Exhibit 10.18
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of the 15th day of
November, 2004, by and between THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
(the "Company"), and XXXXXXX XXXXX (the "Employee").
W I T N E S S E T H
WHEREAS, the Company and the Employee (the "Parties") have
agreed to enter into this agreement (the "Agreement") relating to the employment
of the Employee by the Company;
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
1. Term of Employment.
(a) The Company agrees to continue to employ the Employee, and
the Employee agrees to remain in the employment of the Company, in accordance
with the terms and provisions of this Agreement, for the period set forth below
(the "Employment Period").
(b) The Employment Period under this Agreement shall commence
as of November 15, 2004 and, subject only to the provisions of Sections 7, 8 and
9 below relating to termination of employment, shall continue until (i) the
close of business on November 14, 2007 or (ii) such later date as shall result
from the operation of subparagraph (c) below (the "Terminal Date").
(c) Commencing on May 15, 2006, and on the first business day
of each month thereafter (such date and each such first business day, the
"Renewal Date") the Terminal Date set forth in subparagraph (b) above shall be
extended so as to occur eighteen months from the Renewal Date unless either the
Company or the Employee shall have given written notice to the other Party on or
before such Renewal Date that the Terminal Date is not to be extended.
2. Duties.
It is the intention of the Parties that during the term of his
employment under this Agreement, the Employee will serve as Executive Vice
President of Fresh Operations of the Company. The Employee will devote his full
business time and attention to the affairs of the Company and his duties as
Executive Vice President of Fresh Operations. The Employee will have such duties
as are appropriate to his position, and will have such authority as required to
enable him to perform these duties. Consistent with the foregoing, the Employee
shall comply with all reasonable instructions of the President and Chief
Operating Officer of the Company. The Employee will report directly to the
President and Chief Operating Officer of the Company.
3. Salary and Bonus.
3.1 Salary. The Company will pay the Employee a base salary at
an initial annual rate of not less than $325,000.00, which base salary as in
effect from time to time will not be reduced and will be reviewed periodically
(at intervals of not more than twelve (12) months) by the Compensation Committee
of the Board of Directors (the "Board") for the purpose of considering increases
thereof. In evaluating increases in the Employee's base salary, the Compensation
Committee of the Board will take into account such factors as corporate
performance, individual merit, and such other considerations as it deems
appropriate. The Employee's base salary will be paid in accordance with the
standard practices for other corporate executives of the Company.
3.2 Bonuses.
The Employee will be eligible to receive annually or otherwise
any bonus awards, whether payable in cash, shares of common stock of the Company
or otherwise, which the Company, the Compensation Committee of the Board or such
other authorized committee of the Board determines to award or grant.
4. Benefit Programs.
The Employee will receive such benefits and awards, including
without limitation stock options and restricted share awards, as the
Compensation Committee of the Board shall determine and will be eligible to
participate in all employee benefit plans and programs of the Company from time
to time in effect for the benefit of senior executives of the Company,
including, but not limited to, pension and other retirement plans, group life
insurance, hospitalization and surgical and major medical coverage, sick leave,
salary continuation arrangements, vacations and holidays, long-term disability,
and such other benefits as are or may be made available from time to time to
senior executives of the Company.
5. Business Expenses and Perquisites.
The Employee will be reimbursed for all reasonable expenses
incurred by him in connection with the conduct of the business of the Company,
provided he properly accounts therefor in accordance with the Company's
policies. He will also be entitled to such other perquisites as are customary
for senior executives of the Company.
6. Office and Services Furnished. The Company shall furnish
the Employee with office space, secretarial assistance and such other facilities
and services as shall be suitable to the Employee's position and adequate for
the performance of his duties hereunder.
