SEVERANCE AGREEMENT AND GENERAL RELEASE
Exhibit
10.22
Getty
Realty Corp., which maintains its principal offices at 000 Xxxxxxx Xxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000 (“Getty” or “Company”), and Xxxxxx X. Xxxxx
(sometimes referred to as “Xx. Xxxxx”), residing at 00 Xxxxxxxx Xxxxx,
Xxxxxxxxxxxxx, Xxx Xxxx 00000, for himself and his present or former heirs,
executors, administrators, successors, and assigns (collectively referred to
throughout this Agreement as “Employee”), agree that:
1.
Last
Day of Employment. Employee’s last day of employment
with Getty was October 31, 2007 (the “Severance Date”).
2.
Consideration. In consideration for signing
this Severance Agreement and General Release ("Agreement") and compliance with
the promises made herein, Getty agrees:
a. to
pay to
Employee: (1) in full satisfaction of Employee’s rights to 14,250 restricted
stock units (“RSU’s”) under all Restricted Stock Unit Agreements between
Employee and Getty, all of which 14,250 RSU’s are fully vested by the terms of
the RSUs as of the date hereof, an amount equal to the closing price per share
of Getty Realty Corp. common stock on October 31, 2007 ($28.43) multiplied
by
14,250 which sum of $405,127.50 (less estimated lawful payroll and withholding
deductions) shall be deposited in the Rabbi Trust (hereinafter defined) during
the Revocation Period (hereinafter defined in paragraph 13 and held by the
Trustee (hereinafter defined) pursuant to the terms of the Rabbi Trust until
5
business days after the end of the six-month period beginning on the Severance
Date (as required pursuant to the provisions of Internal Revenue Code Section
409A and the regulations thereunder), on which date the Trustee shall disburse
such amount to Employee by bank check or wire transfer or EFT as directed by
Employee (Such payment in respect of the RSUs will cancel all rights of Employee
under the RSUs); (2) $196,690.85 as severance, which sum (less lawful
payroll and withholding deductions) shall be deposited in the Rabbi Trust during
the Revocation Period and disbursed by Trustee to Employee on the first business
day after expiration of the Revocation Period, by bank check or wire transfer
or
EFT as directed by Employee; (3) $36,655.11 (less lawful payroll and withholding
deductions) for 36.34 accrued vacation, holiday and sick days and unpaid wages,
which sum shall be deposited in the Rabbi Trust during the Revocation Period
and
disbursed by Trustee to Employee on the first business day after expiration
of
the Revocation Period, by bank check or wire transfer or EFT as directed by
Employee;
b. contemporaneously
with the execution of this Agreement, Employee has delivered to Getty an
election of coverage continuation under COBRA with regard to Employee and
Employee’s family in accordance with and subject to the terms of Getty’s medical
and dental plans (the “Plans”) and COBRA and Getty shall pay the cost of COBRA
coverage under the Plans (“COBRA Coverage”); provided, however, that if COBRA
Coverage extends beyond October 31, 2008, the cost for such coverage shall
be
paid by Employee;
c. Employee
has delivered to Getty all necessary documentation to effect a direct rollover
of the vested balance in Employee’s Retirement and Profit Sharing Plan (401k)
Account with Getty (approximately $100,000), and Getty, if it has not done
so
already, shall direct and otherwise cause the plan administrator to wire
transfer or EFT such balance, within ten business days after expiration of
the
Revocation Period, in accordance with Employee’s direct rollover instructions;
and,
d. to
direct
and otherwise cause the plan administrator to wire transfer or EFT to the
Trustee for deposit into the Rabbi Trust the Employee’s vested
balance in the Supplemental Retirement Plan Account with Getty which value
was
approximately $58,995.70 as of October 31, 2007, less estimated lawful payroll
and withholding deductions, which sum shall be held until 5 business days after
the end of the six-month period beginning on the Severance Date (as
required pursuant to the provisions of Internal Revenue Code Section 409A and
the regulations thereunder), on which date the sum shall be disbursed to
Employee by the Trustee by bank check or wire transfer or EFT as directed by
Employee.
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For
purposes hereof, the term “Rabbi Trust” shall mean the escrow account
established with the firm of Xxxxxxxx and Xxxxxxxx, LLP and the term “Trustee”
shall mean “Xxxxxxxx and Xxxxxxxx, LLP.”
