exv10w2






Exhibit 10.2




Final




EMPLOYMENT AGREEMENT




     THIS AGREEMENT, dated April    , 2010 is made by and between Getty Realty Corp. (the
“Company”), a Maryland corporation, and David B. Driscoll (the “Executive”).


1. Employment. The Company hereby agrees to employ Executive, and Executive hereby
agrees to be employed by the Company, upon the terms and subject to the conditions set forth in
this Agreement.



2. Certain Definitions.





	 	(a)	 	“Base Salary” is defined in Section 6(a).
	 
	 	(b)	 	“Bonus” is defined in Section 6(b).
	 
	 	(c)	 	“Automobile” is defined in Section 6(c).
	 
	 	(d)	 	“Benefits” is defined in Section 6(e).
	 
	 	(e)	 	“Board” means the Board of Directors of the Company.
	 
	 	(f)	 	“Cause” means a determination by the Compensation Committee that
Executive’s
service was terminated due to: (i) Executive’s conviction of any crime (whether or
not involving the Company) constituting a felony in the applicable jurisdiction;
(ii) conduct of Executive related to Executive’s service for which either criminal
or civil penalties may be sought against Executive and/or the Company;
(iii) material violation of the Company’s Business Conduct Guidelines, including,
but not limited to those relating to sexual harassment, the disclosure or misuse of
confidential information, or those set forth in other Company manuals or statements
of policy; or (iv) serious neglect or misconduct in the performance of Executive’s
duties for the Company or willful or repeated failure or refusal to perform such
duties; provided, however, that no Cause shall exist involving
clauses (iii) and (iv) above until Executive has first failed to cure such violation
or conduct within thirty (30) days of having been given written notice by the
Company (within a reasonable period of time after the Company becomes aware of such
violation or conduct) specifying such violation or conduct, except if the Company
deems the violation or conduct incurable, then there shall be no notice requirement
or right to cure.
	 
	 	(g)	 	“Compensation Committee” means the Compensation Committee of the Board.
	 
	 	(h)	 	“Good Reason” means the occurrence of any of the following
without the written consent of Executive: (i) a material diminution of Executive’s
duties, responsibilities, authority, or title; (ii) a change in Executive’s reporting
structure; (iii) a material failure of the Company to comply with its compensation and
benefit obligations to Executive set forth in this Agreement; (iv) if Executive is




 









 












	 	 	 	not nominated for election to the Board; or (v) a material breach by the Company of
any term or provision of this Agreement, provided, however, that Good Reason shall
not exist unless (a) Executive provides the Company with written notice of
Executive’s intention to terminate Executive’s employment for Good Reason (setting
forth in reasonable detail the grounds therefore) no later than ninety (90) days
following Executive’s knowledge of the action Executive believes provides Executive
with Good Reason to terminate Executive’s employment, and (b) the Company fails to
cure such actions or conduct within thirty (30) days following receipt of such
written notice.
	 
	 	(i)	 	“Restricted Period” is defined in Section 11 (b)(i).
	 
	 	(j)	 	“Significantly Disabled.” For purposes of this Agreement,
Executive shall be “Significantly Disabled” if Executive is incapable of performing his
usual and customary duties under this Agreement, even with reasonable accommodation,
due to a physical or mental impairment that is expected to result in death or can be
expected to last for a continuous period of not less than twelve months.
	 
	 	(k)	 	“Effective Date” shall mean April 1, 2010.
	 
	 	(1)	 	“Term of Employment” is defined in Section 3.
	 
	 	(m)	 	“Renewed Term of Employment” is defined in Section 4.




3. Term of Employment. The period of Executive’s employment under this Agreement shall
begin as of the Effective Date and shall continue until May 20, 2013 (the “Term of
Employment”), unless sooner terminated in accordance with Section 7 below or unless renewed
pursuant to Section 4 or extended by mutual written agreement of the parties.



