exv10w1



 






	 	 	 	 	 



EXHIBIT 10.1




AMENDED AND RESTATED

EMPLOYMENT AGREEMENT





     THIS AMENDED AND RESTATED AGREEMENT, made and entered into effective as of May 26, 2006 (the
“Effective Date”) by and between Ted R. Antenucci (the “Executive”) and ProLogis, a Maryland real
estate investment trust (the “Company”),



WITNESSETH THAT:




     WHEREAS, the Executive and the Company are parties to an employment agreement dated June 5,
2005 (the “Original Agreement”); and



     WHEREAS, the parties desire to amend and restate the Original Agreement to reflect certain
changes to the terms and conditions of the Executive’s employment with the Company;



     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, it is
hereby covenanted and agreed by the Executive and the Company as follows:



     1. Term. Subject to the terms and conditions of this Agreement, the Company hereby
agrees to employ the Executive as its President of Global Development for the Agreement Term (as
defined below), and the Employee hereby agrees to remain in the employ of the Company and to
provide services during the Agreement Term in accordance with this Agreement. The “Agreement Term”
shall be the period beginning on the Effective Date and ending on December 31, 2010. Thereafter,
the Agreement Term will be automatically extended for 12-month periods, unless one party to this
Agreement provides notice of non-renewal to the other at least three months before the last day of
the then current Agreement Term.



     2. Performance of Services. The Executive’s employment with the Company shall be
subject to the following:




	(a)	 	During the Agreement Term, while the Executive is employed by the Company, the Executive
shall devote his full time, energies and talents to serving as its President of Global
Development.
	 
	(b)	 	The Executive shall report to the Chief Executive Officer of the Company. The Executive
agrees that he shall perform his duties faithfully and efficiently subject to the directions
of the Chief Executive Officer of the Company. The Executive’s duties may include providing
services for both the Company and the Subsidiaries (as defined below), as determined by the
Board of Trustees of the Company (the “Board”); provided, that the Executive shall not,
without his consent, be assigned tasks that would be inconsistent with those of President of
Global Development. The Executive shall have such authority, power, responsibilities and
duties as are inherent in his positions (and the undertakings applicable to his positions) and
necessary to carry out his responsibilities and the duties required of him hereunder.
	 
	(c)	 	Notwithstanding the foregoing provisions of this paragraph 2, during the Agreement Term, the
Executive may devote reasonable time to activities other than those required under this
Agreement, including the supervision of his personal investments, and




 









 






	 	 	activities involving professional, charitable, community, educational, religious and similar
types of organizations, speaking engagements, membership on the boards of directors of other
organizations, and similar types of activities, to the extent that such other activities do
not in the judgment of the Board, inhibit or prohibit the performance of the Executive’s
duties under this Agreement, or conflict in any material way with the business of the
Company or any Subsidiary; provided, however, that the Executive shall not serve on the
board of any business, or hold any other position with any business, without the consent of
the Board.
	 
	(d)	 	For purposes of this Agreement, the term “Subsidiary” shall mean any corporation,
partnership, joint venture or other entity during any period in which at least a fifty percent
interest in such entity is owned, directly or indirectly, by the Company (or a successor to
the Company).





     3. Compensation. Subject to the terms of this Agreement, during the Agreement Term,
while the Executive is employed by the Company, the Company shall compensate him for his services
as follows:




	(a)	 	The Executive shall receive, for each 12-consecutive month period beginning on the Effective
Date and ending on each anniversary thereof, in substantially equal monthly or more frequent
installments, an annual base salary of not less than $565,000 (the “Salary”).
	 
	(b)	 	The Executive may receive an annual target bonus of $787,500 (the “Target Bonus”); provided,
however, that the actual amount of the Target Bonus that will be earned by and payable to the
Executive in any year will be determined upon the satisfaction of goals and objectives
established by the Chief Executive Officer or a duly authorized committee of the Board thereof
for such year and communicated to the Executive and shall be subject to such other terms and
conditions of the Company’s bonus plan as in effect from time to time; and provided further
that in no event shall the amount of the Executive’s annual bonus be less than 80 percent of
the Target Bonus. The goals and objectives established for the Executive shall be similar in
magnitude to the magnitude of the goals and objectives established for other members of the
senior management of the Company.
	 
	(c)	 	As of the Effective Date, the Executive shall be granted 150,000 restricted stock units (the
“RSUs”) under the Company’s 2006 Long-Term Incentive Plan (the “LTIP”). Such RSUs shall vest
on December 31, 2010 provided that the Executive’s Date of Termination has not occurred prior
to that date. The RSUs shall be subject to such other terms and conditions as determined by
the Management Development and Compensation Committee of the Board (the “Committee”) in
accordance with the LTIP.
	 
