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EXHIBIT 10.20
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is made as of this 10th day of December, 1997
by and between DONALD C. THOMPSON (hereinafter "Thompson") and FIRST INDUSTRIAL
REALTY TRUST, INC., a Maryland corporation (hereinafter "Employer").
Capitalized terms contained herein and otherwise undefined shall have the
respective meanings given to each of them in that certain Contribution
Agreement, dated as of December 9, 1997, by and among FR Acquisitions, Inc. and
the other parties thereto (the "Contribution Agreement").
The parties hereto agree as follows:
ARTICLE I - TERM OF EMPLOYMENT
1.01 Employer hereby employs Thompson and Thompson hereby accepts
employment by Employer commencing on the date hereof and pursuant to the terms
hereof.
1.02 The term of this Agreement (the "Term") shall end at 12:01 a.m.
Chicago time on the third anniversary of the date hereof (the "Expiration
Date"), except as otherwise provided herein.
ARTICLE II - DUTIES AND POWERS OF THOMPSON
2.01 Except as may be otherwise approved by the Board of Directors of
Employer (the "Board") or as otherwise expressly provided herein, Thompson
shall devote his full-time, diligent and good faith efforts to the operation of
the business of Employer, as more fully detailed below, at all times in
accordance with any and all written rules and policies of Employer.
Additionally during the Term, except as may otherwise be approved by the Board,
Employer shall be entitled to the exclusive benefits of Thompson's knowledge,
experience, business contacts and opportunities relating to the business of
Employer.
Thompson shall be responsible to Employer to perform and/or oversee the
following:
1. The day-to-day management and operation of real property assets
located in Tampa, Orlando and Southwest Florida (collectively, the
"Territory"), owned by Employer or by entities in which Employer holds an
ownership interest ("Property Management");
2. The marketing for lease or sale of real property assets located
in the Territory and owned or managed by Employer or entities in which
Employer holds an ownership interest (together with Employer, the "Employer
Entities") and the negotiation, documentation and consummation of lease and
sale transactions involving real property assets located in the Territory and
owned or managed by Employer Entities (the "Real Property Assets")
[collectively, "Marketing"]; and
3. The acquisition of Real Property Assets, if and to the extent such
acquisitions are approved by the Board (or the Board's Investment Committee, as
the case may be) or the appropriate partners, officers or directors of any
other applicable affiliate of Employer ("Acquisition").
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2.02 Thompson will hold the title of Senior Regional Director ("SRD") of
the Territory, and shall have primary responsibility for the conducting of
Employer's business in the Territory. The Territory's Regional Headquarters
will be located initially in Tampa, Florida.
2.03 If (a) a proposed Acquisition is presented to Employer by Thompson;
(b) Employer approves such Acquisition in accordance with its policies and
procedures then in effect; and (c) the property to be acquired (the "New
Property") is located outside the then-applicable geographic boundaries of the
Territory, then, upon the closing of such Acquisition, the Territory shall
automatically be expanded to include the city (or township, village or
municipality, as the case may be) in which the New Property is located unless
(i) the New Property is located in the existing territory of another SRD of
Employer (it being understood and agreed that, except as is otherwise expressly
provided in this Section 2.03 with respect to the Territory, the senior
officers of Employer shall have the sole discretion to establish the geographic
boundaries of each SRD's respective territory); or (ii) the Board (or the
Investment Committee, as the case may be), in the process of approving the
acquisition of the New Property, specifically determines that the Territory
shall not so expand. In the event that either (i) or (ii) above is applicable,
then none of Thompson and the employees engaged by Employer in the Territory
shall be responsible for the day-to-day management and operation of that
particular New Property. Except as otherwise expressly provided above in this
Section 2.03, any other expansion or contraction of the Territory shall be made
by amendment to this Agreement.
