EXHIBIT 10.2

 

CONSULTING AGREEMENT

JAMES H. RICHARDSON

 

THIS CONSULTING AGREEMENT (the “Agreement”) is entered into between Alexandria
Real Estate Equities, Inc. (“Client”) and James H. Richardson (“Consultant”)
(each, a “Party”), effective as of the Effective Date (as defined in Section 26
herein).

 

1.          Engagement of Services.  Subject to the terms of this Agreement,
Consultant will render the services (the “Services”) set forth in the Project
Assignment attached to this Agreement as Exhibit A (“Project Assignment”),
commencing as February 12, 2009 (the “Consulting Commencement Date”).  As of
February 11, 2009 (the “Resignation Date”), Consultant resigned as an officer
and employee of Client and any of its affiliated entities, and the Executive
Employment Agreement between Consultant and Client originally made and entered
into as of January 1, 2005 and as amended from time to time thereafter (the
“Employment Agreement”), terminated as a result of Consultant’s voluntary
resignation without any severance compensation or severance benefits owed or to
be paid to Consultant.  Consultant’s resignation does not affect his position as
a director of Client on its Board of Directors.

 

2.          Compensation.  Client will compensate Consultant for the Services as
set forth in the Project Assignment pursuant to this Agreement, or in such other
Project Assignments as Client and Consultant may agree upon in writing. 
Consultant will be reimbursed for expenses as described in the Project
Assignment.  Payment of Consultant’s fees and expenses will be in accordance
with terms and conditions set forth in the applicable Project Assignment.  Upon
termination of this Agreement for any reason, Consultant will be paid fees on
the basis stated in the Project Assignment(s) for authorized work which has been
completed.

 

3.          Ownership of Work Product.  Consultant hereby assigns to Client all
right, title and interest in and to any work product created or contributed by
Consultant pursuant to this Agreement (the “Work Product”), if any, including
all copyrights, trademarks and other intellectual property rights contained
therein.  Consultant agrees to execute, at Client’s request and expense, all
documents and other instruments necessary or desirable to confirm such
assignment, including without limitation, the copyright assignment set forth as
Exhibit B (Assignment of Copyright).  In the event that Consultant does not, for
any reason, execute such documents within a reasonable time of Client’s request,
Consultant hereby irrevocably appoints Client as Consultant’s attorney-in-fact
for the purpose of executing such documents on Consultant’s behalf, which
appointment is coupled with an interest.  Consultant understands and agrees that
Consultant has no right to use the Work Product except as necessary to perform
the Project Assignment for Client.

 

4.          License and Waiver of Other Rights.  If Consultant has any rights,
including without limitation “artist’s rights” or “moral rights,” in the Work
Product which cannot be assigned, Consultant agrees to waive enforcement
worldwide of such rights against Client.  In the event that Consultant has any
such rights, that cannot be assigned or waived, Consultant unconditionally
grants to Client an exclusive, perpetual, irrevocable, worldwide, fully-paid
license, with the right to sublicense through multiple levels of sublicensees,
under any and all such rights:  (a) to reproduce, create derivative works of,
distribute, publicly perform, publicly display, digitally transmit, and
otherwise use the Work Product in any medium or format, whether now known or
hereafter discovered; (b) to use, make, have made, sell, offer to sell, import,
and otherwise exploit any product or service based on, embodying, incorporating,
or derived from the Work Product; and (c) to exercise any and all other present
or future rights in the Work Product.

 

5.          Representations and Warranties.  Consultant represents and warrants
that: (a) Consultant has the right and unrestricted ability to perform the
Services required under this Agreement and to assign the Work Product to Client
as set forth in Section 3 (including without limitation the right to assign any
Work Product created by Consultant’s employees or contractors); (b) Consultant
will not knowingly create or contribute any Work Product that infringes upon any
copyright, patent, trademark, right of publicity or privacy, or any other

 

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proprietary right of any person, whether contractual, statutory or based upon
common law; (c) Consultant will take all necessary or reasonable precautions to
prevent injury to any person (including Client employees, business contacts,
tenants or potential tenants) or damage to any real property or other property
(including Client Property and Equipment (as defined below)) during the term of
this Agreement (provided that, Consultant will not be responsible for any
injuries or damages caused by Client’s employees); and (d) the Services and all
Work Product will fully conform to the specifications, requirements, and other
terms in the applicable Project Assignment and this Agreement.

