Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into by and between Realty
Income Corporation, a Maryland corporation (the “Company”), and
NAME,
an individual residing
in the county of San Diego, state of California (the “Employee”), and shall be
effective as of January 1, 2010 (the “Effective Date”).
1.
Term
. The
Company hereby continues to employ the Employee for an indefinite term
commencing on the date hereof and continuing until this Agreement is terminated
by either party as provided hereinafter in Paragraph 10 (such period being
hereinafter sometimes referred to as the “term of this Agreement”). The
Employee accepts such employment and agrees to perform the services specified
herein, all upon the terms and conditions hereinafter set forth.
2.
Duties
. The
Employee shall perform such management and administrative duties as are from
time-to-time assigned to him by the Company. If the Employee is elected an
officer of the Company during the term of this Agreement, the Employee will
serve in such capacity without further compensation. The Employee also
agrees to perform, without additional compensation, such other services for the
Company and for any subsidiary or affiliated corporations of the Company or for
any partnerships in which the Company has an interest, as the Board of Directors
of the Company (the “Board”) shall from time-to-time specify.
3.
Extent of
Services
. During the term of this Agreement, the Employee shall
devote his full time, attention and energy to the business of the Company and,
except as may be specifically permitted by the Board in writing, shall not be
engaged in any other business activity which would interfere with the
performance of his duties hereunder or be competitive with the business of the
Company. The foregoing restrictions shall not be construed as preventing
the Employee from making passive investments in other businesses or enterprises;
provided, however, that such other investments will not require services on the
part of the Employee which would in any manner impair the performance of his
duties under this Agreement, and provided further that such other businesses or
enterprises are not engaged in any business competitive to the business of the
Company.
4.
Salary; Bonus
.
During the term of this Agreement, as compensation for the proper and
satisfactory performance of all duties to be performed by Employee hereunder,
the Company shall pay to the Employee a base salary of no less than SALARY per
year less required deductions for state and federal withholding tax, social
security and all other required employee taxes and payroll deductions.
From time-to-time during the term of this Agreement, the amount of the
Employee’s base salary may be increased by and at the sole discretion of the
Company. The base salary shall be payable in installments in
accordance with regular payroll policies of the Company in effect from
time-to-time during the term of this Agreement. Any annual bonus
payable to Employee during the term of this Agreement shall be solely at the
discretion of the Company, and shall be subject to and conditioned on Employee’s
continued employment with the Company through the date of payment of such
bonus. Employee
acknowledges
and agrees that nothing contained herein confers on him any right to an annual
bonus in any year, and that whether the Company pays him an annual bonus and the
amount of any such annual bonus shall be determined by the Company in its sole
and absolute discretion.
5.
Annual Incentive
Plan.
The Employee shall participate in the 2003 Incentive Award
Plan of the Company as the same shall be adopted and amended from time to time
by the Compensation Committee of the Board.
6.
Medical Insurance; Benefit
Plans
. During the term of this Agreement, the Employee shall be
eligible to participate, on the same terms as are applied to all other
employees, in any group medical insurance plan, qualified pension or profit
sharing plan or any other employee benefit plan from time-to-time maintained by
the Company. Nothing in this paragraph is intended to require the
Company to maintain or to continue any employee benefits plans, nor is this
paragraph intended to limit the Company’s ability to revise, supplement or
terminate any or all such employee benefit plans in its sole
discretion.
7.
Expenses
.
During the term of this Agreement, the Company shall pay to or reimburse the
Employee, upon submission of an appropriate statement by him documenting such
expenses as required by the Internal Revenue Code of 1986, as amended (the
“Code”), for all out-of-pocket expenses for entertainment, travel, meals, hotel
accommodations and the like reasonably incurred by him in the course of his
employment hereunder.
8.
Vacation
. The
Employee shall be entitled to an annual vacation in accordance with the
Company’s vacation policy as contained in its Employee Handbook, as the same may
be amended from time to time. Employee’s prior service with the Company
shall be included in determining vacation accrual and all other benefits.