3. No
Consideration Absent Execution of this
Agreement. Employee understands and agrees he would not
receive all of the monies and benefits specified in or in the manner described
in Paragraph 2 above or otherwise identified in this Agreement as consideration,
except for his execution of this Agreement and the fulfillment of the promises
contained herein, and Getty understands that Employee would not be executing
this Agreement and providing a release of rights to restricted stock units
and
all other claims of every and any kind, known or unknown, including but not
limited to those in connection with the severance of his employment, if he
was
not receiving all of the monies and benefits specified in or in the manner
described in Paragraph 2 and elsewhere in this Agreement.
4. General
Release of Claims and Indemnification.
a. Except
with respect to Getty’s performance of its obligations under this Agreement, and
as hereinafter expressly provided in this Paragraph 4 below, Employee knowingly
and voluntarily releases and forever discharges Getty and any present or former
parent corporations, affiliates, subsidiaries, divisions, predecessors,
insurers, successors and assigns, and their current and former employees,
attorneys, officers, directors and agents thereof (and their respective heirs,
successors and assigns), both individually and in their business capacities,
and
their employee benefit plans and programs and their administrators, fiduciaries
and functionaries (collectively referred to throughout this Agreement as
“Employer”), of and from any and all claims, known and unknown, Employee has or
may have against Employer as of the date of execution of this Agreement by
Employee, including, but not limited to any alleged violation of any State
or
federal law (statutory or common law), regulation or ordinance (as the same
may
have been amended) or any company policy, plan or program. Except as
to his right to receive the payments provided in Paragraph 2 above, Employee
waives and releases all rights and claims Employee may have against Employer
for
salary, bonus, benefits, restricted stock units, stock options, dividends or
for
any other thing whatsoever. This general release of all claims
includes, but is not limited to, claims arising under:
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Title
VII of the Civil Rights Act of
1964;
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The
Civil Rights Act of 1991;
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Sections
1981 through 1988 of Title 42 of the United States
Code;
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The
Employee Retirement Income Security Act of
1974;
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The
Immigration Reform and Control Act;
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The
Americans with Disabilities Act of
1990;
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The
Age Discrimination in Employment Act of
1967;
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The
Xxxxxxxx-Xxxxx Act;
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The
Workers Adjustment and Retraining Notification
Act;
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The
Occupational Safety and Health Act;
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The
Fair Credit Reporting Act;
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The
New York State Executive Law (including its Human Rights
Law);
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The
New York City Administrative Code (including its Human Rights
Law);
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The
New York State Labor Law;
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The
New York wage, wage-payment and wage–hour
laws;
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Any
other federal, state or local civil, human rights, bias, whistleblower,
securities, real estate, tax, accounting, discrimination, retaliation,
compensation, employment, labor or other local, state or federal
law,
regulation or ordinance of any
kind;
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Any
amendments to the foregoing laws;
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Any
benefit, payroll or other plan, policy or
program;
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Any
public policy, contract, third-party beneficiary, tort or common
law
claim; or,
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Any
claim for costs, fees, or other expenses including attorneys’
fees.
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b. In
further consideration hereof, Employer knowingly and voluntarily releases and
forever discharges Employee of and from any and all claims, known and unknown,
Employer has or may have against Employee as of the date of execution of this
Agreement by Employer, including, but not limited to, any alleged violation
of
any State or federal law (statutory or common law), regulation or ordinance
(as
the same may have been amended) or any company policy of Getty;
and,
c. The
parties agree that Xx. Xxxxx shall be indemnified to the fullest extent
permitted by the Maryland General Corporation Law, the Company’s By-laws,
Charter, rules and regulations and to the same extent as similarly situated
officers of Getty, including, but not limited to, its President, Chief Executive
Officer or Chief Financial Officer for acts undertaken with respect to his
duties as an employee of Getty. It is agreed further that Xx. Xxxxx
shall be a covered insured under the Company’s directors and officers liability
insurance policy to the same extent as the President, Chief Executive Officer
or
Chief Financial Officer and similarly situated officers of the
Company. It further is agreed if the Company is sold, it shall cause
the sale or merger agreement to require the successor to comply fully with
this
covenant.
