1
EXHIBIT 10.25
SEPARATION AGREEMENT
Separation Agreement made this 11th day of November, 1998 by and
between First Industrial Realty Trust, Inc., a Maryland corporation ("FR") and
Xxxxxxx X. Xxxxxx ("Mr. Xxxxxx").
RECITALS
A. Mr. Tomasz is the President and Chief Executive Officer of FR and
various of its subsidiaries, pursuant to a certain Employment Agreement
(the "Employment Agreement") dated December 4, 1996 by and between FR
and Mr. Tomasz;
B. Mr. Tomasz is a member of the Board of Directors of FR and various of
its subsidiaries; and
C. Mr. Tomasz is desirous of resigning those positions to pursue other
interests, and FR is willing to accept such resignations, all on the
terms hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter contained, it is agreed by and between the
parties hereto as follows:
AGREEMENT
1. Upon this Separation Agreement becoming effective in accordance with
Paragraph 10 hereof, Mr. Tomasz will, and does hereby, resign all
offices and all directorships from FR and all of its affiliates and
subsidiaries including, without limitation, those entities set forth on
Exhibit A attached hereto and made a part hereof. Without limitation of
the foregoing, Mr. Tomasz hereby resigns as President and Chief
Executive Officer of FR.
2. Mr. Tomasz will immediately assign and transfer to any individual(s) or
entity(ies) designated by FR, all of his shares and other equity
interests in any subsidiary or affiliate of FR (other than his
retention of his OP Units in First Industrial, L.P.), including,
without limitation, those affiliated or subsidiary entities set forth
on Exhibit A. In furtherance of the foregoing, Mr. Tomasz will
immediately assign and transfer to Xxxxxxx Xxxxxxxxxx all of his shares
and other equity interests in FR Development Services, Inc. for a
purchase price of $1,000, to be paid in cash by Xx. Xxxxxxxxxx.
3. Mr. Tomasz shall be entitled to the following benefits and payments on
account of his separation of employment from FR and its affiliates and
subsidiaries, in lieu and in satisfaction and settlement of any and all
other benefits, payments and claims he might have under the Employment
Agreement or otherwise, on account of or in respect of his employment
and his separation of employment:
a. FR shall continue to pay Mr. Tomasz his current salary at the
rate of Three Hundred and Fifty Thousand Dollars ($350,000.00)
per annum through December 31, 1998. In addition, Mr. Tomasz will
be paid a bonus for 1998 in the amount of Four Hundred and Fifty
Thousand Dollars ($450,000.00).
b. FR will pay to Mr. Tomasz, as a lump sum severance payment, Two
Million Three Hundred Twenty Five Thousand Dollars
($2,325,000.00).
c. Notwithstanding the vesting schedule and the exercise time limits
otherwise presently applicable thereto, all of Mr. Tomasz's
options outstanding under the First Industrial Realty Trust Inc.
1994 and 1997 Stock Incentive Plans (317,000 shares) shall be
fully vested, and Mr. Tomasz shall have a period of 36 months
from the date of this Separation Agreement (i.e. by the close of
business on November 10, 2001) to exercise any such options,
failing which exercise such options shall automatically expire.
25
2
d. All of Mr. Tomasz's awards outstanding under the First Industrial
Realty Trust, Inc. Deferred Income Plan ($285,288) shall be fully
vested, and Mr. Tomasz shall earn any accretions (estimated to be
$57,767) that would otherwise have accrued to his account through
December 31, 1998 had he still been employed by FR on that date.
e. Mr. Tomasz shall relinquish and forego any options to which he
might otherwise have been entitled under the First Industrial
Realty Trust Consolidation Incentive Plan and, in lieu thereof,
FR will award Mr. Tomasz options to purchase 13,700 shares of FR
common stock, at a strike price of $30 per share, to be exercised
if at all within 36 months of the date hereof (i.e. by the close
of business on November 10, 2001).
