Current Report Filing (8-k)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):

October 9, 2015

DCT INDUSTRIAL TRUST INC.

DCT INDUSTRIAL OPERATING PARTNERSHIP LP

(Exact Name of Registrants as Specified In Charter)

Maryland (DCT Industrial Trust Inc.)

Delaware (DCT Industrial Operating Partnership LP)

001-33201

333-195185

82-0538520

82-0538522

(State or Other Jurisdiction of

Incorporation of Organization)

(Commission

File Number)

(I.R.S. Employer

Identification No.)

518 17^th Street, Suite 800

Denver, CO

80202

(Address of Principal Executive Offices)

(Zip Code)

Registrant’s telephone number, including area code: (303) 597-2400

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2.):

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On October 9, 2015, DCT Industrial Trust Inc. (the “Company”) entered into a new employment agreement with Philip L. Hawkins, which supersedes his previous employment agreement with the Company that had a term of employment expiring on October 9, 2015. The new employment agreement is substantially the same as the previous employment agreement, except that it provides for (i) a new three-year term of employment ending on October 9, 2018, (ii) an increase in minimum annual base salary and an increase in the target value of annual equity awards and (iii) specified benefits in connection with retirement following the conclusion of the term of employment. Also on October 9, 2015, the following executive officers of the Company became subject to the newly adopted DCT Industrial Trust Inc. Executive Change in Control and Severance Plan (the “Plan”): Teresa L. Corral, Neil P. Doyle, Matthew T. Murphy, John V. Pharris, Jeffrey F. Phelan, Charla K. Rios, Michael J. Ruen and John G. Spiegleman. The Plan replaces and supersedes each executive’s prior employment agreement or change in control agreement, which the Company and each executive mutually agreed to terminate upon each executive becoming subject to the plan. The discussion below describes the terms of the new employment agreement and the Plan. This discussion is qualified in its entirety by reference to the copies of these agreements, which are being filed with this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference.

Employment Agreement with Philip L. Hawkins

Under Mr. Hawkins’ new employment agreement, he will serve as the Chief Executive Officer of the Company. Mr. Hawkins’ employment agreement has a term of three years commencing on October 10, 2015, and ending on October 9, 2018. The agreement provides for an annual salary of at least $750,000, annual cash bonuses with a target cash bonus of at least 100% of Mr. Hawkins’ annual salary for the applicable fiscal year and annual equity awards with a target value of at least $1,900,000; provided that the amount of the actual cash bonuses paid and the value of the actual annual equity awards granted will be made by the Company, in its sole discretion, based on such factors relating to the performance of Mr. Hawkins or the Company as it deems relevant and, in each case, may be more or less than the target amount.

If Mr. Hawkins is terminated for any reason, under the employment agreement he will be subject to the following continuing obligations after termination: (1) noncompetition with the Company for one year (unless employment is terminated (i) upon or after termination of the term of employment other than upon Mr. Hawkins’ retirement or (ii) by the Company without Cause or by Mr. Hawkins for Good Reason in connection with or within 18 months after a Change in Control, in which case the noncompetition provision will not extend beyond termination of employment); (2) nonsolicitation and non-hiring of the Company’s employees for one year; (3) non-interference with the Company’s business for one year; (4) nondisparagement of the Company for one year; and (5) cooperation with the Company in connection with future claims or investigations. The employment agreement also provides for the following payments and benefits to Mr. Hawkins in connection with the termination of his employment with the Company or a Change in Control of the Company:

•

Change in Control without termination. Upon a Change in Control while Mr. Hawkins is employed by the Company that occurs during or after the expiration of the term of employment under the agreement, all of Mr. Hawkins’ outstanding unvested equity awards subject to time-based vesting conditions will fully vest; provided that any performance-based vesting conditions applicable to such awards will continue to apply in accordance with their terms.

•

Termination without Cause or for Good Reason. If Mr. Hawkins’ employment is terminated by the Company without Cause or by Mr. Hawkins for Good Reason during the term of employment or within 18 months of a Change in Control that occurs during the term of employment or thereafter, Mr. Hawkins will receive (1) annual salary, cash bonus and other benefits earned and accrued under the agreement prior to the termination of employment, (2) a lump sum payment equal to the sum of (i) two times (or, in the event of a termination within 18 months after a Change in Control, three times) annual salary plus (ii) two times (or, in the event of a termination within 18 months after a Change in Control, three times) the greater of the target cash bonus for the year of termination or the average of actual cash bonuses for the two years preceding the year of termination, and (3) a pro-rata cash bonus for the year in which Mr. Hawkins’ employment was terminated based on the target annual cash bonus. Mr. Hawkins will also continue to

receive his medical benefits for two years, and all of his outstanding unvested equity awards subject to time-based vesting conditions will fully vest; provided that any performance-based vesting conditions applicable to such awards will continue to apply in accordance with their terms. Mr. Hawkins’ receipt of these payments and benefits (other than the annual salary, cash bonus and other benefits earned and accrued under the agreement prior to the termination of employment) in connection with a termination without Cause or for Good Reason is subject to his execution of a general release of claims with the Company.

•

Termination upon death or disability. If Mr. Hawkins’ employment is terminated by the Company upon Mr. Hawkins’ death or disability, Mr. Hawkins, or his estate, will receive (1) annual salary, cash bonus and other benefits earned and accrued under the agreement prior to the termination of employment and (2) a pro-rata cash bonus for the year in which Mr. Hawkins’ employment was terminated based on the target annual cash bonus. In addition, all of Mr. Hawkins’ outstanding unvested equity awards subject to time-based vesting conditions will fully vest; provided that any performance-based vesting conditions applicable to such awards will continue to apply in accordance with their terms. Mr. Hawkins’ receipt of these payments and benefits (other than the annual salary, cash bonus and other benefits earned and accrued under the agreement prior to the termination of employment) in connection with a termination upon disability is subject to his execution of a general release of claims with the Company.

•

Qualified Retirement. If Mr. Hawkins retires on or after the expiration of his new three-year term of employment, Mr. Hawkins will receive (1) a pro-rata cash bonus for the year in which Mr. Hawkins’ retires based on the target annual cash bonus for such year and (2) all of Mr. Hawkins’ outstanding unvested equity awards subject to time-based vesting conditions and continued employment through a specified vesting date shall vest on specified dates during the two years following retirement. Mr. Hawkins’ receipt of these benefits is subject to his execution of a general release of claims with the Company and an agreement to remain subject to the non-competition covenants set forth in his employment agreement through the second anniversary of his retirement date.

If any payments and benefits to be paid or provided to Mr. Hawkins, whether pursuant to the terms of the employment agreement or otherwise, would be subject to “golden parachute” excise taxes under the Internal Revenue Code, Mr. Hawkins’ payments and benefits under his employment agreement will be reduced to the extent necessary to avoid such excise taxes, but only if such a reduction of pay or benefits would result in a greater after-tax benefit to Mr. Hawkins.

The terms Cause, Good Reason and Change in Control are specifically defined in Mr. Hawkins’ employment agreement.

Executive Change in Control and Severance Plan

The Plan initially covers Teresa L. Corral, Neil P. Doyle, Matthew T. Murphy, John V. Pharris, Jeffrey F. Phelan, Charla K. Rios, Michael J. Ruen and John G. Spiegleman and entitles each covered executive to certain benefits in the event of a Change in Control or certain terminations of employment with the Company. The Plan replaced each covered executive’s prior employment agreement or change of control agreement, which the Company and each covered executive mutually agreed to terminate in connection with such executive becoming subject to the Plan. Under the Plan, each covered executive has agreed to certain restrictive covenants, including: (1) nonsolicitation and non-hiring of the Company’s employees; (2) non-interference with the Company’s business; (3) nondisparagement of the Company; and (4) cooperation with the Company in connection with future claims or investigations. The Plan provides for the following payments and benefits to each covered executive in connection with a termination of his or her employment with the Company or a Change in Control of the Company, subject to compliance with such restrictive covenants:

•

Change in Control. Upon a Change in Control while a covered executive is employed by the Company, all of such covered executive’s outstanding unvested equity awards subject to time-based vesting conditions will fully vest; provided that any performance-based vesting conditions applicable to such awards will continue to apply in accordance with their terms.

•

Termination without Cause or for Good Reason. If a covered executive is terminated by the Company without Cause or if the covered executive terminates his or her employment for Good Reason, such covered executive will be entitled to (1) annual salary and other benefits earned and accrued prior to the termination of employment and (2) a lump sum payment equal to the sum of (or, in the case of a termination within 12 months after a Change in Control, two times the sum of) (i) his or her annual salary plus (ii) the greater of his or her target cash bonus for the year of termination or the average of actual cash bonuses for the two years preceding the year of termination and (3) a pro-rata cash bonus for the year in which the covered executive’s employment was terminated based on his or her target annual cash bonus. The covered executive will also continue to receive his or her medical benefits for up to 24 months. In addition, all of covered executive’s outstanding unvested equity awards subject to time-based vesting conditions will become vested as if his or her employment had continued for an additional 24 months; provided that any performance-based vesting conditions applicable to such awards will continue to apply in accordance with their terms. The covered executive’s receipt of these payments and benefits (other than the annual salary and other benefits earned and accrued under the agreement prior to the termination of employment) is subject to his or her execution of a general release of claims with the Company.

•

Termination upon death or Disability. If a covered executive’s employment is terminated due to death or Disability, such covered executive, or his or her estate, will receive (1) annual salary and other benefits earned and accrued prior to the termination of employment and (2) a pro-rata cash bonus for the year in which employment was terminated based on his or her target annual cash bonus. In addition, all of a covered executive’s outstanding unvested equity awards subject to time-based vesting conditions will fully vest; provided that any performance-based vesting conditions applicable to such awards will continue to apply in accordance with their terms. Each covered executive’s receipt of these payments and benefits (other than the annual salary and other benefits earned and accrued under the agreement prior to the termination of employment) in connection with a termination upon Disability is subject to his or her execution of a general release of claims with the Company.

If any payments and benefits to be paid or provided to a covered executive, whether pursuant to the terms of the employment agreement or otherwise, would be subject to “golden parachute” excise taxes under the Internal Revenue Code, the payments and benefits will be reduced to the extent necessary to avoid such excise taxes, but only if such a reduction of pay or benefits would result in a greater after-tax benefit to the covered executive.

