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EXHIBIT 10.25
EXECUTIVE PROTECTION AGREEMENT
This Agreement entered into as of the 24th day of June, 1999 (the
"Effective Date") by and between ProLogis Trust, a Maryland real estate
investment trust (the "Trust"), and (the "Executive"),
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WITNESSETH THAT:
WHEREAS, the Trust wishes to assure itself of the continuity of the
Executive's services in the event of a change in control of the Trust; and
WHEREAS, the Trust and the Executive accordingly desire to enter into
this Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, it is hereby agreed by and between the parties as follows:
1. Term of Agreement. The "Term" of this Agreement shall commence
on the Effective Date and shall continue through December 31, 2001; provided,
however, that on such date and on each December 31 thereafter, the Term of this
Agreement shall automatically be extended for one additional year unless, not
later than the preceding October 1, either party shall have given notice that
such party does not wish to extend the Term; and provided further that if a
Change in Control (as defined in paragraph 3 below) shall have occurred during
the original or any extended Term of this Agreement, the Term of this Agreement
shall continue until the end of the twenty-fourth calendar month after the
calendar month in which such Change in Control occurs, at which time it will
expire.
2. Employment After a Change in Control. If the Executive is in
the employ of the Trust on the date of a Change in Control, the Trust hereby
agrees to continue the Executive in its employ for the period commencing on the
date of the Change in Control and ending on the last day of the Term of this
Agreement. During the period of employment described in the foregoing provisions
of this paragraph 2 (the "Employment Period"), the Executive shall hold such
position with the Trust and exercise such authority and perform such executive
duties as are commensurate with his position, authority and duties immediately
prior to the Employment Period. The Executive agrees that during the Employment
Period he shall devote his full business time exclusively to the executive
duties described herein and perform such duties faithfully and efficiently;
provided, however, that nothing in this Agreement shall prevent the Executive
from voluntarily resigning from employment upon no less than 15 days' advance
written notice to the Trust under circumstances that do not constitute a
Termination (as defined in paragraph 5).
3. Change in Control. For purposes of this Agreement, a "Change
in Control" means the happening of any of the following:
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(a) The shareholders of the Trust approve a definitive agreement
to merge the Trust into or consolidate the Trust with another entity,
sell or otherwise dispose of all or substantially all of its assets or
adopt a plan of liquidation, provided, however, that a Change in
Control shall not be deemed to have occurred by reason of a
transaction, or a substantially concurrent or otherwise related series
of transactions, upon the completion of which 50% or more of the
beneficial ownership of the voting power of the Trust, the surviving
corporation or corporation directly or indirectly controlling the Trust
or the surviving corporation, as the case may be, is held by the same
persons (as defined below) (although not necessarily in the same
proportion) as held the beneficial ownership of the voting power of the
Trust immediately prior to the transaction or the substantially
concurrent or otherwise related series of transactions, except that
upon the completion thereof, employees or employee benefit plans of the
Trust may be a new holder of such beneficial ownership; provided,
further, that any transaction described in this paragraph (a) with an
"Affiliate" of the Trust (as defined in the Securities Exchange Act of
1934, as amended (the "Exchange Act")) shall not be treated as a Change
in Control.
(b) The "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing 50% or more of the combined
voting power of the Trust is acquired, other than from the Trust, by
any "person" as defined in Sections 13(d) and 14(d) of the Exchange Act
(other than any trustee or other fiduciary holding securities under an
employee benefit or other similar stock plan of the Trust); provided,
that any purchase by Security Capital Group Incorporated or any of its
Affiliates of securities representing 50% or more of the combined
voting power of the Trust shall not be treated as a Change in Control.
(c) At any time during any period of two consecutive years,
individuals who at the beginning of such period were members of the
Board of Trustees of the Trust cease for any reason to constitute at
least a majority thereof (unless the election, or the nomination for
election by the Trust's shareholders, of each new trustee was approved
by a vote of at least two-thirds of the trustees still in office at the
time of such election or nomination who were trustees at the beginning
of such period).
(d) The SCGI Affiliates in a single transaction, or in
substantially concurrent transactions or otherwise related series of
transactions, transfer all or a portion of their interests in the
Trust; provided that the interest so transferred represents 20% or more
of the total beneficial ownership of the voting power of the Trust; and
further provided that the transfer of such 20% or greater interest is
to a corporation, partnership, joint venture, or other entity (or a
group of any such entities that are under common control) that are not
SCGI Affiliates (regardless of whether any Rights are transferred in
connection with the transaction).
