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<SEC-DOCUMENT>0000043300-05-000023.txt : 20050510
<SEC-HEADER>0000043300-05-000023.hdr.sgml : 20050510
<ACCEPTANCE-DATETIME>20050510061426
ACCESSION NUMBER: 0000043300-05-000023
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 13
CONFORMED PERIOD OF REPORT: 20050226
FILED AS OF DATE: 20050510
DATE AS OF CHANGE: 20050510
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: GREAT ATLANTIC & PACIFIC TEA CO INC
CENTRAL INDEX KEY: 0000043300
STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411]
IRS NUMBER: 131890974
STATE OF INCORPORATION: MD
FISCAL YEAR END: 0226
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-04141
FILM NUMBER: 05813840
BUSINESS ADDRESS:
STREET 1: 2 PARAGON DR
CITY: MONTVALE
STATE: NJ
ZIP: 07645
BUSINESS PHONE: 2015739700
MAIL ADDRESS:
STREET 1: 2 PARAGON DRIVE
CITY: MONTVALE
STATE: NJ
ZIP: 07645
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>f10kfy2004.txt
<DESCRIPTION>FY 2004 FORM 10K - YEAR ENDED FEBRUARY 26, 2005
<TEXT>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended February 26, 2005
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to _____________
Commission file number 1-4141
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
----------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 13-1890974
- ------------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2 Paragon Drive
Montvale, New Jersey 07645
(Address of principal executive offices)
Registrant's telephone number, including area code: 201-573-9700
---------------------------------
Securities registered pursuant to Section 12 (b) of the Act:
Title of each class Name of each exchange on which registered
- ------------------- -----------------------------------------
Common Stock - $1 par value New York Stock Exchange
7.75% Notes, due April 15, 2007 New York Stock Exchange
9.125% Senior Notes, due
December 15, 2011 New York Stock Exchange
9.375% Notes, due August 1, 2039 New York Stock Exchange
Securities registered pursuant to Section 12 (g) of the Act: None
---------------------------------
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [ X ] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ X ]
Indicate by check mark whether the registrant is an accelerated filer
(as defined in Exchange Act Rule 12b-2). Yes [ X ] No [ ]
The aggregate market value of the voting stock held by non-affiliates
of the Registrant as of the close of business on September 10, 2004, the
registrant's most recently completed second fiscal quarter, was $258,099,276.
The number of shares of common stock outstanding as of the close of
business on May 5, 2005 was 38,963,530.
DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part I, Items 1 and 3, and Part II, Items
5, 6, 7, 7A, 8, 9A and 15 are incorporated by reference from the Registrant's
Fiscal 2004 Annual Report to Stockholders. The information required by Part II,
Items 10, 11, 12, 13, and 14 are incorporated by reference from the
Registrant's Proxy Statement.
<PAGE>
PART I
ITEM 1 - Business
General
- -------
The Great Atlantic & Pacific Tea Company, Inc. ("A&P", "we", "our",
"us" or "our Company") is engaged in the retail food business. We operated 647
stores averaging approximately 39,500 square feet per store as of February 26,
2005. In addition, we served as wholesaler to 42 franchise stores in Canada
averaging approximately 32,750 square feet per store as of February 26, 2005. On
the basis of reported sales for fiscal 2004, we believe that we are among North
America's largest retail food chains.
Operating under the trade names A&P(R), Super Fresh(R),
Sav-A-Center(R), Farmer Jack(R), Waldbaum's(TM), Super Foodmart, Ultra Food &
Drug, Dominion(R), Food Basics(R), The Barn Markets(R) and The Food Emporium(R),
we sell groceries, meats, fresh produce and other items commonly offered in
supermarkets. In addition, many stores have bakery, delicatessen, pharmacy,
floral, fresh fish and cheese departments and on-site banking. National,
regional and local brands are sold as well as private label merchandise. In
support of our retail operations, we sell other private label products in our
stores under other brand names of our Company which include without limitation,
America's Choice(R), Master Choice(R), Health Pride(R), Savings Plus and The
Farm.
Building upon a broad base of A&P supermarkets, our Company has
historically expanded and diversified within the retail food business through
the acquisition of other supermarket chains and the development of several
alternative store types. We now operate our stores with merchandise, pricing and
identities tailored to appeal to different segments of the market, including
buyers seeking gourmet and ethnic foods, a wide variety of premium quality
private label goods and health and beauty aids along with the array of
traditional grocery products.
The Company's Securities and Exchange Commission ("SEC") filings are
promptly posted to its website at www.aptea.com after they are filed with the
SEC and can be accessed free of charge through a link on the "Investors" page.
Modernization of Facilities
- ---------------------------
During fiscal 2004, we expended approximately $216 million for capital
projects, which included 24 new supermarkets and 18 major remodels or
enlargements. Our Company has planned capital expenditures of approximately $225
to $250 million in fiscal 2005. These expenditures relate primarily to opening
10 to 15 new supermarkets, converting 1 to 3 stores to new formats, and
enlarging or remodeling 100 - 110 supermarkets. In addition, we plan to continue
with at least similar levels of capital expenditures in fiscal 2006 and several
years thereafter.
Sources of Supply
- -----------------
Our Company obtains the merchandise sold in our stores from a variety
of suppliers located primarily in the United States and Canada. Our Company has
long-standing and satisfactory relationships with our suppliers.
<PAGE>
Employees
- ---------
As of February 26, 2005, we had approximately 73,000 employees, of
which 69% were employed on a part-time basis. Approximately 89% of our employees
are covered by union contracts.
Competition
- -----------
The supermarket business is highly competitive throughout the marketing
areas served by our Company and is generally characterized by low profit margins
on sales with earnings primarily dependent upon rapid inventory turnover,
effective cost controls and the ability to achieve high sales volume. We compete
for sales and store locations with a number of national and regional chains, as
well as with many independent and cooperative stores and markets.
Segment Information
- -------------------
The segment information required is contained under the caption "Note
14 - Operating Segments" in the Fiscal 2004 Annual Report to Stockholders and is
herein incorporated by reference.
Foreign Operations
- ------------------
The information required is contained under the captions "Management's
Discussion and Analysis", "Note 2 - Restatement of Previously Issued Financial
Statements", "Note 3 - Changes in Accounting Methods," "Note 4 - Valuation of
Goodwill and Long-Lived Assets", "Note 10 - Income Taxes", "Note 11 - Retirement
Plans and Benefits", "Note 13 - Commitments and Contingencies" and "Note 14 -
Operating Segments" in the Fiscal 2004 Annual Report to Stockholders and is
herein incorporated by reference.
