BIOMED REALTY TRUST, INC. RESTRICTED STOCK AWARD GRANT NOTICE AND RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.6
BIOMED REALTY TRUST, INC.
2009 AMENDMENT AND RESTATEMENT OF THE
2004 INCENTIVE AWARD PLAN
2004 INCENTIVE AWARD PLAN
RESTRICTED STOCK AWARD GRANT NOTICE AND
RESTRICTED STOCK AWARD AGREEMENT
RESTRICTED STOCK AWARD AGREEMENT
BioMed Realty Trust, Inc., a Maryland corporation (the “Company”), pursuant to its 2009
Amendment and Restatement of the 2004 Incentive Award Plan (the “Plan”), hereby grants to the
individual listed below (“Participant”) the number of shares of the Company’s Stock (the “Shares”)
set forth below. This Restricted Stock award is subject to all of the terms and conditions as set
forth herein and in the Restricted Stock Award Agreement attached hereto as Exhibit A (the
“Restricted Stock Agreement”) and the Plan, which are incorporated herein by reference. Unless
otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in
this Grant Notice and the Restricted Stock Agreement.
Participant: |
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Grant Date: |
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Total Number of Shares of Restricted
Stock: |
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Vesting Schedule:
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[Description of Vesting Schedule], provided that the Participant continues to be an Employee, Independent Director or Consultant on each such date. |
By his or her signature, Participant agrees to be bound by the terms and conditions of the
Plan, the Restricted Stock Agreement and this Grant Notice. Participant has reviewed the Restricted
Stock Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Grant Notice and fully understands all provisions of
this Grant Notice, the Restricted Stock Agreement and the Plan. Participant hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the Administrator of
the Plan upon any questions arising under the Plan, this Grant Notice or the Restricted Stock
Agreement.
| BIOMED REALTY TRUST, INC. | PARTICIPANT | |||||||
By:
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By: | |||||||
Print Name:
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Print Name: | |||||||
Title: |
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Address:
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00000 Xxxxxxxx Xxxxxx Xxxxx | Address: | ||||||
| San Diego, CA 92128 | ||||||||
CONSENT OF SPOUSE
I, , spouse of , have
read and approve this Grant Notice, and the
attached Restricted Stock Agreement. In consideration of issuing to my spouse the shares of the
common stock of BioMed Realty Trust, Inc. set forth in this Grant Notice, I hereby appoint my
spouse as my attorney-in-fact in respect to the exercise of any rights under this Grant Notice and
agree to be bound by the provisions of this Grant Notice insofar as I may have any rights in said
Grant Notice or any shares of the common stock of BioMed Realty Trust, Inc. issued pursuant thereto
under the community property laws or similar laws relating to marital property in effect in the
state of our residence as of the date of the signing of the foregoing Grant Notice.
Dated: , 2009 |
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EXHIBIT A
TO RESTRICTED STOCK AWARD GRANT NOTICE
Pursuant to the Restricted Stock Award Grant Notice (“Grant Notice”) to which this Restricted
Stock Award Agreement (this “Agreement”) is attached, BioMed Realty Trust, Inc., a Maryland
corporation (the “Company”), has granted to Participant the right to purchase the number of shares
of Restricted Stock under the Company’s 2009 Amendment and Restatement of the 2004 Incentive Award
Plan (the “Plan”) indicated in the Grant Notice. The Shares are subject to the terms and conditions
of the Plan which are incorporated herein by reference. Capitalized terms not specifically defined
herein shall have the meanings specified in the Plan and the Grant Notice.
ARTICLE I
ISSUANCE OF SHARES
ISSUANCE OF SHARES
1.1 Issuance of Shares. Pursuant to the Plan and subject to the terms and conditions
of this Agreement, effective on the Grant Date, the Company irrevocably grants to Participant the
number of shares of Stock set forth in the Grant Notice (the “Shares”), in consideration of
Participant’s employment with or service to the Company, the Partnership or one of their
Subsidiaries on or before the Grant Date, for which the Administrator has determined Participant
has not been fully compensated, and the Administrator has determined that the benefit received by
the Company as a result of such employment or service has a value that exceeds the aggregate par
value of the Shares, which Shares, when issued in accordance with the terms hereof, shall be fully
paid and nonassessable.
1.2 Issuance Mechanics. On the Grant Date, the Company shall issue the Shares to
Participant and shall, at the Company’s election, (a) cause a stock certificate or certificates
representing the Shares to be registered in the name of Participant, or (b) cause such Shares to be
held in book entry form. If a stock certificate is issued, it shall be delivered to and held in
custody by the Company and shall bear the restrictive legends required by Section 4.1 below. If
the Shares are held in book entry form, then such entry will reflect that the Shares are subject to
the restrictions of this Agreement. Participant’s execution of a stock assignment in the form
attached as Exhibit B to the Grant Notice (the “Stock Assignment”) shall be a condition to
the issuance of the Shares.
