EXHIBIT 10.10
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, dated as of ___________, 1996, by and
between Realty Income Corporation, a Delaware corporation (the
"Company"), and __________________, an individual residing in the
county of San Diego, state of California (the "Employee").
1. Term. The Company hereby employs 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 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 of Directors 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. 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
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pay to the Employee base salary of no less than
_____________________________ ($________________) 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.
5. Annual Incentive Plan. The Employee shall participate
in the Management Incentive Plan of the Company as the same shall
be adopted and amended from time to time by the Compensation
Committee of the Board of Directors.
6. Medical Insurance; Benefit Plans. During the term of
this Agreement, the Employee shall be entitled 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.
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, 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 Employee Handbook, as
the same may be amended from time to time. 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 limitations on
carryover of vacation set forth in the Company's Employee
Handbook, as the same may be amended from time to time.
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.
a. Death or Permanent Disability. In the event that
the Employee dies or is physically or mentally unable to perform
substantially all of his duties hereunder, then this Agreement
shall terminate upon the Employee's death or disability, and
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(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 base salary, and vacation, if any,
accrued to the date of his death or disability.
b. Termination by the Company. This Agreement may be
terminated by the Company without cause at any time upon written
notice to the Employee, provided that the Company shall (i) pay
to the Employee an amount equal to __________ (___) months' base
salary under this Agreement (payable in __________ (___) biweekly
installments), (ii) pay any accrued vacation pay to which the
Employee may be entitled hereunder prorated through the date of
termination, (iii) continue to provide Employee with group
medical insurance at the Company's expense for a period of
___________ (___) months from the date of termination or until
Employee becomes covered under another group medical insurance
plan, whichever occurs first. In the event this Agreement is
terminated by the Company pursuant to this Paragraph 10(b), such
termination shall be upon the terms of, and the Company and the
Employee shall execute, the Severance Agreement and General
Release in the form of Exhibit A, attached hereto and
incorporated herein by reference. In the event this Agreement is
terminated by the Company as a result of a Change in Control, the
number of months of base salary payable to the Employee and the
number of months of insurance coverage to be provided for the
Employee shall each be increased by fifty percent. For the
purpose of this Paragraph 10(b), "Change in Control" shall mean
the acquisition of shares of the Company's Common Stock by any
person, entity or group in a transaction or series of
transactions, resulting in the beneficial ownership of more than
thirty percent of the outstanding Common Stock of the Company; a
merger consolidation or sale of substantially all the assets of
the Company; a contested election of directors of the Company
resulting in a majority of the nominees recommended by the Board
of Directors of the Company not being elected; a change in
composition within a sixty-day period of a majority of the
Company's Board of Directors; or any other event which results in
a change of voting power sufficient to elect a majority of the
Board of Directors of the Company.
c. Termination by the Employee. This Agreement may be
terminated by the Employee without cause at any time upon two (2)
weeks' written notice to the Company.
d. Limitations on Severance Compensation. The
foregoing notwithstanding, (i) the total amount of payments to be
made pursuant to Paragraphs 10(a), 10(b), or 10(c), above, shall
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not exceed the equivalent of twice the Employee's annual
compensation during the year immediately preceding the
termination of his service; and (ii) all payments to be made to
the Employee pursuant to Paragraphs 10(a), 10(b), or 10(c),
above, shall be completed within twenty-four (24) months after
the termination of the Employee's service.
e. Failure to Perform. Notwithstanding any other
provision of this Agreement, if the Employee shall be discharged
by the Company for cause, 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 base salary and vacation pay accrued
to the date of such termination. For the purpose of this
Agreement, a discharge for cause shall mean a discharge resulting
from a determination by the Company that the Employee (i) has
been convicted of a crime involving fraud, theft or embezzlement
or of any other crime involving morale turpitude, (ii) has
persistently failed or refused to follow written policies or
directives established by the Company, (iii) has persistently
failed to attend to his duties, (iv) has committed acts amounting
to gross negligence or willful misconduct to the detriment of the
Company, or (v) has breached any material term or provision of
this Agreement.
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. The Employee further agrees that
during the term of this Agreement and thereafter he will not use
such information in competing with 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 section, and the Employee agrees
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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, to be
executed concurrent herewith.
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: ____________________________________
____________________________________
____________________________________
If to the Company: Realty Income Corporation
Attention: Chief Executive Officer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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,
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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 and the Indemnity
Agreement referred to herein 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 agreements between the
parties concerning employment, compensation, or profit sharing.
22. Amendment. This Agreement may be amended only by an
instrument in writing executed by both parties hereto.
23. 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: ____________________________ ___________________________
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EXHIBIT A
SEVERANCE AGREEMENT AND GENERAL RELEASE
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This Severance Agreement and General Release is entered into
as of ______, 19___, 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 its directors, officers,
employees, shareholders, agents, successors and assigns and any
related or subsidiary corporations or entities, 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
with Employee's termination of employment with the Company. This
release includes, but is not limited to, any claims of employment
discrimination arising under federal or state laws, including the
Age Discrimination in Employment Act of 1967, as amended.
IN FURTHER CONSIDERATION THEREOF, Employee irrevocably and
absolutely agrees that he will not prosecute nor allow to be
prosecuted on his behalf, in any administrative agency, whether
federal or state, or in any court, whether federal or state, or
before any arbitrator, any claim, demand or grievance of any type
related to the matters released above, it being an intention of
the parties that with the execution by Employee of this Release,
the Company, and each of their officers, directors, employees,
shareholders, agents, successors and assigns and all subsidiary
and related corporations and entities will be absolutely,
unconditionally and forever discharged of and from all
obligations to or on behalf of Employee related in any way to his
termination of employment with the Company.
Employee shall receive the following severance compensation:
a) The total sum of ____________ ($________), payable
in __________(___) semi-monthly installments of ___________
($_________), less appropriate payroll deductions, which payments
shall commence on ___________, and continue at regular payroll
intervals through ___________.
b) Group medical insurance paid for by the Company
through ___________, or until Employee becomes covered under
another group medical insurance plan, whichever occurs first.
Except as set forth herein, Employee shall not be entitled
to any benefits as an employee or former employee of the Company.
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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 Company and
each of their affiliates, and will not now or in the future
disrupt, damage, impair or interfere with the business of the
Company, or their affiliates, whether by way of interfering with
or raiding their employees, disrupting their relationships with
customers, agents, representatives or vendors or otherwise.
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.
Employee does expressly waive all of the benefits and rights
granted to him pursuant to Civil Code Section 1542, which
provides and reads as follows:
"A general release does not extend to claims which the creditor
does not know of or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Employee does certify that he has read all of this Severance
Agreement and General Release 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 General Release with counsel.
Employee expressly declares and represents that no promise,
inducement or agreement not herein expressed has been made to him
and that this Severance Agreement and General Release contains
the entire agreement between the parties, and that the terms
hereof are contractual and not a mere recital.
This Severance Agreement and General Release may be pleaded
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
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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 Severance Agreement and General Release shall bind
Employee, his heirs, successors, agents, representatives and
assigns, and each of them.
This Severance Agreement and General Release shall inure to
the benefit of the successors and assigns of the respective
parties hereto.
Employee acknowledges that he has been given twenty-one (21)
days in which to consider the terms of the release provisions
contained herein. The release contained herein shall not become
effective or enforceable until seven (7) days after employee
signs this release. Payment to employee of the sums provided
under this Agreement shall commence seven (7) days after employee
signs this release.
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: ____________________________ ___________________________
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