which shares of Stock shall be delivered or deemed to be delivered to
Participants. Notwithstanding any other provision of the Plan to the contrary, (i) no Participant
who is a member of the Board or an “executive officer” of the Company within the meaning of Section
13(k) of the Exchange Act shall be permitted to pay the exercise price of an Option in any method
which would violate Section 13(k) of the Exchange Act, and (ii) in no event shall the Administrator
permit a Participant to pay the exercise price of an Option with any promissory note that is
inconsistent with the Company’s qualification as a REIT.




          (d) Evidence of Grant. All Options shall be evidenced by a written Award Agreement between
the Company and the Participant. The Award Agreement shall include such additional provisions as
may be specified by the Administrator.




     5.2 Incentive Stock Options. Incentive Stock Options may be granted only to employees (as
defined in accordance with Section 3401(c) of the Code) of the Company or a Company Subsidiary
which constitutes a “subsidiary corporation” of the Company within Section 424(f) of the Code and
any applicable regulations promulgated thereunder, and the terms of any Incentive Stock Options
granted pursuant to the Plan must comply with the following additional provisions of this Section
5.2:



          (a) Exercise Price. Subject to Section 5.2(d) below, the exercise price per share of Stock
subject to an Incentive Stock Option shall be set by the Administrator; provided that the exercise
price per share for any Incentive Stock Option shall not be less than 100% of the Fair Market Value
on the date of grant.




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          (b) Expiration of Option. Subject to Section 5.2(d), an Incentive Stock Option may not be
exercised to any extent by anyone after the first to occur of the following events; provided,
however, that the Administrator may, prior to the expiration of the Incentive Stock Option under
the circumstances described in paragraphs (ii), (iii) or (iv) below, provide in writing that the
Option will expire on a later date, but if the expiration date of an Incentive Stock Option is so
extended, it will automatically become a Non-Qualified Stock Option:




               (i) Ten years from the date it is granted, unless an earlier time is set in the Award
Agreement.



               (ii) Three months after termination of the Participant’s employment for any reason other than
the Participant’s Disability or death.



               (iii) One year after the termination of the Participant’s employment on account of Disability
or death.



               (iv) One year after the Participant’s death if the Participant dies while employed or during
the three-month period described in paragraph (ii) or during the one-year period described in
paragraph (iii) and before the Option otherwise expires.



               Upon the Participant’s Disability or death, any Incentive Stock Options exercisable at the
Participant’s Disability or death may be exercised by the Participant’s legal representative or
representatives, by the person or persons entitled to do so pursuant to the Participant’s last will
and testament, or, if the Participant fails to make testamentary disposition of such Incentive
Stock Option or dies intestate, by the person or persons entitled to receive the Incentive Stock
Option pursuant to the applicable laws of descent and distribution.



          (c) Individual Dollar Limitation. The aggregate Fair Market Value (determined as of the time
the Option is granted) of all shares of Stock with respect to which Incentive Stock Options are
first exercisable by a Participant in any calendar year may not exceed $100,000.00 or such other
limitation as imposed by Section 422(d) of the Code, or any successor provision. To the extent
that Incentive Stock Options are first exercisable by a Participant in excess of such limitation,
the excess shall be considered Non-Qualified Stock Options.




          (d) Ten Percent Owners. An Incentive Stock Option shall be granted to any individual who, at
the date of grant, owns stock possessing more than ten percent of the total combined voting power
of all classes of Stock of the Company or any “subsidiary corporation” of the Company or “parent
corporation” of the Company (each within the meaning of Section 424 of the Code) only if such
Option is granted at an exercise price per share that is not less than 110% of Fair Market Value on
the date of grant and the Option is exercisable for no more than five years from the date of grant.




          (e) Transfer Restriction. An Incentive Stock Option shall not be transferable by the
Participant other than by will or by the laws of descent or distribution.




          (f) Expiration of Incentive Stock Options. No Award of an Incentive Stock Option may be made
pursuant to this Plan after the Expiration Date.




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          (g) Right to Exercise. During a Participant’s lifetime, an Incentive Stock Option may be
exercised only by the Participant.




     5.3 Substitution of Stock Appreciation Rights. The Administrator may provide in the Award
Agreement evidencing the grant of an Option that the Administrator, in its sole discretion, shall
have to right to substitute a Stock Appreciation Right for such Option at any time prior to or upon
exercise of such Option, subject to the provisions of Section 7.3 hereof; provided that such Stock
Appreciation Right shall be exercisable for the same number of shares of Stock for which such
substituted Option would have been exercisable.



     5.4 Paperless Exercise. In the event that the Company establishes, for itself or using the
services of a third party, an automated system for the exercise of Options, such as a system using
an internet website or interactive voice response, then the paperless exercise of Options by a
Participant may be permitted through the use of such an automated system.



     5.5 Transfer of Shares to a Company Employee, Consultant or Independent Director. As soon as
practicable after receipt by the Company, pursuant to Section 5.1(c), of payment for the shares
with respect to which an Option (which in the case of a Company Employee, Company Consultant or
Independent Director was issued to and is held by such Participant in such capacity), or portion
thereof, is exercised by a Participant who is a Company Employee, Independent Director or Company
Consultant, then, with respect to each such exercise, the Company shall transfer to the Participant
the number of shares equal to



          (a) The amount of the payment made by the Participant to the Company pursuant to Section
5.1(c), divided by




          (b) The price per share of the shares subject to the Option as determined pursuant to Section
5.1(a).




