exv10w1



 





EXHIBIT 10.1







AMENDED AND RESTATED




CHANGE IN CONTROL AND NONCOMPETITION AGREEMENT




          THIS AMENDED AND RESTATED CHANGE IN CONTROL AND NONCOMPETITION AGREEMENT (the “Agreement”) is
dated as of _____________________, between AMB Property, L.P., a Delaware limited partnership (the
“Company”), and _____________________ (the “Executive”). This Agreement supersedes in its entirety that
certain Change in Control and Noncompetition Agreement entered into between the Company and the
Executive as of _____________________.




	1.	 	TERM OF AGREEMENT





          This Agreement shall commence on the date hereof and will terminate on November 26, 2005;
provided, however, that commencing on November 26, 2005, and each November 26 thereafter, the term
of this Agreement shall be automatically extended for one additional year unless, not later than
October 30 of the preceding year, the Company shall have given notice that it does not wish to
extend this Agreement; provided, further, that if a Change in Control (as defined in Section 2)
occurs during the original or extended term of this Agreement, this Agreement shall continue in
effect until the later of November 26, 2005 and twenty-four (24) months after the date on which
such Change in Control occurred (the “Change in Control Date”).




	2.	 	DEFINITIONS





For purposes of this Agreement, the following terms shall have the following meanings:



“Cause” shall mean:




          (a) gross negligence or willful misconduct in the performance of the
Executive’s duties;




          (b) the Executive’s willful and continued failure to substantially perform the
Executive’s duties with the Company (other than a failure resulting from the
Executive’s incapacity due to physical or mental illness or any failure after the
Executive’s issuance of a Notice of Termination (as defined in Section 3.6)), after
a written demand for substantial performance is delivered to the Executive by the
Board of Directors (the “Board”) of AMB Property Corporation, a Maryland corporation
(the “General Partner”);




          (c) fraud or other conduct against the material best interests of the Company;
or




          (d) a conviction of a felony if such conviction has a material adverse effect
on the Company.



 









 





A “Change in Control” shall be deemed to occur if:




          (a) the shareholders of the General Partner approve a plan of complete
liquidation of the General Partner or an agreement for the sale or disposition by
the General Partner of all or substantially all of the General Partner’s assets, or
the General Partner disposes of more than fifty percent (50%) of its interest in the
Company;




          (b) any Person (as defined below) is or becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the General Partner
representing forty percent (40%) or more of the combined voting power of the General
Partner’s then outstanding securities. For purposes of this Agreement, (A) the term
“Person” is used as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”); provided, however, that the
term shall not include the General Partner, any trustee or other fiduciary holding
securities under an employee benefit plan of the General Partner, and any
corporation owned, directly or indirectly, by the shareholders of the General
Partner, in substantially the same proportions as their ownership of stock of the
General Partner, and (B) the term “Beneficial Owner” shall have the meaning given to
such term in Rule 13d-3 under the Exchange Act;




          (c) during any period of two (2) consecutive years (not including any period
prior to the execution of this Agreement), individuals who at the beginning of such
period constitute the Board, and any new director (other than a director designated
by a person who has entered into an agreement with the General Partner to effect a
transaction described in clauses (a), (b) or (d)) whose election by the Board or
nomination for election by the General Partner’s shareholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least a
majority thereof; or




          (d) the shareholders of the General Partner approve a merger or consolidation
of the General Partner with any other corporation (or other entity), other than (i)
a merger or consolidation which would result in the voting securities of the General
Partner outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving
entity) more than fifty percent (50%) of the combined voting power of the voting
securities of the General Partner or such surviving entity outstanding immediately
after such merger or consolidation or (ii) where more than fifty percent (50%) of
the directors of the General Partner or the surviving entity after such merger or
consolidation were directors of the General Partner immediately before such merger
or consolidation.