	(d)	 	As of the Effective Date, the Executive shall be granted 50,000 performance shares (the
“Performance Shares”) under the LTIP. Such Performance Shares shall vest based on the
Company’s performance as compared to a defined index of 50 publicly traded real estate
companies under the performance program established by the Committee at the time of grant (the
“Performance Measures”). Fifty percent of the Performance Shares will vest based on
satisfaction of the Performance Measures for the period commencing on the




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	 	 	Effective Date and ending on December 31, 2009 and fifty percent of the Performance Shares
will vest based on satisfaction of the Performance Measures for the period commencing on the
Effective Date and ending on December 31, 2010, provided, in each case, that the Executive’s
Date of Termination has not occurred prior to the applicable vesting date. The Performance
Shares shall be subject to such other terms and conditions as determined by the Committee in
accordance with the LTIP.
	 
	(e)	 	For each 12-consecutive-month period during the Agreement Term beginning in December, 2006,
the Executive shall be entitled to grants of equity-based awards under the LTIP having an
annual aggregate value of $1.2 million. The date on which such grants shall occur, the types
of grants and the terms and conditions applicable to such awards shall be determined by the
Committee in its discretion under the LTIP (or a successor plan thereto), provided that the
intent is that the awards made pursuant to this paragraph 3(e) will be made at the same time
as annual LTIP awards are made to other senior executives of the Company and that the first
such grant will be made in December, 2006.
	 
	(f)	 	Except as otherwise specifically provided to the contrary in this Agreement, the Executive
shall be eligible to participate in the Company’s employee benefit plans, programs, policies
and arrangements to the same extent and on the same terms as those benefits are provided by
the Company from time to time to the Company’s other similarly situated senior management
employees. However, the Company shall not be required to provide a benefit under this
subparagraph 3(f) if such benefit would duplicate (or otherwise be of the same type as) a
benefit specifically required to be provided under another provision of this Agreement. The
Executive shall complete all forms and physical examinations, and otherwise take all other
similar actions to secure coverage and benefits described in this subparagraph 3(f), to the
extent determined to be necessary or appropriate by the Company.
	 
	(g)	 	The Executive is authorized to incur reasonable expenses for entertainment, traveling, meals,
lodging and similar items in promoting the Company’s business. The Company will reimburse the
Executive for all reasonable expenses so incurred in accordance with the normal practices of
the Company.
	 
	(h)	 	Change in Control. Notwithstanding the foregoing provisions of subparagraphs 3(c),
3(d) and 3(e), in the event that (i) following a Change in Control, the Executive’s Date of
Termination occurs as a result of termination by the Company (or a successor) for reasons
other than Cause or the Executive terminates his employment for Good Reason (as defined in
subparagraph 4(d)), or (ii) the LTIP is terminated by the Company or a successor following a
Change in Control without provision for the continuation of the outstanding equity-based
awards granted to the Executive pursuant to the Original Agreement (the “Protected Awards”),
any portion of the then outstanding Protected Awards shall become immediately fully vested
and, to the extent applicable, exercisable. For purposes of this Agreement, a “Change in
Control” means the happening of any of the following:




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	 	(i)	 	The consummation of a transaction, approved by the shareholders of the Company,
to merge the Company into or consolidate the Company with another entity, sell or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation, provided, however, that a Change in Control shall not be deemed to have
occurred by reason of a transaction, or a substantially concurrent or otherwise related
series of transactions, upon the completion of which 50% or more of the beneficial
ownership of the voting power of the Company, the surviving corporation or corporation
directly or indirectly controlling the Company or the surviving corporation, as the
case may be, is held by the same persons (as defined below) (although not necessarily
in the same proportion) as held the beneficial ownership of the voting power of the
Company immediately prior to the transaction or the substantially concurrent or
otherwise related series of transactions, except that upon the completion thereof,
employees or employee benefit plans of the Company may be a new holder of such
beneficial ownership.
	 
	 	(ii)	 	The “beneficial ownership” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) of securities representing 50%
of more of the combined voting power of the Company is acquired, other than from the
Company, by any “person” as defined in Sections 13(d) and 14(d) of the Exchange Act
(other than any trustee or other fiduciary holding securities under an employee benefit
or other similar stock plan of the Company).
	 
	 	(iii)	 	At any time during any period of two consecutive years, individuals who at the
beginning of such period were members of the Board cease for any reason to constitute
at least a majority thereof (unless the election, or the nomination for election by the
Company’s shareholders, of each new trustee was approved by a vote of at least
two-thirds of the trustees still in office at the time of such election or nomination
who were trustees at the beginning of such period).
	 