     5.6 Transfer of Shares to a Partnership Employee or Partnership Consultant. As soon as
practicable after receipt by the Company, pursuant to Section 5.1(c), of payment for the shares
with respect to which an Option (which was issued to and is held by a Partnership Employee or
Partnership Consultant in such capacity), or portion thereof, is exercised by a Participant who is
a Partnership Employee or Partnership Consultant, then, with respect to each such exercise:



          (a) the Company shall transfer to the Participant the number of shares equal to (i) the amount
of the payment made by the Participant to the Company pursuant to Section 5.1(c) divided by (ii)
the Fair Market Value of a share of Stock at the time of exercise (the “Partnership Holder
Purchased Shares”);




          (b) the Company shall sell to the Partnership the number of shares (the “Partnership Purchased
Shares”) equal to the excess of (i) the amount obtained by dividing (A) the amount of the payment
made by the Participant to the Company pursuant to Section 5.1(c) by (B) the price per share of the
shares subject to the Option as determined pursuant to Section 5.1(a), over (ii) the Partnership
Holder Purchased Shares. The price to be paid by the Partnership to the Company for the
Partnership Purchased Shares (the “Partnership Purchase Price”) shall be an amount equal to the
product of (x) the number of Partnership Purchased Shares multiplied by (y) the Fair Market Value
of a share of Stock at the time of the exercise; and




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          (c) as soon as practicable after receipt of the Partnership Purchased Shares by the
Partnership, the Partnership shall transfer such shares to the Participant at no additional cost,
as additional compensation.




     5.7 Transfer of Payment to the Partnership. As soon as practicable after receipt by the
Company of the amounts described in Sections 5.1(c), 5.5 and 5.6, the Company shall contribute to
the Partnership an amount of cash equal to such payments and the Partnership shall issue an
additional interest in the Partnership on the terms set forth in the Partnership Agreement.



ARTICLE 6




RESTRICTED STOCK AWARDS




     6.1 Grant of Restricted Stock. The Administrator is authorized to make Awards of Restricted
Stock to any Eligible Individual selected by the Administrator in such amounts and subject to such
terms and conditions as determined by the Administrator. All Awards of Restricted Stock shall be
evidenced by a written Restricted Stock Award Agreement. Subject to Section 6.6 below, the
Administrator shall determine the mechanism for the transfer of the Restricted Stock and payment
therefor in the case of Awards to Partnership Employees or Partnership Consultants, and any
forfeiture or repurchase of such Restricted Stock pursuant to Section 6.3.



     6.2 Issuance and Restrictions. Restricted Stock shall be subject to such repurchase
restrictions, forfeiture restrictions, restrictions on transferability and other restrictions as
the Administrator may impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock). These restrictions
may lapse separately or in combination at such times, pursuant to such circumstances or
installments or otherwise as the Administrator determines at the time of the grant of the Award or
thereafter. Alternatively, these restrictions may lapse pursuant to the satisfaction of one or
more Performance Goals or other specific performance goals as the Administrator determines to be
appropriate at the time of the grant of the Award or thereafter, in each case on a specified date
or dates or over any period or periods determined by the Administrator.



     6.3 Repurchase or Forfeiture. Except as otherwise determined by the Administrator at the time
of the grant of the Award or thereafter, upon termination of employment or service during the
applicable restriction period, Restricted Stock that is at that time subject to restrictions shall
be forfeited or subject to repurchase by the Company under such terms as the Administrator shall
determine; provided, however, that the Administrator may (a) provide in any Restricted Stock Award
Agreement that restrictions or forfeiture conditions relating to Restricted Stock will be waived in
whole or in part in the event of terminations resulting from specified causes, and (b) in other
cases waive in whole or in part restrictions or forfeiture conditions relating to Restricted Stock.



     6.4 Certificates for Restricted Stock. Restricted Stock granted pursuant to the Plan may be
evidenced in such manner as the Administrator shall determine. If certificates representing shares
of Restricted Stock are registered in the name of the Participant, certificates must bear an
appropriate legend referring to the terms, conditions, and restrictions applicable to



12









 




such Restricted Stock, and the Company may, at its discretion, retain physical possession of
the certificate until such time as all applicable restrictions lapse.




     6.5 Automatic Grants to Independent Directors. During the term of the Plan, a person who is
an Independent Director as of the Public Trading Date automatically shall be granted (i) 2,000
shares of Restricted Stock (subject to adjustment as provided in Article 11) on the Public Trading
Date and (ii) 2,000 shares of Restricted Stock (subject to adjustment as provided in Article 11) on
the date of each annual meeting of the Company’s stockholders after the Public Trading Date.
During the term of the Plan, a person who is initially elected to the Board following the Public
Trading Date and who is an Independent Director at the time of such initial election automatically
shall be granted (y) 2,000 shares of Restricted Stock (subject to adjustment as provided in Article
11) on the date of such initial election and (z) 2,000 shares of Restricted Stock (subject to
adjustment as provided in Article 11) on the date of each annual meeting of the Company’s
stockholders after the date of such election (other than the annual meeting at which the
Independent Director receives an award of Restricted Stock pursuant to clause (y) above). The
purchase price per share of any awards of Restricted Stock pursuant to this Section 6.5 shall be
the par value per share of the Stock. Awards of Restricted Stock pursuant to this Section 6.5
shall be subject to a repurchase restriction in favor of the Company in the event of an Independent
Director’s termination of service as a Director for any reason. Such repurchase restriction shall
lapse on the first anniversary of the date of issuance of such Restricted Stock, subject to an
Independent Director’s continued service as a Director on such date.



     6.6 Restricted Stock Issued to a Partnership Employee or Partnership Consultant.



          (a) In connection with the issuance of shares of Restricted Stock to any Partnership Employee
or Partnership Consultant, the Partnership Employee or Partnership Consultant shall pay the
purchase price for the shares of Restricted Stock to the Company in exchange for the issuance of
the shares of Restricted Stock.