7. Termination of Employment by the Company.
7.1 Involuntary Termination by the Company Other Than For
Permanent and Total Disability or For Cause. The Company may terminate the
Employee's employment at any time and for any reason by giving him a written
notice of termination to that effect at least 45 days before the date of
termination. In the event the Company terminates the Employee's employment for
any reason other than for Permanent and Total Disability, as provided in Section
7.2, below, or for Cause, as provided in Section 7.3, below, the Employee shall
be entitled to the benefits described in Section 10 or Section 11, whichever is
applicable.
7.2 Termination Due to Permanent and Total Disability. If the
Employee incurs a Permanent and Total Disability, as defined below, the Company
may terminate the Employee's employment by giving him written notice of
termination at least 45 days before the date of such termination. In the event
of such termination of the Employee's employment because of Permanent and Total
Disability, the Employee shall be entitled to receive (i) his base salary
pursuant to Section 3.1 and any other compensation and benefits to the extent
actually earned by the Employee pursuant to this Agreement or any benefit plan
or program of the Company as of the date of such termination of employment at
the normal time for payment of such salary, compensation or benefits, and (ii)
any reimbursement amounts owing under Section 5. For purposes of this Agreement,
the Employee shall be considered to have incurred a Permanent and Total
Disability if he is unable to substantially carry out his duties under this
Agreement by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months. The existence of
such Permanent and Total Disability shall be determined by the Compensation
Committee of the Board of Directors of the Company and shall be evidenced by
such medical certification as the Secretary of the Company shall require.
7.3 Termination for Cause. The Company may terminate the
Employee's employment for Cause if (i) the Employee willfully, substantially,
and continually fails to perform the duties for which he is employed by the
Company, (ii) the Employee willfully fails to comply with the reasonable
instructions of the President and Chief Operating Officer of the Company, (iii)
the Employee willfully engages in conduct which is or would reasonably be
expected to be materially and demonstrably injurious to the Company, (iv) the
Employee willfully engages in an act or acts of dishonesty resulting in material
personal gain to the Employee at the expense of the Company, (v) the Employee is
convicted of a felony, (vi) the Employee engages in an act or acts of gross
malfeasance in connection with his employment hereunder, (vii) the Employee
commits a material breach of the confidentiality provision set forth in Section
15, or (viii) the Employee exhibits demonstrable evidence of alcohol or drug
abuse having a substantial adverse effect on his job performance hereunder. The
Company shall exercise its right to terminate the Employee's employment for
Cause by giving him written notice of termination at least 45 days before the
date of such termination specifying in reasonable detail the circumstances
constituting such Cause. In the event of such termination of the Employee's
employment for Cause, the Employee shall be entitled to receive (i) his base
salary pursuant to Section 3.1 and any other compensation and benefits to the
extent actually earned pursuant to this Agreement or any benefit plan or program
of the Company as of the date of such termination at the normal time for payment
of such salary, compensation or benefits and (ii) any amounts owed under the
reimbursement policy of Section 5.
8. Termination of Employment by the Employee.
(a) Good Reason. The Employee may terminate his employment for Good Reason by
giving the Company a written notice of termination at least 45 days before the
date of such termination specifying in reasonable detail the circumstances
constituting such Good Reason. In the event of the Employee's termination of his
employment for Good Reason, the Employee shall be entitled to the benefits
described in Section 10 or Section 11, whichever is applicable. For purposes of
this Agreement, Good Reason shall mean (i) a significant reduction in the scope
of the Employee's authority, functions, duties or responsibilities from that
which is contemplated by this Agreement, (ii) the Employee being required to
report directly to someone other than the President and Chief Operating Officer
of the Company, (iii) any reduction in the Employee's base salary, or (iv) a
significant reduction in the employee benefits provided to the Employee other
than in connection with an across-the-board reduction similarly affecting
substantially all senior executives of the Company. If an event constituting a
ground for termination of employment for Good Reason occurs, and the Employee
fails to give notice of termination within 3 months after the occurrence of such
event, the Employee shall be deemed to have waived his right to terminate
employment for Good Reason in connection with such event (but not for any other
event for which the 3-month period has not expired).