The Company may amend or terminate the Plan at any time without the consent of any covered executive, except that, without the consent of the covered executive, any such amendment or termination occurring during the period beginning 12 months before and ending 12 months after a Change in Control may not adversely affect the covered executive’s rights to receive payments and benefits pursuant to the Plan in connection with a termination of the covered executive by the Company without Cause or by the covered executive for Good Reason occurring in connection with or within 12 months following such Change in Control.

The terms Cause, Good Reason and Change in Control are specifically defined in the Plan.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits


Exhibit Number		Description of Exhibits

10.1		Employment Agreement, dated as of October 9, 2015, by and between the Company and Philip L. Hawkins.

10.2		DCT Industrial Trust Inc. Executive Change in Control and Severance Plan (including form of letter agreement with executives).

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


DCT INDUSTRIAL TRUST INC.

By:		/s/ John G. Spiegleman
Name:		John G. Spiegleman
Title:		Executive Vice President and General Counsel

Date: October 13, 2015

Exhibit 10.1

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (“Agreement”) dated as of October 9, 2015, by and between DCT Industrial Trust Inc. with its principal place of business at 518 17^th Street, Suite 800, Denver, Colorado 80202 (the “Company”), and Philip L. Hawkins, residing at the address set forth on the signature page hereof (the “Executive”).

WHEREAS, the Company and the Executive were parties to an employment agreement made and entered into on October 9, 2012 (the “Prior Employment Agreement”), that expired by its terms; and

WHEREAS, the Company wishes to continue to employ the Executive, and the Executive wishes to accept such offer, on the terms set forth below.

Accordingly, the parties hereto agree as follows:

1. Term. The Company hereby employs the Executive, and the Executive hereby accepts such employment, for a three-year term commencing on October 10, 2015 and continuing through October 9, 2018, unless sooner terminated in accordance with the provisions of Section 4 or Section 5 (the period during which the Executive is employed hereunder being hereinafter referred to as the “Term”).

2. Duties. During the Term, the Executive shall be employed by the Company as Chief Executive Officer of the Company, and, as such, the Executive shall faithfully perform for the Company the duties of such office and shall perform such other duties of an executive, managerial or administrative nature, which are consistent with such office, as shall be specified and designated from time to time by the Board of Directors of the Company (the “Board”). The Executive shall devote substantially all of his business time and effort to the performance of his duties hereunder; provided, however, that the Executive may engage in civic or charitable activities, provided that such activities do not interfere with the Executive’s performance of his duties hereunder or violate this Agreement. The Executive shall be based in the Denver, Colorado metropolitan area.

3. Compensation.

3.1 Salary. The Company shall pay the Executive during the Term an initial salary at the rate of $750,000 per annum (the “Annual Salary”), in accordance with the customary payroll practices of the Company applicable to senior executives (but, in no event, less frequently than monthly). The Board, or committee thereof, may provide for such increases in the Annual Salary as it may in its discretion deem appropriate; provided that in no event shall the Annual Salary be decreased.

3.2 Bonus. During the Term, in addition to the Annual Salary, for each fiscal year of the Company ending during the Term, the Executive shall be eligible to receive an annual cash bonus. The target annual cash bonus for each fiscal year of the Company ending during the Term shall be at least equal to 100% of the Executive’s Annual Salary for such fiscal year; provided that the amount of the actual cash bonus paid (which may be more or less than the

target amount) shall be determined by the Company, in its sole discretion, based on such factors relating to the performance of the Executive or the Company as it deems relevant. Each cash bonus payment under this Section 3.2 shall be made in a single lump sum within two and one-half (2 1/2) months following the end of the fiscal year of the Company in which such bonus is earned. By way of illustration (but not limitation) of the manner in which the preceding sentence operates, if the Executive earns a bonus for fiscal year 2015, then the cash bonus payment must be paid in a single lump sum between January 1, 2016 and March 15, 2016.

3.3 Long-Term Incentive Awards. During the Term, in addition to the Annual Salary and cash bonus, the Executive shall be eligible to receive annual equity awards under the Company’s Second Amended and Restated 2006 Long-Term Incentive Plan (as amended and supplemented from time to time, the “LTIP”) or other equity-based plan as in effect from time to time that is materially comparable in the aggregate to the LTIP. The target value of the annual equity awards for each fiscal year of the Company ending during the Term shall be at least equal to $1,900,000; provided that the value of the actual equity awards granted (which may be more or less than the target value) shall be determined by the Company, in its sole discretion, based on such factors relating to the performance of the Executive or the Company as it deems relevant. Grants of annual equity awards under this Section 3.3 shall be made within two and one-half (2 1/2) months following the end of the fiscal year of the Company to which such awards relate. Annual equity awards granted shall vest in equal annual installments over no more than five years and the vesting period for any grant made during the Term will begin on January 1 of the year in which such grant is made. Any grants which are financially equivalent to restricted stock (e.g. restricted stock units or phantom units), other than those that remain subject to performance-based vesting hurdles, shall be accompanied by the grant of dividend equivalent rights. The Executive shall also be eligible to participate in any multi-year equity award programs established by the Company for senior executives. The Company will have the right to determine, in its sole discretion, the terms of any such programs or the Executive’s award thereunder.

3.4 Benefits - In General. Except with respect to benefits of a type otherwise provided for under Section 3.5, the Executive shall be entitled during the Term to participate in any group life, hospitalization or disability insurance plans, health programs, retirement plans, fringe benefit programs and similar benefits that are available to other senior executives of the Company generally, on the same terms as such other executives, in each case to the extent that the Executive is eligible under the terms of such plans or programs.

3.5 Specific Benefits. Without limiting the generality of Section 3.4, the Company shall make available to the Executive vacation of four weeks per year, which vacation days may accrue subject to the Company policy regarding vacation accruals.

3.6 Expenses. The Company shall pay or reimburse the Executive for all ordinary and reasonable out-of-pocket expenses actually incurred (and, in the case of reimbursement, paid) by the Executive during the Term in the performance of the Executive’s services under this Agreement (including, without limitation, with respect to use of a mobile phone, use of a blackberry, and entertainment costs); provided that the Executive submits reasonable proof of such expenses within the period provided by the Company for expense reimbursements to its senior executives generally, with the properly completed forms as

prescribed from time to time by the Company. In addition, the Executive shall be entitled to reasonable reimbursement for travel, according to the Company’s policy (which provides for coach class airfare and reimbursement for upgrades).

3.7 Indemnification and Directors and Officers Liability Insurance. The Executive shall be indemnified, and shall have his legal expenses in connection with regulatory or other legal proceedings advanced to him, by the Company in connection with his performance of services hereunder, if and as applicable, on terms and conditions no less favorable to the Executive than those that apply to any other senior executives of the Company. The Company shall cause the Executive to be covered by directors and officers liability insurance with such coverage to be no less favorable to him than the coverage then being provided to any other senior executive of the Company.

3.8 Limitations on Severance Payments.

(a) Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance Payments”), calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and the applicable regulations thereunder (or any successor provision) would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision), then the Severance Payments shall be reduced (but not below zero) so that the sum of all Severance Payments shall be $1.00 less than the amount at which Executive becomes subject to the excise tax imposed by Section 4999 of the Code (or any successor provision); provided that such reduction shall only occur if it would result in Executive receiving a higher After Tax Amount (as defined below) than Executive would receive if the Severance Payments were not subject to such reduction. In the event the Severance Payments are reduced pursuant to this Section 3.8(a), they shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Severance Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c). To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order.

(b) For purposes of Section 3.8(a), the “After Tax Amount” means the amount of the Severance Payments less all federal, state, and local income, excise and employment taxes imposed on Executive as a result of Executive’s receipt of the Severance Payments. For purposes of determining the After Tax Amount, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in each applicable state and locality, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

(c) The determination as to whether a reduction in the Severance Payments shall be made pursuant to Section 3.8(a) shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the date of termination, if applicable, or at such earlier time as is reasonably requested by the Company or Executive. Any determination by the Accounting Firm shall be binding upon the Company and Executive.

3.9 Timing of Expense Reimbursement. All in-kind benefits provided and expenses eligible for reimbursement under this Agreement must be provided by the Company or incurred by the Executive during the time periods set forth in the Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

4. Termination upon Death or Disability. If the Executive dies during the Term, the Term shall terminate as of the date of death, and the obligations of the Company under this Agreement to or with respect to the Executive shall terminate in their entirety upon such date except as otherwise provided under this Section 4. If the Executive becomes disabled by virtue of ill health or other disability and is unable to perform substantially and continuously the duties assigned to him for more than 180 consecutive or non-consecutive days out of any consecutive 12-month period in the reasonable opinion of a qualified physician chosen by the Company and reasonably acceptable to the Executive (the foregoing circumstance being referred to below as a “Disability”), the Company shall have the right, to the extent permitted by law, to terminate the employment of the Executive upon notice in writing to the Executive. Upon termination of employment due to death or Disability during the Term, (i) the Executive (or the Executive’s estate or beneficiaries in the case of the death of the Executive) shall be entitled to receive any Annual Salary, bonus and other benefits earned and accrued under this Agreement prior to the date of termination (and reimbursement under this Agreement for expenses incurred prior to the date of termination), (ii) the Executive (or the Executive’s estate or beneficiaries in the case of the death of the Executive) shall be entitled to receive (A) a cash payment equal to (I) the target bonus for the year of termination (or the prior year if a target bonus had not been set for such year as of the date of the termination) multiplied by (II) a fraction (x) the numerator of which is the number of days in the year up to the termination and (y) the denominator of which is 365, and (B) elimination of any exclusively time-based vesting conditions (but not performance conditions, which shall remain in effect subject to the terms thereof) on any restricted stock, LTIP Units in DCT Industrial Operating Partnership LP (“LTIP Units”), stock options and other equity awards; provided that, in the event of termination of employment due to Disability, the Executive will only be entitled to receive the payment and accelerated vesting set forth in this clause (ii) if the Executive resigns as a member of the Board and executes and delivers to the Company a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 4 or under Section 3.7, within twenty-one (21) days following such termination and such release becomes irrevocable at the earliest possible time under applicable law following such execution and delivery,

(iii) Section 3.7 shall apply in accordance with its terms and (iv) the Executive (or, in the case of his death, his estate and beneficiaries) shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder. By way of illustration (but not limitation) of the manner in which clause (ii)(B) of the preceding sentence operates, if the Executive were to hold an equity award with a five-year performance-based vesting condition, where the Executive would also need to remain employed during such period, and the Executive’s employment were to terminate in the fourth year of the vesting period due to his death or Disability, then, so long as the performance measures are met at the end of the five-year performance period, the Executive or his estate would be entitled to payments as though he had remained employed (and, if the performance measures are not met at the end of the five-year performance period, the award is thereupon forfeited). Any equity awards that, by their terms, would terminate or be forfeited as a result of a termination of employment shall remain in effect until the earlier of the date: (A) they vest as provided herein; (B) it is determined that they will not vest; or (C) they terminate based on their terms (excluding termination for lack of continued employment at Company); provided that no additional vesting, except as provided herein, shall occur solely as a result of the operation of this sentence.