 

6.          Independent Contractor Relationship.  Consultant’s relationship with
Client is that of an independent contractor, and nothing in this Agreement is
intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship.  Subject to Section 14, Consultant is
excluded from participating in any fringe benefit plans or programs as a result
of the performance of the Services, without regard to Consultant’s independent
contractor status, including, but not limited to, health, sickness, accident or
dental coverage, life insurance, disability benefits, severance, accidental
death and dismemberment coverage, unemployment insurance coverage, workers’
compensation coverage, and pension or 401(k) benefit(s) provided by the Client
to its employees.  Consultant agrees, as an independent contractor, that he is
not entitled to unemployment benefits in the event this Agreement terminates, or
workers’ compensation benefits in the event that Consultant is injured in any
manner or becomes ill while performing the Services under this Agreement. 
Consultant, at Consultant’s sole cost, expense and discretion, will maintain
appropriate insurance coverage and benefits for Consultant and any of
Consultant’s employees, including but not limited to workers’ compensation
insurance coverage to the extent such coverage is required.  Consultant is not
authorized to make any representation, contract or commitment on behalf of
Client unless specifically requested or authorized in writing to do so by a
Client officer or as provided in the applicable Project Assignment.  Consultant
is solely responsible for, and will file, on a timely basis, all tax returns and
payments required to be filed with, or made to, any federal, state or local tax
authority with respect to the performance of Services and receipt of fees under
this Agreement.  Consultant is solely responsible for, and must maintain
adequate records of, expenses incurred in the course of performing Services
under this Agreement.  No part of Consultant’s compensation will be subject to
withholding by Client for the payment of any social security, federal, state or
any other employee payroll taxes.  Client will regularly report any amounts paid
to Consultant by filing Form 1099-MISC with the Internal Revenue Service as
required by law.

 

7.          Confidential Information.  Consultant agrees to hold Client’s
Confidential Information in strict confidence and to refrain from any
disclosure, use or publication of such Confidential Information, except as
expressly authorized in writing by Client, during the term of this Agreement and
thereafter.  “Confidential Information” means any and all information related to
Client’s or its affiliates’ business (including trade secrets, ideas, media,
techniques, specifications, designs, plans, forecasts, reports, financial
statements and models, budgets, technical information, works of authorship,
databases, information systems, software and source documentation, spreadsheets,
analyses or analytical methods, financial or operational models, algorithms,
know-how, processes, customized construction and design features, fixtures,
equipment, building systems, laboratory and office systems, forms of leases and
related documentation, names of actual or prospective investors, business
partners, employees, tenants, customers, vendors, suppliers, distributors and
clients, proposals, bids, forecasts, market information, information relating to
research and development, properties, completed or potential future property
acquisitions, redevelopments, construction projects and investments, procurement
requirements, and the existence of any business discussions, negotiations, or
contractual relationships between Client or its affiliates and any third party)
that is labeled or identified as “confidential” or “proprietary” or that
Consultant otherwise knows, or would reasonably be expected to know, Client or
its affiliates consider to be confidential or proprietary.  Consultant has a
duty to treat as confidential all of the foregoing whether provided or made
accessible by Client or its affiliates or learned or acquired during the
performance of the Services. Consultant’s obligations set forth in this
Section 7 shall not apply with respect to any portion of the Confidential
Information that: (a) was in the public domain at the time it was communicated
to Consultant by Client or its affiliates; (b) entered the public domain through
no fault of Consultant, subsequent to the time it was communicated to

 

