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EXHIBIT 10.60
XXXXXXX X. XXXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and entered into as
of the 1st day of February, 1997 (the "Effective Date"), by and between First
Industrial Realty Trust, Inc., a Maryland corporation (the "Employer"), and
Xxxxxxx X. Xxxxxxx (the "Executive").
RECITALS
A. The Employer desires to employ the Executive as an officer of the
Employer for a specified term, and the Executive is willing to accept such
employment upon the terms and conditions hereinafter set forth.
B. The Employer recognizes that circumstances may arise in which a change
of control of the Employer, through acquisition or otherwise, may occur,
thereby causing uncertainty of employment without regard to the competence or
past contributions of the Executive, and that such uncertainty may result in
the loss of valuable services of the Executive. Accordingly, the Employer and
the Executive wish to provide reasonable security to the Executive against
changes in the employment relationship in the event of any such change of
control.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter contained, it is covenanted and agreed by and between
the parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs the Executive as the
Chief Operating Officer of the Employer, or in such other capacity as shall be
mutually agreed between the Employer and the Executive. During the period of
the Executive's employment hereunder, the Executive shall devote his best
efforts and full business time, energy, skills and attention to the business
and affairs of the Employer. The Executive's duties and authority shall
consist of and include all duties and authority customarily performed and held
by persons holding equivalent positions with business organizations similar in
nature and size to the Employer, as such duties and authority are reasonably
defined, modified and delegated from time to time by the Board of Directors of
the Employer (the "Board"). The Executive shall have the powers necessary to
perform the duties assigned to him, and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accouterments as shall be reasonably necessary and appropriate in the light of
such assigned duties.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation and
other benefits:
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(a) BASE SALARY. The Executive shall receive an aggregate annual minimum
"Base Salary" at the rate of One Hundred and Ninety-Five Thousand dollars
($195,000) per annum, payable in periodic installments in accordance with the
regular payroll practices of the Employer. Such Base Salary shall be subject
to review annually by the Compensation Committee of the Board during the term
hereof, in accordance with the Employer's established compensation policies.
(b) PERFORMANCE BONUS. The Executive shall receive an annual cash
"Performance Bonus," payable within forty-five (45) days after the end of the
fiscal year of the Employer, which shall be based upon company-wide and
individual performance criteria mutually agreed upon from time to time by the
Executive and the Board, and which shall be determined by the Board based upon
the recommendation of the Compensation Committee thereof.
(c) BENEFITS. The Executive shall be entitled to all perquisites extended
to similarly situated executives, as such are stated in the Employer's
Executive Perquisite Policy (the "Perquisite Policy") promulgated for the
Board by the Compensation Committee of the Board, and which Perquisite Policy
is hereby incorporated by reference, as amended from time to time. In
addition, the Executive shall be entitled to participate in all plans and
benefits generally, from time to time, accorded to employees of the Employer
("Benefit Plans"), all as determined by the Board from time to time based upon
the input of its Compensation Committee. In addition to the foregoing
perquisites, plans and benefits, the Executive shall receive the following
"Cash Allowances":
(i) an eight hundred dollar ($800) per month automobile allowance;
and
(ii) three thousand dollars ($3,000) per year for personal financial
planning and personal income tax preparation.
(d) WITHHOLDING. The Employer shall be entitled to withhold, from amounts
payable to the Executive hereunder, any federal, state or local withholding or
other taxes or charges which it is from time to time required to withhold. The
Employer shall be entitled to rely upon the opinion of its independent
accountants, with regard to any question concerning the amount or requirement
of any such withholding.
3. TERM AND TERMINATION.
(a) BASIC TERM. The Executive's employment hereunder shall be for a
continuous and self-renewing two (2) year term, commencing as of the Effective
Date, unless terminated by either party, with or without cause, effective as of
the first (1st) business day after written notice to that effect is delivered
to the other party. Notwithstanding the foregoing, the term of this Agreement
shall, if not previously terminated, expire of its own accord, and without
notice to or from either party, on the seventieth (70th) birthday of the
Executive ("Retirement Date").
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(b) PREMATURE TERMINATION.