ITEM 2 - Properties
At February 26, 2005, we owned 65 properties consisting of the
following:
Stores, Not Including Stores in Owned Shopping Centers
------------------------------------------------------
Land and building owned 16
Building owned and land leased 17
----
Total stores 33
Shopping Centers
----------------
Land and building owned 5
Building owned and land leased 3
----
Total shopping centers 8
Warehouses
----------
Land and building owned 6
<PAGE>
Administrative and Other Properties
-----------------------------------
Land and building owned 5
Building owned and land leased 3
Property under development - building owned and land leased 1
Property under development - land and building owned 1
Property under development - land only 2
Undeveloped land 6
----
Total other properties 18
----
Total Properties 65
====
At February 26, 2005, we operated 647 retail stores and serviced 42
franchised stores. These stores are geographically located as follows:
Company Stores:
--------------
New England States:
------------------
Connecticut 28
----
Total 28
Middle Atlantic States:
----------------------
District of Columbia 1
Delaware 9
Maryland 30
New Jersey 94
New York 136
Pennsylvania 25
----
Total 295
Midwestern States:
-----------------
Michigan 95
Ohio 6
----
Total 101
Southern States:
---------------
Louisiana 24
Mississippi 4
----
Total 28
----
Total United States 452
Ontario, Canada 195
----
Total Stores 647
====
Franchised Stores:
Ontario, Canada 42
----
Total Franchised Stores 42
====
The total area of all of our operated retail stores is 25.6 million
square feet averaging approximately 39,500 square feet per store. Excluding
liquor and The Food Emporium(R) stores, which are generally smaller in size, the
average store size is approximately 41,700 square feet. The total area of all
franchised stores is 1.4 million square feet averaging approximately 32,750
square feet per store. The 24 new stores opened in fiscal 2004 consisted of 24
supermarkets and range in size from 7,500 to 60,000 square feet, with an average
size of approximately 41,750 square feet. The stores built over the past several
years and those planned for fiscal 2005 and thereafter, generally range in size
from 40,000 to 60,000 square feet. The selling area of new stores is
approximately 72% of the total square footage.
<PAGE>
As of the end of fiscal 2004, we operated 12 warehouses to service our
store network. These warehouses are geographically located as follows:
Louisiana 1
Maryland 1
Michigan 2
New Jersey 1
New York 2
Pennsylvania 1
----
Total United States 8
Ontario, Canada 4
----
Total Warehouses 12
====
The net book value of real estate pledged as collateral for the
Company's $400 million Secured Revolving Credit Agreement amounted to $16.1
million as of February 26, 2005.
ITEM 3 - Legal Proceedings
The information required is contained under the caption "Note 13 -
Commitments and Contingencies" in the Fiscal 2004 Annual Report to Stockholders
and is herein incorporated by reference.
ITEM 4 - Submission of Matters to a Vote of Security Holders
There were no matters submitted to a vote of security holders during
the fourth quarter of fiscal 2004.
PART II
ITEM 5 - Market for the Registrant's Common Stock and Related Security Holder
Matters
The information required is contained under the captions "Summary of
Quarterly Results", "Five Year Summary of Selected Financial Data", and
"Stockholder Information" in the Fiscal 2004 Annual Report to Stockholders and
is herein incorporated by reference.
Our Company is prohibited, under the terms of our Revolving Credit
Agreement, from paying cash dividends on common shares. As such, we have not
made dividend payments in the previous three years and do not intend to pay
dividends in the normal course of business in fiscal 2005.
<PAGE>
Securities authorized for issuance under equity compensation plans are
summarized below:
<TABLE>
<CAPTION>
As of February 26, 2005
Weighted Average
Number of Exercise Price Number of
Securities of Outstanding Securities
to be Issued Options and Available to
Upon Exercises Rights Grant
----------------- ------------------ ------------------
<S> <C> <C> <C>
Plan Category
- -------------
1994 Stock Option Plan for officers and key employees 1,016,025** $ 15.43** - *
1998 Long Term Incentive and Share Award Plan 3,425,909 14.30 1,268,622
1994 Stock Option Plan for Board of Directors 34,700 17.95 65,167
----------------- --------------- ------------------
Total Options Outstanding as of February 26, 2005 4,476,634 $ 14.58** 1,333,789
================= ============== ==================
* On March 17, 2004, the plan expired.
** Includes 12,500 SAR's with a weighted average exercise price of $31.625.
Since SAR's enable the holder, in lieu of purchasing stock, to receive cash
in an amount equal to the excess of the fair market value of common stock
on the date of exercise over the option price, such SAR's have not been
included in the "Number of Securities to be Issued Upon Exercises" column
above.
</TABLE>
ITEM 6 - Selected Financial Data
The information required is contained under the caption "Five Year
Summary of Selected Financial Data" in the Fiscal 2004 Annual Report to
Stockholders and is herein incorporated by reference.
ITEM 7 - Management's Discussion and Analysis of Financial Condition and
Results of Operations
The information required is contained under the caption "Management's
Discussion and Analysis" in the Fiscal 2004 Annual Report to Stockholders and is
herein incorporated by reference.
ITEM 7A - Quantitative and Qualitative Disclosures About Market Risk
The information required is contained in the section "Market Risk"
under the caption "Management's Discussion and Analysis" in the Fiscal 2004
Annual Report to Stockholders and is herein incorporated by reference.
ITEM 8 - Financial Statements and Supplementary Data
(a) Financial Statements: The financial statements required to be filed
herein are described in Part IV, Item 15 of this report. Except for
the sections included herein by reference, our Fiscal 2004 Annual
Report to Stockholders is not deemed to be filed as part of this
report.
(b) Supplementary Data: The information required is contained under the
caption "Summary of Quarterly Results" in the Fiscal 2004 Annual
Report to Stockholders and is herein incorporated by reference.
ITEM 9 - Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
There were no changes in or disagreements with accountants on
accounting and financial disclosure during the fiscal year ended February 26,
2005.
ITEM 9A - Controls and Procedures
Evaluation of Disclosure Controls and Procedures
- ------------------------------------------------
We have established and maintain disclosure controls and procedures
that are designed to ensure that information required to be disclosed in our
Company's Exchange Act reports is recorded, processed, summarized and reported
within the time periods specified in the SEC's rules and forms, and that such
information is accumulated and communicated to our Company's management,
including our Chairman of the Board and Chief Executive Officer and Executive
Vice President, Chief Financial Officer and Secretary, as appropriate, to allow
timely decisions regarding required disclosure.
We carried out an evaluation, under the supervision and with the
participation of our Company's management, including our Company's Chairman of
the Board and Chief Executive Officer along with our Company's Executive Vice
President, Chief Financial Officer and Secretary, of the effectiveness of the
design and operation of our Company's disclosure controls and procedures
pursuant to Exchange Act Rule 13a-15(b). Based upon the foregoing, as of
February 26, 2005, our Company's Chairman of the Board and Chief Executive
Officer along with our Company's Executive Vice President, Chief Financial
Officer and Secretary, concluded that our Company's disclosure controls and
procedures were effective as of February 26, 2005.
The Company's management does not expect that its disclosure controls and
procedures or its internal control over financial reporting will prevent all
errors and all fraud. A control system, no matter how well conceived and
operated, can provide only reasonable, not absolute, assurance that the
objectives of the control system are met. Further, the design of a control
system must reflect the fact that there are resource constraints, and the
benefits of controls must be considered relative to their costs. Because of the
inherent limitations in all control systems, no evaluation of controls can
provide absolute assurance that all control issues and instances of fraud, if
any, within the Company have been detected. These inherent limitations include
the realities that judgments in decision-making can be faulty, and breakdowns
can occur because of simple errors or mistakes. Additionally, controls can be
circumvented by the individual acts of some person or by collusion of two or
more people. The design of any system of controls also is based in part upon
certain assumptions about the likelihood of future events, and there can be no
assurance that any design will succeed in achieving its stated goals under all
potential future conditions; over time, controls may become inadequate because
of changes in conditions, or the degree of compliance with the policies or
procedures may deteriorate. Because of the inherent limitations in a
cost-effective control system, misstatements due to error or fraud may occur and
not be detected. Accordingly, the Company's disclosure controls and procedures
are designed to provide reasonable, not absolute, assurance that the objectives
of our disclosure control system are met and, as set forth above, the Company's
management has concluded, based on their evaluation as of the end of the period,
that our disclosure controls and procedures were sufficiently effective to
provide reasonable assurance that the objectives of our disclosure control
system were met.
