Separation and Release Agreement
Exhibit 10.1
This Separation and Release Agreement (this “Agreement”) is made effective as of the
21st day of November, 2008 (the “Agreement Date”), by and between First Industrial
Realty Trust, Inc., a Maryland corporation (the “Company”), and Xxxxx X. Draft (the “Executive”).
Whereas, Executive currently serves as Executive Vice President-Operations of the
Company pursuant to an employment agreement by and between the Company and Executive dated March
25, 2002 (the “Employment Agreement); and
Whereas, Executive has advised the Company of his intention to resign all positions
with the Company effective as of the close of business on the Agreement Date, and the Company’s
Board of Directors has accepted such resignation.
Now, therefore, in consideration of the mutual covenants herein contained, and upon
the other terms and conditions hereinafter provided, the parties hereby agree as follows:
Section 1. Termination of Employment and Employment Agreement. Except as otherwise
specifically set forth herein, the Employment Agreement and Executive’s employment with the Company
shall terminate effective as of the close of business on the Agreement Date. Executive
acknowledges that he has resigned from any and all officerships, directorships, committee
memberships and all other elected or appointed positions, of any nature, that Executive held
immediately prior to the Agreement Date with the Company and/or any of its affiliates, all
effective as of the close of business on the Agreement Date.
Section 2. Severance Payments. In consideration for the promises made in this
Agreement, the Company agrees to pay, or provide to, Executive the following (collectively, the
“Severance Benefits”):
(a) Within thirty (30) days of the Effective Date (as defined in Section 10), a single lump
sum in an amount equal to $1,417,061.
(b) The Company shall continue, for Executive and his family, health insurance coverage, so as
to provide a scope of coverage comparable to that which was in effect as of the Agreement Date, for
a period of three (3) years following the Agreement Date or, if earlier, until such time as
substitute health insurance coverage with comparable benefits is available to Executive at a cost
comparable to that borne by Executive under the Company’s policy, by virtue of other employment or
family members’ insurance benefits secured or made available after termination. Executive shall be
obligated to inform the Company of any such comparable coverage within five (5) business days of
becoming covered by such comparable coverage.
(c) Within five (5) days of the Effective Date, the Company shall reimburse Executive for any
business expenses that are payable under the Company’s normal expense reimbursement policies and
practices that were incurred by the Executive prior to the Agreement Date. Notwithstanding the
foregoing, the Executive shall have until December 31, 2008 to
submit any business expenses associated with services provided on behalf of the Company in
connection with his foreign assignment and such expenses shall be reimbursed within ten (10)
business days of such submission.
(d) The parties acknowledge and agree that the amount set forth in subparagraph (a) above
includes all accrued but unused paid-vacation through the Agreement Date.
(e) Executive acknowledges and agrees that all payments made, and benefits provided, pursuant
to this Agreement shall be subject to all applicable tax withholding and reporting requirements.
(f) Executive acknowledges and agrees that all payments made, and benefits provided, pursuant
to this Agreement are in consideration for Executive’s promises contained in this Agreement, and
that such payments and benefits under the terms of the Employment Agreement would not be payable
absent execution of this Agreement. Executive further acknowledges and agrees that the payments
and benefits described in this Agreement are conditioned upon the execution and non-revocation of
the Release described in Section 10. If Executive revokes this Agreement on or before the
Effective Date, no payment or benefit described herein (except as provided in Section 2(c)) shall
be due to Executive.
Section 3. Code Section 409A. Executive acknowledges and agrees that he shall be
solely responsible for any additional taxes, penalty or interest that may be imposed by Section
409A of the Code on any such payments and or benefits if any such tax, penalty or interest is
imposed by the Internal Revenue Service.
Section 4. Termination of Benefits. Executive’s continued participation in all
compensation and other benefit plans will cease as of the Agreement Date; provided that nothing
contained herein shall limit or otherwise impair Executive’s right to receive pension, welfare or
similar benefit payments which are vested as of the Agreement Date under any applicable
tax-qualified pension plan, welfare benefit plan or other tax-qualified or non-qualified benefit
plans, pursuant and subject to the terms and conditions of the applicable plan.