          (b) As soon as practicable after the receipt by the Company, pursuant to Section 6.6(a), of
payment for the shares of Restricted Stock issued to a Partnership Employee or Partnership
Consultant, the Company shall transfer such purchase price to the Partnership. For tax purposes,
such purchase price shall be treated as paid to the Partnership as the employer of the Partnership
Employee or Partnership Consultant (i.e., not a capital contribution).




          (c) Prior to the time that the Restricted Stock issued to a Partnership Employee or
Partnership Consultant vests, the Company shall make dividend and other payments to the Partnership
Employee or Partnership Consultant in respect of the Restricted Stock, provided that the
Partnership shall reimburse the Company for such amounts and deduct such amounts as compensation.
In order to effectuate this, in addition to the Partnership’s distributions to the Company with
respect to the Partnership units held by the Company, the Partnership shall make an additional
payment to the Company in the amount of this reimbursement, which shall not be treated as a
partnership distribution. The Company shall not issue a Form 1099 to the Partnership Employee or
Partnership Consultant for these payments.




13









 





          (d) If and when the Restricted Stock issued to a Partnership Employee or Partnership
Consultant vests, the Partnership shall issue Partnership units to the Company on the terms set
forth in the Partnership Agreement, and distributions on such units shall be used by the Company to
make future dividend payments on the vested shares of Restricted Stock to the Partnership Employee
or Partnership Consultant.




          (e) If the Restricted Stock issued to a Partnership Employee or Partnership Consultant is
forfeited or repurchased pursuant to Section 6.3, the shares of Restricted Stock shall be returned
to the Company and, if applicable, the Partnership shall return the purchase price, if any, of the
Restricted Stock to the Partnership Employee or Partnership Consultant.




ARTICLE 7




STOCK APPRECIATION RIGHTS




     7.1 Grant of Stock Appreciation Rights. A Stock Appreciation Right may be granted to any
Eligible Individual selected by the Administrator. A Stock Appreciation Right may be granted (a)
in connection and simultaneously with the grant of an Option, (b) with respect to a previously
granted Option, or (c) independent of an Option. A Stock Appreciation Right shall be subject to
such terms and conditions not inconsistent with the Plan as the Administrator shall impose and
shall be evidenced by an Award Agreement (including, without limitation, in the case of Awards to
Partnership Employees or Partnership Consultants, the mechanism for the transfer of rights under
such Awards).



     7.2 Coupled Stock Appreciation Rights.



          (a) A Coupled Stock Appreciation Right (“CSAR”) shall be related to a particular Option and
shall be exercisable only when and to the extent the related Option is exercisable.




          (b) A CSAR may be granted to an Eligible Individual for no more than the number of shares
subject to the simultaneously or previously granted Option to which it is coupled.




          (c) A CSAR shall entitle the Participant (or other person entitled to exercise the Option
pursuant to the Plan) to surrender to the Company the unexercised portion of the Option to which
the CSAR relates (to the extent then exercisable pursuant to its terms) and to receive from the
Company in exchange therefor an amount determined by multiplying (i) the amount (if any) by which
the Fair Market Value of a share of Stock on the date of exercise of the CSAR exceeds the per share
exercise price of the Option to which the CSAR relates, by (ii) the number of shares of Stock with
respect to which the CSAR shall have been exercised, subject to any limitations the Administrator
may impose.




     7.3 Independent Stock Appreciation Rights.



          (a) An Independent Stock Appreciation Right (“ISAR”) shall be unrelated to any Option and
shall have a term set by the Administrator. An ISAR shall be exercisable in such installments as
the Administrator may determine. An ISAR shall cover such number of shares of




14









 




Stock as the Administrator may determine. The exercise price per share of Stock subject to
each ISAR shall be set by the Administrator.




          (b) An ISAR shall entitle the Participant (or other person entitled to exercise the ISAR
pursuant to the Plan) to exercise all or a specified portion of the ISAR (to the extent then
exercisable pursuant to its terms) and to receive from the Company an amount determined by
multiplying (i) the amount (if any) by which the Fair Market Value of a share of Stock on the date
of exercise of the ISAR exceeds the exercise price per share of the ISAR, by (ii) the number of
shares of Stock with respect to which the ISAR shall have been exercised, subject to any
limitations the Administrator may impose.




     7.4 Payment and Limitations on Exercise. Payment of the amounts determined under Sections
7.2(c) and 7.3(b) above shall be in cash, in Stock (based on its Fair Market Value as of the date
the Stock Appreciation Right is exercised) or a combination of both, as determined by the
Administrator.



ARTICLE 8




OTHER TYPES OF AWARDS




     8.1 Dividend Equivalents.



          (a) Any Eligible Individual selected by the Administrator may be granted Dividend Equivalents
based on the dividends declared on the shares of Stock that are subject to any Award, to be
credited as of dividend payment dates, during the period between the date the Award is granted and
the date the Award is exercised, vests or expires, as determined by the Administrator. Such
Dividend Equivalents shall be converted to cash or additional shares of Stock by such formula and
at such time and subject to such limitations as may be determined by the Administrator. The
Administrator shall specify the mechanism for the transfer of the Stock pursuant to a Dividend
Equivalent Award in the case of Awards to Partnership Employees or Partnership Consultants.




          (b) Dividend Equivalents granted with respect to Options or SARs that are intended to be
Qualified Performance-Based Compensation shall be payable, with respect to pre-exercise periods,
regardless of whether such Option or SAR is subsequently exercised.




