Exhibit 10.19
NON-COMPETITION
AND NON-SOLICITATION
AGREEMENT
THIS AGREEMENT (this “
Agreement ”), dated as of October 10, 2006, is
made by and between DIVIDEND CAPITAL TRUST INC., a Maryland
corporation (the “ REIT ”) and EVAN H. ZUCKER
(the “ Principal ”).
RECITALS
WHEREAS, pursuant to the
Contribution Agreement, dated as of July 21, 2006 (the “
Contribution Agreement ”), by and among the REIT,
Dividend Capital Operating Partnership LP, a Delaware limited
partnership (the “ Operating Partnership ”), and
Dividend Capital Advisors Group LLC, a Colorado limited liability
company (the “ Advisor Parent ”), the Advisor
Parent has contributed all of the outstanding membership interests
in Dividend Capital Advisors LLC, a Colorado limited liability
company (the “ Advisor ”), to the Operating
Partnership in exchange for units of limited partnership interest
in the Operating Partnership (“ OP Units ”) that
are exchangeable under certain circumstances for Common Shares of
the REIT;
WHEREAS, the REIT and the Advisor
are parties to an Amended and Restated Advisory Agreement, dated as
of November 21, 2003, pursuant to which the Advisor provides
various services to the REIT;
WHEREAS, the Principal indirectly
owns a membership interest in the Advisor through the Advisor
Parent, and has been actively engaged in the provision of services
by the Advisor to the REIT; and
WHEREAS, the execution and delivery
of this Agreement is required under the Contribution
Agreement.
NOW, THEREFORE, the parties agree as
follows:
Section 1. Term . Except
as otherwise expressly provided in this Agreement, this Agreement
shall have a term of three years commencing on the date of this
Agreement (the “ Restricted Period
”).
Section 2. Covenant Against
Competition .
(a) Subject to Section 2(b)
below, during the Restricted Period, the Principal shall not,
individually or together with another Person, directly or
indirectly, (i) engage in the Business for his own account,
(ii) render any managerial or consulting or other services to
any Person who or which is engaged in the Business (other than the
REIT, the Operating Partnership or any of their respective
Subsidiaries), or (iii) become a partner, member, manager,
shareholder, principal, agent, employee, trustee or consultant of
any Person engaged in the Business (other than the REIT, the
Operating Partnership or any of their respective Subsidiaries);
provided , that the restrictions set forth in this
Section 2(a) shall not apply and shall become null and void in
their entirety if at any time a representative of the Advisor
Parent is not serving as a director on the Board of Directors of
the REIT as a result of the REIT’s breach of the provisions
of Section 5.9 of the Contribution Agreement, which provisions
obligate the REIT to nominate an individual designated by the
Advisor Parent to the board of directors of the REIT at the
REIT’s annual stockholders’ meetings to be held in
2007, 2008, and 2009, in each case to serve a one-year term,
provided that such obligation terminates if at any time the persons
who on the Closing Date of the Contribution Agreement are the
beneficial owners of the outstanding interests in the Advisor
Parent together with certain other specified persons cease to
beneficially own, directly or indirectly, an aggregate of at least
5,000,000 of the OP Units received pursuant to the Contribution
Agreement.
(b) Notwithstanding the provisions
of Section 2(a), the Principal is expressly permitted
to:
(i) own or acquire, directly or
indirectly, solely as an investment, securities of any Person which
are traded on any national securities exchange or NASDAQ or in the
over-the-counter market if the Principal (A) does not control
such Person and is not a member of a group that controls such
Person and (B) does not, directly or indirectly, own 5% or
more of any class of equity securities of such Person;
(ii) become associated with a
specific division, group or department of any Person engaged in the
Business, if the division, group or department with which the
Principal becomes associated is not itself engaged in the Business
and the Principal does not provide any services, assistance or
advice to the division, group or department of such Person which is
engaged in the Business;
(iii) acquire an interest in any
Person engaged in the Business, solely as an investment, if the
fair market value of any industrial real estate owned, acquired,
developed or managed by such Person does not constitute more than
20% of the fair market value of all real estate owned, acquired,
developed or managed by such Person;
(iv) invest in any pooled investment
vehicle or fund which is managed by and/or includes capital
provided by unaffiliated third parties;
(v) engage in any and all activities
as a partner, member, manager, shareholder, principal, agent,
employee, trustee, consultant, director, executive or otherwise, in
respect of any fund that owns, acquires, develops or manages real
estate if the fair market value of any real estate that is
industrial real estate owned, acquired, developed or managed by
such fund does not constitute more than 20% of the fair market
value of all real estate owned, acquired, developed or managed by
such fund; provided , that to the extent that such fund
allows third-party participation in connection with the industrial
real estate component of any such real estate located in Mexico,
the Principal shall cause such fund to offer the REIT the first
opportunity to negotiate for such participation and if such offer
is accepted by the REIT to negotiate such participation in good
faith (for the avoidance of doubt, this clause (v) shall not
apply to activities in respect of any of the DCTRT Entities
referred to in clause (vi) below); and
(vi) engage in any and all
activities as a partner, member, manager, shareholder, principal,
agent employee, trustee, consultant, director, executive or
otherwise, in respect of (A) Dividend Capital Total Realty
Trust and a fund with similar investment objectives for accredited
investors that enters into an agreement with the REIT that is
substantially identical to the Joint Venture Agreement (as defined
in the Contribution Agreement) (collectively, the “ DCTRT
Entities ”), and (B) any advisor to the DCTRT
Entities; provided , that if (and only for so long as) the
exclusivity provisions of the Joint Venture Agreement are not in
effect, the Princip