Incorporation by reference of Management's Annual Report on Internal Control
over Financial Reporting
- ------------------------------------------------------------------------------
Management of The Great Atlantic and Pacific Tea Company, Inc. has prepared
an annual report on internal control over financial reporting. Management's
report, together with the attestation report of the independent registered
public accounting firm, is included in our Company's Fiscal 2004 Annual Report
to Stockholders and is herein incorporated by reference in this Annual Report on
Form 10-K.
Changes in Internal Control over Financial Reporting
- ----------------------------------------------------
Other than discussed below, there has been no change during our Company's
fiscal quarter ended February 26, 2005 in our Company's internal control over
financial reporting that has materially affected, or is reasonably likely to
materially affect, our Company's internal control over financial reporting.
In coming to the conclusion that our internal control over financial
reporting was effective as of February 26, 2005, our management considered,
among other things, the restatement related to the accounting for leases, as
disclosed in Note 2 of Notes to the Consolidated Financial Statements included
in our Fiscal 2004 Annual Report to Stockholders which is herein incorporated by
reference, which management concluded resulted from a deficiency in our controls
over the accounting for leases, which represented a material weakness.
Management notified the Audit Committee of the Board of Directors and our
Company's independent registered public accounting firm of this matter. During
the fourth quarter of fiscal 2004 and prior to February 26, 2005, the Company
implemented controls to ensure that all leases are reviewed and accounted for in
accordance with generally accepted accounting principles. Accordingly, the
Company evaluated its internal controls over the selection and application of
lease accounting policies as of February 26, 2005 and has concluded that the
material weakness had been remediated as of year-end.
ITEM 9B - Other Information
On May 5, 2005, our Company approved the payout to executive officers of
$2,960,553 in cash bonuses, pursuant to the Management Incentive Plan for Fiscal
Year 2004, which includes the payout of the following amounts to the Company's
Named Executive Officers, as defined by Item 402(a)(3) of Regulation S-K:
<PAGE>
<TABLE>
<CAPTION>
Cash Bonus Award for
Officer Title Fiscal Year 2004
- --------------------- ------------------------------------------------------------- --------------------
<S> <C> <C>
Christian W.E. Haub Chairman of the Board and Chief Executive Officer $ 766,438
Eric Claus President and Chief Executive Officer, Canadian Company 455,875
Mitchell P. Goldstein Executive Vice President, Chief Financial Officer & Secretary 401,000
John E. Metzger Senior Vice President, Chief Information Officer 251,625
Brian Piwek President and Chief Operating Officer 455,875
</TABLE>
PART III
ITEMS 10 and 11 - Directors and Executive Officers of the Registrant and
Executive Compensation
The executive officers of our Company are as follows:
<TABLE>
<CAPTION>
Name Age Current Position
- --------------------------- ------ ------------------------------------------------------------
<S> <C> <C>
Christian W.E. Haub 40 Chairman of the Board and Chief Executive Officer
Eric Claus 48 President and Chief Executive Officer, Canadian Company
Brenda M. Galgano 36 Senior Vice President and Corporate Controller
Mitchell P. Goldstein 44 Executive Vice President, Chief Financial Officer & Secretary
Peter Johannes Jueptner 42 Executive Vice President, Retail Development
John E. Metzger 50 Senior Vice President, Chief Information Officer
William Moss 57 Vice President and Treasurer
Brian Piwek 58 President and Chief Operating Officer
</TABLE>
The executive officers of our Company are chosen annually and serve
under the direction of the Chief Executive Officer ("CEO") with the consent of
the Board of Directors.
Mr. Haub currently serves as Chairman of the Board and Chief Executive
Officer of our Company. He was elected a director on December 3, 1991, and is
Chair of the Executive Committee and a member of the Finance Committee. Mr. Haub
served as Chief Operating Officer of our Company from December 7, 1993, becoming
Co-Chief Executive Officer on April 2, 1997, sole CEO on May 1, 1998 and
Chairman of the Board on May 1, 2001. Mr. Haub also served as President of the
Company from December 7, 1993 through February 24, 2002, and from November 4,
2002 through November 1, 2004. Mr. Haub, son of Helga Haub, is a partner and
Co-Chief Executive Officer of Tengelmann Warenhandelsgesellschaft KG, a
partnership organized under the laws of the Federal Republic of Germany
("Tengelmann"). Mr. Haub is on the Board of Directors of the Food Marketing
Institute and on the Board of Trustees of St. Joseph's University in
Philadelphia, Pennsylvania.
Mr. Claus was appointed President & Chief Executive Officer, Canadian
Company on November 11, 2002. Prior to joining our Company, Mr. Claus served as
Chief Executive Officer of Co-Op Atlantic, between February 1997 and November
2002.
Ms. Galgano was appointed Senior Vice President and Corporate Controller
on November 1, 2004. Ms. Galgano served as Vice President, Corporate Controller
from February 2002 to November 2004, Assistant Corporate Controller of our
Company from July 2000 to February 2002 and Director of Corporate Accounting
from October 1999 to July 2000. Prior to joining our Company, Ms. Galgano was
with PricewaterhouseCoopers from July 1997 to July 1999 as Senior Manager and
Manager of the Audit and Business Advisory Services Group.
Mr. Goldstein was elected Executive Vice President and Chief Financial
Officer on November 1, 2004 and Secretary on December 9, 2004. From February
2002 to November 2004, Mr. Goldstein was Senior Vice President & Chief Financial
Officer, and from January 2000 to February 24, 2002, Mr. Goldstein was Senior
Vice President, Finance & Treasurer of our Company. Prior to joining our
Company, Mr. Goldstein was Chief Financial Officer from October 1998 to January
2000 and Vice President of Strategic Planning and Corporate Development from
September 1997 to October 1998 at Vlasic Foods International. Before that, he
was Director of Strategic Planning at the Campbell Soup Company. Vlasic Foods
International filed a petition under the Federal bankruptcy laws in January
2001. Mr. Goldstein is on the Board of Advisers of the Rutgers Business School.
Mr. Jueptner was appointed Executive Vice President of Retail
Development on November 1, 2004. Prior to that, Mr. Jueptner served as Executive
Vice President, A&P U.S. from November 2002 to November 2004, and Senior Vice
President, Chief Strategy Officer from October 2002 to November 2002. Prior to
joining our Company, Mr. Jueptner was Chief Commercial Officer of The Worldwide
Retail Exchange from December 2000 through July 2002. From 1997 through 2000,
Mr. Jueptner held various positions with Campbell Soup Company, lastly, General
Manager, Beverages & Latin America.
Mr. Metzger was appointed Senior Vice President, Chief Information
Officer on February 11, 2002, and has served as the Company's Chief
Information Officer since such date, with the exception of mid-September,
2004 through mid-November, 2004, when he served as the Company's Executive
Vice President, Fresh Store. Prior to that, he was Senior Vice President
and Business Process Initiative Business Leader from May 2001 to February
2002, and Vice President, Supply & Logistics from October 1999 to May 2001.
Prior to joining our Company, Mr. Metzger was Senior Vice President of CS
Integrated LLC from January 1998 to October 1999 and before that, Vice
President, Distribution & Procurement for General Mills Restaurants, Inc.
from October 1993 to November 1997. Mr. Metzger is a director of the
Institute for Standards & Collaboration Commerce, Inc.
Mr. Moss was appointed Vice President and Treasurer on February 24,
2002. Prior to that Mr. Moss was Vice President, Treasury Services and Risk
Management from 1992 to February 2002.
