Exhibit 10.1







Exhibit 10.1


 





    2009 AMENDMENT
    AND RESTATEMENT OF THE

    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).




    

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    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 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;




    

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    (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.



 



    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



 



    (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.




    

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    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.



 



    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.



 



    (a) 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 (GAAP) 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 or on a
    same-property basis. The Administrator shall, within the time
    prescribed by Section 162(m) of the




    

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    Code, define in an objective fashion the manner of calculating
    the Performance Criteria it selects to use for such Performance
    Period for such Participant.



 



    (b) The Administrator may, in its sole discretion, provide
    that one or more objectively determinable adjustments shall be
    made to one or more of the Performance Goals. Such adjustments
    may include one or more of the following: (i) items related
    to a change in accounting principle; (ii) items relating to
    financing activities; (iii) expenses for restructuring or
    productivity initiatives; (iv) other non-operating items;
    (v) items related to acquisitions; (vi) items
    attributable to the business operations of any entity acquired
    by the Company during the Performance Period; (vii) items
    related to the disposal of a business or segment of a business;
    (viii) items related to discontinued operations that do not
    qualify as a segment of a business under GAAP; (ix) items
    attributable to any stock dividend, stock split, combination or
    exchange of shares occurring during the Performance Period;
    (x) any other items of significant income or expense which
    are determined to be appropriate adjustments; (xi) items
    relating to unusual or extraordinary corporate transactions,
    events or developments; (xii) items related to amortization
    of acquired intangible assets; (xiii) items that are
    outside the scope of the Company’s core, on-going business
    activities; or (xiv) items relating to any other unusual or
    nonrecurring events or changes in applicable laws, accounting
    principles or business conditions. For all Awards intended to
    qualify as Qualified Performance-Based Compensation, such
    determinations shall be made within the time prescribed by, and
    otherwise in compliance with, Section 162(m) of the Code.



 



    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.



 



    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.



 



    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 “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.



 



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



 



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



 



    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.




    

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    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
    5,340,000 shares. Other Stock-Based Awards which are
    denominated in Partnership units, shall count against the number
    of shares of Stock available for issuance under the Plan only to
    the extent that such Partnership unit is convertible into shares
    of Stock and on the same basis as the conversion ratio
    applicable to the Partnership Unit.



 



    (b) To the extent that an Award terminates, expires, or
    lapses for any reason, or an Award is settled in cash without
    the delivery of shares of Stock to the Participant, then 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. Any shares of Stock forfeited or
    repurchased by the Company under Section 6.3 shall again be
    available for Awards. 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, to the extent such Partnership
    units are convertible into Stock, 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 the same
    basis as such Partnership unit is convertible into Stock, i.e.,
    each such unit shall be treated as an equivalent award of Stock.
    The payment of Dividend Equivalents in cash in conjunction with
    any outstanding Awards shall not be counted against the shares
    available for issuance under the Plan.



 



    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.



 




    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
    



 



    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 100% of the Fair Market Value of a
    share of Stock on the date the Option is granted (or, as to
    Incentive Stock Options, on the date the Option is modified,
    extended or renewed for purposes of Section 424(h) of the
    Code).




    

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    (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) Evidence of Grant.  Each Option
    grant shall be evidenced by an Award Agreement that shall
    specify the exercise price for the Option, the term of the
    Option, the number of shares of Stock to which the Option
    pertains, and such other provisions as the Administrator shall
    determine. The Award Agreement shall also specify whether the
    Option is intended to be an Incentive Stock Option or a
    Non-Qualified Stock Option. Award Agreements evidencing
    Incentive Stock Options shall contain such terms and conditions
    as may be necessary to meet the applicable provisions of
    Section 422 of the Code.



 



    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) Expiration of Option.  Subject
    to Section 5.2(c), 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.



 



    (b) 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.



 



    (c) 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.



 



    (d) 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.




    

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



 



    (f) 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 the 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 Sections 7.3 and 14.1 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  Partial Exercise.  An
    exercisable Option may be exercised in whole or in part.
    However, an Option shall not be exercisable with respect to
    fractional shares and the Administrator may require that, by the
    terms of the Option, a partial exercise must be with respect to
    a minimum number of shares.