4. Renewal. If this Agreement is not otherwise terminated, it will automatically renew for
successive terms of one (1) year (each a “Renewed Term of Employment‘”) effective on the
day
after the Term of Employment or any Renewed Term of Employment ends, unless either party
hereto gives written notice of non-renewal at least ninety (90) days prior to the end of the Term
of Employment or Renewed Term of Employment, as applicable.



5. Duties and Responsibilities.





	 	(a)	 	During the Term of Employment and any Renewed Term of Employment,
Executive shall serve as the Company’s President and, beginning on or as soon as
practicable after the next annual shareholders’ meeting of the Company that occurs
after the Effective Date, Chief Executive Officer. Executive shall report solely to
the Board. Executive shall be the most senior executive officer of the Company, and
all other employees of the Company shall report to him. Executive shall perform the
customary duties, have the customary responsibilities of President and Chief
Executive Officer, including but not limited to setting policy, executing
initiatives, setting employee compensation, hiring and terminating employees and
such other duties as may be assigned to him by the Board from time to time, and in
his role shall, subject to his responsibilities to the Board




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	 	 	 	hereinabove provided, have the sole and exclusive authority over such duties and
responsibilities.
	 
	 	(b)	 	If Executive’s employment with the Company terminates for any reason,
Executive shall immediately resign his position as a member of the Board, and
each other position that he then holds with the Company or any of its affiliates. If
Executive fails to so resign, the Board shall thereupon have the right to remove
Executive from all such positions without further action, deed, or notice.
	 
	 	(c)	 	Executive agrees to work full time for the Company and not to engage in other
business, employment or, without the written consent of the Board (which will not
be unreasonably withheld), other activities. Nothing in this Section 5(c) will
prohibit Executive from devoting a reasonable amount of time to the management
of his personal affairs or to civic, charitable or other similar activities.
	 
	 	(d)	 	Executive agrees (i) to comply with all applicable laws, rules and regulations,
and
all requirements of all applicable regulatory, self-regulatory, and administrative
bodies; and (ii) to comply with the Company’s rules, procedures, policies,
requirements, and directions.
	 
	 	(e)	 	In connection with his employment during the Term of Employment and
Renewed Term of Employment, Executive shall be based at the Company’s
principal executive offices in Jericho, New York, or such other location as shall
be mutually agreed between Executive and the Company.




6. Compensation and Benefits.





	 	(a)	 	Base Salary. During the Term of Employment or Renewed Term of
Employment,
if any, Executive shall receive a base salary (“Base Salary”) at a rate of
$500,000
per annum (or such greater amount as shall be recommended by the
Compensation Committee), payable monthly or more frequently in accordance
with the Company’s practice as applied to other senior executives. Such base
salary shall be reviewed at least annually.
	 
	 	(b)	 	Bonus. During the Term of Employment or Renewed Term of Employment, if
any, Executive shall be eligible for an annual cash bonus as determined by the
Compensation Committee in its discretion based on Executive’s performance
relative to the achievement of performance goals, benchmarks, and other criteria
established by the Compensation Committee in consultation with Executive on an
annual basis. Payment of any bonus shall be made, if at all, on or after January 1,
but no later than March 15, of the year after the year in which the performance
period ended; so long as Executive is actively employed at the end of the
performance period.
	 
	 	(c)	 	Automobile. During the Term of Employment or Renewed Term of
Employment,
if any, the Company shall provide Executive with use of an automobile and shall
pay fuel, oil and other vehicle necessities and maintenance and repairs cost and




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	 	 	 	expenses for the automobile, consistent with the Company’s current policies for its
Chief Executive Officer.
	 
	 	(d)	 	Equity Compensation. Executive shall be eligible for equity awards
under the
terms of the Getty Realty Corp. 2004 Omnibus Incentive Compensation Plan, or
any successor thereto, as determined by the Compensation Committee.
	 
