Exhibit
10.1


 


ALEXANDRIA REAL ESTATE EQUITIES, INC.


 


AMENDED AND RESTATED


1997 STOCK AWARD AND INCENTIVE PLAN


 

















 


Table of Contents


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  1.

  	
  PURPOSE; TYPES OF AWARDS; CONSTRUCTION

  	
  I-1

  
	
  2.

  	
  DEFINITIONS

  	
   

  	
  I-1

  
	
   

  	
  2.1

  	
  “Affiliate”

  	
  I-1

  
	
   

  	
  2.2

  	
  “Award”

  	
  I-1

  
	
   

  	
  2.3

  	
  “Award Agreement”

  	
  I-1

  
	
   

  	
  2.4

  	
  “Beneficiary”

  	
  I-1

  
	
   

  	
  2.5

  	
  “Board”

  	
  I-1

  
	
   

  	
  2.6

  	
  “Change of Control”

  	
  I-1

  
	
   

  	
  2.7

  	
  “Code”

  	
  I-2

  
	
   

  	
  2.8

  	
  “Committee”

  	
  I-2

  
	
   

  	
  2.9

  	
  “Company”

  	
  I-2

  
	
   

  	
  2.10

  	
  “Disability”

  	
  I-2

  
	
   

  	
  2.11

  	
  “Effective Date”

  	
  I-2

  
	
   

  	
  2.12

  	
  “Exchange Act”

  	
  I-2

  
	
   

  	
  2.13

  	
  “Fair Market Value”

  	
  I-2

  
	
   

  	
  2.14

  	
  “Grantee”

  	
  I-3

  
	
   

  	
  2.15

  	
  “Non-Employee Director”

  	
  I-3

  
	
   

  	
  2.16

  	
  “Option”

  	
  I-3

  
	
   

  	
  2.17

  	
  “Other Cash-Based Award”

  	
  I-3

  
	
   

  	
  2.18

  	
  “Other Stock-Based Award”

  	
  I-3

  
	
   

  	
  2.19

  	
  “Plan”

  	
  I-3

  
	
   

  	
  2.20

  	
  “Restricted Stock”

  	
  I-3

  
	
   

  	
  2.21

  	
  “Retirement”

  	
  I-3

  
	
   

  	
  2.22

  	
  “Rule 16b-3”

  	
  I-3

  
	
   

  	
  2.23

  	
  “Securities Act”

  	
  I-3

  
	
   

  	
  2.24

  	
  “Stock”

  	
  I-3

  
	
   

  	
  2.25

  	
  “Stock Appreciation Right” or “SAR”

  	
  I-3

  
	
   

  	
  2.26

  	
  “Subsidiary”

  	
  I-3

  
	
  3.

  	
  ADMINISTRATION

  	
  I-3

  
	
  4.

  	
  ELIGIBILITY

  	
  I-4

  
	
  5.

  	
  STOCK SUBJECT TO THE PLAN

  	
  I-4

  
	
   

  	
  5.1

  	
  Share Reserve

  	
  I-4

  
	
   

  	
  5.2

  	
  Reversion of Shares to the Share Reserve

  	
  I-5

  
	
   

  	
   

  	
  (a)

  	
  Shares Available for Subsequent Issuance

  	
  I-5

  
	
   

  	
   

  	
  (b)

  	
  Shares Not Available for Subsequent Issuance

  	
  I-5

  
	
   

  	
  5.3

  	
  Section 162(m) Limitation on Annual Grants

  	
  I-5

  
	
   

  	
  5.4

  	
  Adjustments

  	
  I-6

  
	
  6.

  	
  SPECIFIC TERMS OF AWARDS

  	
  I-6

  
	
   

  	
  6.1

  	
  General

  	
  I-6

  
	
   

  	
  6.2

  	
  Options

  	
  I-6

  
	
   

  	
   

  	
  (a)

  	
  Exercise Price

  	
  I-6

  
	
   

  	
   

  	
  (b)

  	
  Term and Exercisability of Options

  	
  I-6

  
	
   

  	
   

  	
  (c)

  	
  Termination of Employment, etc.

  	
  I-7

  
	
   

  	
   

  	
  (d)

  	
  Non-Exempt Employees

  	
  I-7

  
	
   

  	
   

  	
  (e)

  	
  Other Provisions

  	
  I-7

  
	
   

  	
  6.3

  	
  SARs

  	
  I-7

  
	
   

  	
   

  	
  (a)

  	
  In General

  	
  I-7

  
	
   

  	
   

  	
  (b)

  	
  Tandem Arrangements

  	
  I-7

  
	
   

  	
  6.4

  	
  Restricted Stock

  	
  I-7

  
	
   

  	
   

  	
  (a)

  	
  Issuance and Restrictions

  	
  I-7

  
	
   

  	
   

  	
  (b)

  	
  Consideration

  	
  I-7

  
	
   

  	
   

  	
  (c)

  	
  Termination of Employment

  	
  I-8

  
	
   

  	
   

  	
  (d)

  	
  Certificates for Stock

  	
  I-8

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
  (e)

  	
  Dividends

  	
  I-8

  
	
   

  	
  6.5

  	
  Stock Awards in Lieu of Cash Awards

  	
  I-8

  
	
   

  	
  6.6

  	
  Other Stock-Based or Cash-Based Awards

  	
  I-8

  
	
   

  	
   

  	
  (a)

  	
  In General

  	
  I-8

  
	
   

  	
   

  	
  (b)

  	
  Section 162(m) Compliance

  	
  I-8

  
	
   

  	
  6.7

  	
  Change in Service Capacity and Leaves of Absence

  	
  I-9

  
	
  7.

  	
  CHANGE OF CONTROL PROVISIONS

  	
  I-10

  
	
   

  	
  7.1

  	
  Change of Control

  	
  I-10

  
	
  8.

  	
  GENERAL PROVISIONS

  	
  I-10

  
	
   

  	
  8.1

  	
  Effective Date; Approval by Stockholders

  	
  I-10

  
	
   

  	
  8.2

  	
  Nontransferability

  	
  I-10

  
	
   

  	
  8.3

  	
  Use of Proceeds from Sales of Stock

  	
  I-10

  
	
   

  	
  8.4

  	
  Corporate Action Constituting Grant of Awards

  	
  I-10

  
	
   

  	
  8.5

  	
  No Right to Continued Employment, etc.