(i) In the event of the termination of the employment of the
Executive under this Agreement by the Employer for any reason other than
a "for-cause" termination in accordance with the provisions of paragraph
(d) of this Section 3, then notwithstanding any actual or allegedly
available alternative employment or other mitigation of damages by or
available to the Executive, the Executive shall, subject to the
"Age-Based Adjustments" provided and defined in Section 3(h) below, be
entitled to a "Lump Sum Payment" equal to the sum of: (w) his monthly
Base Salary then payable, multiplied by twenty-four (24); plus (x) two
(2) times the average of the two (2) most recent annual Performance
Bonuses that the Executive received from the Employer. In the event of a
termination governed by this subparagraph (b)(i) of Section 3, the
Employer shall also: (y) notwithstanding the vesting schedule otherwise
applicable, fully vest all of Executive's options outstanding under the
First Industrial Realty Trust, Inc. 1994 Stock Incentive Plan ("SIP
Options"), and awards outstanding under the First Industrial Realty
Trust, Inc. Deferred Income Plan ("DIP Awards"), and allow a period of
eighteen (18) months following the termination of employment for the
Executive to exercise any such SIP Options; and (z) continue for the
Executive (provided that such items are not available to him by virtue of
other employment secured after termination) the perquisites, plans and
benefits provided under the Employer's Perquisite Policy and Benefit
Plans as of and after the date of termination, together with the Cash
Allowances, [all items in (z) being collectively referred to as
"Post-Termination Perquisites and Benefits"], for twenty-four (24) months
following such termination, subject to the proviso that all of the
Post-Termination Perquisites and Benefits set forth above shall in all
events terminate as of the Retirement Date. The payments and benefits
provided under (w), (x), (y) and (z) above by the Employer shall not be
offset against or diminish any other compensation or benefits accrued as
of the date of termination.
(ii) Payment to the Executive under this Section 3(b) will be made
in a lump sum.
(c) CONSTRUCTIVE TERMINATION. If at any time during the term of this
Agreement, except in connection with a "for-cause" termination pursuant to
paragraph (d) of this Section 3, the Executive is Constructively Discharged (as
hereinafter defined), then the Executive shall have the right, by written
notice to the Employer given within one hundred and twenty (120) days of such
Constructive Discharge, to terminate his services hereunder, effective as of
thirty (30) days after such notice, and the Executive shall have no rights or
obligations under this Agreement other than as provided in Section 5 hereof.
The Executive shall in such event be entitled to a Lump Sum Payment of Base
Salary and Performance Bonus compensation [subject to the Age-Based Adjustments
set forth in Section 3(h) below], as well as, up to (and terminating as of) the
Retirement Date, all of the Post-Termination Perquisites and Benefits, as if
such termination of his employment had been effectuated pursuant to paragraph
(b) of this Section 3.
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For purposes of this Agreement, the Executive shall be deemed to have been
"Constructively Discharged" upon the occurrence of any one of the following
events:
(i) The Executive is not re-elected to, or is removed from, both of
the positions with the Employer set forth in Section 1 hereof, other than
as a result of the Executive's election or appointment to positions of
equal or superior scope and responsibility; or
(ii) The Executive shall fail to be vested by the Employer with the
powers, authority and support services normally attendant to any of said
offices; or
(iii) The Employer shall notify the Executive that the employment of
the Executive will be terminated or materially modified in the future or
that the Executive will be Constructively Discharged in the future; or
(iv) The Employer changes the primary employment location of the
Executive to a place that is more than fifty (50) miles from the primary
employment location as of the Effective Date of this Agreement; or
(v) The Employer otherwise commits a material breach of its
obligations under this Agreement.