Section 5. Equity Awards.
(a) Executive’s options, other than options that may by their terms vest upon or be subject to
the attainment of any individual or company-wide performance criteria (e.g., and without
limitation, Consolidated Incentive Program options), outstanding under the First Industrial Realty
Trust, Inc. 1994 Stock Incentive Plan, the First Industrial Realty Trust, Inc. 1997 Stock Incentive
Plan, the First Industrial Realty Trust, Inc. 2001 Stock Incentive Plan and any similar plan
subsequently adopted by the Company (collectively referred to herein as the “SIP Options”), and
awards outstanding under the First Industrial Realty Trust, Inc. Deferred Income Plan (“DIP
Awards”), shall be fully vested effective as of the Agreement Date.
(b) All unexpired transfer and encumbrance restrictions otherwise applicable to any restricted
stock owned by the Executive, shall be released and eliminated effective as of the Agreement Date.
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(c) Executive shall be permitted to exercise any SIP Options until the earlier of i) eighteen
(18) months following the Agreement Date or ii) the original expiration pursuant to the award
agreement under which such SIP Options were originally granted..
Section 6. Change in Control. In the event the termination of Executive’s employment
is determined to be a Change in Control Termination, as defined in Section 3(h)(ii) of the
Employment Agreement, and it is determined, in the opinion of the Employer’s independent
accountants, in consultation, if necessary, with the Employer’s independent legal counsel, that the
Severance Benefits, either separately or in conjunction with any other payments, benefits and
entitlements received by the Executive in respect of the Change in Control Termination under any
other plan or agreement under which the Executive participates or to which he is a party, would
constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the “Code”), and thereby be subject to the excise tax imposed by Section
4999 of the Code (the “Excise Tax”), then in such event the Employer shall pay to the Executive a
“grossing-up” amount equal to the amount of such Excise Tax, plus all federal and state income or
other taxes with respect to the payment of the amount of such Excise Tax, including all such taxes
with respect to any such grossing-up amount. Such grossing-up payment shall be made with or
following the payment under to this Agreement which constitutes an Excess Parachute Payment, but in
no event later than the end of the year following the year in which Employee remits the related
taxes to the Internal Revenue Service. If, at a later date, the Internal Revenue Service assesses
a deficiency against the Executive for the Excise Tax which is greater than that which was
determined at the time such amounts were paid, then the Employer shall pay to the Executive the
amount of such unreimbursed Excise Tax plus any interest, penalties and reasonable professional
fees or expenses incurred by the Executive as a result of such assessment, including all such taxes
with respect to any such additional amount. Such deficiency payment shall be made no later than
the end of the year following the year in which Executive remits the payment to the Internal
Revenue Service in satisfaction of the deficiency, or if no payment is remitted, the end of the
year following the year in which the audit is completed or there is a final and nonappealable
settlement or other resolution. The highest marginal tax rate applicable to individuals at the
time of the payment of such amounts will be used for purposes of determining the federal and state
income and other taxes with respect thereto. Employer shall withhold from any amounts paid under
this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to
be withheld. Computations of the amount of any grossing-up supplemental compensation paid under
this subparagraph shall be conclusively made by the Employer’s independent accountants, in
consultation, if necessary, with the Employer’s independent legal counsel. If, after the Executive
receives any gross-up payments or other amount pursuant to this Section 6, the Executive receives
any refund with respect to the Excise Tax, the Executive shall promptly pay the Employer the amount
of such refund within ten (10) days of receipt by the Executive.
Section 7. Confidentiality. Executive acknowledges that, during the course of his
employment, he has produced, received and had access to, various materials, records, data, trade
secrets and information not generally available to the public, specifically including any
information concerning projects in the Pipeline, as defined below (collectively, “Confidential
Information”) regarding the Company and its subsidiaries and affiliates. Accordingly, for the one
(1) year period immediately subsequent to the Agreement Date, Executive shall hold in
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confidence and shall not directly or indirectly for his own benefit or for the benefit of any
other person or entity, for economic gain or otherwise, disclose, use, copy or make lists of any
such Confidential Information, except to the extent that (a) such information is or thereafter
becomes lawfully available from public sources; or (b) such disclosure is authorized in writing by
the Company; or (c) such disclosure is determined by court order or official governmental ruling to
be required by law or by any competent administrative agency or judicial authority. All records,
files, documents, computer diskettes, computer programs and other computer-generated material, as
well as all other materials or copies thereof relating to the Company’s business, which Executive
prepared or used, shall be and remain the sole property of the Company and shall be promptly
returned to the Company prior to the Effective Date.