(b) Other. The Employee may terminate his employment at any time and for any
reason, other than pursuant to subsection (a) above, by giving the Company a
written notice of termination to that effect at least 45 days before the date of
termination. In the event of the Employee's termination of his employment
pursuant to this subsection (b), the Employee shall be entitled to receive (i)
his base salary pursuant to Section 3.1 and any other compensation and benefits
to the extent actually earned by the Employee pursuant to this Agreement or any
benefit plan or program of the Company as of the date of such termination at the
normal time for payment of such salary, compensation or benefits, and (ii) any
reimbursement amounts owing under Section 5.
9. Termination of Employment By Death. In the event of the
death of the Employee during the course of his employment hereunder, the
Employee's estate shall be entitled to receive (i) his base salary pursuant to
Section 3.1 and any other compensation and benefits to the extent actually
earned by the Employee pursuant to this Agreement or any other benefit plan or
program of the Company as of the date of such termination at the normal time for
payment of such salary, compensation or benefits, and (ii) any reimbursement
amounts owing under Section 5. In addition, in the event of such death, the
Employee's beneficiaries shall receive any death benefits owed to them under the
Company's employee benefit plans.
10. Benefits Upon Termination Without Cause or For Good Reason
(No Change of Control). If (a) the Employee's employment with the Company shall
terminate (i) because of termination by the Company pursuant to Section 7.1
other than for Cause and other than because of Permanent and Total Disability,
or (ii) because of termination by the Employee for Good Reason pursuant to
Section 8(a), and (b) such termination of employment does not occur within 13
months following a "Change of Control" of the Company (as defined in Section
12), the Employee, upon execution of a Confidential Separation and Release
Agreement, shall be entitled to the following:
(a) The Company shall pay to the Employee his base salary
pursuant to Section 3.1 and any other compensation and benefits to the extent
actually earned by the Employee under this Agreement or any benefit plan or
program of the Company as of the date of such termination at the normal time for
payment of such salary, compensation or benefits.
(b) The Company shall pay the Employee any reimbursement
amounts owing under Section 5.
(c) The Company shall pay to the Employee as a severance benefit for each month
during the 18 month period beginning with the month next following the date of
termination of the Employee's employment an amount equal to one-twelfth of the
sum of (i) his annual rate of base salary immediately preceding his termination
of employment, and (ii) the average of his three highest annual bonuses awarded
under the Company's annual management incentive bonus plan for any of the five
fiscal years immediately preceding the fiscal year of his termination of
employment, (or, if he was not eligible for a bonus for at least three fiscal
years in such five-year period, then the average of such bonuses for all of the
fiscal years in such five-year period for which he was eligible, and if he was
not eligible for such a bonus in any previous fiscal year, then 100% of his
target annual bonus for the fiscal year in which the termination occurred), with
any deferred bonuses counting for the fiscal year in which it was earned rather
than the year in which it was paid. Each such monthly benefit shall be paid no
later than the last day of the applicable month. In the event that the Employee
dies before the end of such 18-month period, the payments for the remainder of
such period shall be made to the Employee's estate.
(d) The Company shall pay to the Employee as a bonus for the fiscal year in
which the termination occurred an amount equal to a portion (determined as
provided in the next sentence) of the bonus that the Employee would actually
have received under the Company's annual management incentive bonus plan for the
fiscal year of termination of the Employee's employment if his employment had
not terminated (determined on the basis of his actual bonus opportunity and the
actual degree of achievement of the applicable performance goals) or, if no
bonus opportunity for that year had been established for the Employee at the
time of such termination of employment, such portion of the bonus awarded to him
under the Company's annual management incentive bonus plan for the fiscal year
immediately preceding the fiscal year of the termination of his employment, with
deferred bonuses counting for the fiscal year in which it was earned rather than
the year in which it was paid. Such portion shall be determined by dividing the
number of days of the Employee's employment during such fiscal year up to his
termination of employment by 365 (366 if a leap year). Such payment shall be
made on or about the date on which bonuses for the applicable fiscal year are
paid to executives of the Company generally under the Company's annual
management incentive bonus plan, and the Employee shall have no right to any
further bonuses under said plan.