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Consultant by Client or its affiliates; (c) was in Consultant’s possession free
of any obligation of confidence at the time it was communicated to Consultant by
Client or its affiliates; (d) was rightfully communicated to Consultant free of
any obligation of confidence subsequent to the time it was communicated to
Consultant by Client or its affiliates; (e) was developed by employees or agents
of Consultant independently of and without reference to any information
communicated to Consultant by Client or its affiliates; or (f) was communicated
by Client to an unaffiliated third party free of any obligation of confidence. 
Confidential Information does not include basic business know-how that is
generally known and used within the real estate or life science industries,
including but not limited to basic business know-how and skills developed during
Consultant’s employment with Client.  Consultant may disclose Client’s and its
affiliates’ Confidential Information in response to a valid order by a court or
other governmental body, or as otherwise required by law, after having given
Client and its affiliates sufficient prior notice to permit Client and its
affiliates a reasonable opportunity to lodge objections to such disclosure.  All
Confidential Information furnished to Consultant by Client and its affiliates,
or developed by Consultant on Client’s behalf, is the sole and exclusive
property of Client and its affiliates or their suppliers or customers.  Upon
request by Client, Consultant agrees to promptly deliver to Client the original
and any copies of such Confidential Information.  Consultant understands and
acknowledges that Client is a public company, and that the disclosure of
information relating to Client and its affiliates is subject to state and
federal securities laws.  Consultant agrees not to take any action to violate
applicable federal and state securities laws.

 

8.          Return of Client Property.  Upon termination of the Agreement or
earlier as requested by Client, Consultant shall deliver to Client all of
Client’s property, if any, including equipment (including, without limitation,
computers, personal computing devices, or similar devices), software programs,
documents, records, proposals, notes, notebooks, lists (including any lists of
business contacts, prospects, tenants, prospective tenants, properties,
customers, clients, vendors, suppliers, distributors, consultants or agents with
whom Client does business), files, promotional literature, and reports, studies,
fact sheets, drawings, specifications, models, brochures, documents and
materials relating to acquisitions or potential acquisitions, documents and
materials relating to redevelopments or developments, agreements, leases, term
sheets, letters of intent and similar documents, draft documents, and any and
all materials containing or disclosing (in whole or in part) Work Product or
Confidential Information; and any and all other materials including, without
limitation, computerized and/or electronic information that refers, relates or
otherwise pertains to Client and/or its officers, directors, agents, employees
and consultants, and any and all business dealings of said persons and entities,
which Consultant received or developed during Consultant’s engagement by Client
or which Consultant otherwise possesses or controls, together with all copies or
reproductions thereof, in whole or in part (collectively, the “Client Property
and Equipment”).  Consultant shall not retain any Client Property and Equipment,
including any copies, duplicates, or embodiments thereof.  Consultant agrees to
certify in writing that Consultant has conducted a diligent search to locate any
property or information described in this paragraph that is within Consultant’s
custody or control and that Consultant has complied with the requirements of
this paragraph.  Consultant further agrees that any property situated on
Client’s premises and owned by Client, including disks and other storage media
or electronic systems, files, filing cabinets, desks, or other work areas, is
subject to inspection by Client personnel at any time with or without notice. 
In the event of a legal claim by Consultant against Client, Client shall make
available for inspection, under reasonable confidentiality restrictions, such
Client Property and Equipment as is reasonably related to the issues raised by
such claim.  Notwithstanding the foregoing, Consultant may retain any documents
that he received in his capacity as a director or shareholder of Client,
including but not limited to annual reports distributed to shareholders.

 

9.          No Conflict of Interest.  Consultant acknowledges and agrees that he
will be providing services that are special, unique or extraordinary, and, due
to the nature of his Services, his engagement in any of the activities
prohibited in this Section 9 would necessarily involve the unauthorized use or
disclosure of Confidential Information, and the proprietary relationships and
goodwill of Client.  Accordingly, Consultant shall not, during the period of
Consultant’s engagement by Client and for a period of two (2) years thereafter,
engage in any activity that is or may be (in the reasonable discretion of
Client) competitive with Client, directly or indirectly,

 

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and whether or not for compensation, in the business of owning, operating,
acquiring, managing, leasing, expanding, developing or redeveloping commercial
properties throughout the United States containing either (a) office and
laboratory space designed or improved for lease to pharmaceutical,
biotechnology, life science product and services companies, not for profit
scientific research institutions, universities, diagnostic and personal care
products companies, or government agencies (for the purpose of laboratory
research), or (b) office space designed or improved for lease to data centers;
and Consultant acknowledges that to engage in such activity Consultant would
inevitably use Client’s Confidential Information.  Consultant warrants that
there is no other contract or duty on Consultant’s part inconsistent with this
Agreement.