Any payments that the Executive is entitled to receive pursuant to clause (i) of the third sentence of this Section 4 shall be made by the Company in a single lump sum no later than five (5) days after termination or on such earlier date as may be required by applicable law. Any payment or acceleration of vesting that the Executive is entitled to receive pursuant to clause (ii) of the third sentence of this Section 4 shall be made by the Company in a single lump sum or occur, respectively, upon the 45^th day after termination of employment due to death or Disability.

5. Certain Terminations of Employment.

5.1 Termination by the Company for Cause; Termination by the Executive without Good Reason.

(a) For purposes of this Agreement, “Cause” shall mean the Executive’s:

(i)

conviction of a felony (other than a traffic violation), a crime of moral turpitude, or any financial crime involving the Company; a willful act of dishonesty, breach of trust or unethical business conduct in connection with the business of the Company that has a material detrimental impact on the Company;

(ii)

commission of fraud, misappropriation or embezzlement against the Company; any act or omission in the performance of his duties hereunder that constitutes willful misconduct, willful neglect or gross neglect, in any such case if such action or omission is either material or repeated;

(iii)

repeated failure to use reasonable efforts in all material respects to adhere to the directions of the Board, or the Company’s policies and practices, after his being informed that he is not so adhering;

(iv)

willful failure to substantially perform his duties properly assigned to him (other than any such failure resulting from his Disability);

(v)

breach of any of the provisions of Section 6; or

(vi)

breach in any material respect of the terms and provisions of this Agreement and failure to cure such breach within ten days following written notice from the Company specifying such breach;

provided that the Company shall not be permitted to terminate the Executive for Cause except on written notice given to the Executive at any time following the occurrence of any of the events described in clause (i), (ii) or (v) above and on written notice given to the Executive at any time not more than 30 days following the occurrence of any of the events described in clause (iii), (iv) or (vi) above (or, if later, the Company’s knowledge thereof).

(b) The Company may terminate the Executive’s employment hereunder for Cause, and the Executive may terminate his employment hereunder for any or no reason on at least 30 days’ and not more than 60 days’ written notice given to the Company. If the Company terminates the Executive for Cause during the Term, or if the Executive terminates his employment during the Term and the termination by the Executive is not covered by Section 5.2, then (i) the Executive shall be entitled to receive any Annual Salary and other benefits earned and accrued under this Agreement prior to the date of termination of employment (and reimbursement under this Agreement for expenses incurred prior to the date of termination of employment); (ii) Section 3.7 shall apply in accordance with its terms; and (iii) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.

5.2 Termination by the Company without Cause; Termination by the Executive for Good Reason.

(a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to in writing by the Executive,

(i)

the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of duties materially inconsistent with the Executive’s position or positions with the Company, as specified in Section 2 or the change in the Executive’s title to any position other than Chief Executive Officer (or President and Chief Executive Officer); provided that it will be considered a material reduction in duties and responsibilities if after the date hereof there is a reorganization of the Company and a new holding company or parent is established thereover, which controls the Company, the Executive is not Chief Executive Officer (or President and Chief Executive Officer) of the new holding company or parent or his role with respect to the affiliated group as a whole is materially adversely affected;

(ii)

a reduction in the Annual Salary of the Executive, or a reduction in the target bonus or target value of annual equity awards applicable to the Executive (except for a material reduction in target bonus or target value of annual equity awards that is part of a Company program to reduce “general and administrative” expenses due to business conditions which reduction is applied to other senior officers generally; provided that such reduction is before the occurrence of a Change in Control (as defined below));

(iii)

the relocation of the Executive’s office to more than 30 miles from Denver, Colorado;

(iv)

failure to continue to elect the Executive as a member of the Board; or

(v)

any material breach by the Company of any provision of this Agreement.

Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless the Executive gives to the Company a written notice identifying the event or condition purportedly giving rise to Good Reason expressly referencing this Section 5.2(a) within 45 days after the time at which the event or condition first occurs or arises (or, if later, was discovered or should have been discovered by the Executive) and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to the following clause (ii)(A)) an event or condition that constitutes Good Reason, (A) the Company shall have 45 days from the date notice of Good Reason is given to cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than 10 days from the date of such notice of termination). If the 45 days noted in clause (ii)(A) above extends beyond the Term, then the Term for purposes of Section 5.2(b) shall be extended until the earlier of (i) the date on which the Company cures such event or condition or (ii) the first business day following the end of such 45-day period.

(b) The Company may terminate the Executive’s employment at any time for any reason or no reason upon notice to the Executive and the Executive may terminate the Executive’s employment with the Company for Good Reason upon notice to the Company. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, and such termination occurs either during the Term or within 18 months after a Change in Control (as defined in Section 5.3) that occurs at any time during or after the Term, (i) the Company shall pay to the Executive Annual Salary, bonus and other benefits earned and accrued under this

Agreement prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment); (ii) the Company shall pay or provide to the Executive (A) two times (or, in the event of a termination within 18 months after a Change in Control, three times) Annual Salary, (B) two times (or, in the event of a termination within 18 months after a Change in Control, three times) the greater of (x) the target bonus for the year of termination (or the prior year if a target bonus had not been set for such year as of the date of the termination) and (y) the average of the actual bonuses for the two years (with respect to which bonuses are determined) prior to the year of termination, (C) a cash payment equal to (I) the target bonus for the year of termination multiplied by (II) a fraction (x) the numerator of which is the number of days in the year up to the termination and (y) the denominator of which is 365 and (D) for a period of two years after termination of employment, such continuing coverage under the group health plans that the Executive would have received under this Agreement (and at such costs to the Executive as would have applied) in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) the Executive shall be entitled to elimination of any exclusively time-based vesting conditions (but not performance conditions, which shall remain in effect subject to the terms thereof) on any grant under the LTIP or any other grant of restricted stock, LTIP Units, stock options or other equity awards; (iv) Section 3.7 shall apply in accordance with its terms; and (v) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder; provided that the Executive will only be entitled to receive the payments, benefits and accelerated vesting set forth in clauses (ii) and (iii) if the Executive resigns as a member of the Board and executes and delivers to the Company a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 5.2(b) or under Section 3.7, within twenty-one (21) days following such termination and such release becomes irrevocable at the earliest possible time under applicable law following such execution and delivery. The payments under clause (i) of the second sentence of this Section 5.2(b) shall be made in a single lump sum no later than five business days after termination or on such earlier date as may be required by applicable law. Any payment or acceleration of vesting that the Executive is entitled to receive pursuant to clause (ii) or (iii) of the second sentence of this Section 5.2(b) shall be made by the Company in a single lump sum or occur, respectively, upon the 45^th day after termination. Additionally, any equity awards that, by their terms, would terminate or be forfeited as a result of a termination of employment shall remain in effect until the earlier of the date: (A) they vest as provided herein; (B) it is determined that they will not vest; or (C) they terminate based on their terms (excluding termination for lack of continued employment at Company); provided that no additional vesting, except as provided herein, shall occur solely as a result of the operation of this sentence.

(c) Notwithstanding clause (ii)(D) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(D) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(D) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).

5.3 Change in Control. Without duplication of the foregoing, upon a Change in Control (as defined below) at any time during or after the Term while the Executive is employed, then, without limiting the payments and benefits to which the Executive may be entitled under Section 5.2 in accordance with its terms (but without duplication thereof), all outstanding unvested grants under the LTIP or any other grant of restricted stock, LTIP Units, stock options or other equity awards subject to time-based vesting conditions (but not performance-based conditions, which shall remain in effect subject to the terms thereof) shall fully vest and shall become immediately exercisable, as applicable. For purposes of this Agreement, “Change in Control” shall mean the happening of any of the following:

(i)

any “person,” including a “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934 (the “Exchange Act”), but excluding the Company, any entity controlling, controlled by or under common control with the Company, any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any such entity, and the Executive and any “group” (as such term is used in Section 13(d)(3) of the Exchange Act) of which the Executive is a member), is or becomes the “beneficial owner” (as defined in Rule 13(d)(3) under the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of either (A) the combined voting power of the Company’s then outstanding securities or (B) the then outstanding shares of common stock of the Company (in either such case other than as a result of an acquisition of securities directly from the Company); or

(ii)

any consolidation or merger of the Company resulting in the voting securities of the Company outstanding immediately prior to the consolidation or merger representing (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) less than 50% of the combined voting power of the securities of the surviving entity or its parent outstanding immediately after such consolidation or merger; or

(iii)

there shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by “persons” (as defined above) in substantially the same proportion as their ownership of the Company immediately prior to such sale or (B) the approval by shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; or

(iv)

the members of the Board at the beginning of any consecutive 24-calendar-month period (the “Incumbent Directors”) cease for any reason other than due to death to constitute at least a majority of the members of the Board; provided that any director whose election, or nomination for election by the Company’s shareholders, was approved or ratified by a vote of at least a majority of the Incumbent Directors shall be deemed to be an Incumbent Director.

5.4 Retirement.

(a) For purposes of this Agreement, “Qualified Retirement” shall mean the Executive’s retirement effective as of the end of the Term or such later date as elected by Executive (the “Retirement Date”); provided that (i) the Executive provides written notice of such retirement (a “Retirement Notice”) to the Company at least 180 days prior to such Retirement Date, which notice constitutes the Executive’s voluntary termination of his employment with the Company (and, unless otherwise agreed by the Company and the Executive, resignation as a member of the Board) as of the Retirement Date, (ii) the Executive remains continuously employed by the Company through the Retirement Date, (iii) the Executive executes and delivers to the Company a general release in a form reasonably acceptable to the Company, which does not require the release of any rights under this Section 5.4 or under Section 3.7, within twenty-one (21) days following such termination and such release becomes irrevocable at the earliest possible time under applicable law following such execution and delivery and (iv) pursuant to the general release or otherwise, the Executive agrees with the Company to (A) promptly notify the Company if the Executive is actually employed or intends to be employed (or actually provides or intends to provide consulting services, other than services as a non-employee and non-executive member of the board of directors or trustees of a company or charitable organization) for more than 30 hours in any week from the Retirement Date through the second anniversary of the Retirement Date and (B) be subject to the restrictions set forth in Section 6.1(a) from the Retirement Date through the second anniversary of the Retirement Date notwithstanding anything to the contrary set forth in Section 6.1(a). If the Executive provides a Retirement Notice to the Company, but his employment with the Company is terminated prior to the Retirement Date, then such termination will not constitute a Qualified Retirement and will be treated in accordance with the applicable provisions of this Agreement other than Section 5.4.