(e) During the period of 18 months beginning on the date of the Employee's
termination of employment, the Employee shall remain covered by the medical,
dental, vision, life insurance, and, if reasonably commercially available
through nationally reputable insurance carriers, long-term disability plans of
the Company that covered him immediately prior to his termination of employment
as if he had remained in employment for such period. In the event that the
Employee's participation in any such plan is barred, the Company shall arrange
to provide the Employee with substantially similar benefits (but, in the case of
long-term disability benefits, only if reasonably commercially available). Any
medical insurance coverage for such 18-month period pursuant to this subsection
(e) shall become secondary upon the earlier of (i) the date on which the
Employee begins to be covered by comparable medical coverage provided by a new
employer, or (ii) the earliest date upon which the Employee becomes eligible for
Medicare or a comparable Government insurance program.
11. Benefits Upon Termination Without Cause or For Good Reason
(Change of Control). If (a) the Employee's employment with the Company shall
terminate (i) because of termination by the Company pursuant to Section 7.1
other than for Cause and other than because of Permanent and Total Disability,
(ii) because of termination by the Employee for Good Reason pursuant to Section
8(a), or (iii) for any reason during the 30 days beginning on the first
anniversary of a Change of Control, and (b) such termination of employment
occurs within 13 months following a "Change of Control" of the Company (as
defined in Section 12), the Employee, upon execution of a Confidential
Separation and Release Agreement, shall be entitled to the following:
(a) The Company shall pay to the Employee his base salary
pursuant to Section 3.1 and any other compensation and benefits to the extent
actually earned by the Employee under this Agreement or any benefit plan or
program of the Company as of the date of such termination at the normal time for
payment of such salary, compensation or benefits.
(b) The Company shall pay the Employee any reimbursement
amounts owing under Section 5.
(c) The Company shall pay to the Employee as a severance
benefit an amount equal to three (3) times the sum of (i) his annual rate of
base salary immediately preceding his termination of employment, and (ii) the
average of his three highest annual bonuses awarded under the Company's annual
management incentive bonus plan for any of the five fiscal years immediately
preceding the fiscal year of his termination of employment (or, if he was not
eligible for a bonus for at least three fiscal years in such five-year period,
then the average of such bonuses for all of the fiscal years in such five-year
period for which he was eligible, and if he was not eligible for such a bonus in
any previous fiscal year, then 100% of his target annual bonus for the fiscal
year in which the termination occurred, with any deferred bonuses counting for
the fiscal year in which it was earned rather than the year in which it was
paid. Such severance benefit shall be paid in a lump sum within 45 days after
the date of such termination of employment.
(d) The Company shall pay to the Employee as a bonus for the
fiscal year in which the termination occurred an amount equal to a portion
(determined as provided in the next sentence) of the bonus that the Employee
would actually have received under the Company's annual management incentive
bonus plan for the fiscal year of termination of the Employee's employment if
his employment had not terminated (determined on the basis of his actual bonus
opportunity and the actual degree of achievement of the applicable performance
goals) or, if no bonus opportunity for that year had been established for the
Employee at the time of such termination of employment, such portion of the
bonus awarded to him under the Company's annual management incentive bonus plan
for the fiscal year immediately preceding the fiscal year of the termination of
his employment, with deferred bonuses counting for the fiscal year in which it
was earned rather than the year in which it was paid. Such portion shall be
determined by dividing the number of days of the Employee's employment during
such fiscal year up to his termination of employment by 365 (366 if a leap
year). Such payment shall be made on or about the date on which bonuses for the
applicable fiscal year are paid to executives of the Company generally under the
Company's annual management incentive bonus plan, and the Employee shall have no
right to any further bonuses under said plan.