	 	(e)	 	Benefits. During the Term of Employment or Renewed Term of Employment,
if
any, Executive shall be entitled to participate in or receive benefits under the
employee benefit plans (including health, welfare, insurance plans, retirement
plan and supplemental retirement plan) and other arrangements made available by
the Company, consistent with the Company’s current policies for its Chief
Executive Officer or any changes in such policies which are consistent with
changes applicable to all of the Company’s senior executives (collectively
“Benefits”).
	 
	 	(f)	 	Vacation. During the Term of Employment or Renewed Term of Employment,
if
any, Executive shall be entitled to vacation leave consistent with the Company’s
policies for its Chief Executive Officer as in effect from time to time, provided
that the Executive shall be entitled to at least four (4) weeks of vacation
annually.
	 
	 	(g)	 	Business Expenses. The Company shall reimburse Executive for all
reasonable
travel and other business expenses incurred by Executive in the performance of
his duties to the Company hereunder provided that such expenses are incurred for
business reasons and accounted for in accordance with the Company’s policy.
	 
	 	(h)	 	No Waiver. Executive shall also be entitled to such other
benefits or terms of employment as are provided by law.




7. Termination of Employment. Executive’s employment hereunder may be terminated by :he
Company or Executive, as applicable, without any breach of this Agreement only under the
following circumstances:





	 	(a)	 	Death. Executive’s employment hereunder shall terminate upon his death.
	 
	 	(b)	 	Disability. If a physician mutually agreed upon by Executive and the
Company
determines that Executive is Significantly Disabled during the Term of
Employment, the Company may give Executive written notice of its intention to
terminate Executive’s employment. In such event, Executive’s employment with
the Company shall terminate effective on the 30th day after receipt of such notice
by Executive, provided that within the 30 days after such receipt, Executive shall
not have returned to full-time performance of his duties with or without a
reasonable accommodation.
	 
	 	(c)	 	Cause. The Company may terminate Executive’s employment hereunder
for Cause.




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	 	(d)	 	Without Cause. The Company may terminate Executive’s employment at any
time hereunder without Cause upon 30 days’ prior written notice. Failure of the
Company to appoint Executive as Chief Executive Officer as provided in
Section 5(a) constitutes a termination of Executive’s employment without Cause
under this Section 7(d).
	 
	 	(e)	 	With Good Reason. Executive may terminate his employment with the
Company
with Good Reason.
	 
	 	(f)	 	Expiration of Term of Employment and Ninety Day Notice Not to Renew.
Executive’s employment hereunder shall terminate upon expiration of the Term of
Employment or any Renewed Term of Employment upon written notice by either
party provided ninety (90) days before the expiration of the Term of Employment
or Renewed Term of Employment, as applicable, in accordance with Section 4,
above. The giving of notice by the Company not to renew shall not constitute a
termination without Cause. The giving of notice not to renew by the Executive
shall not constitute a resignation with Good Reason.
	 
	 	(g)	 	Notice of Termination. Any termination of Executive’s employment
hereunder
(other than by reason of Executive’s death or expiration of the Term of
Employment or Renewed Term of Employment, if any) shall be communicated by
a notice of termination to the other parties hereto. For purposes of this Agreement,
a “notice of termination” shall mean a written notice which (i) indicates
the
specific termination provision in the Agreement relied upon, (ii) sets forth in
reasonable detail any facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision indicated and (iii)
specifies the effective date of the termination.




8. Compensation Following Termination of Employment. Upon termination of
Executive’s employment under this Agreement, Executive (or his designated beneficiary or estate, as
the case may be) shall be entitled to receive the following compensation:





	 	(a)	 	Base Salary and Accrued but Unpaid Expenses and Vacation. The Company
shall
pay Executive any Base Salary for services rendered to the date of termination,
any accrued but unpaid expenses required to be reimbursed under this Agreement,
and any vacation accrued, but unused, to the date of termination.
	 
