EXHIBIT 10.1
PATHMARK STORES, INC.
000 XXXXX XXXXXX
XXXXXXXX, XXX XXXXXX 00000
March 29, 2001
Xx. Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
RESTATED AND AMENDED EMPLOYMENT AGREEMENT
Dear Xx. Xxxxxx:
The following sets forth the agreement between Pathmark
Stores, Inc. (the "COMPANY") and you regarding the terms and provisions of your
employment as a director, officer and employee of the Company during the Term,
as restated as of September 19, 2000 (the "AGREEMENT"). Capitalized words which
are not otherwise defined herein shall have the meanings assigned to such words
in Section 7 of this Agreement. The parties hereto acknowledge and agree that
this Agreement is intended to amend, restate and supercede in its entirety the
employment agreement signed by you on November 6, 1996, as amended May 9, 1999
and July 1, 2000. The parties hereto further acknowledge that this Agreement and
the Sale and Retention Bonus Agreement dated February 1, 2000, as amended on
July 1, 2000, set forth the full and complete understanding between such parties
regarding your employment by the Company and shall supercede all other
agreements, whether written or oral, between the parties.
1. TERM OF EMPLOYMENT UNDER THE AGREEMENT. The Term of your
employment under this Agreement (the "TERM") shall commence on October 8, 1996
(the "EFFECTIVE DATE") and shall continue until October 8, 2005. For purposes of
this Agreement, "FISCAL YEAR" means the Company's fiscal year. Subject to the
provisions of Section 4 below, either party may terminate your employment under
this Agreement at any time.
2. EMPLOYMENT DURING THE TERM. During the Term, you shall be
employed as the Chairman, President and Chief Executive Officer of the Company
and shall report directly to the Board of Directors of the Company (the
"BOARD"), and your duties and responsibilities to the Company shall be
consistent in all respects with such positions. During the Term, the Company
will take all reasonable steps to assure that you continue to be elected or
appointed to the Board. You shall devote substantially all of your business
time, attention, skills and efforts exclusively to the business and affairs of
the Company, other than DE MINIMIS amounts of time devoted by you to the
management of your personal finances or to engaging in charitable or community
services. Your principal place of employment shall be the executive offices of
the Company as established from time to time, although you understand and agree
that you will be required to travel from time to time for business purposes.
3. Compensation During the Term.
(a) BASE SALARY. As compensation to you for all services
rendered to the Company, the Company will pay you a base salary (the "SALARY")
at the rate of (i) $600,000 per annum through the first quarter of Fiscal 2001,
and (ii) $700,000 per annum thereafter, which will be reviewed annually by the
Board and may be increased but not decreased by the Board on the basis of such
review. Your Salary will be paid to you in accordance with the Company's regular
payroll practices applicable to its executive officers.
(b) ANNUAL BONUS. During the Term, you shall be eligible to
participate in the Company's Executive Incentive Plan (the "EIP"). Under the
EIP, for each full twelve-month Fiscal Year occurring during the Term, you will
be eligible to earn an annual bonus (the "ANNUAL BONUS") of up to 125% of your
Salary paid (including deferrals pursuant to subparagraph 3(c)(i) hereof) to you
on account of such Fiscal Year, based on targets set by the Compensation
Committee of the Board for your Annual Bonus for such Fiscal Year. The target
for your Annual Bonus for any partial Fiscal Year occurring during the Term
shall be prorated by multiplying the target by a fraction (not greater than
one), the numerator of which shall be the number of days in such Fiscal Year
occurring during the Term and the denominator of which shall be 365.
Notwithstanding the foregoing, the minimum Annual Bonus paid to you for the
partial Fiscal Year that includes the Effective Date shall be $175,000 and the
minimum annual bonus for the first full Fiscal Year during the Term shall be
$425,000. Annual Bonus payments for each of the remaining full Fiscal Years
during the Term will not be less than 25% of the Salary paid to you for such
Fiscal Year. The Annual Bonus earned by you for any Fiscal Year will be paid to
you within 120 days following the end of such Fiscal Year.
