Exhibit 10.53
CONFIDENTIAL EMPLOYMENT SEPARATION AND
RELEASE AGREEMENT
This Confidential Employment Separation and Release Agreement (the
"Agreement") is between you, Xxxxxxxx XxxXxxx ("You" or "Your"), and The Great
Atlantic & Pacific Tea Company, Inc. ("A&P"), and any of its present or former
parents, subsidiaries, affiliates or divisions, and any of its or their
predecessors, successors, assigns, agents, employees, officers and/or directors
(collectively, the "Company"). This Agreement sets forth our understandings with
respect to Your separation from employment, which will be effective March 16,
2010 (Your "Separation Date"). Upon Your Separation Date, all rights, privileges
and entitlements as an active employee will cease, subject only to the
provisions set forth below.
1. Payments and other Consideration. In return for Your general release
and other agreements set forth herein, A&P agrees to provide You with:
o Salary continuation payments at Your current rate for a total of 52
weeks after the Effective Date of this Agreement, and
o Continuation of company sponsored health insurance coverage
(medical, dental, vision, prescription) for a total of 52 weeks or
until You are eligible for or secure comparable coverage
elsewhere, whichever is shorter, subject to applicable participant
contributions and plan terms, options and elections.
You agree that the foregoing exceeds what You would be entitled to
receive by reason of Your employment with and separation from A&P without
signing this Agreement.
Subject to Section 22 of the Employment Agreement entered into between
You and A&P on January 25, 2006, as amended on December 16, 2008 and June 16,
2009 (hereinafter the "Employment Agreement"), salary continuation payments
pursuant to this Agreement: (1) will commence promptly after the Effective Date
of this Agreement, and (2) will occur in installments on the Company's regular
pay dates.
Company sponsored health insurance coverage pursuant to this Agreement:
(1) will be reinstated promptly after the Effective Date of this Agreement
retroactive to the date that is one day after your Separation Date and (2)
counts towards your total entitlement to continued coverage under COBRA.
2. Release and Waiver/Covenant Not to Xxx. In exchange for the
consideration provided in paragraph 1 above, You agree not to litigate against
the Company and You waive, release and discharge the Company from any and all
claims, obligations, liability and demands ("Claims"). This expressly includes,
but is not limited to, Claims arising out of Your employment, Your separation
from employment and Your Employment Agreement, and claims that the Company:
o has unlawfully discriminated on the basis of age, race, color, sex
(including sexual harassment), national origin, ancestry, disability,
religion, sexual orientation, marital status, parental status, veteran
status, source of income, entitlement to benefits, or any union
activities, or has otherwise acted in violation of any local, state
or federal law, constitution, ordinance, or regulation, notably
including but not limited to such federal, state and local fair
employment practices, wage or discrimination laws as Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, 42
U.S.C. ss. 1981, the Equal Pay Act, the Older Worker Benefit
Protection Act, the Americans With Disabilities Act, the Family
Medical Leave Act, the Worker Adjustment Retraining and Notification
Act, the Employee Retirement Income Security Act ss.510, the National
Labor Relations Act, the Fair Labor Standards Act, the Xxxxxxxx-Xxxxx
Act of 2002, the New Jersey Law Against Discrimination, the New Jersey
Family Leave Law, the New Jersey Conscientious Employee Protection
Act, the New Jersey Civil Rights Act, the Millville Dallas Airmotive
Plant Job Loss Notification Act, the Maryland Economic Stabilization
Act (plant closing law), and the Maryland Fair Employment Practices
Act,
o has violated its personnel policies, procedures, handbooks, contracts
or implied contracts of employment, or any covenants of good faith and
fair dealing between You and the Company; and,
o has violated public policy or common law, including but not limited to
claims for constructive or wrongful discharge; retaliatory discharge;
negligent hiring, retention or supervision; defamation or false light;
intentional or negligent infliction of emotional distress and/or mental
anguish; intentional interference with contract; negligence;
detrimental reliance; loss of consortium to You or any member of Your
family; promissory estoppel and any and all other torts or statutory
claims, and any and all claims for statutory and non-statutory costs
and attorneys fees.
Excluded from this covenant and release are any Claims which by law
cannot be waived (specifically including but not limited to workers'
compensation claims); provided, however, while You cannot waive your right to
file a charge with or participate in an investigation conducted by certain
government agencies, You are waiving and releasing Your claim or right to any
monetary recovery should any agency (such as the Equal Employment Opportunity
Commission) pursue any claims on Your behalf. This covenant and release shall
not affect any acts giving rise to claims subsequent to Your execution of this
Agreement.
3. Other Agreements By You. In addition to the agreements made in
paragraph 2, by executing this Agreement You are also agreeing
that:
(a) During the salary continuation period, You will be available
to the Company as necessary to assist on the transition of
your responsibilities and provide information relating to (i)
the budget You prepared and submitted for Fiscal Year 2010,
(ii) all vendor relationships and contracts in the areas of
marketing and advertising, (iii) the current organizational
structure in the areas of marketing and advertising, and (iv)
the status of all Project Breakthrough items for which You had
responsibility;
(b) You will fully comply with Sections 14 and 15 of Your
Employment Agreement;
(c) You are entering into this Agreement knowingly, voluntarily,
and with full knowledge of its significance, and You have not
been coerced, threatened, or intimidated into signing this
Agreement;
(d) You understand and acknowledge that the Company is not
admitting violating any legal right, duty or entitlement;
(e) You will not make disparaging remarks about the Company in a
manner that will cause damage or loss to the Company's
business, and You will testify truthfully and without malice
whether or not properly subpoenaed;
(f) You will keep strictly confidential the terms and conditions
of this Agreement;
(g) During the salary continuation period You will cooperate
reasonably with the Company in relation to matters in which
You were involved while employed or as to which you have
insight or knowledge related to or arising from your
employment with the Company;
(h) You will not disclose privileged and/or proprietary
communications, information or documents that You have learned
of or received during the course of Your employment related in
any way to any pending or anticipated legal proceeding to
anyone other than authorized employees of the Company or its
attorneys, except pursuant to a valid court order, subpoena or
other governmental or judicial direction, and
(i) During Your employment and Your salary continuation period You
have not engaged in and will not engage in (i) any act or acts
of dishonesty resulting in personal gain to You at the expense
of the Company, or (ii) any acts of malfeasance in connection
with Your employment or salary continuation.
