Exhibit 10.14


 


THOMAS K. MCGOWAN

NONCOMPETITION AGREEMENT


 


THIS
NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of August 16,
2004 by and between Kite Realty Group Trust, a Maryland real estate investment
trust (the “Company”) and Thomas K. McGowan (the “Executive”).


 


WHEREAS, the
Company and Kite Realty Group, L.P., a Delaware limited partnership, of which
the Company is the general partner (the “Operating Partnership”), are engaging
in various related transactions pursuant to which, among other things,
(i) the Operating Partnership will acquire interests in various entities
that own or lease real estate properties in which certain persons affiliated
with the Company (including the Executive) have interests, (ii) the
Company will acquire indirect interests in certain service companies currently
owned by persons affiliated with the Company, and (iii) the Company will effect
an initial public offering of its common shares and contribute the proceeds
therefrom for a like number of units of partnership interest in the Operating
Partnership (the “Kite IPO,” and together with the other transactions described
above, the “Kite IPO Transactions”);


 


WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company and
the Executive are entering into an Employment Agreement dated as of the date
hereof, pursuant to which, among other things, the Company has agreed to employ
the Executive, and the Executive has agreed to be employed by the Company, in
accordance with the terms thereof (the “Employment Agreement”); and


 


WHEREAS, the
Company and the Executive agree that, as part of the Kite IPO Transactions, the
Executive will not engage in competition with the Company and will refrain from
taking certain other actions pursuant to the terms and conditions hereof in an
effort to protect the Company’s legitimate business interests and goodwill and
for other business purposes.


 


NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the parties hereto
agree as follows:


 


1.                                       Noncompetition. 
The Executive agrees with the Company that for the longer of (i) the
three-year period beginning on the date of this Agreement  or (ii) the period during which the
Executive is employed by the Company (or any successor thereto) or its
subsidiaries or Affiliates (as defined in the Employment Agreement)
(collectively, the “REIT”), and for one year thereafter (the “Restricted
Period”), the Executive will not, (a) directly or indirectly, engage in any
business involving real property development, construction, acquisition,
ownership or operation, whether such business is conducted by the Executive
individually or as a principal, partner, member, stockholder, director, trustee,
officer, employee or independent contractor of any Person (as defined below) or
(b) own any interests in real property which are competitive, directly or
indirectly, with any business carried on by the REIT; provided, however, that this
Section 1 shall not be deemed to prohibit any of the following:  (I) any of the real estate (and real
estate-related) activities listed on Schedule A hereto, the Executive’s
ownership, marketing, sale, transfer 


 

















 


or exchange of any of the
Executive’s interests in any of the properties or entities listed on Schedule A
hereto or any other permitted activities listed on Schedule A hereto, (II) the
direct or indirect ownership by the Executive of up to five percent of the
outstanding equity interests of any public company, (III) any activities with
respect to residential real estate and (IV) a direct or indirect passive
ownership by the Executive of equity or similar ownership interests of any
corporation, partnership, limited liability company, joint venture, association
or other entity that is not a public company, provided that the Executive is
not involved in the management or operation of such Person or its business (as
a director, trustee, officer, employee or otherwise) and such Person does not
engage, directly or indirectly, in (x) the development, construction,
acquisition, ownership or operation of neighborhood and community shopping
centers or (y) any other business or enterprise in competition with any
material business activities of the REIT. 
Notwithstanding the foregoing, during the one-year “tail” period
included in the Restricted Period, the restrictions set forth in this Section 1
shall apply only within the following “Restricted Areas”: (A) the states of
Indiana, Florida and Texas; (B) the area within a 10-mile radius of any
property owned or leased by the REIT, as of the date of the Executive’s
termination of employment; (C) each county in each state in which the REIT owns
or leases property as of the date of the Executive’s termination of employment;
and (D) in any state in which the REIT owns or leases at least five properties
as of the date of the Executive’s termination of employment, the area within a
50-mile radius of any property owned or leased by the REIT, as of the date of
the Executive’s termination of employment. 
For purposes of this Agreement, “Person” means any individual, firm,
corporation, partnership, company, limited liability company, trust, joint
venture, association or other entity.


 


2.                                       Nonsolicitation.
The Executive agrees with the Company that for the longer of (i) the three-year
period beginning on the date of this Agreement or (ii) the period during which the
Executive is employed by the REIT, and for two years thereafter, such
Executive will not (a) directly or indirectly solicit, induce or encourage any
employee or independent contractor to terminate their employment with the REIT
or to cease rendering services to the REIT, and the Executive shall not
initiate discussions with any such Person for any such purpose or authorize or
knowingly cooperate with the taking of any such actions by any other Person, or
(b) hire (on behalf of the Executive or any other person or entity) any
employee or independent contractor who has left the employment or other service
of the REIT (or any predecessor thereof) within one year of the termination of
such employee’s or independent contractor’s employment or other service with
the REIT.


 


3.                                       Reasonable
and Necessary Restrictions.  The
Executive acknowledges that the restrictions, prohibitions and other provisions
hereof, including, without limitation, the Restricted Area, the Restriction
Period and the restriction period set forth in Section 2, are reasonable, fair
and equitable in terms of duration, scope and geographic area, are necessary to
protect the legitimate business interests of the REIT, and are a material
inducement to the Company to enter into this Agreement and the Employment
Agreement.


