exv10w1



 




Exhibit 10.1



ADVISORY AGREEMENT




     THIS AGREEMENT is made and entered into as of May 15, 2007 between K. Dane Brooksher (the
“Advisor”), and ProLogis.



WITNESSETH THAT:




     WHEREAS, ProLogis desires to retain the services of the Advisor and the Advisor desires to
provide such services to ProLogis;



     NOW, THEREFORE, the parties agree as follows:



     1. Term. Subject to the terms and conditions of this Agreement, ProLogis hereby
retains the services of the Advisor as an advisor for the Term (as defined below) and the Advisor
hereby agrees to render advisory services to ProLogis during the Term in accordance with this
Agreement. The “Term” shall be the period commencing on May 15, 2007 (the “Effective Date”) and
ending on June 30, 2023 (the “Termination Date”).



     2. Duties. The Advisor agrees that, during the first six years of the Term, while he
is obligated to provide services to ProLogis pursuant to this Agreement, he shall provide advice to
ProLogis regarding strategic plans, global expansion, customer development, organizational and
human resource matters, board of trustee nomination and governance matters, and other matters as
requested from time to time by the Chief Executive Officer of ProLogis. Subject to the provisions
of Sections 6 and 7, nothing in this Section 2 shall preclude the Advisor from performing services
for persons or entities other than ProLogis to the extent such services do not interfere with his
obligations under this Agreement.



     3. Advisory Fee. Subject to the terms and conditions of this Agreement, the Advisor
shall be entitled to an annual “Advisory Fee” of $400,000 for the first six years of the Term,
payable quarterly in arrears beginning on June 30, 2007.



     4. Other Agreements.




	 	(a)	 	For the period commencing on the Effective Date and ending on the Termination
Date, ProLogis shall provide the Advisor with office space, administrative and
information technology support, secretarial support and travel services (through
ProLogis’s in-house travel agent). In addition , Advisor shall be reimbursed for
actual expenses incurred in connection with his advisory duties.






	 	(b)	 	For the first six years of the Term, the Advisor shall serve on ProLogis’s
European and Asian advisory boards at the request of ProLogis and attend any regular or
special meetings thereof.





     5. Duties and Fees Upon Termination. The Advisor shall have no obligation to provide
services pursuant to this Agreement, and ProLogis shall have no obligation to pay any Advisory Fees
to the Advisor, and the provisions of paragraph 4(b) shall not apply, for periods after the last
day of the sixth year of the Term. ProLogis shall have no obligation to pay any Advisory Fees to
the Advisor or to provide the benefits under Section 4 for any period after the



 









 




Advisor fails, for any reason, to make himself available to perform services for ProLogis
pursuant to this Agreement, including by reason of death.




     6. Confidential Information. The Advisor hereby agrees that:




	 	(a)	 	Except as may be required by the lawful order of a court or agency of competent
jurisdiction, or except to the extent that the Advisor has express authorization from
ProLogis, he shall keep secret and confidential indefinitely all non-public information
(including, without limitation, information regarding litigation and pending
litigation) concerning ProLogis and its affiliates which was acquired by or disclosed
to the Advisor during the course of his engagement hereunder (or during his prior
employment or service with ProLogis) and not to disclose the same, either directly or
indirectly, to any other person, firm, or business entity, or to use it in any way.






	 	(b)	 	Upon the expiration of the Term or at ProLogis’s earlier request, he will
promptly return to ProLogis any and all records, documents, physical property,
information, computer disks or other materials relating to the business of ProLogis and
its affiliates obtained by him during his course of his engagement hereunder (or during
his prior employment or service with ProLogis).






	 	(c)	 	Nothing in the foregoing provisions of this Section 6 shall be construed so as
to prevent the Advisor from using, in connection with his employment for himself or an
employer other than ProLogis or any of its affiliates, knowledge which was acquired by
him during the course of his engagement hereunder, and which is generally known to
persons of his experience in other companies in the same industry.





     7. Noncompetition. The Advisor hereby agrees that, during the Term, he shall not:




	 	(a)	 	directly or indirectly, (i) serve on the board of directors or trustees or
serve as an officer or employee of any real estate investment trust with a class of
securities registered under Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended, and is engaged in the ownership of industrial real estate facilities,
or (ii) be employed by or serve as a consultant to, or otherwise assist or provide
services to a Competitor (as defined below) if: (A) the services that the Advisor is to
provide to the Competitor are the same as, or substantially similar to, any of the
services that the Advisor provided to ProLogis and its affiliates (whether pursuant to
this Agreement or during his prior employment with ProLogis), and such services are to
be provided with respect to any location in which ProLogis or any of its affiliates had
material operations during the prior 24-month period or with respect to any location in
which ProLogis or any of its affiliates had devoted material resources to establishing
operations during the prior 24-month period; or (ii) the trade secrets, confidential
information, or proprietary information (including, without limitation, confidential or
proprietary methods) of ProLogis and its affiliates to which the Advisor had access
(whether during the Term or during his prior employment with ProLogis) could reasonably
be expected to