f. With respect to all restricted stock owned by Mr. Tomasz pursuant
to the First Industrial Realty Trust Inc. 1997 Stock Incentive
Plan (31,841 shares, including both shares acquired through
grants and through conversion of equity in options granted under
the 1994 Stock Incentive Plan): (i) FR waives any and all rights
and options it might have now or in the future to reacquire or
repurchase those shares and (ii) for purposes of lapse and
extinguishment of any and all applicable transfer and other
ownership restrictions, Mr. Tomasz shall be deemed to have
voluntarily terminated service with FR as of the date hereof.
g. All monies payable to Mr. Tomasz under Subparagraphs 3(a) [as to
bonus only], (b) and (d) hereof shall be paid to him in a lump
sum, on (but not before) January 2, 1999, subject to Subparagraph
(i) below.
h. FR shall continue for Mr. Tomasz (provided and only to the extent
that such items are not available to him by virtue of other
employment or positions secured after the date hereof) the
"Post-Termination Perquisites and Benefits" (as defined in
Section 3(b)(i)(z) of the Employment Agreement) for a period of
36 months after the date hereof; provided, however, that the
parties acknowledge that the obligation to provide non-exclusive
secretarial assistance, office space and accoutrements may be
satisfied by the provision of such space and services at a
so-called "Executive Center," or other commercial shared office
suite facility.
i. FR shall withhold from all amounts paid to Mr. Tomasz hereunder
all federal and state taxes applicable to wages and salaries or
compensation payable to employees.
4. Mr. Tomasz agrees that he shall be bound by and conform his future
conduct with the provisions of Section 4 (Confidentiality and Loyalty)
of the Employment Agreement.
5. Mr. Tomasz agrees that he shall be bound by the provisions of Section 5
(Non-Competition Covenant) of the Employment Agreement for the full
term of the restrictive period described therein, being 36 months from
the date hereof, with the following sole exception: Mr. Tomasz will not
be in violation of the restrictive covenants of said Section 5 on
account of his acquisition, for his own and sole account, of any real
property or interest therein, using only his own financial resources
and credit to consummate such purchase. For purposes of this paragraph,
"for his own account" shall include any interest acquired by Mr.
Tomasz's immediate family and/or trusts for the benefit of him and his
immediate family, but shall preclude the ownership, directly or
indirectly, of any equity or participating interest in such property,
or in any entity directly or indirectly owning such property or owning
an interest in any entity owning such property, by any person or entity
whatsoever other than Mr. Tomasz, his immediate family and trusts for
their benefit. For purposes hereof, ownership of equity or any
participating interest shall include not only any outright ownership of
an equity or participating interest, but also any otherwise
characterized de facto or synthetic ownership of such interest, whether
nominally characterized as participating or convertible debt, a
participating leasehold estate or otherwise.
6. The provisions of Section 8 ("Indemnification") of the Employment
Agreement shall continue to be binding upon FR and Mr. Tomasz.
2
3
7. Immediately upon this Separation Agreement becoming effective in
accordance with Paragraph 10 hereof, the parties will issue a joint
press release in the form of Exhibit B attached hereto and made a part
hereof, and will agree to issue no other press release or make any
other public communication with respect to Mr. Tomasz's employment or
separation from employment; provided, however, that FR shall be
entitled to make requisite and appropriate public disclosure of the
terms of this Separation Agreement, without Mr. Tomasz's consent or
approval, as required under applicable statutes, and the rules and
regulations of the Securities and Exchange Commission, the New York
Stock Exchange and other governmental agencies and bodies having
jurisdiction over FR. Additionally, each party hereto agrees to refrain
from publicly making any disparaging or other negative statements about
the other, it being the intention of this Separation Agreement that
neither party be blamed or disparaged or characterized as being
culpable with respect to Mr. Tomasz's employment and/or this separation
from employment.
