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.
A-8
Alternatively, these restrictions
may lapse pursuant to the satisfaction of one or m
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