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	 	 	 	benefit the Competitor if the Competitor were to obtain access to such secrets or
information;






	 	(b)	 	directly or indirectly, own an equity, partnership or profits interest in any
Competitor (other than ownership of 5% or less of the outstanding stock of any
corporation listed on the New York Stock Exchange or the American Stock Exchange or
included in the NASDAQ System);






	 	(c)	 	solicit, divert or attempt to solicit or divert any party who is, was, or was
solicited to become, a customer or supplier of ProLogis or its affiliates at any time
during the Term, provided that this restriction shall not apply to any activity on
behalf of a business that is not a Competitor or potential Competitor;






	 	(d)	 	employ, solicit for employment or encourage to leave their employment, in each
case, either as an employee, agent or representative, any person who was during the
24-month period prior to such employment, solicitation or encouragement or is an
officer, employee, agent or representative of ProLogis or any of its affiliates or






	 	(e)	 	avail himself of or invest in any business opportunity which is related to the
activities conducted by ProLogis and which came to his attention during the Term; or






	 	(f)	 	disturb, or attempt to disturb, any business relationship between any third
party and ProLogis or any of its affiliates.




Nothing in this Section 7 or Section 6 shall be construed as limiting the Advisor’s duty of loyalty
to ProLogis during the Term or any other duty he may otherwise have to ProLogis while he is
providing services to ProLogis. As of any date, the term “Competitor” means any enterprise
(including a person, firm or business, whether or not incorporated) during any period in which it
is materially competitive in any way with any business in which ProLogis or any of its affiliates
was engaged during the immediately preceding 24-month period.




     8. Equitable Remedies. The Advisor acknowledges that ProLogis would be irreparably
injured by a violation of this Section 6 or 7 and agrees that ProLogis, in addition to other
remedies available to it for such breach or threatened breach, shall be entitled to a preliminary
injunction, temporary restraining order, other equivalent relief, restraining the Advisor from any
actual or threatened breach of Section 6 or 7 without any bond or other security being required.



     9. Relationship of the Parties. It is agreed and understood between the parties to
this Agreement that the services performed by the Advisor pursuant to this Agreement will be
performed as an independent contractor and not as an employee of ProLogis or its affiliates.



     10. Successors. This Agreement shall be binding on, and inure to the benefit of,
ProLogis and its successors and assigns and any person acquiring, whether by merger,
reorganization, consolidation, by purchase of assets or otherwise, all or substantially all of the
assets of ProLogis.



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     11. Nonalienation. The Advisor’s interests under this Agreement are not subject to
the claims of his creditors and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered.



     12. Waiver of Breach. No waiver by any party hereto of a breach of any provision of
this Agreement by the other party, or of compliance with any condition or provision of this
Agreement to be performed by such other party, will operate or be construed as a waiver of any
subsequent breach by such other party or any similar or dissimilar provisions and conditions at the
same or any subsequent time. The failure of any party hereto to take any action by reason of such
breach will not deprive such party of the right to take actions at any time while such breach
continues.



     13. Severability. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other provision of this Agreement,
and this Agreement will be construed as if such invalid or unenforceable provision were omitted
(but only to the extent that such provision cannot be appropriately reformed or modified).



     14. Applicable Law. The provisions of this Agreement shall be construed in accordance
with the laws of the state of Colorado.



     15. Amendment. This Agreement may be amended or cancelled by mutual agreement of the
parties in writing without the consent of any other person.



     16. Taxes. The Advisor shall be responsible for all taxes on amounts payable under
and benefits provided pursuant to this Agreement and ProLogis makes no representation or guarantee
of the tax treatment of any such payment or benefit. To the extent required by applicable law, all
amounts payable under and benefits provided hereunder shall be subject to applicable tax
withholding. Notwithstanding any provision of this Agreement to the contrary, the Advisor and
ProLogis agree that, to the extent that section 409A of the Internal Revenue Code of 1986, as
amended, applies to this Agreement, ProLogis and the Advisor will cooperate in good faith to cause
this Agreement to be timely amended to conform to the requirements of section 409A and applicable
guidance issued thereunder. ProLogis and the Advisor further agree that they will each use good
faith efforts to cause this Agreement to be administered in accordance with the requirements of
section 409A.



     17. Entire Agreement. This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes all prior and contemporaneous
agreements, if any, between the parties relating to the subject matter hereof.



     IN WITNESS WHEREOF, the Advisor has hereunto set his hand and ProLogis has caused these
presents to be executed in its name and on its behalf, all as of the day and year first above
written.



	 	 	 	 	 
	 	/s/ K. Dane Brooksher
 	 
	 	Advisor
 	 
	 
	 	PROLOGIS

 	 
	 	By 	 /s/
Jeffrey H. Schwartz 	 
	 	 	 	 
	 	 	Its  Chief Executive Officer	 
	 	 	 
	 
	 




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