Exhibit 10.17
EMPLOYMENT AGREEMENT ("Agreement")
AGREEMENT, made and entered into as of the 28th day of the month of
November, 2005, by and between THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
(the "Company"), and XXXXXXX XXXXXXX (the "Employee").
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. Duties. The Employee will serve in a capacity as assigned by the
Company and will devote his/her full business time and attention to the affairs
of the Company and his/her duties.
2. Salary and Bonus. The Company will pay the Employee a base salary of
$200,000.00 per year, which will not be reduced and will be reviewed
periodically (at intervals of not more than 12 months). The Employee will be
eligible to receive annually or otherwise any bonus awards which the Company,
the Compensation Committee of the Board or such other authorized committee of
the Board determines to award or grant.
3. Termination of Employment by the Company. The Company may terminate
the Employee's employment at any time and for any reason; provided, however,
that in the event the Company terminates the Employee's employment for any
reason other than for Cause, as hereinafter defined, the Employee shall be
entitled to the benefits described in Section 6(a). 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/she is
employed by the Company, (ii) the Employee willfully fails to comply with the
reasonable instructions 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/her employment hereunder, (vii) the Employee commits a material breach of
the confidentiality provision set forth in Section 8, (viii) the Employee
exhibits demonstrable evidence of alcohol or drug abuse having a substantial
adverse effect on his/her job performance hereunder, or (ix) the Employee is
unable to carry out his/her duties due to permanent and total disability.
4. Termination for Performance. The Company may terminate the
Employee's employment for performance if the Employee fails to meet
satisfactorily the performance goals established for the Employee. The
determination as to whether the Employee has met satisfactorily such performance
goals shall be determined by the Company in its sole discretion. The Company
shall exercise its right to terminate the Employee's employment for performance
by giving her written notice of termination on or before the date of such
termination specifying the performance goal or goals that the Employee failed to
meet. In the event of such termination of the Employee's employment for
performance, the Employee shall be entitled to the benefits described in Section
6(b).
5. Termination of Employment by the Employee. The Employee may
terminate his/her employment at any time and for any reason.
6. (a) Benefits Upon Termination Without Cause. If the Employee's
employment shall terminate pursuant to Section 3 other than for Cause, the
Employee, upon execution of a Confidential Separation and Release Agreement,
shall be entitled to (i) salary continuation and continuation of medical,
dental, vision and prescription coverage for a period of 52 weeks following the
date of termination and (ii) outplacement assistance.
(b) Benefits Upon Termination for Performance. If the
Employee's employment shall terminate pursuant to Section 4, the Employee, upon
execution of a Confidential Separation and Release Agreement, shall be entitled
to (i) salary continuation and continuation of medical, dental, vision and
prescription coverage for a period of 26 weeks following the date of termination
and (ii) outplacement assistance.
7. Non-Competition. The Employee agrees that during his/her employment
and for a period of 52 weeks thereafter, regardless of the reason for
separation, the Employee (a) will not own, manage, operate, control, be employed
by, participate in, provide consulting services to, or be connected in any
manner with a retail grocery store chain operating in the same geographic areas
as the Company, and (b) will not contact or solicit employees of the Company for
the purpose of inducing such employees to leave the employ of the Company.
Notwithstanding any other provision of this Agreement, if the Employee breaches
this non-competition provision, then the Company may, in addition to any other
rights and remedies available to it at law or under this Agreement, discontinue
paying to the Employee any of the severance benefits described in Section 6.
8. Confidential Information and Trade Secrets. The Employee hereby
acknowledges that he/she will have access to various trade secrets and
proprietary and confidential information of the Company. The Employee covenants
that he/she will not disclose or use such information except as is necessary and
appropriate in connection with his/her employment by the Company and that he/she
will otherwise adhere in all respects to the Company's policies against the use
or disclosure of such information. Notwithstanding any other provision of this
Agreement, if the Employee breaches this confidentiality provision, then the
Company may, in addition to any other rights and remedies available to it at law
or under this Agreement, discontinue paying to the Employee any of the severance
benefits described in Section 6.
9. 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/her 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 the Employee's obligations under Sections 7 or 8 could cause irreparable harm
to Company for which the 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 7 or 8.
10. 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.
11. 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.
12. 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/her rights or duties under this Agreement.
13. 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.
14. Modifications to Comply with IRC Section 409A. If any payments
under this Agreement would not comply with the requirements of Section 409A of
Internal Revenue Code of 1986, as amended, and the regulations and Internal
Revenue Service guidance thereunder, the Parties hereto agree to use their best
efforts to modify the terms of such payments in a manner mutually agreeable to
both Parties so that such requirements are satisfied.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Employee has hereunto set
his/her hand as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
BY: /s/ Xxxxx Xxxxxxxx
ITS: SVP HR
DATE: 1/4/06
/s/ Xxxxxxx X. Xxxxxxx 1/2/06
XXXXXXX XXXXXXX DATE