2.04 Subject to: (a) with respect to those matters that may require Board
approval, the specific approval of the Board; (b) policies or guidelines
implemented by Employer out of its Chicago headquarters or by the Board; and
(c) any budget adopted by Employer, from time to time during the Term, with
respect to all or some portion of the Territory (a "Budget"), Thompson shall
have the right and obligation within the Territory to: (i) hire and fire
employees (pursuant to Employer's personnel policies, as such policies may be
modified or amended from time to time); (ii) establish, review, and revise the
compensation of employees engaged to perform services in the Territory
(excepting only himself); (iii) negotiate, document, and enter into contracts
for Property Management and Marketing; (iv) negotiate, document, and enter into
contracts with such suppliers of products and services as Thompson deems
appropriate for the rendering of Property Management and Marketing services to
Employer; (v) purchase or lease equipment for Employer for the performance and
rendering of Property Management, Marketing and Acquisition services, and tend
to all matters relating thereto; (vi) with the prior written approval of the
Chief Operating Officer of Employer (the "COO;" provided, however, that the COO
may from time to time designate another officer of Employer for purposes of
providing approvals to Thompson and/or to whom Thompson shall be obligated to
report and any references to COO contained herein shall be deemed to include
any such officer from time to time designated by the COO), lease building space
for occupancy by Employer for Employer's offices and for such other reasonable
functions as Thompson deems appropriate for the business of Employer in the
Territory; and (vii) negotiate, document, execute and perform under leases on
behalf of any Employer Entities, whether as landlord or management/leasing
agent, as the case may be ("Leases"). Notwithstanding anything to the contrary
contained in this Section 2.04, if any expenditure proposed to be made by
Thompson pursuant to his duties to Employer (1) is not contemplated or provided
for in the relevant Budget and (2) exceeds $25,000, per item or occasion,
except with respect to leasing commissions and tenant improvements as provided
in Section 2.06(iv), in which case Section 2.06
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shall govern, Thompson shall refrain from making such expenditure until
Thompson receives the approval for such expenditure from any Vice President or
more senior officer based in the Chicago headquarters of Employer.
2.05 Without the prior approval of the Board or the Investment Committee,
as the case may be (which, as in all cases requiring the approval or consent of
the Board or Investment Committee under this Agreement, may be given or
withheld in the Board's or the Investment Committee's sole discretion),
Thompson shall not do any or all of the following:
1. Increase his compensation or extend the Term;
2. Purchase, or contract to purchase, any real
property on behalf of Employer or any Employer Entities; or
3. Sell or refinance, or contract to sell or
refinance, any Real Property Assets on behalf of Employer or
any Employer Entities.
Thompson agrees that he shall promptly advise the Employer's Chief Investment
Officer of the pendency of any acquisition or disposition of any real property
on behalf of Employer or any Employer Entities, and shall follow the directions
of the Chief Investment Officer (the "CIO") with respect to the further pursuit
of any such potential acquisition or disposition. If, at any time during the
Term, however, Thompson seeks approval or direction from the CIO with respect
to a particular acquisition or disposition, and the CIO is not available, then
Thompson may seek approval or direction from Employer's COO. If Thompson
receives the approval of the CIO or the COO, as applicable, to pursue an
acquisition or disposition, and Thompson desires that a formal purchase and
sale contract be executed in connection therewith, then any one of the
President, COO, Chief Financial Officer or the CIO of Employer shall be the
signatory to any such contract for an acquisition or disposition. Thompson
acknowledges that, as of the date of this Agreement, no acquisition or
disposition may be consummated on behalf of the Employer without the approval
of the Investment Committee or, in certain instances, the Board. As of the
date of this Agreement, acquisitions or dispositions of real property on behalf
of Employer require only the approval of the Investment Committee if the
aggregate consideration required to be paid for such acquisition or disposition
does not exceed $30,000,000. Currently, then, the Board must approve
acquisitions or dispositions involving consideration in excess of $30,000,000.
Notwithstanding anything to the contrary contained in this Section 2.05, if the
Board modifies its policies with respect to the matters provided in this
Section 2.05, then Thompson shall abide by such modified policies to the extent
such policies differ from what is provided above in this Section 2.05.