     8.2 Stock Payments. Any Eligible Individual selected by the Administrator may receive Stock
Payments in the manner determined from time to time by the Administrator; provided, that unless
otherwise determined by the Administrator such Stock Payments shall be made in lieu of base salary,
bonus, or other cash compensation otherwise payable to such Participant. The number of shares
shall be determined by the Administrator and may be based upon the Performance Goals or other
specific performance goals determined appropriate by the Administrator, determined on the date such
Stock Payment is made or on any date thereafter, in each case on a specified date or dates or over
any period or periods determined by the Administrator. The Administrator shall specify the
mechanism for the transfer of the Stock pursuant to a Stock Payment Award and payment therefor, if
applicable, in the case of Awards to Partnership Employees or Partnership Consultants.



15









 





     8.3 Restricted Stock Units. The Administrator is authorized to make Awards of Restricted
Stock Units to any Eligible Individual selected by the Administrator in such amounts and subject to
such terms and conditions as determined by the Administrator. At the time of grant, the
Administrator shall specify the date or dates on which the Restricted Stock Units shall become
fully vested and nonforfeitable, and may specify such conditions to vesting as it deems
appropriate. Alternatively, Restricted Stock Units may become fully vested and nonforfeitable
pursuant to the satisfaction of one or more Performance Goals or other specific performance goals
as the Administrator determines to be appropriate at the time of the grant of the Restricted Stock
Units or thereafter, in each case on a specified date or dates or over any period or periods
determined by the Administrator. At the time of grant, the Administrator shall specify the
maturity date applicable to each grant of Restricted Stock Units which shall be no earlier than the
vesting date or dates of the Award and may be determined at the election of the grantee. On the
maturity date, the Company shall transfer to the Participant one unrestricted, fully transferable
share of Stock for each Restricted Stock Unit scheduled to be paid out on such date and not
previously forfeited. The Administrator shall specify the purchase price, if any, to be paid by
the Participant to the Company for such shares of Stock pursuant to Restricted Stock Unit Awards
and the mechanism for the transfer of the Stock and payment therefor in the case of Awards to
Partnership Employees or Partnership Consultants.



     8.4 Other Stock-Based Awards. Any Eligible Individual selected by the Administrator may be
granted one or more Awards that provide such Eligible Individual with shares of Stock or other
equity interests or the right to purchase shares of Stock or other equity interests or that have a
value derived from the value of, or an exercise or conversion privilege at a price related to, or
that are otherwise payable in shares of Stock or other equity interests and which may be linked to
any one or more of the Performance Goals or other specific performance goals determined appropriate
by the Administrator, in each case on a specified date or dates or over any period or periods
determined by the Administrator. The Administrator shall specify the mechanism for the transfer of
the Stock or other equity interests pursuant to Other Stock-Based Awards and payment therefor in
the case of Awards to Partnership Employees or Partnership Consultants.



     8.5 Performance Bonus Awards. Any Eligible Individual selected by the Administrator may be
granted one or more Performance-Based Awards in the form of a cash bonus (a “Performance Bonus
Award”) payable upon the attainment of Performance Goals that are established by the Administrator
and relate to one or more of the Performance Criteria, in each case on a specified date or dates or
over any period or periods determined by the Administrator. Any such Performance Bonus Award paid
to a Covered Employee shall be based upon objectively determinable bonus formulas established in
accordance with Article 9. The maximum amount of any Performance Bonus Award payable to a Covered
Employee with respect to any fiscal year of the Company shall not exceed $1,500,000.



     8.6 Term. Except as otherwise provided herein, the term of any Award of Dividend Equivalents,
Stock Payments, Restricted Stock Units, Other Stock-Based Awards or Performance Bonus Awards shall
be set by the Administrator in its discretion.



     8.7 Exercise or Purchase Price. The Administrator may establish the exercise or purchase
price, if any, of any Award of Stock Payments, Restricted Stock Units or Other Stock-



16









 




Based Award; provided, however, that such price shall not be less than the par value of a
share of Stock on the date of grant, unless otherwise permitted by applicable state law.




     8.8 Form of Payment. Payments with respect to any Awards granted under Sections 8.1, 8.2, 8.3
or 8.4 shall be made in cash, in Stock or a combination of both, as determined by the
Administrator.



     8.9 Award Agreement. All Awards under this Article 8 shall be subject to such additional
terms and conditions as determined by the Administrator and shall be evidenced by a written Award
Agreement.



ARTICLE 9




PERFORMANCE-BASED AWARDS




     9.1 Purpose. The purpose of this Article 9 is to provide the Administrator the ability to
qualify Awards other than Options and SARs and that are granted pursuant to Articles 6 and 8 as
Qualified Performance-Based Compensation. If the Administrator, in its discretion, decides to
grant a Performance-Based Award to a Covered Employee, the provisions of this Article 9 shall
control over any contrary provision contained in Articles 6 or 8; provided, however, that the
Administrator may in its discretion grant Awards to Covered Employees that are based on Performance
Criteria or Performance Goals but that do not satisfy the requirements of this Article 9.



     9.2 Applicability. This Article 9 shall apply only to those Covered Employees selected by the
Administrator to receive Performance-Based Awards. The designation of a Covered Employee as a
Participant for a Performance Period shall not in any manner entitle the Participant to receive an
Award for the period. Moreover, designation of a Covered Employee as a Participant for a
particular Performance Period shall not require designation of such Covered Employee as a
Participant in any subsequent Performance Period and designation of one Covered Employee as a
Participant shall not require designation of any other Covered Employees as a Participant in such
period or in any other period.