(b) In the event of a Qualified Retirement, all equity awards (other than those equity awards, if any, that will only vest if performance conditions (other than just continued employment) are met as of a date after the Retirement Date (“Future Performance Equity Awards”)) granted on or prior to the Retirement Date to the Executive by the Company, the Partnership or any of their subsidiaries that have not vested on or prior to the Retirement Date (the “Unvested Equity Awards”) shall vest as follows: (i) all Unvested Equity Awards originally scheduled to vest within 45 days after the Retirement Date subject to continued employment with the Company through such date will vest on the 45^th day after the Retirement Date, (ii) all Unvested Equity Awards originally scheduled to vest more than 45 days but less than two years after the Retirement Date subject to continued employment with the Company through such date will vest on the dates they were originally scheduled to vest and (iii) all Unvested Equity Awards

originally scheduled to vest two years or more after the Retirement Date subject to continued employment with the Company through such date will vest on the second anniversary of the Retirement Date; provided that if the Executive either (x) is actually employed or actually provides consulting services, other than services as a non-employee and non-executive member of the board of directors or trustees of a company or charitable organization, for more than 30 hours during any week from the Retirement Date through the second anniversary of the Retirement Date or (y) breaches his agreement to remain subject to the restrictions set forth in Section 6.1(a) from the Retirement Date through the second anniversary of the Retirement Date, then, as of the last day of such week or the date of such breach, as applicable (the “Retirement Benefit Termination Date”), the Executive will forfeit all Unvested Equity Awards that had not vested on or before the Retirement Benefit Termination Date and none of the Unvested Equity Awards will vest on or after the Retirement Benefit Termination Date. In the event of a Qualified Retirement, the provisions of Section 5.3, which relate to acceleration of vesting upon a Change in Control, will continue to apply to all outstanding Unvested Equity Awards notwithstanding the termination of the Executive’s employment such that, for example, if a Change in Control occurs prior to the vesting of outstanding Unvested Equity Awards pursuant to this Section 5.4, then such outstanding Unvested Equity Awards will vest upon the Change in Control to the same extent as they would have pursuant to Section 5.3 if the Executive was still employed by the Company upon the date of such Change in Control. Additionally, any Unvested Equity Awards that, by their terms, would terminate or be forfeited as a result of a termination of employment shall remain in effect until the earlier of the date: (A) they vest as provided herein; (B) it is determined that they will not vest; or (C) they terminate based on their terms (excluding termination for lack of continued employment at Company); provided that no additional vesting, except as provided herein, shall occur solely as a result of the operation of this sentence. To the extent the Company, the Partnership or any of their subsidiaries reasonably determines that it is required to make tax withholding payments with respect to any of the Unvested Equity Awards as a result of the operation of this Section 5.4 in connection with the Executive’s retirement, such entity will satisfy the required minimum tax withholding obligation by withholding a portion of such Unvested Equity Awards with a Fair Market Value equal to such minimum tax withholding obligation as determined pursuant to Section 11 of the LTIP. In the event of a Qualified Retirement, any Future Performance Equity Awards granted to the Executive that are outstanding as of the Retirement Date will be treated in accordance with their terms or the terms of any future agreement governing such awards entered into by the Company and the Executive.

(c) In the event of a Qualified Retirement, the Executive shall also be entitled to receive a prorated annual cash bonus for the year in which the Retirement Date occurs (and the prior year to the extent the Executive’s annual cash bonus for such year had not been paid as of the Retirement Date) equal for each such year to (i) the amount of the annual cash bonus that the Executive would have been entitled to receive for such year if his employment had not terminated multiplied by (ii) a fraction (x) the numerator of which is the number of days in the year up to the Retirement Date (or, with respect to the year prior to the year in which the Retirement Date occurs, 365) and (y) the denominator of which is 365. Such prorated annual cash bonus shall be paid on the same date(s) it would have been paid if the Executive remained employed by the Company; provided that the Company will not be required to pay such prorated annual cash bonus if the Retirement Benefit Termination Date occurs prior to the scheduled payment date of such prorated bonus.

5.5 Section 409A.

(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any payments delayed pursuant to this Section 5.5(a) shall bear interest during the period of such delay at a rate of interest equal to the short-term applicable federal rate for annually compounding obligations for purposes of Section 1274(d) of the Code, or any successor provision, for the month in which such payment otherwise would have been paid.

(b) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

(c) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A 1(h).

(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.

6. Covenants of the Executive.

6.1 Covenant Against Competition; Other Covenants. The Executive acknowledges that (i) the principal business of the Company (which, for purposes of this Section 6 (and any related enforcement provisions hereof), expressly includes its successors and

assigns), is any commercial activity comprising any one or more of the ownership, acquisition, development or management of industrial real estate (the “Business”); (ii) the Company is one of the limited number of persons who have developed such a business; (iii) the Company’s Business is currently national in scope within the United States; (iv) the Executive’s work for the Company will give him access to the confidential affairs and proprietary information of the Company; (v) the covenants and agreements of the Executive contained in this Section 6 are essential to the business and goodwill of the Company; and (vi) the Company would not have entered into this Agreement but for the covenants and agreements set forth in this Section 6. Accordingly, the Executive covenants and agrees that:

(a) By and in consideration of the salary and benefits to be provided by the Company hereunder, including the severance arrangements set forth herein, and further in consideration of the Executive’s exposure to the proprietary information of the Company, the Executive covenants and agrees that, during the period commencing on the date hereof and (except as provided below) ending one year following the date upon which the Executive shall cease to be an employee of the Company and its Controlled Affiliates (as defined below), he shall not in the United States, or, if and to the extent that the Business is Actively Conducted (as defined below) outside of the United States, in the applicable non-U.S. locations, directly or indirectly, (i) engage in any element of the Business (other than for the Company or its Controlled Affiliates), (ii) render any services to any person, corporation, partnership or other entity (other than the Company or its Controlled Affiliates) engaged in any element of the Business, or (iii) become interested in any such person, corporation, partnership or other entity (other than the Company or its Controlled Affiliates) as a partner, member, manager, shareholder, principal, agent, employee, trustee, consultant or any person engaged in the Business, or in any other relationship or capacity; provided, however, that, notwithstanding the foregoing, the Executive may own or acquire or otherwise invest in, directly or indirectly, securities of any entity, solely for investment purposes and without participating in the business thereof, if (A) such securities are traded on any national securities exchange or in the over-the-counter market, (B) the Executive is not a controlling person of, or a member of a group which controls, such entity and (C) the Executive does not, directly or indirectly, own 5% or more of any class of securities of such entity; and provided that the foregoing provisions of this Section 6.1(a) shall not prevent the Executive from rendering services to any person, corporation, partnership or other entity engaged in any element of the Business (a “Permitted Party”), or from otherwise becoming interested in a Permitted Party if (x) the Permitted Party and its affiliates, taken together, are not a significant competitor of the Company and no element of the Business is a Material (as defined below) part of the business of the Permitted Party and its affiliates, taken together, and (y) the Executive has no services-related or investment-related role or interest in or otherwise with regard to any portion of the business of the Permitted Party and its affiliates that competes with the Company. “Material” for purposes of the immediately preceding sentence means that the total assets of the Permitted Party and its affiliates that comprise the Business constitute 20% or more of the total assets of the Permitted Party and its affiliates. “Actively Conducted” shall mean that the Company actually owns or manages industrial real estate in the specified location, or has entered into a binding agreement, or a letter of intent, a term sheet, an agreement in principle, or any similar non-binding agreement (which non-binding agreement has not been terminated or expired of its own terms), to purchase or manage industrial real estate in the specified location. “Controlled Affiliates” shall mean any and all entities that the Company directly or indirectly controls; provided that, if after the date hereof there is a reorganization of

the Company and a new holding company is established thereover, which controls the Company, then “Controlled Affiliates” shall also include such holding company and any affiliates that are controlled by the new parent. Notwithstanding the foregoing, if either (i) employment terminates upon or after the scheduled expiration of the Term (without any early termination under Section 4 or 5), other than in connection with a Qualified Retirement or (ii) employment terminates following a Change in Control and Section 5.2(b) applies, then the restrictions of this Section 6.1(a) shall not extend beyond the date of termination of employment.

(b) During and after the Term, subject to the provisions of Section 7.14, the Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its Controlled Affiliates, all confidential matters relating to the Company’s Business and the business of any of its Controlled Affiliates and to the Company and any of its Controlled Affiliates, learned by the Executive heretofore or hereafter directly or indirectly from the Company or any of its Controlled Affiliates, including, without limitation, information with respect to (i) sources and non-public methods of raising capital, (ii) non-public information related to joint ventures, institutional funds and the partners or other investors therein, and (iii) any other material, non-public information (the “Confidential Company Information”); and shall not disclose such Confidential Company Information to anyone outside of the Company except (w) with the Company’s express written consent, (x) Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement, (y) as required by law or legal process (provided that the Executive shall give the Company reasonable prior written notice of disclosure under this clause (y)), and (z) for disclosures to counsel in the context of seeking legal advice where counsel agrees, for the benefit of the Company, to be bound by the restrictions of this sentence.