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“Date of Termination” shall mean:




          (a) if the Executive’s employment is terminated by his death, the date of his
death;




          (b) if the Executive’s employment is terminated by reason of his Disability,
the date of the opinion of the physician referred to in the definition of
“Disability” hereof; or




          (c) if the Executive’s employment is terminated by the Company or by the
Executive for any reason other than death or Disability, the date specified in the
Notice of Termination;


provided, that, if within fifteen (15) days after any Notice of Termination (as defined in Section
3.6) is given, the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be the date on which
the dispute is finally resolved, either by mutual written agreement of the parties, or otherwise;
provided, however, that the Date of Termination shall be extended by a notice of dispute only if
such notice is given in good faith and the party giving such notice pursues the resolution of such
dispute with reasonable diligence.




                    “Disability” shall mean the Executive’s physical or mental disability or infirmity which, in
the opinion of a competent physician selected by the Board, renders the Executive unable to perform
properly his duties as an employee of the Company, and as a result, the Executive is unable to
perform such duties for six (6) consecutive calendar months or for shorter periods aggregating one
hundred and eighty (180) business days in any twelve (12) month period, but only to the extent that
such definition does not violate the Americans with Disabilities Act.



                    “Good Reason” shall mean, without the Executive’s express written consent, the occurrence
after a Change in Control of any of the following circumstances unless such circumstances are fully
corrected (provided such circumstances are capable of correction) prior to the Date of Termination
as specified in the Notice of Termination:




          (a) the assignment to the Executive of any duties inconsistent with the position in the
Company that the Executive held immediately prior to the Change in Control Date, a
significant adverse alteration in the nature or status of the Executive’s responsibilities
or the conditions of the Executive’s employment from those in effect immediately prior to
the Change in Control Date, or any other action by the Company that results in a material
diminution in the Executive’s position, authority, duties or responsibilities from those in
effect immediately prior to the Change in Control Date;




          (b) a reduction in the Executive’s annual base compensation as in effect on the Change
in Control Date;




          (c) the relocation of the Company’s offices at which the Executive is principally
employed immediately prior to the Change in Control Date (the “Principal



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Location”) to a location more than fifty (50) miles from such location or the Company’s
requiring the Executive, without the Executive’s written consent, to be based anywhere other
than the Principal Location, except for required travel on the Company’s business to an
extent substantially consistent with the Executive’s business travel obligations prior to
the Change in Control Date;





          (d) the Company’s failure to pay to the Executive any portion of the Executive’s
compensation or to pay to the Executive any portion of an installment of deferred
compensation under any deferred compensation program of the Company within seven (7) days of
the date such compensation is due; or




          (e) the Company’s failure to continue in effect any material compensation or benefit
plan or practice in which the Executive is eligible to participate in on the Change in
Control Date (other than any equity based plan), unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made with respect to such plan, or
the Company’s failure to continue the Executive’s participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both in terms of
the amount of benefits provided and the level of the Executive’s participation relative to
other participants, as existed at the time of the Change in Control Date;


provided, however, that the Executive’s continued employment shall not constitute consent to, or a
waiver of rights with respect to, any circumstance constituting Good Reason hereunder.





	3.
	 	COMPENSATION UPON TERMINATION






          3.1.       Death.




                              Whether or not there is a Change in Control, if the Executive’s employment shall be terminated
due to the Executive’s death, the Company shall pay monthly to the Executive’s estate for a period
equal to one (1) year following the Date of Termination an amount equal to the sum of: (i)
one-twelfth of the Executive’s annual base compensation as in effect on the Date of Termination
plus (ii) one-twelfth of any bonus at the most recent annual amount received, or entitled to be
received, by the Executive for the most recent annual period. At the Executive’s estate’s expense,
the Executive’s spouse and children shall also be entitled to any continuation of health insurance
coverage rights under any applicable law.




          3.2.       Disability.




                       Whether or not there is a Change in Control, if the Executive’s employment shall be terminated
by reason of Disability, the Company shall pay to the Executive a single payment in an amount equal
to the sum of: (i) the Executive’s annual base compensation as in effect on the Date of Termination
plus (ii) an amount equal to the annual bonus received, or entitled to be received, by the
Executive for the most recent annual period. Such payment shall be in addition to any disability
insurance payments to which the Executive is otherwise entitled. At the Executive’s own expense,
the Executive and the Executive’s spouse and children shall also be entitled to any continuation of
health insurance coverage rights under any applicable law.