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5. Acknowledgments
and Affirmations.
a. Employee
and Employer each affirms to the other that it has not filed, caused to be
filed, and presently is not a party to any claim filed against the other and
has
released any and all claims not explicitly preserved by Employee to receive
the
consideration provided hereunder;
b. Employee
affirms he has no known workplace injuries, diseases or occupational illnesses
and further affirms that he is unaware of any facts that could be the basis
for
a claim of discrimination against the Employer;
c. Employee
affirms he will continue to maintain the confidentiality of Employer’s
confidential and other non-public information consistent with Employer’s
policies attorney-client privileges, and common law, except as compelled by
judicial process or court or governmental order or proceeding;
d. Employee
also affirms that upon receipt of the consideration to be paid or provided
to
Employee under Paragraph 2 hereof, he will have been paid and/or have received
all compensation, wages, bonuses, commissions, and/or benefits to which Employee
may be entitled based on services performed and Employee’s execution of this
Agreement, subject to terms of this Agreement. Employee
affirms that he has been granted any leave to which he was entitled under the
Family and Medical Leave Act or related state or local leave or disability
accommodation laws;
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e. Both
Employer and Employee acknowledge that this Agreement does not limit either
party’s right, where applicable, to file or participate in an investigative
proceeding, to the extent permitted by law, before the U.S. Equal Employment
Opportunity Commission providing that Employee shall not be entitled to recover
any individual monetary relief or other individual remedies;
f. In
the event any claim is made by Employee that is not barred by this
Agreement and any remedy is provided upon such a claim by Employee, all monies
paid hereunder shall be a set–off against and shall be used to satisfy any
relief or recovery award to Employee and if Employee files any claim of any
kind
whatsoever, not explicitly preserved by Employee under this Agreement (excluding
cross, counter or similar claims that he may bring in response to any claim
brought against him by Getty), he shall return all of the consideration paid
under Paragraph 2 above and shall pay the cost of the legal fees incurred by
Employer to defend that action, subject to applicable law; and,
g. Employee
represents he has returned all of Employer’s equipment (except the Dell Latitude
430, Magellan 2000, Blackberry and Canon camera, which he shall be permitted
to
retain in consideration hereof) and has no knowledge that he has any original
or
copies of any Company documents and information, regardless of the form, and
agrees to return such documents and information, or forward to the
xxxxxx@xxxxxxxxxxx.xxx e-mail account any e-mails regarding Company business
received or sent from any e-mail account under his control that have not been
deleted, if he finds any in his possession and will thereafter purge any Company
data stored in any electronic form in his possession prior to the end of the
Revocation Period.
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6. Confidentiality.
a. Employee
shall not, from the date of this Agreement, except as compelled by law or court
order or administrative agency proceeding, or except to the extent of the
publicly available information regarding the same, publicize or disclose to
any
person or entity (excluding Employee’s immediate family, attorney and tax
advisor, as set forth in section 6.b., below, who themselves shall adhere to
all
confidentiality covenants herein upon being provided such disclosure), any
term
of or the making of this Agreement or the facts or circumstances relating to
the
making of this Agreement. This covenant of complete confidentiality
includes, but is not limited to, the terms or the making of this Agreement
and
Employee’s receipt of the payments hereunder, including the amount of said
payments, except to the extent of the publicly available information regarding
the same;
b. Consistent
with section 6.a. above, other than to discuss the terms hereof with Employee’s
immediate family, attorney and tax advisor (each of whom must first agree not
to
make any disclosure that Employee himself could not make), Employee will not
disclose to anyone any fact, document or other information produced or obtained
in connection with this Agreement or which Employee obtained as a consequence
of
being employed by Getty, except to the extent of the publicly available
information regarding the same. Employee shall be liable for any
damages caused by his own or any other person’s established violation of this
covenant or any other clause of this Agreement (provided such person is not
testifying or making disclosure in response to legal process and is one to
whom
Employee has disclosed any fact, document or other information produced or
obtained in connection with this Agreement);
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c. Employee
further agrees he will not, contact any current or former Getty employees other
than Getty’s CEO (or his designee) and the CFO (but only with respect to
benefits and payments due under the Agreement), to discuss the terms of this
Agreement, the circumstances giving rise to the parties’ entering into this
Agreement or his separation from employment except to the extent of the publicly
available information regarding the same and except that Employee shall be
permitted to say that he resigned in order to pursue other business
interests;
d. Employee
confirms that, as of the date of the execution of this Agreement, he has not
told anyone about the terms of this Agreement or the payments being made
hereunder other than his immediate family, present attorney, tax advisor,
Getty’s outside corporate counsel, Xxxxxxxx & Xxxxxxxx LLP and the EVP
(Xxxxx Xxxx) and CFO (Xxx Xxxxxxxxxx) of Getty;
e. Employee
affirms that he has returned, or prior to the end of the Revocation Period
will