 



    5.6 Manner of Exercise.  All or a
    portion of an exercisable Option shall be deemed exercised upon
    delivery of all of the following to the Secretary of the
    Company, or such other person or entity designated by the
    Administrator, or his, her or its office, as applicable:



 



    (a) A written notice complying with the applicable rules
    established by the Administrator stating that the Option, or a
    portion thereof, is exercised. The notice shall be signed by the
    Participant or other person then entitled to exercise the Option
    or such portion of the Option;



 



    (b) Such representations and documents as the
    Administrator, in its sole discretion, deems necessary or
    advisable to effect compliance with all applicable provisions of
    the Securities Act and any other federal, state or foreign
    securities laws or regulations. The Administrator may, in its
    sole discretion, also take whatever additional actions it deems
    appropriate to effect such compliance including, without
    limitation, placing legends on share certificates and issuing
    stop-transfer notices to agents and registrars;



 



    (c) In the event that the Option shall be exercised
    pursuant to Section 10.6 by any person or persons other
    than the Participant, appropriate proof of the right of such
    person or persons to exercise the Option; and



 



    (d) Full payment of the exercise price and applicable
    withholding taxes to the Secretary of the Company for the shares
    with respect to which the Option, or portion thereof, is
    exercised, in a manner permitted by Section 10.1 and 10.2.



 




    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. 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.




    

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    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. Certificates or book entries evidencing shares
    of Restricted Stock must bear an appropriate legend referring to
    the terms, conditions, and restrictions applicable to such
    Restricted Stock, and the Company may, at its discretion, retain
    physical possession of any stock certificate until such time as
    all applicable restrictions lapse.



 



    6.5 Automatic Grants to Independent
    Directors.  During the term of the Plan:



 



    (a) A person who is initially elected to the Board and who
    is an Independent Director at the time of such initial election
    automatically shall be granted 2,000 shares of Restricted
    Stock (subject to adjustment as provided in
    Article 11) on the date of such initial election.



 



    (b) Each Independent Director shall be granted
    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 other than the annual
    meeting at which the Independent Director first receives an
    award of Restricted Stock pursuant to paragraph (a) above.



 



    (c) 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.



 




    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 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 Value of Stock Appreciation
    Right.  A Stock Appreciation Right shall
    entitle the Participant (or other person entitled to exercise
    the Stock Appreciation Right pursuant to the Plan) to exercise
    all or a specified portion of the Stock Appreciation Right (to
    the extent then exercisable pursuant to its terms) and to
    receive from the Company an amount determined by multiplying the
    difference obtained by subtracting the exercise price per share
    of the Stock Appreciation Right from the Fair Market Value on
    the date of exercise of the Stock Appreciation Right by the
    number of shares of Stock with respect to which the Stock
    Appreciation Right shall have been exercised, subject to any
    limitations the Administrator may impose. Except as described in
    Section 7.3 below, the exercise price per share of Stock
    subject to each Stock Appreciation Right shall be set by the
    Administrator, but shall not be less than 100% of the Fair
    Market Value on the date the Stock Appreciation Right is granted.




    

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    7.3 Stock Appreciation Right
    Vesting.  The period during which the right to
    exercise, in whole or in part, a Stock Appreciation Right vests
    in the Participant shall be set by the Administrator and the
    Administrator may determine that a Stock Appreciation Right may
    not be exercised in whole or in part for a specified period
    after it is granted. Such vesting may be based on service with
    the Company or any Subsidiary, or any other criteria selected by
    the Administrator. At any time after grant of a Stock
    Appreciation Right, the Administrator may, in its sole
    discretion and subject to whatever terms and conditions it
    selects, accelerate the period during which a Stock Appreciation
    Right vests. No portion of a Stock Appreciation Right which is
    unexercisable at Termination of Service shall thereafter become
    exercisable, except as may be otherwise provided by the
    Administrator either in the Award Agreement or by action of the
    Administrator following the grant of the Stock Appreciation
    Right.



 



    7.4 Manner of Exercise.  All or a
    portion of an exercisable Stock Appreciation Right shall be
    deemed exercised upon delivery of all of the following to the
    Secretary of the Company, or such other person or entity
    designated by the Administrator, or his, her or its office, as
    applicable:



 



    (a) A written notice complying with the applicable rules
    established by the Administrator stating that the Stock
    Appreciation Right, or a portion thereof, is exercised. The
    notice shall be signed by the Participant or other person then
    entitled to exercise the Stock Appreciation Right or such
    portion of the Stock Appreciation Right;



 



    (b) such representations and documents as the
    Administrator, in its sole discretion, deems necessary or
    advisable to effect compliance with all applicable provisions of
    the Securities Act and any other federal, state or foreign
    securities laws or regulations. The Administrator may, in its
    sole discretion, also take whatever additional actions it deems
    appropriate to effect such compliance; and



 



    (c) In the event that the Stock Appreciation Right shall be
    exercised pursuant to this Section 7.4 by any person or
    persons other than the Participant, appropriate proof of the
    right of such person or persons to exercise the Stock
    Appreciation Right.