     9.3 Procedures with Respect to Performance-Based Awards. To the extent necessary to comply
with the Qualified Performance-Based Compensation requirements of Section 162(m) (4) (C) of the
Code, with respect to any Award granted under Articles 6 and 8 which may be granted to one or more
Covered Employees, no later than ninety (90) days following the commencement of any fiscal year in
question or any other designated fiscal period or period of service (or such other time as may be
required or permitted by Section 162(m) of the Code), the Administrator shall, in writing, (a)
designate one or more Covered Employees, (b) select the Performance Criteria applicable to the
Performance Period, (c) establish the Performance Goals, and amounts of such Awards, as applicable,
which may be earned for such Performance Period, and (d) specify the relationship between
Performance Criteria and the Performance Goals and the amounts of such Awards, as applicable, to be
earned by each Covered Employee for such Performance Period. Following the completion of each
Performance Period, the Administrator shall certify in writing whether the applicable Performance
Goals have been achieved for such Performance Period. In determining the amount earned by a
Covered Employee, the



17









 




Administrator shall have the right to reduce or eliminate (but not to increase) the amount
payable at a given level of performance to take into account additional factors that the
Administrator may deem relevant to the assessment of individual or corporate performance for the
Performance Period.




     9.4 Payment of Performance-Based Awards. Unless otherwise provided in the applicable Award
Agreement, a Participant must be employed by the Company, the Partnership or a Subsidiary on the
day a Performance-Based Award for such Performance Period is paid to the Participant. Furthermore,
a Participant shall be eligible to receive payment pursuant to a Performance-Based Award for a
Performance Period only if the Performance Goals for such period are achieved.



     9.5 Additional Limitations. Notwithstanding any other provision of the Plan, any Award which
is granted to a Covered Employee and is intended to constitute Qualified Performance-Based
Compensation shall be subject to any additional limitations set forth in Section 162(m) of the Code
(including any amendment to Section 162(m) of the Code) or any regulations or rulings issued
thereunder that are requirements for qualification as qualified performance-based compensation as
described in Section 162(m) (4) (C) of the Code, and the Plan shall be deemed amended to the extent
necessary to conform to such requirements.



ARTICLE 10




PROVISIONS APPLICABLE TO AWARDS




     10.1 Stand-Alone and Tandem Awards. Awards granted pursuant to the Plan may, in the
discretion of the Administrator, be granted either alone, in addition to, or in tandem with, any
other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other
Awards may be granted either at the same time as or at a different time from the grant of such
other Awards.



     10.2 Award Agreement. Awards under the Plan shall be evidenced by Award Agreements that set
forth the terms, conditions and limitations for each Award which may include the term of an Award,
the provisions applicable in the event the Participant’s employment or service terminates, and the
Company’s authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescind an
Award.



     10.3 Limits on Transfer. No right or interest of a Participant in any Award may be pledged,
encumbered, or hypothecated to or in favor of any party other than the Company, the Partnership or
a Subsidiary, or shall be subject to any lien, obligation, or liability of such Participant to any
other party other than the Company, the Partnership or a Subsidiary. Except as otherwise provided
by the Administrator, no Award shall be assigned, transferred, or otherwise disposed of by a
Participant other than by will or the laws of descent and distribution. The Administrator by
express provision in the Award or an amendment thereto may permit an Award (other than an Incentive
Stock Option) to be transferred to, exercised by and paid to certain persons or entities related to
the Participant, including but not limited to members of the Participant’s family, charitable
institutions, or trusts or other entities whose beneficiaries or beneficial owners are members of
the Participant’s family and/or charitable institutions, or to



18









 




such other persons or entities as may be expressly approved by the Administrator, pursuant to
such conditions and procedures as the Administrator may establish. Any permitted transfer shall be
subject to the condition that the Administrator receive evidence satisfactory to it that the
transfer is being made for estate and/or tax planning purposes (or to a “blind trust” in connection
with the Participant’s termination of employment or service with the Company, the Partnership or a
Subsidiary to assume a position with a governmental, charitable, educational or similar non-profit
institution) and on a basis consistent with the Company’s lawful issue of securities.




     10.4 Beneficiaries. Notwithstanding Section 10.3, a Participant may, in the manner determined
by the Administrator, designate a beneficiary to exercise the rights of the Participant and to
receive any distribution with respect to any Award upon the Participant’s death. A beneficiary,
legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is
subject to all terms and conditions of the Plan and any Award Agreement applicable to the
Participant, except to the extent the Plan and Award Agreement otherwise provide, and to any
additional restrictions deemed necessary or appropriate by the Administrator. If the Participant
is married and resides in a community property state, a designation of a person other than the
Participant’s spouse as his or her beneficiary with respect to more than 50% of the Participant’s
interest in the Award shall not be effective without the prior written consent of the Participant’s
spouse. If no beneficiary has been designated or survives the Participant, payment shall be made
to the person entitled thereto pursuant to the Participant’s will or the laws of descent and
distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a
Participant at any time provided the change or revocation is filed with the Administrator.



     10.5 Stock Certificates. Notwithstanding anything herein to the contrary, the Company shall
not be required to issue or deliver any certificates evidencing shares of Stock pursuant to the
exercise of any Award, unless and until the Board has determined, with advice of counsel, that the
issuance and delivery of such certificates is in compliance with all applicable laws, regulations
of governmental authorities and, if applicable, the requirements of any exchange on which the
shares of Stock are listed or traded. All Stock certificates delivered pursuant to the Plan are
subject to any stop-transfer orders and other restrictions as the Administrator deems necessary or
advisable to comply with federal, state, or foreign jurisdiction, securities or other laws, rules
and regulations and the rules of any national securities exchange or automated quotation system on
which the Stock is listed, quoted, or traded. The Administrator may place legends on any Stock
certificate to reference restrictions applicable to the Stock. In addition to the terms and
conditions provided herein, the Administrator may require that a Participant make such reasonable
covenants, agreements, and representations as the Administrator, in its discretion, deems advisable
in order to comply with any such laws, regulations, or requirements. The Administrator shall have
the right to require any Participant to comply with any timing or other restrictions with respect
to the settlement or exercise of any Award, including a window-period limitation, as may be imposed
in the discretion of the Administrator.