return, (or in the case of Company business communicated in e-mails received
or
sent on e-mail accounts under his control, Employee has or will forward such
to
xxxxxx@xxxxxxxxxxx.xxx), all of Employer’s equipment in his possession or
control (except the Dell Latitude 430, the Magellan 2000, Blackberry and Canon
camera, which he shall be permitted to retain in further consideration of this
Agreement), as well as all originals and copies of any Company documents,
e-mails and information, regardless of the form. Employee will
thereafter purge any Company data stored in any electronic form in his
possession prior to the end of the Revocation Period. Employee also affirms
he
is in possession (or prior to receiving the payments under Paragraph 2 above
will be in possession) of all of his own personal property that he had at
Employer’s premises and that Employer is not in possession of any of Employee’s
property;
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f. Employee
acknowledges that during the course of his employment, he had access to
information that is confidential and proprietary to Employer and not publicly
available (“Confidential Information”). Employee agrees Employer had
no obligation to specifically identify any information as Confidential
Information for it to be entitled to protection as such. For purposes
of this Agreement, Confidential Information shall include all information that
is not publicly available and concerns the business affairs of Employer or
its
tenants. Except as compelled by law or court order or subpoena or
administrative agency proceeding, Employee agrees not to disclose to any person
any Confidential Information without the prior written consent of
Employer;
g. Employee
understands and agrees that violation of this paragraph or violation any other
material provision of this Agreement will constitute a material breach of this
Agreement, which will cause Employer to suffer immediate, substantial and
irreparable injury and which will be a sufficient basis for an award of
injunctive relief and monetary damages (without affecting the remainder of
this
Agreement) as well as providing Getty with the right to cease providing any
outstanding consideration without affecting Employee’s release of claims, to the
extent permitted by law;
h. Getty
itself and its senior management will provide a letter of reference and will
not
discuss the circumstances of Xx. Xxxxx’x employment or the cessation thereof
other than as provided by paragraph 7, hereafter; and,
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i. In
addition to the specific obligations regarding the confidentiality of this
Paragraph 6, Employee agrees that he will not discuss, disclose or otherwise
publicize any business or legal dealings of the Company, or of its current
or
former shareholders, officers, directors, employees, insurers, attorneys or
agents. This prohibition is absolute, and includes verbal, written
and electronic communications (such as e-mails and computer
“blogs”). Nothing in this Agreement will prevent Employee from
responding truthfully in response to any lawfully-issued subpoena, but since
he
was Getty’s General Counsel (and to the extent not compromised because he also
was Getty’s President), all ethical, privilege and confidentiality obligations
apply in full, and nothing herein shall be deemed to limit in any way Employee’s
compliance with any court order, or judicial or administrative order or
subpoena. Employee agrees to notify Employer of the receipt of same
(unless notification is prohibited by governmental order). If
Employee shall require the advice of legal counsel in connection with his
response or compliance with any such subpoena or order, Employer shall arrange
for, reasonably select (in the same class as DLA Piper LLP) and compensate
such
attorney.
7. Non-Disparagement. Employee
and Getty, by its senior officers (and Getty will direct, and be responsible
for
compliance by, its President, Executive Vice President, and Chief Financial
Officer and similarly situated officers) agree not to defame, disparage or
demean each other in any manner whatsoever. Both parties agree that
Employee’s departure from Getty shall be described only as a resignation by
Employee to pursue other business interests. The parties agree that
Getty shall not issue any press release with regard to Employee’s departure from
Getty.
8. Governing
Law and Interpretation. This Agreement shall be governed
and conformed in accordance with the laws of the State of New York without
regard to its conflict or choice of law provisions to create binding general
mutual releases. In the event Employee or Employer breaches any
provision of this Agreement, Employee and Employer affirm that either may
institute an action to specifically enforce any term or terms of this
Agreement. Before doing so, the party alleging a breach occurred
shall provide at least ten (10) days notice to the other party and an additional
ten (10) days after notice is received to permit the other party to remedy
the
alleged breach.
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9. Severability.
If any provision of this Agreement is declared illegal or unenforceable by
any
court of competent jurisdiction, the parties agree the court shall have the
authority to modify, alter or change the provision(s) in question to make the
Agreement legal and enforceable. If this Agreement cannot be modified to be
enforceable, excluding the general release language, such provision shall
immediately become null and void, leaving the remainder of this Agreement in
full force and effect. If the general release language is found to be
illegal or unenforceable, Employee agrees to execute a binding replacement
release (consistent with this Agreement) without further
consideration. In the event Employee refuses to execute a binding
replacement release, he agrees to return all consideration paid pursuant to
this
Agreement immediately.
10. Amendment. Except
as provided in the preceding paragraph, this Agreement may not be modified,
altered or changed except upon express written consent of both parties wherein
specific reference is made to this Agreement.
