Exhibit
10.23


 


MONMOUTH
REAL ESTATE INVESTMENT CORPORATION


 


BELL
WORKS


 


101
CRAWFORDS CORNER ROAD


 


SUITE
1405


 


HOLMDEL,
NEW JERSEY 07733


 


A
Public REIT Since 1968


____


 


	INTERNET:	 	OFFICE:	 	EMAIL:
	www.mreic.reit	 	(732)
    577-9996	 	mreic@mreic.com


 


December
23, 2019


 


Allison
Nagelberg


51
Patton Drive


East
Brunswick, NJ 08816.


 


Dear
Allison:


 


This
Retirement Agreement (the “Agreement”) confirms the agreement between Monmouth Real Estate Investment Corporation
(the “Company”) and you regarding your retirement from the Company as of December 23, 2019 (the “Retirement
Date”). Subject to the terms and conditions set forth herein, in recognition of two decades of exemplary service to
the Company and to assist you in transitioning to your other employment, the Company has agreed to make the payments set forth
in this Agreement.


 


1.
Resignation of Title and Position. As of the Retirement Date, you hereby resign your position as General Counsel of
the Company and all other positions that you hold with the Company or any of its subsidiaries, and the Company confirms its acceptance
of such resignations. Your retirement from the Company shall constitute a termination other than for “cause” for purposes
of any agreements by and between you and the Company or any of its subsidiaries and affiliates, including pursuant to the Employment
Agreement entered into between you and the Company dated January 1, 2017 (as amended, the “Employment Agreement”).


 


2.
Final Payment of Accrued Wages, Discretionary Bonus and Expenses. On the Retirement Date, you will be paid an amount
equal to all accrued wages through the Retirement Date as well as a discretionary bonus in the amount of $30,000 for 2019. You
will also be reimbursed for all preapproved expenses incurred by you and submitted by you for payment in accordance with the Company’s
expense reimbursement policies on or before the Retirement Date.


 




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3.
Retirement Payments and Benefits. The retirement payments and benefits specified in this Section 3 are contingent upon
your execution of the General Release of Claims attached as Exhibit A hereto (the “General Release”) no earlier
than the Retirement Date and it becoming effective pursuant to its terms (the “Release Effective Date”), and
your continued compliance with the covenants contained in the Corporate Disclosure Policy executed by you on May 27, 2015 and
the Technology Usage and Confidentiality Policy executed by you on September 19, 2014 (together, the “Confidentiality
Agreements”). You agree that the only severance payments and benefits that you are entitled to receive from the Company
in the future are those specified in this Agreement.


 


Subject
to the General Release becoming effective pursuant to its terms and your compliance with the above, in addition to the payments
specified in Section 2:


 


(a)
You shall be entitled to receive payments at an annual rate of $395,039.54 per year, payable bi-weekly through December 31, 2020
in accordance with the terms of the Employment Agreement. The payments pursuant to this Section 3(a) shall be in full satisfaction
of any amounts owing to you under the Employment Agreement.


 


(b)
You shall be entitled to receive payment equal to $395,039.54, which shall be paid in a single lump-sum payment on December 31,
2019.


 


(c)
If you elect group health plan continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”),
the Company will pay the cost of your (and your spouse and eligible dependents who were covered immediately prior to your termination
of employment) medical, dental and/or vision benefit coverage under COBRA for up to eighteen (18) months following the Retirement
Date, in accordance with COBRA, beginning the first day of the calendar month following the Retirement Date and ending on the
earlier of the end of such eighteen (18) month period, the date you cease to be eligible for COBRA or the date you, your spouse
and eligible dependents become covered under another employer’s medical, dental and vision plans (the “COBRA Continuation”);
provided, however, that the Company may modify the COBRA Continuation coverage contemplated hereunder to the extent
reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination
requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation
Act of 2010, as amended (to the extent applicable). Any such change will be applied Company-wide and consistent with the coverage
offered to other employees of the Company. Employee’s rights under the Company’s benefit plans (other than medical
and health plans) and any equity awards shall be determined under the provisions of such plans and any applicable award agreements.


