ALEXANDRIA REAL ESTATE EQUITIES, INC. 2000 DEFERRED COMPENSATION PLAN

 

TABLE OF CONTENTS

 

		PAGE
ARTICLE I	INTRODUCTION AND PURPOSE	1
ARTICLE II	DEFINITIONS	1
2.1	Definitions	1
2.2	Terms	5
ARTICLE III	PARTICIPATION	5
3.1	Commencement of Participation	5
3.2	Continuation of Participation	5
ARTICLE IV	CONTRIBUTIONS AND ELECTIONS	6
4.1	Compensation Deferrals	6
4.2	Matching Contributions	7
4.3	Company Contribution	7
4.4	Time and Form of Contributions to Trust	7
ARTICLE V	VESTING	8
5.1	Vesting	8
ARTICLE VI	ACCOUNTS	8
6.1	Accounts	8
6.2	Benchmark Investment Elections for DCP Amounts	9
6.3	Deemed Investment of VIP Amounts	9
6.4	Valuation	10
6.5	Forfeitures	10
ARTICLE VII	DISTRIBUTIONS	11
7.1	Distribution Election	11
7.2	Payment Options	11
7.3	Commencement of Payment	11
7.4	Early Distribution of Section 409A Grandfathered Amounts	13
7.5	Change in Service Capacity	13
ARTICLE VIII	BENEFICIARIES	14
8.1	Beneficiaries	14
8.2	Lost Participants and Beneficiaries	15
8.3	Enforceability of Beneficiary Designations	15

 

i.

 

TABLE OF CONTENTS

(CONTINUED)

 

		PAGE
ARTICLE IX	FUNDING	15
9.1	Prohibition Against Funding	15
9.2	Deposits in Trust	15
ARTICLE X	ADMINISTRATION	16
10.1	Plan Administration	16
10.2	Administrator	16
10.3	Claims Procedures	17
ARTICLE XI	GENERAL PROVISIONS	19
11.1	No Assignment	19
11.2	No Employment Rights	19
11.3	Incompetence	19
11.4	Identity	19
11.5	Other Benefits	20
11.6	No Liability	20
11.7	Expenses	20
11.8	Amendment and Termination	20
11.9	Company Determinations	20
11.10	Arbitration	21
11.11	Debt Offsets	21
11.12	Construction	21
11.13	Governing Law	21
11.14	Severability	21
11.15	Headings	21

 

ii.

 

ALEXANDRIA REAL ESTATE EQUITIES, INC.

 

2000 DEFERRED COMPENSATION PLAN

 

 

ARTICLE I

 

INTRODUCTION AND PURPOSE

 

This Plan was originally adopted by the Company effective as of December 1, 2000.  The Plan was amended and restated effective as of January 1, 2005.  As part of such amendment and restatement, certain provisions of the Company’s 2000 Venture Investment Deferred Compensation Plan (the “VIP” ) were incorporated into the provisions of this Plan.  Any amounts deferred under the VIP prior to January 1, 2005, plus any gains credited with respect to such amounts as a result of their deemed investment in the applicable Venture Investments, shall not be subject to Section 409A of the Code and shall be governed solely by the terms of the VIP (as in effect on such date); provided, however , that to the extent covered by the definition of Section 409A Grandfathered Amounts under this Plan, such amounts also may be subject to the provisions of this Plan regarding Section 409A Grandfathered Amounts.  Any amounts deferred under the VIP on or after January 1, 2005 shall be considered to have been deferred under this Plan.

 

The purpose of the Plan is to provide key Employees supplemental retirement and tax benefits through the deferral of compensation.  The Plan is intended to be a “plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and shall be interpreted and administered to the extent possible in a manner consistent with that intent.  The Plan is intended to be administered in compliance with Section 409A of the Code with respect to all Section 409A Non-Grandfathered Amounts, and the provisions of the Plan regarding Section 409A Grandfathered Amounts are intended to be administered so as not to subject such amounts to Section 409A of the Code.