(c) DEFERRAL ARRANGEMENT. (i) RIGHT TO DEFER. You will be
permitted to defer some or all the Annual Bonus and up to 50% of the Salary
payable to you hereunder. Any deferral of an Annual Bonus shall be irrevocable
and must be requested by you in writing prior to the start of the Fiscal Year to
which such Annual Bonus relates (except that any deferral election for the
Fiscal Year that includes the Effective Date may be made within thirty (30) days
following the Effective Date). Any deferral of Salary shall be irrevocable and
must be requested by you in writing prior to the start of the calendar year to
which such Salary relates (except that the deferral election for the calendar
year that includes the Effective Date may be made within thirty (30) days
following the Effective Date, but will relate only to amounts payable after the
election is received by the Company). An election for a given Fiscal Year or
calendar year shall be deemed a continuing election for each subsequent Fiscal
Year or calendar year, as the case may be, unless a subsequent election to defer
(or not to defer) is provided to the Company by you prior to the start of such
Fiscal Year or calendar year.
(ii) BOOKKEEPING ACCOUNT AND GRANTOR TRUST. Any amounts
deferred by you hereunder will be credited to a bookkeeping account established
on the books and records of the Company for this purpose. In addition, the
Company will deposit in a separate, irrevocable grantor trust established by the
Company an amount in cash equal to the amounts deferred by you. Such amounts
will be deposited in the trust within thirty (30) days following the date such
amount would otherwise have been payable to you but for the deferral election.
In connection with the deferral election, you shall have the right to specify
general investment categories for the investment of the amounts deposited in the
trust, and the Company shall cause the trustee to invest the assets of the trust
in one or more publicly-traded mutual funds, government securities,
or other similar investment vehicles corresponding to the investment categories
selected by you. Thereafter the value of your account with the Company will be
adjusted to reflect income, gains and losses on the assets of the trust. The
parties hereto agree that to the extent that any investment vehicle that you
select results in a loss to the bookkeeping account, the Company will have no
obligation to compensate you for such loss or to make any compensatory
adjustment to the bookkeeping account to make up for such loss.
(iii) DISTRIBUTIONS. The timing of the payment of all amounts
deferred by you shall be specified in your initial deferral election and may not
be subsequently changed by you without the prior written approval of the Board.
Your initial deferral may specify a lump sum payment or up to five (5) annual
installment payments to be paid out in their entirety by no later than the sixth
anniversary of the Date of Termination; PROVIDED, HOWEVER, that, notwithstanding
your deferral election, all amounts will be paid to you within thirty (30) days
following a Change in Control or the date of your Involuntary Termination.
(d) BENEFITS. During the Term, you shall be eligible to
participate in each pension, welfare and fringe benefit program made available
generally to executives of the Company in accordance with the terms and
provisions of each such program; PROVIDED, HOWEVER, that the Company shall not
be obligated to provide any supplemental retirement plan or any similar
arrangement to you. In addition, the Company will provide you with (i) a company
car and (ii) $4.5 million in term life insurance during the first twelve (12)
months of the Term and $3.2 million of life insurance thereafter during the
Term, subject to your insurability. In the event that such life insurance is not
available to the Company, you will be provided with an alternative arrangement
which will provide amounts equal to the benefits contemplated herein, the
details of which will be negotiated between you and the Company in good faith.
The Company will also provide you with relocation benefits in accordance with
its current policies for executive employees; PROVIDED, HOWEVER, that the
Company will have no obligation to purchase your current residence.
(e) BUSINESS EXPENSES. The Company will reimburse you upon
presentation by you of appropriate documentation for business expenses
reasonably incurred by you in connection with the performance of your duties
under this Agreement.
4. Effect of Termination of Employment.
(a) INVOLUNTARY TERMINATION. (i) Subject to Sections 4(f) and
4(g) below, in the event of your Involuntary Termination, the Company shall pay
you (w) the full amount of the accrued but unpaid Salary you have earned through
the date of such Involuntary Termination, plus a cash payment (calculated on the
basis of your rate of Salary then in effect) for all unused vacation time which
you may have accrued as of the date of Involuntary Termination; (x) the amount
of any earned but unpaid Annual Bonus for any Fiscal Year of the Company ended
on or prior to the Date of Termination; (y) any unpaid reimbursement for
business expenses you are entitled to receive under Section 3(e) above; and (z)
a Severance Amount equal to four times your annual rate of Salary, based upon
the annual rate then in effect immediately prior to the Date of Termination,
payable in monthly installments over the Severance Period.
(ii) In the event of your Involuntary Termination, you and
your eligible dependents shall continue to be eligible to participate during the
Benefit Continuation Period in the medical, dental, health and life insurance
plans applicable to you immediately prior to your Involuntary Termination on the
same terms and conditions in effect for you and your dependents immediately
prior to such Involuntary Termination.
