ap8k_012710.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________________
FORM
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities
Exchange
Act of 1934
January
22, 2010
Date of
Report (Date of earliest event reported)
THE
GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
(Exact
name of registrant as specified in its charter)
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Maryland
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1-4141
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13-1890974
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(State
or other jurisdiction of
incorporation
or organization)
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(Commission
file number)
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(I.R.S.
Employer
Identification
No.)
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Two
Paragon Drive
Montvale,
New Jersey 07645
(Address
of principal executive offices)
(201)
573-9700
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item
5.02(c). Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
January 27, 2010, The Great Atlantic & Pacific Tea Company, Inc. (the
“Company”) issued a press release announcing that the Company had entered into
an Employment Agreement (the “Agreement”) with Ronald Marshall. A
copy of the press release is attached hereto as Exhibit 99.1.
Under the
Agreement, Mr. Marshall will serve as Chief Executive Officer and President of
the Company commencing as of February 8, 2010 and will report to the Board of
Directors of the Company. The Agreement provides for an employment
period ending on February 28, 2013 but subject to automatic 12-month extensions
unless either party gives written notice of non-extension at least 60 days in
advance of the otherwise applicable extension. The Company will pay
Mr. Marshall an annual base salary of $1,000,000. Mr. Marshall will
be eligible for an annual target bonus of at least 100% of base salary and a
maximum bonus opportunity of at least 200% of base salary, and will receive an
annual bonus of no less than $1,000,000 for the first full fiscal year of the
Company falling within his employment period. Mr. Marshall will
receive an inducement grant under the Company’s 2008 Long-Term Incentive and
Share Award Plan on February 8, 2010 consisting of (i) time-vested
restricted stock units having a value of $1,000,000, vesting ¼ on the first
anniversary of the grant date and ¾ on the third anniversary of grant date and
(ii) stock options having a value of $1,000,000, becoming exercisable at the
rate of 1/3 on each of the three successive anniversaries of the grant
date. In addition, Mr. Marshall will receive a grant under the LTIP
for the Company’s fiscal year beginning in 2010 consisting of (i) time-vested
restricted stock units having a value of $1,333,333, vesting ¼ on the first
anniversary of the grant date and ¾ on the third anniversary of the grant date,
(ii) time-vested restricted stock units having a value of $444,444, vesting 100%
on the third anniversary of the grant date, (iii) performance-based restricted
stock units having a value of $888,889, vesting 100% on the second anniversary
of the grant date subject to performance, and (iv) stock options having a value
of $1,333,333, becoming exercisable at the rate of 1/3 on each of the three
successive anniversaries of the grant date.
Under the
Agreement, if Mr. Marshall’s employment is terminated by the Company for
Performance (as defined in the Agreement) after March 1, 2012 or is terminated
as a result of the non-extension of the employment period by action of the
Company, he will be entitled (subject to execution of a release) to continue to
receive his base salary and medical benefits for 12 months. Also,
under the Agreement, if Mr. Marshall’s employment is terminated by the Company
other than for Performance after March 1, 2012, Cause or Permanent and Total
Disability (as such terms are defined in the Agreement) or Mr. Marshall
terminates his employment for Good Reason (as defined in the Agreement), he will
be entitled (subject to execution of a release) (i) to receive his base salary,
average annual bonus and medical, life insurance and long-term disability
benefits for 24 months, (ii) to receive a pro rata bonus for the year of
termination of employment, and (iii) to full vesting of the inducement award
described above. The Agreement provides for a gross-up payment if Mr.
Marshall is subject to the golden parachute excise tax, unless the excise tax
could be avoided by a cutback in benefits of $150,000 or less (in which case
such reduction would be made).
The
foregoing description of the Agreement is qualified in its entirety by reference
to the full text of the Agreement, filed as Exhibit 10.1 to this Form 8-K and
incorporated herein by reference.
Mr. Marshall,
age 54, served as President and Chief Executive Officer and a Director of
Borders Group, Inc. from January 2009 through January
2010. Mr. Marshall was Principal of Wildridge Capital
Management, a private equity firm that he founded in 2006. For eight
years prior to founding Wildridge Capital Management, he was Chief Executive
Officer of Nash Finch Company, a $5 billion food distribution and retail
organization. From 1994 to 1998, Mr. Marshall served as
Executive Vice President and Chief Financial Officer of Pathmark Stores, Inc., a
supermarket retailer. Prior to that, Mr. Marshall served in
senior management positions in a variety of retail companies, including Dart
Group Corporation’s Crown Books division and Barnes & Noble college
bookstores.
There are
no family relationships between Mr. Marshall and any of the Company’s
directors or officers.
(d) Exhibits. The
following exhibits are filed herewith:
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Exhibit No.
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Description
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10.1
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Employment
Agreement by and between The Great Atlantic & Pacific Tea Company,
Inc. and Ronald Marshall, dated as of January 22, 2010
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99.1
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Press
Release dated January 27, 2010: “The Great Atlantic & Pacific Tea
Company, Inc. Announces Appointment of Ron Marshall as President &
Chief Executive Officer effective February 8,
2010”
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
Dated: January
27, 2010
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THE
GREAT ATLANTIC & PACIFIC TEA
COMPANY,
INC.
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By: /s/ Christopher W.
McGarry
Name:
Christopher W. McGarry
Title: Senior
Vice President and General
Counsel
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