(c) From the date hereof through the end of the one-year period commencing with the Executive’s termination of employment, the Executive shall not, without the Company’s prior written consent, directly or indirectly, (i) solicit or encourage to leave the employment or other service of the Company, or any of its Controlled Affiliates, any employee, or independent contractor of the Company where the independent contractor performs (or in the prior year has performed) a substantial portion of his services for the Company, or (ii) hire (on behalf of the Executive or any other person or entity) any employee or independent contractor of the Company, where the independent contractor performs (or in the last year of service to the Company has performed) a substantial portion of his services for the Company, who has left the employment or other service of the Company or any of its Controlled Affiliates within the one-year period which follows the termination of such employee’s or independent contractor’s employment or other service with the Company and its Controlled Affiliates. From the date hereof through the end of the one-year period commencing with the Executive’s termination of employment with the Company, the Executive will not, whether for his own account or for the account of any other person, firm, corporation or other business organization, intentionally interfere with the Company’s or any of its Controlled Affiliates’ relationship with, or endeavor to entice away from the Company or any of its Controlled Affiliates, any person who during the Term is or was a tenant, co-investor, co-developer, joint venturer or other customer of the Company or any of its Controlled Affiliates. While the Executive’s non-compete obligations

under Section 6.1(a) are in effect (or would have been in effect if not for clause (ii) of the last sentence of Section 6.1(a)), subject to the provisions of Section 7.14, the Executive shall not publish any statement or make any statement under circumstances reasonably likely to become public that is critical of the Company or any of its Controlled Affiliates, or in any way adversely affecting or otherwise maligning the Business or reputation of the Company or any of its Controlled Affiliates (provided that nothing in this sentence is intended to prevent the Executive from including in his pleadings or from his testimony any truthful matter to the extent necessary to defend against any claim by the Company or a third party against the Executive, or to prosecute any claim against the Company for a breach of this Agreement).

(d) All memoranda, notes, lists, records, property and any other tangible product and documents (and all copies thereof), whether visually perceptible, machine-readable or otherwise, made, produced or compiled by the Executive or made available to the Executive concerning the business of the Company or its Controlled Affiliates, (i) shall at all times be the property of the Company (and, as applicable, any Controlled Affiliates) and shall be delivered to the Company at any time upon its request, and (ii) upon the Executive’s termination of employment, shall be immediately returned to the Company.

(e) During and after the Executive’s employment, the Executive shall cooperate reasonably with the Company in the defense or assertion of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive was employed by the Company, other than any such claims or actions which may be brought in the future against the Company by the Executive. The Executive’s cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Executive’s employment, the Executive also shall cooperate reasonably with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Executive was employed by the Company. The Company shall not utilize this Section 6.1(e) to require the Executive to make himself available to an extent that would unreasonably interfere with full-time employment responsibilities that the Executive may have. The Company shall reimburse the Executive for any pre-approved reasonable out of pocket expenses incurred in connection with the Executive’s performance of obligations pursuant to this Section 6.1(e) within ten business days after receipt of appropriate documentation consistent with the Company’s business expense reimbursement policy. In addition, for all time that the Executive reasonably expends at the request of the Company in cooperating with the Company or any of its affiliates pursuant to this Section 6.1(e) where the Executive is no longer employed by the Company, the Company shall compensate the Executive at a per hour rate equal to the sum of (A) Annual Salary in the Executive’s last fiscal year of employment during the Term plus (B) the Executive’s actual annual cash bonus for the last fiscal year of employment during the Term for which such a bonus was determined, divided by 2,000; provided that the Executive’s right to such compensation shall not apply to time spent in activities that could have been compelled pursuant to a subpoena, including testimony and related attendance at depositions, hearings or trials. All such compensation will be paid on a monthly, or, at the option of the Company, more frequent basis, within ten business days after receipt of a detailed invoice, in a form reasonably satisfactory to the Company, documenting the time spent by the Executive cooperating with the Company.

6.2 Rights and Remedies upon Breach. The Executive acknowledges and agrees that any breach by him of any of the provisions of Section 6.1 (the “Restrictive Covenants”) would result in irreparable injury and damage for which money damages would not provide an adequate remedy. Therefore, if the Executive breaches, or threatens to commit a breach of, any of the provisions of Section 6.1, the Company and its Controlled Affiliates shall have, in addition to, and not in lieu of, any other rights and remedies available to the Company and its Controlled Affiliates under law or in equity (including, without limitation, the recovery of damages), the right and remedy to have the Restrictive Covenants specifically enforced (without posting bond and without the need to prove damages) by any court having equity jurisdiction, including, without limitation, the right to an entry against the Executive of restraining orders and injunctions (preliminary, mandatory, temporary and permanent) against violations, threatened or actual, and whether or not then continuing, of such covenants.

6.3 Certain Colorado Matters. The Executive acknowledges the following provisions of Colorado law, set forth in Colorado Revised Statutes Section 8-2-113(2):

Any covenant not to compete which restricts the right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, but this subsection (2) shall not apply to:

(a) Any contract for the purchase and sale of a business or the assets of a business;

(b) Any contract for the protection of trade secrets;

(c) Any contract provision providing for the recovery of the expense of educating and training an employee who has served an employer for a period of less than two years;

(d) Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel.

The Executive acknowledges that this Agreement is executed for the protection of trade secrets under Section 8-2-113(2)(b), and is intended to protect the confidential information and trade secrets of the Company. The Executive also acknowledges that he is “executive [or] management personnel” within the meaning of Section 8-2-113(2)(d).

7. Other Provisions.

7.1 Severability. The Executive acknowledges and agrees that (i) he has had an opportunity to seek advice of counsel in connection with this Agreement and (ii) the Restrictive Covenants are reasonable in geographical and temporal scope and in all other respects. If it is determined that any of the provisions of this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the provisions of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions.

7.2 Duration and Scope of Covenants. If any court or other decision-maker of competent jurisdiction determines that any of the Executive’s covenants contained in this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or geographical scope of such provision, then, after such determination has become final and unappealable, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.

7.3 Enforceability; Jurisdiction; Arbitration.

(a) The Company and the Executive intend to and hereby confer jurisdiction to enforce the Restrictive Covenants set forth in Section 6 upon the courts of any jurisdiction within the geographical scope of the Restrictive Covenants.

(b) Any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement (other than a controversy or claim arising under Section 6, to the extent necessary for the Company (or its Controlled Affiliates, where applicable) to avail itself of the rights and remedies referred to in Section 6.2) that is not resolved by the Executive and the Company (or its Controlled Affiliates, where applicable) shall be submitted to arbitration in Denver, Colorado in accordance with Colorado law and the procedures of the American Arbitration Association before a single arbitrator. The determination of the arbitrator shall be conclusive and binding on the Company (or its Controlled Affiliates, where applicable) and the Executive and judgment may be entered on the arbitrator’s award in any court having jurisdiction. The Company shall bear one-half of the costs of any arbitration and the Executive, as the other party to the arbitration, shall bear the other half; each party will bear its own attorney’s fees and costs, except as prohibited by law. To the extent any of the foregoing cost-splitting or other provisions are found not to comply with then-applicable law, the arbitrator shall reform this Agreement such that it is enforceable and consistent with then-applicable decisional or statutory law.

7.4 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally, telegraphed, telexed or sent by facsimile transmission or, if mailed, five days after the date of deposit in the United States mails as follows:


If to the Company, to:		DCT Industrial Trust Inc.
		518 17^th Street, Suite 800
		Denver, Colorado 80202
		Attention: Chairman
		Facsimile: (303) 228-2201

with a copy to:		Goodwin Procter LLP
		53 State Street
		Boston, MA 02109
		Attention: Daniel P. Adams
		Facsimile: (617) 523-1231

If to the Executive, to:		Philip L. Hawkins
		at the address set forth on the signature page hereof

Any such person may by notice given in accordance with this Section 7.4 to the other parties hereto designate another address or person for receipt by such person of notices hereunder.

7.5 Entire Agreement. This Agreement contains the entire agreement of the parties regarding the subject matter hereof and supersedes all prior agreements, understandings and negotiations regarding the same. For the avoidance of doubt, the Prior Employment Agreement is hereby superseded including, but not limited to, Section 7.12 thereto.

7.6 Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.

7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW WHICH COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF COLORADO.

7.8 Assignment. This Agreement, and the Executive’s rights and obligations hereunder, may not be assigned by the Executive; any purported assignment by the Executive in violation hereof shall be null and void. This Agreement, and the Company’s rights and obligations hereunder, may not be assigned by the Company; any purported assignment by the Company in violation hereof shall be null and void. Notwithstanding the foregoing, (i) in the event of any sale, transfer or other disposition of all or substantially all of the Company’s assets or business, whether by merger, consolidation or otherwise, the Company may assign this Agreement and its rights hereunder, and (ii) the Company may assign the Agreement to its Controlled Affiliates so long as the Executive’s title is not reduced and the Executive’s role in respect of the affiliated group taken as a whole is not materially adversely affected.

7.9 Withholding. The Company shall be entitled to withhold from any payments or deemed payments any amount of tax withholding it determines to be required by law.

7.10 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, heirs, executors and legal representatives.

7.11 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument. Each counterpart may consist of two copies hereof each signed by one of the parties hereto.

7.12 Survival. Anything contained in this Agreement to the contrary notwithstanding, the provisions of Sections 4, 5, 6, 7.3, and 7.9, and the other provisions of this Section 7 (to the extent necessary to effectuate the survival of Sections 4, 5, 6, 7.3, and 7.9), shall survive termination of this Agreement and any termination of the Executive’s employment hereunder.

7.13 Existing Agreements. The Executive represents to the Company that he is not subject or a party to any employment or consulting agreement, non-competition covenant or other agreement, covenant or understanding which might prohibit him from executing this Agreement or limit his ability to fulfill his responsibilities hereunder.

7.14 Compliance with Whistleblower Rules. Nothing in this Agreement shall be interpreted or applied to prohibit the Executive from making any good faith report to any governmental agency or other governmental entity concerning any acts or omissions that the Executive may believe to constitute a possible violation of federal or state law or making other disclosures that are protected under the whistleblower provisions of applicable federal or state law or regulation.

7.15 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year first above written.


COMPANY:

DCT INDUSTRIAL TRUST INC.

By:		/s/ John G. Spiegleman
Name:		John G. Spiegleman
Title:		Executive Vice President and General Counsel

EXECUTIVE:

/s/ Philip L. Hawkins
Philip L. Hawkins

Exhibit 10.2

DCT INDUSTRIAL TRUST INC.

EXECUTIVE CHANGE IN CONTROL AND SEVERANCE PLAN

1. Adoption of Plan; Covered Executives. The Board of Directors (the “Board”) of DCT Industrial Trust Inc., with its principal place of business at 518 17^th Street, Suite 800, Denver, Colorado 80202 (the “Company”), has determined that this Executive Change in Control and Severance Plan (this “Plan”) should be adopted. The executives and officers of the Company covered by this Plan (each such executive or officer a “Covered Executive” and collectively, the “Covered Executives”) will be those executives and officers selected by the Company, in its sole discretion, who have entered into the letter agreement provided to the Covered Executive by the Company in the form attached hereto as Exhibit I (the “Letter Agreement”). Nothing in this Plan shall be construed as creating an express or implied contract of employment and, except as otherwise agreed in writing between the Company and the Covered Executive, the Covered Executive shall not have any right to be retained in the employ of the Company.