(iii) Except as otherwise provided in this Section 4(a) or the
provisions of any employee benefit plan in which you are a participant, in the
event of your Involuntary Termination, as of the Date of Termination, you will
relinquish the right to any additional payments or benefits from the Company
under this Agreement or otherwise.
(b) TERMINATION EVENT. In the event your employment ends at
any time during the Term as a result of a Termination Event, the Company shall
pay you the full amount of the accrued but unpaid Salary you have earned through
the Date of Termination, plus a cash payment (calculated on the basis of your
rate of Salary then in effect) for all unused vacation time which you may have
accrued as of the Date of Termination and any unpaid reimbursement for business
expenses you are entitled to receive under Section 3(e) above. In addition, the
Company shall pay you the amount of any earned but unpaid Annual Bonus for any
Fiscal Year of the Company ended on or prior to the Date of Termination. In
addition, you shall immediately relinquish the right to any other payments or
benefits from the Company under this Agreement or otherwise, except with respect
to any employee benefit plan that provides otherwise.
(c) DEATH OR DISABILITY. If your employment with the Company
ends as a result of your death or Disability during the Term, the Company shall
pay you (or, in the event of your death, your Beneficiary) the full amount of
the accrued but unpaid Salary you have earned through the Date of Termination,
plus a cash payment (calculated on the basis of your rate of Salary then in
effect) for all unused vacation time which you may have accrued as of the Date
of Termination and any unpaid reimbursement for business expenses you are
entitled to receive under Section 3(e) above. In addition, the Company shall pay
you the amount of any earned but unpaid Annual Bonus for any Fiscal Year of the
Company ended on or prior to the Date of Termination. Except as otherwise
provided in this Section 4(c) or the provisions of any employee benefit plan in
which you are a participant, as of the Date of Termination, you will relinquish
the right to any additional payments or benefits from the Company under this
Agreement or otherwise.
(d) RESIGNATION AFTER A CHANGE IN CONTROL. During the
thirty-day period beginning six (6) months after a Change in Control, you shall
be eligible to resign from the Company for no stated reason and receive the
Severance Amounts, benefits and consideration described in Section 4(a) above.
Any such resignation by you in such thirty-day period following a Change in
Control shall be treated as an Involuntary Termination for all purposes of this
Agreement.
(e) DATE AND NOTICE OF TERMINATION. Any termination of your
employment by the Company or by you during the Term shall be communicated by a
notice of termination to the other party hereto (the "NOTICE OF TERMINATION").
The Notice of Termination shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of your employment
under the provision so indicated. The date of your termination of employment
with the Company (the "DATE OF TERMINATION") shall be determined as follows: (i)
if your employment is terminated for Disability, thirty (30) days after a Notice
of Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such thirty-day period); (ii) if
your employment is terminated by the Company in an Involuntary Termination, the
date specified in the Notice of Termination (or if no date is specified in the
Notice of Termination, the date the Notice of Termination is delivered to you);
and (iii) if your employment is terminated by the Company for Cause, the later
of (x) the date specified in the Notice of Termination and (y) the expiration of
the applicable period set forth in the definition of Cause during which you may
effect a cure or meet with the Board if such period expires without such cure
being effected by you and without a reversal on the part of the Board regarding
its decision to terminate you for Cause. If the basis for your Involuntary
Termination is your resignation for Good Reason (which shall include your
resignation for any reason or no stated reason after a Change in Control
pursuant to Section 4(d) above), the Date of Termination shall be the later of
(x) the date specified in the Notice of Termination and (y) the expiration of
the applicable cure period set forth in the definition of Good Reason if such
period expires without such cure being effected by the Company (it being
understood that no cure period shall apply if your resignation is pursuant to
Section 4(d) above). The Date of Termination for a resignation of employment
other than for Good Reason shall be the date set forth in the applicable notice,
which shall be no earlier than thirty (30) days after the date such notice is
received by the Company. The Date of Termination in the event of your death
shall be the date of your death.
(f) MITIGATION. You will have no duty to mitigate the
Severance Amount. Notwithstanding the previous sentence, any Severance Amount
payable during the second year of the Severance Period will be reduced by any
compensation or benefits you earn in connection with any employment by another
employer during the second year of the Severance Period. You agree promptly to
provide the Company with any evidence of amounts received in connection with
such other employment which the Company shall reasonably request.