	 	(b)	 	Other Compensation and Benefits. Except as otherwise provided
under this
Agreement,






	 	(i)	 	any other compensation or benefits to which Executive
may be entitled at the time of termination shall be determined and paid in
accordance with the terms of such plans, policies and arrangements providing
such compensation or benefits, and
	 
	 	(ii)	 	except as provided hereunder, Executive shall have no
right to receive any other compensation, or to participate in any other plan,
arrangement or




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	 	 	 	benefit, with respect to future periods after such termination or
resignation.






	 	(c)	 	Additional Compensation Payable Following Termination Without Cause or
Resignation With Good Reason. Subject to Section 23(b), if Executive’s
employment shall terminate without Cause (pursuant to Section 7(d)) or if
Executive should resign with Good Reason (pursuant to Section 7(e)), and subject
to Executive’s execution and non-revocation of a general release in form and
substance acceptable to the Company and Executive (that will not contain any
non-competition or non-solicitation covenants broader or different than those
contained in this Agreement), beginning on the 60th day following the date of
termination, the Company shall provide the following compensation and benefits
to Executive:






	 	(i)	 	Base Salary. The Company shall pay Executive a severance
benefit equal to the greater of (A) the remaining Base Salary payments to which
Executive would be entitled for the remainder of the Term of Employment (or if this
Agreement is renewed, the Renewed Term of Employment) if such termination had not
occurred or (B) one year’s payment of Base Salary. Such payments shall be made at the
same time and in the same manner as such compensation had been paid prior to such
termination of employment, provided, however, that the initial payment shall include
Base Salary amounts for all payroll periods from the date of termination through the
date of such initial payment.
	 
	 	(ii)	 	Bonus. For each full or partial calendar year remaining in the
Term of Employment (or if this Agreement is renewed, the Renewed Term of Employment),
the Company shall pay Executive an amount equal to the amount of the annual cash
bonus, if any, earned by and paid to Executive under Section 6(b) for the last
completed fiscal year before the year in which his employment terminates, payable at
the time bonus payments are made to senior executives of the Company.
	 
	 	(iii)	 	Continuation of Benefits. The Company shall make all necessary
payments for and provide all Benefits to Executive under this Agreement as if his
employment had continued until the end of the Term of Employment (or if this
Agreement is renewed, until the end of the Renewed Term of Employment) or for one
year, whichever is greater.






	 	(d)	 	Compensation Upon Death or Significant Disability. Upon death or Significant
Disability, Executive (or such payee as Executive shall have designated on the
signature page hereof) shall be entitled to six months of the then current Base
Salary. Payments of Base Salary pursuant to this Section 8(d) shall be made in
one lump sum, payable on the 30th day following the date of Executive’s
termination of employment due to his death or Significant Disability.




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	 	(e)	 	No Other Compensation. If Executive’s employment is terminated by reason
of
Cause or resignation without Good Reason by Executive or Executive giving the
Company a notice of non-renewal, if any, then Executive shall not be entitled to
any other compensation or benefits from the Company except as described in
Section 8(a) and (b) above.
	 
	 	(f)	 	Mitigation. The Company agrees that Executive is not required to seek
other employment or to attempt in any way to reduce any amounts payable to Executive
by the Company pursuant to Section 8(c). Further, the amount of any payment or
benefit provided for in Section 8(c) shall not be reduced by any compensation
earned by Executive as the result of employment by another employer, by
retirement benefits, or offset against any amount claimed to be owed by Executive
to the Company or any of its subsidiaries, or otherwise, unless Executive breaches
the provisions of Section 11.




9. Survival. The expiration or termination of the Term of Employment or Renewed Term of
Employment, if any, shall not impair the rights or obligations of any party hereto which shall
have accrued hereunder prior to such expiration.