2.06 Notwithstanding anything to the contrary contained above, without the
prior approval of the COO, or such other officer designated by the COO for such
purpose, Thompson shall not enter into any Lease (i) with respect to premises
exceeding 100,000 rentable square feet, or (ii) with annual fixed net base rent
exceeding $500,000 for any year of the lease term, assuming the exercise of all
options in the Lease, or (iii) with an initial term exceeding five (5) years,
or with a full term, assuming the exercise of all options in the Lease,
exceeding ten (10) years, or (iv) that requires the expenditure of $100,000 or
more, in the aggregate, by Employer to both satisfy the
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obligations imposed on the landlord under that Lease to perform tenant
improvements and pay any leasing commissions owed by Employer in connection
with such Lease.
2.07 As an SRD, Thompson shall also have the authority to negotiate the
terms and provisions of, and enter into, any third-party management contracts
for the day-to-day leasing, operation and management of New Properties if and
to the extent that, in the process of approving an Acquisition, the Investment
Committee or the Board (if the Board's approval of the Acquisition is
required) approve the engagement of a third-party manager for the applicable
New Property. In such an event, Thompson must engage the third-party manager
in accordance with any additional terms, with respect to such third-party
management arrangement, required by the Investment Committee and the Board (if
the Board's approval of the Acquisition is required).
ARTICLE III - COMPENSATION
3.01 Thompson shall receive a guaranteed minimum annual salary ("Annual
Salary"), based on the duration of his employment during any year, equal to the
Annual Salary payable to all other SRDs engaged by Employer, from time to time;
and such Annual Salary shall be payable in twenty-four (24) equal installments
on the fifteenth day and last day of each month during the Term (a "Payment
Date"). If any Payment Date falls on other than a normal business day, the
salary payment due on such Payment Date shall instead be payable on the last
normal business day preceding such Payment Date.
3.02 In addition to the Annual Salary, Thompson shall also be entitled to
participate in all incentive, bonus and stock option programs offered by
Employer from time to time to the SRDs, as such may be approved or implemented
from time to time by the Compensation Committee of the Board. Thompson's right
to participate in, and to receive compensation under, such programs shall in no
event be on lesser terms or in lesser amounts than those offered to the SRDs;
provided, however, that incentive or bonus arrangements (a) for which Thompson
and the SRDs are eligible; (b) that are based upon the achievement or
surpassing of performance goals established by Employer, and (c) that are based
upon specified commercial criteria made known to Thompson and the SRDs in
advance, may vary among the different regions of Employer based upon relative
regional performance.
3.03 Employer shall be entitled to withhold from those amounts payable to
Thompson from time to time under this Agreement any and all federal, state or
local withholding or other taxes or charges which Employer is, from time to
time, required (by applicable law, statute, ordinance or regulation) to
withhold. Employer shall be entitled to rely upon the opinion of its legal
counsel with regard to any question concerning the amount or requirement of any
such withholding.
ARTICLE IV - THOMPSON'S BENEFITS AND BONUSES
4.01 Employer will provide Thompson with medical/hospitalization/major
medical insurance coverage, including dental benefits, in the same amounts,
pursuant to the same terms, and subject to the same deductible, as is provided
pursuant to the insurance coverage made available, from time to time, to the
SRDs.
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4.02 Employer will provide Thompson with, and keep in effect during the
Term, a term life insurance policy which Employer will purchase from an insurer
satisfactory to Thompson and providing coverage in an amount equal to the
amount of such term life insurance provided to the SRDs. Thompson shall have
the right to designate such individual or other entity as he wishes as the
owner of such life insurance policy, and shall have the power to designate and
change, from time-to-time, the beneficiary under such insurance policy.
4.03 Employer will provide Thompson with a disability income insurance
policy that will (i) provide Thompson with income per year equal to that amount
of annual income provided to the SRDs under their respective disability
insurance policies, (ii) have a waiting period of not greater than three (3)
months from the date of sickness, injury or other disability prior to any
disability payment, (iii) provide for lifetime benefits, and (iv) contain a
waiver of premium clause. At Thompson's option, he may elect to pay the annual
premiums for such disability insurance himself, in which case his Annual Salary
will be increased by the amount equal to such annual premium. The foregoing
disability income insurance policy will define disability in terms of the
functions which Thompson is required to perform pursuant to this Agreement, and
should Thompson not be able to perform such functions, he shall be deemed
disabled under such policy.