Such vacation shall be scheduled at such time as the Employee may choose, but
shall be timed in such manner as to avoid interference with the necessary
performance of his duties hereunder. Unused vacation time shall accrue
from year-to-year subject to the caps and other limitations set forth in the
Company’s vacation policy as contained in its Employee Handbook, as the same may
be amended from time to time in the Company’s sole discretion.
9.
Sick/Personal
Leave
. The Employee shall be entitled to sick/personal leave in
accordance with the Company’s Employee Handbook, as the same may be amended from
time to time.
10.
Termination
.
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a.
Death or Permanent
Disability
. In the event that the Employee dies or incurs a
disability (as defined below) during the term of this Agreement, then the
Employee’s employment with the Company shall terminate upon the Employee’s
death or disability, and (with the exception of any life or disability
insurance benefits to which the Employee may be entitled) the Company
shall have no further obligation hereunder to the Employee or his spouse
or estate except to pay to the Employee (in the event of his disability)
or the Employee’s spouse if she should survive him, or to the Employee’s
estate if his spouse shall not survive him, the amount of the Employee’s
accrued but unpaid wages (including all earned commission pay, if any,
payable pursuant to a separate commissions agreement), and accrued but
unused vacation, if any, as of the date of his death or
disability. For purposes of this Agreement, “disability” shall
mean the Employee’s inability to perform his duties with the Company on a
full-time basis for 120 consecutive days or for a total of 180 days in any
12-month period, in either case as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by the
Company or its insurers.
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b.
Termination by the
Company Without Cause/Constructive Termination
. The
Employee’s employment with the Company may be terminated by the Company
without Cause or by the Employee by reason of a Constructive Termination
(each as defined in the Definitions Annex below) at any time upon written
notice to the Employee or the Company, as applicable, provided that in the
event of the Company’s termination of Employee’s employment without Cause
or Employee’s Constructive Termination, in either case prior to or more
than twelve months after a Change in Control (as defined in the
Definitions Annex below) the Company shall: (i) pay to the Employee in a
single lump sum an amount equal to twelve (12) months’ of the Employee’s
then current base salary under this Agreement plus the average
of the last three (3) years’ cash bonus paid to the Employee (excluding
commissions, if any, payable pursuant to a separate commissions agreement)
(the “Severance Payment”), (ii) pay any accrued but unpaid wages
(including all earned commission pay, if any, payable pursuant to a
separate commissions agreement) and accrued but unused vacation pay to
which the Employee may be entitled hereunder as of the termination date,
and (iii) continue to provide Employee with group medical insurance at the
Company’s expense (whether through reimbursement of Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (“COBRA”) premiums or
otherwise in the Company’s discretion) for a period of twelve (12) months
from the date of the Employee’s Separation from Service (as defined below)
or until Employee becomes covered under another group medical insurance
plan, whichever occurs first. In the event of the Company’s
termination of Employee’s employment without Cause or Employee’s
Constructive Termination, in either case on or within twelve months after
a Change in Control, in lieu of the foregoing, the Company shall: (i) pay
to the Employee in a single lump sum an amount equal to eighteen (18)
months’ of the Employee’s then current base salary under this Agreement
plus the average of the last three (3) years’ cash bonus paid to the
Employee (excluding commissions, if any, payable pursuant to a separate
commissions agreement) (the “CIC Severance Payment”), (ii) pay any accrued
salary (including all earned commission pay, if any, payable pursuant to a
separate commissions agreement) and accrued but unused vacation pay to
which the Employee may be entitled hereunder as of the termination date,
and (iii) continue to provide Employee with group medical insurance at the
Company’s expense (whether through reimbursement of COBRA premiums or
otherwise in the Company’s discretion) for a period of eighteen (18)
months from the date of the Employee’s Separation from Service or until
Employee becomes covered under another group medical insurance plan,
whichever occurs first. Notwithstanding the foregoing, the severance
payments described in this Paragraph 10(b), other than the accrued salary
and accrued but unused vacation described in clause (ii), shall be payable
only in the event that the termination of employment constitutes a
“separation from service” within the meaning of Treasury Regulation
Section 1.409A-1(h) (a “Separation from Service”). In addition,
in the event that the Employee’s employment is terminated by the Company
or by the Employee pursuant to this Paragraph 10(b), such termination
shall be upon the terms of, and the Company and the Employee shall
execute, in the execution time frame specified in such document following
the Separation from Service, the Severance Agreement and General Release
substantially in the form of Exhibit A, attached hereto and incorporated
herein by reference, and the Employee’s right to receive
the severance payments and benefits under this Paragraph 10(b)
(other than the accrued salary and accrued but unused vacation described
in clause (ii) above) shall be subject to and contingent on the execution
and non-revocation by Employee of such Severance Agreement and General
Release. Subject to Paragraph 10(d) below, any Severance
Payment or CIC Severance Payment, as applicable, that becomes payable to
the Employee pursuant to this Paragraph 10(b) shall be paid to the
Employee on the sixtieth (60
th
)
day following the date of the Employee’s Separation from
Service.