  	
  I-10

  
	
   

  	
  8.6

  	
  Taxes

  	
  I-10

  
	
   

  	
  8.7

  	
  Amendment and Termination of the Plan

  	
  I-11

  
	
   

  	
  8.8

  	
  No Rights to Awards; No Stockholder Rights

  	
  I-11

  
	
   

  	
  8.9

  	
  Unfunded Status of Awards

  	
  I-11

  
	
   

  	
  8.10

  	
  No Fractional Shares

  	
  I-11

  
	
   

  	
  8.11

  	
  Securities Law Compliance

  	
  I-11

  
	
   

  	
  8.12

  	
  Investment Assurances

  	
  I-11

  
	
   

  	
  8.13

  	
  Electronic Delivery

  	
  I-11

  
	
   

  	
  8.14

  	
  Deferrals

  	
  I-11

  
	
   

  	
  8.15

  	
  Compliance with Section 409A of the Code

  	
  I-12

  
	
   

  	
  8.16

  	
  Governing Law

  	
  I-12

  



 


ii

















 


ALEXANDRIA REAL ESTATE EQUITIES, INC.


 


AMENDED AND RESTATED


1997 STOCK AWARD AND INCENTIVE PLAN


 


AMENDMENT AND RESTATEMENT ADOPTED BY BOARD OF DIRECTORS:
APRIL 9, 2010


AMENDMENT AND RESTATEMENT APPROVED BY STOCKHOLDERS: MAY 27,
2010


 


1.                                      PURPOSE; TYPES OF AWARDS; CONSTRUCTION.


 


The purpose of the Alexandria
Real Estate Equities, Inc. Amended and Restated 1997 Stock Award and
Incentive Plan (the “Plan”) is to afford an incentive to selected officers,
employees, and independent contractors (including non-employee directors) of
Alexandria Real Estate Equities, Inc. (the “Company”), or any Subsidiary
or Affiliate that now exists or hereafter is organized or acquired, to acquire
a proprietary interest in the Company, to continue as employees or independent
contractors (including non-employee directors), as the case may be, to increase
their efforts on behalf of the Company, and to promote the success of the
Company’s business. Pursuant to Section 6 of the Plan, there may be
granted Options, Stock Appreciation Rights, Restricted Stock, Other Stock-Based
Awards, and Other Cash-Based Awards. The Plan is designed to comply with the
requirements for “performance- based compensation” under Section 162(m) of
the Code and the conditions for exemption from short-swing profit recovery rules under
Rule 16b-3 of the Exchange Act, and shall be interpreted in a manner consistent
with the requirements thereof.


 


2.                                      DEFINITIONS.


 


For purposes of the Plan,
the following terms shall be defined as set forth below:


 


2.1          “Affiliate” means, at the
time of determination, any entity if, at the time of determination, (i) the
Company, directly or indirectly, owns at least fifty percent (50%) of the
combined voting power of all classes of stock of such entity or at least fifty
percent (50%) of the ownership interests in such entity or (ii) such
entity, directly or indirectly, owns at least fifty percent (50%) of the
combined voting power of all classes of stock of the Company. The Board or
Committee shall have the authority to determine the time or times at which “Affiliate”
status is determined within the foregoing definition.


 


2.2          “Award” means any Option, SAR,
Restricted Stock, Other Stock-Based Award, or Other Cash-Based Award granted
under the Plan.


 


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


 


2.4          “Beneficiary” means the
person, persons, trust, or trusts that have been designated by a Grantee in his
or her most recent written beneficiary designation filed with the Company to
receive the benefits specified under the Plan upon his or her death, or, if
there is no designated Beneficiary or surviving designated Beneficiary, then
the person, persons, trust, or trusts entitled by will or the laws of descent
and distribution to receive such benefits.


 


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


 


2.6          “Change of Control” shall mean the
occurrence of any of the following events:


 


(a)           Any
Person (as such term is used in section 3(a)(9) of the Exchange Act,
as modified and used in sections 13(d) and 14(d) thereof, except
that such term shall not include (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its affiliates, (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (D) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company) becomes the Beneficial Owner, as such term
is defined in Rule 13d-3 under the Exchange Act, directly or indirectly,
of securities of the Company (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or its
affiliates other than in connection with the acquisition by the Company or its
affiliates of a business) representing twenty-five percent (25%) or more of the
combined voting power of the Company’s then outstanding securities; or


 


I-1

















 


(b)           The
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the date hereof,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the
Board or nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on
the date hereof or whose appointment, election, or nomination for election was
previously so approved or recommended; or


 


(c)           There
is consummated a merger or consolidation of the Company with any other
corporation, other than (A) a merger or consolidation in which the stockholders
of the Company immediately prior to such merger or consolidation, continue to
own, in combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any
subsidiary of the Company, at least seventy-five percent (75%) of the combined
voting power of the securities of the Company (or the surviving entity or any
parent thereof) outstanding immediately after such merger or consolidation in
substantially the same proportions as their ownership of the Company
immediately prior to such merger or consolidation, or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its affiliates other than in connection with the acquisition by the
Company or its affiliates of a business) representing twenty-five percent (25%)
or more of the combined voting power of the Company’s then outstanding
securities; or


 


(d)           The
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale or
disposition by the Company of all or substantially all of the Company’s assets,
other than a sale or disposition by the Company of all or substantially all of
the Company’s assets to an entity, at least seventy-five (75%) of the combined
voting power of the voting securities of which are owned by stockholders of the
Company in substantially the same proportions as their ownership of the Company
immediately prior to such sale.


 


2.7          “Code” means the Internal Revenue
Code of 1986, as amended from time to time, and the regulations and guidance
promulgated thereunder.


 


2.8          “Committee” means the
Board or the committee designated or established by the Board to administer the
Plan, the composition of which shall at all times satisfy the provisions of Rule 16b-3
and may satisfy the provisions of Section 162(m)(4)(C)(i) of the Code.


 


2.9          “Company” means
Alexandria Real Estate Equities, Inc., a corporation organized under the
laws of the State of Maryland, or any successor corporation.


 


2.10        “Disability” means, with
respect to a Grantee, the inability of such Grantee to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than
twelve (12) months, as provided in Sections 22(e)(3) and
409A(a)(2)(c)(i) of the Code, and shall be determined by the Committee on the
basis of such medical evidence as the Committee deems warranted under the
circumstances.


 


2.11        “Effective Date” means the
effective date of this Plan document, which is the date of the annual meeting
of stockholders of the Company held in 2010.


 


2.12        “Exchange Act” means the
Securities Exchange Act of 1934, as amended from time to time, and as now or
hereafter construed, interpreted and applied by regulations, rulings, and
cases.


 


2.13        “Fair Market Value” means, with
respect to Stock or other property, the fair market value of such Stock or
other property determined by such methods or procedures as shall be established
from time to time by the Committee. Unless otherwise determined by the
Committee in good faith, the per share Fair Market Value of Stock as of a
particular date shall mean (i) the closing sales price per share of Stock
on the national securities exchange on which the Stock is principally traded on
the date the Award is granted (or if the Stock is not traded on the exchange on
the date the Award is granted, the closing sales price per share of Stock for
the last preceding date on which there was a sale of such Stock on such exchange),
or (ii) if the shares of Stock are then traded in an over-the-counter
market, the average of the closing bid and ask prices for the shares of Stock
in such over-the-counter market for the last preceding date on which there was
a sale of such Stock in such market, or (iii) if the shares of Stock are
not then listed on a national securities exchange or traded in an
over-the-counter market, such value as the Committee, in its sole discretion,
shall determine in good faith and in a manner that complies with Section 409A
of the Code.