 

10.        Term and Termination.

 

10.1       Term.  The initial term of this Agreement is from the Consulting
Commencement Date hereof through December 31, 2011 (the “Initial Term”), unless
the Agreement is terminated earlier as provided in Section 10.2.  At the
conclusion of the Initial Term (or any subsequent term if the Agreement is
extended beyond the Initial Term), the Agreement will terminate unless extended
by mutual written agreement of the Parties.  “Term” shall refer to the Initial
Term plus any subsequent term.

 

10.2       Termination.  During the Term of the Agreement, either party may
terminate this Agreement, or any Project Assignment hereunder, with or without
cause at any time upon thirty (30) days prior written notice to the other
party.  In addition, during the Term of the Agreement, either party may
terminate this Agreement immediately upon giving written notice in the event of
the other party’s material breach of the Agreement.  In addition, Consultant may
terminate this Agreement as provided under Section 19.

 

10.3       Survival.  The rights and obligations contained in the following
Sections:  3 (Ownership of Work Product), 4 (License and Waiver of Other
Rights), 5 (Representations and Warranties), 6 (Independent Contractor
Relationship), 7 (Confidential Information), 8 (Return of Client Property), 9
(No Conflict of Interest), 11 (Nonsolicitation), 12 (Noninterference with
Business), 13 (Indemnification; Limitation of Liability), 17 (Governing Law), 18
(Severability), 19 (No Assignment or Subcontracting), 20 (Notices), 21
(Remedies), 22 (Waiver), and 23 (Dispute Resolution) will survive any
termination or expiration of the Term of the Agreement.

 

11.        Nonsolicitation.  Consultant acknowledges that, because of the nature
of Consultant’s work for Client, Consultant’s solicitation, servicing or
retention of certain tenants (“Tenants”), or certain brokers, vendors,
suppliers, distributors, consultants, or partners with whom Client does business
from time to time related to Consultant’s work for Client (each such person or
entity, a “Supplier”) would necessarily involve the unauthorized use or
disclosure of Confidential Information, and the proprietary relationships and
goodwill of Client.  Accordingly, during the Term of this Agreement and for a
period of one (1) year following the termination of the Agreement for any reason
(the “Post-Termination Period”), Consultant shall not, without Client’s express
written consent, directly or indirectly solicit:  (a) any Tenant of Client with
which Consultant actually engaged in business transactions on behalf of Client
during the two (2) year period prior to the termination of the Agreement (the
“Pre-Termination Period”); (b) any Tenant of Client served during such
Pre-Termination Period by an office of Client located in any geographic area
where Consultant provided services to Client pursuant to this Agreement or any
prior employment or consulting agreement with Client; or (c) any Supplier or
strategic partner of Client during the Pre-Termination Period (i) to perform
services within the life sciences or data center fields, or (ii) that is then
providing, or is under contract to provide during the one year Post-Termination
Period, services to Client, which would be interrupted or impeded as a result of
such solicitation.  Consultant further agrees that for a period of two (2) years
following the termination of the Agreement, Consultant shall not, without
Client’s express written consent, directly or indirectly solicit, induce, or
attempt to solicit or induce, any Tenant or Supplier to terminate his, her or
its relationship with Client for any purpose, including but not limited to the
purpose of associating with or becoming a Tenant or Supplier, whether or not
exclusive, of Consultant or any entity of which Consultant is or becomes a
partner, stockholder, principal,

 

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member, employee, officer, director, principal, contractor, agent, trustee or
consultant.  Consultant understands that Consultant is not prohibited from
accepting engagement by a Tenant, Supplier or strategic partner, provided such
Consultant acts in accordance herewith.

 

12.        Noninterference with Business.  During the Term of this Agreement and
for a period of one (1) year following the termination of the Agreement,
Consultant shall not, directly or indirectly, solicit, induce, encourage or
attempt to solicit, induce or encourage any person known to Consultant to be an
employee or independent contractor of Client to terminate his or her engagement
by or other relationship with Client for any purpose whatsoever, including but
not limited to the purpose of associating with any entity of which Consultant is
or becomes an employee, officer, director, partner, stockholder, agent, trustee,
consultant, or contractor, or any competitor of Client.