(e) The SCGI Affiliates transfer any Rights to any person who is
not an SCGI Affiliate.
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For purposes of this Agreement, the following terms shall be defined as
indicated:
(i) The term "Beneficial Owner" shall mean beneficial owner as defined in
Rule 13d-3 under the Exchange Act.
(ii) Entities shall be treated as being under "common control" during any
period in which they are "affiliates" of each other as that term is
defined in the Exchange Act.
(iii) The term "person" shall be as defined in Sections 13(d) and 14(d) of
the Exchange Act, but shall exclude any trustee or other fiduciary
holding securities under an employee benefit or other similar stock
plan of the Trust.
(iv) The term "ProLogis Affiliate" shall mean ProLogis Trust and any of its
"affiliates" as that term is defined in the Exchange Act.
(v) The term "Rights" shall mean (i) any rights of Security Capital Group
Incorporated set forth in Section 5 of the Third Amended and Restated
Investor Agreement, dated as of September 9, 1997 between ProLogis
Trust and Security Capital Group Incorporated, as such agreement may be
amended and in effect from time to time; and (ii) any rights of
Security Capital Group Incorporated as an Excluded Holder under the
provisions of Article II of ProLogis Trust's Amended and Restated
Declaration of Trust, as amended and supplemented and in effect from
time to time.
(vi) The term "SCGI Affiliate" shall mean Security Capital Group
Incorporated and any of its "affiliates" as that term is defined in the
Exchange Act.
4. Compensation During the Employment Period. During the
Employment Period, the Executive shall be compensated as follows:
(a) He shall receive an annual salary which is not less than his
annual salary immediately prior to the Employment Period.
(b) He shall be entitled to participate in annual cash-based
incentive compensation plans which, in the aggregate, provide bonus
opportunities which are not materially less favorable to the Executive
than the greater of (i) the opportunities provided by the Trust for
executives with comparable levels of responsibility as in effect from
time to time; and (ii) the opportunities provided to the Executive
under all such plans in which he was participating prior to the
Employment Period.
(c) He shall be eligible to participate in other incentive
compensation plans and other employee benefit plans on a basis not
materially less favorable to the Executive than that applicable to
other executives of the Trust with comparable levels of responsibility
as in effect from time to time.
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5. Termination. For purposes of this Agreement, the term
"Termination" shall mean termination of the employment of the Executive by the
Trust during the Employment Period (i) by the Trust, for any reason other than
death, Disability, or Cause, or (ii) by Constructive Discharge of the Executive
(as these terms are described below). For purposes of this Agreement:
(a) The Executive shall be considered to have a "Disability"
during the period in which he is unable, by reason of a medically
determinable physical or mental impairment, to engage in the material
and substantial duties of his regular occupation, and such condition is
expected to be permanent, as determined by the Board of Trustees.
(b) For purposes of this Agreement, "Cause" shall mean, in the
reasonable judgment of the Board of Trustees (i) the willful and
continued failure by the Executive to substantially perform his duties
with the Trust or any subsidiary after written notification by the
Trust or subsidiary, (ii) the willful engaging by the Executive in
conduct which is demonstrably injurious to the Trust or any subsidiary,
monetarily or otherwise, or (iii) the engaging by the Executive in
egregious misconduct involving serious moral turpitude. For purposes
hereof, no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that such action was in
the best interest of the Trust or subsidiary.
(c) If, after a Change in Control, the Executive:
(i) provides written notice to the Trust of the
occurrence of Good Reason (as defined below) within a
reasonable time after the Executive has knowledge of the
circumstances constituting Good Reason, which notice shall
specifically identifies the circumstances which the Executive
believes constitute Good Reason;
(ii) the Trust fails to notify the Executive of the
Trust's intended method of correction within a reasonable
period of time after the Trust receives the notice, or the
Trust fails to correct the circumstances within a reasonable
time after such notice; and
(iii) the Executive resigns within a reasonable time after
receiving the Trust's response, if such notice does not
indicate an intention to correct such circumstances, or within
a reasonable time after the Trust fails to correct such
circumstances;
then the Executive shall be considered to have been subject to a
"Constructive Discharge" by the Trust. For purposes of this Agreement,
"Good Reason" shall mean, without the Executive's express written
consent (and except in consequence of a prior termination of the
Executive's employment), the occurrence of any of the following
circumstances:
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(I) a substantial adverse alteration in the nature of the
Executive's status or responsibilities from those in effect immediately
prior to the Employment Period;
(II) failure to provide salary and other compensation and benefits
in accordance with paragraph 4; or
(III) the failure of the Trust to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement as
contemplated in paragraph 16.