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c.
Termination by the
Employee
. The Employee may voluntarily terminate
his employment with the Company other than by reason of a Constructive
Termination at any time upon two (2) weeks’ written notice to the
Company.
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d.
Internal Revenue Code
Section 409A
. Notwithstanding any provision to the contrary
in this Agreement, if the Employee is deemed by the Company at the time of
his Separation from Service to be a “specified employee” for purposes of
Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement
of any portion of the benefits to which the Employee is entitled under
this Agreement is required in order to avoid a prohibited distribution
under Section 409A(a)(2)(B)(i) of the Code, such portion of the Employee’s
benefits shall not be provided to the Employee prior to the earlier of (i)
the expiration of the six-month period measured from the date of the
Separation from Service or (ii) the date of the Employee’s
death. Upon the expiration of the applicable Code Section
409A(a)(2)(B)(i) period, all payments deferred pursuant to this Paragraph
10(d) shall be paid in a lump sum to the Employee, and any remaining
payments due under the Agreement shall be paid as otherwise provided
herein.
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To
the extent that any payments or reimbursements provided to the Employee
under this Agreement are deemed to constitute compensation to which
Treasury Regulation Section 1.409A-3(i)(1)(iv) would apply, such amounts
shall be paid or reimbursed to the Employee reasonably promptly, but in no
event later than December 31 of the year following the year in which the
expense was incurred. The amount of any such payments eligible
for reimbursement in one year shall not affect the payments or expenses
that are eligible for payment or reimbursement in any other taxable year,
and the Employee’s right to such payments or reimbursement shall not be
subject to liquidation or exchange for any other
benefit.
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e.
Failure to
Perform
. Notwithstanding any other provision of this
Agreement, if the Employee shall be discharged by the Company for Cause or
if Employee voluntarily terminates employment other than as a result of a
Constructive Termination, then this Agreement shall automatically
terminate (except for the provisions of Paragraphs 12 and 13, which shall
continue in effect), and upon such termination, the Company shall have no
further obligation to the Employee or his spouse or estate, except that
the Company shall pay to the Employee, the amount of his accrued but
unpaid wages (including all earned commission pay, if any, payable
pursuant to a separate commissions agreement) and accrued but unused
vacation pay as of the date of such
termination.
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11.
Corporate
Opportunity
. The Employee acknowledges the value to the Company of
his knowledge, contacts and working relationships involving the business of the
Company. Employee agrees to utilize all of such capacities for the sole
use and benefit of the Company and to first offer to the Company any and all of
those opportunities which shall come to his knowledge which are within the area
of business of the Company.
12.
Confidential
Information
. The Employee acknowledges that in the course of his
employment with the Company, he will receive certain trade secrets, know-how,
lists of customers, employee records and other confidential information and
knowledge concerning the business of the Company (hereinafter collectively
referred to as “information”) which the Company desires to protect. The
Employee understands that such information is confidential, and he agrees not to
reveal such information to anyone outside the Company either during the term of
this Agreement or indefinitely thereafter. The Employee further agrees
that during the term of this Agreement and indefinitely thereafter he will not
use such information, directly or indirectly, to compete against the
Company. At such time as the Employee shall cease to be employed by the
Company, he shall surrender to the Company all papers, documents, writings and
other property produced by him or coming into his possession by or through his
employment hereunder and relating to the information referred to in this
paragraph, and the Employee agrees that all such materials will at all times
remain the property of the Company.