 


I-2

















 


2.14        “Grantee” means a person who, as an
employee or independent contractor of the Company, a Subsidiary, or an
Affiliate, has been granted an Award under the Plan, or if applicable, such
other person who holds an outstanding Award under the Plan.


 


2.15        “Non-Employee Director” means any
director who is not an employee of the Company or any of its subsidiaries or
affiliates. For purposes of this Plan, such non-employee director shall be
treated as an independent contractor.


 


2.16        “Option” means a right, granted to a
Grantee under Section 6.2, to purchase shares of Stock. Options shall be
nonstatutory stock options that are not intended to qualify as “incentive stock
options” within the meaning of Section 422 of the Code.


 


2.17        “Other Cash-Based Award” means cash
awarded to a Grantee under Section 6.6, including cash awarded as a bonus
or upon the attainment of specified performance objectives or otherwise as
permitted under the Plan.


 


2.18        “Other Stock-Based Award” means a right
or other interest granted to a Grantee under Section 6.6 that may be
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, Stock, including, but not limited to (1) unrestricted
Stock awarded as a bonus or upon the attainment of specified performance
objectives or otherwise as permitted under the Plan and (2) a right
granted to a Grantee to acquire Stock from the Company for cash.


 


2.19        “Plan” means this Alexandria Real
Estate Equities, Inc. Amended and Restated 1997 Stock Award and Incentive
Plan, as amended from time to time.


 


2.20        “Restricted Stock” means an Award
of shares of Stock to a Grantee under Section 6.4 that may be subject to
certain restrictions and to a risk of forfeiture.


 


2.21        “Retirement” means the
termination of a Grantee’s service with the Company or a Subsidiary or
Affiliate by retirement, as determined in accordance with the Company’s then
current employment policies and guidelines.


 


2.22        “Rule 16b-3” means Rule 16b-3,
as from time to time in effect promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act, including any successor
to such Rule.


 


2.23        “Securities Act” means the
Securities Act of 1933, as amended from time to time, and as now or hereafter
construed, interpreted, and applied by the regulations, rulings, and cases.


 


2.24        “Stock” means shares of the common
stock, par value $.01 per share, of the Company.


 


2.25        “Stock Appreciation Right” or “SAR” means the
right, granted to a Grantee under Section 6.3, to be paid an amount
measured by the appreciation in the Fair Market Value of Stock from the date of
grant to the date of exercise of the right, with payment to be made in cash,
Stock, or property as specified in the Award or determined by the Committee.


 


2.26        “Subsidiary” means, at the
time of determination, any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if, at the time of
determination, each of the corporations (other than the last corporation in the
unbroken chain) owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in the chain. The Board or Committee shall have the authority to determine the
time or times at which “Subsidiary” status is determined within the foregoing
definition.


 


3.                                      ADMINISTRATION.


 


The Plan shall be
administered by the Committee. The Committee shall have the authority in its discretion,
subject to and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the powers and authorities either
specifically granted to it under the Plan or necessary or advisable in the
administration of the Plan including, without limitation, the authority (i) to
grant Awards; (ii) to determine the persons to whom and the time or times
at which Awards shall be granted; (iii) to determine the type and number
of Awards to be granted, the number of shares of Stock to which an Award may
relate, and the terms, conditions, restrictions, and performance criteria
relating to any Award; (iv) to determine whether, to what extent, and
under what circumstances an Award may be settled, cancelled, forfeited,
exchanged, or surrendered; (v) to make adjustments in the terms and
conditions of Awards in recognition of unusual or non-recurring events
affecting the Company or any Subsidiary or Affiliate or the financial
statements of the Company or any 


 


I-3

















 


Subsidiary or Affiliate, or in response to
changes in applicable laws, regulations, or accounting principles; provided, however, that any such
adjustments with respect to any Awards subject to the attainment of performance
objectives shall be subject to Section 6.6(b); (vi) to designate
Affiliates; (vii) to construe and interpret the Plan and any Award; (viii) to
prescribe, amend, and rescind rules and regulations relating to the Plan; (ix) to
determine the terms and provisions of the Award Agreements (which need not be
identical for each Grantee); (x) to accelerate the time at which an Award
may first be exercised or the time during which an Award or any part thereof
will vest in accordance with the Plan, notwithstanding the provisions in an
Award Agreement stating the time at which it may first be exercised or the time
during which it will vest; provided, however,
that the exercisability or vesting of any Award may only be accelerated in the
event of a Grantee’s death, Disability or Retirement, or upon a Change of
Control; provided further, however,
that up to 10% of the total number of shares reserved for issuance under the
Plan pursuant to Section 5 may be subject to Awards granted after the
Effective Date which do not meet the preceding acceleration limitations; and
(xi) to make all other determinations deemed necessary or advisable for
the administration of the Plan.


 


The Committee may appoint a
chairperson and a secretary and may make such rules and regulations for
the conduct of its business as it shall deem advisable, and shall keep minutes
of its meetings. All determinations of the Committee shall be made by a
majority of its members either present in person or participating by conference
telephone at a meeting or by written consent. The Committee may delegate to one
or more of its members or to one or more agents such administrative duties as
it may deem advisable, and the Committee or any person to whom it has delegated
duties as aforesaid may employ one or more persons to render advice with
respect to any responsibility the Committee or such person may have under the
Plan; provided, however, that any
Award granted to a Non-Employee Director shall be granted by the Committee,
without any such delegation. All decisions, determinations, and interpretations
of the Committee shall be final and binding on all persons, including the
Company, and any Subsidiary, Affiliate, or Grantee (or any person claiming any
rights under the Plan from or through any Grantee) and any stockholder.


 


No member of the Board or
Committee shall be liable for any action taken or determination made in good
faith with respect to the Plan or any Award granted hereunder.


 


Notwithstanding any
provision of the Plan to the contrary, neither the Board nor the Committee
shall have the authority to take any of the following actions, unless the
stockholders of the Company have approved such an action within twelve
(12) months prior to such an event: (i) the reduction of the exercise
price of any outstanding Option or Stock Appreciation Right under the Plan; (ii)
the cancellation of any outstanding Option or Stock Appreciation Right under
the Plan and the grant in substitution therefor of (1) a new Option or Stock
Appreciation Right under the Plan or another equity plan of the Company
covering the same or a different number of shares of Stock, (2) Restricted
Stock (including a stock bonus), (3) an Other Stock-Based or Cash-Based
Award, (4) cash, and/or (5) other valuable consideration (as determined by
the Board, in its sole discretion); or (iii) any other action that is
treated as a repricing under generally accepted accounting principles.