ARTICLE 11




CHANGES IN CAPITAL STRUCTURE




     11.1 Adjustments.



19









 





          (a) In the event of any stock dividend, stock split, combination or exchange of shares,
merger, consolidation, spin-off, recapitalization, distribution of Company assets to stockholders
(other than normal cash dividends), or any other corporate event affecting the Stock or other
equity interests or the price of the Stock or other equity interests, the Administrator shall make
such proportionate adjustments, if any, as the Administrator in its discretion may deem appropriate
to reflect such change with respect to (i) the aggregate number and type of shares or units that
may be issued under the Plan (including, but not limited to, adjustments of the limitations in
Sections 3.1, 3.3 and 6.5); (ii) the terms and conditions of any outstanding Awards (including,
without limitation, any applicable performance targets or criteria with respect thereto); and (iii)
the grant or exercise price per share or other unit for any outstanding Awards under the Plan. Any
adjustment affecting an Award intended as Qualified Performance-Based Compensation shall be made
consistent with the requirements of Section 162(m) of the Code.




          (b) In the event of any transaction or event described in Section 11.1(a) or any unusual or
nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the
financial statements of the Company or any affiliate (including without limitation any Change in
Control), or of changes in applicable laws, regulations or accounting principles, and whenever the
Administrator determines that such action is appropriate in order to prevent the dilution or
enlargement of the benefits or potential benefits intended to be made available under the Plan or
with respect to any Award under the Plan, to facilitate such transactions or events or to give
effect to such changes in laws, regulations or principles, the Administrator, in its sole
discretion and on such terms and conditions as it deems appropriate, either by the terms of the
Award or by action taken prior to the occurrence of such transaction or event and either
automatically or upon the Participant’s request, is hereby authorized to take any one or more of
the following actions:




               (i) To provide for either (A) termination of any such Award in exchange for an amount of cash,
if any, equal to the amount that would have been attained upon the exercise of such Award or
realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the
occurrence of the transaction or event described in this Section 11.1(b) the Administrator
determines in good faith that no amount would have been attained upon the exercise of such Award or
realization of the Participant’s rights, then such Award may be terminated by the Company without
payment) or (B) the replacement of such Award with other rights or property selected by the
Administrator in its sole discretion;



               (ii) To provide that such Award be assumed by the successor or survivor corporation, or a
parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards
covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices; and



               (iii) To make adjustments in the number and type of shares of Stock (or other securities or
property) subject to outstanding Awards, and in the number and kind of outstanding Restricted Stock
and/or in the terms and conditions of (including the grant or exercise price), and the criteria
included in, outstanding options, rights and awards and options, rights and awards which may be
granted in the future;



20









 





               (iv) To provide that such Award shall be exercisable or payable or fully vested with respect
to all shares covered thereby, notwithstanding anything to the contrary in the Plan or the
applicable Award Agreement; and



               (v) To provide that the Award cannot vest, be exercised or become payable after such event.



     11.2 Acceleration Upon a Change in Control. Notwithstanding Section 11.1, and except as may
otherwise be provided in any applicable Award Agreement, if a Change in Control occurs and a
Participant’s Awards are not continued, converted, assumed, or replaced by (a) the Company or a
parent or Subsidiary of the Company, or (b) a successor or a parent or subsidiary of such
successor, such Awards shall become fully exercisable and all forfeiture restrictions on such
Awards shall lapse. Upon, or in anticipation of, a Change in Control, the Administrator may cause
any and all Awards outstanding hereunder to terminate at a specific time in the future, including
but not limited to the date of such Change in Control, and shall give each Participant the right to
exercise such Awards during a period of time as the Administrator, in its sole and absolute
discretion, shall determine.



     11.3 No Other Rights. Except as expressly provided in the Plan, no Participant shall have any
rights by reason of any subdivision or consolidation of shares of stock of any class, the payment
of any dividend, any increase or decrease in the number of shares of stock of any class or any
dissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except
as expressly provided in the Plan or pursuant to action of the Administrator under the Plan, no
issuance by the Company of shares of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect
to, the number of shares of Stock subject to an Award or the grant or exercise price of any Award.



ARTICLE 12




ADMINISTRATION




     12.1 Administrator. Unless and until the Board delegates administration of the Plan to a
Committee as set forth below, the Plan shall be administered by the full Board, and for such
purposes the term “Administrator” as used in this Plan shall be deemed to refer to the Board. From
and after the Public Trading Date, the “Administrator” of the Plan shall be the Compensation
Committee of the Board (or another committee or a subcommittee of the Board to which the Board
delegates administration of the Plan (such committee, the “Committee”), which Committee shall
consist solely of two or more members of the Board each of whom is both an “outside director,”
within the meaning of Section 162(m) of the Code, and a Non-Employee Director. Notwithstanding the
foregoing: (a) the full Board, acting by a majority of its members in office, shall conduct the
general administration of the Plan with respect to all Awards granted to Independent Directors and
for purposes of such Awards the term “Administrator” as used in this Plan shall be deemed to refer
to the Board and (b) the Committee may delegate its authority hereunder to the extent permitted by
Section 12.5. Appointment of Committee members shall be effective upon acceptance of appointment.
The Board may abolish the Committee at any time and revest in the Board the administration of the
Plan. Committee members may resign at any



21









 




time by delivering written notice to the Board. Vacancies in the Committee may only be filled
by the Board.