(d) TERMINATION FOR CAUSE. The employment of the Executive and this
Agreement may be terminated "for-cause" as hereinafter defined. Termination
"for-cause" shall mean the termination of employment on the basis or as a
result of: (i) the Executive's death or his permanent disability, which latter
term shall mean the Executive's inability, as a result of physical or mental
incapacity, substantially to perform his duties hereunder for a period of
either six (6) consecutive months, or one hundred and twenty (120) business
days within a consecutive twelve (12) month period; (ii) a material violation
by the Executive of any applicable material law or regulation respecting the
business of the Employer; (iii) the Executive being found guilty of, or being
publicly associated with, to the Employer's detriment, a felony or an act of
dishonesty in connection with the performance of his duties as an officer of
the Employer, or the Executive's commission of an act which disqualifies the
Executive from serving as an officer or director of the Employer; or (iv) the
willful or negligent failure of the Executive to perform his duties hereunder
in any material respect. The Executive shall be entitled to at least thirty
(30) days' prior written notice of the Employer's intention to terminate his
employment for any cause (except the Executive's death), specifying the grounds
for such termination, affording the Executive a reasonable opportunity to cure
any conduct or act (if curable) alleged as grounds for such termination, and a
reasonable opportunity to present to the Board his position regarding any
dispute relating to the existence of such cause.
(e) TERMINATION UPON DEATH. In the event payments are due and owing under
this Agreement at the death of the Executive, such payments shall be made to
such beneficiary, designee or fiduciary as Executive may have designated in
writing, or failing such designation, to the executor or administrator of his
estate, in full settlement and satisfaction of
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all claims and demands on behalf of the Executive. Such payments shall be in
addition to any other death benefits of the Employer made available for the
benefit of the Executive, and in full settlement and satisfaction of all
payments provided for in this Agreement.
(f) TERMINATION UPON DISABILITY. The Employer may terminate the
Executive's employment after the Executive is determined to be disabled under
the current Employer program or by a physician engaged by the Employer. In the
event of a dispute regarding the Executive's "disability," such dispute shall
be resolved through arbitration as provided in paragraph (d) of Section 9
hereof, except that the arbitrator appointed by the American Arbitration
Association shall be a duly licensed medical doctor. The Executive shall be
entitled to the compensation and benefits provided for under this Agreement
during any period of incapacitation occurring during the term of this
Agreement, and occurring prior to the establishment of the Executive's
"disability" during which the Executive is unable to work due to a physical or
mental infirmity. Notwithstanding anything contained in this Agreement to the
contrary, until the date specified in a notice of termination relating to the
Executive's disability, the Executive shall be entitled to return to his
positions with the Employer as set forth in this Agreement, in which event no
disability of the Executive will be deemed to have occurred.
(g) TERMINATION UPON CHANGE OF CONTROL.
(i) In the event of a Change in Control (as defined below) of the
Employer and the termination of the Executive's employment by Executive
or by the Employer under either 1 or 2 below, the Executive shall,
subject to the Age-Based Adjustments described in Section 3(h) below, be
entitled to a Lump Sum Payment equal to the sum of: (w) his monthly Base
Salary then payable, multiplied by twenty-four (24); plus (x) two (2)
times the average of the two (2) most recent annual Performance Bonuses
that the Executive received from the Employer. The Employer shall also:
(y) notwithstanding the vesting schedule otherwise applicable, fully vest
all of Executive's options outstanding under the "SIP Options," as well
as any awards outstanding under the "DIP Awards," and allow a period of
eighteen (18) months following the termination of employment of the
Executive for the Executive's exercise of the SIP Options; and (z)
continue for the Executive (provided that such items are not available to
him by virtue of other employment secured after termination) all of the
perquisites, plans and benefits provided under paragraph (c) of Section
2, as well as non-exclusive secretarial assistance, office space and
accoutrements for twenty-four (24) months following such termination. The
payments and benefits provided under (w), (x), (y) and (z) above by the
Employer shall not be offset against or diminish any other compensation
or benefits accrued as of the date of termination. The following shall
constitute termination under this paragraph:
1. The Executive 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.
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2. Executive'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 on a for-cause
basis.
(ii) For purposes of this paragraph, the term "Change in Control"
shall mean the following:
1. 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 0000 Xxx) of forty percent (40%) or
more of the combined voting power embodied in the
then-outstanding voting securities of the Employer; or
2. 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:
(1) a trustee or other fiduciary holding securities under one or more
employee benefit plans maintained for employees of the entity; or (2) 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.