ARTICLE II
FORFEITURE AND TRANSFER RESTRICTIONS
FORFEITURE AND TRANSFER RESTRICTIONS
2.1 Forfeiture Restriction. Subject to the provisions of Section 2.2 below, in the
event of Participant’s cessation of employment with or service to the Company for any reason,
including as a result of Participant’s death or Disability, all of the Unreleased Shares (as
defined below) shall thereupon be forfeited immediately and without any further action by the
Company (the “Forfeiture Restriction”). Upon the occurrence of such a forfeiture, the Company
shall become the legal and beneficial owner of the Unreleased Shares and all rights and interests
therein or relating thereto, and the Company shall have the right to retain and transfer to its own
name the number of Unreleased Shares being forfeited by Participant. The Unreleased Shares and
Participant’s executed stock assignment in the form attached as Exhibit B to the Grant
Notice shall
be held by the Company in accordance with Section 2.4 until the Shares are forfeited as
provided in this Section 2.1, until such Unreleased Shares are fully released from the Forfeiture
Restriction, or until such time as this Agreement no longer is in effect. Participant hereby
authorizes and directs the Secretary of the Company, or such other person designated by the
Committee, to transfer the Unreleased Shares which have been forfeited pursuant to this Section 2.1
from Participant to the Company.
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2.2 Release of Shares from Forfeiture Restriction. The Shares shall be released from
the Forfeiture Restriction in accordance with the vesting schedule set forth in the Grant Notice.
Any of the Shares which, from time to time, have not yet been released from the Forfeiture
Restriction are referred to herein as “Unreleased Shares.” In the event any of the Shares are
released from the Forfeiture Restriction, any dividends or other distributions paid on such Shares
and held by the Company pursuant to Section 2.4 shall be promptly paid by the Company to
Participant. As soon as administratively practicable following the release of any Shares from the
Forfeiture Restriction, the Company shall, as applicable, either deliver to Participant the
certificate or certificates representing such Shares in the Company’s possession belonging to
Participant, or, if the Shares are held in book entry form, then the Company shall remove the
notations on the book form. Participant (or the beneficiary or personal representative of
Participant in the event of Participant’s death or incapacity, as the case may be) shall deliver to
the Company any representations or other documents or assurances as the Company or its
representatives deem necessary or advisable in connection with any such delivery.
2.3 Transfer Restriction. No Unreleased Shares or any interest or right therein or
part thereof shall be liable for the debts, contracts or engagements of the Participant or his
successors in interest or shall be subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null
and void and of no effect.
2.4
Escrow. The Unreleased Shares and Participant’s executed Stock Assignment shall be held
by the Company until the Shares are forfeited as provided in Section 2.1, until such Unreleased
Shares are fully released from the Forfeiture Restriction, or until such time as this Agreement no
longer is in effect. In such event, Participant shall not retain physical custody of any
certificates representing Unreleased Shares (as defined below) issued to Participant. Participant,
by acceptance of this Award, shall be deemed to appoint, and does so appoint, the Company and each
of its authorized representatives as Participant’s attorney(s)-in-fact to effect any transfer of
forfeited Unreleased Shares (and any dividends or other distributions paid on such Shares) to the
Company as may be required pursuant to the Plan or this Agreement, and to execute such
representations or other documents or assurances as the Company or such representatives deem
necessary or advisable in connection with any such transfer. The Company, or its designee, shall
not be liable for any act it may do or omit to do with respect to holding the Shares in escrow and
while acting in good faith and in the exercise of its judgment.
2.5
Rights as Stockholder. Except as otherwise provided herein, upon issuance of the Shares
by the Company, Participant shall have all the rights of a stockholder with respect to said Shares,
subject to the restrictions herein, including the right to vote the Shares and to receive all
dividends or other distributions paid or made with respect to the Shares.
2.6 Ownership Limit and REIT Status. The Forfeiture Restriction on the Shares shall
not lapse if the lapsing of such restrictions would likely result in any of the following:
(a) a violation of the restrictions or limitations on ownership provided for from time to time
under the terms of the organizational documents of the Company; or
(b) income to the Company that could impair the Company’s status as a real estate investment
trust, within the meaning of Sections 856 through 860 of the Code.
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ARTICLE III
TAXATION REPRESENTATIONS
TAXATION REPRESENTATIONS
Participant represents to the Company the following:
(a) Participant has reviewed with his or her own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions contemplated by this Agreement.
Participant is relying solely on such advisors and not on any statements or representations of the
Company or any of its agents. Participant understands that Participant (and not the Company) shall
be responsible for his or her own tax liability that may arise as a result of this investment or
the transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Company shall be entitled
to require payment (which payment may be made in cash, by deduction from other compensation payable
to Participant or in any form of consideration permitted by the Plan) of any sums required by
federal, state or local tax law to be withheld with respect to the issuance, lapsing of
restrictions on or sale of the Shares. The Company shall not be obligated to deliver any stock
certificate representing vested Shares to Participant or Participant’s legal representative, or, if
the Shares are held in book entry form, to remove the notations on the book form, unless and until
Participant or Participant’s legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable income of Participant
resulting from the issuance, lapsing of restrictions on or sale of the Shares.