If the Executive becomes employed by the entity into which the Trust merged, or
the purchaser of substantially all of the assets of the Trust, or a successor to
such entity or purchaser, the Executive shall not be treated as having
terminated employment for purposes of this Agreement until such time as the
Executive terminates employment with the merged entity or purchaser (or
successor), as applicable. If the Executive is transferred to employment with a
subsidiary of the Trust (regardless of whether before, on, or after a Change in
Control), such transfer shall not constitute a termination of employment for
purposes of this Agreement, provided that the subsidiary agrees to assume this
Agreement and be substituted for the Trust under this Agreement (provided that
the subsidiary shall not be substituted for the Trust for purposes of defining
the term "Change in Control").
6. Severance Benefits. Subject to the provisions of paragraphs 7
and 8 below, in the event of a Termination described in paragraph 5, in lieu of
the amount otherwise payable under paragraph 4:
(a) The Executive shall be entitled to the bonus(es) payable for
the performance period(s) in which the date of the Executive's
Termination occurs, with payment based on achievement of a target level
of performance for the entire period (regardless of actual performance
for the period); provided, however, that the amount of the bonus shall
be subject to a pro-rata reduction to reflect the portion of the
applicable performance period following the date of termination.
Payment under this paragraph (a) shall be made at the regularly
scheduled time for payment of such amounts to active employees.
(b) As of the date of Termination, the Executive shall be fully
vested in all benefits accrued through the date of Termination under
the ProLogis Trust Nonqualified Savings Plan, and all such benefits
shall be payable in a lump sum not later than 10 days after the date of
Termination.
(c) Any options to purchase stock of the Trust that are held by
the Executive on the date of Termination shall vest and become
immediately exercisable on such date.
(d) The Executive shall continue to receive medical insurance and
life insurance coverage in accordance with paragraph 4(c) above for a
period of period of 36 months after the date of Termination.
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(e) The Executive shall be entitled to a lump sum payment in cash
no later than ten business days after the date of Termination equal to
the sum of:
(i) an amount equal to three times the Executive's annual
salary rate in effect immediately prior to the Employment
Period; and
(ii) an amount equal to three times times the Executive's
target level of the annual bonus for the fiscal year in which
the date of Termination occurs.
(f) The Trust shall, for a period not to exceed twelve months,
provide for standard outplacement services by any one qualified
outplacement agency selected by the Trust.
Except as may be otherwise specifically provided in an amendment of this
paragraph 6 adopted in accordance with paragraph 15, the Executive's rights
under this paragraph 6 shall be in lieu of any benefits with respect to a
termination following a Change in Control that may be otherwise payable to or on
behalf of the Executive pursuant to the terms of any severance pay arrangement
of the Trust or any subsidiary or any other, similar arrangement of the Trust or
any subsidiary providing benefits upon involuntary termination of employment.
7. Make-Whole Payments. The following shall apply with respect to
amounts to or on behalf of the Executive:
(a) Subject to the following provisions of this paragraph 7, if
any payment or benefit to which the Executive is entitled from the
Trust, any affiliate, or trusts established by the Trust or by any
affiliate (a "Payment") is subject to any tax under section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any similar
federal or state law (an "Excise Tax"), the Trust shall pay to the
Executive an additional amount (the "Make Whole-Amount") which is equal
to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of
any interest, penalties, fines or additions to any tax which are
imposed in connection with the imposition of such Excise Tax, plus
(iii) all income, excise and other applicable taxes imposed on the
Executive under the laws of any Federal, state or local government or
taxing authority by reason of the payments required under clause (i)
and clause (ii) and this clause (iii).
(b) For purposes of determining the Make-Whole Amount, the
Executive shall be deemed to be taxed at the highest marginal rate
under all applicable local, state, federal and foreign income tax laws
for the year in which the Make-Whole Amount is paid. The Make-Whole
Amount payable with respect to an Excise Tax shall be paid by the Trust
coincident with the Payment with respect to which such Excise Tax
relates.