 


4.                                      ELIGIBILITY.


 


Subject to the provisions
set forth below, Awards may be granted to selected employees, officers, and
independent contractors (including Non-Employee Directors) of the Company and
its present or future Subsidiaries and Affiliates, in the discretion of the
Committee. In determining the persons to whom Awards shall be granted and the
type (including the number of shares to be covered) of any Award, the Committee
shall take into account such factors as the Committee shall deem relevant in
connection with accomplishing the purposes of the Plan.


 


5.                                      STOCK SUBJECT TO THE PLAN.


 


5.1  Share
Reserve.


 


(a)           Subject
to adjustment as provided herein, on and after January 1, 2010, the
maximum number of shares of Stock that may be issued pursuant to Awards under
the Plan shall be 3,629,896 shares plus
any shares subject to outstanding Awards granted before January 1, 2010
that expire or terminate for any reason prior to exercise or settlement or are
forfeited because of the failure to meet a contingency or condition required to
vest such shares, as such shares become available from time to time, less (i) one (1) share for each
share of Stock issued pursuant to an Option or Stock Appreciation Right granted
on or after January 1, 2010 and (ii) two (2) shares for each
share of Stock issued on or after January 1, 2010 pursuant to Restricted
Stock, Other Stock-Based Award, or Award of Stock in lieu of cash compensation.
For clarity, the Share Reserve in this Section 5.1(a) is a limitation
on the number of shares of the Stock that may be issued pursuant to the Plan in
respect of Awards granted on or after January 1, 2010 and does not limit
the number of Awards that may be granted. Such shares may, in whole or in part,



 


I-4

















 


be authorized but unissued
shares or shares that shall have been or may be reacquired by the Company in
the open market, in private transactions or otherwise. Shares of Stock may be
issued in connection with a merger or acquisition as permitted by NYSE Listed
Company Manual Section 303A.08 or, if applicable, NASDAQ Listing Rule 5635(c),
AMEX Company Guide Section 711, or other applicable stock exchange rules,
and such issuance shall not reduce the number of shares of Stock available for
issuance under the Plan.


 


(b)           If
an Award or any portion thereof (i) expires or otherwise terminates
without all of the shares covered by such Award having been issued or (ii) is
settled in cash (i.e., the holder
receives cash rather than stock), such expiration, termination, or settlement
shall not reduce (or otherwise offset) the number of shares of Stock that may
be available for issuance under the Plan. Notwithstanding the foregoing, in the
case of forfeiture, cancellation, exchange, or surrender of shares of
Restricted Stock with respect to which dividends have been paid or accrued, the
number of shares with respect to such Awards shall not be available again for
Awards hereunder unless, in the case of shares with respect to which dividends
were accrued but unpaid, such dividends are also forfeited, cancelled,
exchanged, or surrendered. Upon the exercise of any Award granted in tandem
with any other Awards or awards, such related Awards or awards shall be
cancelled to the extent of the number of shares of Stock as to which the Award
is exercised and, notwithstanding the foregoing, such number of shares shall no
longer be available for Awards under the Plan.


 


5.2  Reversion
of Shares to the Share Reserve.


 


(a)   Shares Available For Subsequent Issuance.  If any shares of Stock issued pursuant to an
Award are forfeited back to the Company because of the failure to meet a
contingency or condition required to vest such shares in the Grantee, then the
shares that are forfeited shall revert to and again become available for
issuance under the Plan. To the extent (A) there is issued a share of Stock
pursuant to an Award that counted as two (2) shares against the number of
shares available for issuance under the Plan pursuant to Section 5.1 or (B) there
was issued a share of Stock underlying an Award outstanding as of December 31,
2009 that expires or terminates for any reason prior to exercise or settlement,
is forfeited because of the failure to meet a contingency or condition required
to vest such share or is reacquired, withheld (or not issued) to satisfy a tax
withholding obligation in connection with an Award other than an Option or
Stock Appreciation Right, then the number of shares of Stock available for
issuance under the Plan shall increase by two (2) shares for each such
Share. Also, each share reacquired by the Company pursuant to Section 8.6
on or after January 1, 2010 in connection with Restricted Stock, or an
Other Stock-Based Award shall again become available for issuance under the
Plan and shall increase the number of shares of Common Stock available for
issuance under the Plan by two (2) shares.


 


(b)   Shares Not Available For Subsequent Issuance.  If any shares of Stock subject to an Award
are not delivered to a Grantee because the Award is exercised through a
reduction of shares subject to the Award (i.e., “net exercised”), the
number of shares that are not delivered to the Grantee shall no longer be
available for issuance under the Plan. Also, any shares reacquired by the
Company pursuant to Section 8.6 upon the exercise of an Option, Stock
Appreciation Right, or as consideration for the exercise of an Option or Stock
Appreciation Right shall no longer be available for issuance under the Plan.


 


5.3  Section 162(m) Limitation
on Annual Grants.  Subject to
adjustment as provided in Section 5.4, at such time as the Company may be
subject to the applicable provisions of Section 162(m) of the Code, a
maximum of 500,000 shares of Stock subject to Options, Stock Appreciation
Rights, and Other Stock-Based Awards whose value is determined by reference to
an increase over an exercise or strike price of at least one hundred percent
(100%) of the Fair Market Value on the date the Award is granted may be granted
to any Grantee during any calendar year. Notwithstanding the foregoing, if any
additional Options, Stock Appreciation Rights, Stock, or Other Stock-Based
Awards whose value is determined by reference to an increase over an exercise
or strike price of at least one hundred (100% percent) of the Fair Market Value
on the date the Award are granted to any Grantee during any calendar year,
compensation attributable to the exercise of such additional Awards shall not
satisfy the requirements to be considered “qualified performance-based
compensation” under Section 162(m) of the Code unless such additional
Awards are approved by the Company’s stockholders. No Covered Employee shall
receive Other Stock-Based Awards or Other Cash-Based Awards intended to qualify
as “performance-based compensation” under Section 162(m) of the Code
pursuant to Section 6.6 that represents a maximum number of shares in
excess of 500,000 shares or that has a maximum value that may be paid to the
Grantee in excess of $5,000,000, respectively, in a single calendar year.


 


I-5






 












 


5.4  Adjustments.  In the event that the Committee shall
determine that any change that is made in, or other events that occur with
respect to, the shares of Stock subject to the Plan or subject to any Award
after the Effective Date without the receipt of consideration by the Company,
through stock dividend, dividend in property other than cash, liquidating
dividend, recapitalization, reincorporation, stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or share
exchange, change in corporate structure, or other similar equity restructuring
transaction, as that term is used in Statement of Financial Accounting
Standards No. 123 (revised), affects the Stock such that an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of
Grantees under the Plan, then the Committee shall appropriately and
proportionately adjust, in its sole discretion (a) the class(es) and
maximum number of securities subject to the Plan pursuant to Section 5.1, (b) the
class(es) and maximum number of securities that may be awarded to any person
pursuant to Section 5.3, (c) the class(es) and number of securities
issued or issuable in respect of outstanding Awards, and (d) the exercise
price, grant price, or purchase price relating to any Award. Notwithstanding
the foregoing, the conversion of any convertible securities of the Company
shall not be treated as an event permitting adjustment as provided herein.