13.
Assignment of Proprietary
Information
. During the term of this Agreement, all patents,
processes and other proprietary information developed by the Employee in the
course of his employment shall be the sole and exclusive property of the
Company. The Employee covenants and agrees to execute any documents or
take any action necessary to effectively transfer any rights he may have in such
proprietary information to the Company and to maintain the rights, interest and
title of the Company in and to such information. Nothing herein shall be
deemed to deny Employee the protection afforded by California Labor Code Section
2870.
14.
Indemnification
.
The Company shall indemnify Employee against liability pursuant to an Indemnity
Agreement, which the Company and Employee have previously executed.
15.
Notices
. All
notices, requests, consents and other communications under this Agreement shall
be in writing and shall be deemed to have been delivered on the date personally
delivered or on the date mailed, postage prepaid, by certified mail, return
receipt requested, or telegraphed and confirmed if addressed to the respective
parties as follows:
If
to the Employee:
NAME
ADDRESS
CITY,
STATE ZIP
If
to the Company:
Realty Income
Corporation
Attention: President, Chief
Operating Officer
600 La Terraza Boulevard
Escondido,
California 92025
Either
party hereto may designate a different address by providing written notice of
such new address to the other party hereto as provided in this Paragraph
15.
16.
Specific
Performance
. The Employee acknowledges that a remedy at law for any
breach or attempted breach of Paragraphs 12 and 13 of this Agreement will be
inadequate, and therefore agrees that the Company shall be entitled to specific
performance and injunctive and other equitable relief in case of any such breach
or attempted breach, and further agrees to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or any other equitable relief.
17.
Severability
.
In the event any term, phrase, clause, paragraph, section, restriction,
covenant or agreement contained in this Agreement shall be held to be invalid or
unenforceable, the same shall be deemed, and it is hereby agreed that the same
are meant to be several and shall not defeat or impair the remaining provisions
hereof.
18.
Waiver
. The
waiver by the Company of any breach of any provision of this Agreement by the
Employee shall not operate or be construed as a waiver of any subsequent or
continuing breach of this Agreement by the Employee.
19.
Assignment
.
This Agreement may not be assigned by the Employee. Neither of the
Employee nor his spouse or estate shall have any right to commute, encumber or
dispose of any right to receive payments under this Agreement, it being agreed
that such payments and the rights thereto are nonassignable and
nontransferable.
20.
Binding Effect
.
Subject to the provisions of Paragraph 19, this Agreement shall be binding upon
and inure to the benefit of the parties hereto, the Employee’s heirs and
personal representatives, and the successors and assigns of the
Company.
21.
Entire
Agreement
. This Agreement sets forth the entire agreement and
understanding between the parties relating to the subject matter contained
herein and supersedes all other agreements, oral or written, between the parties
relating to such subject matter, including, but not limited to, any and all
other agreements between the parties concerning employment, compensation, or
profit sharing; provided, however, that the Company’s equity compensation plans
and any written stock option or restricted stock agreement between the Company
and Employee setting forth the terms of equity compensation awards granted to
Employees under such plans and the Indemnity Agreement between the Company and
Employee all shall remain in full force and effect.
22.
Withholding
.
Any amounts payable under this Agreement shall be subject to any required
federal, state, local or other income, employment or other tax
withholdings.
23.
Amendment
. This
Agreement may be amended only by an instrument in writing executed by both
parties hereto.
24.
Governing Law
.
This Agreement shall be construed and enforced in accordance with and governed
by the law of the State of California.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
REALTY
INCOME CORPORATION
EMPLOYEE
By:
__________________________
________________________
Thomas A. Lewis, Jr.
NAME
Chief Executive Officer
DEFINITIONS
For
purposes of this Agreement, “Cause,” “Change in Control” and “Constructive
Termination” shall have the following defined meanings:
1.