(c) All calculations under this paragraph 7 shall be made
initially by the Trust and the Trust shall provide prompt written
notice thereof to the Executive to enable the Executive to timely file
all applicable tax returns. Upon request of the Executive, the Trust
shall provide the Executive with sufficient tax and compensation data
to enable the Executive
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or his tax advisor to independently make the calculations described in
paragraph (b) above and the Trust shall reimburse the Executive for
reasonable fees and expenses incurred for any such verification.
(d) If the Executive gives written notice to the Trust of any
objection to the results of the Trust's calculations within 60 days of
the Executive's receipt of written notice thereof, the dispute shall be
referred for determination to tax counsel selected by the independent
auditors of the Trust ("Tax Counsel"). The Trust shall pay all fees and
expenses of such Tax Counsel. Pending such determination by Tax
Counsel, the Trust shall pay the Executive the Make-Whole Amount as
determined by it in good faith. The Trust shall pay the Executive any
additional amount determined by Tax Counsel to be due under this
paragraph 7 (together with interest thereon at a rate equal to 120% of
the Federal short-term rate determined under section 1274(d) of the
Code) promptly after such determination.
(e) The determination by Tax Counsel shall be conclusive and
binding upon all parties unless the Internal Revenue Service, a court
of competent jurisdiction, or such other duly empowered governmental
body or agency (a "Tax Authority") determines that the Executive owes a
greater or lesser amount of Excise Tax with respect to any Payment than
the amount determined by Tax Counsel.
(f) If a Taxing Authority makes a claim against the Executive
which, if successful, would require the Trust to make a payment under
this paragraph 7, the Executive agrees to contest the claim on request
of the Trust subject to the following conditions:
(i) The Executive shall notify the Trust of any such
claim within 10 days of becoming aware thereof. In the event that the
Trust desires the claim to be contested, it shall promptly (but in no
event more than 30 days after the notice from the Executive or such
shorter time as the Taxing Authority may specify for responding to such
claim) request the Executive to contest the claim. The Executive shall
not make any payment of any tax which is the subject of the claim
before the Executive has given the notice or during the 30-day period
thereafter unless the Executive receives written instructions from the
Trust to make such payment together with an advance of funds sufficient
to make the requested payment plus any amounts payable under this
paragraph 7 determined as if such advance were an Excise Tax, in which
case the Executive will act promptly in accordance with such
instructions.
(ii) If the Trust so requests, the Executive will contest
the claim by either paying the tax claimed and suing for a refund in
the appropriate court or contesting the claim in the United States Tax
Court or other appropriate court, as directed by the Trust; provided,
however, that any request by the Trust for the Executive to pay the tax
shall be accompanied by an advance from the Trust to the Executive of
funds sufficient to make the requested payment plus any amounts payable
under this paragraph 7 determined as if such advance were an Excise
Tax. If directed by the Trust in writing the Executive will
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take all action necessary to compromise or settle the claim, but in no
event will the Executive compromise or settle the claim or cease to
contest the claim without the written consent of the Trust; provided,
however, that the Executive may take any such action if the Executive
waives in writing his right to a payment under this paragraph 7 for any
amounts payable in connection with such claim. The Executive agrees to
cooperate in good faith with the Trust in contesting the claim and to
comply with any reasonable request from the Trust concerning the
contest of the claim, including the pursuit of administrative remedies,
the appropriate forum for any judicial proceedings, and the legal basis
for contesting the claim. Upon request of the Trust, the Executive
shall take appropriate appeals of any judgment or decision that would
require the Trust to make a payment under this paragraph 7. Provided
that the Executive is in compliance with the provisions of this
paragraph (ii), the Trust shall be liable for and indemnify the
Executive against any loss in connection with, and all costs and
expenses, including attorneys' fees, which may be incurred as a result
of, contesting the claim, and shall provide to the Executive within 30
days after each written request therefor by the Executive cash advances
or reimbursement for all such costs and expenses actually incurred or
reasonably expected to be incurred by the Executive as a result of
contesting the claim.
(iii) Should a Tax Authority finally determine that an
additional Excise Tax is owed, then the Trust shall pay an additional
Make-Up Amount to the Executive in a manner consistent with this
paragraph 7 with respect to any additional Excise Tax and any assessed
interest, fines, or penalties. If any Excise Tax as calculated by the
Trust or Tax Counsel, as the case may be, is finally determined by a
Tax Authority to exceed the amount required to be paid under applicable
law, then the Executive shall repay such excess to the Trust within 30
days of such determination; provided that such repayment shall be
reduced by the amount of any taxes paid by the Executive on such excess
which is not offset by the tax benefit attributable to the repayment.
