Exhibit 10.2
June 16, 2009
------------------------
c/o A&P
2 Paragon Drive
Montvale, NJ 07645
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.
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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 organiz