	 	(iv)	 	For purposes of this Agreement, the following terms shall be defined as
indicated:






               (1) The term “Beneficial Owner” shall mean beneficial owner as defined in Rule 13d-3 under the
Exchange Act.




               (2) Entities shall be treated as being under “common control” during any period in which they
are “affiliates” of each other as that term is defined in the Exchange Act.




               (3) The term “person” shall be as defined in Sections 13(d) and 14(d) of the Exchange Act, but
shall exclude any trustee or other fiduciary holding securities under an employee benefit or other
similar stock plan of the Company.




If, upon a Change in Control, awards in other shares or securities are substituted pursuant to the
LTIP for outstanding Protected Awards, and immediately following the Change in Control, the
Executive becomes employed by the entity into which the Company merged, or the purchaser of
substantially all of the assets of the Company, or a successor to such entity or purchaser, the



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Executive shall not be treated as having terminated employment for purposes of this subparagraph
3(h) until such time as the Executive terminates employment with the merged entity or purchaser (or
successor), as applicable.





	(i)	 	Executive Protection Agreement. As soon as practicable following the Effective Date,
the Company and the Executive shall enter into an Executive Protection Agreement in the
Company’s standard form as modified to take into account the provisions of this Agreement.





     4. Termination. The Executive’s employment with the Company during the Agreement
Term may be terminated by the Company or the Executive without any breach of this Agreement only
under the circumstances described in subparagraphs 4(a) through 4(f):




	(a)	 	Death. The Executive’s employment hereunder will terminate upon his death.
	 
	(b)	 	Permanent Disability. The Company may terminate the Executive’s employment during
any period in which he is Permanently Disabled. The Executive shall be considered
“Permanently Disabled” during any period in which he is unable, by reason of a medically
determinable physical or mental impairment, to engage in the material and substantial duties
of his regular occupation, and such condition is expected to be permanent, as determined by
the Board.
	 
	(c)	 	Cause. The Company may terminate the Executive’s employment hereunder at any time
for Cause. For purposes of this Agreement, the term “Cause” shall mean in the reasonable
judgment of the Board (i) the willful and continued failure by the Executive to substantially
perform his duties with the Company or any subsidiary after written notification by the
Company or subsidiary, (ii) the willful engaging by the Executive in conduct which is
demonstrably injurious to the Company or any subsidiary, monetarily or otherwise, or (iii) the
engaging by the Executive in egregious misconduct involving serious moral turpitude. For
purposes hereof, no act, or failure to act, on the Executive’s part shall be deemed “willful”
unless done, or omitted to be done, by the Executive not in good faith and without reasonable
belief that such action was in the best interest of the Company or subsidiary.
	 
	(d)	 	Constructive Discharge. If (I) the Executive provides written notice to the Company
of the occurrence of Good Reason (as defined below) within a reasonable time after the
Executive has knowledge of the circumstances constituting Good Reason, which notice shall
specifically identifies the circumstances which the Executive believes constitute Good Reason;
(II) the Company fails to notify the Executive of the Company’s intended method of correction
within a reasonable period of time after the Company receives the notice, or the Company fails
to correct the circumstances within a reasonable time after such notice (except that no such
opportunity to correct shall be applicable if the circumstances constituting Good Reason are
those described in clause (iii) below, relating to relocation); and (III) the Executive
resigns within a reasonable time after receiving the Company’s response, if such notice does
not indicate an intention to correct such circumstances, or within a reasonable time after the
Company fails to correct such circumstances; then the Executive shall be considered to have
been subject to a




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	 	 	Constructive Discharge by the Company. For purposes of this Agreement, “Good Reason” shall
mean, without the Executive’s express written consent (and except in consequence of a prior
termination of the Executive’s employment), the occurrence of any of the following
circumstances:






	 	(i)	 	The assignment to the Executive of any duties inconsistent with the Executive’s
position and status as President of Global Development of the Company.
	 
	 	(ii)	 	A reduction by the Company in the Executive’s Salary to an amount that is less
than required under subparagraph 3(a).
	 
	 	(iii)	 	The relocation of the Executive’s base office to an office that is more than
30 highway miles of the Executive’s base office on the Effective Date.
	 
	 	(iv)	 	The failure of the Company to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement.
	 
	 	(v)	 	Any purported termination of the Executive’s employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of subparagraph 4(h)
below (and, if applicable, the requirements of subparagraph 4(b) above), and for
purposes of this Agreement, no such purported termination shall be effective.






