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Exhibit
10.22
SEVERANCE AGREEMENT AND GENERAL
RELEASE
Getty
Realty Corp., which maintains its principal offices at 125
Jericho Turnpike, Suite 103, Jericho, New York 11753
(“Getty” or “Company”), and Andrew M.
Smith (sometimes referred to as “Mr. Smith”),
residing at 54 Heritage Drive, Pleasantville, New York 10570,
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.
For
purposes hereof, the term “Rabbi Trust” shall mean
the escrow account established with the firm of Handsman and
Kaminsky, LLP and the term “Trustee” shall mean
“Handsman and Kaminsky, 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
Sarbanes-Oxley 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 Mr. Smith 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 Mr. Smith 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.
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,
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