 

13.        Indemnification; Limitation of Liability.  Client agrees to indemnify
Consultant and hold Consultant harmless with respect to Services performed in
good faith by Consultant except with regard to gross negligence, willful
misconduct, or material breach by Consultant; and, in any event, Consultant’s
liability to Client for claims arising from Services performed hereunder shall
be limited to the total amount of fees (including but not limited to retainers)
paid hereunder.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO
THIS AGREEMENT.  EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS
AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE
AGGREGATE AMOUNT OF FEES AND EXPENSES OWED BY CLIENT TO CONSULTANT FOR SERVICES
PERFORMED UNDER THIS AGREEMENT.

 

14.        Stock Awards and Other Benefits.

 

14.1.     Stock Awards.  During Consultant’s employment with Client, Consultant
was granted certain options to purchase shares of Client’s common stock (the
“Options”) and Consultant was granted certain shares of restricted stock of
Client (the “Restricted Stock”).  Consultant acknowledges that the Options were
fully vested as of the Resignation Date.  During the Term of this Agreement, the
Restricted Stock will continue to vest and the forfeiture provisions for the
Restricted Stock will not be triggered.  Notwithstanding anything to the
contrary in Client’s Amended and Restated 1997 Stock Award and Incentive Plan or
the applicable Restricted Stock agreements, vesting of the Restricted Stock will
cease, and the forfeiture provisions for the Restricted Stock will be triggered,
upon the termination of the Term of this Agreement, regardless of whether
Consultant continues to serve as a director on the Board of Directors of
Client.  During the period that ends upon the later of the termination of the
Term of this Agreement or the termination of Consultant’s service as a director
on the Board of Directors of Client, the post-termination exercise period for
the Options will not be triggered.  Except as provided in this Section 14.1, the
Options and Restricted Stock will continue to be governed in all respects by the
terms of Client’s Amended and Restated 1997 Stock Award and Incentive Plan and
the applicable Option and Restricted Stock agreements.  Consultant acknowledges
that any Options that currently qualify as incentive stock options will lose
that qualification three (3) months after Consultant’s final day of employment
with Client.  Client advises Consultant to seek independent tax advice
concerning the Options and Restricted Stock.

 

14.2.     Other Benefits.  Upon termination of Consultant’s employment with
Client, as of the Resignation Date, (a) with respect to Client’s 401(k) Profit
Sharing Plan (the “401(k) Plan”), Consultant shall not be eligible to make any
further elective deferrals and will not receive any further employer profit
sharing or other discretionary employer contributions under the 401(k) Plan,
other than any such profit sharing contribution and employer “safe harbor”
contribution made for the 2009 plan year to which Consultant may be entitled
pursuant to the terms of the 401(k) Plan, and shall be entitled to receive a
distribution of his account under the 401(k) Plan pursuant to the terms of the
401(k) Plan; (b) with respect to Client’s Cash Balance Pension Plan (the “Cash
Balance Plan”), Consultant shall not be eligible to accrue any further benefits
under the Cash Balance Plan, provided that Consultant’s accrued benefit under
the Cash Balance Plan as of his employment termination date shall be credited
with interest earnings pursuant to the terms of the Cash Balance Plan until
Consultant

 

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receives a distribution of such benefit in accordance with the terms of the Cash
Balance Plan; (c) with respect to Client’s Executive Profit Sharing Plan (the
“Profit Sharing Plan”), Consultant shall not be eligible to receive any further
employer profit sharing or other discretionary employer contributions under the
Profit Sharing Plan, other than any such profit sharing contribution made for
the 2009 plan year to which Consultant may be entitled pursuant to the terms of
the Profit Sharing Plan, and shall be entitled to receive a distribution of his
account under the Profit Sharing Plan pursuant to the terms of the Profit
Sharing Plan; and (d) with respect to Client’s 2000 Deferred Compensation Plan
(the “DCP”), (i) Consultant shall not be eligible to defer any compensation
received from Client for services rendered after the Resignation Date or to be
credited with any matching or other employer contribution from Client under the
DCP, (ii) Consultant shall receive payment of the portion of his account under
the DCP attributable to deferrals made prior to January 1, 2005 under the DCP
upon the earlier of (1) his termination of service (including service rendered
pursuant to this Agreement) with Client and (2) a date Consultant may elect in
accordance with the terms of the DCP (provided, however, that such portion of
his account that is attributable to amounts deferred under the 2000 Venture
Investment Deferred Compensation Plan (the “VIP”) prior to January 1, 2005 as to
which a “Distribution Event” under the terms of the VIP has not yet occurred,
shall be made upon the occurrence of a Distribution Event), and (iii) Consultant
shall receive payment of the portion of his account under the DCP attributable
to deferrals made on or after January 1, 2005 under the DCP on the date that is
six (6) months and one (1) day following the Resignation Date, or as soon as
practicable thereafter.  Notwithstanding the foregoing, in the event of any
conflict between the provisions of this Section 14.1 or 14.2 and the terms of
the various plans discussed in this Section 14.1 and 14.2, the terms of the
various plans shall control unless otherwise provided herein.