	 	 	The Executive’s right to terminate his employment pursuant to this subparagraph 4(d) shall
not be affected by his incapacity due to physical or mental illness. The Executive’s
continued employment shall not constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
	 
	(e)	 	Termination by Executive. The Executive may terminate his employment hereunder at
any time for any reason by giving the Company prior written Notice of Termination (as defined
in subparagraph 4(g)), which Notice of Termination shall be effective not less than 30 days
after it is given to the Company, provided that nothing in this Agreement shall require the
Executive to specify a reason for any such termination. However, to the extent that the
procedures specified in subparagraph 4(d) are required, the procedures of this subparagraph
4(e) may not be used in lieu of the procedures required under subparagraph 4(d).
	 
	(f)	 	Termination by Company. The Company may terminate the Executive’s employment
hereunder at any time for any reason, by giving the Executive prior written Notice of
Termination, which Notice of Termination shall be effective immediately, or such later time as
is specified in such notice. The Company shall not be required to specify a reason for the
termination under this subparagraph 4(f), provided that termination of the Executive’s
employment by the Company shall be deemed to have occurred under this subparagraph 4(f) only
if it is not for reasons described in subparagraph 4(b), 4(c), 4(d), or 4(e). Notwithstanding
the foregoing provisions of this subparagraph 4(f), if the Executive’s employment is
terminated by the Company in accordance with this subparagraph 4(f), and within a reasonable
time period thereafter, it is determined by the Board that circumstances existed which would
have constituted a basis for termination of




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	 	 	the Executive’s employment for Cause in accordance with subparagraph 4(c) disregarding
circumstances which could have been remedied if notice had been given in accordance with
subparagraph 4(c), the Executive’s employment will be deemed to have been terminated for
Cause in accordance with subparagraph 4(c).
	 
	(g)	 	Notice of Termination. Any termination of the Executive’s employment by the Company
or the Executive (other than a termination pursuant to subparagraph 4(a)) must be communicated
by a written Notice of Termination to the other party hereto. For purposes of this Agreement,
a “Notice of Termination” means a dated notice which indicates the Date of Termination (not
earlier than the date on which the notice is provided), and which indicates the specific
termination provision in this Agreement relied on and which sets forth in reasonable detail
the facts and circumstances, if any, claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated.
	 
	(h)	 	Date of Termination. “Date of Termination” means the last day the Executive is
employed by the Company and its affiliates, provided that the Executive’s employment is
terminated in accordance with the foregoing provisions of this paragraph 4.
	 
	(i)	 	Effect of Termination. If, on the Date of Termination, the Executive is a member of
the Board or the board of trustees or board of directors any of the Subsidiaries, or holds any
other position with the Company and the Subsidiaries (other than the position described in
subparagraph 2(a)), the Executive shall resign from all such positions as of the Date of
Termination.





     5. Rights Upon Termination. The Executive’s right to payment and benefits under this
Agreement for periods after his Date of Termination shall be determined in accordance with the
following provisions of this paragraph 5:




	(a)	 	If the Executive’s Date of Termination occurs during the Agreement Term for any reason, the
Company shall pay to the Executive:






	 	(i)	 	The Executive’s Salary (to the extent not previously paid) for the period
ending on the Date of Termination.
	 
	 	(ii)	 	Payment for unused vacation days, as determined in accordance with Company
policy as in effect from time to time.
	 
	 	(iii)	 	If the Date of Termination occurs after the end of a performance period and
prior to the payment of the Target Bonus (as described in subparagraph 3(b)) for the
period, the Executive shall be paid such bonus amount at the regularly scheduled time.
	 
	 	(iv)	 	Any other payments or benefits to be provided to the Executive by the Company
pursuant to any employee benefit plans or arrangements adopted by the Company, to the
extent such amounts are due from the Company.






	 	 	Except as may otherwise be expressly provided to the contrary in this Agreement, nothing in
this Agreement shall be construed as requiring the Executive to be treated as




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	 	 	employed by the Company for purposes of any employee benefit plan or arrangement following
the date of the Executive’s Date of Termination.
	 
	(b)	 	If the Executive’s Date of Termination occurs during the Agreement Term under circumstances
described in subparagraph 4(a) (relating to the Executive’s death), subparagraph 4(b)
(relating to the Executive’s being Permanently Disabled), subparagraph 4(c) (relating to the
Executive’s termination for Cause), subparagraph 4(e) (relating to the Executive’s
resignation), or if the Executive’s employment with the Company terminates after the end of
the Agreement Term then, except as otherwise expressly provided in this Agreement or otherwise
agreed in writing between the Executive and the Company, the Company shall have no obligation
to make payments under the Agreement for periods after the Executive’s Date of Termination;
provided, however that if the Date of Termination occurs as a result of death or on account of
the Executive being Permanently Disabled, equity-based awards granted to the Executive under
the LTIP (or a successor plan thereto), to the extent then outstanding, shall be fully vested
as of the Date of Termination.
	 