 



    7.5 Payment.  Payment of the
    amounts determined under Section 7.2 shall be in cash,
    shares of 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 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) Notwithstanding the foregoing, no Dividend Equivalents
    shall be payable with respect to Options or any Award which
    vests based on satisfaction of performance criteria (whether or
    not such criteria satisfy the requirements of Performance
    Criteria or such Award is a Performance Based Award), unless and
    until such Award vests.



 



    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




    

    A-10








 






    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.



 



    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.
    The Administrator shall specify, or permit the Participant to
    elect, the conditions and dates upon which the shares of Stock
    underlying the Restricted Stock Units which shall be issued,
    which dates shall not be earlier than the date as of which the
    Restricted Stock Units vest and become nonforfeitable and which
    conditions and dates shall be subject to compliance with
    Section 409A of the Code. On the distribution dates, the
    Company shall issue to the Participant one unrestricted, fully
    transferable share of Stock for each vested and nonforfeitable
    Restricted Stock Unit. 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-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 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.




    

    A-11








 







    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 Stock Appreciation Rights
    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 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 Payment.  The Administrator
    shall determine the methods by which payments by any Participant
    with respect to any Awards granted under the Plan shall be made,
    including, without limitation: (a) cash or check,
    (b) shares of Stock (including, in the case of payment of
    the exercise price of an Award, shares of Stock issuable




    

    A-12








 






    pursuant to the exercise of the Award) or shares of Stock held
    for such period of time as may be required by the Administrator
    in order to avoid adverse accounting consequences, in each case,
    having a Fair Market Value on the date of delivery equal to the
    aggregate payments required, (c) 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 or
    vesting of an Award, 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 aggregate payments required,
    provided, that payment of such proceeds is then made to
    the Company upon settlement of such sale, or (d) other form
    of legal consideration acceptable to the Administrator. The
    Administrator shall also determine 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, no Participant who is a Director or an
    “executive officer” of the Company within the meaning
    of Section 13(k) of the Exchange Act shall be permitted to
    make payment with respect to any Awards granted under the Plan,
    or continue any extension of credit with respect to such payment
    with a loan from the Company or a loan arranged by the Company
    in violation of Section 13(k) of the Exchange Act.



 



    10.2 Tax Withholding.  The Company,
    the Partnership or any Subsidiary shall have the authority and
    the right to deduct or withhold, or require a Participant to
    remit to the Company, an amount sufficient to satisfy federal,
    state, local and foreign taxes (including the Participant’s
    FICA or employment tax obligation) required by law to be
    withheld with respect to any taxable event concerning a
    Participant arising as a result of the Plan. The Administrator
    may in its sole discretion and in satisfaction of the foregoing
    requirement allow a Participant to elect to have the Company
    withhold shares of Stock otherwise issuable under an Award (or
    allow the surrender of shares of Stock). The number of shares of
    Stock which may be so withheld or surrendered 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. The Administrator shall determine the fair
    market value of the Stock, consistent with applicable provisions
    of the Code, for tax withholding obligations due in connection
    with a broker-assisted cashless Option or Stock Appreciation
    Right exercise involving the sale of shares to pay the Option or
    Stock Appreciation Right exercise price or any tax withholding
    obligation.



 



    10.3 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.



 



    10.4 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.



 



    10.5 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 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.




    

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    10.6 Beneficiaries.  Notwithstanding
    Section 10.5, 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.



 



    10.7 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.



 



    10.8 Transfer of Shares to a Partnership Employee,
    Partnership Consultant or Partnership
    Director.  As soon as practicable after the
    Company issues shares of Stock with respect to which an Award
    (which was issued to and is held by a Partnership Employee,
    Partnership Consultant or Partnership Director in such
    capacity), then, with respect to each such Award:



 



    (a) The Company shall sell to the Partnership the number of
    shares equal to the number of shares deliverable with respect to
    such Award. The price to be paid by the Partnership to the
    Company for such shares shall be an amount equal to the product
    of (x) the number of shares multiplied by (y) the Fair
    Market Value of a share of Stock at the time of exercise or
    delivery less the amount paid by the Participant for such
    shares, if anything, pursuant to Section 10.1; and



 



    (b) The Company shall contribute to the Partnership an
    amount of cash equal to the sum of the amount paid by the
    Participant, if any, for such shares of Stock, and the amount
    paid by the Partnership under Section 10.8(a) and the
    Partnership shall issue an additional interest in the
    Partnership on the terms set forth in the Partnership Agreement.



