Exhibit 10.29
Form of 2006 Restricted Share Unit Award Agreement, for executive officers with
employment agreements
Date
Name & Address
Dear:
Reference: 2006 Long Term Incentive Program ("Program")
Restricted Share Unit Award Agreement ("Agreement")
This will confirm the terms and conditions of an Award being made to
you pursuant to The Great Atlantic & Pacific Tea Company, Inc. (the "Company")
1998 Long Term Incentive and Share Award Plan (the "Plan"), a copy of which is
attached hereto and made a part of this Agreement.
1. Restricted Share Units. Provided that you have signed and returned this
Agreement indicating your acceptance of its terms and conditions, the Company
will grant _________ Restricted Share Units ("Units") to you, subject to all of
the terms contained in this Agreement. The Units are intended to be Performance
Awards within the meaning of the Plan.
2. Shareholder Approval. The grant of these Units is contingent upon the
Shareholders' approval of amendments to the Plan at the July 2006 Annual Meeting
of Shareholders, and is subject to the performance criteria outlined below.
3. Performance Criteria and Vesting Requirements.
(a) The performance period is February 26, 2006 to February 28, 2009.
The performance criteria are (1) Operating Income, as hereinafter defined, and
(2) Return on Invested Capital, as hereinafter defined, for Fiscal Year 2008.
The performance criteria are equally weighted at 50%. The target for Operating
Income is $43 million and the maximum is $74 million. The target for Return on
Invested Capital is 14.1% and the maximum is 15.8%. For purposes of this grant,
Operating Income is defined as Income from continuing operations adjusted for
certain items including disposals, restructuring, refinancing, accounting
changes, projects approved by the Board, and other similar items. For purposes
of this grant, Return on Invested Capital is defined as EBITDA (earnings before
interest, tax, depreciation and amortization) divided by the sum of Assets
(excluding cash), minus Current Liabilities.
(b) The number of Units that are ultimately earned and vested shall be
the following percentage of the number of Units granted in Paragraph 1 above
that are subject to the applicable performance criteria: 100% for performance at
target, 200% for performance at maximum. The number of Units ultimately earned
and vested shall be interpolated to account for performance that falls between
target and maximum. No Units shall be earned if performance with respect to
either one of the criteria is below target. The maximum number of Units subject
to an applicable performance criteria that may be earned and vested is 200% of
the number of Units granted in Paragraph 1 above that are subject to the
applicable performance criteria, even if the maximum level of performance with
respect to that performance criteria is exceeded. Fractional Units shall be
rounded down to the nearest Unit.
(c) Each vested Unit will be converted to one share of the Company's
Common Stock. Such vested Units will be delivered to you in the form of a stock
certificate in or around late May 2009; provided, however, that you must be an
employee of the Company, or a parent or subsidiary of the Company, at all times
during the period beginning with the date hereof and ending on the date the
vested Units are delivered to you in the form of a stock certificate.
(d) The Units are subject to the terms, conditions, limitations and
restrictions contained in this Agreement and the Plan and may not be assigned or
transferred, in whole or in part, except as therein provided.
(e) In the event that your employment is terminated for any reason by
you or by the Company or a parent or subsidiary of the Company, you shall
forfeit the Units immediately upon such termination of employment.
4. Release of Claims. In exchange for the opportunity to participate in the
Program, you discharge and release all claims, obligations, and demands which
you have, ever had, or in the future may have against the Company, any of its
parents, subsidiaries or affiliated entities, and any of its or their officers,
directors, employees, agents, predecessors or successors (the "Releasees")
arising out of or related to your employment with the Company and/or Releasees
up to the date of this Agreement, including, but not limited to, any and all
claims for breach of contract or implied contract, constructive or wrongful
discharge, or for negligence, retaliation and all torts; any and all claims for
attorney fees; 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 ("OWBPA"), the Americans with
Disabilities Act, the Employment Retirement Income Security Act of 1974, the
Family and Medical Leave Act, the Equal Pay Act, the Worker Adjustment and
Retraining Notification Act, the National Labor Relations Act, the Fair Labor
Standards Act, and the Xxxxxxxx-Xxxxx Act of 2002; any and all claims under each
and every state or local variation of these federal laws including without
limitation the New Jersey Law Against Discrimination, the New Jersey Family
Leave Act, the New Jersey Conscientious Employee Protection Act and the New
Jersey Civil Rights Act; and any and all claims under any and all other
applicable federal, state, and/or local fair employment practices laws,
individual or constitutional rights, and wage or discrimination laws. The
foregoing release shall not affect any acts giving rise to claims subsequent to
the execution of this Agreement. Excluded from this release 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 party (such as the Equal Employment Opportunity
Commission) pursue any claims on your behalf.