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            3.3.     Termination Upon Change in Control.




                        If during the term or extended term of this Agreement and within two (2) years following a
Change in Control, the Executive’s employment with the Company is terminated, in addition to his
base compensation and any bonus then payable through the Date of Termination and, at the
Executive’s own expense, any continuation of health insurance coverage rights under any applicable
law, the Executive shall be entitled to the benefits provided below, unless such termination is (i)
because of the Executive’s death, Disability or retirement, (ii) by the Company for Cause or (iii)
by the Executive other than for Good Reason; provided, however, that in the event the Executive’s
employment is terminated for any reason and subsequently a Change in Control occurs, the Executive
shall not be entitled to any benefits hereunder, other than pursuant to Sections 3.1 and 3.2:




                        (a)     the Company shall pay to the Executive, when due, the Executive’s base compensation and
any bonus then payable through the Date of Termination;




                        (b)     in lieu of any further salary payments to the Executive for periods subsequent to the Date
of Termination, the Company shall pay as severance pay to the Executive a lump sum payment in cash
within 30 days of the Date of Termination equal to the sum of the following:




                                (i)     two (2) times the Executive’s annual base compensation as in effect as of the Date of
Termination or immediately prior to the Change in Control Date, whichever is greater; and




                                (ii)     two (2) times the average of the annual bonus payments received, or entitled to be
received, by the Executive for the three (3) most recent annual periods; provided, however, that if
the Executive has been employed by the Company as an executive officer for less than three (3)
years, then he or she shall be paid two (2) times the average of the annual bonus payments
received, or entitled to be received, by the Executive for all prior annual periods that the
Executive was employed by the Company as an executive officer (annualizing any prorated bonus for a
partial first year);




                        (c)     for a twenty-four (24) month period after such termination (the “Coverage Period”), the
Company shall continue to provide the Executive and the Executive’s eligible family members with
medical and dental health benefits and life and disability insurance at least equal to those which
would have been provided to the Executive and them if the Executive’s employment had not been
terminated or, if more favorable to the Executive, as in effect generally at any time thereafter;
provided, however, that if the Executive becomes re-employed with another employer and is eligible
to receive medical and dental health benefits and life and disability insurance under another
employer’s plans, the Company’s obligations under this Section 3.3(c) shall be reduced to the
extent comparable benefits are actually received by the Executive during the twenty-four (24) month
period following the Executive’s termination, and any such benefits actually received by the
Executive shall be reported to the Company; and




                        (d)     the Company shall pay to the Executive on or about the date or dates that the
contributions would have been made an amount equal to the aggregate amount of



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the Company’s maximum contributions that would have been made under the Company’s 401(k) plan
(the “401(k) Plan”) during the Coverage Period if the Executive had continued to be employed and
participated in the 401(k) Plan during the Coverage Period.





          3.4.     Certain Additional Payments by the Company.




                     (a)     Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any Payment would be subject to the Excise Tax, then the
Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by the Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.




                     (b)     Subject to the provisions of Section 3.4(c), all determinations required to be made under
this Section 3.4, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by the nationally recognized certified public accounting firm used by the Company immediately
prior to the Change in Control or, if such firm declines to serve, such other nationally recognized
certified public accounting firm as may be designated by the Executive (the “Accounting Firm”)
which shall provide detailed supporting calculations both to the Company and the Executive within
15 business days of the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Subject to Section 3.4(e) below, any Gross-Up Payment, as determined
pursuant to this Section 3.4, shall be paid by the Company to the Executive within five days of the
receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. For purposes of making the calculations required by
this Section 3.4, the Accounting Firm may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good-faith interpretations concerning the application
of Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended (the “Code”). As a
result of the uncertainty in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not have been made by the Company should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that the Company exhausts its remedies
pursuant to Section 3.4(c) and the Executive thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.