10. Disputes. In the event of any dispute or controversy arising under, out of, in
connection
with or in relation to this Agreement, the parties agree first to engage in prompt and serious good
faith discussions to resolve the dispute. If such discussions fail to resolve the dispute within
thirty days, the parties shall try to resolve the dispute through mediation using the services of
the
American Arbitration Association. If such mediation fails to resolve the dispute, the dispute shall
be finally determined and settled by arbitration in New York, New York, in accordance with the
rules and procedures of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction thereof. In such arbitration, each party shall bear
its own legal fees and related costs, unless the arbitrator determines that Executive substantially
prevails in such arbitration, in which case the Company shall pay Executive reasonable
attorneys’ fees and costs. Any arbitration pursuant to this Section 10 shall be conducted before a
panel of three AAA arbitrators (the “Arbitrator(s)”). If the Company and Executive cannot
agree
on the three Arbitrators within 20 days of the filing of a demand for arbitration, the Company
and Executive shall each select one Arbitrator and agree that AAA shall select the third
Arbitrator. The arbitration shall take place in New York, New York. In accordance with
Section 13 of this Agreement, the Arbitrator(s) shall apply New York law to the merits of any
dispute or claim, without reference to rules of conflict of law. Any arbitration proceedings,
decision or award rendered hereunder, and the validity, effect and interpretation of this
arbitration provision, shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. To
the extent that any claim is found not to be subject to arbitration, such claim shall be either
decided by the U.S. District Court for the Southern District of New York, or the Supreme Court
in and for any county contained within the Southern District of New York.






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11. Restrictive Covenants.





	 	(a)	 	Confidentiality.






	 	(i)	 	During Executive’s Term of Employment or Renewed Term of
Employment, if any, with the Company, and following the termination of
Executive’s employment with the Company for any reason, Executive will not
use or disclose to any individual or entity any Confidential Information (as
defined below) except (i) in the performance of Executive’s duties for the
Company, (ii) as authorized in writing by the Company, or (iii) as required
by law or legal process, provided that prior written notice of such required
disclosure is provided to the Company and that all reasonable efforts to
preserve the confidentiality of such information shall be made.
	 
	 	(ii)	 	As used herein, “Confidential Information” shall
mean information that (i) is used in the Company’s business, (ii) the Company
treats as proprietary, private or confidential, and (iii) is not generally known
to the public or the trade. “Confidential Information” includes, without
limitation, information relating to the Company’s products or services;
marketing, selling or business or development plans; current or prospective
customer, client, landlord, owner and tenant lists and data, trade secrets, call
lists, manuals, policies, memoranda, notes, records, technical data, sketches,
plans, drawings, formulae, research and development data, sources of supply and
material, operating and cost data, financial information and personnel
information. “Confidential Information” also includes proprietary and/or
confidential information of the Company’s customers, clients, landlords, owners,
tenants, suppliers and business or joint venture partners who may share such
information with the Company pursuant to a confidentiality agreement or
otherwise. “Confidential Information” shall not include the contact information
located on Executive’s rolodex (whether paper or electronic).






	 	(b)	 	Non-Competition. In consideration of Executive’s employment or the
continuation of Executive’s employment with the Company and the access to
Confidential Information provided by the Company, including customer, client,
landlord, owner and tenant contact information, Executive agrees and covenants
that:






	 	(i)	 	Executive shall not, in any states where the Company
does business, enter into competition (as defined below) with the Company
during Executive’s Term of Employment or Renewed Term of Employment, if any,
with the Company and following the termination of his employment for any reason
other than expiration of the Term of Employment or any Renewed Term of
Employment in accordance with Section 4, above, for (A) if a severance benefit
is payable under Section 8(c)(i), the period during which such severance
benefit is payable, or (B) if no severance benefit is payable




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	 	 	 	under Section 8(c)(i), one year following such termination of employment (the
“Restricted Period”).
	 