4.04 Thompson shall be entitled to vacation leave of four (4) weeks during
each calendar year, beginning January 1, 1998, with full pay (determined on a
pro rata basis, based on the then-applicable Annual Salary). The time for
vacation shall be chosen by Thompson and must be taken within fifteen (15)
months after the start of the calendar year with respect to which such vacation
leave is made available. Thompson's right to be paid in lieu of any vacation
leave not timely taken shall be determined by the Compensation Committee of the
Board and shall be consistent with the policy established for the SRDs.
4.05 Thompson shall be entitled to the following paid holidays per year
(if falling on a day other than a Saturday or Sunday): New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
4.06 Thompson shall be entitled to ten (10) days per calendar year,
beginning January 1, 1997, as sick or personal leave days with full pay
(determined on a pro rata basis, based on the then-applicable Annual Salary).
Sick or personal leave may be accumulated up to a total of twenty (20) days.
4.07 If Thompson becomes disabled during the Term for any reason that
prevents him from fully performing his duties under this Agreement and, as a
result, he would be entitled, but for any waiting period, to disability
payments under the disability insurance policy described above, Employer agrees
to continue his salary (determined on a pro rata basis, based on the
then-applicable Annual Salary) during the period of his disability until such
time as benefits due under the disability income insurance policy (provided
pursuant to Section 4.03 above), begin to accrue, but in no event beyond the
end of the Term.
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ARTICLE V - REIMBURSEMENT OF THOMPSON'S EXPENSES
5.01 Thompson is authorized to incur reasonable business expenses for
promoting the business of Employer, including expenditures for entertainment,
gifts, and travel. Employer will reimburse Thompson in accordance with its
normal expense-reimbursement procedure for all business expenses reasonably
incurred, provided that Thompson presents to Employer both of the following:
(a) A monthly expense report in which Thompson records:
(i) the amount of each expenditure;
(ii) the date, place, and designation of the type of
entertainment, travel, or other expenses or the date and
description of any gift given by Thompson for a business
purpose;
(iii) the business purpose for each expenditure; and
(iv) the name, occupation, address, and other relevant
information of each person who is entertained or given a gift
sufficient to establish the business relationship to Employer.
(b) Documentary evidence (such as receipts or paid bills) providing
sufficient information to establish the amount, date, place, and essential
character of each business expenditure of $75.00 or more.
5.02 Thompson shall receive an automobile allowance determined in
accordance with the Budget for the Territory during the applicable calendar
year (the "Auto Allowance"), which Auto Allowance shall be paid in accordance
with Employer's policy for payment of comparable allowances. Employer shall
have no obligation to make any payments of the Auto Allowance from and after
the date on which Thompson's employment with Employer is terminated pursuant to
Section 6. In addition to the foregoing, it is understood and agreed that, in
order to properly perform his duties, Thompson must have the use of a mobile
telephone. Employer agrees to pay directly, or to reimburse Thompson for, any
and all costs associated with the purchase, installation, activation, and
business use of such mobile telephone (in the ordinary course of Thompson's
performance of his duties under this Agreement).
ARTICLE VI - TERMINATION
6.01 Employer may terminate this Agreement for any reason whatsoever,
including, without limitation, under the following circumstances:
(a) The occurrence of a breach of this Agreement by Thompson
(including, but not limited to, excessive absence) that Thompson does not
cure within ten (10) days after Employer delivers to Thompson written
notice of the alleged breach ("Default Notice"). A termination pursuant
to this paragraph shall take effect upon the expiration of the relevant
cure period, if the subject breach has not been cured.
