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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: DCT INDUSTRIAL TRUST INC. You are currently viewing:
This Employment Agreement involves

DCT INDUSTRIAL TRUST INC.

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Title: EMPLOYMENT AGREEMENT
Governing Law: Colorado     Date: 10/13/2009
Industry: Real Estate Operations     Law Firm: Goodwin Procter     Sector: Services

EMPLOYMENT AGREEMENT, Parties: dct industrial trust inc.
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Exhibit 10.1

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (“Agreement”) dated as of October 9, 2009, by and between DCT Industrial Trust Inc. with its principal place of business at 518 Seventeenth 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 August 14, 2006, as amended on December 18, 2007 and December 19, 2008 (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, 2009 and continuing through October 9, 2012, 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 $600,000 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 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 2009, then the cash bonus payment must be paid in a single lump sum between January 1, 2010 and March 15, 2010.

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 2006 Long-Term Incentive Plan (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 $1,150,000; 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).

 

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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 Certain Additional Payments by the Company . If all, or any portion, of the payments provided under this Agreement, either alone or together with other payments and benefits which the Executive receives or is entitled to receive from the Company or an affiliate, would constitute an excess “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the imposition on the Executive of an excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended, then, in addition to any other benefits to which the Executive is entitled under this Agreement, the Company shall pay an amount (the “Gross-Up Amount”) in cash equal to the sum of the excise taxes payable by the Executive by reason of receiving Parachute Payments (including any penalties and interest for underpayments) plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 3.8) as if no excise taxes had been imposed with respect to Parachute Payments). The Company shall pay the Gross-Up Amount to the appropriate taxing authorities as withholding taxes on behalf of the Executive (or, to the extent some or all of the Gross-Up Amount is not required to be withheld by the Company, to the Executive) at such time or times when the excise taxes to which the Gross-Up Amount relates are due. Except as may otherwise be agreed to by the Company and the Executive, the amount or amounts (if any) payable under this Section 3.8 shall be conclusively determined (for purposes of the payment of the Gross-Up Amount and the filing of the Executive’s income tax return, but subject to the provisions below) by an independent accounting firm of national reputation selected by the Company with the consent of the Executive (which shall not be unreasonably withheld). Notwithstanding the foregoing, in the event that the Internal Revenue Service assesses a deficiency against the executive for a greater amount of excise tax (and other related payments to the Internal Revenue Service, as contemplated above), then the Company shall within five business days thereafter either assume the defense of such deficiency or pay the additional amounts; provided that (i) the Executive shall not initiate any proceeding or other contests regarding these matters, other than at the direction of the Company, and shall provide notice to the Company of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Company shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay all costs (including without limitation legal and other professional fees) associated therewith. If there is an overpayment of excise tax (and related payments), the Executive within five business days after receiving a refund shall pay over the amount refunded to the Company.

 

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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 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, 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 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 thirty (30) 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).

 

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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 within five (5) days after termination of employment due to death or Disability. 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)

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 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).

 

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(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; 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 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 LTIP award applicable to the Executive (except for a material reduction in target bonus or target LTIP 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 (as defined below));

 

 

(iii)

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

 

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(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 ear


 
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