Exhibit 10.12


 


REPUBLIC
PROPERTIES CORPORATION

NONCOMPETITION AGREEMENT


 


THIS NONCOMPETITION
AGREEMENT (this “Agreement”) is entered into as of December
20, 2005 by and between Republic Property Trust, a Maryland real estate
investment trust (the “Company”) and
Republic Properties Corporation (“RPC”), a
District of Columbia corporation.


 


WHEREAS, the Company and
Republic Property Limited Partnership, a Delaware limited partnership and
wholly owned operating partnership subsidiary of the Company (the “Operating Partnership”), are engaging in various related
transactions pursuant to which, among other things, (i) the Operating
Partnership would acquire interests in various limited liability companies that
own real estate properties, and (ii) the Company would effect an initial
public offering of its common shares of beneficial interest, par value $0.01
per share, and contribute the proceeds therefrom for a like number of units of
partnership interest in the Operating Partnership (the “IPO”,
and together with the other transactions in connection therewith, the “IPO Transactions”);


 


WHEREAS, Richard L.
Kramer (“Kramer”) is the Chairman of the Board
of Trustees (the “Board”) of the
Company and also a co-founder and co-owner of RPC;


 


WHEREAS, the Company’s
President and Chief Development Officer, Steven A. Grigg, is also a co-founder
and co-owner of RPC;


 


WHEREAS, the Company and
RPC agree that, as part of the IPO Transactions, RPC 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; and


 


WHEREAS, Kramer has also
agreed to enter an agreement not to engage in competition with the Company on
terms and conditions that are similar to this Agreement.


 


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. 
RPC agrees with the Company that for the longer of: (i) the three-year
period beginning on the date of this Agreement, (ii) the period during which
Kramer is a member of the Board of the Company (or any successor thereto), or
(iii) in the event that Kramer is removed as a member of the Board of the
Company for cause, one and one-half (1-1/2) years thereafter (the “Restricted Period”), RPC will not engage in any business involving the development,
construction, acquisition, ownership or operation of institutional grade office
property real estate (the “Company Business”),
whether such business is conducted by RPC individually or as a principal,
partner, member, stockholder or independent contractor of any Person (as defined
below); provided, however, that this Section 1


 





















 


shall not be deemed to prohibit any
of the following:  (a) any of the real
estate (and real estate-related) activities listed on Schedule A hereto
and RPC’s ownership, marketing, sale, transfer or exchange of any of RPC’s
interests in any of the properties or entities listed on Schedule A
hereto, (b) the direct or indirect ownership by RPC of up to five percent of
the outstanding equity interests of any public company, (c) any activities with
respect to non-institutional grade office property real estate or Non-Office Building
Real Estate, including, without limitation, residential, hotel, retail,
industrial or recreational, and (d) a direct or indirect ownership by
RPC 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 RPC is not involved in the management or
operation of such Person or its business and such Person is not engaged in the
Company Business.  Notwithstanding the foregoing, during the one
and one-half (1-1/2) year “tail” period included in the Restricted Period, the
restrictions set forth in this Section 1 shall apply only within the following “Restricted Areas”: (I) the District of Columbia and
the states of Maryland and Virginia; and (II) the area within a 50-mile radius
of any property owned or leased by the REIT, as of the date of Kramer’s removal
as a member of the Board.  For purposes of this Agreement, (i)  “Person” means
any individual, firm, corporation, partnership, company, limited liability
company, trust, joint venture, association or other entity, and (ii) “Non-Office Building Real Estate” means any real estate
which has an office space component equal to five percent (5%) or less of such
real estate’s total net rentable square footage. Notwithstanding the foregoing,
the Restricted Period shall terminate, if not earlier terminated in accordance
with this Section 1, upon the first to occur of (i) the consummation of a
Change of Control of the Company, as defined in Section 6 of this Agreement or
(ii) the failure of Kramer to be reelected as a member of the Board.


 


2.             Nonsolicitation. RPC 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 Kramer is a member of
the Board, and for eighteen months thereafter, Kramer 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 Kramer 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 itself or any other
person or entity) any employee who has left the employment of the REIT (or any
predecessor thereof) within one year of the termination of such employee’s
employment with the REIT.


 


3.             Referrals. 
In addition, RPC agrees that for the longer of (i) the three-year period
beginning on the date of this Agreement or (ii) the period during which the
Kramer is a member of the Board of the Company (or any successor thereto), RPC
will refer to the Company any investment and fee-based development
opportunities for commercial office properties in Greater Washington, D.C.
which are presented to the RPC.


