Exhibit 10.2
June 16, 2009
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c/o A&P
0 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Amendment to Employment Agreement
Dear _____________________:
As you know, in December 2008, the Employment Agreement between The
Great Atlantic & Pacific Tea Company, Inc. (the "Company") and you dated
_________________ (the "Agreement") was amended in accordance with Paragraph 28
thereof to comply with Section 409A of the Internal Revenue Code of 1986. A
clarification to the amended Section 12 appears below to keep the Change of
Control definition consistent with the original language and intent, except for
the modification required by Section 409A
Capitalized terms that are not otherwise defined in this document shall have the
meanings set forth in the Agreement.
1. Section 7.2 is hereby amended by deleting the third sentence in its entirety
and replacing it with the following sentence: For purposes of this Agreement,
the Employee shall be considered to have incurred a Permanent and Total
Disability if she becomes disabled within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder.
2. Section 7.3(c) is hereby amended by adding the following sentence at the end
of the section: The commencement of payments pursuant to this Section shall be
subject to Section 22 of this Agreement.
3. Section 10(c) is hereby amended by adding the following sentence at the end
of the section: The commencement of payments pursuant to this Section shall be
subject to Section 22 of this Agreement.
4. Section 10(d) is hereby amended by deleting the last sentence in its entirety
and replacing it with the following sentence: Subject to Section 22 of this
Agreement, such payment shall be made on the date on which bonuses for the
applicable fiscal year are paid to executives of the Company generally under the
Company's annual management incentive bonus plan, and the Employee shall have no
right to any further bonuses under said plan.
5. Section 11(c) is hereby amended by deleting the last sentence in its entirety
and replacing it with the following sentences: Such severance benefit shall be
paid in a lump sum on such date as shall be determined by the Company in its
discretion but no later than 45 days after the date of such termination of
employment. Any payment pursuant to this Section shall be subject to Section 22
of this Agreement.
6. Section 11(d) is hereby amended by deleting the last sentence in its entirety
and replacing it with the following sentence: Subject to Section 22 of this
Agreement, such payment shall be made on the date on which bonuses for the
applicable fiscal year are paid to executives of the Company generally under the
Company's annual management incentive bonus plan, and the Employee shall have no
right to any further bonuses under said plan.
7. Section 12 is hereby amended by deleting the definition of "Change of
Control" in its entirety and replacing it with the following: For purposes of
this Agreement, a "Change of Control" shall mean a change in the effective
control of the Company, or a change in the ownership of a substantial portion of
the assets of the Company, within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder; provided,
however, that a Change of Control shall not occur where (i) the Company, any
subsidiary of the Company, or Tengelmann Warenhandelgesellschaft KG (a
partnership organized under the laws of the Federal Republic of Germany or any
successor to such partnership (with its affiliates, "Tengelmann")) acquires
effective control of the Company, or acquires additional control of the Company
after having acquired effective control of the Company, or acquires ownership of
a substantial portion of the assets of the Company or (ii) the acquisition of
voting power would otherwise constitute a change in effective control of the
Company but such voting power does not exceed the then-current voting power of
Tengelmann, all within the meaning of Section 409A of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder.
8. Section 19 is hereby amended by adding the following as 19(e): Anything in
this Section 19 to the contrary notwithstanding, the Gross-Up Payments shall be
made no later than the end of the calendar year next following the calendar year
in which the Employee remits the related taxes.
9. Section 22 is hereby amended by deleting the section in its entirety and
replacing it with the following:
22. Compliance with IRC Section 409A.
In the event that it shall be determined that any payments or benefits
under this Agreement constitute nonqualified deferred compensation covered by
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), for
which no exemption under Code Section 409A or the regulations thereunder is
available ("Covered Deferred Compensation"), then notwithstanding anything in
this Agreement to the contrary, (i) if the Employee is a "specified employee"
(within the meaning of Code Section 409A and the regulations thereunder and as
determined by the Company in accordance with said Section 409A) at the time of
the Employee's separation from service (as defined below), the payment of any
such Covered Deferred Compensation payable on account of such separation from
service shall be made no earlier than the date which is 6 months after the date
of the Employee's separation from service (or, if earlier than the end of such
6-month period, the date of Employee's death) and (ii) the Employee shall be
deemed to have terminated from employment for purposes of this Agreement if and
only if the Employee has experienced a "separation from service" within the
meaning of said Section 409A and the regulations thereunder. To the extent any
payment of Covered Deferred Compensation is subject to the 6-month delay, such
payment shall be paid
immediately at the end of such 6-month period (or the date of death, if
earlier). Whenever payments under this Agreement are to be made in installments,
each such installment shall be deemed a separate payment for purposes of Code
Section 409A. The provisions of this Agreement relating to such Covered Deferred
Compensation shall be interpreted and operated consistently with the
requirements of Code Section 409A and the regulations thereunder. If it is found
by the IRS that this Agreement fails Code Section 409A in terms of written
documentary compliance, the Company will indemnify the Employee for any legal
and accounting costs, any taxes, interest and penalties, and any other
associated costs, that are related solely to the documentary non-compliance.
Except as set forth in the previous sentence, no other action or failure to act
pursuant to this Section 22 shall subject the Company to any claim, liability or
expense, and the Company shall have no obligation to indemnify or otherwise
protect Employee from the obligation to pay any taxes, interest or penalties
pursuant to Code Section 409A.
Anything in this Agreement to the contrary notwithstanding, any
reimbursements or in-kind benefits to which the Employee is entitled under this
Agreement (other than such reimbursements or benefits that are not taxable to
the Employee for federal income tax purposes or that are otherwise exempt from
coverage under Section 409A of the Code pursuant to said Section 409A and the
regulations thereunder) shall meet the following requirements: (i) the amount of
expenses eligible for reimbursement, or in-kind benefits provided, in one
calendar year may not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other calendar year (except that the Company's
medical plans may impose a limit on the amount that may be reimbursed or
provided), (ii) any reimbursement of an eligible expense must be made on or
before the last day of the calendar year following the calendar year in which
the expense was incurred, and (iii) the Employee's right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another
benefit.
10. Except as set forth above, the provisions of the Agreement remain in effect.
If the terms outlined above are acceptable, please sign below and
return to me an original executed copy of this letter agreement. Upon execution
of this letter agreement, the Executive Employment Agreement shall be amended in
accordance with Paragraph 28 thereof.
Sincerely,
The Great Atlantic & Pacific Tea Company, Inc.
By: ___________________________________
Xxxxx Xxxxxxxx, SVP Human Resources,
Labor Relations and Legal Services
Agreed to and accepted this ____ day of June, 2009.
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