	(c)	 	If the Executive’s Date of Termination occurs during the Agreement Term under circumstances
described in subparagraph 4(d) (relating to Constructive Discharge) or subparagraph 4(f)
(relating to termination by the Company without Cause), then, in addition to the amounts
payable in accordance with subparagraph 5(a):






	 	(i)	 	The Executive shall receive from the Company for the period (the “Severance
Period”) from the Date of Termination continuing through the end of the Agreement Term,
or, if later, the six-month anniversary of the Date of Termination, the Salary amount
described in subparagraph 3(a), as in effect on his Date of Termination, in monthly or
more frequent installments as is required under that subparagraph. The Severance
Period, and the Company’s obligation to make payments under this clause (i) shall cease
with respect to periods after the earlier to occur of the date of the Executive’s
death, or a date, if any, of the breach by the Executive of the provisions of
paragraphs 8 or 9 of this Agreement. In no event, however, shall the Executive be
entitled to receive any amounts, rights, or benefits under this subparagraph 5(c)
unless he executes a release of claims against the Company in a form prepared by the
Company.
	 
	 	(ii)	 	Continuation of coverage under the employee benefit plans and arrangements of
the Company in which the Executive was participating at the time of his termination of
employment for the Severance Period; provided that in no event shall the benefits
provided (or made available) with respect to any plan or arrangement under this clause
(c)(ii) be materially less favorable to the Executive than the benefits most favorable
to the Executive that are provided (or were available) during the one-year period prior
to such termination of employment. In determining the amount of benefits to which the
Executive is entitled under this clause (c)(ii), it shall be assumed that the Executive
shall continue to be entitled to the salary that he was receiving immediately prior to
the termination, and the bonus for the year prior to the year in which the termination
occurs. If the Company reasonably determines that the Executive cannot participate in
any




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	 	 	 	benefit plan because he is not actively performing services for the Company, then,
in lieu of providing benefits under any such plan, the Company shall make payments
to the Executive equal to the reduction in funding cost resulting from the
Executive’s exclusion from such plan, which payments shall fully satisfy any
obligation of the Company to continue benefits under such plans; provided that the
Company shall not be permitted to provide substitute benefits under this clause
(c)(ii) with respect to medical insurance, life insurance or disability benefits.
	 
	 	(iii)	 	All of the RSUs granted to the Executive pursuant to section 3(c), all of the
Performance Shares granted to the Executive pursuant to section 3(d), and any other
equity-based awards granted to the Executive under the LTIP (or a successor plan
thereto), to the extent then outstanding, shall be fully vested as of the Date of
Termination.






	(d)	 	Except as may be otherwise specifically provided in an amendment of this subparagraph 5(d)
adopted in accordance with paragraph 16, the Executive’s rights under this paragraph 5 shall
be in lieu of any benefits that may be otherwise payable to or on behalf of the Executive
pursuant to the terms of any severance pay arrangement of the Company or any Subsidiary or any
other, similar arrangement of the Company or any Subsidiary providing benefits upon
involuntary termination of employment , other than the benefits provided by the Executive
Protection Agreement. Notwithstanding any other provision of this Agreement, in the event
that the Executive becomes entitled to benefits under the Executive Protection Agreement, the
Executive shall not be entitled to any benefits under this Agreement on account of his
termination of employment with the Company and its affiliates but rather all such benefits
shall be provided in accordance with the terms of the Executive Protection Agreement.





     6. Duties on Termination. Subject to the terms and conditions of this Agreement,
during the period beginning on the date of delivery of a Notice of Termination, and ending on the
Date of Termination, the Executive shall continue to perform his duties as set forth in this
Agreement, and shall also perform such services for the Company as are necessary and appropriate
for a smooth transition to the Executive’s successor, if any. Notwithstanding the foregoing
provisions of this paragraph 6, the Company may suspend the Executive from performing his duties
under this Agreement following the delivery of a Notice of Termination providing for the
Executive’s resignation, or delivery by the Company of a Notice of Termination providing for the
Executive’s termination of employment for any reason; provided, however, that during the period of
suspension (which shall end on the Date of Termination), the Executive shall continue to be treated
as employed by the Company for other purposes, and his rights to compensation or benefits shall not
be reduced by reason of the suspension.



     7. Mitigation and Set-Off. The Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or otherwise. The
Company shall not be entitled to set off against the amounts payable to the Executive under this
Agreement any amounts owed to the Company by the Executive, any amounts earned by the Executive in
other employment after termination of his employment with the Company, or any



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amounts which might have been earned by the Executive in other employment had he sought such
other employment.