Section 8. Restrictive Covenants.
(a) Executive hereby agrees, except with the express prior written discretionary consent of
the Company, that for a period of one (1) year after the Agreement Date (the “Restrictive Period”),
he will not directly or indirectly in any manner compete with the business of the Company,
including, but not by way of limitation, by directly or indirectly owning, managing, operating,
controlling, financing, or by directly or indirectly serving as an employee, officer or director of
or consultant to, or by soliciting or inducing, or attempting to solicit or induce, any employee or
agent of Company to terminate employment with Company and become employed by the following:
(i) Any company listed (during the year immediately preceding the Agreement Date) as an
industrial or mixed office/industrial (but not pure office) REIT or Real Estate Operating
Company as provided in the NAREIT Chart Book, dated January 2008 (a “Peer Group Member”); or
(ii) any person, firm, partnership, corporation, trust or other entity (including, but not
limited to, Peer Group Members) which, as a material component of its business (other than for its
own use as an owner or user), invests in industrial warehouse facilities and properties similar to
the Company’s investments and holdings: (1) in any geographic market or territory in which the
Company owns properties or has an office either as of the Agreement Date; or (2) in any market in
which an acquisition or other investment by the Company or any affiliate of the Company is pending
as of the date of termination, as conclusively evidenced by the existence of a Request for Proposal
or an executed Agreement of Purchase and Sale, Contribution (or Merger) Agreement or Letter of
Intent, Confidentiality Agreement, Due Diligence Agreement, Pursuit Cost Agreement, Partnership or
Joint Venture Agreement, or by a Post Acceptance Conference Call (PACC) memorandum or Investment
Committee (IC) approval in existence as of the Agreement Date.
(b) In addition, during the Restrictive Period, the Executive shall not act as a principal,
investor or broker/intermediary, or serve as an employee, officer, advisor or consultant, to any
person or entity, in connection with or concerning any investment opportunity of the Company that
is in the “Pipeline” (as defined below) as of the Agreement Date. Within ten (10) business days
after the Agreement Date, the CEO shall deliver to the Executive a written statement of the
investment opportunities in the Pipeline as of the Agreement Date (the “Pipeline Statement”) (as
reflected on Exhibit A to this Agreement), and the Executive shall then review
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the Pipeline Statement for accuracy and completeness, to the best of his knowledge, and advise
the CEO of any corrections required to the Pipeline Statement. The Executive’s receipt of any
Severance Amount under Sections 3(a) and (b) shall be conditioned on his either acknowledging, in
writing, the accuracy and completeness of the Pipeline Statement, or advising the CEO, in writing,
of any corrections or revisions required to the Pipeline Statement in order to make it accurate and
complete, to the best of the Executive’s knowledge. The restrictions concerning any one individual
investment opportunity in the Pipeline shall continue until the first to occur of (i) expiration of
the Restrictive Period; or (ii) the Executive’s receipt from the Company of written notice that the
Company has abandoned such investment opportunity, such notice not to affect the restrictions on
all other investment opportunities contained in the Pipeline Statement during the remainder of the
Restrictive Period. An investment opportunity shall be considered in the “Pipeline” if, as of the
Agreement Date, the investment opportunity is pending (for example, is the subject of a letter of
intent) or proposed (for example, has been presented to, or been bid on by, the Company in writing
or otherwise) or under consideration by the Company, whether at the PACC, IC, staff level(s) or
otherwise, and relates to any of the following potential forms of transaction: (A) an acquisition
for cash; (B) an UPREIT transaction; (C) a transaction under the “First Exchange” program; (D) a
development project or venture; (E) a joint venture partnership or other cooperative relationship,
whether through a DOWNREIT relationship or otherwise; (F) an “Opportunity Fund” or other private
investment in or co-investment with the Company; (G) any debt placement opportunity by or in
Company; (H) any service or other fee-generating opportunity by the Company; or (I) any other
investment by the Company or an affiliate of the Company, in or with any party or by any party in
the Company or an affiliate of the Company.