	 	(ii)	 	As used herein, the term “competition” shall mean the direct or
indirect ownership, management, employment or other participation in any business
whose products or activities compete in whole or in part with the services or
activities of the Company or any of its subsidiaries, including, without limitation,
any real estate investment trust or other business which manages, or owns and
operates, or purchases and sells service stations, convenience stores and petroleum
distribution terminals, provided, however, that Executive may acquire up to two
percent of any class of securities of any enterprise if such securities are listed on
any national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934, as amended.






	 	(c)	 	Non-Solicitation.






	 	(i)	 	While employed by the Company and during the Restricted Period or for
a period of six months following expiration of the Term of Employment or any Renewed
Term of Employment in accordance with Section 4, as applicable, Executive shall not in
any capacity employ or solicit for employment, or recommend that another person employ
or solicit for employment, any person who is then and was at any time during
Executive’s employment an employee, sales representative or agent of the Company or
any subsidiary or affiliate of the Company.
	 
	 	(ii)	 	Executive agrees that while employed by the Company and during the
Restricted Period or for a period of six months following expiration of the Term of
Employment or any Renewed Term of Employment in accordance with Section 4, as
applicable, he will not, on behalf of himself, or any other person, firm or
corporation, solicit for the benefit of a business or organization that manages, or
owns and operates, or purchases and sells service stations, convenience stores and
petroleum distribution terminals, any of the Company’s customers, clients,
landlords, owners, tenants, and business or joint venture partners with whom he has
had contact while working for the Company; nor will Executive in any way, directly
or indirectly, for himself, or any other person, firm, corporation or entity,
divert, or take away for the benefit of a business or organization that manages, or
owns and operates, or purchases and sells service stations, convenience stores and
petroleum distribution terminals any of the Company’s customers, clients,
landlords, owners, tenants, suppliers and business or joint venture partners with
whom Executive has had contact. For purposes of this Section, the term
“contact” shall mean engaging in any communication, whether written or
oral, with the customer, client, landlord, owner, tenant, supplier and business or
joint venture partner or any representative thereof, or obtaining any information




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	 	 	 	with respect to such customer, client, landlord, owner, tenant, supplier and
business or joint venture partner or representative thereof.






	 	(d)	 	Remedies for Breach of Confidentiality, Non-Competition and
Non-Solicitation
Provisions of this Agreement. Executive acknowledges that this Section 11,
its
terms and his compliance are necessary to protect the Company’s Confidential
and Proprietary Information, its business and its goodwill, and that a breach of
any of Executive’s promises contained in this Section 11 will irreparably and
continually damage the Company to an extent that money damages may not be
adequate. For these reasons, Executive agrees that in the event of a breach or
threatened breach by Executive of this Section 11, the Company shall be entitled
to a temporary restraining order and preliminary injunction restraining Executive
from such breach, without the posting of a bond. Nothing contained in this
Section shall be construed as prohibiting the Company from pursuing any other
remedies available for such breach or threatened breach or any other breach of
this Agreement. The Company and Executive further acknowledge and agree that
it may be difficult, if not impossible; to compute the actual damages that will be
suffered by the Company upon Executive’s violation of this Section 11. It is
agreed, therefore, that in the event Executive breaches these provisions, Executive
shall pay to the Company liquidated damages of a full year’s salary during any
period of breach and forfeit any payments due under Agreement, or any actual
damages that the Company may incur as a result of such breach, whichever
amount is greater, in addition to any other damages, including without limitation
punitive damages, attorney’s fees and costs, awarded by a court or arbitrator
related to any breach of these provisions.
	 
	 	(e)	 	Effect of Termination of Employment. Notwithstanding the provisions of
Section 7(e) of this Agreement, the period of Executive’s employment for
purposes of determining the applicability of the restrictions contained in
Section 11 of this Agreement shall include any period during which Executive is
employed by the Company’s successors or assigns. Upon termination of
employment, as defined herein and for whatever cause, Executive shall
immediately deliver to the Company or its successors or assigns, all Company
property, including without limitation all Confidential Information as defined
above.