 

15.        OFAC.  Consultant is currently:  (a) in compliance with, and shall at
all times during the term of this Agreement remain in compliance with, the
regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S.
Department of Treasury and any statute, executive order, or regulation relating
thereto (collectively, the “OFAC Rules”); (b) not listed on, and shall not
during the term of this Agreement be listed on, the Specially Designated
Nationals and Blocked Persons List maintained by OFAC and/or on any other
similar list maintained by OFAC or other governmental authority pursuant to any
authorizing statute, executive order, or regulation; and (c) not a person or
entity with whom a U.S. person is prohibited from conducting business under the
OFAC Rules.

 

16.        Systems Usage Policy.  Contemporaneous with signing this Agreement,
Consultant must sign, date and return to Client the Systems Usage Policy for
External Users attached hereto as Exhibit C.  Any breach by Consultant of the
Systems Usage Policy for External Users shall be considered a breach of this
Agreement (including for purposes of Section 10.2).

 

17.        Governing Law.  This Agreement is governed by the laws of the State
of California without reference to any conflict of laws principles that would
require the application of the laws of any other jurisdiction.

 

18.        Severability.  If any provision of this Agreement is, for any reason,
held to be invalid or unenforceable, the other provisions of this Agreement will
be unimpaired and the invalid or unenforceable provision will be deemed modified
so that it is valid and enforceable to the maximum extent permitted by law in a
manner consistent with the intent of the parties insofar as possible.

 

19.        No Assignment or Subcontracting.  This Agreement and Consultant’s
rights and obligations under this Agreement may not be assigned, delegated,
subcontracted, or otherwise transferred, in whole or in part, by operation of
law or otherwise, by Consultant without Client’s express prior written consent. 
Any attempted assignment, delegation, or transfer in violation of the foregoing
will be null and void.  Client may assign this Agreement, or any of its rights
under this Agreement, to any third party with or without Consultant’s consent. 
Notwithstanding the foregoing, if Client assigns this Agreement to a third party
(other than any subsidiary

 

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entities of Client) without Consultant’s written consent (which shall not be
unreasonably withheld), then Consultant may terminate this Agreement upon
providing five (5) business days prior written notice to Client.

 

20.        Notices.  All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery,
overnight courier upon written verification of receipt, facsimile transmission
or by certified or registered mail, return receipt requested; and shall be
deemed given upon personal delivery, facsimile transmission, or five (5) days
after deposit in the mail, or one (1) day after deposit with an overnight
courier.  Notices to Client for all purposes shall be sent to the attention of
Client’s Chief Executive Officer at the address set forth in this Section 20 and
to Consultant as set forth in the signature block below.  Either party may
change its address at any time by specifying such change to the other party in
writing.  Notices to Client shall be directed to: Chief Executive Officer,
Alexandria Real Estate Equities, Inc., 385 East Colorado Blvd., Suite 299,
Pasadena, California 91101; Facsimile: 9028838502.

 

21.        Remedies.  Client’s and/or its affiliates’ remedies for any breach of
this Agreement by Consultant will include damages (as provided in Section 13),
injunctive relief, specific performance, and restitution.  Consultant
acknowledges that any breach of this Agreement by Consultant would cause
irreparable injury to Client and/or its affiliates for which monetary damages
would not be an adequate remedy and, therefore, Client and/or its affiliates
will be entitled to injunctive relief (including specific performance).  The
rights and remedies provided to each Party in this Agreement are cumulative and
in addition to any other rights and remedies available to such Party at law or
in equity.

