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EXHIBIT 10.4
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT, dated as of May 17,
2007, among
Wellsford Real Properties, Inc., a Maryland corporation ("WRP"),
Reis Services
LLC, a Maryland limited liability company and a wholly-owned
subsidiary of WRP
("LLC," and together with WRP, the "Employers"), and Jonathan
Garfield
("Employee").
Recitals
A. The Employers and Employee are party to an Employment
Agreement, dated
as of October 11, 2006 (the "Employment Agreement") pursuant to
which Employee
is to be employed by the Employers on the Employment Date.
Capitalized terms not
otherwise defined herein shall have the respective meanings set
forth in the
Employment Agreement.
B. The parties hereto desire to amend certain terms and
provisions
of the Employment Agreement.
NOW, THEREFORE, the Employers and Employee, in consideration of
the
agreements, covenants and conditions contained herein, hereby
agree as follows:
1. Benefits. The last sentence of Section 2(c) of the
Employment
Agreement is hereby deleted in its entirety and the following
substituted in
lieu thereof:
"In addition, Employee shall be entitled to six weeks paid
vacation
per year, which shall be taken in accordance with the policies
of
WRP governing vacation of senior executive employees.
Furthermore,
following the termination of Employee's employment with the
Employers, WRP shall maintain in effect a directors' and
officers'
liability insurance policy pursuant to which Employee shall
be
insured for a period of six years following such date of
termination
for all claims relating to matters occurring on or prior to
such
date of termination to the extent Employee was insured by WRP
prior
to such termination."
2. Schedule 2(d)(ii). Schedule 2(d)(ii) to the Employment
Agreement
is hereby deleted in its entirety and Schedule 2(d)(ii) attached
hereto
substituted in lieu thereof.
3. Measuring Periods. Clauses (A), (B) and (C) of Section
2(d)(ii)
of the Employment Agreement are hereby deleted in their entirety
and the
following substituted in lieu thereof:
"(A) Tranche 1 shall vest on the first anniversary of
the Employment Date if the growth in EBITDA (as defined on
Schedule
2(d)(ii)) for the Tranche 1 Measuring Period (as defined on
Schedule
2(d)(ii)) exceeds 10%. If Tranche 1 has not vested on the
first
anniversary of the Employment Date, it shall vest on the
second
anniversary of the Employment Date if EBITDA for the 2008
calendar
year of LLC exceeds by at least 20% EBITDA for the fiscal year
of
Reis ending October 31, 2006. If Tranche 1 has not vested on
the
first or second
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anniversary of the Employment Date, it shall vest on the
third
anniversary of the Employment Date if EBITDA for the 2009
calendar
year of LLC exceeds by at least 30% EBITDA for the fiscal year
of
Reis ending October 31, 2006.
(B) Tranche 2 shall vest on the second anniversary of
the Employment Date if either (1) the growth in EBITDA for
the
Tranche 2 Measuring Period exceeds 10% or (2) EBITDA for the
2008
calendar year of LLC exceeds by at least 20% EBITDA for the
fiscal
year of Reis ending October 31, 2006. If Tranche 2 has not
vested on
the second anniversary of the Employment Date, it shall vest on
the
third anniversary of the Employment Date if either (x) EBITDA
for
the 2009 calendar year of LLC exceeds by at least 20% EBITDA for
the
2007 calendar year of LLC or (y) EBITDA for the 2009 calendar
year
of LLC exceeds by at least 30% EBITDA for the fiscal year of
Reis
ending October 31, 2006.
(C) Tranche 3 shall vest on the third anniversary of the
Employment Date if either (1) the growth in EBITDA for the
Tranche 3
Measuring Period exceeds 10% or (2) EBITDA for the 2009
calendar
year of LLC exceeds by at least 30% EBITDA for the fiscal year
of
Reis ending October 31, 2006."
4. Disability. Section 3(b) of the Employment Agreement is
hereby
deleted in its entirety and the following substituted in lieu
thereof:
"(b) Disability. The Employers may terminate the Employment
Period at any time effective upon not less than 10 days
prior
written notice to Employee after Employee has been unable to
perform
the essential duties of his positions because of "Disability"
(as
determined on the basis of medical evidence satisfactory to
the
Board, in the Board's sole discretion) for a period of (i)
180
consecutive days in any 12-month period or (ii) 270 days in
any
12-month period, subject to reasonable accommodation provisions
of
applicable law."
5. Change of Control. Section 3(d)(ii)(E)(2) of the
Employment
Agreement is hereby amended by deleting the phrase "acquiring
beneficial
ownership of 30%" therein and substituting "representing 30%" in
lieu thereof.
6. Termination Upon Disability. Section 4(b) of the
Employment
Agreement is hereby deleted in its entirety and the following
substituted in
lieu thereof:
"(b) Termination Pursuant to Section 3(b) (Disability). In
the
event that the Employment Period is terminated pursuant to
Section
3(b), no further compensation shall be paid to Employee
following
the effective date of termination, provided that Employee or
his
legal representative, as applicable, shall be paid, in cash (i)
the
Accrued Obligations and (ii) the Termination Bonus, which
payment
shall be made as soon as practicable following the first date
such
payment can be made without incurring additional tax under
Section
409A of the Code."
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7. Medical, Etc., Coverage. The last sentence of Section 4(f)
of
the Employment Agreement is hereby deleted in its entirety and
the following
substituted in lieu thereof:
"In addition, the Employers agree to continue, at their own cost
and
expense, the medical, hospitalization, dental and life
insurance
benefits available to Employee (and any of his dependents who as
on
such date of termination were covered thereunder) at the time
his
employment is terminated from such date of termination through
the
later of (i) the third anniversary of the Employment Date and
(ii)
18 months from such date of termination; provided, however, that
if
such continued participation would result in additional tax
to
Employee under Section 409A of the Code, Employee will be
required
to pay his own premiums for such benefits coverage and then, as
soon
as practicable following the first date such payment can be
made
without incurring additional tax under Section 409A of the
Code,
Employee will be paid an amount such that, after payment of
income
taxes, Employee is fully reimbursed for the cost of such
premiums.
If the terms of the Employers' medical, hospitalization, dental
and
life insurance plans do not permit Employee (and any of his
dependents who as on such date of termination were covered
thereunder) to be insured thereunder when he is no longer an
employee, then the Employers will be jointly and severally
obligated
to pay to Employee, as soon as practicable, following the first
date
such payment can be made without incurring additional tax
under
Section 409A of the Code, an amount such that after payment
of
income taxes, Employee is fully reimbursed for his cost of
providing
such
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