2. Definitions. The following terms shall be defined as set forth below:

(a) “Accrued Benefit” shall mean any earned but unpaid Base Salary, unpaid expense reimbursements, accrued but unused vacation and any vested benefits the Covered Executive may be entitled to under any employee benefit plan of the Company.

(b) “Average Bonus” shall mean the average of the annual cash bonuses, if any, for the two years (with respect to which bonuses are determined) prior to the year of termination.

(c) “Base Salary” shall mean the annual base salary rate in effect immediately prior to a Qualified Termination, without giving effect to any decrease in such Base Salary occurring within 90 days of such date that would provide the Covered Executive with the right to resign for Good Reason.

(d) “Cause” shall mean the Covered Executive’s:

(i) conviction of a felony (other than a traffic violation), a crime of moral turpitude, or any financial crime involving the Company; a willful act of dishonesty, breach of trust or unethical business conduct in connection with the business of the Company that has a material detrimental impact on the Company;

(ii) the commission of fraud, misappropriation or embezzlement against the Company; any act or omission in the performance of his duties hereunder that constitutes willful misconduct, willful neglect or gross neglect, in any such case if such action or omission is either material or repeated;

(iii) repeated failure to use reasonable efforts in all material respects to adhere to the directions of the Board or the Chief Executive Officer, or the Company’s policies and practices, after his being informed that he is not so adhering; and

(iv) willful failure to substantially perform his duties properly assigned to him (other than any such failure resulting from his Disability);

provided that the Company shall not be permitted to terminate the Covered Executive for Cause except on written notice given to the Covered Executive at any time following the occurrence of any of the events described in clause (i) or (ii) above and on written notice given to the Covered Executive at any time not more than 30 days following the occurrence of any of the events described in clause (iii) or (iv) above (or, if later, the Company’s knowledge thereof).

(e) “Change in Control” shall mean the happening of any of the following:

(i) any “person,” including a “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934 (the “Exchange Act”), but excluding the Company, any entity controlling, controlled by or under common control with the Company, any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any such entity, and the Covered Executive and any “group” (as such term is used in Section 13(d)(3) of the Exchange Act) of which the Covered Executive is a member), is or becomes the “beneficial owner” (as defined in Rule 13(d)(3) under the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of either (A) the combined voting power of the Company’s then outstanding securities or (B) the then outstanding shares of common stock of the Company (in either such case other than as a result of an acquisition of securities directly from the Company); or

(ii) any consolidation or merger of the Company resulting in the voting securities of the Company outstanding immediately prior to the consolidation or merger representing (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) less than 50% of the combined voting power of the securities of the surviving entity or its parent outstanding immediately after such consolidation or merger; or

(iii) there shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by “persons” (as defined above) in substantially the same proportion as their ownership of the Company immediately prior to such sale or (B) the approval by shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; or

(iv) the members of the Board at the beginning of any consecutive 24-calendar-month period (the “Incumbent Directors”) cease for any reason other than due to death to constitute at least a majority of the members of the Board; provided that any director whose election, or nomination for election by the Company’s shareholders, was approved or ratified by a vote of at least a majority of the Incumbent Directors shall be deemed to be an Incumbent Director.

(f) “Code” shall mean the Internal Revenue Code of 1986, as amended.

(g) “Covered Executive” shall have the meaning set forth in Section 1 hereof. As of the adoption of this Plan the Covered Executives shall include the President, Chief Financial Officer, General Counsel, all Managing Directors and all Executive Vice Presidents.

(h) “Disability” shall mean the circumstance whereby the Covered Executive becomes disabled by virtue of ill health or other disability and is unable to perform substantially and continuously the duties assigned to him for more than 180 consecutive or non-consecutive days out of any consecutive 12-month period in the reasonable opinion of a qualified physician chosen by the Company and reasonably acceptable to the Covered Executive.

(i) “Good Reason” shall mean, unless otherwise consented to in writing by the Covered Executive:

(i) the material reduction of the Covered Executive’s authority, duties and responsibilities, or the assignment to the Covered Executive of duties materially inconsistent with the Covered Executive’s position or positions with the Company;

(ii) a reduction in the Covered Executive’s Base Salary, or a reduction in the Target Bonus or target annual equity award applicable to the Covered Executive (except for a material reduction in Target Bonus or target annual equity award that is part of a Company program to reduce “general and administrative” expenses due to business conditions which reduction is applied to other senior officers generally; provided that such reduction is before the occurrence of a Change in Control);

(iii) the relocation of the Covered Executive’s office by more than 30 miles; or

(iv) any material breach by the Company of any provision of this Plan.

Notwithstanding the foregoing, (x) Good Reason (A) shall not be deemed to exist unless the Covered Executive gives to the Company a written notice identifying the event or condition purportedly giving rise to Good Reason expressly referencing this Plan within 45 days after the time at which the event or condition first occurs or arises (or, if later, was discovered or should have been discovered by the Covered Executive) and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Covered Executive’s employment for Cause; and (y) if there exists (without regard to the following clause (A)) an event or condition that constitutes Good Reason, (A) the Company shall have 45 days from the date notice of Good Reason is given to cure such event or condition and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Covered Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than ten days from the date of such notice of termination).

(j) “Pro-Rata Bonus” shall mean the Covered Executive’s Target Bonus for the year of termination multiplied by a fraction (x) the number of which is the number of days in the calendar year up to the Date of Termination and (y) the denominator of which is 365.

(k) “Qualified Termination” shall mean any of the following events: (i) termination by the Company of the employment of the Covered Executive for any reason other than for Cause, death or Disability; or (ii) termination by the Covered Executive for Good Reason. Notwithstanding the foregoing, a Qualified Termination shall not be deemed to have occurred herein solely as a result of the Covered Executive being an employee of any direct or indirect successor to the business or assets of the Company.

(l) “Target Bonus” shall mean the Covered Executive’s target annual cash bonus as determined by the Company for the year of termination (or prior year, if a target has not yet been set for the year of termination).

3. Termination Benefits.

(a) Death. If a Covered Executive dies while being covered under this Plan, the Company shall pay or provide to the Covered Executive’s estate or beneficiaries his Accrued Benefit and Pro-Rata Bonus. Such payment shall be made within the time required by law but in no event more than 30 days after the Covered Executive’s death. Any equity awards with time-based vesting held by the Covered Executive at the time of death shall become fully vested and nonforfeitable, and any equity awards with performance-based vesting shall remain outstanding and shall be earned in accordance with their terms based on performance, but without any further vesting based on service.

(b) Disability. If a Covered Executive’s employment is terminated on account of Disability while being covered under this Plan, the Company shall pay or provide to the Covered Executive his Accrued Benefit within the time required by law but in no event more than 30 days after the Covered Executive’s Date of Termination. In addition, in such event, subject to the Covered Executive executing and delivering to the Company a separation agreement containing, among other provisions, a general release of claims in favor of the Company which does not require the release of any payment rights under this Plan or any rights to indemnification under the Company’s indemnification policy, confidentiality, return of property, non-disparagement and cooperation provisions (the “Separation Agreement and Release”), and the expiration of any revocation period with respect to such Separation Agreement and Release no later than 28 days following the Covered Executive’s Date of Termination, (i) the Covered Executive shall be entitled to receive his Pro-Rata Bonus on the 30^th day after his Date of Termination; and (ii) on the 30^th day following the Date of Termination, any equity awards with time-based vesting held by the Covered Executive at the time of his termination of employment shall become fully vested and nonforfeitable, and any equity awards with performance-based vesting shall remain outstanding and shall be earned in accordance with their terms based on performance, but without any further vesting based on service. Subject to the Covered Executive’s execution of the Separation Agreement and Release and the expiration of the related revocation period, any termination or forfeiture of unvested equity awards eligible for acceleration of vesting pursuant to this

Section 3(b) that otherwise would have occurred on or within 30 days after the Covered Executive’s Date of Termination will be delayed until the 30^th day after the Covered Executive’s Date of Termination (but, in the case of any stock option, not later than the expiration date of such stock option specified in the option agreement with the Covered Executive) and will occur only to the extent such equity awards do not vest pursuant to this Section 3(b).

(c) Qualified Termination Not Related to a Change in Control. If a Qualified Termination occurs with respect to a Covered Executive while this Plan remains in effect, the Company shall pay or provide to the Covered Executive his Accrued Benefit within the time required by law but in no event more than 30 days after the Covered Executive’s Date of Termination. In addition, in such event, subject to the execution and delivery to the Company of a Separation Agreement and Release by the Covered Executive and the expiration of any revocation period with respect to such Separation Agreement and Release no later than 28 days following the Covered Executive’s Date of Termination, the Covered Executive shall be entitled to the following payments and benefits:

(i) the sum of his Base Salary and the greater of (x) his Target Bonus or (y) his Average Bonus;

(ii) his Pro-Rata Bonus;

(iii) continuing coverage under the Company’s group medical, dental and vision plans as would have applied (and at such cost to the Covered Executive as would have applied in the absence of such termination) if the Covered Executive remained employed by the Company for a period equal to the earlier of 24 months following the Covered Executive’s Date of Termination or the date the Covered Executive becomes eligible to be covered under another employer group health plan; and

(iv) notwithstanding the vesting schedule otherwise applicable, (1) the Covered Executive shall become vested in all of the Covered Executive’s time-based equity awards as if his employment had continued for an additional 24 months, and (2) any accelerated vesting of the Covered Executive’s performance-based equity awards shall occur in accordance with the terms of the applicable award agreement.

Subject, to the extent applicable, to the six-month delay described in Section 10(a), below, (x) the amounts payable under Section 3(c)(i) and (ii) above shall be paid in a lump sum upon the 30^th day after the Date of Termination; and (y) notwithstanding the terms of the existing award agreements otherwise applicable, accelerated vesting described in Section 3(c)(iv) above will occur on the 30^th day after the Covered Executive’s Date of Termination. Subject to the Covered Executive’s execution of the Separation Agreement and Release and the expiration of the related revocation period, any termination or forfeiture of unvested equity awards eligible for acceleration of vesting pursuant to Section 3(c)(iv) above that otherwise would have occurred on or within 30 days after the Covered Executive’s Date of Termination will be delayed until the 30^th day after the Covered Executive’s Date of Termination (but, in the case of any stock option, not later than the expiration date of such stock option specified in the option agreement with the Covered Executive) and will occur only to the extent such equity awards do not vest pursuant to Section 3(c)(iv) above.