8. FR agrees to use its best efforts to consummate the pending deferred
exchange real estate transactions between Mr. Tomasz and an affiliate
of FR, pursuant to the so-called "FR Exchange" program, and on the
terms presently contemplated and approved by the FR Board of Directors.
9. For so long as Mr. Tomasz is required to file statements indicating his
ownership pursuant to Section 16 of the Securities Exchange Act of
1934, as amended, and the rules promulgated thereunder by the U.S.
Securities and Exchange Commission with respect to the equity
securities of FR, Mr. Tomasz shall: (i) promptly (and in any case
within 2 days) report to the Chief Financial Officer of FR, any
transaction by him in, or other change in his beneficial ownership of,
such securities; (ii) timely and properly execute and file any such
required statements utilizing forms prepared on his behalf by the Chief
Financial Officer of FR; and (iii) neither execute nor file any such
forms except as may be prepared on his behalf by the Chief Financial
Officer of FR, except to the extent necessary to timely comply with his
legal obligations.
10. This Separation Agreement, and all rights and obligations of the
parties hereto, shall only become effective upon the approval and
acceptance thereof by the Board of Directors of FR on or before 11:59
p.m. Central Standard Time on November 11, 1998. In the event that, for
any reason whatsoever, such Board of Directors has not approved and
accepted this Separation Agreement on or before that time (and notified
Mr. Tomasz of such approval on or before the close of business on
November 12, 1998), this Separation Agreement shall be null and void,
and neither party shall have any rights or obligations with respect
thereto.
11. (a) Mr. Tomasz, and his affiliates and all parties claiming by, through
or under him, and their respective heirs, personal representatives,
predecessors, successors and assigns (collectively the "Tomasz
Releasors"), do hereby fully release, remise, acquit and forever
discharge FR, its parent, subsidiaries and affiliates, and its and
their past, present and future officers, directors, employees,
servants, attorneys, representatives and managers, and all of the
heirs, personal representatives, predecessors, successors and assigns
of each of the foregoing (collectively, the "FR Releasees") of and from
any and all claims, demands, rights, causes or causes of action,
manners of action, suits, debts, sums of money, accounts, bills,
covenants, undertakings, damages, executions, judgments, costs and
expenses, whatsoever, whether known or unknown, matured, unmatured or
contingent, potential or direct, at law or in equity, whether arising
by statute, common law or otherwise, from the beginning of time to the
Effective Date set out in Paragraph 10, that the Tomasz Releasors had,
may now have or may have in the future (collectively, the "Tomasz
Released Claims") including without limitation any such claims (i)
arising out of or relating to the Employment Agreement; (ii) arising
out of or relating to Mr. Tomasz's employment with and/or separation
from FR and its affiliates and subsidiaries; (iii) arising under or
relating to the Employer's policies and procedures, whether formal or
informal; the United States or any state constitution; Title VII of the
Civil Rights Act of 1964, as amended; the Civil Right Act of 1991; the
Illinois Human Right Act; the Employee Retirement Income Security Act
of 1974, as amended; the Age Discrimination in Employment Act; the
Americans With Disabilities Act; Executive Order 11246; and any other
federal, state or local statute, ordinance or regulation with respect
to employment; and/or (iv) arising out of or relating to any other
thing or matter whatsoever; provided, however, that, notwithstanding
the foregoing, it is agreed and understood that nothing contained in
this subparagraph (a) shall release any of the FR Releasees from, and
the Tomasz Released Claims do not include, (x) any claim, undertaking,
duty, obligation or liability under this Separation Agreement
including,
3
4
without limitation Paragraph 6 hereof, and/or (y) any claim,
undertaking, duty, obligation or liability under any documents
executed and delivered under or in connection with the Separation
Agreement.