(c) The restrictions contained in Section 8(a) and Section 8(b) above are collectively
referred to as the “Restrictive Covenants.” If Executive violates the Restrictive Covenants and
the Company brings legal action for injunctive or other relief, the Company shall not, as a result
of the time involved in obtaining such relief, be deprived of the benefit of the full period of the
Restrictive Covenants. Accordingly, the Restrictive Covenants shall be deemed to have the duration
specified in Section 8(a) or, as applicable, Section 8(b), computed from the date the relief is
granted, but reduced by the time between the period when the Restrictive Period began to run and
the date of the first violation of the Restrictive Covenants by Executive. In the event that a
successor of the Company assumes and agrees to perform this Agreement or otherwise acquires the
Company, the Restrictive Covenants shall continue to apply only to the primary markets of the
Company as they existed immediately before such assumption or acquisition, and shall not apply to
any of the successor’s other offices or markets. The foregoing Restrictive Covenants shall not
prohibit Executive from owning, directly or indirectly, capital stock or similar securities that
are listed on a securities exchange and that do not represent more than five percent (5%) of the
outstanding capital stock of any corporation.
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(d) Relief from Restrictive Covenants. In the event Executive shall desire to engage
in any activity that would violate the Restrictive Covenants, but which he reasonably and in good
faith believes would be immaterial to the economic and proprietary interests of the Company or any
of its affiliates, he may, prior to (but not after) engaging in such activity, submit to the
Company a written request for relief from the Restrictive Covenants, which written request shall
set forth the scope of the proposed activity, the scope of the requested relief and the basis upon
which Executive believes such activity to be immaterial to the interests of the Company. Within
ten (10) business days after receipt of Executive’s written request, and subject to the specific
approval of the Company, the Company shall advise Executive, in writing, as to whether the
requested relief shall be granted. The parties agree that such relief shall be granted only if the
Company reasonably determines that the reasonably anticipated impact on the Company of the grant of
such relief is in fact immaterial to and fully compatible with the economic and proprietary
interests of the Company (and its separate regions, ventures, divisions, subsidiaries and
affiliates), it being specifically hereby understood and acknowledged by Executive that a
purportedly “minor” percentage impact on Company-wide revenues or expenses of the Company shall not
be deemed to be per se immaterial.
(e) Remedies for Breach of Restrictive Covenant. Executive acknowledges that the
restrictions contained in Section 6 and Section 8 of this Agreement are reasonable and necessary
for the protection of the legitimate proprietary business interests of the Company; that any
violation of these restrictions would cause substantial injury to the Company and such interests;
that the Company would not have entered into the Employment Agreement or this Agreement with
Executive without receiving the additional consideration offered by Executive in binding himself to
these restrictions; and that such restrictions are a material inducement to the Company to enter
into this Agreement. In the event of any violation of these restrictions or statement of intent by
Executive to violate any of these restrictions, the Company shall automatically be relieved of any
and all further financial and other obligations to Executive under this Agreement, in relation to
the payment of a Severance Benefits or otherwise, and shall be entitled to all rights, remedies or
damages available at law, in equity or otherwise under this Agreement; and, without limitation,
shall be entitled to temporary and preliminary injunctive relief, granted by a court of competent
jurisdiction, to prevent or restrain any such violation by Executive and any and all persons
directly or indirectly acting for or with him, as the case may be, such injunctive relief to be
available pending the outcome of the arbitration process provided under Section 16 of this
Agreement, which arbitration process will entitle the arbitrator to determine that permanent
injunctive relief is to be granted to the Company, whereupon such relief shall be granted by a
court of competent jurisdiction, based on the determination of the arbitrator.
Section 9. Indemnification/Cooperation.