“Cause” means (a) theft, dishonesty or
falsification of any employment or Company records; (b) malicious or reckless
disclosure of the Company’s confidential or proprietary information; (c)
commission of any immoral or illegal act or any gross or willful misconduct,
where the Company reasonably determines that such act or misconduct has (1)
seriously undermined the ability of the Company’s management to entrust Employee
with important matters or otherwise work effectively with Employee, (2)
contributed to the Company’s loss of significant revenues or business
opportunities, or (3) significantly and detrimentally effected the business or
reputation of the Company or any of its subsidiaries; and/or (d) Employee’s
failure or refusal to work diligently to perform tasks or achieve goals
reasonably requested by the Board, provided such breach, failure or refusal
continues after the receipt of reasonable notice in writing of such failure or
refusal and an opportunity to correct the problem. “Cause” shall not mean
a physical or mental disability.
2.
“Change in Control” shall mean the occurrence
of any of the following:
(a)
An acquisition in one transaction or a series
of related transactions (other than directly from the Company or pursuant to
awards granted under the Company’s equity incentive plan or compensatory options
or other similar awards granted by the Company) of the Company’s voting
securities by any individual or entity (a “Person”), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding voting securities (other
than a Non-Control Transaction, as defined below);
(b)
The individuals who, immediately prior to the
Effective Date, are members of the Board (the “Incumbent Board”), cease for any
reason to constitute at least a majority of the members of the Board; provided,
however, that if the election, or nomination for election, by the Company’s
common stockholders, of any new director was approved by a vote of at least a
majority of the Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; provided further,
however, that no individual shall be considered a member of the Incumbent Board
if such individual initially assumed office as a result of either an actual or
threatened “Election Contest” (as described in Rule 14a-11 promulgated under the
Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a “Proxy Contest”) including by reason of any agreement intended to avoid
or settle any Election Contest or Proxy Contest; or
(c)
the consummation of
(i)
a merger, consolidation or reorganization
involving the Company unless:
(A)
the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the “Surviving Corporation”) in
substantially the same proportion as their ownership of the Company’s voting
securities immediately before such merger, consolidation or reorganization,
(B)
the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at least a majority
of the members of the board of directors of the Surviving Corporation, or a
corporation beneficially owning, directly or indirectly, a majority of the
voting securities of the Surviving Corporation, and
(C)
no Person, other than (i) the Company,
(ii) any employee benefit plan (or any trust forming a part thereof) that,
immediately prior to such merger, consolidation or reorganization, was
maintained by the Company, the Surviving Corporation, or any related entity or
(iii) any Person who, together with its Affiliates, immediately prior to such
merger, consolidation or reorganization had beneficial ownership of fifty
percent (50%) or more of the Company’s then outstanding voting securities, owns,
together with its Affiliates, beneficial ownership of fifty percent (50%) or
more of the combined voting power of the Surviving Corporation’s then
outstanding voting securities.
(A
transaction described in clauses (A) through (C) above is referred to herein as
a “Non-Control Transaction”);
(d)
a complete liquidation or dissolution of the
Company; or
(e)
an agreement for the sale or other disposition
of all or substantially all of the assets or business of the Company to any
Person.
For
purposes of this Agreement, “Affiliate” shall mean, with respect to any Person,
any other Person that, directly or indirectly, controls, is controlled by, or is
under common control with, such Person. Neither the Company nor any Person
controlled by the Company shall be deemed to be an Affiliate of any holder of
Common Stock.
3.
“Constructive Termination” means Employee’s
resignation of employment within sixty (60) days of one or more of the following
events which remains uncured thirty (30) days after Employee’s delivery of
written notice thereof, and which resignation is effective not more than thirty
(30) days following the expiration of such cure period:
(a)
a material diminution by the Company in
Employee’s authority, duties or responsibilities from those in effect
immediately prior to such diminution;
(b)
a material reduction by the Company in
Employee’s base salary in effect immediately prior to such reduction;
or
(c)
a material relocation by the Company of
Employee’s principal office location;
provided,
that a change to a
location which is not more than forty (40) miles from the Company’s present
headquarters location shall in no event be deemed “material” for purposes of
this definition (and, for the avoidance of doubt, reasonably required travel on
the Company’s business shall not be considered a relocation).