12. Withholding of Taxes. The Company shall withhold from any compensation and benefits
payable under this Agreement all applicable federal, state, local, or other taxes.



13. Binding on Successors. This Agreement shall be binding upon and inure to the benefit of
the Company, Executive and their respective successors, assigns, personnel and legal
representatives, executors, administrators, heirs, distributees, devisees, and legatees, as
applicable. The Company shall cause any successor to all or substantially all of its assets or
business to assume this Agreement.



14. Governing Law. This Agreement is being made and executed in and is intended to be
performed in the State of New York, and shall be governed, construed, interpreted and enforced







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in accordance with the substantive laws of the State of New York without regard to its conflict or
choice of law rules.



15. Validity. The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect. If any part of this Agreement is found to
be unreasonable, then it may be amended by appropriate order of a court of competent
jurisdiction to the extent deemed reasonable.



16. Notices. Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in
writing and delivered personally or sent, by telex, telecopy, facsimile transmission, or certified
or
registered mail, postage prepaid, as follows:





If to the Company, addressed to:
 125
Jericho Turnpike, Suite 103
 Jericho,
NY 11753-1016
 Attn: General Counsel




If to Executive, to him at the address set forth below under his signature;

With a courtesy copy to:

Outten & Golden LLP

3 Park Avenue, 29th Floor

New York, NY 10016

Attn: Wendi S. Lazar, Esq.


or at any other address as any party shall have specified by notice in writing to the other parties
in accordance herewith.



17. Counterparts. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one and the same
Agreement. This Agreement shall not become enforceable until executed by the Company.



18. Entire Agreement. The terms of this Agreement are intended by the parties to be the
final
expression of their agreement with respect to the employment of Executive by the Company,
may not be contradicted by evidence of any prior or contemporaneous agreement and supersedes
any and all prior agreements. The parties further intend that this Agreement shall constitute the
complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative, or other legal proceeding to vary the terms of this
Agreement.



19. Amendments; Waivers. This Agreement may not be modified, amended, or terminated
except by an instrument in writing, signed by Executive and a disinterested director of the
Company or by an arbitrator or court seeking to render enforceable through “judicial”
modification an otherwise unenforceable provision. By an instrument in writing similarly
executed, Executive or the Company may waive compliance by the other party with any
provision of this Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to,







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any other or subsequent failure. No failure to exercise and no delay in exercising any
right, remedy, or power hereunder shall preclude any other or further exercise of any other
right, remedy, or power provided herein or by law or in equity.



20. No Inconsistent Actions; Cooperation.





	 	(a)	 	The parties hereto shall not voluntarily undertake or fail to undertake any
action
or course of action inconsistent with the provisions or essential intent of this
Agreement. Furthermore, it is the intent of the parties hereto to act in a fair and
reasonable manner with respect to the interpretation and application of the
provisions of this Agreement.
	 
	 	(b)	 	Each of the parties hereto shall cooperate and take such actions, and execute
such
other documents as may be reasonably requested by the other in order to carry out
the provisions and purposes of this Agreement.




21. No Alienation of Benefits. To the extent permitted by law the benefits provided by this
Agreement shall not be subject to garnishment, attachment or any other legal process by the
creditors of Executive, his beneficiary or his estate.



22. Indemnification. The Company shall provide indemnification to Executive to the extent
permitted by the Company’s corporate bylaws and under Maryland law.