                     (c)     The Executive shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than ten business days after
the Executive is informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following
the



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date on which it gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to contest such claim,
the Executive shall:




               (i)     give the Company any information reasonably requested by the Company relating to such
claim;




               (ii)     take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the Company;




               (iii)     cooperate with the Company in good faith in order effectively to contest such claim; and




               (iv)     permit the Company to participate in any proceedings relating to such claim;


provided, however, that the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and shall indemnify and
hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such representation and payment
of costs and expenses. Without limitation on the foregoing provisions of this Section 3.4(c), the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties
with respect thereto) imposed with respect to such advance or with respect to any imputed income
with respect to such advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the
Company’s control of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.





               (d)     If, after the receipt by the Executive of an amount advanced by the Company pursuant to
Section 3.4(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the
requirements of Section 3.4(c)) promptly pay to the Company the amount of such refund



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(together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt
by the Executive of an amount advanced by the Company pursuant to Section 3.4(c), a determination
is made that the Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance shall be forgiven
and shall not be required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.





               (e)     Notwithstanding any other provision of this Section 3.4, the Company may withhold and pay
over to the Internal Revenue Service for the benefit of the Executive all or any portion of the
Gross-Up Payment that it determines in good faith that it is or may be in the future required to
withhold, and the Executive hereby consents to such withholding.




               (f)      Definitions.     The following terms shall have the following meanings for purposes
of this Section 3.4.





                         (i)     “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code, together with
any interest or penalties imposed with respect to such excise tax.





                         (ii)     A “Payment” shall mean any payment, benefit or distribution in the nature of compensation
(within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive,
whether paid or payable pursuant to this Agreement or otherwise.




  3.5.     Accelerated Vesting of Options and other Equity-Based Awards upon a Change in
Control.     Notwithstanding anything to the contrary set forth in any stock, option or other
equity incentive award plan of the Company or in any option, restricted stock or other
equity-based award agreement between the Company and the Executive (regardless of whether such
agreement is under any such stock, option or other equity incentive award plan), upon a Change in
Control (or at such other time prior to a Change in Control as may be determined by the Board in
its discretion), all options to acquire any equity securities of the Company held by the Executive
shall immediately become exercisable and fully vested and all shares of restricted stock,
restricted stock units, deferred stock awards and other awards based upon the Company’s equity
securities held by the Executive shall immediately become fully vested, exercisable or payable, as
applicable, and any forfeiture provisions with respect to such awards shall immediately lapse;
provided , however, that the payment of any such accelerated amounts may be delayed to the extent
necessary to comply with Code Section 409A and any regulations promulgated thereunder. If the
vesting of an award has been accelerated pursuant to this Section 3.5 expressly in anticipation of
a Change in Control and the Board later determines that the Change in Control will not be
consummated, the Board may rescind the effect of the acceleration as to any accelerated awards.


  3.6     Notice.     Any termination of the Executive’s employment by the Company or the
Executive shall be communicated by written notice of termination to the other party (the “Notice of
Termination”). The Notice of Termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and


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circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated.





          3.7     Termination Obligations.




                    (a)     The Executive hereby acknowledges and agrees that all Personal Property and equipment
furnished to or prepared by the Executive in the course of or incident to his employment, belongs
to the Company and shall be promptly returned to the Company upon termination of the Executive’s
employment. “Personal Property” includes, without limitation, all electronic devices of the
Company used by the Executive, including, without limitation, personal computers, facsimile
machines, cellular telephones, pagers and tape recorders and all books, manuals, records, reports,
notes, contracts, lists, blueprints, maps and other documents, or materials, or copies thereof
(including computer files), and all other proprietary information relating to the business of the
Company. Following termination, the Executive will not retain any written or other tangible
material containing any proprietary information of the Company.




                    (b)     The Executive’s obligations under this Section 3.7 and Section 4 hereof shall survive
termination of the Executive’s employment and the expiration of this Agreement.




                    (c)     Upon termination of the Executive’s employment, the Executive will be deemed to have
resigned from all offices and directorships then held with the Company or any affiliate.




          3.8     No Duty to Mitigate. The Executive shall not be required to mitigate the amount
of any payment provided for herein by seeking other employment or otherwise, nor shall the amount
of any payment or benefit provided for herein be reduced by any compensation earned by the
Executive as the result of employment by another employer.