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(b) For "cause," which, for purposes of this Agreement, shall
include, without limitation, (i) the fraudulent or criminal conduct of
Thompson adversely affecting Employer, (ii) alcoholism of, or illegal
substance abuse by, Thompson, (iii) any willful, reckless, or grossly
negligent act, or failure to act, of Thompson, (iv) any breach of the
fiduciary duty owed by Thompson to Employer, any dishonesty, disclosure
of Confidential Information (as hereinafter defined), a breach of Article
VII hereof, or (v) any attempted election to terminate this Agreement. A
termination "for cause" shall take effect immediately upon written notice
to Thompson from Employer;
(c) Thompson suffering a long-term disability. A long-term
disability shall be defined as Thompson's inability (based on the
standard for honoring a claim established under the disability insurance
policy procured for Thompson pursuant to this Agreement), due to illness
or injury (including alcoholism or illegal substance abuse), to perform
his duties as established in Article II above, for a period of three (3)
consecutive months. A termination pursuant to this paragraph shall take
effect immediately upon written notice to Thompson from Employer after
the expiration of such three-month period;
(d) Thompson's death, in which case the Agreement shall terminate
immediately; and
(e) The occurrence of a breach of this Agreement on three or more
occasions during any 12-month period of the Term (regardless of whether
or not such breaches are cured in a timely fashion), in which case this
Agreement shall terminate immediately upon written notice to Thompson
from Employer.
In the event Employer exercises its right of termination for reasons other than
any of those specified for in paragraphs (a) through (e) above ("Unstated
Reasons"), such termination shall be effective thirty (30) days after
Employer's delivery of its written notice of such termination; provided,
however, from and after the effective date of a termination for any Unstated
Reason, and continuing for a period of six (6) months, or through the
Expiration Date, whichever occurs first, Employer shall continue to pay to
Thompson, the Annual Salary and benefits to which he would have been entitled
(under the express terms of this Agreement), but for the accelerated
termination hereof.
6.02 Thompson shall have no right to terminate this Agreement, except (a)
as provided in Sections 6.06 and 6.07 below, and (b) in the event of the
occurrence of a breach of this Agreement by Employer, which Employer does not
cure within ten (10) days after delivery of Thompson's written notice of such
alleged breach.
6.03 Subject to Article 8, termination of this Agreement by Employer or by
Thompson pursuant to any of the provisions of this Article VI shall not
prejudice any other remedy to which the terminating party may be entitled as a
result of a breach of this Agreement by the non-terminating party, whether at
law, in equity, or under this Agreement.
6.04 In the event this Agreement is terminated for any reason, Thompson
shall be entitled to receive a prorated portion of his Annual Salary through
the effective date of such
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termination. In addition, in the event this Agreement is terminated for any
reason, Thompson shall be entitled to reimbursement of all business expenses
incurred by him (pursuant to Section 5.01) prior to the effective date of
termination that would otherwise be reimbursable hereunder. Further, Thompson
shall also be entitled to the remuneration provided in Sections 6.01, 6.06 and
6.07.
6.05 Upon the termination of this Agreement for any reason, Thompson shall
forthwith return and deliver to Employer, and shall not retain any originals or
copies of, any books, papers, price lists or customer contracts, written
proposals of Employer or prospective customers or tenants, customer/tenant
lists, rent rolls, leases, files, books of account, notebooks and other
documents and data relating to the performance of services rendered by Thompson
hereunder, except for those materials in Thompson's possession immediately
prior to the commencement of the Term (collectively, "Employer's Materials"),
all of which Employer Materials are hereby deemed to constitute the property of
Employer.
6.06 If, at any time during the Term, except in connection with a
termination pursuant to Section 6.01(a), (b) or (e) above, Thompson is
Constructively Discharged (as hereinafter defined), then Thompson shall have
the right, by written notice to the Employer, given within one hundred and
twenty (120) days of the effective date of such Constructive Discharge, to
terminate his services hereunder (the "Termination Notice"), effective as of
the date that is thirty (30) days after the date on which such Termination
Notice is delivered, and Thompson shall have no further rights or obligations
under this Agreement other than as provided in this Section 6.06 and in Article
VII. For purposes of this Agreement, Thompson shall be deemed to have been
"Constructively Discharged" upon the occurrence of any of the following events:
(i) Thompson is not re-elected to, or is otherwise removed from, his
position as the SRD in the Territory with the Employer other than as a
result of (x) Thompson's election or appointment to positions of equal or
superior scope and responsibility or (y) Thompson's breach of, or default
under, the terms of this Agreement; or
(ii) Employer fails to vest Thompson with the powers, authority and
support services normally attendant, from time to time, to the other
SRDs; or
(iii) Employer notifies Thompson, in writing, that Thompson's
employment will be terminated (other than pursuant to Section 6.01(a),
(b) or (e) above) or materially modified in the future, or that Thompson
will be Constructively Discharged in the future.
