Exhibit 10.12
ALVIN E. KITE, JR.
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this
“Agreement”) is entered into as of August 16, 2004
by and between Kite Realty Group Trust, a Maryland real estate
investment trust (the “Company”) and Alvin E. Kite, Jr.
(the “Executive”).
WHEREAS, the Company and Kite Realty
Group, L.P., a Delaware limited partnership, of which the Company
is the general partner (the “Operating Partnership”),
are engaging in various related transactions pursuant to which,
among other things, (i) the Operating Partnership will acquire
interests in various entities that own or lease real estate
properties in which certain persons affiliated with the Company
(including the Executive) have interests, (ii) the Company
will acquire indirect interests in certain service companies
currently owned by persons affiliated with the Company, including
the Executive, and (iii) the Company will effect an initial public
offering of its common shares and contribute the proceeds therefrom
for a like number of units of partnership interest in the Operating
Partnership (the “Kite IPO,” and together with the
other transactions described above, the “Kite IPO
Transactions”);
WHEREAS, concurrently with the
execution and delivery of this Agreement, the Company and the
Executive are entering into an Employment Agreement dated as of the
date hereof, pursuant to which, among other things, the Company has
agreed to employ the Executive, and the Executive has agreed to be
employed by the Company, in accordance with the terms thereof (the
“Employment Agreement”); and
WHEREAS, the Company and the
Executive agree that, as part of the Kite IPO Transactions, the
Executive will not engage in competition with the Company and will
refrain from taking certain other actions pursuant to the terms and
conditions hereof in an effort to protect the Company’s
legitimate business interests and goodwill and for other business
purposes.
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
1.
Noncompetition
. The Executive agrees with
the Company that for the longer of (i) the three-year period
beginning on the date of this Agreement or (ii) the period during
which the Executive is employed by the Company (or any successor
thereto) or its subsidiaries or Affiliates (as defined in the
Employment Agreement) (collectively, the “REIT”), and
for one year thereafter (the “Restricted Period”), the
Executive will not engage in any business involving the
development, construction, acquisition, ownership or operation of
neighborhood and community shopping centers (the “Company
Business”), whether such business is conducted by the
Executive individually or as a principal, partner, member,
stockholder, director, trustee, officer, employee or independent
contractor of any Person (as defined below); provided,
however , that this Section 1 shall not be deemed to
prohibit any of the following: (a) any of the real estate
(and real estate-related) activities listed on Schedule A
hereto and the Executive’s ownership, marketing, sale,
transfer or exchange of any of the Executive’s interests in
any of the properties or
entities listed on Schedule A
hereto, (b) the direct or indirect ownership by the Executive of up
to five percent of the outstanding equity interests of any public
company, (c) any activities with respect to residential real estate
and (d) a direct or indirect ownership by the Executive of equity
or similar ownership interests of any corporation, partnership,
limited liability company, joint venture, association or other
entity that is not a public company, provided that the Executive is
not involved in the management or operation of such Person or its
business (as a director, trustee, officer, employee or otherwise)
and such Person is not engaged in the Company Business.
Notwithstanding the foregoing, during the one-year
“tail” period included in the Restricted Period, the
restrictions set forth in this Section 1 shall apply only
within the following “Restricted Areas”: (I) the states
of Indiana, Florida and Texas; (II) the area within a 10-mile
radius of any property owned or leased by the REIT, as of the date
of the Executive’s termination of employment; (III) each
county in each state in which the REIT owns or leases property as
of the date of the Executive’s termination of employment; and
(IV) in any state in which the REIT owns or leases at least five
properties as of the date of the Executive’s termination of
employment, the area within a 50-mile radius of any property owned
or leased by the REIT, as of the date of the Executive’s
termination of employment. For purposes of this Agreement,
“Person” means any individual, firm, corporation,
partnership, company, limited liability company, trust, joint
venture, association or other entity.
2.
Nonsolicitation
. The Executive agrees with the
Company that for the longer of (i) the three-year period beginning
on the date of this Agreement or (ii) the period during which the
Executive is employed by the REIT, and for two years thereafter,
such Executive will not (a) directly or indirectly solicit, induce
or encourage any employee or independent contractor to terminate
their employment with the REIT or to cease rendering services to
the REIT, and the Executive shall not initiate discussions with any
such Person for any such purpose or authorize or knowingly
cooperate with the taking of any such actions by any other Person,
or (b) hire (on behalf of the Executive or any other person or
entity) any employee or independent contractor who has left the
employment or other service of the