	4.	 	CONFIDENTIALITY, NONCOMPETITION AND NONSOLICITATION COVENANTS






          4.1     Confidentiality. In consideration of and in connection with the benefits
provided to the Executive under this Agreement, the Executive hereby agrees that the Executive will
not, during the Executive’s employment or at any time thereafter directly or indirectly disclose or
make available to any person, firm, corporation, association or other entity for any reason or
purpose whatsoever, any Confidential Information (as defined below). The Executive agrees that,
upon termination of his employment with the Company, all Confidential Information in his possession
that is in written or other tangible form (together with all copies or duplicates thereof,
including computer files) shall be returned to the Company and shall not be retained by the
Executive or furnished to any third party, in any form except as provided herein; provided,
however, that the Executive shall not be obligated to treat as confidential, or return to the
Company copies of any Confidential Information that (i) was publicly known at the time of
disclosure to the Executive, (ii) becomes publicly known or available thereafter other than by
any means in violation of this Agreement or any other duty owed to the Company by the Executive, or
(iii) is lawfully disclosed to the Executive by a third party. As used in this Agreement the term
“Confidential Information” means information disclosed to the Executive or



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known by the Executive as a consequence of or through his relationship with the Company, about the owners, tenants,
employees, consultants, vendors, business methods, public relations methods, organization,
procedures, property acquisition and development, or finances, including, without limitation,
information of or relating to owner or tenant lists of the Company and its affiliates.





          4.2     Noncompetition. During the term of the Executive’s employment, the Executive
shall not engage in any activities, directly or indirectly, in respect of commercial real estate,
and will not make any investment in respect of industrial real estate, other than through
ownership of not more than five percent (5%) of the outstanding shares of a public company engaged
in such activities and through investments listed on Schedule I hereto.




          4.3     Nonsolicitation. In consideration of and in connection with the benefits provided
to the Executive under this Agreement, for a period of two (2) years following the Date of
Termination, the Executive shall not solicit or induce any of the Company’s or its affiliates’
employees, agents or independent contractors to end their relationship with the Company or its
affiliates, or recruit, hire or otherwise induce any such person to perform services for the
Executive, or any other person, firm or company.




	5.	 	GENERAL PROVISIONS






          5.1     Successors; Binding Agreement




                            (a)     The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall entitle the Executive to receive
compensation from the Company in the same amount and on the same terms to which the Executive would
be entitled hereunder if the Executive terminated the Executive’s employment for Good Reason
following a Change in Control, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of Termination. Unless
expressly provided otherwise, “Company” as used herein shall mean the Company as defined in this
Agreement and any successor to its business and/or assets as aforesaid.




                     (b)    This Agreement shall inure to the benefit of and be enforceable by the Executive and the
Executive’s personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any amount would still be
payable to the Executive hereunder had the Executive continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of his Agreement to the Executive’s devisee, legatee or other designee or, if there is no such
designee, to the Executive’s estate.




          5.2     Injunctive Relief and Enforcement. The Executive acknowledges that the remedies
at law for any breach by him of the provisions of Sections 3.7 or 4 hereof may be



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inadequate and
that, therefore, in the event of breach by the Executive of the terms of Sections 3.7 or 4 hereof,
the Company shall be entitled to institute legal proceedings to enforce the specific performance of
this Agreement by the Executive and to enjoin the Executive from any further violation of Sections
3.7 or 4 hereof and to exercise such remedies cumulatively or in conjunction with all other rights
and remedies provided by law and not otherwise limited by this Agreement.





          5.3     No Contract of Employment. The Executive acknowledges that the Executive’s
employment with the Company is at will. This Agreement shall not confer upon the Executive any
right of continued or future employment by the Company or any right to compensation or benefits
from the Company except the rights specifically stated herein, and shall not limit the right of the
Company to terminate the Executive’s employment at any time with or without cause.




          5.4     Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when addressed as follows and (i) when personally delivered, (ii) when transmitted by
telecopy, electronic or digital transmission with receipt confirmed, (iii) one day after delivery
to an overnight air courier guaranteeing next day delivery, or (iv) upon receipt if sent by
certified or registered mail. In each case notice shall be sent to:



	 	 	 
	   If to Executive:

	 	[Name]

AMB Property Corporation

[Address]

[Address]

Facsimile:






	 	 	 
	   If to the Company:

	 	AMB Property Corporation

Pier 1, Bay 1

San Francisco, CA 94111

Attention: General Counsel

Facsimile: (415) 394-9001






or to such other address as any party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.





