EXHIBIT 99.1
------------
SEPARATION AGREEMENT
AGREEMENT made this ____ day of _______, ____ (hereinafter referred to
as the "Agreement"), by and between XXXXX X. XXXXXX, Senior Vice President -
Finance (hereinafter referred to as "Xxxxxx"), and THE PENN TRAFFIC CO., INC.
(hereinafter referred to as "Penn Traffic" or the "Company").
W I T N E S S E T H :
WHEREAS, Xxxxxx has been employed as Senior Vice President -- Finance
and
WHEREAS, the Company and Xxxxxx now desire to end the employment
relationship and the parties wish to resolve amicably all outstanding issues,
rights and obligations by and between them and to embody those understandings
in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
representations, promises and obligations herein contained, the parties hereto
agree as follows:
1. (a) The parties agree that Xxxxxx has resigned his
employment with the Company on January 26, 2007 (the "Resignation Date") and
that Xxxxxx has resigned as an officer of the Company and its subsidiaries, to
the extent he held such positions. The Company agrees to continue to pay Xxxxxx
an amount equal to fifty-two weeks of his base salary at the current rate (the
"Severance Payment"), less deductions, on the Company's regular pay days. The
Severance Payment shall be paid in equal installments over a fifty-two week
period commencing after the expiration of the Revocation Period set forth
below.
(b) Throughout the fifty-two week severance period, the Company
shall also continue to provide Xxxxxx all other benefits that he would be
entitled to as an employee, including, but not limited to, group health
insurance, life insurance, and 401(k) contributions, as set forth in the
Company's Severance Policy, a copy of which is appended hereto as Exhibit A.
(c) In the event of (i) the sale of all the shares of the common
stock of the Company, (ii) the merger or other business combination of the
Company with or into another entity with the Company not the surviving entity,
(iii) the sale of all or substantially all of the assets of the Company, or
(iv) the discontinuance of the business of the Company for whatever reason, the
remaining weekly payments due Xxxxxx shall immediately become due and payable
in a lump sum, with normal payroll deductions being withheld.
(d) The Company shall continue to cover Xxxxxx as a former officer
of the Company under the Company's Directors and Officers Liability Insurance
Policy and the indemnification provisions in the By-Laws of the Company, but
only to the extent provided in the Directors and Officers Liability Insurance
Policy and By-laws. The Company agrees to pay for the services of Xxxxxx in
connection with any government investigations, but only to the extent provided
in the Directors and Officers Liability Insurance Policy and By-laws.
2. During the fifty-two weeks following the Revocation Period,
Xxxxxx agrees he shall make himself available for consultation with the Company
by correspondence or telephone and, if necessary, by meetings at such times and
locations as may be reasonably requested by the Company. The total number of
hours of services to be provided by Xxxxxx shall not exceed 100 over the course
of the fifty-two week period, and no more than 10 hours in a given week. In the
event that Xxxxxx provides any services to the Company, he shall be paid one
hundred dollars ($100.00) per hour and shall be reimbursed for all reasonable
expenses.
3. As a condition of this Agreement and the payments provided for
in it, Xxxxxx will be required to maintain the confidentiality of business
information and trade secrets of the Company and its subsidiaries and
affiliates.
4. Xxxxxx represents that as of the Resignation Date, he will have
returned all property of the Company, including but not limited to, any
computers, telephones, documents, books, records (whether in electronic format
or hard copy), reports, files, correspondence, notebooks, manuals, notes,
specifications, mailing lists, credit cards and data in his possession or
control.