(c) Participant covenants that he or she will not make an election under Section 83(b) of the
Code with respect to the receipt of any of the Shares without the consent of the Administrator,
which the Administrator may grant or withhold in its sole discretion.
ARTICLE IV
RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS
RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS
4.1 Legends. The certificate or certificates representing the Shares, if any, shall
bear the following legend (as well as any legends required by applicable state and federal
corporate and securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO FORFEITURE
IN FAVOR OF THE COMPANY AND MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH
THE TERMS OF A RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE COMPANY
AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
4.2 Refusal to Transfer; Stop-Transfer Notices. The Company shall not be required (a)
to transfer on its books any Shares that have been sold or otherwise transferred in violation of
any of the provisions of this Agreement or (b) to treat as owner of such Shares or to accord the
right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have
been so transferred. Participant agrees that, in order to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer
agent, if any, and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
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4.3 Removal of Legend. After such time as the Forfeiture Restriction shall have
lapsed with respect to the Shares, and upon Participant’s request, a new certificate or
certificates representing such Shares shall be issued without the legend referred to in Section
4.1, and delivered to Participant. If the Shares are held in book entry form, the Company shall
cause any restrictions noted on the book form to be removed.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
5.1 Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Maryland, without giving effect to principles of conflicts
of law.
5.2 Entire Agreement; Enforcement of Rights. This Agreement and the Plan set forth
the entire agreement and understanding of the parties relating to the subject matter herein and
merge all prior discussions between them. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement.
5.3 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of
the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the
Agreement shall be enforceable in accordance with its terms.
5.4 Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient when delivered personally or sent by electronic mail (with return
receipt requested and received) or fax or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to the party to be
notified, if to the Company, at its principal offices, and if to Participant, at Participant’s
address, electronic mail address or fax number in the Company’s employee records or as subsequently
modified by written notice.
5.5 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
5.6 Successors and Assigns. The rights and benefits of this Agreement shall inure to
the benefit of, and be enforceable by the Company’s successors and assigns. The Company may assign
its rights under this Agreement to any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company without the prior written consent of Participant. The rights and obligations of Participant
under this Agreement may only be assigned with the prior written consent of the Company.
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5.7
Conformity to Securities Laws. Participant acknowledges that the Plan is intended to
conform to the extent necessary with all provisions of the Securities Act and the Exchange Act and
any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder,
and state securities laws and regulations. Notwithstanding anything herein to the contrary, the
Plan shall be administered, and the Shares are to be issued, only in such a manner as to conform to
such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this
Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
5.8 NO RIGHT TO CONTINUED SERVICE. EXCEPT AS MAY BE PROVIDED IN ANY EMPLOYMENT
AGREEMENT WITH THE PARTICIPANT, THE PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE LAPSING OF THE
FORFEITURE RESTRICTION PURSUANT TO SECTION 2.1 HEREOF IS EARNED ONLY BY CONTINUING SERVICE TO THE
COMPANY, THE PARTNERSHIP OR ONE OF THEIR SUBSIDIARIES AS AN “AT WILL” EMPLOYEE OR CONSULTANT OF THE
COMPANY, THE PARTNERSHIP OR ONE OF THEIR SUBSIDIARIES OR AN INDEPENDENT DIRECTOR OF THE COMPANY
(AND NOT THROUGH THE ACT OF BEING HIRED OR ACQUIRING SHARES HEREUNDER). THE PARTICIPANT FURTHER
ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
FORFEITURE RESTRICTION SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS AN EMPLOYEE, CONSULTANT OR INDEPENDENT DIRECTOR FOR SUCH PERIOD, FOR ANY
PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH THE COMPANY’S, THE PARTNERSHIP’S OR ANY OF THEIR
SUBSIDIARIES’ RIGHT TO TERMINATE THE PARTICIPANT’S EMPLOYMENT OR SERVICE TO THE COMPANY AT ANY
TIME, WITH OR WITHOUT CAUSE.
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EXHIBIT B
TO RESTRICTED STOCK AWARD GRANT NOTICE
STOCK ASSIGNMENT
FOR VALUE RECEIVED, the undersigned, , hereby sells, assigns and transfers unto
BIOMED REALTY TRUST, INC., a Maryland corporation, shares of the Common Stock of BIOMED
REALTY TRUST, INC., a Maryland corporation, standing in its name of the books of said corporation
represented by Certificate No. herewith and do hereby irrevocably constitute and appoint
to transfer the said stock on the books of the within named corporation with
full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted Stock Award Grant
Notice and Restricted Stock Award Agreement between BIOMED REALTY TRUST, INC. and the undersigned
dated .
Dated: , |
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| Name: |
INSTRUCTIONS: Please do not fill in the blanks other than the signature line. The purpose of
this assignment is to enable the Company to enforce the Forfeiture Restriction as set forth in the
Restricted Stock Award Grant Notice and Restricted Stock Award Agreement, without requiring
additional signatures on the part of the Participant.
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