FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT BY AND BETWEEN
FIRST INDUSTRIAL REALTY TRUST, INC.
AND JOHANNSON L. YAP
WHEREAS,
First Industrial Realty Trust, Inc. (the “Employer”)
and Johannson L. Yap (the “Executive”) have entered
into that certain Employment Agreement dated March 31, 2002
(the “Agreement”);
WHEREAS ,
the Employer and the Executive desire to amend certain provisions
of the Agreement in order to bring such provisions into compliance
with the applicable provisions of Section 409A of the Internal
Revenue Code of 1986, as amended (and guidance issued thereunder);
and
WHEREAS ,
pursuant to Section 10(b) of the Agreement, the Agreement may be
amended by written agreement of the parties.
NOW,
THEREFORE, BE IT RESOLVED that, effective as of the 29th day of
December, 2008, the Agreement be and is hereby amended in the
following particulars:
1.
Section 1 is deleted in its entirety and replaced with the
following:
“1.
Agreement Term. The Executive’s employment hereunder shall be
for a continuous period of five (5) years commencing on
December 3, 2008, unless sooner terminated at any time by
either party, with or without Cause, such termination to be
effective as of thirty (30) days after written notice to that
effect is delivered to the other party.”
2.
Section 4(c) is amended by adding to the end of the first
sentence thereof the following:
“provided, however, that to the extent
that such event constituting Constructive Discharge by the Company
is subject to cure, the Company shall have such fifteen
(15) days to cure such breach, and if so cured, the Executive
shall no longer have the right to terminate due to such
event.”
3.
Section 4(d) is amended by replacing the existing third
sentence thereof with the following new sentence: (newly added
language italicized)
“The
amount that the Employer shall be obligated to pay upon the
Executive’s death shall be delivered, within thirty
(30) days of the Executive’s death, to such
beneficiary, designee or fiduciary as the Executive may have
designated in writing or, failing such designation, to the executor
or administrator of his estate, in full settlement and satisfaction
of all claims and demands on behalf of the
Executive.”
4.
Section 4(e)(ii) is amended by deleting the existing
subsection (A) and replacing it with the following: (newly
added language italicized)
“terminate the Executive’s
employment and pay him the Severance Amount [as defined in
subparagraph (f) of this Section 4], in a lump sum to
be paid within 30 days of the termination of Executive’s
employment ; or”
5.
Section 4(f)(ii)(C) is amended by deleting the existing
language thereof and replacing it with the following new
Section 4(f)(ii)(C): (newly added language
italicized)
“allow a
period of eighteen (18) months following the termination of
employment for the Executive to exercise any such SIP Options,
provided that no such exercise shall be allowed beyond the
original expiration date of such SIP Options (determined as if the
Executive’s employment had not terminated) unless the
exercise price is greater than the fair market value of the stock
on the date of termination ; and”
6.
Section 4(g)(i)(B)(3) is amended by deleting the existing
language thereof and replacing it with the following new
Section 4(g)(i)(B)(3): (newly added language
italicized)
“the
Employer shall allow a period of eighteen (18) months
following the termination of employment for the Executive to
exercise any such SIP Options, provided that no such exercise
shall be allowed beyond the original expiration date of such SIP
Options (determined as if the Executive’s employment had not
terminated) unless the exercise price is greater than the fair
market value of the stock on the date of termination ;
and”
7.
Section 4(g)(ii)(B) is amended by deleting the first sentence
thereof and replacing it with the following new sentence: (newly
added language italicized)
“The
Executive terminates his employment under this Agreement upon and
through written notice given to the Employer within thirty (30)
days after the occurrence of a “Triggering
Circumstance,” as defined and described below, with the
termination of employment effective as of the fifteenth
(15) day after such notice , such right of termination to
exist only if (x) the Triggering Circumstance described in
(i) or (ii) below occurs within a period of three hundred
sixty-five (365) days following a Change in Control Event; or
(y) either of the Triggering Circumstances described in
(iii) or (iv) below occurs within a period of seven
hundred thirty (730) days [subject to extension for
(iii) as set forth below] following a Change in Control Event;
provided, however, that to the extent that such circumstance
constituting a Triggering Circumstance is subject to cure, the
Company shall have fifteen (15) days to cure such breach, and
if so cured, the Executive shall no longer have the right to
terminate due to such circumstance .”
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8.
Section 4(g)(ii)(B) is amended by deleting subsection
(iii
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