Mr. Piwek was appointed President and Chief Operating Officer on
November 1, 2004. Prior to that, Mr. Piwek served as President and Chief
Executive Officer, A&P U.S. from October 2002 to November 2004, Chairman,
President and Chief Executive Officer of The Great Atlantic & Pacific Company of
Canada, Limited from April 2002 through October 2002, Vice Chairman, President
and Chief Executive Officer of The Great Atlantic & Pacific Company of Canada,
Limited from February 2000 to October 2002, and Vice Chairman and Co-Chief
Executive Officer of The Great Atlantic & Pacific Company of Canada, Limited
from October 1997 through February 2000. Prior to joining the Company, he was
President of Overwaitea Food Group, a retailer and franchisor in British
Columbia and Alberta, Canada.
The information required regarding our directors, executive
compensation and our beneficial ownership reporting compliance is contained
under the captions "Election of Directors", "Executive Compensation" and
"Section 16(a) Beneficial Ownership Reporting Compliance", respectively, in the
Proxy Statement for our 2005 Annual Meeting of Stockholders, to be filed on or
about May 27, 2005 ("Proxy Statement"), and is herein incorporated by reference.
Audit Committee Financial Expert
- --------------------------------
The Board has determined that each member of the Audit Committee is
independent in accordance with the NYSE listing rules, the Company's Standards
of Independence and Rule 10A-3 of the Exchange Act. In addition, the Board has
determined that each member of the Audit Committee qualifies as an "audit
committee financial expert," as defined by the SEC.
Code of Business Conduct and Ethics
- -----------------------------------
Our Company has adopted a Code of Business Conduct and Ethics
applicable to all employees. This Code is applicable to Senior Financial
Executives including the chief executive officer, chief financial officer and
chief accounting officer of our Company. A&P's Code of Business Conduct and
Ethics is available on the Company's Web site at www.aptea.com under "Corporate
Governance." Our Company intends to post on its web site any amendments to, or
waivers from, its Code of Business Conduct and Ethics applicable to Senior
Financial Executives.
ITEM 12 - Security Ownership of Certain Beneficial Owners and Management
Beneficial Ownership of More than 5% of the Company's Common Stock
The information required is contained in our Proxy Statement under the
heading "Security Ownership of Certain Beneficial Owners and Management", and is
herein incorporated by reference.
ITEM 13 - Certain Relationships and Related Transactions
The information required is contained in our Proxy Statement under the
heading "Certain Relationships and Transactions", and is herein incorporated by
reference.
ITEM 14 - Principal Accounting Fees and Services
The information required is contained in our Proxy Statement under the
heading "Independent Registered Public Accounting Firm", and is herein
incorporated by reference.
PART IV
ITEM 15 - Exhibits and Financial Statement Schedules
Documents filed as part of this report.
1) Financial Statements: The financial statements required by Item 8 are
included in the Fiscal 2004 Annual Report to Stockholders. The
following required items are herein incorporated by reference:
Consolidated Statements of Operations
Consolidated Statements of Stockholders' Equity and
Comprehensive (Loss) Income
Consolidated Balance Sheets
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Report of Independent Registered Public Accounting Firm
2) Financial Statement Schedule:
Schedule II Valuation and Qualifying Accounts and Reserves
All other schedules are omitted because they are not required or do
not apply, or the required information is included elsewhere in the
Consolidated Financial Statements or Notes thereto.
3) Exhibits:
The following are filed as Exhibits to this Report:
EXHIBIT NO. DESCRIPTION
---------- -----------
3.1 Articles of Incorporation of The Great Atlantic
& Pacific Tea Company, Inc., as amended through
July 1987 (incorporated herein by reference to
Exhibit 3(a) to Form 10-K filed on May 27, 1988)
3.2 By-Laws of The Great Atlantic & Pacific Tea
Company, Inc., as amended through December 4,
2004 (incorporated herein by reference to
Exhibit 3.1 to Form 8-K filed on December 4,
2004)
4.1 Indenture, dated as of January 1, 1991 between
the Company and JPMorgan Chase Bank (formerly
The Chase Manhattan Bank as successor by merger
to Manufacturers Hanover Trust Company), as
trustee (the "Indenture") (incorporated herein by
reference to Exhibit 4.1 to Form 8-K)
4.2 First Supplemental Indenture, dated as of
December 4, 2001, to the Indenture, dated as of
January 1, 1991 between our Company and JPMorgan
Chase Bank, relating to the 7.70% Senior Notes
due 2004 (incorporated herein by reference to
Exhibit 4.1 to Form 8-K filed on December 4,
2001)
4.3 Second Supplemental Indenture, dated as of
December 20, 2001, to the Indenture between our
Company and JPMorgan Chase Bank, relating to the
9 1/8% Senior Notes due 2011 (incorporated
herein by reference to Exhibit 4.1 to Form 8-K
filed on December 20, 2001)
4.4 Successor Bond Trustee (incorporated herein by
reference to Exhibit 4.4 to Form 10-K filed on
May 9, 2003)
10.1 Employment Agreement, made and entered into as of
the 11th day of November, 2002, by and between
our Company and Eric Claus, and Offer Letter
dated the 22nd day of October, 2002 (incorporated
herein by reference to Exhibit 10.1 to Form 10-Q
filed on January 10, 2003)
10.2 Employment Agreement, made and entered into as of
the 1st day of November, 2000, by and between the
Company and William P. Costantini (incorporated
herein by reference to Exhibit 10 to Form 10-Q
filed on January 16, 2001) ("Costantini
Agreement")
10.3 Amendment to Costantini Agreement dated April
30, 2002 (incorporated herein by reference to
Exhibit 10.7 to Form 10-K filed on July 5, 2002)
10.4 Confidential Separation and Release Agreement by
and between William P. Costantini and The Great
Atlantic & Pacific Tea Company, Inc. dated
November 4, 2004 (incorporated herein by
reference to Exhibit 10.4 to Form 10-Q filed on
January 7, 2005)
10.5 Employment Agreement, made and entered into as
of the 16th day of June, 2003, by and between
our Company and Brenda Galgano (incorporated
herein by reference to Exhibit 10.9 to Form 10-Q
filed on October 17, 2003)
10.6 Employment Agreement, made and entered into as of
the 24th day of February, 2002, by and between
our Company and Mitchell P. Goldstein
(incorporated herein by reference to Exhibit 10.8
to Form 10-K filed on July 5, 2002)
10.7 Employment Agreement, made and entered into as of
the 2nd day of October, 2002, by and between our
Company and Peter Jueptner (incorporated herein
by reference to Exhibit 10.26 to Form 10-Q filed
on October 22, 2002) ("Jueptner Agreement")
10.8* Amendment to Jueptner Agreement dated November
10, 2004
10.9 Offer Letter dated the 18th day of September
2002, by and between our Company and Peter
Jueptner (incorporated herein by reference to
Exhibit 10.10 to Form 10-Q filed on January 10,
2003)
10.10 Employment Agreement, made and entered into as
of the 14th day of May, 2001, by and between our
Company and John E. Metzger, as amended February
14, 2002 (incorporated herein by reference to
Exhibit 10.13 to Form 10-K filed on July
5, 2002) ("Metzger Agreement")
10.11* Amendment to Metzger Agreement dated
September 13, 2004
10.12* Amendment to Metzger Agreement dated
October 25, 2004
10.13* Employment Agreement, made and entered into as
of the 1st day of March 2005, by and between our
Company and William J. Moss
10.14 Employment Agreement, made and entered into as
of the 28th day of October, 2002, by and between
our Company and Brian Piwek, and Offer Letter
dated the 23rd day of October, 2002
(incorporated herein by reference to Exhibit
10.14 to Form 10-Q filed on January 10, 2003)
("Piwek Agreement")
10.15* Amendment to Piwek Agreement dated February 4,
2005
10.16 Supplemental Executive Retirement Plan effective
as of September 1, 1997 (incorporated herein by
reference to Exhibit 10.B to Form 10-K filed on
May 27, 1998)
10.17 Supplemental Retirement and Benefit Restoration
Plan effective as of January 1, 2001
(incorporated herein by reference to Exhibit
10(j) to Form 10-K filed on May 23, 2001)
10.18 1994 Stock Option Plan (incorporated herein by
reference to Exhibit 10(e) to Form 10-K filed on
May 24, 1995)
10.19 1998 Long Term Incentive and Share Award Plan
(incorporated herein by reference to Exhibit
10(k) to Form 10-K filed on May 19, 1999)
10.20* Form of Stock Option Grant
10.21* Description of 2005 Turnaround Incentive
Compensation Program
10.22* Form of Restricted Share Unit Award Agreement
10.23 1994 Stock Option Plan (incorporated herein by
reference to Exhibit 10(e) to Form 10-K filed on
May 24, 1995)
10.24 1994 Stock Option Plan for Non-Employee
Directors (incorporated herein by reference to
Exhibit 10(f) to Form 10-K filed on May 24,
1995)
10.25 2004 Non-Employee Director Compensation
effective as of July 14, 2004 (incorporated
herein by reference to Exhibit 10.15 to Form
10-Q filed on July 29, 2004)
10.26* Description of Management Incentive Plan
10.27 Credit Agreement dated as of February 23, 2001,
among our Company, The Great Atlantic & Pacific
Company of Canada, Limited and the other
Borrowers party hereto and the Lenders party
hereto, The Chase Manhattan Bank, as U.S.