 

ARTICLE II

 

DEFINITIONS

 

2.1                             Definitions.   The following terms have the meanings set forth herein, unless the context otherwise requires:

 

Account .   The bookkeeping account established for each Participant as provided in Section 6.1.  The term includes Fixed Date Accounts (which may include a DCP Fixed Date Subaccount and VIP Fixed Date Subaccount) and Retirement Accounts (which may include a DCP Retirement Subaccount and VIP Retirement Subaccount), unless the context otherwise requires.

 

1.

 

Administrator .   The Chief Executive Officer and the Chief Financial Officer of the Company, each of whom may act as the Administrator individually; provided, however , that each may not act as the Administrator in making decisions with respect to his or her own Account.

 

Affiliate .  Any firm, partnership, limited liability partnership, corporation or limited liability corporation that (i) directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with the Company or (ii) is otherwise authorized by the Company’s Board of Directors to be considered the Company for purposes of the Plan.

 

Benchmark Investment Fund .   The investment fund or funds selected by the Administrator from time to time.

 

Benchmark Return .   The amount of any increase or decrease in the balance of a Participant’s Account reflecting the gain or loss, net of any expenses, on the assets deemed invested in each Benchmark Investment Fund by the Participant from time to time.

 

Change of Control .   The occurrence of any of the following events:

 

(a)                                Any Person (as such term is used in section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as modified and used in sections 13(d) and 14(d) thereof, except that such term shall not include (A) the Company or any of its subsidiaries, (B) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its affiliates, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, or (D) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company) becomes the Beneficial Owner, as such term is defined in Rule 13d-3 under the Exchange Act, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates other than in connection with the acquisition by the Company or its affiliates of a business) representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities; or

 

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

 

(c)                                There is consummated a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation in which the stockholders of the Company immediately prior to such merger or consolidation, continue to own, in combination

 

2.

 

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

 

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

 

Code .   The Internal Revenue Code of 1986, as amended from time to time, and the regulations and other applicable guidance promulgated thereunder.

 

Company .   Alexandria Real Estate Equities, Inc., a Maryland corporation.

 

Company Contribution .   A discretionary contribution that is credited to one or more of a Participant’s Accounts in accordance with the terms of Section 4.3.

 

Compensation .   A Participant’s annual base salary and bonuses from the Company.  For purposes of the Plan, Compensation will be determined before giving effect to Compensation Deferrals and other salary reduction amounts which are not included in the Participant’s gross income under Sections 125, 401(k), 402(h) or 403(b) of the Code.

 

Compensation Deferrals .   The portion of Compensation that a Participant elects to defer in accordance with Section 4.1.

 

DCP Amounts .  The aggregate amount of Compensation Deferrals credited to a Participant’s DCP Fixed Date Subaccount and DCP Retirement Subaccount.

 

Effective Date .   December 1, 2000.

 

Eligible Employee .   An Employee of the Company who satisfies the following requirements on any date when a determination of Eligible Employees is made for purposes of the Plan: (i) the Employee is selected and designated as an Eligible Employee in writing by the Company, in its sole discretion; (ii) the Employee has a base salary equal to or exceeding $200,000 for Plan Years commencing on or after January 1, 2008; and (iii) the Employee is an accredited investor for purposes of Regulation D promulgated under the Securities Act of 1933,

 

3.

 

as amended (the “Securities Act”).  The Administrator shall have sole and absolute discretion in determining whether or not an Employee is, at any time, an accredited investor for purposes of Regulation D promulgated under the Securities Act, based on a completed accredited investor questionnaire and such other information as the Administrator considers to be relevant.

 

Employee .   Any person employed by the Company.

 

ERISA .   Employee Retirement Income Security Act of 1974, as amended.

 

Fixed Date Account .   An Account established for a Participant with distributions to be made on a date certain, which is specified by the Participant in a Participation Election Form.

 

Matching Contribution .   A contribution that is credited to one or more of a Participant’s Accounts in accordance with the terms of Section 4.2.

 

Participant .   An Eligible Employee who has submitted a Participation Election Form agreeing to participate in the Plan and whose Account has not been fully paid out.

 

Participation Election Form .   The separate written agreement, submitted to the Administrator, by which an Eligible Employee agrees to participate in the Plan and indicates all necessary information to establish the Account(s) for such Eligible Employee as a Participant under the Plan, including, but not limited to, the amount of Compensation Deferrals and the designation of his or her Account(s) as Retirement or Fixed Date.