EXHIBIT
A
SEVERANCE
AGREEMENT AND GENERAL RELEASE
This
Severance Agreement and General Release (this “Severance Agreement”) is entered
into as of _____________________, 20___, by and between Realty Income
Corporation (the “Company”), and ____________________ (hereinafter
“Employee”).
IN
CONSIDERATION of the severance compensation as herein provided, to which
Employee is not otherwise entitled, Employee does hereby unconditionally,
irrevocably and absolutely release and discharge the Company, and any parent and
subsidiary corporations, divisions and other affiliated entities, past and
present, as well as its past and present directors, officers, employees,
shareholders, agents, successors and assigns (collectively, “Released Parties”),
from any and all loss, liability, claims, demands, causes of action, or suit of
any type related directly or indirectly or in any way connected to the
transactions or occurrences between Employee and the Released Parties to date,
to the fullest extent permitted by applicable law. This release
includes, but is not limited to, any losses, liabilities, claims, demands,
causes of action, known or unknown, suspected or unsuspected, arising directly
out of or in any way related to Employee’s employment with the Company, or the
termination of Employee’s employment. This release is intended to have the
broadest possible application and includes, but is not limited to, any tort,
contract, common law, constitutional or other statutory claims, as well as
alleged violations of the California Labor Code, any applicable California
Industrial Welfare Commission order, the California Business and Professions
Code, Title VII of the Civil Rights Act of 1964, the California Fair Employment
and Housing Act, the Americans with Disabilities Act, the Family and Medical
Leave Act, the Age Discrimination in Employment Act of 1967, all as amended, and
all claims for attorneys’ fees, costs and expenses. However, this
release shall not apply to claims for workers’ compensation benefits or
unemployment insurance benefits, any challenge made by Employee to the validity
of his release of claims under the Age Discrimination in Employment Act, or any
other claims of Employee that cannot, by statute, lawfully be waived by this
Severance Agreement.
IN
FURTHER CONSIDERATION THEREOF, Employee hereby waives all rights he may have to
any personal relief or recovery from any charge or complaint, for events or
causes of action occurring or accruing on or before the Effective Date of this
Severance Agreement, before any federal, state, or local administrative agency
against the Released Parties, except as such waiver is prohibited by statutory
provision. Employee further waives all rights to file or join in any
action before any federal, state, or local court against the Released Parties
for any events or causes of action occurring or accruing on or before the
Effective Date of this Severance Agreement. Employee also
acknowledges that he does not have any current charge or claim against the
Released Parties pending before any local, state or federal agency regarding his
employment. Except as prohibited by statutory provision, in the event
that any claims are filed, they shall be dismissed with prejudice upon
presentation of this Severance Agreement, and Employee shall reimburse the
Company for the costs, including reasonable attorneys' fees, of defending any
such action. The attorneys’ fee provision in the previous sentence
shall not apply to any action by Employee to challenge the enforceability of his
waiver of rights under the Age Discrimination in Employment Act..
As
consideration for entering into this Severance Agreement, Employee shall receive
the following severance compensation payable in accordance with the terms of
Paragraph 10 of that certain Employment Agreement between the parties dated as
of [_______, 20__]:
a)
The total gross sum of
($ ),
payable in a lump sum, and subject to applicable withholdings; and
b)
Group medical insurance paid for by the
Company for Employee and his dependents (if currently covered) through
,
or until Employee becomes covered under another group medical insurance plan,
whichever occurs first. Employee shall immediately notify the Company
upon becoming eligible for coverage under another group medical insurance
plan.
Except
as set forth in this Severance Agreement, or as otherwise mandated by applicable
law, Employee shall not be entitled to any benefits as an employee or former
employee of the Company.