     8. Confidential Information. The Executive agrees that, during the Agreement Term,
and at all times thereafter:




	(a)	 	Except as may be required by the lawful order of a court or agency of competent jurisdiction,
except as necessary to carry out his duties to the Company and its Subsidiaries, or except to
the extent that the Executive has express authorization from the Company, the Executive agrees
to keep secret and confidential indefinitely, all Confidential Information, 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)	 	To the extent that any court or agency seeks to have the Executive disclose Confidential
Information, he shall promptly inform the Company, and he shall take such reasonable steps to
prevent disclosure of Confidential Information until the Company has been informed of such
requested disclosure, and the Company has an opportunity to respond to such court or agency.
To the extent that the Executive obtains information on behalf of the Company or any of the
Subsidiaries that may be subject to attorney-client privilege as to the Company’s attorneys,
the Executive shall take reasonable steps to maintain the confidentiality of such information
and to preserve such privilege.
	 
	(c)	 	Nothing in the foregoing provisions of this paragraph 8 shall be construed so as to prevent
the Executive from using, in connection with his employment for himself or an employer other
than the Company or any of the Subsidiaries, knowledge which was acquired by him during the
course of his employment with the Company and the Subsidiaries, and which is generally known
to persons of his experience in other companies in the same industry.
	 
	(d)	 	For purposes of this Agreement, the term “Confidential Information” shall include all
non-public information (including, without limitation, information regarding litigation and
pending litigation) concerning the Company and the Subsidiaries which was acquired by or
disclosed to the Executive during the course of his employment with the Company, or during the
course of his consultation with the Company following his Date of Termination (regardless of
whether consultation is pursuant to paragraph 10).
	 
	(e)	 	This paragraph 8 shall not be construed to unreasonably restrict the Executive’s ability to
disclose confidential information in an arbitration proceeding or a court proceeding in
connection with the assertion of, or defense against any claim of breach of this Agreement in
accordance with paragraph 23. If there is a dispute between the Company and the Executive as
to whether information may be disclosed in accordance with this subparagraph 8(e) the matter
shall be submitted to the arbitrators or the court (whichever is applicable) for decision.





     9. Noncompetition. During the Restricted Period (as defined below) the Executive will
not, without the Company’s prior written consent (which consent shall not be unreasonably



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withheld), 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:





	 	(a)	 	engage or participate in, 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, any business or entity which is
Competitive with the Company (as defined below) or purchase any property which could
reasonably be used to provide or develop a business that is Competitive with the
Company; or
	 
	 	(b)	 	solicit or attempt to hire or employ, in any fashion (whether as an employee,
independent contractor or otherwise), any employee or independent contractor of the
Company or the Subsidiaries, or solicit or induce, or attempt to solicit or induce, any
of the Company’s or the Subsidiaries’ employees, consultants, clients, customers,
vendors, suppliers or independent contractors to terminate their relationship with the
Company and/or the Subsidiaries; or






For purposes of this Agreement:




	 	(i)	 	With respect to subparagraph 9(a) above, the “Restricted Period” means the
period during which the Executive is employed by the Company and, if the Executive’s
Date of Termination occurs prior to December 31, 2007 other than on account of
termination by the Company for reasons other than Cause, the period following the
Executive’s Date of Termination and ending on December 31, 2007.
	 
	 	(ii)	 	With respect to subparagraph 9(b) above, the “Restricted Period” means the
period during which the Executive is employed by the Company and, if the Executive’s
Date of Termination occurs prior to December 31, 2008, the period following the
Executive’s Date of Termination and ending on December 31, 2008.
	 
	 	(iii)	 	A business or entity shall be considered “Competitive with the
Company” if it engages in any of the businesses in which the Company or any of its
affiliates engages, including the business of providing distribution facilities or
services, the acquisitions of properties for such purpose and the design of business
strategies for such purpose. For purposes of the portion of the Restricted Period
following the Executive’s Date of Termination, the businesses in which the Company or
any of its affiliates engages shall be determined as of the Executive’s Date of
Termination.
	 
	 	(iv)	 	For periods after the Executive’s Date of Termination, a business entity shall
not be considered “Competitive with the Company” (as defined in clause (iii)
above) for purposes of this Agreement if it builds anything other than industrial
warehouses or acquires property for purposes of developing anything other than
industrial warehouses and the Executive’s investment in such business or entity




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	 	 	 	does not exceed $10,000,000 with respect to any one transaction or $20,000,000 in
the aggregate for all transactions for the portion of the Restricted Period
following his Date of Termination.