 

Plan .   The Alexandria Real Estate Equities, Inc. 2000 Deferred Compensation Plan.

 

Plan Year .   The calendar year.

 

Retirement Account .   An Account established for a Participant from which distributions are to be made following termination of employment with the Company.

 

Section 409A Grandfathered Amount.   Any (i) Compensation Deferrals and Matching Contributions, plus any related Benchmark Returns on such amounts, that were credited to a Participant’s Account(s) under the Plan prior to January 1, 2005 and (ii) amounts deferred under the VIP prior to January 1, 2005, plus any gains credited with respect to such amounts as a result of their deemed investment in Venture Investments (as defined under the VIP), that were or become further deferred under this Plan following a Distribution Event (as defined under the VIP), pursuant to the terms of the VIP at the time of initial deferral.

 

Section 409A Non-Grandfathered Amount.   Any Compensation Deferrals and Matching Contributions that were credited to a Participant’s Account on or after January 1, 2005, plus any related Benchmark Returns or gains with respect to Venture Investments for such amounts.

 

Total and Permanent Disability .   Any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous

 

4.

 

period of not less than twelve (12) months and results in a Participant (i) being unable to engage in any substantial gainful activity or (ii) receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company.

 

Trust .   The grantor trust established by agreement between the Company and the Trustee under which the assets with respect to Accounts under the Plan are held, administered and managed, as provided in ARTICLE IX..

 

Trustee .   The Trustee designated in the Trust, including any and all successor trustees to the Trust.

 

Unforeseeable Emergency .  Defined in Section 7.3(b).

 

Venture Investment .  A direct equity investment by the Company or an Affiliate in a private life science company with which the Company does business or is otherwise familiar; provided, however, that such investments shall not include warrants in such companies that the Company may receive from time to time.

 

VIP.  The Alexandria Real Estate Equities, Inc. 2000 Venture Investment Deferred Compensation Plan.

 

VIP Amounts .  The aggregate amount of Compensation Deferrals credited to a Participant’s VIP Fixed Date Subaccount or VIP Retirement Subaccount.

 

VIP Event .   A transaction by which the Company receives cash or freely tradable stock in connection with the initial public offering of stock of a company in which a Venture Investment is made, the acquisition of such company for publicly traded stock or cash, or another transaction pursuant to which the Company receives cash or freely tradable stock in respect of the equity of a Venture Investment.  Each Venture Investment is expected to have a VIP Event that is separate from the VIP Events of other Venture Investments.

 

Years of Service .  Defined in Section 5.1(a).

 

2.2                             Terms.   Capitalized terms shall have meanings as defined herein.  Singular nouns shall be read as plural, and masculine pronouns shall be read as feminine, and vice versa, where appropriate.

 

ARTICLE III

 

PARTICIPATION

 

3.1                             Commencement of Participation.   Each Eligible Employee shall become a Participant at the earlier of the date on which his or her Participation Election Form first becomes effective or the date on which a Company Contribution is first credited to his or her Account.

 

3.2                             Continuation of Participation.   Each Eligible Employee shall remain a Participant hereunder until all amounts credited to his or her Account are distributed in full.  No

 

5.

 

Compensation Deferrals are permitted in any Plan Year in which an Employee no longer satisfies the requirements set forth in the definition of an Eligible Employee.

 

ARTICLE IV

 

CONTRIBUTIONS AND ELECTIONS

 

4.1                             Compensation Deferrals.

 

(a)                               With respect to each Plan Year, a Participant may elect to defer up to seventy percent (70%) of the Participant’s annual base salary and one hundred percent (100%) of the Participant’s annual bonus as Compensation Deferrals; provided, however, that (i) the minimum deferral amount of any bonus shall be $10,000, and (ii) the aggregate minimum deferral amount of any salary and bonus shall be $10,000.  Compensation Deferrals attributable to a Participant’s salary shall be credited to the Participant’s DCP Fixed Date Subaccount or DCP Retirement Subaccount, as designated by the Participant.  Compensation Deferrals attributable to a Participant’s bonus shall be credited to the Participant’s DCP Fixed Date Subaccount, DCP Retirement Subaccount, VIP Fixed Date Subaccount or VIP Retirement Subaccount, as designated by the Participant.  Such amounts shall not be made available to such Participant, except as provided in ARTICLE VII, and, as Compensation Deferrals, shall reduce such Participant’s Compensation from the Company in accordance with the provisions of the applicable Participation Election Form; provided, however , that all such amounts credited to such Subaccounts shall be subject to the rights of the general creditors of the Company as provided in ARTICLE IX.

