Exhibit 10
Separation and Release Agreement, dated as May 12,
2000, by and between Aaron Malinsky 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 May 12, 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 any of its subsidiaries,
effective the same date, and is an integral part of this
Agreement.
In return for your general release which is set forth below,
the Company will (a) provide you with salary continuation at your
current salary through May 11, 2001, (b) provide you and covered
members of your family with Company Executive Medical Health
benefits currently enjoyed by you (including the non-executive
prescription drug coverage) through May 11, 2001, and (c)
continue at its expense your life insurance coverage through the
annual term ending November 27, 2000; provided, however, that
such salary continuation and medical benefit coverage shall cease
immediately if you 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. Any COBRA entitlements will follow
thereafter. You acknowledge that, as per the provisions of its
terms, by resigning your employment, you forfeit the Restricted
Stock Grant of 20,000 shares dated as of July 14, 1998. Any
unexercised options (including but not limited to Stock
Appreciation Rights, Non-Qualified Stock Options and Incentive
Stock Options) are not affected by this Agreement and are
governed by the terms and conditions of the grants of such
options. Through July 15, 2000, you many continue to use the
Cadillac automobile (company car) which the company has made
available to you, at your own expense for operating costs and
ordinary maintenance and subject to the terms of the Company's
auto driver policy. On or before July 15, 2000 you will return
the company car to the Company. The provisions of this Agreement
exceed anything to which you are otherwise entitled by reason of
your having been employed by or separated from the Company prior
to execution of this Separation and Release Agreement (expressly
including without limitation an unexecuted, draft Employment
Agreement dated February 1, 2000, which is hereby revoked).
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 only
that you will provide reasonable cooperation in the defense
thereof and will 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 understand and
agree that is admitting 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
Legal Department, attention Mary Ellen Offer, Esq., The Great
Atlantic & Pacific Tea Company, Inc., 2 Paragon Drive, Montvale,
New Jersey 07645. 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: ____________________________ ________________________
LAURANE MAGLIARI AARON MALINSKY
Sr. Vice President,
People Resources & Services
Sworn to before me this
_____ day of _____________, 2000.
Dated: ___________________
______________________________
Notary Public