EX-10.33





EXHIBIT
10.33




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) of the second sentence thereof
and replacing it with the following new subsection:




“(iii) the Executive’s Performance Bonus opportunities are reduced
from that in effect immediately prior to the Change in Control Event
(it being understood by the parties that a reduced Performance Bonus
payment that is due to the performance of the Company shall not
trigger this subsection (iii); provided that, to the extent that a
formula based or discretionary bonus structure is in place, that he
is not treated dissimilarly than other senior executives of the
Company that are participating in such plan or arrangement)”



     9. Section 4(g)(v) is amended by deleting the existing Section 4(g)(v) and replacing it with
the following: (newly added language italicized)




“If it is determined, in the opinion of the Employer’s independent
accountants, in consultation, if necessary, with the Employer’s
independent legal counsel, that any Change in Control Severance
Amount, either separately or in conjunction with any other payments,
benefits and entitlements received by the Executive in respect of a
Change in Control Termination hereunder or under any other plan or
agreement under which the Executive participates or to which he is a
party, would constitute an “Excess Parachute Payment” within the
meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code”), and thereby be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”), then in such
event the Employer shall pay to the Executive, as soon as
practicable, but not later than the end of the taxable year
following the taxable year in which the Executive first remits
payment of the excise tax to the Internal Revenue Service, a
“grossing-up” amount equal to the amount of such Excise Tax, plus
all federal and state income or other taxes with respect to the
payment of the amount of such Excise Tax, including all such taxes
with respect to any such grossing-up amount. If, at a later date,
the Internal Revenue Service assesses a deficiency against the
Executive for the Excise Tax which is greater than that which was
determined at the time such amounts were paid, then the Employer
shall pay to the Executive, as soon as practicable, but not later
than the end of the year following the year in which the Executive
first remits payment to the Internal Revenue Service in satisfaction
of the deficiency, the amount of such unreimbursed Excise Tax plus
any interest, penalties and reasonable professional fees or expenses
incurred by the Executive as a result of such assessment, including
all such taxes with respect to any such additional



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amount. The highest marginal tax rate applicable to
individuals at the time of the payment of such amounts will be used
for purposes of determining the federal and state income and other
taxes with respect thereto. Employer shall withhold from any amounts
paid under this Agreement the amount of any Excise Tax or other
federal, state or local taxes then required to be withheld.
Computations of the amount of any grossing-up supplemental
compensation paid under this subparagraph shall be conclusively made
by the Employer’s independent accountants, in consultation, if
necessary, with the Employer’s independent legal counsel. If, after
the Executive receives any gross-up payments or other amount
pursuant to this subparagraph (v), the Executive receives any refund
with respect to the Excise Tax, the Executive shall promptly pay the
Employer the amount of such refund within ten (10) days of receipt
by the Executive.”



     10. A new Section 4(l) is added which states as follows:




“To the extent required to comply with Code Section 409A, any
termination which may give rise to a benefit or payment under
Section 4 must constitute a ‘separation from service’ as determined
under Treas. Reg. Section 1.409A-1(h) before such benefit may be
paid. In addition, notwithstanding any provision in the Agreement
to the contrary if, as of the effective date of Executive’s
termination of employment, he is a “Specified Employee,” then, only
to the extent required pursuant to Code Section 409A(a)(2)(B)(i),
payments due under this Agreement which are deemed to be deferred
compensation shall be subject to a six (6) month delay following the
Executive’s separation from service. For purposes of Code Section
409A, all installment payments of deferred compensation made
hereunder, or pursuant to another plan or arrangement, shall be
deemed to be separate payments and, accordingly, the aforementioned
deferral shall only apply to separate payments which would occur
during the six (6) month deferral period and all other payments
shall be unaffected. All delayed payments shall be accumulated and
paid in a lump-sum catch-up payment as of the first day of the
seventh-month following separation from service (or, if earlier, the
date of death of the Executive) with all such delayed payments being
credited with interest (compounded monthly) for this period of delay
as provided in Section 10(g). Any portion of the benefits hereunder
that were not otherwise due to be paid during the six-month period
following the termination shall be paid to Executive in accordance
with the payment schedule established herein. In the event that
there is any disagreement between the parties as to whether any
payment or benefit due hereunder constitutes deferred compensation
under Code Section
409A, the Company shall hire, at its sole cost, a nationally
recognized law firm (which is



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reasonably acceptable to Executive) to
provide advice regarding the proper treatment of such payment or
benefit. It is the intent of the parties that payments hereunder
shall be in compliance with, or exempt from, Code Section 409A and
the parties agree to reasonably cooperate to effectuate such intent.
It is also the intent of the parties that the payments under this
Agreement not be treated as deferred compensation under Code Section
409A and therefore not be subject to a six (6) month delay and that
each party believes, that based on IRS authority as of the date of
execution of this Amendment, that the Company would not be obligated
to impose a six (6) month delay following the Executive’s separation
from service on payments under this Agreement. Should this Section
4(l) otherwise result in a delay with respect to providing welfare
benefits to Executive, any such benefits shall be made available to
the Executive during such delay period at Executive’s expense and
the Company shall reimburse Executive for such payments at the same
time and in the same manner (including interest) as set forth in
this Section 4(l) regarding the payment of accumulated delayed
payments.”



     11. Section 9(b) of the Agreement is amended by adding the following sentence to the end of
the Section:




“Any amounts to be paid or reimbursed by the Employer to the
Executive under this Section shall be paid to the Executive as soon
as practicable, but not later than the end of the taxable year
following the year in which they were incurred.”



     12. Section 10(d) of the Agreement is amended by adding the following sentence to the end of
the Section:




“Any amounts to be paid or reimbursed by the Employer to the
Executive under this Section shall be paid to the Executive as soon
as practicable, but not later than March 15 of the year following
the year in which the arbitrator chooses a Proposed Solution.”



     IN WITNESS WHEREOF, this Amendment has been executed as of the date first above written.



FIRST INDUSTRIAL REALTY TRUST, INC.




	 	 	 	 	 	 	 	 	 
	By:

	 	John H. Clayton
	 	 
	 	/s/ Johannson L. Yap
	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	Its: Vice President — Corp. Legal
	 	 	 	JOHANNSON L. YAP	 	 







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