AGREEMENT
AND GENERAL RELEASE
THIS
AGREEMENT AND GENERAL RELEASE (this “ Agreement
” or this “ Release ”) is made and entered
into by and between ProLogis, a Maryland real estate investment
trust (“ ProLogis ”), and Jeffrey H. Schwartz
(the “ Executive ”).
FOR
VALUABLE CONSIDERATION, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1.
Termination of Employment . ProLogis and the Executive agree
that the Executive’s employment with ProLogis will cease,
effective on December 8, 2008, which shall be referred to
herein as the “ Termination Date .” The
Executive’s participation in all ProLogis benefit plans will
cease on the Termination Date, except as otherwise expressly
provided in the Employment Agreement, dated March 14, 2008,
between ProLogis and the Executive (the “ Employment
Agreement ”), or as otherwise specifically provided under
the applicable plan. The foregoing Termination Date to the contrary
notwithstanding, the Executive resigned from all offices and
positions on November 10, 2008, and was placed on a paid leave
of absence, with full benefits, for the period thereafter until the
Termination Date, from which he is not expected to return to active
duty, and accordingly on November 10, 2008 the Executive
separated from service (within the meaning of
Section 409A(a)(2)(A)(i) of the Internal Revenue Code and
Treasury Regulation Section 1.409A-1(h)) from ProLogis and all
affiliates. The Executive’s current ProLogis email and
telephone accounts will remain active and useable by the Executive
until the Termination Date. The Executive further agrees that he
will not thereafter seek reinstatement, recall or reemployment with
ProLogis.
2.
Severance Payments and Benefits . Except as otherwise
provided in this Agreement, the Executive shall receive the
severance payments and benefits to which he is entitled as if
termination occurred pursuant to subparagraphs 4(f) and 5(d) of the
Employment Agreement in accordance with the terms and subject to
the conditions thereof, as set forth on the Schedule attached
hereto.
3.
General Release . In consideration of the payments to be
made by ProLogis to the Executive in Paragraph 2 above, the
Executive, with full understanding of the contents and legal effect
of this Release and having the right and opportunity to consult
with his counsel, releases and discharges ProLogis, its officers,
directors, board members, supervisors, managers, employees, agents,
representatives, attorneys, divisions, subsidiaries and affiliates,
and all related entities of any kind or nature, and its and their
predecessors, successors, heirs, executors, administrators, and
assigns (collectively, the “ ProLogis Released Parties
”) from any and all claims, actions, causes of action,
grievances, suits, charges, or complaints of any kind or nature
whatsoever, that he ever had or now has, whether fixed or
contingent, liquidated or unliquidated, known or unknown, suspected
or unsuspected, and whether arising in tort, contract, statute, or
equity, before any federal, state, local, or private court, agency,
arbitrator, mediator, or other entity, regardless of the relief or
remedy. Without limiting the generality of the foregoing, it being
the intention of the parties to make this Release as broad and as
general as the law permits, this Release specifically includes any
and all subject matters and claims arising from any alleged
violation by the Released Parties under the Age Discrimination in
Employment Act of 1967, as amended; Title VII of the Civil Rights
Act of 1964, as amended; the Civil Rights Act of 1866, as amended
by the Civil Rights Act of 1991 (42 U.S.C. § 1981); the
Rehabilitation Act of 1973, as amended; the Employee Retirement
Income Security Act of 1974, as amended (“ ERISA
”); the
Colorado
Anti-Discrimination Act, and other similar state or local laws; the
Americans with Disabilities Act; the Worker Adjustment and
Retraining Notification Act; the Equal Pay Act; Executive Order
11246; Executive Order 11141; and any other statutory claim,
employment or other contract or implied contract claim or common
law claim for wrongful discharge, breach of an implied covenant of
good faith and fair dealing, defamation, or invasion of privacy
arising out of or involving his employment with ProLogis, the
termination of his employment with ProLogis, or involving any
continuing effects of his employment with ProLogis or termination
of employment with ProLogis. The Executive further acknowledges
that he is aware that statutes exist that render null and void
releases and discharges of any claims, rights, demands,
liabilities, action and causes of action which are unknown to the
releasing or discharging part at the time of execution of the
release and discharge. The Executive hereby expressly waives,
surrenders and agrees to forego any protection to which he would
otherwise be entitled by virtue of the existence of any such
statute in any jurisdiction including, but not limited to, the
State of Colorado. The foregoing release and discharge under this
Paragraph 3 to the contrary notwithstanding, the Executive
does not release or discharge any ProLogis Released Party
respecting (i) the Executive’s rights to indemnification
and coverage under applicable directors and officers liability
insurance pursuant to paragraphs 16 and 15, respectively, of the
Employment Agreement, (ii) all accrued and vested benefits
under all employee pension and welfare benefit plans (within the
meaning of sections 3(1) and 3(2)(A) of ERISA) in which the
Executive participated immediately prior to the Termination Date
and (iii) such rights and benefits as may not be released
pursuant to applicable law.
4.
Covenant Not to Sue . The Executive agrees not to bring,
file, charge, claim, sue or cause, assist, or permit to be brought,
filed, charged or claimed any action, cause of action, or
proceeding regarding or in any way related to any of the claims
described in Paragraph 3 hereof, and further agrees that his
Release is, will constitute and may be pleaded as, a bar to any
such claim, action, cause of action or proceeding. If any
government agency or court assumes jurisdiction of any charge,
complaint, or cause of action covered by this Release, the
Executive will not seek and will not accept any personal equitable
or monetary relief in connection with such investigation, civil
action, suit or legal proceeding.
5.
Severability . If any provision of this Release shall be
found by a court to be invalid or unenforceable, in whole or in
part, then such provision shall be construed and/or modified or
restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this
Release, as the case may require, and this Release shall be
construed and enforced to the maximum extent permitted by law, as
if such provisio
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