 

22.        Waiver.  The waiver by Client of a breach of any provision of this
Agreement by Consultant must be in writing to be effective and shall not operate
or be construed as a waiver of any other or subsequent breach by Consultant.

 

23.        Dispute Resolution.  Any dispute arising out of or relating to this
Agreement, Consultant’s engagement by Client, or between Consultant and Client
or Client’s officers, directors, agents or consultants, shall be submitted to
final, binding and confidential arbitration by one arbitrator under the
then-existing rules and procedures of JAMS, Inc. (“JAMS”) in arbitration
proceedings conducted in Los Angeles, California.  BY AGREEING TO THIS
PROCEDURE, BOTH CONSULTANT AND CLIENT WAIVE THE RIGHT TO RESOLVE ANY DISPUTE
THROUGH A TRIAL BY JURY OR JUDGE OR ADMINISTRATIVE PROCEEDING.  The arbitrator
shall have no power or authority to modify, enlarge or add to the terms and
provisions of this Agreement, except as otherwise expressly agreed herein. 
Judgment upon the award of the arbitrator shall be binding upon the parties and
may be entered in any court having jurisdiction.  The arbitrator shall award to
the prevailing party reasonable attorneys’ fees and expenses from the other
party, including any expert fees, which fees and expenses shall be in addition
to any other relief which may be awarded.  This arbitration obligation extends
to, without limitation, claims or causes of action for wrongful termination,
impairment of ability to compete in the open labor market, breach of an express
or implied agreement, breach of the covenant of good faith and fair dealing,
breach of fiduciary duty, fraud, misrepresentation, defamation, slander, libel,
infliction of emotional distress, disability, loss of future earnings, and
claims under any applicable state Constitution, the United States Constitution,
and any applicable state and federal laws, including, but not limited to, the
Civil Rights Act of 1964 (as amended), the Fair Labor Standards Act (as
amended), the National Labor Relations Act (as amended), the Labor-Management
Relations Act (as amended), the Worker Retraining and Notification Act of 1988
(as amended), the Americans With Disabilities Act of 1990 (as amended), the
Rehabilitation Act of 1973 (as amended), the Employee Retirement Income Security
Act of 1974 (as amended), the Age Discrimination in Employment by Act of 1967
(as amended), and any and all similar state laws, rules and regulations. 
Consultant’s obligations under this Agreement are of a unique character that
gives them particular value; breach of any of such obligations will result in
irreparable and continuing damage to Client for which there will be no adequate
remedy at law; and, in the event of such breach, Client will be entitled to an
award in arbitration for injunctive relief and/or a decree for specific
performance, and such other and further relief as may

 

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be proper (including monetary damages if appropriate); and such injunctive
relief from a court as may be necessary to avoid irreparable harm pending the
outcome of arbitration.

 

24.        Miscellaneous.  This Agreement constitutes the complete, final, and
exclusive embodiment of the entire agreement between the parties relating to the
subject matter hereof and supersedes all prior or contemporaneous oral or
written agreements and representations concerning such subject matter.  The
terms of this Agreement will govern all services undertaken by Consultant for
Client as of the Consulting Commencement Date; provided, however, that in the
event of any conflict between the terms of this Agreement and any Project
Assignment, the terms of the applicable Project Assignment will control.  This
Agreement may only be modified or amended in a written agreement executed by
Consultant and a duly authorized officer of Client.  Any ambiguity in this
document shall not be construed against either party as the drafter.  The
headings of the Sections and Paragraphs of this Agreement are inserted for ease
of reference only, and will have no effect in the construction or interpretation
of this Agreement.  This Agreement and any amendment or supplement to this
Agreement may be executed in two or more counterparts, each of which will
constitute an original but all of which will together constitute a single
instrument.  Transmission by facsimile or PDF of an executed counterpart
signature page hereof by a party hereto shall constitute due execution and
delivery of this Agreement by such party.

