Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is
entered into by and between Realty Income Corporation, a Maryland
corporation (the “Company”), and
__________________, an individual residing in the county of
San Diego, state of California (the “Employee”), and
shall be effective as of _________________, 2008 (the
“Effective Date”).
This Agreement is
intended to amend and restate the Employment Agreement dated as of
_______________, 200__ between the Company and the Employee (the
“Prior Agreement”).
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 . 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
Dollars
($ )
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 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 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 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 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
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 .
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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 (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.
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b.
Termination by the Company Without Cause/Constructive
Termination . This Agreement may be terminated by the
Company without Cause (as defined in the Definitions Annex below)
at any time upon written notice to the Employee, provided that in
the event of the Company’s termination of this Agreement
without Cause or Employee’s Constructive Termination (as
defined in the Definitions Annex below), in either case prior to or
more
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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’ base salary under this Agreement plus the
average of the last three (3) years’ cash bonus paid to the
Employee, (ii) pay any salary and accrued vacation pay to which the
Employee may be entitled hereunder prorated through the date of
termination 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 termination or until Employee becomes covered under
another group medical insurance plan, whichever occurs first.
In the event of the Company’s termination of this Agreement
without Cause or Employee’s Constructive Termination (as
defined below), 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’ base salary under this Agreement plus
the average of the last three (3) years’ cash bonus paid to
the Employee, (ii) pay any accrued salary and vacation pay to which
the Employee may be entitled hereunder prorated through the date of
termination 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
termination 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 vacation
described in clause (ii), shall be payable only in the event that
the termination of this Agreement constitutes a “separation
from service” within the meaning of Treasury Regulation
Section 1.409A-1(h) (a “Separation from Service”), and
any such severance payments pursuant to this Paragraph 10(b) shall
be payable to the Employee on the sixtieth (60 th ) day following the Separation
from Service. In addition, in the event this Agreement
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, within fifty (50) days
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 no severance (other
than the accrued salary and vacation described in clause (ii)
above) shall be payable under this Agreement prior to the execution
by Employee and his failure to revoke such Severance Agreement and
General Release.
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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.
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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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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 base salary and vacation pay
accrued to 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,