 

(b)                               With respect to each Plan Year, each Eligible Employee shall deliver a Participation Election Form to the Company before any Compensation Deferrals may become effective.  Such Participation Election Form shall be void with respect to any Compensation Deferrals unless submitted before the beginning of the calendar year during which the amount to be deferred will be earned.  Notwithstanding the foregoing, with respect to each Plan Year, (i) if an Employee first becomes eligible to participate in the Plan during the Plan Year, such Participation Election Form shall be filed within thirty (30) days following the date on which the Employee is first eligible to participate, with respect to Compensation earned during the remainder of the Plan Year, and (ii) if permitted by the Company, with respect to any bonus that meets the requirements of performance-based compensation under Section 409A of the Code, as determined by the Company in its sole discretion, such Participation Election Form shall be filed by the earlier of (1) June 30 th  of the Plan Year or (2) the date on which such performance-based compensation has become readily ascertainable, as determined in accordance with Section 409A of the Code, provided that with respect to any Employee who first becomes eligible to participate in the Plan during the Plan Year, the maximum amount of any such bonus which shall be deemed to be earned during the portion of the Plan Year subsequent to such election shall be the total amount of any such bonus earned with respect to the Plan Year multiplied by the ratio of the number of days remaining in the Plan Year after the Participation Election Form is filed over the total number of days in the Plan Year.

 

(c)                                The Participation Election Form shall, subject to the limitations set forth in this Section 4.1, designate the amount of Compensation deferred by each Participant, the

 

6.

 

beneficiary or beneficiaries of the Participant, the date(s) of distribution of any amounts in the Participant’s Fixed Date Account, and such other items as the Administrator may prescribe.  Such designations shall remain effective unless amended as provided in subsection (d), below.

 

(d)                               With respect to Section 409A Grandfathered Amounts, a Participant may amend his or her Participation Election Form from time to time; provided, however , that any amendment of a Participation Election Form shall comply with the provisions of Section 7.1(b).  With respect to Section 409A Non-Grandfathered Amounts, a Participant’s Participation Election Form shall be irrevocable; provided, however, that a Participant may (i) cancel such Participation Election Form due to an Unforeseeable Emergency (as defined in Section 7.3(b)) or a hardship distribution pursuant to Section 1.401(k)-1(d)(3) of the Treasury Regulations or (ii) elect to further defer the date for distribution of Section 409A Non-Grandfathered Amounts in the Participant’s Account pursuant to Section 7.1(b).

 

4.2                             Matching Contributions.   If the Company determines to make Matching Contributions under the Plan, the Company shall credit such Matching Contributions to the Account of each Participant who makes Compensation Deferrals.  The amount of any Matching Contribution shall be equal to a percentage of each Participant’s Compensation Deferrals determined annually by the Company, in its sole discretion.

 

4.3                             Company Contribution.   The Company may from time to time credit a discretionary contribution to the Account of a Participant.  The Company shall contribute to the Trust, if applicable, for the Participant’s benefit the amount of such Company Contributions in accordance with the Plan.

 

4.4                             Time and Form of Contributions to Trust.  Compensation Deferrals and Matching Contributions that are deemed to be invested in Benchmark Investment Funds shall be transferred to the Trust, if applicable, as soon as administratively feasible for the Company following the close of each payroll period.  The Company shall also transmit to the Trustee at that time any necessary instructions regarding the allocation of such amounts among the Accounts of Participants.

 

Company Contributions shall be transferred to the Trust, if applicable, at such time as the Company shall determine.  The Company shall also transmit to the Trustee at that time any necessary instructions regarding the allocation of such amounts among the Accounts of Participants.