(a) Throughout all applicable limitation periods, the Company shall continue to provide
Executive (including his heirs, personal representatives, executors and administrators), with such
coverage as shall be generally available to senior officers of the Employer under the Employer’s
then-current directors’ and officers’ liability insurance policy, at the Company’s expense, with
respect to periods prior to and including the Agreement Date.
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(b) In addition to the insurance coverage provided for in Section 9(a), the Company shall
defend, hold harmless and indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under applicable law, and subject to each of the requirements, limitations
and specifications set forth in the Articles of Incorporation, Bylaws and other organizational
documents of the Company, against all expenses and liabilities reasonably incurred by him in
connection with or arising out of, any action, suit or proceeding in which Executive may be
involved by reason of his having been an officer of the Company, such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys’ fees and the cost of
reasonable settlements.
(c) In the event Executive becomes a party, or is threatened to be made a party, to any
action, suit or proceeding for which the Company has agreed to provide insurance coverage or
indemnification under this Section 9, the Company shall, to the full extent permitted under
applicable law, and subject to the each of the requirements, limitations and specifications set
forth in the Articles of Incorporation, Bylaws and other organizational documents of the Company,
advance all expenses (including the reasonable attorneys’ fees of the attorneys selected by Company
and reasonably approved by Executive for the representation of Executive), judgments, fines and
amounts paid in settlement (collectively “Expenses”) incurred by Executive in connection with the
investigation, defense, settlement, or appeal of any threatened, pending or completed action, suit
or proceeding, subject to receipt by the Company of a written undertaking from Executive
covenanting: (i) to reimburse the Company for the amount of all of the Expenses actually paid by
the Company to or on behalf of Executive in the event it shall be ultimately determined, by the
court or the arbitrator, as applicable to the case, that Executive is not entitled to
indemnification by the Company for such Expenses; and (ii) to assign to the Company all rights of
Executive to insurance proceeds, under any policy of directors’ and officers’ liability insurance
or otherwise, to the extent of the amount of the Expenses actually paid by the Company to or on
behalf of Executive.
(d) Executive agrees that he shall, to the extent reasonably requested in writing, cooperate
with and serve in any capacity requested by the Company in any investigation and/or threatened or
pending litigation (now or in the future) in which the Company is a party, and regarding which
Executive, by virtue of his employment with the Company, has knowledge or information relevant to
said investigation or litigation, including but not limited to (i) meeting with representatives of
the Company to prepare for testimony and to provide truthful information regarding his knowledge,
(ii) acting as the Company’s representative, and (iii) providing, in any jurisdiction in which the
Company requests, truthful information or testimony relevant to the investigation or litigation.
The Company agrees to pay Executive reasonable compensation and reimburse Executive for reasonable
expenses incurred in connection with such cooperation.
Section 10. Release of Claims. The obligation of the Company to provide Executive the
Severance Benefits are contingent upon (i) Executive executing and delivering to the Company a
mutual release of claims in the form attached to this Agreement as Exhibit B (the
“Release”), with such execution and delivery occurring during the twenty-one (21) day period
beginning on the Agreement Date, and (ii) Executive not revoking the Release during the applicable
seven (7)-day revocation period. For purposes of this Agreement, “Effective Date” shall mean the
eighth (8th) day following the execution and delivery to the Company of the Release; provided that
Executive has not before such date revoked the Release.
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Section 11. Mutual Non-Disparagement. The Company and Executive agree that, at all
times following the signing of this Agreement, they shall not engage in any disparagement or
vilification of the other, and shall refrain from making any false, negative, critical or otherwise
disparaging statements, implied or expressed, concerning the other, including, but not limited to,
management style, methods of doing business, the quality of products and services, role in the
community, or treatment of employees. Executive acknowledges that the only persons whose
statements may be attributed to the Company for purposes of this Agreement not to make disparaging
statements shall be each member of the Board of Directors of the Company and each of the Company’s
senior executive officers. The parties further agree to do nothing that would damage the other’s
business reputation or good will.
Section 12. No Admissions. The Company denies that it or any of its employees or
agents has taken any improper action against Executive, and Executive agrees that this Agreement
shall not be admissible in any proceeding as evidence of improper action by the Company or any of
its employees or agents.