 


6.             SPECIFIC
TERMS OF AWARDS.


 


6.1  General.  The term of each Award shall be for such
period as may be determined by the Committee. Subject to the terms of the Plan
and any applicable Award Agreement, payments to be made by the Company, a
Subsidiary, or Affiliate upon the grant, maturation, or exercise of an Award
may be made in such forms as the Committee shall determine at the date of grant
or thereafter, including, without limitation, cash, Stock, or other property,
and may be made in a single payment or transfer, in installments, or on a
deferred basis. The Committee may make rules relating to installment or
deferred payments with respect to Awards, including the rate of interest to be
credited with respect to such payments. In addition to the foregoing, the
Committee may impose on any Award or the exercise thereof, at the date of grant
or thereafter, such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine.


 


6.2  Options.  The Committee is authorized to grant Options
to Grantees on the following terms and conditions:


 


(a)   Exercise Price.  The
exercise price per share of Stock purchasable under an Option shall be
determined by the Committee; provided that,
such exercise price shall be not less than one hundred percent (100%) of the
Fair Market Value of a share of Stock on the date of grant of such Option.
Notwithstanding the foregoing, an Option may be granted with an exercise price
lower than one hundred percent (100%) of the Fair Market Value of a share of
Stock subject to the Option if such Option is granted pursuant to an assumption
of or substitution for another option pursuant to a corporate transaction and
in a manner consistent with the provisions of Sections 409A and, if
applicable, 424(a) of the Code. The exercise price for Stock subject to an
Option may be paid in cash, check, bank draft, or money order payable to the
Company, or, subject to the approval of the Committee, by delivery to the
Company (either by actual delivery or attestation) of Stock previously owned by
the Grantee, or a combination of Stock and cash, check, bank draft, or money
order, in an amount having a combined value equal to such exercise price.
Subject to the approval of the Committee, a Grantee may pay all or a portion of
the aggregate exercise price of an Option (i) by a “net exercise”
arrangement pursuant to which the Company will reduce the number of shares of
Stock issuable upon exercise by the largest whole number of shares with a Fair
Market Value that does not exceed the aggregate exercise price; provided, however, that the Company shall
accept a cash or other payment from the Grantee to the extent of any remaining
balance of the aggregate exercise price not satisfied by such reduction in the
number of whole shares to be issued; provided,
further, that shares of Stock will no longer be subject to an Option
and will not be exercisable thereafter to the extent that (A) shares
issuable upon exercise are reduced to pay the exercise price pursuant to the “net
exercise,” (B) shares are delivered to the Grantee as a result of such
exercise, and (C) shares are withheld to satisfy tax withholding
obligations; (ii) pursuant to a program developed under 12 C.F.R.
§ 220 or any successor thereof (“Regulation T”) as promulgated by the
Federal Reserve Board that, prior to the issuance of the Stock subject to the
Option, results in either the receipt of cash (or check) by the Company or the
receipt of irrevocable instructions to pay the aggregate exercise price to the
Company from the sales proceeds; or (iii) in any other form of legal
consideration that may be acceptable to the Committee.


 


(b)   Term and Exercisability of Options.  Options shall be exercisable over the
exercise period (which shall not exceed ten years from the date of grant), at
such times and upon such conditions as the Committee may determine, as
reflected in the Award Agreement. The Committee shall have the authority to
accelerate the exercisability or vesting of any outstanding Option at such time
and under such circumstances as it, in its sole discretion, deems appropriate; provided, however, that such
exercisability and vesting may only be accelerated in the event of a Grantee’s
death, Disability or Retirement, or upon a Change of Control; provided further, however, that up to 10%
of the total number of shares reserved for issuance under the Plan pursuant to Section 5
may be subject to Awards granted after the Effective Date which do not meet the
preceding acceleration limitations. An Option may be exercised to the extent of
any or all full shares of Stock as to which the Option has become exercisable,
by giving written notice of such exercise to the Committee or its designated
agent.


 


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(c)   Termination of Employment, etc.  An Option may not be exercised unless the
Grantee is then in the employ of, or then maintains an independent contractor
relationship with, the Company, Subsidiary, or an Affiliate (or a company, a
parent, or Subsidiary company of such company issuing or assuming the Option in
a transaction to which Section 424(a) of the Code applies); provided that, the Award Agreement may
contain provisions extending the exercisability of Options, in the event of
specified terminations, to a date not later than the expiration date of such
Option.


 


(d)   Non-Exempt Employees.  No Option, whether or not vested, granted to
an employee of the Company, Subsidiary, or an Affiliate, who is a non-exempt
employee for purposes of the Fair Labor Standards Act of 1938, as amended,
shall be first exercisable for any shares of Stock until at least six months
following the date of grant of the Option. Notwithstanding the foregoing,
consistent with the provisions of the Worker Economic Opportunity Act, (i) in
the event of the Grantee’s death or Disability, (ii) upon a Change in
Control, or (iv) upon the Grantee’s Retirement, any such vested Options
may be exercised earlier than six months following the date of grant. The
foregoing provision is intended to operate so that any income derived by a
non-exempt employee in connection with the exercise or vesting of an Option
will be exempt from his or her regular rate of pay.


 


(e)   Other Provisions. 
Options may be subject to such other conditions including, but not
limited to, restrictions on transferability of the shares acquired upon
exercise of such Options, as the Committee may prescribe in its discretion or
as may be required by applicable law.


 


6.3  SARs.  The Committee is authorized to grant SARs to
Grantees on the following terms and conditions:


 


(a)   In General.  SARs shall be
exercisable over the exercise period (which shall not exceed ten years from the
date of grant), at such times and upon such conditions as the Committee may
determine, as reflected in the Award Agreement. An SAR shall confer on the
Grantee a right to receive an amount with respect to each share subject
thereto, upon exercise thereof, equal to the excess of (i) the Fair Market
Value of one share of Stock on the date of exercise over (ii) the grant
price of the SAR (which shall be not less than one hundred percent (100%) of
the Fair Market Value of a share of Stock on the date of grant of such SAR).


 


(b)   Tandem Arrangements.  An SAR granted in tandem with an Option may
be granted at the time of grant of the related Option. An SAR granted in tandem
with an Option shall be exercisable only to the extent the underlying Option is
exercisable.


