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Re: Amendment
to Employment Agreement
This document
constitutes an amendment of the Employment Agreement between The
Great Atlantic & Pacific Tea Company, Inc. (the
“Company”) and you dated _______________ (the
“Agreement”). 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.
1
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 the Company, any subsidiary of the
Company, or Tengelmann Warenhandelgesellschaft KG (a partnership
organized under the laws of the Federal Republic of
German
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