     10. Assistance with Claims. The Executive agrees that, for the period beginning on
the Effective Date, and continuing for a reasonable period after the Executive’s Date of
Termination, the Executive will assist the Company and the Subsidiaries in defense of any claims
that may be made against the Company and the Subsidiaries, and will assist the Company and the
Subsidiaries in the prosecution of any claims that may be made by the Company or the Subsidiaries,
to the extent that such claims may relate to services performed by the Executive for the Company
and the Subsidiaries. The Executive agrees to promptly inform the Company if he becomes aware of
any lawsuits involving such claims that may be filed against the Company or any Subsidiary. The
Company agrees to provide legal counsel to the Executive in connection with such assistance (to the
extent legally permitted), and to reimburse the Executive for all of the Executive’s reasonable
out-of-pocket expenses associated with such assistance, including travel expenses and reasonable
legal expenses. The Executive shall choose his legal counsel in his reasonable sole discretion.
For periods after the Executive’s employment with the Company terminates, the Company agrees to
provide reasonable compensation to the Executive for such assistance. The Executive also agrees to
promptly inform the Company if he is asked to assist in any investigation of the Company or the
Subsidiaries (or their actions) that may relate to services performed by the Executive for the
Company or the Subsidiaries, regardless of whether a lawsuit has then been filed against the
Company or the Subsidiaries with respect to such investigation.



     11. Directors and Officers Insurance. The Executive shall be named as an insured and
covered against the same claims and at the same level of insurance under the Directors and Officers
insurance purchased by the Company for other senior executives of the Company.



     12. Equitable Remedies. The Executive acknowledges that the Company would be
irreparably injured by a violation of paragraphs 8 or 9 and he agrees that the Company, in addition
to any other remedies available to it for such breach or threatened breach, shall be entitled to a
preliminary injunction, temporary restraining order, or other equivalent relief, restraining the
Executive from any actual or threatened breach of either paragraphs 8 or 9. If a bond is required
to be posted in order for the Company to secure an injunction or other equitable remedy, the
parties agree that said bond need not be more than a nominal sum.



     13. Nonalienation. The interests of the Executive under this Agreement are not
subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors of the Executive or the Executive’s beneficiary.



     14. Withholding. All payments and benefits under this Agreement are subject to
withholding of all applicable taxes.



     15. Indemnity. The Company indemnify the Executive against and shall pay and advance
all expenses, including, without limitation, attorneys’ fees, disbursements and retainers,
accounting and witness fees, travel and deposition costs, expenses of investigations, judicial or
administrative proceedings and appeals, amounts paid in settlement by the Executive or on behalf of
the Executive, actually incurred by the Executive in connection with any threatened,



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pending or completed claim, action, suit or proceeding, formal or informal, whether brought in
the right of the Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, by reason of the fact that the Executive as a director, officer, employee or
agent of the Company or its affiliates or as serving at the Company’s request as a director,
officer, employee, or agent of another corporation, limited liability company, partnership, joint
venture, trust, or other enterprise.




     16. Amendment. This Agreement may be amended or cancelled only by mutual agreement of
the parties in writing without the consent of any other person. So long as the Executive lives, no
person, other than the parties hereto, shall have any rights under or interest in this Agreement or
the subject matter hereof. Without limiting the generality of the foregoing, it is the intent of
the parties that all payments hereunder comply with the requirements of section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), and applicable guidance issued thereunder
and, to the extent applicable, this Agreement shall be amended as the parties deem necessary or
appropriate to comply with the requirements of section 409A and applicable guidance issued
thereunder in a manner that preserves to the extent possible the intended benefits of this
Agreement for the parties.



     17. Applicable Law. The provisions of this Agreement shall be construed in accordance
with the laws of the State of Colorado, without regard to the conflict of law provisions of any
state.



     18. 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).



     19. Waiver of Breach. No waiver by any party hereto of a breach of any provision of
this Agreement by any 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 of any similar or dissimilar provisions and conditions at the
same or any prior or 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 action at any time while such
breach continues.



     20. Successors. This Agreement shall be binding upon, and inure to the benefit of,
the Company and its successors and assigns and upon any person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the Company’s assets
and business , and the successor shall be substituted for the Company under this Agreement.



     21. Notices. Notices and all other communications provided for in this Agreement
shall be in writing and shall be delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid (provided that international mail shall be sent via
overnight or two-day delivery), or sent by facsimile or prepaid overnight courier to the parties at
the addresses set forth below (or such other addresses as shall be specified by the parties by like
notice). Such notices, demands, claims and other communications shall be deemed given:



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	(a)	 	in the case of delivery by overnight service with guaranteed next day delivery, the next day
or the day designated for delivery;
	 
	(b)	 	in the case of certified or registered U.S. mail, five days after deposit in the U.S. mail;
or
	 
	(c)	 	in the case of facsimile, the date upon which the transmitting party received confirmation of
receipt by facsimile, telephone or otherwise;




provided, however, that in no event shall any such communications be deemed to be given later than
the date they are actually received. Communications that are to be delivered by the U.S. mail or
by overnight service or two-day delivery service are to be delivered to the addresses set forth
below:




to the Company:



4545 Airport Way

Denver, CO 80239

Attn:   General Counsel

Fax:   (303) 567-5761




or to the Executive:



29029 Upper Bear Creek Road, #203

Evergreen, Colorado 80439

Fax:  (303) 980-3493



All notices to the Company shall be directed to the attention of the General Counsel of the
Company, with a copy to the Secretary of the Company. Each party, by written notice furnished to
the other party, may modify the applicable delivery address, except that notice of change of
address shall be effective only upon receipt.




