EXHIBIT 10.2
------------
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (this "Amendment") is
entered into effective as of February 13, 2002, by and between X.X.
Xxxxxxxx (the "Executive") and Banyan Strategic Realty Trust (the "Trust").
WHEREAS, the Executive and the Trust, entered into that certain
Employment Agreement, dated as of October 26, 2000 (the "Employment
Agreement"), pursuant to which the Executive continued to serve as the
Trust's interim president and chief executive officer. Any capitalized
term used but not defined herein, shall have the meaning ascribed to it in
the Employment Agreement;
WHEREAS, the term of the Employment Agreement expires as of the date
hereof, and the Executive and the Trust desire to extend the term and amend
certain provisions of the Employment Agreement, in accordance with the
terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Trust and
the Executive do hereby agree as follows:
1. TERM. The term of the Employment Agreement shall remain in
effect, unless sooner terminated in accordance with the provisions therein,
until the final liquidation and dissolution of the Trust (the "Remaining
Term"). During the Remaining Term, Executive shall continue to serve as
the Trust's Chairman, Interim President and Chief Executive Officer.
2. BASE COMPENSATION.
(A) During the Remaining Term, for the services rendered by
the Executive under the Employment Agreement, the Trust shall pay to
the Executive an amount equal to Three Hundred Dollars ($300.00) for
each hour the Executive provides services to the Trust pursuant to
the Employment Agreement. During the Remaining Term, within thirty
(30) days following the end of each month, the Executive shall submit
to the Company a written statement (the "Statement"). The Statement
shall set forth, in reasonable detail, and with specific references
to the dates and services rendered, the amount of time spent, in
quarter-hour increments, by the Executive during the immediately
preceding month performing his services under the Employment
Agreement. Within fifteen (15) days of receipt of the Statement, the
Trust shall pay to the Executive an amount equal to the product of:
(i) the number of hours set forth in the Statement, and (ii) $300;
all compensation paid to the Executive hereunder shall be reduced by
all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
(B) The Trust may, in addition to Executive's base
compensation as set forth above, pay Executive a bonus as determined
by the Trust. The bonus will be determined by the independent
trustees of the Trust in their discretion and may be based upon,
among other things, Executive's achievement of performance objectives
to be established by the Trust.
1
3. ADDITIONAL BENEFITS. During the Remaining Term, the Trust
shall maintain in full force and effect Executive's medical and dental
benefits (the "Continued Benefits"). If Executive's continued
participation in the Continued Benefits is not permitted under the general
terms and provisions of the applicable plans, programs, and arrangements,
the Trust will reimburse Executive for the cost of extending the Continued
Benefits through COBRA, such that on an after-tax basis, Executive is made
whole. During the Remaining Term, the Executive shall no longer be
entitled to participate in any deferred compensation plan sponsored by the
Trust. Additionally, the Executive shall no longer be entitled to paid
vacation with respect to the Trust. However, the Executive shall continue
to be reimbursed by the Trust for all reasonable out-of-pocket business
expenses incurred by the Executive in connection with performing his duties
under the Employment Agreement, provided that the Executive provides the
Trust with an accounting conforming to Internal Revenue Service or other
requirements substantiating the nature of all reimbursable expenses. All
reimbursements shall continue to be paid to the Executive within a
reasonable time after receipt by the Trust of the appropriate
documentation.
4. DIRECTORSHIP. Nothing contained herein shall affect the
Executive's service on the Trust's board of trustees. The Executive shall
continue to serve on the Trust's board of trustees for the remainder of his
current term and for any successive term to which he is properly elected
and qualified.
5. NOTICE. Any notice required or permitted hereunder or under
the Employment Agreement shall be made in writing: (i) either by actual or
delivery of the notice into the hands of the party entitled; or (ii) by
depositing the notice in the United States mail certified or registered,
return receipt requested, all postage prepaid and addressed to the party to
whom notice is to be given at the party's respective address set forth
below, or such other address as the party may from time to time designate
by written notice to the other party.
If to the Trust:
Banyan Strategic Realty Trust
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
with copies to:
Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Executive:
Xx. X.X. Xxxxxxxx
00 Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxx X. Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The notice shall be deemed to be received on the earlier of (i) the date of
its actual receipt by the party entitled thereto and (ii) the third
business day following the date of mailing.
2
6. ENTIRE AGREEMENT. Except as expressly set forth herein, this
Amendment and the Employment Agreement, as amended hereby, constitute the
entire agreement of the parties hereto with respect to the Executive's
duties, compensation and severance as an employee of the Trust, and
supersede all prior or contemporaneous contracts, representations,
statements and warranties, whether oral or written, with respect to such
matters. The Employment Agreement, and any and all modifications thereof,
as amended hereby, shall have the same validity and effect as they had
immediately prior to the execution and delivery of this Amendment.
7. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the internal laws (and not the law of
conflicts) of the State of Illinois.
8. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which will be deemed an original.
9. PAYMENT OF THE EXECUTIVE'S FEES. The Trust agrees to pay to
the Executive the reasonable cost of the attorney's fees incurred by the
Executive in the negotiation and preparation of this Amendment, within
thirty (30) days of receipt by the Trust of a detailed accounting of such
fees.
[Remainder of page intentionally left blank]
3
IN WITNESS WHEREOF, this Agreement is entered into on the day and
year first written above.
BANYAN STRATEGIC REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
and General Counsel
EXECUTIVE
/s/ X.X. Xxxxxxxx
----------------------------
X.X. Xxxxxxxx
4
