exv10w22






Exhibit 10.22




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
provision had been originally incorporated herein as so modified or restricted, or as if such
provision had not been originally incorporated herein, as the case may be. The parties further
agree to seek a lawful substitute for any provision found to be unlawful; provided, that, if the
parties are unable to agree upon a lawful substitute, the parties desire and request that a court
or other authority called upon to decide the enforceability of this Release modify the Release so
that, once modified, the Release will be enforceable to the maximum extent permitted by the law in
existence at the time of the requested enforcement.



     6. Waiver. A waiver by ProLogis of a breach of any provision of this Release by the
Executive shall not operate or be construed as a waiver or estoppel of any subsequent breach by the
Executive. No waiver shall be valid unless in writing and signed by an authorized officer of
ProLogis.



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     7. Return of ProLogis Materials. Not later than the Termination Date, the Executive
will return all ProLogis property and all originals and all copies, including electronic and hard
copy, of all documents, within his possession at the time of the execution of this Agreement,
including but not limited to a laptop computer, printer, cellular phone, keys and credit card. The
Executive’s rolodex (or other tangible or electronic address book) and his cellular telephone
number are the Executive’s personal property.



     8. Noncompetition, Nonsolicitation Covenants.



          (a) Subparagraph 9(a) of the Employment Agreement to the contrary notwithstanding, during the
period commencing on the Termination Date and ending on the first anniversary of the Termination
Date, the Executive will not, without ProLogis’s prior written consent, directly or indirectly, for
the Executive’s own account or for or on behalf of any other person or entity, whether an officer,
director, employee, partner, consultant or otherwise, engage or participate in or provide advice to
or in connection with, directly or indirectly, alone or as principal, agent, employee, employer,
consultant, investor or partner of, or assist in the management of, or provide advisory or other
services to, or own any stock or any other ownership interest in, or make any financial investment
in, ProLogis European Properties, ProLogis European Properties Fund II, AMB Property Corporation,
First Industrial Realty Trust, Inc., Duke Realty Corporation, DCT Industrial Trust Inc., Goodman
Group, Brixton plc, or Segro plc or any subsidiary of or successor to any such entity.




          (b) For purposes of clarification of subparagraph 9(b) of the Employment Agreement, Executive
and ProLogis agree that the term “customers” used in such subparagraph 9(b) refers to investors in
ProLogis European Properties Fund II or APG respecting any investment or prospective investment in
a logistics fund focused on property in Europe, China, Japan or Korea.




     9. Representation. The Executive hereby agrees that this Release is given knowingly
and voluntarily and acknowledges that:



          (a) this Agreement is written in a manner understood by the Executive;




          (b) this Release refers to and waives any and all rights or claims that he may have arising
under the Age Discrimination in Employment Act, as amended;




          (c) the Executive has not waived any rights arising after the date of this Agreement;




          (d) the Executive has received valuable consideration in exchange for this Release in addition
to amounts the Executive is already entitled to receive; and




          (e) the Executive has been advised to consult with an attorney prior to executing this
Agreement.




     10. Consideration and Revocation. The Executive is receiving this Agreement on
November 18, 2008 and Executive shall be given twenty one (21) days from receipt of this Agreement
to consider whether to sign the Agreement. The Executive agrees that changes or modifications to
this Agreement do not restart or otherwise extend the above twenty-one (21) day period. Moreover,
the Executive shall have seven (7) days following execution to




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revoke this Agreement in writing to the General Counsel of ProLogis and this Agreement shall
not take effect until those seven (7) days have ended (“Effective Date”).




     11. Amendment. This Release may not be altered, amended, or modified except in
writing signed by both the Executive and ProLogis.



     12. Survival. For the avoidance of doubt, the second sentence of paragraph 26 of the
Employment Agreement is incorporated by reference and survives the Effective Date.



     13. Joint Participation. The parties hereto participated jointly in the negotiation
and preparation of this Release, and each party has had the opportunity to obtain the advice of
legal counsel and to review and comment upon this Release. Accordingly, it is agreed that no rule
of construction shall apply against any party or in favor of any party. This Release shall be
construed as if the parties jointly prepared this Release, and any uncertainty or ambiguity shall
not be interpreted against one party and in favor of the other.



     14. Binding Effect; Assignment. This Agreement and the various rights and obligations
arising hereunder shall inure to the benefit of and be binding upon the parties and their
respective successors, heirs, representatives and permitted assigns. Neither party may assign its
respective interests hereunder without the express written consent of the other party, except that
ProLogis will honor any written instructions about the direction of severance payments included in
the Executive’s will or other estate planning documents.



     15. Applicable Law. This Release shall be governed by, and construed in accordance
with, the laws of the State of Colorado.



     16. Execution of Release. This Release may be executed in two counterparts, each of
which shall be considered an original, but which when taken together, shall constitute one Release.