 

25.        Release of Claims.  Except as otherwise set forth in this Agreement,
in exchange for the consideration under this Agreement to which Consultant would
not otherwise be entitled, Consultant hereby generally and completely releases
Client and its parent or subsidiary entities, successors, predecessors and
affiliates, and its and their directors, officers, employees, shareholders,
agents, attorneys, insurers, affiliates and assigns (collectively, the “Released
Parties”) from any and all claims, liabilities and obligations, both known and
unknown, that arise out of or are in any way related to events, acts, conduct,
or omissions occurring prior to or on the date Consultant signs this Agreement
(collectively, the “Released Claims”).  The Released Claims include, but are not
limited to:  (a) all claims arising out of or in any way related to Consultant’s
employment with Client, or the termination of that employment; (b) all claims
related to compensation or benefits from Client, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, profit sharing, carried interest, stock, stock options, or any other
ownership or equity interests; (c) all claims for breach of contract, wrongful
termination, and breach of the implied covenant of good faith and fair dealing
(including, but not limited to, claims based on or arising under the Employment
Agreement); (d) all tort claims, including claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (e) all
federal, state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act of
1967 (as amended) (the “ADEA”), the California Labor Code (as amended), and the
California Fair Employment and Housing Act (as amended).  Notwithstanding the
foregoing, the following are not included in the Released Claims (the “Excluded
Claims”): (a) Consultant’s right to a potential “Performance Bonus” for fiscal
year 2008 pursuant to the terms of Section 3.2 of the Employment Agreement;
(b) any rights or claims for indemnification Consultant may have pursuant to any
written indemnification agreement with Client to which he is a party or under
applicable law; (c) any rights which are not waivable as a matter of law; and
(d) any claims for breach of this Agreement.  In addition, nothing in this
Agreement prevents Consultant from filing, cooperating with, or participating in
any proceeding before the Equal Employment Opportunity Commission, the
Department of Labor, the California Department of Fair Employment and Housing,
or any other government agency, except that Consultant acknowledges and agrees
that he hereby waives his right to any monetary benefits in connection with any
such claim, charge or proceeding.  Consultant represents and warrants that,
other than the Excluded Claims, Consultant is not aware of any claims he has or
might have against any of the Released Parties that are not included in the
Released Claims.  Consultant agrees that all parties released herein (other than
Client) are third party beneficiaries of this Agreement who may enforce the
terms of such release.

 

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26.        ADEA Waiver.  Consultant acknowledges that he is knowingly and
voluntarily waiving and releasing any rights he may have under the ADEA, and
that the consideration given for the waiver and release in the preceding
paragraph hereof is in addition to anything of value to which he is already
entitled.  Consultant further acknowledges that he has been advised as required
by the ADEA, that:  (a) his waiver and release do not apply to any rights or
claims that may arise after the date that he signs this Agreement; (b) he should
consult with an attorney prior to signing this Agreement (although he may choose
voluntarily not to do so); (c) he has twenty-one (21) days to consider this
Agreement (although he may choose voluntarily to sign it earlier); (d) he has
seven (7) days following the date he signs this Agreement to revoke it by
providing written notice of revocation to Client’s Chief Executive Officer; and
(e) this Agreement will not be effective until the date upon which the
revocation period has expired, which will be the eighth calendar day after the
date that this Agreement is signed by Consultant (the “Effective Date”).

 

27.        Section 1542 Waiver.  In giving the releases set forth in this
Agreement, which includes claims which may be unknown to Consultant at present,
Consultant acknowledges that he has read and understands Section 1542 of the
California Civil Code which reads as follows:  “A general release does not
extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the debtor.” 
Consultant hereby expressly waives and relinquishes all rights and benefits
under that section and any law or legal principle of similar effect in any
jurisdiction with respect to Consultant’s release of claims herein, including
but not limited to the release of unknown and unsuspected claims.

 

IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as
of the Effective Date as provided herein.

 

ALEXANDRIA REAL ESTATE EQUITIES, INC.

JAMES H. RICHARDSON

 

 

 

 

 

By:

/s/ Joel S. Marcus

 

/s/ James H. Richardson

 

Joel S. Marcus, Chief Executive Officer

 

 

 

 

 

 

 

 

Date:

  September 9, 2009

 

Date:

  8/22/09

 

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{'dataset': 'atticus_contracts'}