     22. Arbitration of All Disputes. Any controversy or claim arising out of or relating
to this Agreement (or the breach thereof) shall be settled by final, binding and non-appealable
arbitration in Colorado by three arbitrators. Except as otherwise expressly provided in this
paragraph 22, the arbitration shall be conducted in accordance with the rules of the American
Arbitration Association (the “Association”) then in effect. One of the arbitrators shall be
appointed by the Company, one shall be appointed by the Executive, and the third shall be appointed
by the first two arbitrators. If the first two arbitrators cannot agree on the third arbitrator
within 30 days of the appointment of the second arbitrator, then the third arbitrator shall be
appointed by the Association.



     23. Legal and Enforcement Costs. The provisions of this paragraph 23 shall apply if
it becomes necessary or desirable for the Executive to retain legal counsel or incur other costs
and expenses in connection with either enforcing any and all of his rights under this Agreement or
defending against any allegations of breach of this Agreement by the Company:




	(a)	 	The Executive shall be entitled to recover from the Company reasonable attorneys’ fees, costs
and expenses incurred by him in connection with such enforcement or defense.




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	(b)	 	Payments required under this paragraph 23 shall be made by the Company to the Executive (or
directly to the Executive’s attorney) promptly following submission to the Company of
appropriate documentation evidencing the incurrence of such attorneys’ fees, costs, and
expenses.
	 
	(c)	 	The Executive shall be entitled to select his legal counsel; provided, however, that such
right of selection shall not affect the requirement that any costs and expenses reimbursable
under this paragraph 23 be reasonable.
	 
	(d)	 	The Executive’s rights to payments under this paragraph 23 shall not be affected by the final
outcome of any dispute with the Company; provided, however, that to the extent that the
arbitrators shall determine that under the circumstances recovery by the Executive of all or a
part of any such fees and costs and expenses would be unjust or inappropriate, the Executive
shall not be entitled to such recovery; and to the extent that such amount have been recovered
by the Executive previously, the Executive shall repay such amounts to the Company.





     24. Survival of Agreement. Except as otherwise expressly provided in this Agreement,
the rights and obligations of the parties to this Agreement shall survive the termination of the
Executive’s employment with the Company.



     25. Entire Agreement. Except as otherwise noted herein or in any separation agreement
subsequently entered into by the Executive and the Company, this Agreement, including any
Exhibit(s) attached hereto, 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; including the Original Agreement; provided, however,
that nothing in this Agreement shall be construed to limit any policy or agreement that is
otherwise applicable relating to confidentiality, rights to inventions, copyrightable material,
business and/or technical information, trade secrets, solicitation of employees, interference with
relationships with other businesses, competition, and other similar policies or agreement for the
protection of the business and operations of the Company and the Subsidiaries. Notwithstanding the
foregoing, in consideration for the Company’s obligations under the Original Agreement, the
Executive waived all rights under that certain Memorandum of Understanding dated March 26, 2004, as
amended as of February 16, 2005 (the “MOU”), between the Executive and Catellus Development
Corporation (“Catellus”) and released Catellus and the Company from any and all obligations under
the MOU; provided, however, that the provisions of Paragraph 8 of the MOU (relating to
indemnification) continued and shall continue to apply, Appendix B of the MOU (relating to the Tax
Protection Policy) continued and shall continue to apply in all respects without limitation to any
payment, distribution or benefit which is determined to be subject to excise tax under section 4999
of the Code as a result of the Merger (as defined in the Original Agreement) and Paragraph 10.3(b)
of the MOU continued and will continue to apply with respect to awards referenced therein that are
outstanding immediately prior to the Merger.



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     IN WITNESS THEREOF, the Executive has hereunto set his hand, and the Company has caused these
presents to be executed in its name and on its behalf, all as of the Effective Date.



	 	 	 	 	 
	 	 	 
	 	                                                   /s/ Ted R. Antenucci
 	 
	 	Ted R. Antenucci 	 
	 	 	 
	 



	 	 	 	 	 
	 	ProLogis

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



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