Exhibit 10.1
RESIGNATION AND RELEASE
AGREEMENT
This Resignation and Release
Agreement (the “Agreement”) is made between James D.
Cochran (“Executive”) and DCT Industrial Trust Inc.
(the “Company”; together with Executive, the
“Parties,” and each of which, a
“Party”).
WHEREAS , the Parties entered into an employment
agreement dated July 21, 2006, which has subsequently been
amended as of December 18, 2007 and December 19, 2008
(together, the “Employment Agreement”) which, among
other things, specifies a three-year term for the Employment
Agreement (the “Term”);
WHEREAS , the Parties have mutually agreed that they do
not wish to extend the Executive’s period of employment
beyond the Term and the Executive has expressed his desire to
resign as of September 15, 2009;
WHEREAS, notwithstanding any terms to the contrary
contained in the Employment Agreement, the Company is nevertheless
prepared to provide to the Executive the separation pay and
benefits described in Section 5.2(b) of the Employment
Agreement as if the Executive’s resignation were a
resignation with Good Reason under the terms of the Employment
Agreement (the “Termination Benefits”), subject to the
Executive’s execution and non-revocation of this
Agreement;
NOW, THEREFORE
, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive and the Company hereby agree as
follows:
1. Resignation of
Employment . The Executive is resigning from his employment
with the Company as its President and Chief Investment Officer as
of the close of business on September 15, 2009 (the
“Resignation Date”). The Executive confirms that he is
resigning from any and all other positions that he holds with the
Company as an officer, director or otherwise effective on the
Resignation Date. The Executive further confirms that he is
resigning from any and all positions that he may hold with any
affiliate of the Company effective on the Resignation
Date.
2. Non-Contingent Payments
. No later than 30 days following the Resignation Date, the
Company will pay the following to the Executive, regardless of
whether he agrees to the terms of this Agreement: (a) all of
the Executive’s Annual Salary (as that term is defined in the
Employment Agreement) accrued through the Resignation Date;
(b) all vested benefits accrued through the Resignation Date,
if any, under the terms of any employee benefit plans applicable to
Executive; (c) reimbursement for any and all reasonable
business expenses incurred by the Executive prior to the
Resignation Date pursuant to the terms of the Company’s
expense reimbursement policy; and (d) Executive’s
accrued but unused vacation time.
3. Termination Benefits
. Provided that the Executive executes and does not revoke this
Agreement in accordance with the terms of Section 12, below,
the Company shall provide the following pay and benefits to the
Executive:
(a) Termination Pay . On the
date in accordance with Section 4, below, the Company shall
pay the Executive the following in a lump sum:
(i) a cash payment equal to
$350,000, less applicable deductions and withholdings as required
by law, which constitutes 100% of the Executive’s annual
salary as in effect as of the Resignation Date,
(ii) a cash payment equal to
$350,000, less applicable deductions and withholdings as required
by law, constituting 100% of the Executive’s target bonus for
2009, and
(iii) a cash payment equal to
$247,397.25, less applicable deductions and withholdings as
required by law, which constitutes the Executive’s target
bonus for 2009 multiplied by a fraction (i) the numerator of
which is the number of days in the year up to and including the
Resignation Date (258) and (ii) the denominator of which
is 365.
(b) Health Coverage
Continuation . Provided that the Executive elects to continue
his health coverage to the extent authorized by and consistent with
29 U.S.C. § 1161 et seq . (commonly known as
“COBRA”), the Company will provide the Executive with
such continuing coverage under the Company’s group health
plans as the Executive would have received under his Employment
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) for a period of up to 18
months from the Resignation Date (the “COBRA Coverage
Period”). Upon the expiration of the COBRA Coverage Period,
the Company shall make a payment to the Executive such that the net
amount paid to the Executive (after being grossed up to offset
applicable withholdings as required by law) is equal to six
(6) times the Company’s share of the monthly group
health plan premium then in effect; and
(c) Lapse of Stock Vesting
Conditions and Restrictions . On the later of the Resignation
Date or the Effective Date, any vesting conditions on any grant
under the Company’s 2006 Amended and Restated Long-Term
Incentive Plan (“LTIP”) or any other grant of
restricted stock, stock options or other equity awards made to the
Executive during the Term shall lapse and the Executive shall be
fully vested in any such grants or awards, except with respect to
the Executive’s award under the Company’s 2006
Outperformance Program, which award shall be forfeited in its
entirety as of the Resignation Date.
4. Section 409A .
The Company has determined that the Executive is a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i)
of the Internal Revenue Code (the “Code”). Because the
Termination Pay referenced in Section 3(a) above will be
considered deferred compensation subject to Section 409A of
the Code, such payments shall not be payable until the date that is
the earlier of (a) six months and one day after the
Resignation Date, or (b) the Executive’s death. Any
payments delayed pursuant to this Section 4 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, as amended, or any successor provision, for the month in
which such payment otherwise would have been paid.
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5. Tax Treatment . The Company
shall undertake to make deductions, withholdings and tax reports
with respect to payments and benefits under this Agreement to the
extent that it reasonably and in good faith determines that it is
required to make such deductions, withholdings and tax reports.
Payments under this Agreement shall be in amounts net of any such
deductions or withholdings. Nothing in this Agreement shall be
construed to require the Company to make any payments to compensate
Executive for any adverse tax effect associated with any payments
or benefits or for any deduction or withholding from any payment or
benefit.
6. Mutual Release
.
(a) By the
Executive
Executive irrevocably and
unconditionally releases and forever discharges the Company, all of
its affiliated and related entities, its and their respective
predecessors, successors and assigns, its and their respective
employee benefit plans and the fiduciaries of such plans, and the
current and former officers, directors, stockholders, employees,
attorneys, accountants, and agents of each of the foregoing in
their official and personal capacities (collectively referred to as
the “Company Releasees”) generally from all claims,
demands, debts, damages and liabilities of every name and nature,
known or unknown (“Claims”) that, as of the date when
Executive signs this Agreement, he has, ever had, now claims to
have or ever claimed to have had against any or all of the Company
Releasees. This release includes, without implication of
limitation, the complete release of all Claims of or for: breach of
express or implied contract (including, but not limited to the
Employment Agreement); wrongful termination of employment, whether
in contract or tort; intentional, reckless, or negligent infliction
of emotional distress; breach of any express or implied covenant of
employment, including the covenant of good faith and fair dealing;
interference with contractual or advantageous relations, whether
prospective or existing; deceit or misrepresentation;
discrimination or retaliation under state, federal, or municipal
law, including, without implication of limitation, Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., as amended, the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq., and Colorado Revised Statutes
23-34-402 (Discriminatory or Unfair Employment Practices);
defamation or damage to reputation; reinstatement; punitive or
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