11. Resolution
of Disputes. Any controversy or claim arising out of this
Agreement, or the breach thereof, shall be decided by the U.S. District Court
for the Eastern District of New York sitting in Suffolk County or the New York
State Supreme Court in and for Nassau County. All such claims shall
be adjudicated by a judge sitting without a jury.
12. Availability
for Advice. Employee agrees that, without additional
compensation, he will cooperate with, and provide assistance to, Getty during
November and December 2007, and thereafter from time to time, as his schedule
reasonably allows, in connection with the transitioning of the real estate,
litigation, environmental and corporate or other matters he was managing, and
those he managed during the term of his employment. Employee’s
availability to provide such assistance may be by telephone, email or in person
as may be reasonably necessary (as determined reasonably by
Employee).
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13. Nonadmission
of Wrongdoing. The parties agree that neither this
Agreement nor the furnishing of the consideration for this Agreement shall
be
deemed or construed at anytime for any purpose as an admission by either party
of any liability or unlawful conduct of any kind.
14. Revocation. Employee
may revoke this Agreement at any time during the seven (7) calendar days
following the day he executes this Agreement (the “Revocation
Period”). Any revocation within this period must be submitted, in
writing, to Xxx Xxxxxxxxx, Chairman and CEO, and state, “I
hereby revoke my acceptance of our Severance Agreement and General
Release.” The revocation must be personally delivered to Xxx
Xxxxxxxxx or his designee, or mailed to Xxx Xxxxxxxxx and
postmarked within seven (7) calendar days of execution of this
Agreement. If the last day of the Revocation Period is a Saturday,
Sunday, or legal holiday in New York, then the revocation period shall not
expire until the next following day which is not a Saturday, Sunday, or legal
holiday.
15. Entire
Agreement. This Agreement sets forth the entire
agreement between the parties hereto, and fully supersedes any prior agreements
or understandings between the parties. Employee acknowledges that he
has not relied on any representation, promise, or agreement of any kind made
to
him in connection with his decision to accept this Agreement, except for those
set forth in this Agreement.
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16. Section
Headings. Section headings are used herein for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
17. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and each of which shall together constitute one and the same
agreement. This Agreement will not become enforceable until executed
by both the Employer and Employee.
18. Legal
Fees. Each party will be responsible for its own legal
fees or costs, if any, incurred in connection with the negotiation and
settlement of this Agreement. In the event that the payments required
to be made to or for the benefit of Employee under Paragraph 2 above are not
timely paid, after the remedial protocol set forth in Paragraph 8 is utilized,
but payment is not received and Employee commences any action or proceeding
to
enforce such provisions and to cause such payments to be made, and if Employee
prevails in such action or proceeding, then Employee shall be entitled to
reimbursement of his attorneys’ fees and costs incurred in connection with such
action or proceeding. If a trust is established as set forth hereinabove,
Employee shall bear the full cost of establishing and maintaining said
trust.
19. Competence
to Waive Claims. At the time of considering or executing
this Agreement, Employee was not affected or impaired by illness, use of
alcohol, drugs or other substances or otherwise impaired. Employee is
competent to execute this Agreement and knowingly and voluntarily waives any
and
all claims he may have against Employer. Employee certifies that he
is not a party to any bankruptcy, lien, creditor-debtor or other proceedings
which would impair his right or ability to waive all claims he may have against
Employer.
EMPLOYEE
ACKNOWLEDGES HE HAS BEEN ADVISED THAT HE HAS TWENTY-ONE (21) CALENDAR DAYS
TO
REVIEW THIS AGREEMENT AND TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF
THIS
AGREEMENT. EMPLOYEE ALSO CONFIRMS THAT HE RECEIVED THE INITIAL DRAFT
HEREOF ON OCTOBER 29, 2007.
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EMPLOYEE
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT
DO
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY
CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE
SUMS AND BENEFITS IN PARAGRAPH 2 ABOVE, AND ELSEWHERE IN THIS AGREEMENT,
EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS
AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT
HAVE
AGAINST EMPLOYER AS OF THE DATE EXECUTED BY EMPLOYEE (OTHER THAN CLAIMS RELATED
TO GETTY’S PERFORMANCE UNDER THIS AGREEMENT).
IN
WITNESS
WHEREOF, the parties hereto knowingly and voluntarily executed this Agreement
as
of the date set forth below:
GETTY REALTY | ||||
By: | /s/ Xxxxxx X. Xxxxx | By: | /s/ Xxx Xxxxxxxxx | |
Xxxxxx X. Xxxxx | Xxx Xxxxxxxxx | |||
Chairman and CEO | ||||
Date: | 11/13/07 | Date: | 11/13/07 |
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