     PLEASE READ THIS AGREEMENT AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING IT.
THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING THOSE UNDER THE
FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, AND OTHER FEDERAL, STATE AND LOCAL LAWS PROHIBITING
DISCRIMINATION IN EMPLOYMENT.



     If the Executive signs this Agreement less than 21 days after he receives it from ProLogis,
he confirms that he does so voluntarily and without any pressure or coercion from anyone at the
ProLogis.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the Executive and PROLOGIS have voluntarily signed this Agreement and
General Release on the date or dates set forth immediately below.



	 	 	 	 	 	 	 	 	 
	ProLogis	 	 	 	Executive	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Stephen L. Feinberg
 

	 	 	 	 	 	 
	Name:

	 	Stephen L. Feinberg
	 	 	 	/s/ Jeffrey H. Schwartz	 	 
	Title:

	 	Chairman
	 	 	 	 

Jeffrey H. Schwartz
	 	 
	 
	 	 	 	 	 	 	 	 
	November 21,
2008	 	 	 	November 20, 2008	 	 
	Date

	 	 	 	 	 	Date	 	 






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SCHEDULE




	 	 	 	 	 
	 	 	Description	 	$ Amount, Benefit
	1.

	 	Paid Leave of Absence
	 	Full salary from November 10,
2008 through the Termination
Date, paid in a lump sum on May
11, 2009, together with
interest thereon at the
short-term applicable federal
rate in effect under Section
1274(d) of the Internal Revenue
Code (“Code”) on the
Termination Date (“Interest”);
to the extent not otherwise
provided under applicable
benefit plans pursuant to
Executive’s active employment
until November 10, 2008,
subject to Executive making
payments required by the last
paragraph of subparagraph 5(d)
of the Employment Agreement (to
the minimum extent required to
satisfy Section 409A of the
Code), full active-employee
health, dental and vision
benefits and all other benefits
from November 10, 2008 through
the Termination Date, which
payments shall be refunded to
him in a cash lump sum on May
11, 2009 together with Interest
thereon
	 
	 	 	 	 
	2.

	 	Subparagraph 3(b) 2008 Bonus
	 	$1,600,000 cash, to be paid in
a lump sum within seven days
after the later of (i) the
Termination Date and (ii) the
Effective Date, subject to
applicable tax withholding
	 
	 	 	 	 
	3.

	 	Subparagraph 3(d) 2008 LTIP
	 	$7,500,000 cash, to be paid in
a lump sum within seven days
after the later of (i) the
Termination Date and (ii) the
Effective Date, subject to
applicable tax withholding
	 
	 	 	 	 
	4.

	 	Subparagraph 5(d)(i) Separation
Payment
	 	$6,000,000 cash, paid
$1,250,000 in a lump sum on May
11, 2009, together with
Interest thereon, plus
$4,750,000 paid thereafter in
equal regular payroll
installments through the second
anniversary of the Termination
Date, subject to applicable tax
withholding and the
requirements of subparagraph
5(d)(i) of the Employment
Agreement
	 
	 	 	 	 
	5.

	 	Subparagraph 5(d)(ii) Benefits
	 	Continuation of coverage under
the medical and dental plans
and arrangements of ProLogis in
which Executive participated on
November 10, 2008, for the
period commencing on the
Termination Date and ending on
the second anniversary of the
Termination Date, subject to
Executive making premium
payments in the same amount
charged to senior executive
employees for such coverage
(the “Subsidized Premium”)
during such continuation
period; provided,






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	 	 	Description	 	$ Amount, Benefit
	 

	 	 	 	however,
that, to the minimum extent
required to satisfy Section
409A of the Code, if
applicable, Executive shall
make premium payments for such
coverage in the amount of the
full cost of the coverage for
any period between the
expiration of the COBRA
continuation coverage period
and May 10, 2009, with the
difference between the full
premium and the Subsidized
Premium, if any, paid by
Executive during such period to
be refunded to him in a cash
lump sum on May 11, 2009
together with Interest thereon
	 
	 	 	 	 
	6.

	 	Subparagraph 5(d)(iii) Payment
	 	$12,000 cash, to be paid in a
lump sum on May 11, 2009, ,
together with Interest thereon,
subject to applicable tax
withholding
	 
	 	 	 	 
	7.

	 	Exercise of Vested Stock Options
	 	All outstanding stock options
that are vested on the
Termination Date, in accordance
with the terms thereof, shall
remain exercisable until the
last day of the stated option
term under each respective
stock option award without
regard for Executive’s
termination of employment
	 
	 	 	 	 
	8.

	 	Secretarial Support
	 	ProLogis-provided part-time
(not more than 24 hours per
week) secretarial support until
the first anniversary of the
Termination Date; provided,
Executive shall pay ProLogis
$2,500 per month for the cost
of such secretarial support
until May 10, 2009 which amount
shall be refunded to Executive
on May 11, 2009, together with
Interest thereon







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