     12.2 Action by the Administrator. A majority of the Administrator shall constitute a quorum.
The acts of a majority of the members present at any meeting at which a quorum is present, and,
subject to applicable law, acts approved in writing by a majority of the Administrator in lieu of a
meeting, shall be deemed the acts of the Administrator. Each member of the Administrator is
entitled to, in good faith, rely or act upon any report or other information furnished to that
member by any officer or other employee of the Company or any Subsidiary, the Company’s independent
certified public accountants, or any executive compensation consultant or other professional
retained by the Company to assist in the administration of the Plan.



     12.3 Authority of Administrator. Subject to any specific designation in the Plan, the
Administrator has the exclusive power, authority and discretion to:



          (a) Designate Participants to receive Awards;




          (b) Determine the type or types of Awards to be granted to each Participant;




          (c) Determine the number of Awards to be granted and the number of shares of Stock to which an
Award will relate;




          (d) Determine the terms and conditions of any Award granted pursuant to the Plan, including,
but not limited to, the exercise price, grant price, or purchase price, any reload provision, any
restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or
restrictions on the exercisability of an Award, and accelerations or waivers thereof, any
provisions related to non-competition and recapture of gain on an Award, based in each case on such
considerations as the Administrator in its sole discretion determines; provided, however, that the
Administrator shall not have the authority to accelerate the vesting or waive the forfeiture of any
Performance-Based Awards;




          (e) Determine whether, to what extent, and pursuant to what circumstances an Award may be
settled in, or the exercise price of an Award may be paid in, cash, Stock, other Awards, or other
property, or an Award may be canceled, forfeited, or surrendered;




          (f) Prescribe the form of each Award Agreement, which need not be identical for each
Participant;




          (g) Decide all other matters that must be determined in connection with an Award;




          (h) Establish, adopt, or revise any rules and regulations as it may deem necessary or
advisable to administer the Plan;




          (i) Interpret the terms of, and any matter arising pursuant to, the Plan or any Award
Agreement; and




22









 





          (j) Make all other decisions and determinations that may be required pursuant to the Plan or
as the Administrator deems necessary or advisable to administer the Plan.




     12.4 Decisions Binding. The Administrator’s interpretation of the Plan, any Awards granted
pursuant to the Plan, any Award Agreement and all decisions and determinations by the Administrator
with respect to the Plan are final, binding, and conclusive on all parties.



     12.5 Delegation of Authority. To the extent permitted by applicable law, the Committee may
from time to time delegate to a committee of one or more members of the Board or one or more
officers of the Company the authority to grant or amend Awards to Participants other than (a)
senior executives of the Company who are subject to Section 16 of the Exchange Act, (b) Covered
Employees, or (c) officers of the Company (or members of the Board) to whom authority to grant or
amend Awards has been delegated hereunder. Any delegation hereunder shall be subject to the
restrictions and limits that the Committee specifies at the time of such delegation, and the
Committee may at any time rescind the authority so delegated or appoint a new delegatee. At all
times, the delegatee appointed under this Section 12.5 shall serve in such capacity at the pleasure
of the Committee.



ARTICLE 13




EFFECTIVE AND EXPIRATION DATE




     13.1 Effective Date. The Plan is effective as of August 3, 2004 (the “Effective Date”).



     13.2 Expiration Date. The Plan will expire on, and no Award may be granted pursuant to the
Plan on or after, August 2, 2014 (the “Expiration Date”). Any Awards that are outstanding on the
Expiration Date shall remain in force according to the terms of the Plan and the applicable Award
Agreement. Each Award Agreement shall provide that it will expire on the tenth anniversary of the
date of grant of the Award to which it relates.



ARTICLE 14




AMENDMENT, MODIFICATION, AND TERMINATION




     14.1 Amendment, Modification, And Termination. The Board or the Committee may terminate,
amend or modify the Plan; provided, however, that (a) to the extent necessary to comply with any
applicable law, regulation, or stock exchange rule, the Company shall obtain stockholder approval
of any Plan amendment in such a manner and to such a degree as required, and (b) stockholder
approval is required for any amendment to the Plan that increases the number of shares available
under the Plan (other than any adjustment as provided by Article 11). Notwithstanding any
provision in this Plan to the contrary, absent approval of the stockholders of the Company, no
Option may be amended to reduce the per share exercise price of the shares subject to such Option
below the per share exercise price as of the date the Option is granted and, except as permitted by
Article 11, no Option may be granted in exchange for, or in connection with, the cancellation or
surrender of an Option having a higher per share exercise price.



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     14.2 Awards Previously Granted. No termination, amendment, or modification of the Plan shall
adversely affect in any material way any Award previously granted pursuant to the Plan without the
prior written consent of the Participant.



ARTICLE 15




GENERAL PROVISIONS




     15.1 No Rights to Awards. No Participant, employee, or other person shall have any claim to
be granted any Award pursuant to the Plan, and neither the Company nor the Administrator is
obligated to treat Participants, employees, and other persons uniformly.



     15.2 No Stockholders Rights. No Award gives the Participant any of the rights of a
stockholder of the Company unless and until shares of Stock are in fact issued to such person in
connection with such Award.



     15.3 Withholding. The Company, the Partnership or any Subsidiary shall have the authority and
the right to deduct or withhold, or require a Participant to pay an amount sufficient to satisfy
federal, state, local and foreign taxes (including the Participant’s FICA obligation) required by
law to be withheld with respect to any taxable event concerning a Participant arising as a result
of this Plan. The Administrator may in its discretion and in satisfaction of the foregoing
requirement allow a Participant to elect to have the Company, the Partnership or a Subsidiary, as
applicable, withhold shares of Stock otherwise issuable under an Award (or allow the return of
shares of Stock) having a Fair Market Value equal to the sums required to be withheld.
Notwithstanding any other provision of the Plan, the number of shares of Stock which may be
withheld with respect to the issuance, vesting, exercise or payment of any Award (or which may be
repurchased from the Participant of such Award within six months after such shares of Stock were
acquired by the Participant from the Company) in order to satisfy the Participant’s federal, state,
local and foreign income and payroll tax liabilities with respect to the issuance, vesting,
exercise or payment of the Award shall be limited to the number of shares which have a Fair Market
Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities
based on the minimum statutory withholding rates for federal, state, local and foreign income tax
and payroll tax purposes that are applicable to such supplemental taxable income.