Section 13. Confidentiality. Executive and the Company agree to keep the existence
and the terms of this Agreement confidential, except for Executive’s immediate family members or
their legal or tax advisors in connection with services related hereto and except as may be
required by the federal securities laws or other applicable law or in connection with the
preparation of tax returns.
Section 14. Non-Waiver. The Company’s waiver of a breach of this Agreement by
Executive shall not be construed or operate as a waiver of any subsequent breach by Executive of
the same or of any other provision of this Agreement.
Section 15. Governing Law. The validity, interpretation, performance and enforcement
of this Agreement shall be governed by the internal laws of the State of Illinois, without regard
or reference to any principles of conflicts of law of the State of Illinois or any other
jurisdiction, except to the extent that such internal laws are preempted by the laws of the United
States.
Section 16. Mediation and Arbitration. Except only as otherwise provided in Section
8(e), each and every dispute, controversy and contested factual and legal determination arising
under or in connection with this Agreement or Executive’s employment by the Company shall be
committed to and be resolved exclusively through the arbitration process, in an arbitration
proceeding, conducted by a single arbitrator sitting in Chicago, Illinois, in accordance with the
rules of the American Arbitration Association (the “AAA”) then in effect. The arbitrator shall be
selected by the parties from a list of eleven (11) arbitrators provided by the AAA, provided that
no arbitrator shall be related to or affiliated with either of the parties. The arbitrator shall
be selected by the parties from that list. No later than ten (10) days after the list of proposed
arbitrators is received by the parties, the parties, or their respective representatives, shall
meet at a mutually convenient location in Chicago, Illinois, or telephonically. At that meeting,
the party who sought arbitration shall eliminate one (1) proposed arbitrator and then the other
party shall eliminate one (1) proposed arbitrator. The parties shall continue to alternatively
eliminate names from the list of proposed arbitrators in this manner until each party has
eliminated five (5) proposed arbitrators. The remaining arbitrator shall arbitrate the dispute.
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Each party shall submit, in writing, the specific requested action or decision it wishes to
take, or make, with respect to the matter in dispute (“Proposed Solution”), and the arbitrator
shall be obligated to choose one (1) party’s specific Proposed Solution, without being permitted to
effectuate any compromise or “new” position; provided, however, that the arbitrator shall be
authorized to award amounts not in dispute during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The party whose Proposed Solution is not
selected shall bear the costs of all counsel, experts or other representatives that are retained by
both parties, together with all costs of the arbitration proceeding, including, without limitation,
the fees, costs and expenses imposed or incurred by the arbitrator. If the arbitrator ultimately
chooses Executive’s Proposed Solution, then the Company shall pay interest (at the a rate of
eighteen percent (18%)), on the amount the arbitrator awards to Executive (exclusive of attorneys’
fees and costs and expenses of the arbitration), such interest to be calculated from the date the
amount payable under Executive’s Proposed Solution would have been paid under this Agreement, but
for the dispute, through the date payment is made. Judgment may be entered on the arbitrator’s
award in any court having jurisdiction, including, if applicable, entry of a permanent injunction
under such Section 8(e) of this Agreement.
Section 17. Entire Agreement. This Agreement sets forth the entire agreement of the
parties with respect to the matters provided for herein, and shall be final and binding as to all
claims that have been or could have been advanced on behalf of Executive pursuant to any claim
arising out of or related in any way to Executive’s employment with the Company and the termination
of that employment.
Section 18. Counterparts. This 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 Agreement. Facsimile transmission of any executed original document shall be
deemed to be the same as the delivery of the executed original.
Section 19. Dispute Resolution. Each and every dispute, controversy and contested
factual and legal determination arising under or in connection with this Agreement shall be
committed to and be resolved in accordance with the terms and conditions set forth in Section 16 of
this Agreement.
Section 20. Miscellaneous. The headings used in this Agreement are for convenience
only, shall not be deemed to constitute a part hereof, and shall not be deemed to limit,
characterize or in any way affect the construction or enforcement of the provisions of this
Agreement. Wherever from the context that it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural and the pronouns stated in either the
masculine, feminine or the neuter gender shall include the masculine, feminine and neuter, and the
words “include,” “includes” and “including” shall mean “include, without limitation,” “includes,
without limitation” and “including, without limitation,” respectively. The subject matter and
language of this Agreement have been the subject of negotiations between the parties and their
respective counsel, and this Agreement has been jointly prepared by their respective counsel.