If Thompson is Constructively Discharged and timely delivers a Termination
Notice, then from and after the effective date of a termination pursuant to a
Termination Notice, and continuing for a period of six months or through the
Expiration Date, whichever occurs first, Employer shall continue to pay to
Thompson the Annual Salary and benefits to which he would have been entitled
(under the express terms of this Agreement), but for the accelerated
termination hereof.
6.07 (a) In the event of a Change in Control (as defined below) of the
Employer and the termination of Thompson's employment by Thompson or by the
Employer under either (i) or (ii) below, Thompson shall be entitled to the
"Severance Payment" described below. The Severance Payment shall not be offset
against or diminish any other compensation or benefits
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accrued as of the effective date of termination. The following shall
constitute termination under this Section 6.07:
(i) Thompson terminates his employment under this Agreement pursuant
to a written notice to that effect delivered to the Board within six (6)
months after the occurrence of the Change in Control; or
(ii) Thompson's employment is terminated, including Constructively
Discharged, by the Employer or its successor either in contemplation of
or within two (2) years after the Change in Control, other than pursuant
to Section 6.01(a), (b) or (e) above.
(b) For purposes of this paragraph, the term "Change in Control" shall
mean the following:
(i) The consummation of the acquisition by any person [as such term
is defined in Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")] of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of forty percent
(40%) or more of the combined voting power embodied in the
then-outstanding voting securities of the Employer; or
(ii) Approval by the stockholders of the Employer of: (1) a merger
or consolidation of the Employer, if the stockholders of the Employer
immediately before such merger or consolidation do not, as a result of
such merger or consolidation, own, directly or indirectly, more than
fifty percent (50%) of the combined voting power of the then-outstanding
voting securities of the entity resulting from such merger or
consolidation in substantially the same proportion as was represented by
their ownership of the combined voting power of the voting securities of
the Employer outstanding immediately before such merger or consolidation;
or (2) a complete or substantial liquidation or dissolution, or an
agreement for the sale or other disposition, of all or substantially all
of the assets of the Employer.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because forty percent (40%) or more of the combined voting power
of the then-outstanding securities is acquired by: (x) a trustee or other
fiduciary holding securities under one or more employee benefit plans
maintained for employees of the entity; or (y) any corporation or other entity
which, immediately prior to such acquisition, is owned directly or indirectly
by the stockholders of the Employer in the same proportion as their ownership
of stock in the Employer immediately prior to such acquisition. For purposes
of this Section 6.07, the "Severance Payment" shall be deemed to be mean the
Annual Salary and benefits to which Thompson would have been entitled (under
the express terms of this Agreement), but for the accelerated termination
hereof, and such Severance Payment shall be due and payable with respect to and
during the period of time commencing on the effective date of the termination
of Thompson's employment under this Section 6.07, and continuing for a period
of six (6) months or through the Expiration Date, whichever occurs first.