 


6.4  Restricted
Stock.  The Committee is authorized to
grant Restricted Stock to Grantees on the following terms and conditions:


 


(a)   Issuance and Restrictions.  Restricted Stock shall be subject to such
restrictions on transferability and other restrictions, if any, as the
Committee may impose at the date of grant or thereafter, which restrictions may
lapse separately or in combination at such times, under such circumstances, in
such installments, or otherwise, as the Committee may determine. Such
restrictions may include factors relating to the increase in the value of the
Stock or to individual or Company performance such as the attainment of certain
specified individual or Company-wide performance goals or earnings per share.
Notwithstanding the foregoing or any other provision of the Plan to the
contrary, (i) any such restrictions which may lapse on the basis of a
Grantee’s service with the Company, a Subsidiary, or Affiliate shall not lapse
any more rapidly than pro rata over a three (3) year period, and any such
restrictions which may lapse on the basis of factors such as an increase in the
value of the Stock or individual or Company performance shall not lapse any earlier
than one (1) year following the date of grant of the Restricted Stock, and
(ii) the lapsing of any such restrictions may be accelerated only in the
event of a Grantee’s death, Disability or Retirement, or upon a Change of
Control; provided, however, that
up to 10% of the total number of shares reserved for issuance under the Plan
pursuant to Section 5 may be subject to Awards granted after the Effective
Date which do not meet the preceding vesting or acceleration limitations.
Except to the extent restricted under the Award Agreement relating to the
Restricted Stock, a Grantee granted Restricted Stock shall have all of the
rights of a stockholder including, without limitation, the right to vote
Restricted Stock and the right to receive dividends thereon.


 


(b)   Consideration.  Restricted
Stock may be awarded in consideration for (A) cash, check, bank draft, or
money order payable to the Company, (B) past services to the Company, a
Subsidiary, or Affiliate, or (C) any other form of legal consideration
that may be acceptable to the Committee, in its sole discretion, and
permissible under applicable law.


 


I-7

















 


(c)   Termination of Employment.  Upon termination of employment with or
service to the Company and any Subsidiary or Affiliate, or upon termination of
the independent contractor relationship, as the case may be, during the
applicable restriction period, the Company may receive through a forfeiture
condition or a repurchase right any or all of the shares of Restricted Stock
and any accrued but unpaid dividends that are at that time subject to the same
restrictions as apply to the shares of Restricted Stock to which they relate; provided that, the Committee may provide,
by rule or regulation, or in any Award Agreement, or may determine in any
individual case, that restrictions, forfeiture conditions or repurchase rights
relating to Restricted Stock will be waived in whole or in part in the event of
a Grantee’s death, Disability or Retirement, or upon a Change of Control.


 


(d)   Certificates for Stock.  Restricted Stock granted under the Plan may
be evidenced in such manner as the Committee shall determine. If certificates
representing Restricted Stock are registered in the name of the Grantee, such
certificates shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock, and the
Company shall have discretion to retain physical possession of the certificate.


 


(e)   Dividends.  Dividends
paid on Restricted Stock shall either be paid at the dividend payment date, or
be deferred for payment to such date as determined by the Committee, in cash or
in shares of unrestricted Stock having a Fair Market Value equal to the amount
of such dividends. Stock distributed in connection with a stock split or stock
dividend, and other property distributed as a dividend, shall be subject to
restrictions and a risk of forfeiture to the same extent as the Restricted
Stock with respect to which such Stock or other property has been distributed.


 


6.5  Stock
Awards in Lieu of Cash Awards.  The Committee is authorized to grant Stock to
Grantees as a bonus, or to grant other Awards, in lieu of Company commitments
to pay cash under other plans or compensatory arrangements. Stock or Awards
granted hereunder shall have such other terms as shall be determined by the
Committee. Notwithstanding the foregoing or any other provision of the Plan to
the contrary, (i) any Stock or Award granted hereunder which vests on the
basis of a Grantee’s service with the Company, a Subsidiary, or Affiliate shall
not vest any more rapidly than pro rata vesting over a three (3) year
period, and any Stock or Award granted hereunder which vests on the basis of
performance shall provide for a performance period of at least one (1) year,
and (ii) vesting may be accelerated only in the event of a Grantee’s
death, Disability or Retirement, or upon a Change of Control; provided, however, that (i) up to 10%
of the total number of shares reserved for issuance under the Plan pursuant to Section 5
may be subject to Awards granted after the Effective Date which do not meet the
preceding vesting or acceleration limitations, and (ii) any Stock or Award
granted hereunder that is granted in lieu of compensation that has been earned
by the Grantee and that is otherwise payable in cash shall not be subject to
the preceding vesting limitations.


 


6.6  Other
Stock-Based or Cash-Based Awards.


 


(a)   In General.  The
Committee is authorized to grant to Grantees Other Stock-Based Awards or Other
Cash-Based Awards alone or in addition to any other Award under the Plan, as
deemed by the Committee to be consistent with the purposes of the Plan. Such
Awards may be granted with value and payment contingent upon performance of the
Company or any other factors designated by the Committee, or valued by
reference to the performance of specified Subsidiaries or Affiliates.
Notwithstanding the foregoing or any other provision of the Plan to the
contrary, (i) any Other Stock-Based Award which vests on the basis of a
Grantee’s service with the Company, a Subsidiary, or Affiliate shall not vest
any more rapidly than pro rata vesting over a three (3) year period, and
any Other Stock-Based Award which vests on the basis of performance shall
provide for a performance period of at least one (1) year, and (ii) vesting
may be accelerated only in the event of a Grantee’s death, Disability or
Retirement, or upon a Change of Control; provided,
however, that up to 10% of the total number of shares reserved for
issuance under the Plan pursuant to Section 5 may be subject to Awards
granted after the Effective Date which do not meet the preceding vesting or
acceleration limitations. Subject to subsection (b) below, the
Committee shall determine the terms and conditions of such Awards at the date
of grant or thereafter.


 


(b)   Section 162(m) Compliance.  Unless otherwise permitted in compliance with
the requirements of Section 162(m) of the Code, with respect to any
Other Stock-Based or Other Cash-Based Awards that are intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, (i) the
Committee shall establish the performance objectives applicable to, and the
formula for calculating the amount payable under, the Award no later than the
earlier of (a) the date ninety (90) days after the commencement of
the performance period over which the attainment of the performance objectives
will be measured or (b) the date on which twenty-five (25%) of the
performance period has elapsed, and in any event at a time when the achievement
of the applicable performance objectives remains substantially uncertain.


 


I-8

















 


Prior to the payment of any
compensation under an Award intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, the Committee shall
certify the extent to which any performance objectives and any other material
terms under such Award have been satisfied (other than in cases where
certification is not required for the Award to be treated as performance- based
compensation under Section 162(m) of the Code). Notwithstanding
satisfaction of any completion of any performance objectives, to the extent
specified at the time of grant of an Award to “covered employees” within the
meaning of Section 162(m) of the Code, the number of shares, Options,
cash, or other benefits granted, issued, retainable, and/or vested under an
Award on account of satisfaction of such performance objectives may be reduced
by the Committee on the basis of such further considerations as the Committee,
in its sole discretion, shall determine.