          5.5     Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect. In addition, in the event any provision in
this Agreement shall be determined by any court of competent jurisdiction to be unenforceable by reason of extending for too great a period of time or over too great a
geographical area or by reason of being too extensive in any other respect, each such agreement
shall be interpreted to extend over the maximum period of time for which it may be enforceable and
to the maximum extent in all other respects as to which it may be enforceable, and enforced as so
interpreted, all as determined by such court in such action.



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          5.6     Assignment. This Agreement may not be assigned by the Executive, but may be
assigned by the Company to any successor to its business and will inure to the benefit and be
binding upon any such successor.




          5.7     Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.




          5.8     Headings. The headings contained herein are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.




          5.9     Choice of Law. This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of California without giving effect to the principles of
conflict of laws thereof.




          5.10     Indemnification. To the fullest extent permitted under applicable law, the
Company shall indemnify, defend and hold the Executive harmless from and against any and all causes
of action, claims, demands, liabilities, damages, costs and expenses of any nature whatsoever
(collectively, “Damages”) directly or indirectly arising out of or relating to the Executive
discharging the Executive’s duties on behalf of the Company and/or its respective subsidiaries and
affiliates, so long as the Executive acted in good faith within the course and scope of the
Executive’s duties with respect to the matter giving rise to the claim or Damages for which the
Executive seeks indemnification.




          5.11     LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE COMPANY IS AWARDED
ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED TO THIS AGREEMENT, A BREACH OF ANY
COVENANT CONTAINED IN THIS AGREEMENT (WHETHER EXPRESS OR IMPLIED BY EITHER LAW OR FACT), OR ANY
OTHER CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT,
SUCH DAMAGES SHALL BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I) PUNITIVE DAMAGES, AND
(II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST PROFITS AND OTHER INDIRECT OR
SPECULATIVE DAMAGES). THE MAXIMUM AMOUNT OF DAMAGES THAT THE EXECUTIVE MAY RECOVER FOR ANY REASON
SHALL BE THE AMOUNT EQUAL TO ALL AMOUNTS OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS
AGREEMENT THROUGH ITS TERM AND THROUGH ANY APPLICABLE SEVERANCE PERIOD, PLUS INTEREST ON ANY
DELAYED PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY APPLICABLE LAW FROM AND AFTER THE
DATE(S) THAT SUCH PAYMENTS WERE DUE.




          5.12     WAIVER OF JURY TRIAL. TO THE EXTENT APPLICABLE, EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT.



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          5.13     Attorneys’ Fees. If any legal action, arbitration or other proceeding, is
brought for the enforcement of this Agreement, or because of an alleged dispute, breach or default
in connection with any of the provisions of this Agreement, the prevailing party shall be entitled
to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding,
including any appeal of such action or proceeding, in addition to any other relief to which that
party may be entitled.




          5.14     Entire Agreement. This Agreement contains the entire agreement and
understanding between the Company and the Executive with respect to the matters contained herein,
and no representations, promises, agreements or understandings, written or oral, not herein
contained shall be of any force or effect. This Agreement shall not be changed unless in writing
and signed by both the Executive and the Company.




          5.15     The Executive’s Acknowledgment. The Executive acknowledges (a) that he has had
the opportunity to consult with independent counsel of his own choice concerning this Agreement,
and (b) that he has read and understands the Agreement, is fully aware of its legal effect, and has
entered into it freely based on his own judgment.


(Signature Page Follows)




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     IN WITNESS WHEREOF, the parties have executed this Amended and Restated Change in Control and
Noncompetition Agreement as of the date and year first written above.



	 
	AMB PROPERTY, L.P.

a Delaware limited partnership







	 	 	 
	By:	 	
AMB Property Corporation

its general partner








	 	 	 
	By:	 	 
	 	 	

Name:
	 	 	
Title:







	 
	EXECUTIVE
	
   Name:








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