Exhibit 10.4
This will confirm our understandings with respect to your resignation
from employment for Good Reason under your Employment Agreement (as hereinafter
defined), effective December 31, 2004 (your "Resignation Date"). Between now and
your Resignation Date, you will not be expected to be in the office except when
requested by the Company upon reasonable advance notice. As of your Resignation
Date, all rights, privileges and entitlements as an active employee cease,
subject only to the provisions hereinafter set forth.
The Company will satisfy its obligations as outlined in your Employment
Agreement made on November 1, 2000 and amended on April 30, 2002 (as so amended,
the "Employment Agreement"), specifically including but not limited to
Paragraphs 10 and 17, and you will satisfy your obligations thereunder. In
addition, in return for your release and other agreements set forth below, the
Company will provide you with the following:
o after your Resignation Date you will be paid for all unused 2004
vacation
o you will receive a payment in the gross amount of $30,000.00 within 30
days of your Resignation Date
o upon request, the Company will provide favorable references regarding
your employment
o all earned options will be vested immediately upon your
Resignation Date and you will have 3 years from your
Resignation Date to exercise vested options
o you will be permitted to purchase your Company laptop computer
and printer at their depreciated values, which shall not
exceed $1,400.00
o the Company will pay your state bar fees in all four states in
which you are admitted during the time you are
receiving severance payments
o when calculating your bonus payment pursuant to Paragraph
10(d) of the Employment Agreement, you will earn 100% of the
portion of your bonus that is attributable to the achievement
of personal performance objectives (which is 40% of your total
bonus)
o when calculating your monthly severance payment pursuant to
Paragraph 10(c) of the Employment Agreement, the amount of
$25,000.00 will first be added to the bonus payment amount you
received for fiscal year 2003
o if you are unemployed upon the expiration of the initial
18-month severance period, and if you have made bona fide
efforts to seek appropriate employment, you will receive
continued monthly severance payments, based solely on your
annual salary as of your Resignation Date, for an additional 6
months
o if you are unemployed upon the expiration of the additional
6-month period referenced in the preceding paragraph, and if
you have made bona fide efforts to seek appropriate
employment, you will receive continued monthly severance
payments, based solely on your annual salary as of your
Resignation Date, for an additional 6 months
Portions of this Separation and Release Agreement ("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 Agreement.
This Agreement shall not affect your rights, entitlements or claims pursuant to
the Company's pension, retirement and/or savings plans, or any claims under the
Employment Agreement.
The foregoing consideration is conditioned upon and 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 (the "Company") arising out of or related to your employment with and
resignation from the Company, 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; and 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, the Sarbanes-Oxley Act of 2002, each and every state or local
variation of these federal laws including without limitation the Maryland
Economic Stabilization Act (plant closing law), the Maryland Fair Employment
Practices Act, 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 other applicable federal, state, and
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 and the expiration of the
revocation period. 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.
As further and essential consideration for this Agreement you agree
that (1) you will fully comply with your obligations in Paragraphs 14 and 15 of
your Employment Agreement, (2) you will not disparage the Company, its
customers, operations or management, (3) you will keep strictly confidential the
terms and conditions of this Agreement, except that you are permitted to
disclose this Agreement and its terms to your spouse, attorney, accountant or
tax advisor so long as such person(s) recognizes the confidential nature of this
Agreement and you accept responsibility for any breach by any of them (4) while
you are receiving severance payments you will be available to the Company for
advice and support as reasonably requested and you will cooperate reasonably
with the Company in relation to matters in which you were involved while
employed or as to which you have insight or knowledge related to or arising from
your employment with the Company and (5) you have honestly served the Company
during your employment. Should you violate any of these covenants, you will
forfeit any remaining consideration from the Company under this Agreement and
will reimburse the Company for the gross amount of salary previously paid to you
hereunder.
Failure by the Company to enforce any particular provision(s) at any
time or in any instance shall not constitute a waiver of said provision.
Any unresolved dispute arising out of this Agreement shall be submitted
to arbitration in accordance with Paragraph 16 of the Employment Agreement.
This Agreement and the Employment Agreement contain and constitute the
full and complete understanding and agreement between you and the Company. There
are no other writings, nor are there any oral representations or understandings,
that reflect, add to, subtract from, or alter the terms of this document. You
further understand and agree that by entering into this Agreement the Company is
not admitting, and expressly denies, violating any legal right, duty or
entitlement. This Agreement shall not be amended or modified except by a writing
signed by the below signatories, or their successors.
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 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 Sheryl Martin, The Great Atlantic & Pacific
Tea Company, Inc., 90 Delaware Avenue, Paterson, NJ 07503. 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. Should you nonetheless pursue
litigation against the Company involving any matter covered and/or released
hereby, excepting only a suit to enforce an arbitrator's award, (i) you waive
any claim for a jury trial, (ii) 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 (iii) you shall be liable for the Company's costs
and attorneys' fees incidental to defending such legal action. The foregoing
covenant is inapplicable to the ADEA and OWBPA.
Finally, should any provision of this Agreement be found 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. Your acceptance of
this Agreement is equally on behalf of and binding upon your family, heirs,
successors and assigns.
If the foregoing is in accordance with our understanding and agreement,
please sign and return the enclosed counterpart original of this Agreement,
which shall evidence our binding agreement, to Sheryl Martin, The Great Atlantic
& Pacific Tea Company, Inc., 90 Delaware Avenue, Paterson, NJ 07503
THE GREAT ATLANTIC & PACIFIC TEA Agreed and Accepted:
COMPANY, INC.
By: ______________________________ ______________________________
MITCHELL P. GOLDSTEIN WILLIAM P. COSTANTINI
Dated: __________________, 2004.
Dated: ___________________
Sworn to before me this ____ day of
____________, 2004.
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Notary Public