 


4.             Reasonable and Necessary Restrictions.  RPC 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.


 


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5.             Specific Performance.  RPC acknowledges that the obligations
undertaken by RPC pursuant to this Agreement are unique and that the Company
likely will have no adequate remedy at law if RPC shall fail to perform any of
RPC’s obligations hereunder, and RPC therefore 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 RPC, 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
RPC.  RPC hereby acknowledges and agrees
that the Company shall not be required to post bond as a condition to obtaining
or exercising such remedies, and RPC hereby waives any such requirement or
condition.


 


6.             Miscellaneous Provisions.


 


(a)           Assignment; Binding Effect.  This Agreement may not be assigned by RPC,
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 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 6(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 RPC.


 


(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


 


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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 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 District of
Columbia, 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)           RPC’s Acknowledgement. RPC
acknowledges (i) that it has had the opportunity to consult with independent
counsel of its own choice concerning this Agreement, and (ii) that it has read and
understands this Agreement, is fully aware of its legal effect, and has entered
into it freely based on its 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 RPC, to the address set forth in the records of the Company


 


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(ii)                                  if
to the Company


 


Republic Property Trust


1280 Maryland Avenue


Suite 280


Washington, D.C. 20024


Attn:  Mark R. Keller


Facsimile No.: (202)
863-4049


 


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


 


Hogan & Hartson
L.L.P.


555 13th
Street, NW


Washington, DC 20004


Attention:  Stuart A. Barr, Esq.


Facsimile: (202) 637-5910


 


(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.


 


(k)           Certain Definitions.  For the purpose of this Agreement, the term “REIT” means the Company (or any successor thereto) and its
subsidiaries and affiliates, and the term “Change of Control”
means the happening of any of the following:


 


(i)            Any “Person” (which for the purpose
of this subsection (k) only has the meaning ascribed to such term in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and used in Sections 13(d) and 14(d) thereof, including a “group” within the
meaning of Section 13(d)(3)) has or acquires Beneficial Ownership of thirty
(30%) percent or more of the combined voting power of the Company’s then
outstanding voting securities entitled to vote generally in the election of
directors (“Voting Securities”); provided, however, that in determining whether
a Change of Control has occurred, Voting Securities which are held or acquired
by the following: (i) the Company or any of its Related Companies (as defined
in paragraph 3(h)(iv) below) or (ii) an employee benefit plan (or a trust
forming a part thereof) maintained by the Company or any of its Related
Companies (the persons or entities described in (i) and (ii) shall collectively
be referred to as the “Excluded Group”), shall not constitute a Change of
Control.  For purposes of this Agreement,
“Beneficial Ownership” shall mean beneficial ownership within the meaning of
Rule 13d-3 promulgated under the Exchange Act.


 


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(ii)           The individuals who are members of
the Incumbent Board cease for any reason to constitute more than fifty (50%)
percent of the Board.  For purposes of
this Agreement, “Incumbent Board” shall mean the individuals who, as of the
beginning of the period commencing two years prior to the determination date,
constitute the Board; provided, however, that for purposes of this definition,
any individual who becomes a member of the Board subsequent to the beginning of
such two-year period, whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two-thirds of those
individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent Board; and
provided further, however, that any such individual whose initial assumption of
office occurs as a result of or in connection with an actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board shall not be considered a member of the Incumbent Board.


 


(iii)          A consummation of a merger,
consolidation or reorganization or similar event involving the Company, whether
in a single transaction or in a series of transactions (“Business Combination”),
unless, following such Business Combination:


 


a)              the Persons with
Beneficial Ownership of the Company, immediately before such Business Combination,
have Beneficial Ownership of more than fifty (50%) percent of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation (or in the election
of a comparable governing body of any other type of entity) resulting from such
Business Combination (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more subsidiaries) (the “Surviving
Company”) in substantially the same proportions as their Beneficial Ownership
of the Voting Securities immediately before such Business Combination;


 


b)             the individuals who
were members of the Incumbent Board immediately prior to the execution of the
initial agreement providing for such Business Combination constitute more than
fifty (50%) percent of the members of the board of directors (or comparable
governing body of a noncorporate entity) of the Surviving Company; and


 


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c)              no Person (other
than a member of the Excluded Group or any Person who immediately prior to such
Business Combination had Beneficial Ownership of thirty percent (30%) or more
of the then Voting Securities) has Beneficial Ownership of thirty (30%) percent
or more of the then combined voting power of the Surviving Company’s then
outstanding voting securities.