(e) During the period of 36 months beginning on the date of
the Employee's termination of employment, the Employee shall remain covered by
the medical, dental, vision, life insurance, and, if reasonably commercially
available through nationally reputable insurance carriers, long-term disability
plans of the Company that covered him immediately prior to his termination of
employment as if he had remained in employment for such period. In the event
that the Employee's participation in any such plan is barred, the Company shall
arrange to provide the Employee with substantially similar benefits (but, in the
case of long-term disability benefits, only if reasonably commercially
available). Any medical insurance coverage for such 36-month period pursuant to
this subsection (e) shall become secondary upon the earlier of (i) the date on
which the Employee begins to be covered by comparable medical coverage provided
by a new employer, or (ii) the earliest date upon which the Employee becomes
eligible for Medicare or a comparable Government insurance program.
12. Change of Control. For the purposes of this Agreement, a
"Change of Control" shall be deemed to have occurred if (a) any person or
persons acting together which would constitute a "group" for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
(other than the Company, any subsidiary of the Company, and Tengelmann
Warenhandelsgesellschaft KG (a partnership organized under the laws of the
Federal Republic of Germany or any successor to such partnership, hereinafter
"Tengelmann")) shall beneficially own (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, at least 30% of the total voting power of all
classes of capital stock of the Company entitled to vote generally in the
election of the Board and such voting power exceeds the then current voting
power of Tengelmann; (b) control of Tengelmann is acquired by any person or
persons other than family members or entities controlled by family members of
Xxxxxx Xxxx; (c) Current Directors (as herein defined) shall cease for any
reason to constitute at least a majority of the members of the Board (for this
purpose, a "Current Director" shall mean any member of the Board as of the date
hereof and any successor of a Current Director whose election, or nomination for
election by the Company's shareholders, was approved by at least two-thirds of
the Current Directors then on the Board); (d) the shareholders of the Company
approve (i) a plan of complete liquidation of the Company or (ii) an agreement
providing for the merger or consolidation of the Company other than a merger or
consolidation in which (x) the holders of the common stock of the Company
immediately prior to the consolidation or merger have, directly or indirectly,
at least a majority of the common stock of the continuing or surviving
corporation immediately after such consolidation or merger or (y) the Board
immediately prior to the merger or consolidation would, immediately after the
merger or consolidation, constitute a majority of the board of directors of the
continuing or surviving corporation; or (e) the shareholders of the Company
approve an agreement (or agreements) providing for the sale or other disposition
(in one transaction or a series of transactions) of all or substantially all of
the assets of the Company.
13. Entitlement to Other Benefits. Except as otherwise
provided in this Agreement, this Agreement shall not be construed as limiting in
any way any rights or benefits that the Employee or his spouse, dependents or
beneficiaries may have pursuant to any other plan or program of the Company.
14. Non-Competition.
The Employee agrees that during the term of this Agreement and
for a period of eighteen months following termination of his employment, the
Employee will not, within any of the geographical areas of the United States or
Canada in which the Company is then conducting business (either directly or
through franchisees), directly or indirectly, own, manage, operate, control, be
employed by, participate in, provide consulting services to, or be connected in
any manner with the ownership, management, operation or control of any business
similar to any of the types of businesses conducted by the Company to any
significant extent during his employment or on the date of termination of his
employment, except the Employee may own for investment purposes up to 1% of the
capital stock of any company whose stock is publicly traded, and during such
eighteen month period following termination of his employment the Employee will
not contact or solicit employees of the Company for the purpose of inducing such
employees to leave the employ of the Company.
15. Confidential Information and Trade Secrets.
The Employee hereby acknowledges that he will have access to
and become acquainted with various trade secrets and proprietary information of
the Company and other confidential information relating to the Company. The
Employee covenants that he will not, directly or indirectly, disclose or use
such information except as is necessary and appropriate in connection with his
employment by the Company and that he will otherwise adhere in all respects to
the Company's policies against the use or disclosure of such information.