(d) Qualified Termination in Connection with a Change in Control. Notwithstanding the foregoing, if a Qualified Termination occurs with respect to a Covered Executive in connection with or within 12 months following a Change in Control while this Plan remains in effect, subject to Section 16, the Company shall pay or provide to the Covered Executive his Accrued Benefit within the time required by law but in no event more than 30 days after the Covered Executive’s Date of Termination. In addition, in such event, subject to the execution and delivery to the Company of a Separation Agreement and Release by the Covered Executive and the expiration of any revocation period with respect to such Separation Agreement and Release no later than 52 days following the Covered Executive’s Date of Termination, the Covered Executive shall be entitled to receive the following payments and benefits in lieu of any amounts payable under Section 3(c):

(i) two times the sum of his Base Salary and the greater of (x) his Target Bonus or (y) his Average Bonus;

(ii) his Pro-Rata Bonus; and

Subject, to the extent applicable, to the six-month delay described in Section 10(a) below, the amounts payable under Section 3(d)(i) and (ii) shall be paid in a lump sum on the 52^nd day after the Date of Termination.

(e) Change in Control. Without duplication of the foregoing, upon a Change in Control at any time while the Covered Executive remains a Covered Executive under this Plan, then, without limiting the payments and benefits to which the Covered Executive may be entitled under Section 3(d) in accordance with the terms (but without duplication thereof), all outstanding unvested equity awards subject to time-based vesting conditions (but not performance-based conditions, which shall remain in effect subject to the terms thereof) shall fully vest and shall become immediately fully vested and nonforfeitable.

(f) Notwithstanding anything herein, if the Covered Executive breaches any of the provisions of the Restrictive Covenants set forth in this Plan, all payments and benefits described in this Section 3 shall immediately cease and the Company shall have the right to terminate or recoup the payments and benefits previously provided pursuant to this Section 3.

4. Additional Limitation.

(a) Anything in this Plan to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Company or its affiliates to or for the benefit of a

Covered Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Plan or otherwise (the “Compensatory Payments”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision), then the Covered Executive’s Compensatory Payments shall be reduced (but not below zero) so that the sum of all of the Covered Executive’s Compensatory Payments shall be $1.00 less than the amount at which the Covered Executive becomes subject to the excise tax imposed by Section 4999 of the Code (or any successor provision); provided that such reduction shall only occur if it would result in the Covered Executive receiving a higher After Tax Amount (as defined below) than the Covered Executive would receive if the Compensatory Payments were not subject to such reduction. In such event, the Covered Executive’s Compensatory Payments shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order.

(b) For purposes of this Section 4, the “After Tax Amount” means the amount of the Covered Executive’s Compensatory Payments less all federal, state, and local income, excise and employment taxes imposed on the Covered Executive as a result of the Covered Executive’s receipt of such Compensatory Payments. For purposes of determining the After Tax Amount, each Covered Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Covered Executive’s residence on the Qualified Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

(c) The determination as to whether a reduction in a Covered Executive’s Compensatory Payments shall be made pursuant to Section 4(a) shall apply to the Covered Executive shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Covered Executive within 15 business days of the Qualified Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Covered Executive. Any determination by the Accounting Firm shall be binding upon the Company and the Covered Executive.

5. Restrictive Covenants. Through acceptance of the Letter Agreement, each Covered Executive acknowledges that (i) the principal business of the Company (which, for purposes of this Section 5 (and any related enforcement provisions hereof), expressly includes its successors and assigns), is any commercial activity comprising any one or more of the ownership, acquisition, development or management of industrial real estate (the “Business”); (ii) the Company is one of the limited number of persons who have developed such a business; (iii) the Company’s Business is currently national in scope within the United States; (iv) the Covered Executive’s work for the Company will give him access to the confidential affairs and proprietary information of the Company; (v) the covenants and agreements of the Covered Executive contained in this Section 5 are essential to the business and goodwill of the Company; and (vi) the Company would not have extended the benefits of this Plan to the Covered Executive but for the covenants and agreements set forth in this Section 5. Accordingly, by entering into the Letter Agreement, the Covered Executive covenants and agrees that:

(a) While employed by the Company, the Covered Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its Controlled Affiliates, all confidential matters relating to the Company’s Business and the business of any of its Controlled Affiliates and to the Company and any of its Controlled Affiliates, learned by the Covered Executive heretofore or hereafter directly or indirectly from the Company or any of its Controlled Affiliates, including, without limitation, information with respect to (i) sources and non-public methods of raising capital, (ii) non-public information related to joint ventures, institutional funds and the partners or other investors therein, and (iii) any other material, non-public information (the “Confidential Company Information”); and shall not disclose such Confidential Company Information to anyone outside of the Company except (w) with the Company’s express written consent, (x) Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Covered Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement, (y) as required by law or legal process (provided that the Covered Executive shall give the Company reasonable prior written notice of disclosure under this clause (y)), and (z) for disclosures to counsel in the context of seeking legal advice where counsel agrees, for the benefit of the Company, to be bound by the restrictions of this sentence.

(b) During the Covered Executive’s employment and through the end of the one-year period commencing with the Covered Executive’s Date of Termination, the Covered Executive shall not, without the Company’s prior written consent, directly or indirectly (i) solicit or encourage to leave the employment or other service of the Company, or any of its Controlled Affiliates, any employee or independent contractor of the Company where the independent contractor performs (or in the prior year has performed) a substantial portion of his services for the Company; (ii) hire (on behalf of the Covered Executive or any other person or entity) any employee or independent contractor of the Company, where the independent contractor performs (or in the last year of service to the Company has performed) a substantial portion of his services for the Company, who has left the employment or other service of the Company or any of its Controlled Affiliates within the one-year period which follows the termination of such employee’s or independent contractor’s employment or other service with the Company and its Controlled Affiliates; (iii) intentionally interfere with the Company’s or any of its Controlled Affiliates’ relationship with, or endeavor to entice away from the Company or any of its Controlled Affiliates, any person who during the Covered Executive’s employment with the Company is or was a tenant, co-investor, co-developer, joint venturer or other customer of the Company or any of its Controlled Affiliates; or (iv) publish any statement or make any statement under circumstances reasonably likely to become public that is critical of the Company or any of its Controlled Affiliates, or in any way adversely affecting or otherwise maligning the Business or reputation of the Company or any of its Controlled Affiliates (provided that nothing in this sentence is intended to prevent the Covered Executive from including in his pleadings or from his testimony any truthful matter to the extent necessary to defend against any claim by the Company or a third party against the Covered Executive, or to prosecute any claim against the Company for a breach of this Agreement).

(c) All memoranda, notes, lists, records, property and any other tangible product and documents (and all copies thereof), whether visually perceptible, machine-readable or otherwise, made, produced or compiled by the Covered Executive or made available to the Covered Executive concerning the business of the Company or its Controlled Affiliates, (i) shall at all times be the property of the Company (and, as applicable, any Controlled Affiliates) and shall be delivered to the Company at any time upon its request, and (ii) upon the Covered Executive’s termination of employment, shall be immediately returned to the Company.

(d) During and after the Covered Executive’s employment, the Covered Executive shall cooperate reasonably with the Company in the defense or assertion of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Covered Executive was employed by the Company, other than any such claims or actions which may be brought in the future against the Company by the Covered Executive. The Covered Executive’s cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Covered Executive’s employment, the Covered Executive also shall cooperate reasonably with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Covered Executive was employed by the Company. The Company shall not utilize this Section 5(d) to require the Covered Executive to make himself available to an extent that would unreasonably interfere with full-time employment responsibilities that the Covered Executive may have. The Company shall reimburse the Covered Executive for any pre-approved reasonable out of pocket expenses incurred in connection with the Covered Executive’s performance of obligations pursuant to this Section 5(d) within ten business days after receipt of appropriate documentation consistent with the Company’s business expense reimbursement policy. In addition, for all time that the Covered Executive reasonably expends at the request of the Company in cooperating with the Company or any of its affiliates pursuant to this Section 5(d) where the Covered Executive is no longer employed by the Company, the Company shall compensate the Covered Executive at a per hour rate equal to the sum of (A) Annual Salary in the Covered Executive’s last fiscal year of employment plus (B) the Covered Executive’s Target Bonus for the last fiscal year of employment for which such a bonus was determined, divided by 2,000; provided that the Covered Executive’s right to such compensation shall not apply to time spent in activities that could have been compelled pursuant to a subpoena, including testimony and related attendance at depositions, hearings or trials. All such compensation will be paid on a monthly, or, at the option of the Company, more frequent basis, within ten business days after receipt of a detailed invoice, in a form reasonably satisfactory to the Company, documenting the time spent by the Covered Executive cooperating with the Company.

6. Rights and Remedies upon Breach. The Covered Executive acknowledges and agrees that any breach by him of any of the provisions of Section 5 (the “Restrictive Covenants”) would result in irreparable injury and damage for which money damages would not provide an adequate remedy. Therefore, if the Covered Executive breaches, or threatens to commit a breach of, any of the provisions of Section 5, the Covered Executive shall forfeit his right to benefits under the Plan. To the extent the Covered Executive has received a benefit under the Plan, the Company shall have the right to recover such benefit. The Company and its Controlled

Affiliates shall have, in addition to, and not in lieu of, any other rights and remedies available to the Company and its Controlled Affiliates under law or in equity (including, without limitation, the recovery of damages), the right and remedy to have the Restrictive Covenants specifically enforced (without posting bond and without the need to prove damages) by any court having equity jurisdiction, including, without limitation, the right to an entry against the Covered Executive of restraining orders and injunctions (preliminary, mandatory, temporary and permanent) against violations, threatened or actual, and whether or not then continuing, of such covenants.

7. Arbitration of Disputes. Any dispute or controversy arising under or in connection with this Plan or the Covered Executive’s employment by the Company shall be settled exclusively by arbitration, conducted by a single arbitrator sitting in Denver, Colorado in accordance with the Colorado law and the procedures of the National Arbitration Association before a single arbitrator. The determination of the arbitrator shall be conclusive and binding on the Company (or its Controlled Affiliates, where applicable) and the Covered Executive and judgment may be entered on the arbitrator’s award in any court having jurisdiction. The Company shall bear all the costs of any arbitration, and each party will bear its own attorney’s fees and costs.