 


(iv)          The assignment, sale, conveyance,
transfer, lease or other disposition of all or substantially all of the assets
of the Company to any Person (other than the Company, any Related Company or an
employee benefit plan (or related trust) sponsored or maintained by the Company
or any Related Company) unless, immediately following such disposition, the
conditions set forth in paragraph (iii)(a), (b) and (c) above will be satisfied
with respect to the entity which acquires such assets.  For purposes of this Agreement, “Related
Company” shall mean any entity that is directly or indirectly controlled by, in
control of or under common control with the Company.


 


(v)           The occurrence of a liquidation or
dissolution of the Company.


 


Notwithstanding the
provisions of subparagraphs (i), (ii) and (iii) of this paragraph (k), neither
the IPO nor the IPO Transactions shall be considered a Change of Control.


 


[Remainder of page
intentionally left blank.]


 


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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.


 


	
   

  	
  REPUBLIC PROPERTIES
  CORPORATION:

  
	
   

  	
   

  
	
   

  	
    /s/ Steven A. Grigg

  	
   

  
	
   

  	
  By: Steven A. Grigg

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  REPUBLIC PROPERTY TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Mark R. Keller

  	
   

  
	
   

  	
  Name: Mark R. Keller

  
	
   

  	
  Title: Chief Executive
  Officer

  
					



 


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Schedule A


 


EXCLUDED
PROPERTIES, INTERESTS AND ACTIVITIES


 


1.               Ownership of
interests in the following entities (provided such entities do not own or
acquire interests in any other properties not listed on Schedule A), including
services as a member, director or officer of any such entity:


 


Republic Somerset LLC


Republic Land Development
LLC


Republic Madison Green
LLC


Madison Green Partners
LLC


Republic CP IV Investors
LLC


Republic-Charleston LLC


Republic Fund I LLC


Carolina Park Associates,
LLC


Carlyle Investment LLC


ACK-Carlyle LLC


Kramer/Republic LLC


Madison Green Partners
LLC


New Kent Partners LLC


Republic Southampton LLC


Republic New Kent LLC


ACK/Somerset LLC


Republic Augusta I LLC


Republic Scottsville
Partners LLC


Sycamore Investments LLC


RKB/Republic Capital LLC


Republic Capital Partners
LLC


Pointe at Cheverly LLC


Republic Cheverly
Partners LLC


ACK Holdings LLC


AJ & K LLC


Sycamore/Charleston LLC


ACK/Republic Square LLC


Portals Investments LLC


RWPB Investors LLC


Datura & Olive
Developer LLC


RWPB LLC


Republic Maryland Avenue
Partners LLC


Rolled Sea Oats LLC


Republic Gateway Partners
LLC


NKP Development LLC


NKP LB4 LLC


NKP LB5 LLC


Forbes-Republic Orange
LLC


Republic Orange Partners
LLC


Carillion-Republic LLC


Abington Investments LLC


 


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Kramer Family LLC


KramerCo (DC) LLC


KramerCo, LC


Krivco/Nags Head LLC


Portals Development
Associates LP


Republic Cheverly LLC


Republic Cove Partners
LLC


RHC/Somerset LLC


SIHC I LLC


Western Associates
Limited Partnership


CPT Holdings, Inc.


Downtown Properties Corp.


Mentmore Holdings
Corporation


Republic Holdings
Corporation


Republic Properties
Corporation


Sunderland Industrial
Holdings Corporation


Trinity Investment
Corporation


Republic Square Limited
Partnership


25 Massachusetts Avenue
Partners LLC


25 Massachusetts Avenue
Property LLC


660 North Capitol Street
Partners LLC


660 North Capitol Street
Property LLC


Portals Development
Associates Limited Partnership


Portals Interest LLC


Portals Northside LLC


47D Holdings LLC


Parcel 47D LLC


Parcel 47E LLC


Parcel 47F LLC


Parcel 49B Limited
Partnership


Parcel 49C Limited
Partnership


 


2.               Ownership, through
the entities listed in Section 1 above, or any real property owned by any such
entities as of the date of this Agreement (for the avoidance of doubt, all such
real property owned by any such entities as of the date of this Agreement shall
be deemed to constitute “properties listed on Schedule A” for purposes of
Section 1(I) of the Agreement).


 


3.               Any of the real
estate activities carried on by any of the entities listed in Section 1 to the
extent that such entities continue to perform only real estate business
activities that have been or are currently carried on by such entities.


 


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