Should You violate any of the foregoing covenants, You will forfeit any
remaining consideration from A&P under this Agreement and will reimburse A&P for
the gross amount of salary continuation previously paid to You hereunder.
4. Information Concerning Your Termination of Employment. You agree
that Your separation from employment is part of a reduction in force. You are
acknowledging by signing this Agreement that You understand that Your
eligibility for and receipt of the benefits provided hereby is in consideration
for Your release and other consideration, which is set forth in paragraphs 1
through 3 above. By signing this Agreement You are further acknowledging Your
receipt of Schedule A, which sets forth the job titles and ages of all
individuals selected for the reduction in force, and the ages of all individuals
in the same department/job title who are not selected.
5. Time for Consideration of Agreement and for Revocation. You have 45
days in which to decide whether to enter into this Confidential Employment
Separation and Release Agreement, sign it before a notary, and return it to
Xxxxxx Xxxxxx, A&P, 0 Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000. You may sign this
Agreement prior to the expiration of the 45-day period. You have seven (7) days
after Your execution within which You can change your mind. You may revoke the
Agreement during those 7 days by mailing or delivering a letter of revocation to
Xxxxxx Xxxxxx, A&P, 0 Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000. Such a letter must be
signed and postmarked, or received, no later than the seventh day after the date
on which You signed this Agreement. This Agreement shall be fully effective and
binding upon all parties hereto immediately upon execution by You and the
Company and the expiration of the seven-day revocation period ("Effective
Date").
6. Consultation With an Attorney. This is an important legal document.
You are advised to consult with an attorney before signing it. By signing the
Agreement You are acknowledging that (a) You have been provided an opportunity
to consult with an attorney or other advisor of Your choice regarding the terms
of this Agreement, (b) this is a final offer and You have been given forty-five
(45) days in which to consider whether You want to enter into this Agreement,
(c) You have elected to enter into this Agreement knowingly and voluntarily and
(d) if You do so within fewer than forty-five (45) days from receipt of the
final document You have knowingly and voluntarily waived the remaining time. The
Company reserves the right reasonably to change or revoke this Agreement prior
to Your execution hereof. Any changes to this Agreement, whether material or
immaterial, do not restart the running of the 45-day period unless otherwise
agreed by the parties.
7. Non-Waiver/Dispute Resolution. Failure by the Company to enforce any
particular provision(s) of this Agreement at any time or in any instance shall
not constitute a waiver of said provision.
In lieu of civil litigation, any unresolved dispute arising out of this
Agreement or Claims released hereunder shall be submitted to arbitration as set
forth in Section 16 of Your Employment Agreement.
8. Entire Agreement/Severability. You further covenant not to contest
the validity of this release. You also agree that should You nonetheless pursue
litigation against the Company involving any matter covered and/or released
hereby, excepting only a suit to enforce an arbitrator's award, (i) You waive
any claim for a jury trial, (ii) You first will restore to A&P the full value of
all consideration You have received and waive any to which You are still
entitled hereunder and (iii) You shall be liable for the Company's costs and
attorneys' fees incidental to defending such legal action. The foregoing
covenant is inapplicable as a covenant not to xxx under the Age Discrimination
in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA).
This Agreement sets forth the entire agreement between the parties
regarding Your separation from employment and supersedes any other written or
oral understandings regarding Your separation. This Agreement shall not be
amended or modified except by a writing subscribed by the parties hereto. If any
provision of this Agreement is held to be invalid or unenforceable in whole or
in part, the invalidity shall not affect other provisions of this Agreement,
which shall remain in full force and effect; provided, however, if Paragraph 2
is deemed invalid, in whole or in part, and You commence or pursue any action
against the Company that, but for the invalidation of Paragraph 2, would have
been barred by this Agreement, You shall first restore to A&P the full value of
all consideration You have received and waive any to which You are still
entitled hereunder.
Your acceptance of this Agreement is equally on behalf of and binding
upon You and Your family and anyone acting for You or Your family including but
not limited to attorneys, agents, representatives, heirs, successors, executors,
and assigns.
If this correctly states our understanding and agreement, retain
Schedule A and sign and return (as directed in Paragraph 5 above) one original
copy of the Agreement.
THE GREAT ATLANTIC & PACIFIC TEA Agreed and Accepted:
COMPANY, INC.
By: __________________________________ ______________________________
Xxxxxxxxxxx X. XxXxxxx XXXXXXXX XXXXXXX
Senior Vice President, General Counsel
Dated: March 16, 2010 Dated: __________________,2010.
Sworn to before me this ____ day of
____________, 2010.
-----------------------------
Notary Public