 


The performance objectives
shall be based upon and expressed in terms of one or more of the following
criteria: (i) earnings (including earnings per share and net earnings); (ii) earnings
before interest, taxes and depreciation; (iii) earnings before interest,
taxes, depreciation, and amortization; (iv) total stockholder return; (v) return
on equity or average stockholder’s equity; (vi) return on assets,
investment, or capital employed; (vii) stock price; (viii) margin
(including gross margin); (ix) income (before or after taxes); (x) operating
income; (xi) operating income after taxes; (xii) operating cash flow;
(xiii) sales or revenue targets; (xiv) increases in revenue or
product revenue; (xv) expenses and cost reduction goals;
(xvi) economic value added (or an equivalent metric); (xvii) market
share; (xviii) cash flow; (xix) cash flow per share; (xx) share
price performance; (xxi) debt reduction; (xxii) customer satisfaction;
(xxiii) stockholders’ equity; (xxiv) capital expenditures;
(xxv) debt levels; (xxvi) operating profit or net operating profit;
(xxvii) workforce diversity; (xxviii) growth of net income, operating
income, or net earnings; (xxix) increase in funds from operations (“FFO”);
(xxx) increase in FFO per share; or (xxxi) the Company’s published
ranking against its peer group of office real estate investment trusts based on
total stockholder return, increase in FFO per share and/or FFO current and
forward multiples.


 


Performance objectives
established by the Committee may be (but need not be) different from
year-to-year, and different performance objectives may be applicable to
different Grantees. Performance objectives may be established on a Company-wide
basis or with respect to one or more business units, divisions, Affiliates, or
business segments, and in either absolute terms or relative to the performance
of one or more comparable companies or the performance of one or more relevant
indices. At the time of the grant of any Award, the Committee is authorized to
determine whether, when calculating the attainment of performance objectives
for a certain performance period: (i) to exclude restructuring and/or
other specific or objectively determinable nonrecurring charges; (ii) to
exclude exchange rate effects, as applicable, for non-U.S. dollar denominated
net sales and operating earnings; (iii) to exclude the effects of changes
to generally accepted accounting principles; (iv) to exclude the effects
of any statutory adjustments to corporate tax rates; and (v) to exclude
the effects of any “extraordinary items” as determined under generally accepted
accounting principles. In addition, the Committee retains the discretion to
reduce or eliminate the compensation or economic benefit due upon attainment of
performance objectives and to define the manner of calculating the criteria it
selects to use for each performance period.


 


6.7  Change in
Service Capacity and Leaves of Absence.  Notwithstanding anything in the Plan to the
contrary, for purposes of any Award or Award Agreement under the Plan, (i) the
term “employment” shall mean service provided to the Company, Subsidiary, or an
Affiliate as an employee or independent contractor and (ii) a change in
the capacity in which a Grantee renders service to the Company, Subsidiary, or
Affiliate, whether as an employee or independent contractor, or a change in the
entity for which the Grantee renders such service, provided that there is no
interruption or termination of the Grantee’s service with the Company,
Subsidiary, or Affiliate, shall not be deemed to be a termination of
employment; provided, however, if
the entity for which a Grantee is rendering services ceases to qualify as an
Affiliate, as determined by the Committee, in its sole discretion, such Grantee’s
employment shall be considered to have terminated on the date such entity
ceases to qualify as an Affiliate. To the extent permitted by law, the
Committee or the chief executive officer of the Company, in that party’s sole
discretion, may determine whether service shall be considered interrupted in
the case of (i) any leave of absence approved by the Committee or the
chief executive officer, including sick leave, military leave, or any other
personal leave, or (ii) transfers between the Company, a Subsidiary or an
Affiliate, or their successors. Notwithstanding the foregoing, for purposes of
vesting in an Award, service shall not be considered interrupted in the case of
a leave of absence only to such extent as may be provided in the Company’s
leave of absence policy, in the written terms of the Grantee’s leave of
absence, or as otherwise required by law.


 


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7.             CHANGE OF
CONTROL PROVISIONS.


 


7.1  Change of
Control.  The
following provisions shall apply in the event of a Change of Control, unless
otherwise determined by the Committee or the Board in writing at or after grant
(including under any individual agreement), but prior to the occurrence of such
Change of Control:


 


(a)           any Award
carrying a right to exercise that was not previously exercisable and vested
shall become fully exercisable and vested;


 


(b)           the
restrictions, deferral limitations, payment conditions, and forfeiture
conditions applicable to any other Award granted under the Plan shall lapse and
such Awards shall be deemed fully vested, and any performance conditions
imposed with respect to Awards shall be deemed to be fully achieved; and


 


(c)           any surviving
corporation or acquiring corporation (or its parent company) may assume or
continue any Awards outstanding under the Plan or may substitute similar awards
(including an award to acquire the same consideration paid to the stockholders
in the Change of Control) for those outstanding under the Plan.


 


8.             GENERAL
PROVISIONS.


 


8.1  Effective
Date; Approval by Stockholders.  The Plan, as amended and restated effective
as of the date of the annual meeting of stockholders of the Company held in
2010, shall take effect on the Effective Date, provided that this Plan is
approved by the Company’s stockholders at such meeting.


 


8.2  Nontransferability.  Awards shall not be transferable by a Grantee
except by will or the laws of descent and distribution; provided, however, that the Committee may,
in its sole discretion, permit transfer of an Award in a manner consistent with
applicable tax and securities laws upon the Grantee’s request; provided, further, however, that no Awards
may be transferred for consideration.


 


8.3  Use of
Proceeds from Sales of Stock.  Proceeds from the sale of shares of Stock
pursuant to Awards shall constitute general funds of the Company.


 


8.4  Corporate
Action Constituting Grant of Awards.  Corporate action constituting a grant by the
Company of an Award to any Grantee shall be deemed completed as of the date of
such corporate action, unless otherwise determined by the Committee, regardless
of when the instrument, certificate, or letter evidencing the Award is
communicated to, actually received, or accepted by, the Grantee.


 


8.5  No Right to
Continued Employment, etc.  Nothing in the Plan or in any Award granted
or any Award Agreement or other agreement entered into pursuant hereto shall
confer upon any Grantee the right to continue in the employ of or to continue
as an independent contractor of the Company, any Subsidiary, or any Affiliate,
or to be entitled to any remuneration or benefits not set forth in the Plan,
such Award Agreement, or other agreement, or to interfere with or limit in any
way the right of the Company, any such Subsidiary, or Affiliate to terminate
such Grantee’s employment or independent contractor relationship.