(iii) If it is determined, in the opinion of the Employer's
independent accountants, in consultation with the Employer's independent
counsel, that any amount payable to the Executive by the Employer under
this Agreement, or any other plan or agreement under which the Executive
participates or 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 be subject to the excise tax imposed
by Section 4999 of the Code (the "Excise Tax"), the Employer shall pay to
the Executive a
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"grossing-up" amount equal to the amount of such Excise Tax and all
federal and state income or other taxes with respect payment of the
amount of such Excise Tax, including all such taxes with respect to any
such grossing-up amount. 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, the Employer shall pay to the Executive the amount of such
unreimbursed Excise Tax plus any interest, penalties and 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. The highest marginal tax rate applicable to individuals at the
time of payment of such amounts will be used for purposes of determining
the federal and state income and other taxes with respect thereto. The
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 made by
the Employer's independent accountants, in consultation with the
Employer's independent legal counsel. The Employer shall pay all
accountant and legal counsel fees and expenses.
(h) AGE-BASED ADJUSTMENTS. It is recognized and acknowledged that
Executive intends and wishes to retire by the Retirement Date, on which date he
shall have attained the age of seventy (70), which shall be the mandatory
retirement age for senior management of the Employer. This Agreement shall
accordingly terminate, on an automatic basis, as provided in Section 3(a)
above, as of said Retirement Date. In addition, it is mutually acknowledged
and agreed that the Lump Sum Payments owed to the Executive in the event of a
termination of this Agreement pursuant to Section 3(b), 3 (c) or 3(g) hereof
(respectively dealing with Premature Termination, Constructive Termination and
Termination Upon Change of Control) shall be gradually reduced during the three
(3) year pre-retirement transition period preceding the Retirement Date, by
being made subject to "Age-Based Adjustments," based on the following schedule:
Age of Executive as of % of Lump Sum Payments Due
---------------------- --------------------------
Date of Termination Per Age-Based Adjustment
---------------------- --------------------------
67 75%
68 50%
69 25%
70 0%
The foregoing Age-Based Adjustments shall apply against the Lump Sum Payments
of Base Salary and Performance Bonus provided in Sections 3(b), 3(c) and 3(g)
hereof, and shall not
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apply to the Post-Termination Perquisites and Benefits, which shall remain
intact until the Retirement Date, whereupon they shall be completely terminated.
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that
heretofore or hereafter during the course of his employment he has produced and
received, and may hereafter produce, receive and otherwise have access to
various materials, records, data, trade secrets and information not generally
available to the public (collectively, "Confidential Information") regarding
the Employer and its subsidiaries and affiliates. Accordingly, during and
subsequent to termination of this Agreement, the Executive shall hold in
confidence and not directly or indirectly disclose, use, copy or make lists of
any such Confidential Information, except to the extent that such information
is or thereafter becomes lawfully available from public sources, or such
disclosure is authorized in writing by the Employer, required by law or by any
competent administrative agency or judicial authority, or otherwise as
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties hereunder. 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 Employer's business,
which the Executive shall prepare or use, shall be and remain the sole property
of the Employer, shall not be removed from the Employer's premises without its
written consent, and shall be promptly returned to the Employer upon
termination of the Executive's employment hereunder. The Executive agrees to
abide by the Employer's reasonable policies, as in effect from time to time,
respecting confidentiality and the avoidance of interests conflicting with
those of the Employer.
5. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT. The Employer and the Executive have jointly
reviewed the tenant lists, property submittals, logs, broker lists, and
operations of the Employer, and have agreed that as an essential ingredient of
and in consideration of this Agreement and the payment of the amounts described
in Sections 2 and 3 hereof, the Executive hereby agrees that, except with the
express prior written consent of the Employer, for a period equal to the lesser
of the number of full months the Executive has at any time been employed by the
Employer or twenty-four (24) months after the termination of the Executive's
employment with the Employer (the "Restrictive Period"), he will not directly
or indirectly compete with the business of the Employer, 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 Employer to terminate
employment with Employer and become employed by any person, firm, partnership,
corporation, trust or other entity which owns or operates a business similar to
that of the Employer (the "Restrictive Covenant"). For purposes of this
subparagraph (a), a business shall be considered "similar" to that of the
Employer if it is engaged in the acquisition, development, ownership,
operation, management or leasing of warehouse, distribution or light industrial
property (i) in any geographic market or territory in which the Employer owns
properties either as of the date hereof or as of the date of termination of the
Executive's employment; or (ii) in any "Target Market" publicly identified by
the Employer; or (iii) in any market in which an acquisition is
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pending at the time of the termination of the Executive's employment. If the
Executive violates the Restrictive Covenant and the Employer brings legal
action for injunctive or other relief, the Employer 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 Covenant. Accordingly, the Restrictive Covenant
shall be deemed to have the duration specified in this paragraph (a) 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 Covenant by the Executive. In the event that a successor of
the Employer assumes and agrees to perform this Agreement or otherwise acquires
the Employer, this Restrictive Covenant shall continue to apply only to the
primary service area of the Employer as it existed immediately before such
assumption or acquisition and shall not apply to any of the successor's other
offices or markets. The foregoing Restrictive Covenant shall not prohibit the
Executive from owning, directly or indirectly, capital stock or similar
securities which are listed on a securities exchange or quoted on the National
Association of Securities Dealers Automated Quotation System which do not
represent more than five percent (5%) of the outstanding capital stock of any
corporation.
(b) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Sections 4 and 5 of this
Agreement are reasonable and necessary for the protection of the legitimate
proprietary business interests of the Employer; that any violation of these
restrictions would cause substantial injury to the Employer and such interests;
that the Employer would not have entered into this Agreement with the Executive
without receiving the additional consideration offered by the Executive in
binding himself to these restrictions; and that such restrictions were a
material inducement to the Employer to enter into this Agreement. In the event
of any violation or threatened violation of these restrictions, the Employer
shall be relieved of any further obligations under this Agreement, shall be
entitled to any rights, remedies or damages available at law, in equity or
otherwise under this Agreement, and shall be entitled to preliminary and
temporary injunctive relief granted by a court of competent jurisdiction to
prevent or restrain any such violation by the Executive and any and all persons
directly or indirectly acting for or with him, as the case may be, while
awaiting the decision of the arbitrator selected in accordance with paragraph
(d) of Section 9 of this Agreement, which decision, if rendered adverse to the
Executive, may include permanent injunctive relief to be granted by the court.
6. INTERCORPORATE TRANSFERS. If the Executive shall be voluntarily
transferred to an affiliate of the Employer, such transfer shall not be deemed
to terminate or modify this Agreement, and the employing corporation to which
the Executive shall have been transferred shall, for all purposes of this
Agreement, be construed as standing in the same place and stead as the Employer
as of the date of such transfer. For purposes hereof, an affiliate of the
Employer shall mean any corporation or other entity directly or indirectly
controlling, controlled by, or under common control with the Employer. The
Employer shall be secondarily liable to the Executive for the obligations
hereunder in the event the affiliate of the Employer cannot or refuses to honor
such obligations. For all relevant purposes hereof, the tenure of the
Executive shall be deemed to include the aggregate term of his employment by
the Employer or its affiliate.
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7. INTEREST IN ASSETS. Neither the Executive nor his estate shall acquire
hereunder any rights in funds or assets of the Employer, otherwise than by and
through the actual payment of amounts payable hereunder; nor shall the
Executive or his estate have any power to transfer, assign, anticipate,
hypothecate or otherwise encumber in advance any of said payments; nor shall
any of such payments be subject to seizure for the payment of any debt,
judgment, alimony, separate maintenance or be transferable by operation of law
in the event of bankruptcy, insolvency or otherwise of the Executive.
8. INDEMNIFICATION.
(a) The Employer shall provide the Executive (including his heirs,
personal representatives, executors and administrators), during the term of
this Agreement and thereafter throughout all applicable limitations periods,
with coverage under the Employer's then-current directors' and officers'
liability insurance policy, at the Employer's expense.