 



    10.9 Allocation of
    Payment.  Notwithstanding the foregoing, to
    the extent that a Participant provides services to more than one
    of the Company, the Partnership, or any Subsidiary, the Company
    may, in its discretion, allocate the payment or issuance of
    shares of Stock with respect to any Awards exercised by or
    otherwise delivered to such Participant or (and the services
    performed by the Participant) among such entities for purposes
    of the provisions of Section 10.8 in order to ensure that
    the relationship between the Company and the Partnership or such
    Subsidiary remains at arms-length.



 



    10.10 Section 409A.  To the
    extent that the Administrator 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 required by Section 409A of the Code.
    To the extent applicable, the Plan and Award Agreements shall be
    interpreted in accordance with Section 409A of the Code and
    Department of Treasury regulations and other interpretive
    guidance issued thereunder, including without limitation any
    such regulations or other guidance that




    

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    may be issued after the Restatement Effective Date.
    Notwithstanding any provision of the Plan to the contrary, in
    the event that following the Restatement Effective Date the
    Administrator determines that any Award may be subject to
    Section 409A of the Code and related Department of Treasury
    guidance (including such Department of Treasury guidance as may
    be issued after the Restatement Effective Date), the
    Administrator 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
    Administrator determines are necessary or appropriate to
    (a) 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 (b) comply with the
    requirements of Section 409A of the Code and related
    Department of Treasury guidance and thereby avoid the
    application of any penalty taxes under such Section.



 




    ARTICLE 11

    



 




    CHANGES IN
    CAPITAL STRUCTURE
    



 



    11.1 Adjustments.



 



    (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 share price of the Stock, 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 or other equity interests of the successor or
    survivor corporation, or a parent or subsidiary thereof, with
    appropriate adjustments as to the number and kind of shares or
    other equity interests and prices;



 



    (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;




    

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    (iv) To provide that such Award shall be exercisable or
    payable or fully vested with respect to all shares or other
    equity interests 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.  The
    “Administrator” of the Plan shall be the Committee,
    which 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
    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




    

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    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



 



    (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 was
    originally effective as of August 3, 2004 (the
    “Effective Date”). This amended and restated
    Plan shall be effective on the date it is approved by a majority
    of the Company’s stockholders at a duly held meeting in
    2009 (the “Restatement Effective Date”).



 



    13.2 Expiration Date.  The Plan
    will expire on, and no Award may be granted pursuant to the Plan
    on or after, the tenth anniversary of the Restatement Effective
    Date (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).




    

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    Except in connection with a transaction specified in
    Section 11.1 (including, without limitation, any stock
    dividend, stock split, extraordinary cash dividend,
    recapitalization, reorganization, merger, consolidation,
    split-up,
    spin-off, combination, or exchange of shares), the terms of
    outstanding Awards may not be amended to reduce the exercise
    price of outstanding Options or Stock Appreciation Rights or
    cancel, exchange, substitute, buyout or surrender outstanding
    Options or Stock Appreciation Rights in exchange for cash, other
    Awards or Options or Stock Appreciation Rights with an exercise
    price that is less than the exercise price of the original
    Options or Stock Appreciation Rights, without stockholder
    approval.



 



    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 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.



 



    15.4 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.



 



    15.5 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 Articles of Incorporation or Bylaws, each
    as amended from time to time, as a matter of law, or otherwise,
    or any power that the Company may have to indemnify them or hold
    them harmless.



 



    15.6 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.



 



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



 



    15.8 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.




    

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    15.9 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.



 



    15.10 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.



 



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



 



    15.12 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.



 



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



 



    15.14 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.



 



    15.15 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 this amended and restated Plan was duly adopted by the Board of Directors of BioMed Realty
Trust, Inc. on February 10, 2009.



* * * * *




I hereby certify that this amended and restated Plan was duly adopted by the Board of Directors of BioMed Realty Trust,
Inc., the General Partner of BioMed Realty, L.P., on February 10, 2009.



* * * * *




I hereby certify that the foregoing amended and restated Plan was duly adopted by the stockholders of BioMed
Realty Trust, Inc. on May 27, 2009.



Executed on this 27th day of May, 2009.




/s/ Jonathan P. Klassen                                        

Secretary, BioMed Realty Trust, Inc.




    

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