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ARTICLE VII - NONCOMPETITION AND CONFIDENTIALITY
7.01 (a) In consideration of (i) this Agreement; (ii) the payment of the
amounts described in Sections 2 and 3 hereof; (iii) the $75,000 noncompete fee
received by Thompson from an affiliate of Employer as the President of TRAC
(defined below) pursuant to the Contribution Agreement; and (iv) the terms and
provisions of the Contribution Agreement, Thompson hereby covenants and agrees
that during the period commencing on the Effective Date and ending on that date
that is (w) the third (3rd) anniversary of the date upon which Thompson's
employment with Employer is terminated pursuant to Section 6.01(b)(iv); (x) the
expiration of any applicable period for which Thompson receives a severance
payment, whether pursuant to Sections 6.01, 6.06 or 6.07, (y) the effective
termination date in the event of a termination of this Agreement pursuant to
Sections 6.01(a), 6.01(b)(i), (ii) or (iii), 6.01(c) or 6.01(e); or (z) the
stated Expiration Date in the event of a termination of this Agreement pursuant
to Section 6.01(b)(v): (a) neither Thompson nor any entity in which Thompson
has a controlling interest (collectively, the "Non-Compete Parties"), shall,
directly or indirectly, within the Territory, in any manner own, manage,
control, participate in, consult with, render services for, or otherwise deal
with, in any manner any entity involved in the development, management,
construction, leasing or operation of other projects or properties used for
industrial/warehouse/distribution purposes; provided, however, that the
Non-Compete Parties may become non-controlling, passive investors without
voting control in warehouse/industrial/distribution properties or in entities
owning or controlling such properties; and (b) no Non-Compete Party shall
solicit, initiate contact with, approach, negotiate with, or hold discussions
with, or on behalf of, any entity (other than Employer, or any of its
affiliates) in connection with any matter relating to the purchase, sale,
ground lease, development or acquisition of any other interests, of any nature
whatsoever, of any warehouse or industrial property in the Territory.
Notwithstanding anything contained herein to the contrary, for a period of
three (3) years after the expiration or a termination of this Agreement for any
reason whatsoever, (i) no Non-Compete Party shall, directly or indirectly, in
any manner whatsoever, initiate contact with or solicit any of the current
tenants ("Tenants") or any future tenant at any of the Properties or any new
industrial/warehouse/distribution facilities developed or acquired by Employer
or any affiliate of Employer in the Territory ("New Tenants") with respect to
alternative locations or opportunities for such Tenants or New Tenants, whether
for purposes of leasing, build-to-suit or otherwise and (ii) in the event any
Non-Compete Party is contacted by any of the Tenants or New Tenants without
having solicited or initiated contact, the applicable Non-Compete Party shall
immediately notify Employer of such fact and shall refer such Tenant or New
Tenant to Employer. Thompson further agrees that, in the event of breach of
any or all of the covenants contained in this Section 7.01, Employer shall be
entitled to all available remedies against any or all of the Non-Compete
Parties, at law or in equity, including without limitation, injunctive relief,
all of which remedies shall be cumulative and non exclusive.
(b) Notwithstanding the foregoing, Thompson shall be entitled to (w)
participate in the day-to-day management and leasing decisions concerning (aa)
the projects identified on Exhibit A hereto until the completion of such
projects and (bb) the Home Depot Project (as such term is defined in the
Contribution Agreement) until the acquisition of the Home Depot Project by an
affiliate of Employer pursuant to the Contribution Agreement in his capacity as
a shareholder of Thompson Kirk Properties, Inc. ("TK Properties"), but such
activities shall be conducted subject to, and in accordance with, the terms,
conditions and limitations set forth in Section 26.15 of the
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Contribution Agreement; (x) participate in the strategic and significant
business decisions (e.g., sale and refinance) concerning the Metropointe
Commerce Center ("Metropointe") as well as to participate in the day-to-day
management and leasing decisions concerning Metropointe in his capacity as the
shareholder of TK Properties pursuant to that certain Incentive Property
Management Agreement, dated May 1, 1991, by and between TK Properties and 275
Gandy Associates, but such activities shall be conducted subject to, and in
accordance with, all of the terms, conditions and limitations set forth in
Section 26.15 of the Contribution Agreement; (y) to participate in his capacity
as the President of TRAC Design Builders ("TRAC") for the limited purpose of
(i) the completion of the Existing Trac Projects (as such term is defined in
the Contribution Agreement) and (ii) the liquidation and dissolution of TRAC
upon the completion of such Existing Trac Projects, which activities shall be
prosecuted and undertaken subject to all of the terms, conditions and
limitations set forth in Section 26.16 of the Contribution Agreement with
respect to the ongoing conduct of business by TRAC; and (z) to participate in
his capacity as (z) a limited partner of Gardner-TKS, Ltd., a Florida limited
partnership (the "Gardner Venture"), and (y) the President of DCT Holdings,
Inc., a Florida corporation and the sole general partner of the Gardner Venture
("DCT"), in the significant business decisions (e.g. sale and refinance) and
the day-to-day management of the approximately 13.3 acres of land which is the
subject of the partnership agreement for the Gardner Venture, but subject to
all of the terms, conditions and limitations set forth in that certain
Agreement by and between DCT and FR Acquisitions, Inc. relating to the Gardner
Venture.