16. Arbitration; Injunctive Relief.
Any controversy or claim arising out of or relating to this
Agreement, directly or indirectly, or the performance or breach thereof, will be
settled by arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The arbitration will be held
in New York, New York, or such other place as may be agreed upon at the time by
the parties to the arbitration. The parties shall bear their own expenses in
connection with any arbitration or proceeding arising out of or relating to this
Agreement, directly or indirectly, or the performance or breach thereof;
provided, however, that in the event that the Employee substantially prevails,
the Company agrees promptly to reimburse the Employee for all expenses
(including costs and fees of witnesses, evidence and attorneys fees and
expenses) reasonably incurred by him in investigating, prosecuting, defending,
or preparing to prosecute or defend any action, proceeding or claim arising out
of or relating to this Agreement, directly or indirectly, or the performance or
breach thereof. The parties acknowledge and agree that a breach of Employee's
obligations under Sections 14 or 15 could cause irreparable harm to Company for
which Company would have no adequate remedy at law, and further agree that,
notwithstanding the agreement of the parties to arbitrate controversies or
claims as set forth above, the Company may apply to a court of competent
jurisdiction to seek to enjoin preliminarily or permanently any breach or
threatened breach of the Employee's obligations under Sections 14 and 15.
17. Indemnification.
The Company shall indemnify and hold the Employee harmless to
the fullest extent legally permissible under the laws of the State of Maryland,
against any and all expenses, liabilities and losses (including attorney's fees,
judgments, fines and amounts paid in settlement) reasonably incurred or suffered
by him by reason of any claim or cause of action asserted against him because of
his service at any time as a director or officer of the Company. The Company
shall advance to the Employee the amount of his expenses incurred in connection
with any proceeding relating to such service to the fullest extent legally
permissible under the laws of the State of Maryland. Notwithstanding the
foregoing, the Company's obligations pursuant to this Section 17 shall not apply
in the case of any claim or cause of action by or in the right of the Company or
any subsidiary thereof.
18. Liability Insurance.
To the extent that Company maintains a directors and officers
liability insurance policy in effect, the Company will take all steps necessary
to ensure that the Employee is covered under such policy for his service as a
director or officer of the Company or any subsidiary of the Company with respect
to claims made at any time with respect to such service.
19. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution made, or benefit provided (including, without limitation, the
acceleration of any payment, distribution or benefit and the accelerated
exercisability of any stock option), to or for the benefit of the Employee
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 19) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (or any similar excise tax) or any interest or penalties are incurred by
the Employee with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to receive from the Company
an additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any Excise Tax, income tax or
employment tax and taking into account any lost or reduced tax deductions on
account of such Gross-Up Payment) imposed upon the Gross-Up Payment and any
interest or penalties imposed with respect to such taxes, the Employee retains
from the Gross-Up Payment an amount equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Section 19(c), all
determinations required to be made under this Section 19, including
determination of whether a Gross-Up Payment is required and of the amount of any
such Gross-up Payment, shall be made by Price Waterhouse Coopers or the
Company's then current accounting firm (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the Company and the Employee
within 15 business days of the date of termination of the Employee's employment,
if applicable, or such earlier time as is requested by the Company, provided
that any determination that an Excise Tax is payable by the Employee shall be
made on the basis of substantial authority. The initial Gross-Up Payment, if
any, as determined pursuant to this Section 19(b), shall be paid to the Employee
within five business days of the receipt of the Accounting Firm's determination.