 


8.6  Taxes.  The Company, any Subsidiary, or Affiliate is
authorized to withhold from any Award granted, any payment relating to an Award
under the Plan, including from a distribution of Stock, or any other payment to
a Grantee, amounts of withholding and other taxes due in connection with any
transaction involving an Award, and to take such other action as the Committee
may deem advisable to enable the Company and Grantees to satisfy obligations
for the payment of withholding taxes and other tax obligations relating to any
Award. This authority includes the authority to withhold, receive Stock, or
other property, and to make cash payments in respect thereof in satisfaction of
a Grantee’s tax obligations. Notwithstanding the foregoing, no shares of Stock
shall be withheld to satisfy withholding and other tax obligations with a value
exceeding the minimum amount of tax required to be withheld by law (or such
other maximum amount as may be permitted while still avoiding classification of
the Award as a liability for financial accounting purposes).


 


The Company shall have no
duty or obligation to any Grantee to advise such individual as to the time or
manner of exercising any Award, to warn or otherwise advise such individual of
a pending termination or expiration of an Award or a possible period in which
the Award may not be exercised, or to minimize the tax consequences of an Award
to the holder of such Award.


 


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8.7  Amendment
and Termination of the Plan.  The Board may at any time and from time to
time alter, amend, suspend, or terminate the Plan in whole or in part; provided that, if the Committee determines
that stockholder approval of an amendment is necessary or desirable in order
for the Plan to comply or continue to comply with any applicable law, such
amendment shall not be effective unless the same shall be approved by the
requisite vote of the stockholders of the Company entitled to vote thereon.
Notwithstanding the foregoing but subject to Section 8.15, no amendment
shall affect adversely any of the rights of any Grantee, without such Grantee’s
consent, under any Award theretofore granted under the Plan. Unless terminated
sooner by the Board, the Plan automatically shall terminate on the day
immediately preceding the tenth anniversary of the Effective Date.


 


8.8  No Rights
to Awards; No Stockholder Rights.  No Grantee shall have any claim to be granted
any Award under the Plan, and there is no obligation for uniformity of
treatment of Grantees. Except as provided specifically herein, no Grantee shall
be deemed to be the holder of, or to have any of the rights of a holder with
respect to, any shares of Stock subject to such Award unless and until (i) such
Grantee has satisfied all requirements for exercise of the Award pursuant to
its terms, if applicable, and (ii) the issuance of the Stock subject to
such Award has been entered into the books and records of the Company.


 


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


 


8.10  No
Fractional Shares.  No
fractional shares of Stock shall be issued or delivered pursuant to the Plan or
any Award. The Committee shall determine whether cash, other Awards, or other
property shall be issued or paid in lieu of such fractional shares or whether
such fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.


 


8.11  Securities
Law Compliance.  The Company
shall seek to obtain from each regulatory commission or agency having
jurisdiction over the Plan such authority as may be required to grant Awards
and to issue and sell shares of Stock upon exercise of the Awards; provided, however, that this undertaking
shall not require the Company to register under the Securities Act the Plan,
any Award or any Stock issued or issuable pursuant to any such Award. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority that counsel for the Company deems necessary
for the lawful issuance and sale of Stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell Stock upon exercise
of such Awards unless and until such authority is obtained. A Grantee shall not
be eligible for the grant of an Award or the subsequent issuance of Stock
pursuant to the Award if such grant or issuance would be in violation of any
applicable securities law.


 


8.12  Investment
Assurances.  The Company
may require a Grantee, as a condition of exercising or acquiring Stock under
any Award, (i) to give written assurances satisfactory to the Company as
to the Grantee’s knowledge and experience in financial and business matters
and/or to employ a purchaser representative reasonably satisfactory to the
Company who is knowledgeable and experienced in financial and business matters
and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Award; and (ii) to
give written assurances satisfactory to the Company stating that the Grantee is
acquiring Stock subject to the Award for the Grantee’s own account and not with
any present intention of selling or otherwise distributing the Stock. The
foregoing requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (A) the issuance of the shares upon the exercise
or acquisition of Stock under the Award has been registered under a then
currently effective registration statement under the Securities Act, or (B) as
to any particular requirement, a determination is made by counsel for the
Company that such requirement need not be met in the circumstances under the
then applicable securities laws. The Company may, upon advice of counsel to the
Company, place legends on stock certificates issued under the Plan as such
counsel deems necessary or appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting the transfer
of the Stock.


 


8.13  Electronic
Delivery.  Any
reference herein to a “written” agreement or document shall include any
agreement or document delivered electronically or posted on the Company’s
intranet.


 


8.14  Deferrals.  To the extent permitted by applicable law,
the Committee, in its sole discretion, may determine that the delivery of Stock
or the payment of cash, upon the exercise, vesting, or settlement of all or a
portion of any Award may be deferred and may also establish programs and
procedures for deferral elections to be made by Grantees. Deferrals by Grantees
will be made in accordance with Section 409A of the Code. Consistent with Section 409A
of the Code, the Committee may provide for distributions while a Grantee is
still providing services to the Company, Subsidiary or, Affiliate as an
employee or independent contractor.


 


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8.15  Compliance
with Section 409A of the Code.  To the extent that the Committee determines
that any Award granted under the Plan is subject to Section 409A of the
Code, the Award Agreement evidencing such Award shall incorporate the terms and
conditions necessary to avoid the consequences specified in Section 409A(a)(1) of
the Code. To the extent applicable, the Plan and Award Agreements shall be
interpreted in accordance with Section 409A of the Code and other
interpretive guidance issued thereunder. Notwithstanding any provision of the
Plan to the contrary, in the event that the Committee determines that any Award
may be subject to Section 409A of the Code and related Department of
Treasury guidance, the Board may adopt such amendments to the Plan and the
applicable Award Agreement or adopt other policies and procedures (including
amendments, policies, and procedures with retroactive effect), or take any
other actions, that the Board determines are necessary or appropriate to (i) exempt
the Award from Section 409A of the Code and/or preserve the intended tax
treatment of the benefits provided with respect to the Award, or (ii) comply
with the requirements of Section 409A of the Code and other interpretive
guidance issued thereunder. Notwithstanding anything to the contrary in this
Plan (and unless the Award Agreement specifically provides otherwise), if the
shares of Stock are publicly traded and a Grantee holding an Award that
constitutes “deferred compensation” under Section 409A of the Code is a “specified
employee” for purposes of Section 409A of the Code, no distribution or
payment of any amount shall be made upon a “separation from service” before a
date that is six (6) months following the date of such Grantee’s “separation
from service” (as defined in Section 409A of the Code without regard to
alternative definitions thereunder) or, if earlier, the date of the Grantee’s
death.


 


8.16  Governing
Law.  The Plan and all determinations
made and actions taken pursuant hereto shall be governed by the laws of the
State of Maryland without giving effect to the conflict of laws principles
thereof.


 


IN WITNESS
WHEREOF, the Plan is hereby adopted by a duly authorized officer
of Alexandria Real Estate Equities, Inc. on this 27th day of May, 2010.


 


 


	
   

  	
  ALEXANDRIA REAL ESTATE EQUITIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dean A. Shigenaga

  
	
   

  	
  Name:

  	
  Dean A. Shigenaga

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


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