Exhibit 10.26
SECOND AMENDMENT TO EMPLOYMENT
AGREEMENT
This Second Amendment to Employment
Agreement (this “Amendment”), effective as of
December 19, 2008 is made by and between DCT Industrial Trust
Inc. (f/k/a Dividend Capital Trust Inc.), a Maryland corporation
(the “Company”), and James D. Cochran (the
“Executive”).
WHEREAS, the Company and the
Executive entered into that certain Employment Agreement dated as
of July 21, 2006, as previously amended (the “Employment
Agreement”); and
WHEREAS, pursuant to
Section 7.6 of the Employment Agreement, the Company and the
Executive desire to amend certain terms of the Employment Agreement
as set forth in this Amendment.
NOW, THEREFORE, in consideration of
the premises and mutual covenants contained herein and for other
good and valuable consideration, the receipt of which is mutually
acknowledged, the Company and the Executive agree as
follows:
1. The Employment Agreement is
hereby amended by adding the following as
Section 3.8:
“3.8. Timing of Expense
Reimbursement . All in-kind benefits provided and expenses
eligible for reimbursement under this Agreement must be provided by
the Company or incurred by the Executive during the time periods
set forth in the Agreement. All reimbursements shall be paid as
soon as administratively practicable, but in no event shall any
reimbursement be paid after the last day of the taxable year
following the taxable year in which the expense was incurred. The
amount of in-kind benefits provided or reimbursable expenses
incurred in one taxable year shall not affect the in-kind benefits
to be provided or the expenses eligible for reimbursement in any
other taxable year. Such right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another
benefit.”
2. Section 5.2(b) of the
Employment Agreement is hereby amended and restated in its entirety
as follows:
“(b) The Company may terminate
the Executive’s employment at any time for any reason or no
reason upon notice to the Executive, and the Executive may
terminate the Executive’s employment with the Company for
Good Reason upon notice to the Company. If the Company terminates
the Executive’s employment and the termination is not covered
by Section 4 or 5.1, or the Executive terminates his
employment for Good Reason, (i) the Company shall pay to the
Executive Annual Salary, bonus and other benefits earned and
accrued under this Agreement prior to the termination of employment
(and reimbursement under this Agreement for expenses incurred prior
to the termination of employment); (ii) if (and only if) the
Executive provides a general release in a form reasonably
acceptable to the Company, which does not require the release of
any payment rights under this Section 5.2(b) or under
Section 3.7, within thirty (30) days following such
termination and such release becomes irrevocable at the earliest
possible time under applicable law following such execution and
delivery (the date on which such release becomes irrevocable being
referred to herein as the “Release Date”), the Company
shall pay or provide to the Executive (A) a cash payment equal
to 100% of the Executive’s Annual Salary (as in effect
immediately before such termination), (B) a cash payment equal
to 100% of the target bonus for the year of termination, (C) a
cash payment equal to (I) the target bonus for the year of
termination multiplied by (II) a fraction (x) the numerator of
which is the number of days in the year up to the termination and
(y) the denominator of which is 365, and (D) for a period
of two years after termination of employment such continuing
coverage under the group health plans the Executive would have
received under this Agreement (and at such costs to the Executive)
as would have ap