If the Accounting Firm determines that no Excise Tax is payable by the Employee,
it shall furnish the Employee with a written opinion that she has substantial
authority not to report any Excise Tax on her Federal income tax return. Any
determination by the Accounting Firm meeting the requirements of this Section
19(b) shall be binding upon the Company and the Employee; subject only to
payments pursuant to the following sentence based on a determination that
additional Gross-Up Payments should have been made, consistent with the
calculations required to be made hereunder (the amount of such additional
payments is referred to herein as the "Gross-Up Underpayment"). In the event
that the Company exhausts its remedies pursuant to Section 19(c) and the
Employee thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Gross-Up Underpayment that has
occurred and any such Gross-Up Underpayment shall be promptly paid by the
Company to or for the benefit of the Employee. The fees and disbursements of the
Accounting Firm shall be paid by the Company.
(c) The Employee shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of a Gross-Up Payment. Such notification shall be given
as soon as practicable but not later than ten business days after the Employee
receives written notice of such claim and shall apprise the Company of the
nature of such claim and the date on which such Claim is requested to be paid.
The Employee shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Employee in writing prior to the
expiration of such period that it desires to contest such claim and that it will
bear the costs and provide the indemnification as required by this sentence, the
Employee shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Employee harmless, on an
after-tax basis, for any Excise Tax, income tax or employment tax (taking into
account any lost or reduced tax deductions on account of such payments),
including interest and penalties with respect thereto, imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 19(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Employee agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Employee to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Employee on an interest-free basis and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any Excise
Tax, income tax or employment tax (taking into account any lost or reduced tax
deductions on account of such advance), including interest or penalties with
respect thereto, imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that any
extension of the statute of limitations relating to the payment of taxes for the
taxable year of the Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 19(c), the Employee becomes entitled
to receive any refund with respect to such claim, the Employee shall (subject to
the Company's complying with the requirements of Section 19(c)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Employee of an amount advanced by the Company pursuant to Section 19(c), a
determination is made that the Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify the Employee in writing of
its intent to contest such denial of refund prior to the expiration of 30 days
after such determination, then any obligation of the Employee to repay such
advance shall be forgiven and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
20. No Duty to Seek Employment. The Employee shall not be
under any duty or obligation to seek or accept other employment following
termination of employment, and no amount, payment or benefits due to the
Employee hereunder shall be reduced or suspended if the Employee accepts
subsequent employment.
21. Deductions and Withholding.
All amounts payable or which become payable under any
provision of this Agreement shall be subject to any deductions authorized by the
Employee and any deductions and withholdings required by law.
22. Governing Law.
The validity, interpretation and performance of this Agreement
will be governed by the laws of the State of New Jersey without regard to the
conflict of law provisions.
23. Severability.
If any one or more of the provisions contained in this
Agreement is held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability will not affect any other provision
hereof.
24. Successors and Assigns.
This Agreement will be binding upon and inure to the benefit
of the Parties hereto and their personal representatives, and, in the case of
the Company, its successors and assigns. To the extent the Company's obligations
under this Agreement are transferred to any successor or assign, such successor
or assign shall be treated as the "Company" for purposes of this Agreement.
Other than as contemplated by this Agreement, the Employee may not assign his
rights or duties under this Agreement.
25. Continuing Effect.
Wherever appropriate to the intention of the Parties hereto,
the respective rights and obligations of the Parties, including but not limited
to the obligations referred to in Sections 10, 11, 14, 15 and 19, hereof, will
survive any termination or expiration of the term of this Agreement.
26. Entire Agreement.
This Agreement constitutes the entire agreement between the
Parties and supersedes any and all other agreements and understandings between
the Parties in respect of the matters addressed in this Agreement.
27. Amendment and Waiver.
No amendment or waiver of any provision of this Agreement
shall be effective, unless the same shall be in writing and signed by the
Parties, and then such amendment, waiver or consent shall be effective only in
the specific instance or for the specific purpose for which such amendment,
waiver or consent was given.
28. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed an original but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer and the Employee has hereunto set his
hand as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
BY: /s/Xxxxx Piwek__________________
ITS: PRESIDENT
DATE: December 2, 2004
/s/Xxxxxxx Xxxxx November 15, 2004
XXXXXXX XXXXX DATE