Administrative Agent, and The Chase Manhattan
Bank of Canada, as Canadian Administrative Agent
("Credit Agreement") (incorporated herein by
reference to Exhibit 10 to Form 10-K filed on May
23, 2001)
10.28 Amendment No. 1 and Waiver, dated as of November
16, 2001 to Credit Agreement (incorporated
herein by reference to Exhibit 10.23 to Form
10-K filed on July 5, 2002)
10.29 Amendment No. 2 dated as of March 21, 2002 to
Credit Agreement (incorporated herein by
reference to Exhibit 10.24 to Form 10-K filed on
July 5, 2002)
10.30 Amendment No. 3 dated as of April 23, 2002 to
Credit Agreement (incorporated herein by
reference to Exhibit 10.25 to Form 10-K filed on
July 5, 2002)
10.31 Waiver dated as of June 14, 2002 to Credit
Agreement (incorporated herein by reference to
Exhibit 10.26 to Form 10-K filed on July 5, 2002)
10.32 Amendment No. 4 dated as of October 10, 2002 to
Credit Agreement (incorporated herein by
reference to Exhibit 10.27 to Form 10-Q filed on
October 22, 2002)
10.33 Amendment No. 5 dated as of February 21, 2003 to
Credit Agreement (incorporated herein by
reference to Exhibit 10.1 to Form 8-K filed on
March 7, 2003)
10.34 Amendment No. 6 dated as of March 25, 2003 to
Credit Agreement (incorporated herein by
reference to Exhibit 10.28 to Form 10-K filed on
May 9, 2003)
13* Fiscal 2004 Annual Report to Stockholders
14 Code of Business Conduct and Ethics
(incorporated herein by reference to
Exhibit 14 to Form 10-K filed on May 21, 2004)
16 Letter on Change in Certifying Accountant
(incorporated herein by reference to
Forms 8-K filed on September 18, 2002 and
September 24, 2002, and Form 8-K/A
filed on September 24, 2002)
18 Preferability Letter Issued by
PricewaterhouseCoopers LLP (incorporated herein
by reference to Exhibit 18 to Form 10-Q filed on
July 29, 2004)
21* Subsidiaries of Registrant
23* Consent of Independent Registered Public
Accounting Firm
31.1* Certification of the Chief Executive Officer
Pursuant Section 302 of the Sarbanes-Oxley Act
of 2002
31.2* Certification of the Chief Financial Officer
Pursuant Section 302 of the Sarbanes-Oxley Act
of 2002
32* Certification Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
* Filed with this 10-K
<PAGE>
Report of Independent Registered Public Accounting Firm on
Financial Statement Schedule
To the Stockholders and Board of Directors
of The Great Atlantic & Pacific Tea Company, Inc.:
Our audits of the consolidated financial statements, of management's
assessment of the effectiveness of internal control over financial reporting
and of the effectiveness of internal control over financial reporting referred
to in our report dated May 10, 2005 appearing in the Fiscal Year 2004 Annual
Report to Shareholders of The Great Atlantic & Pacific Tea Company, Inc.
(which report, consolidated financial statements and assessment are
incorporated by reference in this Annual Report on Form 10-K) also included an
audit of the financial statement schedule listed in Item 15(a)(2) of this Form
10-K. In our opinion, this financial statement schedule presents fairly, in
all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements.
PricewaterhouseCoopers LLP
Florham Park, New Jersey
May 10, 2005
<PAGE>
<TABLE>
<CAPTION>
Schedule II
The Great Atlantic & Pacific Tea Company, Inc.
Valuation and Qualifying Accounts and Reserves
Years Ended February 22, 2003, February 28, 2004, and February 26, 2005
(in thousands)
Additions Additions
Allowance for Impact of Charged to Charged to
Bad Debts for Beginning Adoption of Costs & Other Foreign Ending
Year Ended Balance FIN 46-R Expenses Accounts Deductions (1) Exchange Balance
- -------------- ------------- ------------- ------------- ------------- -------------- ------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Feb. 22, 2003 9,200 - 6,929 - (6,584) 254 9,799
Feb. 28, 2004 9,799 (4,200) 5,225 - (4,554) 46 6,316
Feb. 26, 2005 6,316 - (1,745) - 1,072 70 5,713
Additions Additions
Stock Loss Impact of Charged to Charged to
Reserve for Beginning Adoption of Costs & Other Foreign Ending
Year Ended Balance FIN 46-R Expenses Accounts Deductions Exchange Balance
- -------------- ------------- ------------- ------------- ------------- ------------- ------------ ---------
Feb. 22, 2003 7,326 - 709 - - 46 8,081
Feb. 28, 2004 8,081 - (1,147) - (251) 109 6,792
Feb. 26, 2005 6,792 - 3,016 - - 81 9,889
Deferred Tax Additions Additions
Valuation Impact of Charged to Charged to
Allowance for Beginning Adoption of Costs & Other Foreign Ending
Year Ended Balance FIN 46-R Expenses Accounts Deductions Exchange Balance
- -------------- ------------- ------------- ------------- ------------- ------------ ------------- ---------
Feb. 22, 2003 - - 161,495 - - - 161,495
Feb. 28, 2004 161,495 - 67,682 - - - 229,177
Feb. 26, 2005 229,177 - 89,632 - - - 318,809
(1) Deductions to allowance for Bad Debts represent write-offs of accounts
receivable balances.
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) 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.
The Great Atlantic & Pacific Tea Company, Inc.
(registrant)
Date: May 10, 2005 By: /s/ Mitchell P. Goldstein
--------------------------------------------------
Mitchell P. Goldstein, Executive Vice President,
Chief Financial Officer & Secretary
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant in the capacities and as of the date indicated.