     15.4 No Right to Employment or Services. Nothing in the Plan or any Award Agreement shall
interfere with or limit in any way the right of the Company, the Partnership or any Subsidiary to
terminate any Participant’s employment or services at any time, nor confer upon any Participant any
right to continue in the employ or service of the Company, the Partnership or any Subsidiary.



     15.5 Unfunded Status of Awards. The Plan is intended to be an “unfunded” plan for incentive
compensation. With respect to any payments not yet made to a Participant pursuant to an Award,
nothing contained in the Plan or any Award Agreement shall give the Participant any rights that are
greater than those of a general creditor of the Company or any Subsidiary.



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     15.6 Indemnification. To the extent allowable pursuant to applicable law, the Administrator
(and each member thereof) shall be indemnified and held harmless by the Company from any loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by such member in
connection with or resulting from any claim, action, suit, or proceeding to which he or she may be
a party or in which he or she may be involved by reason of any action or failure to act pursuant to
the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in
such action, suit, or proceeding against him or her; provided he or she gives the Company an
opportunity, at its own expense, to handle and defend the same before he or she undertakes to
handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be entitled pursuant to
the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.



     15.7 Relationship to other Benefits. No payment pursuant to the Plan shall be taken into
account in determining any benefits pursuant to any pension, retirement, savings, profit sharing,
group insurance, welfare or other benefit plan of the Company, the Partnership or any Subsidiary
except to the extent otherwise expressly provided in writing in such other plan or an agreement
thereunder.



     15.8 Expenses. The expenses of administering the Plan shall be borne by the Company, the
Partnership and their Subsidiaries.



     15.9 Titles and Headings. The titles and headings of the Sections in the Plan are for
convenience of reference only and, in the event of any conflict, the text of the Plan, rather than
such titles or headings, shall control.



     15.10 Fractional Shares. No fractional shares of Stock shall be issued and the Administrator
shall determine, in its discretion, whether cash shall be given in lieu of fractional shares or
whether such fractional shares shall be eliminated by rounding up or down as appropriate.



     15.11 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of
the Plan, the Plan, and any Award granted or awarded to any Participant who is then subject to
Section 16 of the Exchange Act, shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To
the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be
deemed amended to the extent necessary to conform to such applicable exemptive rule.



     15.12 Government and Other Regulations. The obligation of the Company to make payment of
awards in Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and
to such approvals by government agencies as may be required. The Company shall be under no
obligation to register pursuant to the Securities Act of 1933, as amended, any of the shares of
Stock paid pursuant to the Plan. If the shares paid pursuant to the Plan may in certain
circumstances be exempt from registration pursuant to the Securities Act of 1933, as



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amended, the Company may restrict the transfer of such shares in such manner as it deems
advisable to ensure the availability of any such exemption.




     15.13 Section 83(b) Election Prohibited. No Participant may make an election under Section
83(b) of the Code with respect to any Award under the Plan without the consent of the
Administrator, which the Administrator may grant or withhold in its sole discretion.



     15.14 Restrictions on Awards. This Plan shall be interpreted and construed in a manner
consistent with the Company’s status as a REIT. No Award shall be granted or awarded, and with
respect to an Award already granted under the Plan, such Award shall not be exercisable:



          (a) to the extent such Award or exercise could cause the Participant to be in violation of the
Ownership Limit (as defined in the Company’s Articles of Incorporation, as amended from time to
time); or




          (b) if, in the discretion of the Administrator, such Award or exercise could impair the
Company’s status as a REIT.




     15.15 Governing Law. The Plan and all Award Agreements shall be construed in accordance with
and governed by the laws of the State of California, without regard to the conflicts of law
principles thereof.



     15.16 Conflicts with Company’s Articles of Incorporation. Notwithstanding any other provision
of the Plan, no Participant shall acquire or have any right to acquire any Stock, and shall not
have any other rights under the Plan, which are prohibited under the Company’s Articles of
Incorporation, as amended from time to time.



     15.17 Grant of Awards to Certain Employees or Consultants. The Company and the Partnership or
any Subsidiary may provide through the establishment of a formal written policy or otherwise for
the method by which shares of Stock and/or payment therefore may be exchanged or contributed
between the Company and such other party, or may be returned to the Company upon any forfeiture or
repurchase of Stock by the Participant, for the purpose of ensuring that the relationship between
the Company and the Partnership or such Subsidiary remains at arm’s length.



* * * * *




     I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of BioMed
Realty Trust, Inc. on August 3, 2004, as amended by the Compensation Committee of the Board of
Directors of BioMed Realty Trust, Inc. effective as of December 28, 2006.



* * * * *




     I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of BioMed
Realty Trust, Inc., the General Partner of BioMed Realty, L.P., on August 3, 2004, as amended by
the Compensation Committee of the Board of Directors of BioMed Realty Trust, Inc. effective as of
December 28, 2006.



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* * * * *




     I hereby certify that the foregoing Plan was duly adopted by the stockholders of BioMed Realty
Trust, Inc. on August 4, 2004.



     Executed on this 28th day of December, 2006.




	 	 	 	 	 
	 

	 	/s/ GARY A. KREITZER
 

Secretary, BioMed Realty Trust, Inc.
	 	 







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