5. Trade Secrets and Proprietary Information. You hereby acknowledge that you
have and/or 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. You covenant that you will not, directly or indirectly,
disclose or use such information except (i) as is necessary and appropriate in
connection with your employment by the Company, (ii) as is required pursuant to
a judicial or administrative subpoena, or (iii) if such information is already
in the public domain (other than by reason of your breach of your obligations
hereunder). Subject to the exceptions set forth above, you agree that you will
adhere in all respects to the Company's policies against the use or disclosure
of such information.
6. Confidentiality. You further agree that your participation in the Program,
and the terms and conditions of this Agreement, are confidential and that you
will not in any manner publish, publicize, disclose or otherwise make known or
permit or cause to be made known to any third person your participation in the
Program or the terms and conditions of this Agreement. Nothing in this paragraph
shall be construed to prohibit the disclosure of this Agreement to your spouse
or any legal, tax or financial consultant retained by you, provided that the
persons to whom the disclosure is being made agree to be bound by the
confidentiality provisions of this paragraph.
7. 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 Bergen County in New Jersey, 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 you
substantially prevail, the Company agrees promptly to reimburse you for all
expenses (including costs and fees of witnesses, evidence and attorneys fees and
expenses) reasonably incurred by you 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 performance or
breach thereof. You acknowledge and agree that a breach of your obligations
under Sections 4, 5 and/or 6 of this Agreement could cause irreparable harm for
which the Company would have no adequate remedy at law, and further agree that,
notwithstanding the agreement 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 your
obligations under Sections 4, 5 and/or 6 of this Agreement.
8. General.
(a) Each share of stock awarded hereunder, once vested, shall be fully
paid and non-assessable.
(b) You shall not have any rights of a record holder with respect to
such shares until such certificates are actually issued to you.
(c) You shall assume all risks incident to any change hereafter in the
applicable laws or regulations or incident to any change in the market value of
any shares issued to you upon the vesting of the Units in whole or in part.
(d) Nothing herein contained shall obligate the Company, or any parent,
division, affiliate or subsidiary of the Company, to continue your employment
for any particular period or on any particular basis of compensation.
(e) 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.
9. Duty to Report Unethical and Unlawful Conduct. By signing this Agreement
below, you are acknowledging and agreeing that:
(a) it is your duty and responsibility to report any conduct that you
believe is unethical, improper, unlawful, or in violation of our Code of
Business Conduct and Ethics, especially any such behavior involving accounting
practices, internal accounting controls or fraud, and
(b) that any such conduct must be reported to the Legal Compliance
Officer at (000) 000-0000 or the Chief Internal Auditor at (000) 000-0000 or to
The Network Hotline at 0-000-000-0000, and
(c) that as of the date you sign this Agreement you are not aware of
any conduct that you believe is unethical, improper, unlawful, or in violation
of our Code of Business Conduct and Ethics.
10. Your Acceptance and Return of Agreement. You may consult with an attorney
prior to signing this Agreement and you have at least twenty-one (21) days
during which to review and consider the provisions of this Agreement before
signing, although you may sign and return it sooner if you so desire. Your
signed Agreement must be returned to Xxxxxx Xxxxxx, A&P, Human Resources, 0
Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000. You have the right to revoke this Agreement
for a period of seven (7) days after signing it and this Agreement shall not
become effective until such seven-day revocation period has expired. You
acknowledge and agree that if you wish to revoke this Agreement, you must do so
in writing to Xxxxxx Xxxxxx, A&P, Human Resources, 0 Xxxxxxx Xxxxx, Xxxxxxxx, XX
00000, and that such revocation must be signed by you and postmarked, or
received by A&P, no later than the seventh day after the date on which you
signed this Agreement. You acknowledge and agree that, in the event that you
revoke this Agreement, you shall have no right to receive the Units described
above.
Very truly yours,
By: _____________________________
XXXXX XXXXXXXX
Senior Vice President, Human Resources, Labor Relations and
Legal Services
Agreed and accepted:
By: ______________________________________
Signature
Print Name: ______________________________
Date: ____________________________________