(b) In addition to the insurance coverage provided for in paragraph (a)
of this Section 8, the Employer shall defend, hold harmless and indemnify the
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under applicable law, and subject to the requirements, limitations
and specifications set forth in the Bylaws and other organizational documents
of the Employer, against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been an officer of the
Employer (whether or not he continues to be an officer at the time of incurring
such expenses or liabilities), 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 the Executive becomes a party, or is threatened to be
made a party, to any action, suit or proceeding for which the Employer has
agreed to provide insurance coverage or indemnification under this Section 8,
the Employer shall, to the full extent permitted under applicable law, advance
all expenses (including the reasonable attorneys' fees of the attorneys
selected by Employer and approved by Executive for the representation of the
Executive), judgments, fines and amounts paid in settlement (collectively
"Expenses") incurred by the 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 Employer of a written undertaking
from the Executive covenanting: (i) to reimburse the Employer for all Expenses
actually paid by the Employer to or on behalf of the Executive in the event it
shall be ultimately determined that the Executive is not entitled to
indemnification by the Employer for such Expenses; and (ii) to assign to the
Employer all rights of the Executive to insurance proceeds, under any policy of
directors' and officers' liability insurance or otherwise, to the extent of the
amount of Expenses actually paid by the Employer to or on behalf of the
Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Executive, the Employer and his and its respective
personal
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representatives, successors and assigns, and any successor or assign of the
Employer shall be deemed the "Employer" hereunder. The Employer shall
require any successor to all or substantially all of the business and/or assets
of the Employer, whether directly or indirectly, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an agreement in form and
substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as the
Employer would be required to perform if no such succession had taken place.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This 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 as otherwise explicitly
provided herein, this Agreement may not be amended or modified except by
written agreement signed by the Executive and the Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement shall
be regarded as divisible and separate; if any of said provisions should be
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not be affected
thereby. This Agreement shall be construed and the legal relations of the
parties hereto shall be determined in accordance with the laws of the State of
Illinois as it constitutes the situs of the corporation and the employment
hereunder, without reference to the law regarding conflicts of law.
(d) ARBITRATION. Except as provided in paragraph (b) of Section 5, any
dispute or controversy arising under or in connection with this Agreement or
the Executive's employment by the Employer shall be settled exclusively by
arbitration, 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. 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.
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, and the
arbitrator shall be obligated to choose one (1) party's specific requested
action or decision, without being permitted to effectuate any compromise or
"new" position; provided, however, that the arbitrator is authorized to award
amounts not in dispute during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The Employer shall bear the
cost 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. Judgment may be entered on the arbitrator's award in any court
having
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jurisdiction; including, if applicable, entry of a permanent injunction under
paragraph (b) of Section 5.
(e) PRESS RELEASES AND PUBLIC DISCLOSURE. Any press release or other
public communication by either the Executive or the Employer with any other
person concerning the terms, conditions or circumstances of Executive's
employment, or the termination of such employment, shall be subject to prior
written approval of both the Executive and the Employer, subject to the proviso
that the Employer shall be entitled to make requisite and appropriate public
disclosure of the terms of this Agreement, without the Executive's consent or
approval, as required under applicable statutes, and the rules and regulations
of the Securities and Exchange Commission and New York Stock Exchange.
(f) WAIVER. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party, shall be deemed a waiver of any
similar or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
(g) NOTICES. Notices given pursuant to this Agreement shall be in
writing, and shall be deemed given when received, and, if mailed, shall be
mailed by United States registered or certified mail, return receipt requested,
postage prepaid. Notices to the Employer shall be addressed to the principal
headquarters of the Employer, Attention: Chairman. Notices to the Executive
shall be sent to the address set forth below the Executive's signature on this
Agreement, or to such other address as the party to be notified shall have
given to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FIRST INDUSTRIAL REALTY TRUST, INC., XXXXXXX X. XXXXXXX
a Maryland corporation
By: /s/ Xxxxxxx X. Tomasz /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- -----------------------------------
Xxxxxxx X. Tomasz Address of Executive:
President and Chief Executive Officer --------------------
000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
TPX\RAS\FIRT\XXXXXXX EMPLOYMENT AGREEMENT January 2, 1997 (2)
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