Accordingly, this Agreement shall not be construed against either party on the basis that this
Agreement was drafted by such party or its counsel. This Agreement shall be binding upon and inure
to the benefit of Executive and Executive’s heirs and personal representatives and the Company and
its successors, representatives and assigns.
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(Signature page follows)
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In Witness Whereof, this Agreement has been duly executed as of the dates set forth
below.
First Industrial Realty Trust, Inc. |
||||||
/s/ W. Xx Xxxxx
|
Date: November 25, 2008 | |||||
Title: President and Chief Executive Officer |
||||||
/s/ Xxxxx X. Draft
|
Date: November 25, 2008 |
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Exhibit A
Section 7(b) – Pipeline Statement:
AVRO, LLC
Circuit City Stores Inc.
Pure Fishing, Inc.
Quad/Graphics Inc.
Rust-Oleum Corp.
Tricon Industries, Inc.
Uponor Corp.
Vi-Xxx, Inc.
Affiliated Foods. Inc.
Arm & Hammer
BNSF Railway Co.
Cracker Barrel
Delphi Auto Systems, Corp.
DJ Orthopedics, Inc.
Greenheck Fan Corp.
Xxxxxx + Xxxxx International AG
Masimo Corp.
Penske Logistics LLC
Pick-Your-Part Auto Wrecking
The Goodyear Tire & Rubber Co.
TriMas Corp.
Union Pacific Corp.
Yellow Roadway Enterprise Services
Circuit City Stores Inc.
Pure Fishing, Inc.
Quad/Graphics Inc.
Rust-Oleum Corp.
Tricon Industries, Inc.
Uponor Corp.
Vi-Xxx, Inc.
Affiliated Foods. Inc.
Arm & Hammer
BNSF Railway Co.
Cracker Barrel
Delphi Auto Systems, Corp.
DJ Orthopedics, Inc.
Greenheck Fan Corp.
Xxxxxx + Xxxxx International AG
Masimo Corp.
Penske Logistics LLC
Pick-Your-Part Auto Wrecking
The Goodyear Tire & Rubber Co.
TriMas Corp.
Union Pacific Corp.
Yellow Roadway Enterprise Services
B-1
Exhibit B
Mutual General Release of All Claims
Whereas, Xxxxx X. Draft (“Executive”) and First Industrial Realty Trust, Inc., a Maryland
corporation (the “Company”), have entered into a Separation and Release Agreement, effective
November 21, 2008 (the “Separation Agreement”), which requires the Executive to execute this Mutual
General Release of All Claims (the “Mutual Release”):
Now, therefore, in consideration for payments and benefits provided by the Company as set
forth in the Separation Agreement, the sufficiency of which is hereby acknowledged by Executive,
and in consideration of the obligations of Executive under the Separation Agreement, the
sufficiency of which is hereby acknowledged by the Company, Executive and the Company hereby agree
as follows:
1. For valuable consideration, the adequacy of which is hereby acknowledged, Executive on
behalf of himself and the other Executive Releasors (as defined below) releases and forever
discharges the Company and the other Company Releasees (as defined below) from any and all Claims
(as defined below) which Executive now has or claims, or might hereafter have or claim, whether
known or unknown, suspected or unsuspected (or the other Executive Releasors may have, to the
extent that it is derived from a Claim which Executive may have), against the Company Releasees
based upon or arising out of any matter or thing whatsoever, from the beginning of time to the date
affixed beneath Executive’s signature on this Mutual Release and shall include, without limitation,
Claims arising out of or related to Executive’s employment within the Company and the termination
thereof, the employment agreement between the Company and Executive dated March 25, 2002 (the
“Employment Agreement”) and Claims arising under (or alleged to have arisen under) (a) The Age
Discrimination in Employment Act of 1967, as amended; (b) Title VII of the Civil Rights Act of
1964, as amended; (c) The Civil Rights Act of 1991; (d) Section 1981 through 1988 of Title 42 of
the United States Code, as amended; (e) the Employee Retirement Income Security Act of 1974, as
amended; (f) the Immigration Reform and Control Act of 1986, as amended; (g) the Americans with
Disabilities Act of 1990, as amended; (h) the National Labor Relations Act, as amended; (i) the
Occupational Safety and Health Act of 1970 , as amended; (j) any state or local anti-discrimination
law; (k) any other local, state or federal law, regulation or ordinance; (l) any public policy,
contract, tort, or common law; or (m) any allegation for costs, fees, or other expenses including
attorneys’ fees incurred in these matters. Executive further releases any rights to recover
damages or other personal relief based on any claim or cause of action filed on Executive’s behalf
in court or any agency. Notwithstanding the above, Executive Releasors do not release any claim
duly filed pursuant to the group welfare and retirement plans of the Company or a claim filed
pursuant to any policy of liability insurance or the Company’s by-laws and nothing herein precludes
Executive Releasors from enforcing rights under this Mutual Release or the Separation Agreement.