 


4.                                       Specific
Performance.  The Executive
acknowledges that the obligations undertaken by such Executive pursuant to this
Agreement are unique and that the Company likely will have no adequate remedy
at law if the Executive shall fail to perform any of such Executive’s
obligations hereunder, and the Executive therefore 


 


2

















 


confirms that the Company’s right to specific performance of the terms
of this Agreement is essential to protect the rights and interests of the
Company.  Accordingly, in addition to
any other remedies that the Company may have at law or in equity, the Company
shall have the right to have all obligations, covenants, agreements and other
provisions of this Agreement specifically performed by the Executive, and the
Company shall have the right to obtain preliminary and permanent injunctive relief
to secure specific performance and to prevent a breach or contemplated breach
of this Agreement by the Executive.  The
Executive hereby acknowledges and agrees that the Company shall not be required
to post bond as a condition to obtaining or exercising such remedies, and the
Executive hereby waives any such requirement or condition.


 


5.                                       Miscellaneous
Provisions.


 


(a)                                  Assignment;
Binding Effect.  This Agreement may
not be assigned by the Executive, but may be assigned by the Company to any
successor to its business or to any subsidiary or Affiliate of the Company and
will inure to the benefit of and be binding upon any such successor.  Subject to the foregoing provisions
restricting assignment, all covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors, assigns, heirs, and personal representatives.


 


(b)                                 Entire
Agreement.  This Agreement, together
with the Employment Agreement, constitutes the entire agreement between the
parties hereto with respect to the matters set forth herein and supersedes and
renders of no force and effect all prior oral or written agreements,
commitments and understandings among the parties with respect to the matters
set forth herein.  This Section 5(b)
shall not be used to limit or restrict the rights or remedies, whether express
or implied, of any noncompetition or nonsolicitation policies of the REIT
applicable to the Executive.


 


(c)                                  Amendment.  Except as otherwise expressly provided in
this Agreement, no amendment, modification or discharge of this Agreement shall
be valid or binding unless set forth in writing and duly executed by each of
the parties hereto.


 


(d)                                 Waivers.  No waiver by a party hereto shall be
effective unless made in a written instrument duly executed by the party
against whom such waiver is sought to be enforced, and only to the extent set
forth in such instrument.  Neither the
waiver by either of the parties hereto of a breach or a default under any of
the provisions of this Agreement, nor the failure of either of the parties, on
one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights or privileges hereunder.


 


(e)                                  Severability.  If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall
remain operative and in full force and effect. Notwithstanding the foregoing,
in the event 


 


3

















 


that the restrictions against engaging in competitive activity
contained in this Agreement shall be determined by any court of competent
jurisdiction to be unenforceable by reason of their extending for too great a
period of time or over too great a geographical area or by reason of their
being too extensive or unreasonable in any other respect, the Agreement  shall be interpreted to extend only over
the maximum period of time for which it may be enforceable and over the maximum
geographical area as to which it may be enforceable and to the maximum extent
in all other respects as to which it may be enforceable, all as determined by
such court in such action and the court may limit the application of any other
provision or covenant, or modify any such term, provision or covenant and
proceed to enforce this Agreement as so limited or modified.  To the extent necessary, the parties shall
revise the Agreement and enter into an appropriate amendment to the extent necessary
to implement any of the foregoing.


 


(f)                                    Governing
Law; Jurisdiction.  This Agreement,
the rights and obligations of the parties hereto, and any claims or disputes
relating thereto, shall be governed by and construed in accordance with the
laws of the State of Indiana, but not including the choice-of-law rules
thereof.


 


(g)                                 Headings.  Section and subsection headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.


 


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


 


(i)                                     Notices.  All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
delivered (i) when physically received by personal delivery (which shall
include the confirmed receipt of a telecopied facsimile transmission), or
(ii) three business days after being deposited in the United States certified
or registered mail, return receipt requested, postage prepaid or (iii) one
business day after being deposited with a nationally known commercial courier
service providing next day delivery service (such as Federal Express), to the
following addresses:


 


(i)                                     if
to the Executive, to the address set forth in the records of the Company


 


(ii)                                  if
to the Company


 


Kite Realty Group
Trust


30 S. Meridian
Street


Suite 1100


Indianapolis,
IN  46204


Attn: Daniel R.
Sink


Telecopy No.:
(317) 577-5605


 


4

















 


with copies in either case (which shall not constitute notice) to:


 


Hogan & Hartson L.L.P.


555 13th Street, NW


Washington, DC 20004


Attention:  David W. Bonser,
Esq.


Facsimile:  (212) 637-5910


 


and


 


Barnes & Thornburg LLP


11 South Meridian


Indianapolis, IN  46204


Attention:  Robert D. MacGill,
Esq.


Facsimile:  (317) 231-7433


 


(j)                                     Execution
in Counterparts.  To facilitate
execution, this Agreement may be executed in as many counterparts as may be
required.  It shall not be necessary
that the signature of or on behalf of each party appears on each counterpart,
but it shall be sufficient that the signature of or on behalf of each party
appears on one or more of the counterparts. 
All counterparts shall collectively constitute a single agreement.


 


 


[Remainder of page intentionally left blank.]


 


5

















 


IN WITNESS
WHEREOF, each of the undersigned has executed and delivered this Agreement, or
caused this Agreement to be duly executed on its behalf, as of the date first
set forth above.


 


	
   

  	
  THE EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/ THOMAS K. MCGOWAN

  	
   

  
	
   

  	
  THOMAS K. MCGOWAN

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  KITE REALTY GROUP TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN A. KITE

  	
   

  
	
   

  	
  Name:

  	
  John A. Kite

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
					



 


6

















 


SCHEDULES TO THE NONCOMPETITION AGREEMENT*


 


	
  Schedule A

  	
  Excluded
  Activities, Properties and Interests

  



 












*     The
registrant agrees to furnish, supplementally, a copy of omitted Schedule A upon
request.


 


7