/s/ Christian W.E. Haub Chairman of the Board and
- ------------------------------------ Chief Executive Officer
Christian W.E. Haub
/s/ John D. Barline Director
- ------------------------------------
John D. Barline
/s/ Jens-Jurgen Bockel Director
- ------------------------------------
Jens-Jurgen Bockel
/s/ Bobbie A. Gaunt Director
- ------------------------------------
Bobbie Gaunt
/s/ Helga Haub Director
- ------------------------------------
Helga Haub
/s/ Dan P. Kourkoumelis Director
- ------------------------------------
Dan P. Kourkoumelis
/s/ Edward Lewis Director
- ------------------------------------
Edward Lewis
/s/ Richard L. Nolan Director
- ------------------------------------
Richard L. Nolan
/s/ Maureen B. Tart-Bezer Director
- ------------------------------------
Maureen B. Tart-Bezer
The above-named persons signed this report on behalf of the registrant on May
10, 2005.
/s/ Brenda M. Galgano Senior Vice President, Corporate Controller
- -----------------------------------
Brenda M. Galgano May 10, 2005
<PAGE>
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
Section 302 Certification
I, Christian W.E. Haub, certify that:
1. I have reviewed this annual report on Form 10-K of The Great Atlantic &
Pacific Tea Company, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over
financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b) designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principles;
c) evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this annual report our conclusion about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this annual report based on such evaluation; and
d) disclosed in this annual report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in the
case of an annual report) that has materially affected, or is likely to
materially affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of registrant's board of
directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
/s/ Christian W. E. Haub Date: May 10, 2005
- ------------------------
Christian W. E. Haub
Chairman of the Board
and
Chief Executive Officer
<PAGE>
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
Section 302 Certification
I, Mitchell P. Goldstein, certify that:
1. I have reviewed this annual report on Form 10-K of The Great Atlantic &
Pacific Tea Company, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over
financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and we have:
a) designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b) designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principles;
c) evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this annual report our conclusion about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this annual report based on such evaluation; and
d) disclosed in this annual report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in the
case of an annual report) that has materially affected, or is likely to
materially affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of registrant's board of
directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
/s/ Mitchell P. Goldstein Date: May 10, 2005
- -------------------------
Mitchell P. Goldstein
Executive Vice President, Chief
Financial Officer & Secretary
<PAGE>
Exhibit 32
Certification Accompanying Periodic Report
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(18 U.S.C. ss. 1350)
The undersigned, Christian W. E. Haub, Chairman of the Board and Chief Executive
Officer of The Great Atlantic & Pacific Tea Company, Inc. ("Company"), and
Mitchell P. Goldstein, Executive Vice President, Chief Financial Officer &
Secretary of the Company, each hereby certifies that (1) the Annual Report of
the Company on Form 10-K for the period ended February 26, 2005 fully complies
with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 and (2) the information contained in the Report fairly presents, in all
material respects, the financial condition and the results of operations of the
Company.
Dated: May 10, 2005 /s/ Christian W. E. Haub
------------------------
Christian W. E. Haub
Chairman of the Board
and
Chief Executive Officer
Dated: May 10, 2005 /s/ Mitchell P. Goldstein
-------------------------
Mitchell P. Goldstein
Executive Vice President,
Chief Financial Officer &
Secretary
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>2
<FILENAME>ex10jueptneramendment.txt
<DESCRIPTION>EXHIBIT 10.8 - PETER JUEPTNER AMENDMENT
<TEXT>
Exhibit 10.8
Dear Peter:
As discussed, effective November 15, 2004 (the "Effective Date"), you will
assume the position of Executive Vice President Retail Development, reporting to
Brian Piwek, President and Chief Operating Officer.
The Company recognizes that this change has given you Good Reason to terminate
your employment pursuant to Paragraph 8(a) of the Employment Agreement between
you and The Great Atlantic & Pacific Tea Company, Inc., made and entered into on
October 2, 2002 (the "Agreement").
Whereas, in order to induce you not to terminate your employment within the 3
month period immediately following the Effective Date, and whereas, you would
prefer not to terminate your employment, it is agreed that with respect to your
reassignment on November 15, 2004, the 3-month period in the last sentence of
Paragraph 8(a) of the Agreement shall be changed to a 9-month period.
Except as indicated above, the Agreement, its terms and conditions shall remain
in full force and 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 Agreement shall be deemed amended in accordance with
Paragraph 28 thereof.
Sincerely,
The Great Atlantic & Pacific Tea Company, Inc.
By: /s/Allan Richards
-------------------------------------
Allan Richards
Agreed to and accepted this 10th day of November, 2004.
/s/Peter Jueptner
- ------------------------------
Peter Jueptner
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>3
<FILENAME>ex10metzger913agreement.txt
<DESCRIPTION>EXHIBIT 10.11 METZGER SEPT 13, 2004 AMENDMENT
<TEXT>
Exhibit 10.11
AMENDMENT
This AMENDMENT, effective as of September 13, 2004 (the "Amendment"),
temporarily amends the Employment Agreement made on May 14, 2001 and amended on
February 11, 2002 (as so amended, the "Agreement"), by and between The Great
Atlantic & Pacific Tea Company, Inc. and John Metzger.
W I T N E S S E T H
WHEREAS, the Company agrees that by reassigning the Employee on
September 13, 2004 (the "Effective Date") from Senior Vice President & Chief
Information Officer and everGReen Business Leader of the Company reporting
directly to the Chairman, President and Chief Executive Officer of the Company
to Executive Vice President - Fresh Store Development of A&P US reporting
directly to its President and Chief Executive Officer, the Company has given the
Employee Good Reason to terminate his employment;
WHEREAS, in order to induce the Employee not to terminate his
employment within the three (3) month period immediately following the Effective
Date, the Company has agreed to amend the Agreement; and
WHEREAS, the Employee would prefer not to terminate his employment;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration, the
parties, intending to be legally bound, agree as follows:
1. Temporary Amendment to Section 8.(a)
Until the first anniversary of the Effective Date, the last sentence
of Section 8.(a) of the Agreement shall be amended to read:
"If an event constituting a ground for termination of employment for
Good Reason occurs, and the Employee fails to give notice of
termination with three hundred, sixty-five (365) days after the
occurrence of such event, the Employee shall be deemed to have waived
his right to terminate employment for Good Reason in connection with
such event (but not for any other event for which the three hundred,
sixty-five (365) day period has not expired)."
2. If during the three hundred, sixty-five (365) days that the amendment
contained in Section 1 above shall be effective another Good Reason for the
Employee to terminate his employment shall occur and the Employee shall
terminate his employment, then and only then shall the Company extend the
exercise period from one year from the date of termination of employment to
three years therefrom for any and all options granted to the Employee to
purchase shares of the Company's $1.00 par value common stock granted under
The Great Atlantic & Pacific Tea Company, Inc. 1998 Long Term Incentive and
Share Award Plan which options shall have previously vested or shall vest
up to and including the day the Employee gives notice to the Company of the
termination of his employment for such subsequent Good Reason.
3. Except as temporarily amended herein, all other terms of the Agreement
shall remain in full force and effect.
4. All capitalized terms used herein but not defined herein shall have the
meaning assigned to them in the Agreement.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by
its duly authorized Officer and the Employee has hereunto set his hand as
of the Effective Date.
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.