(g) BREACH OF PROTECTIVE COVENANTS. If, following the
Effective Date, you breach any of the provisions of Section 5(a), 5(b) or 5(c)
below, you shall not be eligible, as of the date of such breach, for any
Severance Amount, and all obligations of the Company to pay any Severance Amount
hereunder shall thereupon cease.
(h) D&O LIABILITY INSURANCE. As of the Plan Effective Date,
the Company shall purchase a six-year "tail" on its directors and liability
insurance policy.
5. Protective Covenants.
(a) NO COMPETING EMPLOYMENT. During the Restricted Period, you
shall not, without the prior written consent of the Board, directly or
indirectly, whether as owner, consultant, employee, partner, venturer, or agent,
through stock ownership, investment of capital, lending of money or property,
rendering of services, or otherwise (except ownership of less than 5% of the
number of shares outstanding of any securities which are publicly traded),
compete with the retail supermarket business, or any other business contributing
at least 15% of the consolidated revenues, of the Company or any parent or
subsidiary of the Company (such businesses are hereinafter referred to as the
"BUSINESS"), provide services to, whether as an employee or consultant, own,
manage, operate, control, participate in or be connected with (as a
stockholder, partner, or any similar ownership interest) any corporation, firm,
partnership, joint venture, sole proprietorship or other entity which so
competes with the Business, except for the aforementioned 5% ownership of
publicly traded securities. The restrictions imposed by this Section 5(a) shall
not apply to any geographic area in which the Company, its parent or its
subsidiaries are not engaged in the Business at the Date of Termination.
(b) NO SOLICITATION OF EMPLOYEES AND CERTAIN OTHER PERSONS.
During the Restricted Period, you shall not, without the prior written consent
of the Board, directly or indirectly (i) solicit in competition with the
Business any person, group or class of persons who at any time either during the
Term or during the Restricted Period have any business relationship with the
Business, the loss, diminution or moderation of which would likely be
detrimental to the Business; (ii) solicit or recruit, directly or indirectly,
any employee or independent contractor of the Company for the purpose of being
employed by you, directly or indirectly, or by any competitor of the Company on
behalf of which you are acting as an agent, representative or employee; (iii)
solicit, influence, or attempt to influence, for a purpose or in a manner that
would likely be materially detrimental to the Business, any provider of services
or products to the Business with respect to its relationship with the Business,
including, without limitation, any person or entity which has been a provider of
services or products to the Business during the Executive's employment with the
Company, or take any action detrimental to the existing or prospective
relationships between the Business and any provider of services; or (iv) assist
or encourage any other person in carrying out, directly or indirectly, any
activity that would be prohibited by the provisions of this Section 5(b) if such
activity were carried out by you, and, in particular, you agree that you will
not, directly or indirectly, induce any employee of the Business to carry out
any such activity.
(c) CONFIDENTIALITY. You recognize that the services you
perform for the Company are special, unique and extraordinary in that you may
acquire confidential information and trade secrets concerning the operations of
the Company, its parent and its subsidiaries, the use or disclosure of which
could cause the Company substantial loss and damages which could not be readily
calculated, and for which no remedy at law would be adequate. Accordingly, you
covenant and agree with the Company that you will not at any time, except in
performance of your obligations to the Company hereunder or with the prior
written consent of the Board, directly or indirectly, disclose any secret or
confidential information that you may learn by reason of your association with
the Company. The term "CONFIDENTIAL INFORMATION" includes, without limitation,
information not previously disclosed to the public or to the trade by the
Company's management with respect to the Company or any of its parent's or
subsidiaries' business plans, prospects and opportunities, the identity of any
suppliers, proprietary information regarding customers, operational strengths
and weaknesses, trade secrets, know-how and other intellectual property,
systems, procedures, manuals, confidential reports, product price lists,
marketing plans or strategies, and financial information. You understand and
agree that the rights and obligations set forth in this Section 5(c) are
perpetual and, in any case, shall extend beyond the Restricted Period and the
Severance Period.
(d) INJUNCTIVE RELIEF. Without limiting the remedies available
to the Company, you acknowledge that a breach of any of the covenants contained
in this Section 5 may result in material irreparable injury to the Company for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach or threat thereof, the Company shall be entitled to obtain a temporary
restraining order or a preliminary or permanent injunction restraining you from
engaging in activities prohibited by this Section 5 or such other relief as may
be required to specifically enforce any of the covenants in this Section 5.
6. Successors; Binding Agreement.
(a) ASSUMPTION BY SUCCESSOR. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company
expressly to assume and to agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession had taken place; PROVIDED, HOWEVER, that no such assumption
shall relieve the Company of its obligations hereunder.