(b) FR, on behalf of itself and its affiliates and subsidiaries, all
parties claiming by, through or under any of the foregoing, and any and
all of their respective heirs, personal representatives, predecessors,
successors and assigns (collectively, the FR Releasors") do hereby
fully release, remise, acquit and forever discharge Mr. Tomasz, his
agents, servants, attorneys, and personal representatives, and all of
their respective heirs, personal representatives, predecessors,
successors and assigns (collectively, the "Tomasz Releasees") of and
from any and all claims, demands, rights, causes or causes of action,
manners of action, suits, debts, sums of money, accounts, bills,
covenants, undertakings, damages, executions, judgments, costs and
expenses, whatsoever, whether known or unknown, matured, unmatured or
contingent, potential or direct, at law or in equity, whether arising
by statute, common law or otherwise, from the beginning of time to the
Effective Date set forth in paragraph 10, that the FR Releasors had,
may now have or may have in the future, (collectively, the "FR Released
Claims") including without limitation any such claims (i) arising out
of or relating to the Employment Agreement; (ii) arising out of or
relating to Mr. Tomasz's employment and/or separation from FR and its
affiliates and subsidiaries; and/or (iii) arising out of or relating to
any other thing or matter whatsoever; provided, however, that
notwithstanding the foregoing, it is agreed and understood that nothing
contained in this subparagraph (b) shall release any of the Tomasz
Releasees from, and the FR Released Claims do not include, (x) any
claim, undertaking, duty, obligation or liability under this Separation
Agreement, (y) any claim, undertaking, duty, obligation or liability
under any documents executed and delivered under or in connection with
this Separation Agreement and/or (z) any acts of criminal wrongdoing or
fraud by Mr. Tomasz in connection with his employment at or
relationship with FR and its affiliates and subsidiaries.
12. This Separation Agreement is intended to and does supersede and replace
any and all rights, obligations and claims of the parties under the
Employment Agreement, or otherwise, with respect to Mr. Tomasz's
employment and his separation from employment, except with respect to
continuing rights of FR and obligations of Mr. Tomasz herein
specifically reserved.
13. This Separation Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors,
representatives and assigns.
14. This Separation Agreement constitutes the entire agreement between the
parties respecting the subject matter hereof, and supersedes all prior
negotiations, undertakings, agreements and arrangements with respect
thereto, whether written or oral, except with respect to continuing
rights of FR and obligations of Mr. Tomasz herein specifically
reserved. This Separation Agreement may not be amended or modified
except by a written agreement signed by Mr. Tomasz and FR. Only the
Chairman of the Board or the President and Chief Executive Officer of
FR may execute any such amendment or modification on behalf of FR.
15. This Separation Agreement shall be construed in accordance with the
laws of the State of Illinois, without reference to the law regarding
conflicts of law.
16. All notices given pursuant to this Separation Agreement shall be given
in writing and shall be deemed given when received. Notices may be
personally delivered, or delivered by overnight courier service or by
facsimile. Notices to FR shall be addressed to the principal
headquarters of FR (Facsimile No. (000) 000-0000), to the joint
attention of the Chairman and the Chief Executive Officer, with a copy
to FR's counsel, Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, 000
Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (Facsimile No.
(000) 000-0000), Attention: Xxxxxx X. Xxxxxxxxxx. Notices to Mr. Tomasz
shall be sent to the address set forth below Mr. Tomasz's signature on
this Separation Agreement, with a copy to his counsel, Xxxxxxxx Xxxx
Xxxx Black Xxxxxxxxxx & Xxxxxx, 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 (Facsimile No. (000) 000-0000), Attention:
Xxxxxx X. Black. Any party may change its notice address by notice
given as above provided to the other party.
4
5
17. This Separation Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Separation
Agreement as of the day and year first above written.