/s/Christian W.E. Haub
------------------------------------
Christian W. E. Haub, Chairman,
President & Chief Executive Officer
/s/John Metzger
- -------------------------------
John Metzger
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>4
<FILENAME>ex10metzger1025agreement.txt
<DESCRIPTION>EXHIBIT 10.12 J. METZGER OCT. 25, 2004 AMENDMENT
<TEXT>
Exhibit 10.12
The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645
Christian W. E. Haub
Chairman of the Board
Chief Executive Officer
October 25, 2004
John Metzger
4205 Leslie Lane
Doylestown, PA 18901
Dear John:
This is to confirm our understanding that you will receive the company's SERP
benefit upon reaching age 55 (September 25, 2009) and still being employed in
the services of The Great Atlantic & Pacific Tea Co., Inc.
I am looking forward to your significant contributions to the company.
Sincerely,
/s/Christian Haub
- -----------------
Christian Haub
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>5
<FILENAME>ex10mossagreement.txt
<DESCRIPTION>EXHIBIT 10.13-MOSS AGREEMENT MARCH 1, 2005
<TEXT>
Exhibit 10.13
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of March 1, 2005, by and between
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the "Company"), and WILLIAM J.
MOSS (the "Employee").
W I T N E S S E T H
In consideration of the promises and mutual covenants contained herein
and for other good and valuable consideration, the Parties, intending to be
legally bound, agree as follows:
1. Term of Employment.
(a) The Employment Period shall commence as of March 1, 2005 and,
subject only to the provisions of Sections 6 and 7 below relating to termination
of employment, shall continue until the close of business on February 28, 2007
or (ii) such later date as shall result from the operation of subparagraph (b)
below (the "Terminal Date").
(b) Commencing on September 1, 2006, and on the first business day of
each month thereafter (such date and each such first business day, the "Renewal
Date") the Terminal Date set forth in subparagraph (a) above shall be extended
so as to occur six months from the Renewal Date unless either the Company or the
Employee shall have given written notice to the other Party on or before such
Renewal Date that the Terminal Date is not to be extended.
2. Duties. The Employee will serve as Vice President, Treasurer or in
any other capacity as assigned by the Company and will devote his/her full
business time and attention to the affairs of the Company and his/her duties.
3. Salary and Bonus. The Company will pay the Employee a base salary at
an annual rate of not less than $200,000.00, which base salary will not be
reduced and will be reviewed periodically (at intervals of not more than twelve
(12) months). The Employee will be eligible to receive annually or otherwise any
bonus awards, whether payable in cash, shares of common stock of the Company or
otherwise, which the Company, the Compensation Committee of the Board or such
other authorized committee of the Board determines to award or grant.
4. Benefit Programs. The Employee will receive such benefits and awards
as the Compensation Committee of the Board shall determine and will be eligible
to participate in employee benefit plans and programs of the Company, including,
but not limited to, pension and other retirement plans, group life insurance,
hospitalization and surgical and major medical coverage, short term disability,
vacations and holidays, long-term disability, and such other benefits as are or
may be made available from time to time to senior executives of the Company.
5. Business Expenses. The Employee will be reimbursed for all
reasonable expenses incurred by him/her in connection with the conduct of the
business of the Company, provided he/she properly accounts therefor in
accordance with the Company's policies.
6. Termination of Employment by the Company.
6.1 Involuntary Termination by the Company Other Than For Cause. The
Company may terminate the Employee's employment at any time and for any reason
by giving him/her a written notice of termination to that effect at least 45
days before the date of termination. In the event the Company terminates the
Employee's employment for any reason other than for Cause, as provided in
Section 6.2, below, the Employee shall be entitled to the benefits described in
Section 8.
6.2 Termination for Cause. The Company may terminate the Employee's
employment for Cause if (i) the Employee willfully, substantially, and
continually fails to perform the duties for which he/she is employed by the
Company, (ii) the Employee willfully fails to comply with the reasonable
instructions of the Company, (iii) the Employee willfully engages in conduct
which is or would reasonably be expected to be materially and demonstrably
injurious to the Company, (iv) the Employee willfully engages in an act or acts
of dishonesty resulting in material personal gain to the Employee at the expense
of the Company, (v) the Employee is convicted of a felony, (vi) the Employee
engages in an act or acts of gross malfeasance in connection with his/her
employment hereunder, (vii) the Employee commits a material breach of the
confidentiality provision set forth in Section 10, (viii) the Employee exhibits
demonstrable evidence of alcohol or drug abuse having a substantial adverse
effect on his/her job performance hereunder, or (ix) the Employee is unable to
carry out his/her duties due to permanent and total disability.
7. Termination of Employment by the Employee. The Employee may
terminate his/her employment at any time and for any reason by giving the
Company a written notice of termination to that effect at least 45 days before
the date of termination.
8. Benefits Upon Termination Without Cause. If the Employee's
employment shall terminate pursuant to Section 6.1 other than for Cause, the
Employee, upon execution of a Confidential Separation and Release Agreement,
shall be entitled to the following:
(a) The Company shall pay to the Employee as a severance benefit for
each month during the 12 month period beginning with the month next following
the date of termination of the Employee's employment an amount equal to
one-twelfth of the sum of his/her annual rate of base salary immediately
preceding his/her termination of employment. Each such monthly benefit shall be
paid no later than the last day of the applicable month. In the event that the
Employee dies before the end of such 12-month period, the payments for the
remainder of such period shall be made to the Employee's estate.
(b) The Company shall pay to the Employee as a bonus for the fiscal
year in which the termination occurred an amount equal to a portion (determined
as provided in the next sentence) of the bonus that the Employee would actually
have received under the Company's annual management incentive bonus plan for the
fiscal year of termination of the Employee's employment if his/her employment
had not terminated (determined on the basis of his/her actual bonus opportunity
and the actual degree of achievement of the applicable performance goals) or, if
no bonus opportunity for that year had been established for the Employee at the
time of such termination of employment, such portion of the bonus awarded to
him/her under the Company's annual management incentive bonus plan for the
fiscal year immediately preceding the fiscal year of the termination of his/her
employment, with deferred bonuses counting for the fiscal year in which it was
earned rather than the year in which it was paid. Such portion shall be
determined by dividing the number of days of the Employee's employment during
such fiscal year up to his/her termination of employment by 365 (366 if a leap
year). Such payment shall be made on or about 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.
(c) During the period of 12 months beginning on the date of the
Employee's termination of employment, the Employee shall remain covered by the
medical, dental, vision, life insurance, and, if reasonably commercially
available through nationally reputable insurance carriers, long-term disability
plans of the Company that covered him/her immediately prior to his/her
termination of employment as if he/she had remained in employment for such
period. In the event that the Employee's participation in any such plan is
barred, the Company shall arrange to provide the Employee with substantially
similar benefits (but, in the case of long-term disability benefits, only if
reasonably commercially available). Any medical insurance coverage for such
12-month period pursuant to this subsection (c) shall become secondary upon the
earlier of (i) the date on which the Employee begins to be covered by comparable
medical coverage provided by a new employer, or (ii) the earliest date upon
which the Employee becomes eligible for Medicare or a comparable Government
insurance program.
9. Non-Competition. The Employee agrees that during the term of this
Agreement and for a period of twelve months following termination of his/her
employment, the Employee will not, within any of the geographical areas of the
United States or Canada in which the Company is then conducting business (either
directly or through franchisees), directly or indirectly, own, manage, operate,
control, be employed by, participate in, provide consulting services to, or be
connected in any manner with the ownership, management, operation or control of
any business similar to any of the types of businesses conducted by the Company
to any significant extent during his/her employment or on the date of
termination of his/her employment, except the Employee may own for investment
purposes up to 1% of the capital stock of any company whose stock is publicly
traded, and during such twelve month period following termination of his/her
employment the Employee will not contact or solicit employees of the Company for
the purpose of inducing such employees to leave the employ of the Company.