(b) ENFORCEABILITY; BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of you (and your personal representatives
and heirs) and the Company and any organization which succeeds to substantially
all of the business or assets of the Company, whether by means of merger,
consolidation, acquisition of all or substantially all of the assets of the
Company or otherwise, including, without limitation, as a result of a Change in
Control or by operation of law.
7. DEFINITIONS. For purposes of this Agreement, the following
capitalized words shall have the meanings set forth below:
"AFFILIATE" means, with respect to any Person, any other
entity which (i) is a Subsidiary of such Person, (ii) is, directly or
indirectly, under common control with such Person, or (iii) is, directly or
indirectly, controlling such Person.
"BENEFICIARY" shall mean the person or persons designated by
you in writing to receive any benefits payable to you hereunder in the event of
your death or, if no such persons are so designated, your estate. No Beneficiary
designation shall be effective unless it is in writing and received by the
Company prior to the date of your death.
"BENEFIT CONTINUATION PERIOD" shall mean, in connection with
your Involuntary Termination, the period beginning on the Date of Termination
and ending on the earliest to occur of (i) the end of the Severance Period, (ii)
the date you are eligible to be covered under the benefit plans of a subsequent
employer and (iii) the date of your breach of any provision of Section 5 hereof.
"CAUSE" shall mean the termination of your employment with the
Company because of (i) your willful and repeated failure (other than by reason
of incapacity due to physical or mental illness) to perform the material duties
of your employment with the Company after notice from the Company of such
failure and your inability or unwillingness to correct such failure within
thirty (30) days of such notice, (ii) your conviction of a felony or your plea
of no contest to a felony, or (iii) perpetration by you of a material dishonest
act or fraud against the Company or any parent or subsidiary thereof; PROVIDED,
HOWEVER, that, before the Company may terminate you for Cause, the Board shall
deliver to you a written notice of the Company's intent to terminate you for
Cause, including the reasons for such termination, and the Company must
provide you, and your legal counsel, an opportunity to meet once with the Board
prior to such termination.
A "CHANGE IN CONTROL" shall be deemed to have occurred on or
after the Plan Effective Date on the date that any of the following shall have
occurred:
(i) the acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act of
35% or more of the Common Stock then outstanding, and the individuals
who, as of the Plan Effective Date, constitute the Board and
subsequently elected members of the Board whose election is approved or
recommended by at least a majority of such current members or their
successors whose election was so approved or recommended (other than
any subsequently elected members whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board) cease for any reason to constitute at
least a majority of such Board; PROVIDED, HOWEVER, that in no event
shall a Change in Control be deemed to have occurred upon any such
acquisition by (A) any employee benefit plan of the Company, (B) any
Person or entity organized, appointed or established by the Company for
or pursuant to the terms of any such employee benefit plan, or (C) any
Person (other than any of Fidelity Management & Research Company or
Fidelity Management Trust Company or by any fund or account associated
with either Fidelity Management & Research Company or Fidelity
Management Trust Company) who as of the Plan Effective Date was the
beneficial owner of 15% or more of the shares of Common Stock
outstanding on such date unless and until such Person, together with
all Affiliates of such Person, becomes the beneficial owner of 35% or
more of the shares of Common Stock then outstanding whereupon a Change
in Control shall be deemed to have occurred;
(ii) the Company enters into a binding agreement with one or
more Persons to directly acquire, in exchange for cash, stock, claims
or property, 50% or more of the aggregate equity securities of the
Company; or
(iii) the Company enters into a binding agreement providing
for a merger, consolidation, reorganization or other business
combination upon consummation of which one or more Persons would own or
control 50% or more of either (A) the aggregate voting securities of
the Company, or (B) the aggregate value of the assets of the Company.
"COMMON STOCK" shall mean common stock of the Company.
"DISABILITY" shall mean your absence from continuous full-time
employment with the Company for a period of at least 180 consecutive days by
reason of a mental or physical illness.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"GOOD REASON" shall mean your resignation because of (i) the
failure of the Company to pay any material amount of compensation to you when
due, (ii) a material, adverse reduction or material, adverse diminution in your
titles, duties, positions or responsibilities with the Company, including, but
not limited to, failure by the Company to elect you to the office of Chief
Executive Officer, or (iii) any other material breach by the Company of the
Agreement (including a rejection or termination of the Agreement by the Company
pursuant to any provision or section of the federal bankruptcy laws of the
United States). In order to constitute Good Reason, you must provide written
notification of your intention to resign within thirty (30) business days after
you know or have reason to know of the occurrence of any such event. After you
provide such written notice to the Company, the Company shall have fifteen (15)
days from the date of receipt of such notice to effect a cure of the condition
constituting Good Reason, and, upon cure thereof by the Company (which cure
shall be retroactive with respect to any monetary matter), such event shall no
longer constitute Good Reason.