8. Withholding. All payments to the Executive under this
Agreement will be subject to all applicable withholding of state and federal
taxes.
9. Arbitration of All Disputes. Any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled by
arbitration in Denver, Colorado, in accordance with the laws of the State of
Colorado, by three arbitrators appointed by the parties. If the parties cannot
agree on the appointment of the arbitrators, one shall be appointed by the Trust
and one by the Executive and the third shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then the third arbitrator shall be appointed by the Chief
Judge of the United States Court of Appeals for the Tenth Circuit. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association, except with respect to the selection of arbitrators
which shall be as provided in this paragraph 9. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
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10. Legal and Enforcement Costs. This paragraph 10 shall apply if
it becomes necessary or desirable for the Executive to retain legal counsel or
incur other costs and expenses in connection with either enforcing any and all
of his rights under this Agreement or defending against any allegations of
breach of this Agreement by the Trust:
(a) The Executive shall be entitled to recover from the Trust
reasonable attorneys' fees, costs and expenses incurred by him in
connection with such enforcement or defense.
(b) Payments required under this paragraph 10 shall be made by the
Trust to the Executive (or directly to the Executive's attorney)
promptly following submission to the Trust of appropriate documentation
evidencing the incurrence of such attorneys' fees, costs, and expenses.
(c) The Executive shall be entitled to select his legal counsel;
provided, however, that such right of selection shall not affect the
requirement that any costs and expenses reimbursable under this
paragraph 10 be reasonable.
(d) The Executive's rights to payments under this paragraph 10
shall not be affected by the final outcome of any dispute with the
Trust; provided, however, that to the extent that the arbitrators shall
determine that under the circumstances recovery by the Executive of all
or a part of any such fees and costs and expenses would be unjust or
inappropriate, the Executive shall not be entitled to such recovery;
and to the extent that such amount have been recovered by the Executive
previously, the Executive shall repay such amounts to the Trust.
11. Mitigation and Set-Off. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise. The Trust shall not be entitled to set off
against the amounts payable to the Executive under this Agreement any amounts
owed to the Trust by the Executive, any amounts earned by the Executive in other
employment after termination of his employment with the Trust, or any amounts
which might have been earned by the Executive in other employment had he sought
such other employment.
12. Notices. Notices and all other communications provided for in
this Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid
(provided that international mail shall be sent via overnight or two-day
delivery), or sent by facsimile or prepaid overnight courier to the parties at
the addresses set forth below (or such other addresses as shall be specified by
the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed
next day delivery, the next day or the day designated for delivery;
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(b) in the case of certified or registered U.S. mail, five days
after deposit in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting
party received confirmation of receipt by facsimile, telephone or
otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that are
to be delivered by the U.S. mail or by overnight service or two-day delivery
service to the Executive shall be to the last address he has filed in writing
with the Trust, and such deliveries to the Trust shall be to the following
address:
ProLogis Trust
00000 Xxxx 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
All notices to the Trust shall be directed to the attention of the Chief
Financial Officer of the Trust, with a copy to the Secretary of the Trust.
13. Non-Alienation. The Executive shall not have any right to
pledge, hypothecate, anticipate or in any way create a lien upon any amounts
provided under this Agreement; and no benefits payable hereunder shall be
assignable in anticipation of payment either by voluntary or involuntary acts,
or by operation of law. Nothing in this paragraph 13 shall limit the Executive's
rights or powers to dispose of his property by will or limit any rights or
powers which his executor or administrator would otherwise have.
14. Governing Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Colorado, without
application of conflict of laws provisions thereunder.
15. Amendment. This Agreement may be amended or canceled by mutual
agreement of the parties in writing without the consent of any other person and,
so long as the Executive lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
16. Successors to the Trust. This Agreement shall be binding upon
and inure to the benefit of the Trust and any successor of the Trust. The Trust
will require 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 Trust to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Trust would be required to
perform it if no succession had taken place.
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17. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.
18. Counterparts. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Trustees, the Trust has caused
these presents to be executed in its name and on its behalf, all as of the
Effective Date.
EXECUTIVE
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PROLOGIS TRUST
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K. Xxxx Xxxxxxxxx
Chairman and Chief Executive Officer
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