As
a condition of the foregoing payments and benefits, Employee agrees to preserve
the confidentiality of all trade secrets and other confidential information of
the Released Parties, and will not now or in the future disrupt, damage, impair
or interfere with the business of the Released Parties, whether by way of using
or disclosing the Released Parties’ trade secrets and confidential information
to compete against them, interfering with or raiding their employees, or
otherwise unlawfully disrupting their relationships with customers, agents,
representatives or vendors. Employee agrees to comply, in all
respects, with the on-going confidentiality provisions contained in Paragraph 12
of the Employment Agreement between the parties.
Employee
agrees to cooperate with the Company in accomplishing a smooth and orderly
transition in the transfer of responsibilities of Employee to other employees of
the Company, particularly including pending matters of which Employee has the
principal knowledge and background information. In this regard, Employee
agrees to respond in a timely fashion to the questions which may be presented
occasionally by the Company. Such cooperation and responses shall not
entitle Employee to any additional compensation beyond the severance
compensation specified herein above, so long as such cooperation and responses
do not unreasonably interfere with Employee’s other gainful employment or
efforts to secure gainful employment.
By
signing this Severance Agreement, Employee represents, warrants and agrees as
follows:
(1)
Employee has carefully read this
Severance Agreement and understands all of its respective terms.
(2)
Employee does expressly waive all of
the benefits and rights granted to him pursuant to California Civil Code Section
1542, which provides and reads as follows:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”
Employee
does certify that he has read all of this Severance Agreement and the quoted
Civil Code Section, and that he fully understands all of the same, and that he
has been given the opportunity, if he desires, to review the terms of this
Severance Agreement and with counsel of his choosing.
(3)
Employee expressly declares and
represents that no promise, inducement or agreement not herein expressed has
been made to him and that this Severance Agreement contains the entire agreement
between the parties concerning the subject matter of this Severance Agreement
and supersedes all prior negotiations, discussions or agreements relating to the
subject matter of this Severance Agreement; provided, however, that the
Employment Agreement between the parties is incorporated and made a part of this
Severance Agreement and remains in full force and effect.
(4)
Employee agrees that this Severance
Agreement may be pled as a full and complete defense to, and may be used as the
basis for an injunction against, any action, suit or other proceeding which may
be prosecuted, instituted or attempted by Employee in breach
hereof. Employee further agrees that in the event an action or
proceeding is instituted by Employee or the Company or any party released hereby
in order to enforce the terms or provisions hereof, the prevailing party shall
be entitled to an award of reasonable costs and attorneys’ fees. This
attorneys’ fee provision shall not apply to an action brought by Employee to
challenge the enforceability of his waiver of rights under the Age
Discrimination in Employment Act.
(5)
The parties agree that this Severance Agreement shall bind Employee, his heirs,
successors, agents, representatives and assigns, and each of them, and shall
inure to the benefit of the successors and assigns of the respective parties
hereto.
(6)
Employee has signed this Severance
Agreement knowingly and voluntarily, and no promises or representations have
been made to him to induce him to sign this Severance Agreement.
(7)
If Employee is under age 40 as of the
date he signs this Severance Agreement, he understands that the acceptance
procedures of this Paragraph 7 apply to him
. Employee
understands that he may take up to twenty-one (21) days to sign this Severance
Agreement and the Severance Agreement shall be effective immediately upon the
date of his signature (“Effective Date”).
(8)
If Employee is age 40 or over as of
the date he signs this Severance Agreement, he understands that the acceptance
procedures of this Paragraph 8 apply to him
. Employee
acknowledges and agrees that: a) he has been advised to consult with
an attorney before executing this Severance Agreement; b) he has been given at
least twenty-one (21) days to consider and sign this Severance Agreement; c)
Employee may revoke his acceptance of this Severance Agreement within seven days
after he signs it by delivering a written revocation to the President, Chief
Operating Officer so that such written revocation is received by no later than
the seventh day; d) this Severance Agreement shall not be binding and
enforceable until the eighth day after Employee signs this Severance Agreement
without revoking it (“Effective Date”); and e) this Severance Agreement does not
waive or release any rights or claims that Employee may have under the Age
Discrimination in Employment Act that arise after execution of this Severance
Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Severance Agreement and
General Release as of the date first above written.
REALTY
INCOME CORPORATION
EMPLOYEE
By:
___________________________
__________________
Title:
___________________________
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