Exhibit 10.9.2
J. Sebra
AMENDMENT 2008-1
TO THE
EMPLOYMENT
AGREEMENT
THIS AMENDMENT
, dated as of December 15,
2008, between RAIT Financial Trust, a Maryland real estate
investment trust, (the “ Company ”) and James J.
Sebra (“ Executive ”).
RECITALS
WHEREAS , the Company and Executive previously entered
into that certain Employment Agreement, dated as of May 22,
2007, (the “ Employment Agreement ”), which sets
forth the terms and conditions of Executive’s employment with
the Company;
WHEREAS , the Company and Executive desire to amend the
Employment Agreement to comply with the requirements of section
409A of the Internal Revenue Code of 1986, as amended, and the
final regulations issued thereunder; and
WHEREAS , Section 7.6 of the Employment Agreement
provides that the Employment Agreement may be amended pursuant to a
written agreement between the Company and Executive.
NOW, THEREFORE
, the Company and the Executive
hereby agree that, effective December 15, 2008, the Employment
Agreement shall be amended as follows:
1. The third sentence of
Section 4 of the Employment Agreement is hereby amended in its
entirety, and a new sentence is hereby added after the third
sentence of such Section, to read as follows:
“Upon termination of
employment due to death or disability, (i) the Executive (or
the Executive’s estate or beneficiaries in the case of the
death of the Executive) shall be entitled to receive any Annual
Salary and other benefits earned and accrued under this Agreement
prior to the date of termination (and reimbursement under this
Agreement for expenses incurred prior to the date of termination);
(ii) the Executive (or the Executive’s estate or
beneficiaries in the case of the death of the Executive) shall be
entitled to receive a single-sum payment equal to the value of his
Annual Salary that would have been paid to him for the remainder of
the year in which the termination occurs; (iii) without
duplication of any amounts due under clauses (i) and (ii), the
Executive (or the Executive’s estate or beneficiaries in the
case of the death of the Executive) shall receive a single-sum
payment equal to the value of the highest bonus earned by the
Executive in the one year period preceding the date of termination,
multiplied by a fraction (x) the numerator of which is the
number of days in the fiscal year preceding the termination and
(y) the denominator of which is 365; (iv) all outstanding
unvested equity-based awards pursuant to the Plan held by the
Executive shall fully vest and become immediately exercisable, as
applicable, and subject to the terms of such awards; and
(v) the Executive (or the Executive’s estate or
beneficiaries in the case of the death of the Executive) shall have
no further rights to any other
1
compensation or benefits hereunder,
or any other rights hereunder (but, for the avoidance of doubt,
shall receive such disability and death benefits as may be provided
under the Company’s plans and arrangements in accordance with
their terms). Unless the payment is required to be delayed pursuant
to Section 7.15(b) below, the cash amounts payable pursuant to
clauses (i), (ii) and (iii) above shall be paid to the
Executive (or the Executive’s estate or beneficiaries in the
case of the death of the Executive) within 60 days following the
date of his termination of employment on account of death or
disability.”
2. A new sentence is hereby added to
the end of Section 5.1(b) of the Employment Agreement to read
in its entirety as follows:
“Unless the payment is
required to be delayed pursuant to Section 7.15(b) below, the
cash amounts payable to the Executive under this
Section 5.1(b) shall be paid to the Executive in a single-sum
payment within 60 days fol