5. In consideration of the receipt of the Severance Payment, and
other benefits set forth herein and pursuant to the Company's Severance Policy,
Xxxxxx, for himself and for the executors and administrators of his estate, his
heirs, successors and assigns, hereby releases and forever discharges the
Company and its officers, directors, employees and stockholders and the
respective executors, administrators, heirs, successors and assigns of the
foregoing, from any and all claims, actions, causes of action, suits, sums of
money, debts, dues, accounts, reckonings, bonds, bills, covenants, contracts,
controversies, agreements, promises, demands or damages of any nature
whatsoever or by reason of any matter, cause or thing regardless of whether
known or unknown at present, which against the Company or any of its officers,
directors, employees or stockholders Xxxxxx ever had, now has or hereafter can,
shall or may have for, upon, or by reason of, any matter, cause or thing
whatsoever from the beginning of the world to the date hereof including, but
not limited to, any matter relating to or arising out of the employment of
Xxxxxx or resignation thereof under any contract, tort, federal, state or local
fair employment practices or civil rights law including, but not limited to,
Title VII of the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Older Workers
Benefits Protection Act, the federal Family and Medical Leave Act, the New York
State Human Rights Law, the New York City Human Rights Law, or any claim for
physical or emotional distress or injuries, or any other duty or obligation of
any kind or description, including any implied covenant of good faith and fair
dealing, implied contract of permanent employment or the tortious or willful
discharge of employment. The parties also agree that this Agreement does not
either affect the rights and responsibilities of the Equal Employment
Opportunity Commission to enforce the Age Discrimination in Employment Act, or
justify interfering with the protected right of an employee to file a charge or
participate in an investigation or proceeding conducted by the Equal Employment
Opportunity Commission under the Age Discrimination in Employment Act. In the
event the Equal Employment Opportunity Commission commences a proceeding
against the Company in which Xxxxxx is a named party, Xxxxxx agrees to waive
and forego any monetary claims which may be alleged by the Equal Employment
Opportunity Commission to be owed to Xxxxxx. The parties also agree that
nothing in the provisions of this paragraph is intended to limit their rights
under and concerning enforcement of this Agreement.
6. Xxxxxx agrees to keep confidential the terms of this Agreement
and not to disclose any term of this Agreement to any other person or entity,
except for Xxxxxx'x family, accountants and attorneys. In the event that Xxxxxx
is required by law to disclose any term of this Agreement, Xxxxxx agrees to
give the Company ten days' written notice prior to any such disclosure, or such
shorter time period as mandated by law or is otherwise practicable.
7. Xxxxxx shall not make any statements, either directly or
through other persons or entities, which are disparaging to the Company or any
of its affiliates, management, officers, directors, services, products,
operations, prospects or other matters relating to the Company's businesses.
The Company, through its officers and directors, shall not make any statements,
either directly or through other persons or entities, which are disparaging to
Xxxxxx.
8. The Company has advised Xxxxxx to consult with an attorney
prior to executing this Agreement. By executing this Agreement, Xxxxxx
acknowledges that (a) he has been provided an opportunity to consult with an
attorney or other advisor of his choice regarding the terms of this Agreement,
(b) this is a final offer and Xxxxxx has been given twenty-one (21) days in
which to consider whether he wishes to enter into this Agreement, (c) Xxxxxx
has elected to enter this Agreement knowingly and voluntarily and (d) if he
does so within fewer than twenty-one (21) days from receipt of the final
document he has knowingly and voluntarily waived the remaining time. The
Company reserves the right to change or revoke this Agreement prior to Xxxxxx'x
execution hereof. This Agreement shall be fully effective and binding upon all
parties hereto immediately upon execution of this Agreement except as to rights
or claims arising under the ADEA, in which case Xxxxxx has seven (7) days
following execution of this Agreement to change his mind (the "Revocation
Period").
9. In the event that any one or more of the provisions of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby. This Agreement will survive the termination of
any arrangements contained herein and is binding on and will inure to the
benefit of each of the parties and their respective affiliates, heirs,
executors, administrators, successors and assigns.
10. The parties agree that the provisions of the Company's
Severance Policy, a copy of which is appended hereto as Exhibit A, is made a
part of this Agreement.
11. This Agreement shall be governed by the substantive laws of the
State of New York, without giving effect to any principles of conflicts of law.
12. Each of the parties agrees to do and perform or cause to be
done and performed all further acts and shall execute and deliver all other
documents necessary on its part to carry out the intent and accomplish the
purposes of this Agreement and the transaction contemplated hereby.
IN WITNESS WHEREOF, the parties have each executed this Agreement as of
the date first written above.
THE PENN TRAFFIC CO., INC.
By:
-------------------
Xxx Xxxxxxx
-----------------------
Xxxxx X. Xxxxxx