FIRST INDUSTRIAL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Xxxxxxx X. Xxxxxxx,
Chief Operating Officer
/s/ XXXXXXX X. TOMASZ
------------------------------------
XXXXXXX X. XXXXXX
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
5
6
EXHIBIT A
FIRST INDUSTRIAL - SUMMARY OF POSITIONS - MICHAEL TOMASZ
---------------------------------------------------------------------------------------------------
ENTITY NAME POSITION
---------------------------------------------------------------------------------------------------
First Industrial Realty Trust, Inc. [Sole general partner of First Industrial, CEO, President
L.P.] and Director
---------------------------------------------------------------------------------------------------
First Industrial Securities Corporation [sole general Partner of First CEO, President
Industrial Securities, L.P.] and Director
---------------------------------------------------------------------------------------------------
First Industrial Pennsylvania Corporation [sole general partner of First CEO,
Industrial Pennsylvania, L.P.] President
and sole Director
---------------------------------------------------------------------------------------------------
First Industrial Harrisburg Corporation [sole general partner of First CEO, President
Industrial Harrisburg, L.P.] and sole Director
---------------------------------------------------------------------------------------------------
First Industrial Finance Corporation [sole general partner of First Industrial CEO,
Financing Partnership, L.P.] President
and Director
---------------------------------------------------------------------------------------------------
First Industrial Mortgage Corporation [sole general partner of First Industrial CEO
Mortgage Partnership, L.P.] President
and Director
---------------------------------------------------------------------------------------------------
FI Development Services Corporation [sole general partner of First Industrial Director
Development Services, L.P.]
---------------------------------------------------------------------------------------------------
First Industrial Indianapolis Corporation [sole general partner of First CEO, President
Industrial Indianapolis, L.P.]
---------------------------------------------------------------------------------------------------
First Industrial Management Corporation CEO and
sole Director
---------------------------------------------------------------------------------------------------
FR Acquisitions, Inc. CEO, President
and sole Director
---------------------------------------------------------------------------------------------------
FR Development Services, Inc. Director
---------------------------------------------------------------------------------------------------
First Industrial Florida Finance Corporation CEO, President
and Director
---------------------------------------------------------------------------------------------------
First Industrial Enterprises of Michigan
---------------------------------------------------------------------------------------------------
6
7
EXHIBIT B
PRESS RELEASE
FIRST INDUSTRIAL NAMES XXXXXXX X. XXXXXXX PRESIDENT
AND CHIEF EXECUTIVE OFFICER
CHICAGO, November 11, 1998 - First Industrial Realty Trust, Inc. (NYSE:FR) has
announced that Xxxxxxx X. Tomasz, 56, has resigned as the Company's President
and Chief Executive Officer and as a Director to pursue other personal and
business interests. Effective immediately, the Board of Directors has appointed
Xxxxxxx X. Xxxxxxx, 41, as President and Chief Executive Officer.
Xxxxxxx, a co-founder and Director of First Industrial, previously served as
Chief Operating Officer. Before co-founding First Industrial, Xxxxxxx served as
a president and executive officer in two of the Company's predecessors. Xxxxxxx
has 19 years of experience in industrial real estate operations, investment and
management.
Tomasz commented, "To achieve First Industrial's next level of success, I
believe this is a well-timed opportunity for me to step down and xxxxx in a new
era of leadership. Xxxx Xxxxxxx as both COO of the Company and my close partner
for 12 years, has proven himself dynamic, dedicated and resourceful. He will do
an excellent job managing the organization, which is primed to build upon and
operate its national franchise. I have every confidence that Xxxx, in his
expanded role, will further promote First Industrial's operational excellence."
Xxxxxxx said, "Xxxx Xxxxxx has built First Industrial from its inception in 1994
to a national, $2.7 billion corporation. I would like to thank him for his
vision to establish First Industrial as the country's premier owner and operator
of industrial real estate. He has graciously agreed to be available to consult
with the Company during this transition period. I am very pleased to be able to
serve in this more extensive capacity and continue this vision."
First Industrial Realty Trust, Inc. is a fully integrated, self-advised real
estate company that owns and operates 00 xxxxxxx xxxxxx feet of industrial real
estate in the U.S. The Company's strategy is to create shareholder value through
the operation of its national franchise, focusing on superior localized customer
service, operational efficiencies, low-risk developments, and strategic and
opportunity-driven acquisitions.
7