 


(d)
The 1,254 shares which remain unvested pursuant to the terms of a Restricted Stock Award Agreement dated July 5, 2015 shall become
fully vested as of the Release Effective Date.


 


(e)
The Company will arrange to have the title to the 2012 Audi Q5 that has been provided for your use transferred to your name. You
will also be entitled to retain your Company-provided smart phone, subject to Section 4 and confirmation by the Company’s
IT personnel that all of the Company’s confidential information has been deleted from the device.


 


(f)
All contributions to the Company’s 401(k) Plan (the “401(k) Plan”) will cease as of the Retirement Date.
As a vested member of the 401(k) Plan, you are entitled to roll-over those funds and otherwise receive benefits from the 401(k)
Plan in accordance with the terms of the 401(k) Plan and applicable law.


 




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(g)
Pursuant to the Amended and Restated 2007 Incentive Award Plan, as of the Retirement Date, you hold an option to acquire 30,000
shares of the common stock of the Company with an exercise price of $14.24 per share (treated as an incentive stock option as
to 7,022 shares and as a non-qualified stock option as to 22,978 shares) and an option to acquire 45,000 shares of the common
stock of the Company with an exercise price of $13.64 per share (treated as an incentive stock option as to 7,331 shares and as
a non-qualified stock option as to 37,669 shares) (collectively, the “Options”). The Options may be exercised
through the expiration of ninety (90) days from the Retirement Date.


 


4.
Return of Company Property. With the exception of the items listed in Section 3(e), you will return to the Company
all Company documents, files and property in your possession on the Retirement Date. Your receipt of the payments and benefits
pursuant to Section 3 is conditioned upon your compliance with the terms of this Section 4.


 


5.
Cooperation With the Company. Should the Company request your presence and cooperation in any future legal or administrative
proceedings, you agree to make yourself available for a reasonably necessary duration upon reasonable notice at times and in a
manner that is mutually convenient to you and the Company. In the event that the Company requests that you provide such cooperation
for greater than the total amount of eight (8) hours, the Company will compensate you for each hour spent in excess of the eight
(8) hours, you will be compensated at the rate of $300 per hour. The Company shall also reimburse you for all reasonable and necessary
costs incurred in such proceeding, including meals, travel and lodging, subject to the Company’s pre-approval.


 


6.
Mutual General Releases.


 


(a)
Mutual Covenant Not to Sue. You and the Company (collectively, the “Parties”) understand that by entering
into this Agreement, the Parties are agreeing not to sue, or otherwise file any claim against each other for any reason whatsoever
based on anything that has occurred as of the date this Agreement is executed.


 


(b)
Release of the Company. This Agreement and the payments and benefits contemplated in Section 3 are contingent upon you
signing and not subsequently revoking the General Release.


 


(c)
General Release of You. Contingent upon the Agreement becoming effective, the Company and its affiliates, on behalf
of themselves and their directors and officers, hereby expressly release and forever discharge you and your heirs, assignees,
estate, executors, and administrators (the “Employee Released Parties”) from all Claims which the Company or
any of the affiliates may have, which are known to the Company, its directors or its executive officers, or which would have been
known to such individuals after reasonable inquiry, and which arise under the Employment Agreement or arise out of your employment
with Company. This includes a release by Company of any and all claims or rights arising under contract (whether written or oral,
express or implied), covenant, public policy, tort or otherwise, other than the rights under this Agreement and the General Release.


 




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7.
Mutual Non-disparagement. You shall not, directly or indirectly through any agent or surrogate, disparage or otherwise
communicate to any Company employee, customer, competitor or other person or entity negative statements about the Company, its
affiliated entities or their respective directors, employees, products, services, or businesses. The Company shall instruct its
officers, directors and employees and the officers, directors and employees of its affiliates not to disparage or otherwise communicate
negative statements about you.


 


8.
Indemnification. The terms of the Amended and Restated Indemnification Agreement dated April 18, 2012 by and between
you and Company, as well as the terms of the indemnification agreements between you and Monmouth Capital Corp. dated December
1, 2003 and January 12, 2005 (collectively, the “Indemnification Agreements”), shall remain in full force and
effect pursuant to its terms and is incorporated herein in its entirety.


 


9.
Severability. The provisions of this Agreement and the General Release are severable. If any provision is held to be
invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.