2. For purposes of this Mutual Release, the terms set forth below shall have the following
meanings:
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(a) The term “Claims” shall include any and all rights, claims, demands, debts, dues, sums of
money, accounts, attorneys’ fees, experts’ fees, complaints, judgments, executions, actions and
causes of action of any nature whatsoever, cognizable at law or equity.
(b) The term “Company Releasees” shall include the Company and its affiliates and their
current, former and future officers, directors, trustees, members, employees, shareholders,
partners, attorneys, agents, assigns and administrators and fiduciaries under any employee benefit
plan of the Company and of any affiliate, and insurers, and their predecessors and successors.
(c) The term “Executive Releasors” shall include Executive, and his family, heirs, executors,
representatives, agents, insurers, administrators, successors, assigns, and any other person
claiming through Executive.
3. Executive acknowledges that: (a) Executive has read and understands this Mutual Release in
its entirety; (b) the payments and other benefits provided to Executive under the Separation
Agreement between Executive and the Company dated November 21, 2008 exceed the nature and scope of
that to which Executive would otherwise have been entitled to receive from the Company;
(c) Executive has been advised in writing to consult with an attorney about this Mutual Release
before signing and has had ample opportunity to do so; (d) Executive has been given twenty-one (21)
days to consider this Mutual Release before signing; (e) Executive has the right to revoke this
Mutual Release in full within seven (7) calendar days of signing it by providing written notice to
the Company, and that this Mutual Release shall not become effective until that seven-day
revocation period has expired; and (f) Executive enters into this Mutual Release knowingly and
voluntarily, without duress or reservation of any kind, and after having given the matter full and
careful consideration. Any revocation must be in writing and delivered to the principal
headquarters office of the Company, Attention: Vice President — Legal, with a copy concurrently so
delivered to Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, to the joint attention of Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxx, Xx.
If sent by mail, any revocation must be postmarked within the seven (7)-day period and sent by
certified mail, return receipt requested.
4. The Company does hereby knowingly and voluntarily release and forever discharge Executive
from all Claims known or unknown, fixed or contingent, which it ever had, now has, or may have, or
which it hereafter can, shall, or may have, from the beginning of time through the date on which it
signs this Mutual Release, including without limitation those arising out of or related to
Executive’s employment or separation from employment with the Company; provided nothing herein
precludes the Company from enforcing its rights under this Mutual Release or the Separation
Agreement; provided, further, that the Company does not release or discharge any future claims
against Executive arising out of any acts or omissions of Executive (a) that as of the date of this
Mutual Release are known to Executive, which Executive fails to fully disclose to the Company, and
that have a material adverse future impact on the Company, or (b) that are fraudulent, dishonest or
unlawful.
(Signature page follows)
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In Witness Whereof, this Mutual Release has been duly executed as of the dates set
forth below.
First Industrial Realty Trust, Inc. |
||||||
/s/ W. Xx Xxxxx
|
Date: November 25, 2008 | |||||
Title: President and Chief Executive Officer |
||||||
/s/ Xxxxx X. Draft
|
Date: November 25, 2008 |
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