8. Enforcement, Jurisdiction and Governing Law. The provisions of this Plan and each Letter 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 Plan is intended to be a top-hat severance plan subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). To the extent not preempted by federal law, this Plan and each Letter Agreement (including the Restrictive Covenants) shall be construed and the legal relations of the parties hereto shall be determined in accordance with the laws of the State of Colorado, without regard to any principles of conflicts of law which could cause the application of the laws of any jurisdiction other than the State of Colorado. The Company and each Covered Executive intend to and hereby consent to and confer exclusive personal jurisdiction and venue to enforce the Restrictive Covenants set forth in Section 5 upon the state and federal courts located in the State of Colorado.

9. Claims Procedure.

(a) If a Covered Executive asserts a right to a benefit under the Plan which has not been received, the Covered Executive must file a claim for such benefit with the Board on forms provided by the Board. The Board shall render its decision on the claim within 90 days after its receipt of the claim.

If special circumstances apply, the 90-day period may be extended by an additional 90 days; provided, written notice of the extension is provided to the Covered Executive during the initial 90-day period and such notice indicates the special circumstances requiring an extension of time and the date by which the Board expects to render its decision on the claim.

If the Board wholly or partially denies the claim, the Board shall provide written notice to the Covered Executive within the time limitations of the immediately preceding paragraph. Such notice shall set forth:

(i) the specific reasons for the denial of the claim;

(ii) specific reference to pertinent provisions of the Plan on which the denial is based;

(iii) a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is necessary;

(iv) a description of the Plan’s claims review procedures, and the time limitations applicable to such procedures; and

(v) a statement of the Covered Executive’s right to bring a civil action under Section 502(a) of ERISA if the claim denial is appealed to the Board and the Board fully or partially deny the claim.

(b) A Covered Executive whose application for benefits is denied may request a full and fair review of the decision denying the claim by filing, in accordance with such procedures as the Board may establish, a written appeal which sets forth the documents, records and other information relating to the claim within 60 days after receipt of the notice of the denial from the Board. In connection with such appeal and upon request by the Covered Executive, a Covered Executive may review (or receive free copies of) all documents, records or other information relevant to the Covered Executive’s claim for benefit, all in accordance with such procedures as the Board may establish. If a Covered Executive fails to file an appeal within such 60-day period, he shall have no further right to appeal.

(c) A decision on the appeal by the Board shall include a review by the Board that takes into account all comments, documents, records and other information submitted by the Covered Executive relating to the claim, without regard to whether such information was submitted or considered in the initial claim determination. The Board shall render its decision on the appeal not later than 60 days after the receipt by the Board of the appeal. If special circumstances apply, the 60-day period may be extended by an additional 60 days; provided, written notice of the extension is provided to the Covered Executive during the initial 60-day period and such notice indicates the special circumstances requiring an extension of time and the date by which the Board expects to render its decision on the claim on appeal.

If the Board wholly or partly denies the claim on appeal, the Board shall provide written notice to the Covered Executive within the time limitations of the immediately preceding paragraph. Such notice shall set forth:

(i) the specific reasons for the denial of the claim;

(ii) specific reference to pertinent provisions of the Plan on which the denial is based;

(iii) a statement of the Covered Executive’s right to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Covered Executive’s claim for benefits; and

(iv) a statement of the Covered Executive’s right to bring a civil action under Section 502(a) of ERISA.

(d) As used in this Section 9 and Section 10, the term “Board” means the Board of Directors of the Company or, at the Board’s option and delegation, the Compensation Committee of the Board of Directors of the Company.

10. Plan Administrator. For purposes of ERISA, the Board is the “plan administrator” of the Plan. As such, the Board is hereby vested with all powers and authority necessary in order to carry out its duties and responsibilities in connection with the administration of the Plan as herein provided, and is authorized to make such rules and regulations as it may deem necessary to carry out the provisions of the Plan. As “plan administrator,” the Board shall determine any question arising in the administration, interpretation and application of the Plan, including the determination of factual matters; and the decision of the Board shall be conclusive and binding on all persons.

11. Withholding. All payments made under this Plan shall be net of any tax or other amounts required to be withheld by the Company under applicable law.

12. Section 409A.

(a) Anything in this Plan to the contrary notwithstanding, if at the time of the Covered Executive’s “separation from service” within the meaning of Section 409A of the Code, the Company determines that the Covered Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Covered Executive becomes entitled to under this Plan would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Covered Executive’s separation from service, or (B) the Covered Executive’s death.

(b) It is intended that this Plan will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Plan is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code.

(c) To the extent that any payment or benefit described in this Plan constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Covered Executive’s termination of employment, then such payments or benefits shall be payable only upon the Covered Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).

(d) The Company makes no representation or warranty and shall have no liability to the Covered Executive or any other person if any provisions of this Plan are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.

13. Notice and Date of Termination.

(a) Notice of Termination. After the occurrence of a Termination Event, such event shall be communicated by written Notice of Termination from the Company to the Covered Executive or vice versa in accordance with this Section 13. For purposes of this Plan, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Plan relied upon and the Covered Executive’s Date of Termination.

(b) Date of Termination. “Date of Termination,” with respect to any purported termination of a Covered Executive’s employment, shall mean the date the Covered executive’s employment terminates, as specified in the Covered Executive’s Notice of Termination.

(c) Notice to the Company. Covered Executive will send all communications to the Company relating to this Plan, in writing, by hand delivery or by registered or certified mail, postage prepaid, addressed as follows, subject to change when notified by the Company:

DCT Industrial Trust Inc.

518 17^th Street, Suite 800

Denver, CO 80202

(d) Notice to the Covered Executive. The Company will send all communications to the Covered Executive, relating to this Plan, in writing, addressed to the Covered Executive at the last address the Covered Executive has filed in writing with the Company.

14. No Mitigation. The Covered Executive is not required to seek other employment or to attempt in any way to reduce any amounts payable to the Covered Executive by the Company under this Plan. Further, the amount of any payment provided for in this Plan shall not be reduced by any compensation earned by the Covered Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Covered Executive to the Company, or otherwise.

15. Benefits and Burdens. This Plan shall inure to the benefit of and be binding upon the Company and the Covered Executives, their respective successors, executors, administrators, heirs and permitted assigns. In the event of a Covered Executive’s death after a Qualified Termination but prior to the completion by the Company of all payments due the Covered Executive under this Plan, the Company shall continue such payments to the Covered Executive’s beneficiary designated in writing to the Company prior to the Covered Executive’s death (or to the Covered Executive’s estate, if the Covered Executive fails to make such designation).

16. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Plan, or the waiver by any party of any breach of this Plan, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

17. Effect on Other Plans. Nothing in this Plan shall be construed to limit the rights of the Covered Executives under the Company benefit plans, programs or policies.

18. Amendment or Termination of Plan. The Company may amend or terminate this Plan at any time or from time to time for any reason, provided that the provisions of Sections 5, 6, 7 and 8 of this Plan shall survive the termination of this Plan and provided that the provisions of Sections 5, 6, 7 and 8 of this Plan may not be amended in a manner that adversely affects any Covered Executive without his prior written consent. The Company shall provide reasonable notice to affected Covered Executives in the event of any such amendment or termination. Notwithstanding the foregoing, a Covered Executive’s rights to receive payments and benefits pursuant to this Plan in connection with a Qualified Termination occurring in connection with or within 12 months following a Change in Control may not be adversely affected, without the Covered Executive’s consent, by an amendment or termination of this Plan occurring within 12 months before or after the Change in Control.

19. Obligations of Successors. In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) in a Change in Control to expressly assume and agree to perform this Plan in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place and failure to so expressly assume and agree to perform shall be a material breach of this Plan.

Adopted: As of October 9, 2015

EXHIBIT I

LETTER AGREEMENT

[DCT Letterhead]

October 9, 2015

Dear [Covered Executive]:

We are pleased to inform you that the Board of Directors of DCT Industrial Trust Inc. (the “Company”) has determined that you are eligible to participate in the DCT Industrial Trust Inc. Executive Change in Control and Severance Plan (the “Plan”) as a Covered Executive, subject to the terms and conditions of the Plan. Capitalized terms used herein and not defined herein shall have the meanings given to such terms in the Plan.

The terms of the Plan are detailed in the copy of the Plan that is attached as Exhibit A to this Letter Agreement, and those terms are incorporated in and made a part of this Letter Agreement. As described in more detail in the Plan, the Plan entitles you to certain severance benefits in the event that your employment with the Company terminates under certain circumstances. By signing this Letter Agreement and as a condition of your eligibility for the payments and benefits set forth in the Plan, you agree to comply with the provisions of the Plan and in particular the confidentiality, non-solicitation, non-disparagement and arbitration requirements set forth in Sections 5 and 7 of the Plan (collectively the “Restrictive Covenants”) during your employment and, to the extent required by the Restrictive Covenants, after your employment ends regardless of the reason for the ending of such employment.

This Letter Agreement and the Plan constitute the entire agreement between you and the Company with respect to the subject matter hereof and supersede in all respects any and all prior agreements between you and the Company concerning such subject matter, including any employment agreement or change in control agreements.

By signing below, you agree to the terms and conditions of the Plan and acknowledge (i) your participation in the Plan, (ii) that you have received and read a copy of the Plan, (iii) that you agree that any termination benefits provided for in the Plan are subject to all of the terms and conditions of the Plan and you agree to such terms, conditions, (iv) that the Company may amend or terminate the Plan at any time, and (v) that the Restrictive Covenants shall survive and continue to apply notwithstanding any amendment or termination of the Plan (or the benefits to be provided thereunder) in the future.

Congratulations on being selected to participate in the Plan.


DCT INDUSTRIAL TRUST INC.

By:
		Name:
		Title:

AGREED TO AND ACCEPTED

Dct Industrial Trust (delisted) (NYSE:DCT)
Historical Stock Chart
From Mar 2024 to Apr 2024

Click Here for more Dct Industrial Trust (delisted) Charts.

Dct Industrial Trust (delisted) (NYSE:DCT)
Historical Stock Chart
From Apr 2023 to Apr 2024

Market Data

News

Trading Tools

Markets

Discover

Hot Features

Follow Feed

Options Flow

Monitor

DCT Dct Industrial Trust (delisted)

Latest DCT Messages

Loading Messages....

Dct Industrial Trust Inc. News

Loading Messages....

Your Recent History

Company

Business

Popular

Get The App

Trending Now

Toplists

Market Data

News

Trading Tools

Markets

Discover

Hot Features

Follow Feed

Options Flow

Monitor

DCT Dct Industrial Trust (delisted)

Latest DCT Messages

Loading Messages....

Dct Industrial Trust Inc. News

Loading Messages....

Your Recent History

Company

Business

Popular

Get The App