 


10.
Choice of Law. This Agreement and the General Release shall in all respects be governed and construed in accordance
with the laws of the State of New Jersey, including all matters of construction, validity and performance, without regard to conflicts
of law principles.


 


11.
Voluntary and Knowing Agreement. You represent that you have thoroughly read and considered all aspects of this Agreement,
that you understand all its provisions and that you are voluntarily entering into said Agreement.


 


12.
Integration Clause; Amendment. This Agreement, the General Release, the Indemnification Agreements and the Confidentiality
Agreements contain our entire agreement with regard to your retirement and separation from employment, and supersede and replace
any prior agreements as to those matters, whether oral or written. This Agreement and the General Release may not be changed or
modified, in whole or in part, except by an instrument in writing signed by both (i) you and (ii) one of the Chief Executive Officer
of the Company, on behalf of the Company.


 


*        *         *


 




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If
the above accurately reflects your understanding, please date and sign the enclosed copy of this letter in the places indicated
below and return that copy to Kevin Miller, Chief Financial Officer, by email at kmiller@mreic.com.


 


	 	Respectfully,
	 	 
	 	/s/
    Michael P. Landy
	 	Michael
    P. Landy
	 	President
    and Chief Executive Officer
	 	 
	Accepted
    and agreed to on this 23rd day of December, 2019.
	 	 
	/s/
    Allison Nagelberg	 
	Allison
    Nagelberg	 


 




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EXHIBIT
A


 


GENERAL
RELEASE OF CLAIMS


 


This
General Release of Claims (“Release”) is entered into as of this 23th day of December, 2019, between you, and
Monmouth Real Estate Investment Corporation (the “Company”) (with you and the Company collectively referred
to herein as the “Parties”), effective eight days after your signature (the “Effective Date”),
unless you revoke your acceptance as provided in Paragraph 2, below.


 


1.
General Release of the Company. You understand that by agreeing to this Release you are agreeing not to sue, or
otherwise file any claim against, the Company or any of its employees or other agents for any reason whatsoever based on anything
that has occurred as of the date you sign this Release.


 


(a)
On behalf of yourself and your heirs and assigns, you hereby release and forever discharge the “Releasees” hereunder,
consisting of the Company, and each of its owners, affiliates, subsidiaries, divisions, parent corporations, predecessors, successors,
assigns, agents, directors, officers, partners, employees, and insurers, and all persons acting by, through, under or in concert
with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity,
suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expense, of any nature
whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which you now have or may hereafter
have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to
the date hereof, including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating
to your hire, employment, remuneration or resignation by the Releasees, or any of them, including any Claims arising under the
Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. § 621, et seq.; Title VII of the
Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000 et seq.; the Equal Pay Act,
29 U.S.C. § 206(d); the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Family and Medical Leave Act of 1993, 29 U.S.C.
§ 2601 et seq.; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; the False Claims
Act, 31 U.S.C. § 3729 et seq.; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.;
the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. the Fair Labor Standards Act, 29 U.S.C.
§ 215 et seq., the Sarbanes-Oxley Act of 2002; the New Jersey Law Against Discrimination; the New Jersey Civil Rights
Act; the New Jersey Conscientious Employee Protection Act; the New Jersey Temporary Disability Benefits Law, the New Jersey Paid
Sick Leave Act; the New Jersey Security and Financial Empowerment Act; New Jersey State Wage and Hour Law; New Jersey Wage Payment
Act; the New Jersey Freedom from Employer Intimidation Act; the New Jersey Family Leave Act; Title VII of the Civil Rights Act
of 1964 (as amended); Claims for breach of contract; Claims arising in tort, including, without limitation, Claims of wrongful
dismissal or discharge, discrimination, harassment, retaliation, fraud, misrepresentation, defamation, libel, infliction of emotional
distress, violation of public policy, and/or breach of the implied covenant of good faith and fair dealing; and Claims for damages
or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief and attorney’s
fees.