7.02 Employer acknowledges that heretofore or hereafter during the course
of Thompson's employment, Employer has produced, and Thompson may hereafter
produce or have access to, records, data, trade secrets and information not
generally available to the public, including, but not limited to, the
Employer's Materials ("Confidential Information"), regarding Employer, its
subsidiaries and affiliates, the business of Employer, and its real properties
and tenants in the Territory and elsewhere in the United States. Accordingly,
during and subsequent to the Term, Thompson shall hold in confidence and not
directly or indirectly disclose, copy or make lists of any or all of such
Confidential Information, except to the extent that (i) such information is or
hereafter becomes lawfully available from public sources; (ii) such disclosure
is authorized in writing by Employer; (iii) such disclosure is required by a
law or any competent administrative agency or judicial authority; or (iv)
otherwise as is reasonably necessary or appropriate in connection with the
performance by Thompson of his duties hereunder. All records, files, documents
and other materials or copies thereof relating to Employer's business that
Thompson prepares, has access to, or utilizes (including, but not limited to,
the Employer Materials), shall be and remain the sole property of Employer; and
shall be promptly returned to Employer upon termination of Thompson's
employment hereunder. Subject to Section 7.01, during the term of this
Agreement, Thompson agrees to abide by Employer's reasonable policies, as in
effect from time to time and applicable to the SRDs, respecting avoidance of
interests conflicting with those of Employer.
ARTICLE VIII - GENERAL PROVISIONS
8.01 Any notices to be given under this Agreement by either party to the
other must be in writing and may be effected either by personal delivery or by
a reputable next-day overnight delivery service which obtains a signed receipt
for its deliveries. Notices delivered personally
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shall be deemed communicated as of the actual receipt by the addressee.
Notices sent by next-day overnight delivery service shall be deemed
communicated on the next business day after being sent. Notices shall be
addressed as follows:
If intended for Thompson:
Donald C. Thompson
6302 Benjamin Road, Suite 400
Tampa, Florida 33634
With a copy to his Attorney:
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
One Tampa City Center
Suite 2100
Tampa, Florida 33601
Attention: Stephen L. Kussner, Esq.
If intended for Employer:
First Industrial Realty Trust, Inc.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attn: Michael Brennan,
Chief Operating Officer
With a copy to Employer's Attorney:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attn: Suzanne Bessette-Smith
8.02 This Agreement shall be governed by and construed in accordance with
the laws of Illinois.
8.03 This Agreement is a contract for personal services of Thompson, and
as such, is not assignable by Thompson.
8.04 This Agreement shall not be assignable by Employer except with the
prior written approval of an assignment and of the proposed assignee by
Thompson. Notwithstanding the foregoing, Employer may assign its rights under
this Agreement to any entity which acquires title to all of Employer's Real
Property Assets in the Territory, without Thompson's prior approval, subject to
the following two (2) conditions:
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1. Employer shall stand as surety for the performance of the assignee
under this Agreement; and
2. If, after being informed of the assignment and of the identity of the
assignee, Thompson is not willing to be employed by the assignee, upon three
(3) months' prior written notice to Employer and to the assignee, Thompson may
terminate this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Employment Agreement to be duly signed the day and
year first above written.
FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation
By: /s/ MICHAEL W. BRENNAN
----------------------------------
Name: Michael W. Brennan
----------------------------
Title: Chief Operating Officer
----------------------------
/s/ DONALD C. THOMPSON
--------------------------------------
Donald C. Thompson
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EMPLOYMENT AGREEMENT
EXHIBIT A
(AS OF DECEMBER 10, 1997)
1. Fairfield Commerce Center Project: Oversight of construction and
development of an industrial facility by TRAC and ongoing leasing and
management.
2. Public Storage: Oversight of construction and development of a warehouse
facility.