"INVOLUNTARY TERMINATION" shall mean (i) your termination of
employment by the Company other than for Cause or Disability or (ii) your
resignation of employment with the Company for Good Reason.
"PERSON" shall mean any person, entity or "group" within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, except that
such term shall not include (i) the Company or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) an entity owned,
directly or indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
"PLAN EFFECTIVE DATE" shall mean September 19, 2000, the
effective date of the judicial consent to the Joint Prepackaged Chapter 11 Plan
of Reorganization.
"RESTRICTED PERIOD" shall mean the period beginning on the
Effective Date and ending on the second anniversary of the Date of Termination;
PROVIDED, HOWEVER, that, in the event of a Change in Control, the Restricted
Period shall end upon the later to occur of (i) the Termination Date and (ii)
the date of the Change in Control.
"SEVERANCE AMOUNT" shall mean the cash amounts payable under
Section 4(a)(i)(z).
"SEVERANCE PERIOD" shall mean, in the event of an Involuntary
Termination, the 24-month period commencing on the Date of Termination.
"SUBSIDIARY" shall mean with respect to any Person, any entity
of which:
(i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, collectively or
individually, by such Person or by one or more Affiliates of such Person, and
(ii) if a partnership, association, limited liability company
or other entity, a majority of the partnership, membership or other
similar ownership interest thereof is at the time of determination
owned or controlled, directly or indirectly, collectively or
individually, by such Person or by one or more Affiliates of such
Person.
"TERM SHEET" shall mean the initial agreement to the terms of
employment between the Company and you, dated as of October 2, 1996.
"TERMINATION EVENT" shall mean your resignation without Good
Reason or a termination by the Company for Cause.
8. NOTICE. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand, sent by
telecopier or mailed by United States registered mail, return receipt requested,
postage prepaid, addressed to Corporate Secretary, Pathmark Stores, Inc., 000
Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000., telecopier: (000) 000-0000, with a
copy to the General Counsel of the Company, or to you at the address set forth
on the first page of this Agreement or to such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
9. Miscellaneous.
(a) NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Agreement
nor any of the rights or benefits evidenced hereby shall confer upon you any
right to continuance of employment by the Company or interfere in any way with
the right of the Company to terminate your employment, subject to the provisions
of Section 4 above, for any reason, with or without Cause.
(b) AMENDMENTS, WAIVERS, ETC. No provision of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing by the parties hereto. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement, and this Agreement shall supersede all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, with respect to the subject matter hereof, including,
without limitation, the Term Sheet.
(c) VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
(d) REPRESENTATION. You hereby represent and warrant to the
Company that the execution and delivery by you of this Agreement to the Company
will not breach the terms of any contract, agreement or understanding to which
you are a party. You further acknowledge
and agree that a breach of this representation by you shall render this
Agreement void AB INITIO and of no further force and effect.
(e) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(f) WITHHOLDING. Amounts paid to you hereunder shall be
subject to all applicable federal, state and local wage withholdings.
(g) SOURCE OF PAYMENTS. All payments provided under this
Agreement (other than payments made pursuant to a plan which provides otherwise
or as otherwise expressly provided hereunder) shall be paid in cash from the
general funds of the Company, and no special or separate fund shall be
established, and no other segregation of assets made, to assure payment. You
will have no right, title or interest whatsoever in or to any investments which
the Company may make to aid it in meeting its obligations hereunder. To the
extent that any person acquires a right to receive payments from the Company
hereunder, such right shall be no greater than the right of an unsecured
creditor of the Company.
(h) HEADINGS. The headings contained in this Agreement are
intended solely for convenience of reference and shall not affect the rights of
the parties to this Agreement.
(i) GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
New Jersey applicable to contracts entered into and performed in such state.
If this letter sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this letter,
which will then constitute our agreement on this subject.
Sincerely,
PATHMARK STORES, INC.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
Acknowledged and Agreed as of this 29th day of March, 2001
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