 




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(b)
Notwithstanding the generality of the foregoing, you do not release the following claims:


 


(i)
Claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law;


 


(ii)
Claims for workers’ compensation insurance benefits under the terms of any worker’s compensation insurance policy
or fund of the Company;


 


(iii)
Claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of
the federal law known as COBRA;


 


(iv)
Your right to bring to the attention of the Equal Employment Opportunity Commission or the New Jersey Division on Civil Rights
claims of discrimination, harassment and retaliation; provided, however, that you do release your right to secure any damages
for such alleged treatment;


 


(v)
Claims by you against the Company to enforce the terms of the Retirement Agreement, including, without limitation, claims for
the payment of the cash amounts set forth in Sections 2 and 3 of that Agreement in accordance with the terms of that Agreement;
and


 


(vi)
Any other obligation of the Company that cannot be waived as a matter of law.


 


2.
OWBPA Notice. In accordance with the Older Workers Benefit Protection Act of 1990, you acknowledge that you are
aware of the following:


 


(a)
This paragraph, and this Release, are written in a manner calculated to be understood by you.


 


(b)
The waiver and release of claims under the ADEA contained in this Release does not cover rights or claims that may arise after
the date on which you sign this Release.


 


(c)
Together with the Retirement Agreement dated as of December 23, 2019, this Release provides for consideration in addition to anything
of value to which you are already entitled.


 




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(d)
You have been advised to consult an attorney before signing this Release.


 


(e)
You have been granted twenty-one (21) days after you are presented with this Release to decide whether or not to sign this Release.
If you execute this Release prior to the expiration of such period, you do so voluntarily and after having had the opportunity
to consult with an attorney, and hereby waive the remainder of the twenty-one (21) day period.


 


(f)
You have the right to revoke this Release within seven (7) days of signing it. In the event this Release is revoked, the Retirement
Agreement dated as of December 23, 2019 will be null and void in its entirety, and you will not receive the benefits of that Agreement.


 


If
you wish to revoke this agreement, you must deliver written notice stating that intent to revoke to Kevin Miller, Chief Financial
Officer, by email at kmiller@mreic.com, on or before 5:00 p.m. on the seventh (7th) day after the date on which
you sign this Release.


 


3.
Employee’s Representations. You represent and warrant that:


 


(a)
Other than your car and phone as set forth in Section 3(e) of the Retirement Agreement, you have returned to the Company all Company
property in your possession;


 


(b)
Other than as set forth in this Agreement, you have been paid all wages, commissions, bonuses or other compensation, owed to you;


 


(c)
During the course of your employment you did not sustain any injuries for which you might be entitled to compensation pursuant
to worker’s compensation law;


 


(d)
You have not made any disparaging comments about the Company, nor will you do so in the future; and


 


(e)
You have not initiated any adversarial proceedings of any kind against the Company or against any other person or entity released
herein, nor will you do so in the future, except as specifically allowed by this Agreement.


 


4.
Injunctive Relief. Each Party recognizes and acknowledges that a breach of the covenants contained in this Release
or the Retirement Agreement will cause irreparable damage to the other Party and such other party’s goodwill or reputation,
the exact amount of which will be difficult or impossible to ascertain, and that the remedies at law for any such breach will
be inadequate. Accordingly, each Party agrees that in the event of a breach of any of the covenants contained in this this Release
or the Retirement Agreement by such Party, in addition to any other remedy which may be available at law or in equity, the other
Party will be entitled to specific performance and injunctive relief.


 


5.
Execution in Counterparts. This Release may be executed in counterparts with the same force and effectiveness as
though executed in a single document. Facsimile signatures shall have the same force and effectiveness as original signatures.


 


The
Parties have carefully read this Release in its entirety; fully understand and agree to its terms and provisions; and intend and
agree that it is final and binding on all Parties.


 




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IN
WITNESS WHEREOF, and intending to be legally bound, the Parties have executed the foregoing on the dates shown below.


 


	ALLISON
    NAGELBERG	 	MONMOUTH REAL ESTATE INVESTMENT CORPORATION
	 	 	 	 	 
	By:	/s/
Allison Nagelberg	 	By:
    	/s/
    Michael P. Landy
	 	 	 	Name:	Michael
    P. Landy
	 	 	 	Title:	President
    and Chief Executive Officer
	 	 	 	 	 
	Date:
    December 23, 2019	 	Date: December 23, 2019


 



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