 

All Compensation Deferrals, Matching Contributions and Company Contributions to the Trust shall be made in the form of cash, cash equivalents of U.S. currency or other property acceptable to the Trustee.

 

7.

 

ARTICLE V

 

VESTING

 

5.1                             Vesting.

 

(a)                               Except as otherwise provided herein and subject to the rights of the general creditors of the Company as provided in ARTICLE IX, (i) a Participant shall have a fully vested right to the portion of his or her Account attributable to Compensation Deferrals, any Benchmark Returns on such Compensation Deferrals and any gains credited with respect to any such Compensation Deferrals deemed to be invested in Venture Investments, and (ii) Matching Contributions and Company Contributions, and any amounts attributable to Benchmark Returns on such contributions, shall vest in accordance with the following schedule:

 

Years of Service		Cumulative Vested Percentage
1   but less than    2			20   %
2   but less than    3			40   %
3   but less than    4			60   %
4   but less than    5			80   %
5   or more			100  %

 

For purposes of this ARTICLE V, a Participant’s “Years of Service” shall be determined on the basis of the Participant’s date of hire and anniversaries thereof.

 

(b)                               Any amounts credited to a Participant’s Account that are not vested at the time of his or her termination of employment with the Company shall be forfeited in accordance with Section 6.5.

 

ARTICLE VI

 

ACCOUNTS

 

6.1                             Accounts.

 

(a)                               The Administrator shall establish and maintain a bookkeeping Account in the name of each Participant.  The Administrator may also establish any subaccounts that may be appropriate.  The establishment of an Account constitutes only a method, by bookkeeping entry, of determining the amount of deferred benefits to be distributed under the Plan.  The Company shall be under no obligation to acquire or hold any securities or specific assets by reason of the credits made to the Accounts hereunder.

 

(b)                               Each Participant’s Account shall be credited with Compensation Deferrals, any Matching Contributions allocable thereto, any Company Contributions, any amounts attributable to Benchmark Returns and any gains with respect to Compensation Deferrals deemed to be invested in Venture Investments.  Each Participant’s Account shall be reduced by any gross amounts distributed from the Account pursuant to ARTICLE VII and any

 

8.

 

other appropriate adjustments.  Such adjustments shall be made as frequently as is administratively feasible.

 

6.2                             Benchmark Investment Elections for DCP Amounts.

 

(a)                               The Administrator shall from time to time select types of Benchmark Investment Funds and specific Benchmark Investment Funds for deemed investment designation by Participants with respect to DCP Amounts.  The Administrator shall notify the Participants of the types of Benchmark Investment Funds and the specific Benchmark Investment Funds selected from time to time.  On the Participation Election Form, the Participant shall designate the specific Benchmark Investment Funds in which the Account of the Participant for DCP Amounts will be deemed to be invested for purposes of determining the Benchmark Return to be credited to the Account.  In making such designation, the Participant may specify that all or any percentage of such Account be deemed to be invested in one or more of the available types of Benchmark Investment Funds.  The Administrator from time to time will determine the minimum percentage allocation per investment fund and the frequency with which allocations may be changed.

 

(b)                               Trust assets shall be invested as provided in the Trust Agreement; provided, however , that the Trustee may consider a Participant’s selection of a Benchmark Investment Fund when investing Trust assets.

 

6.3                             Deemed Investment of VIP Amounts.

 

(a)                               All VIP Amounts shall be deemed to be invested in one or more Venture Investments determined by the Company, in its sole discretion, for each Plan Year.  Participants who elect to have a portion of their Compensation Deferrals credited to a VIP Fixed Date Subaccount or VIP Retirement Subaccount for a Plan Year will be deemed to have such Compensation Deferrals invested in Venture Investments in an aggregate amount that shall be limited to fifteen percent (15%) of the aggregate cost basis of the Company’s Venture Investments for such Plan Year.  Whether or not the Company chooses to invest in one or more Venture Investments for a Plan Year shall be determined by the Company in its sole and absolute discretion.  If no Venture Investments are made for a Plan Year or if the aggregate amount of Participants’ Compensation Deferrals credited to Participants’ VIP Fixed Date Subaccounts and VIP Retirement Subaccounts for a Plan Year e