23. Section 409A.





	 	(a)	 	General. The parties acknowledge and agree that, to the extent
applicable, this
Agreement shall be interpreted in accordance with, and the parties agree to use
their best efforts to achieve timely compliance with, Section 409A of the Code,
and the Department of Treasury Regulations and other interpretive guidance
promulgated thereunder (collectively, “Section 409A”), including without
limitation any such regulations or other guidance that may be issued after the
Effective Date. Notwithstanding any provision of this Agreement to the contrary,
in the event that the Company determines that any compensation or benefits
payable or provided under this Agreement may be subject to Section 409A, the
Company may adopt (without any obligation to do so or to indemnify Executive
for failure to do so) such limited amendments to this Agreement and appropriate
policies and procedures, including amendments and policies with retroactive
effect, that the Company reasonably determines are necessary or appropriate to (i)
exempt the compensation and benefits payable under this Agreement from
Section 409A and/or preserve the intended tax treatment of the compensation and
benefits provided with respect to this Agreement or (ii) comply with the
requirements of Section 409A. No provision of this Agreement shall be
interpreted or construed to transfer any liability for failure to comply with the
requirements of Section 409A from Executive or any other individual to the
Company or any of its affiliates, employees or agents.
	 
	 	(b)	 	Separation from Service Under 409A. Notwithstanding any provision
to the
contrary in this Agreement:




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	 	(i)	 	No amount shall be payable pursuant to Section 8(c) unless the
termination of Executive’s employment constitutes a “separation from service” within the
meaning of Section 1.409A-l(h) of the Department of Treasury Regulations;
	 
	 	(ii)	 	If Executive is deemed 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 termination benefits to which Executive is entitled under
this Agreement (after taking into account all exclusions applicable to such termination
benefits under Section 409A), including, without limitation, any portion of the additional
compensation awarded pursuant to Section 8(c), is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s
termination benefits shall not be provided to Executive prior to the earlier of (1) the
expiration of the six-month period measured from the date of Executive’s “separation from
service” with the Company (as such term is defined in the Department of Treasury Regulations
issued under Section 409A) or (2) the date of Executive’s death. Upon the earlier of such
dates, all payments deferred pursuant to this Section 23(b)(ii) shall be paid in a lump sum to
Executive, and any remaining payments due under the Agreement shall be paid as otherwise
provided herein. For the purposes of clarification, any payments that are subject to Section
409A shall not include any payments on the occurrence of an involuntary termination of
employment that would satisfy the short-term deferral exclusions described in Section
1.409A-l(b)(4) of the Department of Treasury Regulations or the separation pay exception
described in Section 1.409A-l(b)(9) of the Department of Treasury Regulations, and such
payments shall be made to Executive immediately upon his termination;
	 
	 	(iii)	 	The determination of whether Executive is a “specified employee” for purposes of Section
409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by
the Company in accordance with the terms of Section 409A and applicable guidance thereunder
(including without limitation Section 1.409A-l(i) of the Department of Treasury Regulations
and any successor provision thereto);
	 
	 	(iv)	 	For purposes of Section 409A, Executive’s right to receive installment payments pursuant
to Section 8(c) shall be treated as a right to receive a series of separate and distinct
payments; and
	 
	 	(v)	 	The reimbursement of any expense under Section 6(e) or Section 8(a)
shall be made no later than December 31 of the year following the year in which the
expense was incurred.
	 
	 	 	 	The amount of expenses reimbursed in one year shall not affect the amount eligible for
reimbursement in any subsequent year. The amount of




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	 	 	 	any in-kind benefits provided in one year shall not affect the amount of
in-kind benefits provided in any other year.




24. Right to Change Designated Beneficiary. Executive shall have the right, in his
discretion, at any time, or from time to time, during the Term of Employment or Renewed Term
of Employment, as applicable, to change the beneficiary designated by him on the signature
page hereof for possible receipt of benefits payable under Section 8(d) above, by providing
written notice thereof to Company.



IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above
written.




	 	 	 	 	 
	 	GETTY REALTY CORP., 

a Maryland corporation

 	 
	 	By:  	/s/ Leo Liebowitz
 	 
	 	 	Leo Liebowitz, Chief Executive Officer 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 

	DESIGNATED BENEFICIARY

	 	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	  

Print
Name:

	 	  
	 	/s/ David B. Driscoll
 

David B. Driscoll
	 	  
	 
	 	 	 	 	 	 
	 

	 	 	 	Address
 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 







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