Exhibit 10
Separation and Release Agreement, dated as July
14, 2000, by and between Xxxxxxx Xxxxxx and The
Great Atlantic & Pacific Tea Company, Inc. (the
"Agreement")
This will confirm our understandings with respect to
your resignation from employment with The Great Atlantic &
Pacific Tea Company, Inc., which is effective July 14, 2000.
As of that date, all rights, privileges and entitlements as
an active employee cease, subject only to the provisions
hereinafter set forth. Your resignation from employment
includes your resignation as an officer and director of the
Company and all of its subsidiaries, effective the same
date, and is an integral part of this Agreement.
In consideration of your general release which is set
forth below, the Company agrees to provide you with salary
continuation at your current salary through January 13,
2002, and to provide to you and covered members of your
family Company Executive Medical Health benefits currently
enjoyed by you (including the non-executive prescription
drug coverage) through the earlier of January 13, 2002 or
the date you obtain employment; provided, however, that such
salary continuation, medical benefit coverage continuation
and all other enhanced benefits provided to you in this
Agreement shall cease immediately should you: breach your
fiduciary duty as a present and soon to be former member of
senior management of the Company to hold all non-public
Company information confidential; and/or obtain employment
with a company that owns or operates supermarkets in any
geographic area in which the Company operates, or if you
take actions or provide services which reasonably and
proximately may become to the competitive detriment of the
Company. The time period during which all vested options
(including but not limited to stock appreciation rights, non-
qualified stock options and incentive stock options,
collectively, "Options") currently held by you can be
exercised is hereby extended for the period of 21 months
immediately following the date of this Agreement at the end
of which period all of your Options shall terminate. Except
as otherwise amended herein, all other terms governing the
grant and exercise of your Options shall remain in full
force and effect. Your participation in the Company's
Management Incentive Plan shall cease immediately as of the
date of this Agreement, provided, however, should the Board
of Directors of the Company award any bonuses under that
Plan for fiscal 2000, you will be paid a bonus pro rated to
the date of this Agreement. The Company agrees to pay to
you when due, as per the terms of that certain letter
agreement between the Company and you dated May 7, 1997, the
SERP benefit contained in paragraph 5 of that letter
agreement. The provisions of this Agreement contain the
entire agreement between the parties hereto as to the
subject matters discussed herein.
The foregoing consideration, together with the further
release from the Company recited herein, is given in return
for your discharge and release of all claims, obligations,
and demands which you have, ever had, or in the future may
have against The Great Atlantic & Pacific Tea Company, Inc.,
any of its parents, subsidiaries or affiliated entities and
any of its or their officers, directors, employees, agents,
predecessors or successors (collectively, the "Company")
arising out of or related to your employment with and
separation from the Company, including, but not limited to,
any and all claims under Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act ("ADEA"), the Older Workers
Benefit Protection Act, the Americans with Disabilities Act,
the Employment Retirement Income Security Act of 1974, the
Family and Medical Leave Act, the Equal Pay Act, the Fair
Labor Standards Act, each and every state or local variation
of these federal laws including without limitation the New
York State Human Rights Law, the New York Whistleblower
Protection Law, the New York City Human Rights Law, the New
Jersey Law Against Discrimination, the New Jersey Family
Leave Act, the New Jersey Conscientious Employee Protection
Act, and any and all other applicable federal, state, and
local fair employment practices laws, individual or
constitutional rights, wage or discrimination laws, and any
and all claims for breach of contract or implied contract,
constructive or wrongful discharge, or for negligence,
retaliation and all torts, and any and all claims for
attorneys' fees.
As to any claims against you for matters arising out of
and within the scope of your employment, the Company will
release, defend, indemnify and hold you harmless from and
against any loss, cost, claim, damage, judgment and expense;
provided, however, that you provide reasonable cooperation
in the defense thereof and give prompt notice to the Company
of any such claims brought by a third party.
The foregoing releases shall not affect any subsequent
acts giving rise to claims thereafter. Excluded from the
foregoing releases are any claims which by law cannot be
waived; 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 Agreement contains and constitutes the full and
complete understanding and agreement between you and the
Company. The Company and you each understand and agree that
by entering into this Agreement, neither the Company nor you
admit violating any legal right, duty or entitlement. This
Agreement shall not be amended or modified except by a
writing subscribed by the parties hereto. This Agreement
will be governed by and interpreted in accordance with the
laws of the State of New Jersey.
The Company advises you to consult with an attorney
prior to executing this Agreement. By executing this
Agreement, you acknowledge 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 twenty-one
(21) days in which to consider whether you wish to enter
into this Agreement, (c) you have elected to enter this
Agreement knowingly and voluntarily and (d) if you do so
within fewer than 21 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.
This Separation and Release Agreement shall be fully
effective and binding upon all parties hereto immediately
upon execution by you and the Company; provided, however,
you have seven (7) days following your execution of this
Agreement to change your mind. You may revoke the Agreement
during those seven days by mailing or delivering a letter of
revocation to the Law Department, attention Xxxxxxx X.
Xxxxxxxxxx, Esq., The Great Atlantic & Pacific Tea Company,
Inc., 0 Xxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000. Such a
letter must be signed and received, or postmarked, no later
than the seventh day after the date on which you signed the
Separation and Release Agreement.
You further covenant not to contest the validity of
this release after the expiration of the revocation period.
Therefore, you agree that if you nonetheless should pursue
litigation against the Company involving any matter covered
and/or released hereby, you first will restore to the
Company the full value of all consideration you have
received and waive any to which you are still entitled
hereunder and you shall be liable for the Company's costs
and attorneys' fees incidental to defending such legal
action. Finally, should any provision of this Agreement be
found by a court of competent jurisdiction to be
unenforceable in whole or in part, the remainder of this
Agreement shall not be affected thereby and shall remain in
full force and effect.
If this is in accordance with our understanding and
agreement, please sign, have notarized and return to my
attention the enclosed copy, which shall evidence our
binding agreement.
THE GREAT ATLANTIC & PACIFIC Agreed and Accepted:
TEA COMPANY, INC.
By: ________________________ ________________________
XXXXXXX XXXXXXXX XXXXXXX XXXXXX
Sr. Vice President,
People Resources & Services Sworn to before me this
_____ day of
_____________, 2000.
Dated: ___________________ __________________
Notary Public