10. Confidential Information and Trade Secrets. The Employee hereby
acknowledges that he/she will have access to and become acquainted with various
trade secrets and proprietary information of the Company and other confidential
information relating to the Company. The Employee covenants that he/she will
not, directly or indirectly, disclose or use such information except as is
necessary and appropriate in connection with his/her employment by the Company
and that he/she will otherwise adhere in all respects to the Company's policies
against the use or disclosure of such information.
11. Arbitration; Injunctive Relief. Any controversy or claim arising
out of or relating to this Agreement, directly or indirectly, or the performance
or breach thereof, will be settled by arbitration in accordance with the rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof. The
arbitration will be held in New York, New York, or such other place as may be
agreed upon at the time by the parties to the arbitration. The parties shall
bear their own expenses in connection with any arbitration or proceeding arising
out of or relating to this Agreement, directly or indirectly, or the performance
or breach thereof; provided, however, that in the event that the Employee
substantially prevails, the Company agrees promptly to reimburse the Employee
for all expenses (including costs and fees of witnesses, evidence and attorneys
fees and expenses) reasonably incurred by him/her in investigating, prosecuting,
defending, or preparing to prosecute or defend any action, proceeding or claim
arising out of or relating to this Agreement, directly or indirectly, or the
performance or breach thereof. The parties acknowledge and agree that a breach
of the Employee's obligations under Sections 9 or 10 could cause irreparable
harm to Company for which the Company would have no adequate remedy at law, and
further agree that, notwithstanding the agreement of the parties to arbitrate
controversies or claims as set forth above, the Company may apply to a court of
competent jurisdiction to seek to enjoin preliminarily or permanently any breach
or threatened breach of the Employee's obligations under Sections 9 and 10.
12. Deductions and Withholding. All amounts payable or which become
payable under any provision of this Agreement shall be subject to any deductions
authorized by the Employee and any deductions and withholdings required by law.
13. Governing Law. The validity, interpretation and performance of this
Agreement will be governed by the laws of the State of New Jersey without regard
to the conflict of law provisions.
14. Severability. If any one or more of the provisions contained in
this Agreement is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability will not affect any other
provision hereof.
15. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the Parties hereto and their personal representatives,
and, in the case of the Company, its successors and assigns. To the extent the
Company's obligations under this Agreement are transferred to any successor or
assign, such successor or assign shall be treated as the "Company" for purposes
of this Agreement. Other than as contemplated by this Agreement, the Employee
may not assign his/her rights or duties under this Agreement.
16. Continuing Effect. Wherever appropriate to the intention of the
Parties hereto, the respective rights and obligations of the Parties, including
but not limited to the obligations referred to in Sections 8, 9 and 10, hereof,
will survive any termination or expiration of the term of this Agreement.
17. Entire Agreement. This Agreement supersedes any and all other
agreements and understandings between the Parties with respect to the matters
addressed in this Agreement.
18. Amendment and Waiver. No amendment or waiver of any provision of
this Agreement shall be effective, unless the same shall be in writing and
signed by the Parties, and then such amendment, waiver or consent shall be
effective only in the specific instance or for the specific purpose for which
such amendment, waiver or consent was given.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
of which together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Employee has hereunto set
his/her hand as of the day and year first above written.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
BY: __________________________
ITS: __________________________
DATE: __________________________
- -------------------------------- ------------------------
WILLIAM J. MOSS DATE
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>6
<FILENAME>ex10piwek204agreement.txt
<DESCRIPTION>EXHIBIT 10.15 PIWEK AGREEMENT FEBRUARY 4, 2005
<TEXT>
Exhibit 10.15
February 4, 2005
Brian Piwek
28 Sherwood Downes
Park Ridge, NJ 07656
Re: Amendments to your Employment Agreement
Dear Brian:
As we have discussed, the Company recognizes that due to the changes
that took place on November 15, 2004 (the "Effective Date"), you have Good
Reason to terminate your employment pursuant to Paragraph 8(a) of the Executive
Employment Agreement between you and The Great Atlantic & Pacific Tea Company,
Inc., made and entered into on October 28, 2002 (the "Agreement").
Whereas, in order to induce you not to terminate your employment within
the 3 month period immediately following the Effective Date, and whereas, you
would prefer not to terminate your employment, it is agreed that with respect to
the changes that took place on November 15, 2004, the 3-month period in the last
sentence of Paragraph 8(a) of the Agreement shall be changed to a 12-month
period. To avoid any misunderstanding, this extension is a one-time extension
that applies only to the changes that occurred on November 15, 2004. For any
other event constituting Good Reason, you must give notice of your termination
for Good Reason within 3 months after the occurrence of such event.
Although it is the Company's hope that you do not terminate your
employment for Good Reason due to the changes that occurred on November 15,
2004, the Company agrees that if you do so (1) all stock options that have been
granted to you but are unvested as of your separation date will immediately vest
on that date and will be exercisable within one year and (2) you will be 100%
vested in the Supplemental Executive Retirement Plan (SERP) at the Cumulative
Benefit Payable that is applicable to ten years of service (which is 30% of the
highest five year average salary during the last ten years leading up to
retirement).
Except as indicated above, the Agreement, its terms and conditions
shall remain in full force and 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 Agreement shall
be deemed amended in accordance with Paragraph 28 thereof.
Sincerely,
The Great Atlantic & Pacific Tea Company, Inc.
By:/s/Christian Haub
Agreed to and accepted this 8th day of February, 2005.
/s/Brian Piwek
- ------------------------------
Brian Piwek
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>7
<FILENAME>ex1021stockoptiongrant.txt
<DESCRIPTION>EXHIBIT 10.20 FORM OF STOCK OPTION GRANT
<TEXT>
Exhibit 10.20
April 25, 2003
Dear: <<NAME>>
Reference: Grant of Non-Qualified Stock Options
This will confirm the terms and conditions of an option grant being made to you
pursuant to the Company's 1998 Long Term Incentive and Share Award Plan (the
"Plan"), a copy of which is attached hereto and made a part hereof.
1. On <<DATE OF GRANT>>, the Company granted to you an Option, as a
non-qualified stock option, to purchase from the Company up to a total of shares
of the Company's $1.00 par value Common Stock (the "Common Stock") at a price of
<<GRANT PRICE>> for each share purchased pursuant to this Option, such exercise
price being the closing price of the Common Stock on the New York Stock Exchange
on the date of grant, as reported in The Wall Street Journal.
The Option and the number of shares and price per share are
subject to adjustments as provided in the Plan. In any adjustments of the number
of shares of Common Stock, fractional shares shall be omitted from the shares
covered by this Option. Any adjustment of the price per share shall be computed
at the next higher cent.
2. (a) This Option shall have a term of ten years from the date of grant, and
shall vest and may be exercised with respect to 25% of the options granted
hereby as of the first anniversary of the date of grant of this Option and each
additional 25% of the options covered hereby on the second, third and fourth
anniversaries, respectively, of the date of grant of this Option, and in each
case during the remaining term of this Option; provided, however, that in the
event you attain age 64 while employed by the Company or a parent or subsidiary
of the Company, the entire remaining number of shares with respect to which this
Option then remains unexercised shall become exercisable during the remaining
term of this Option effective as of the later of (i) your attainment of age 64
or (ii) the date which is six (6) months after the date of grant. In no event
shall this Option be exercisable after ten years from the date of this
Agreement.
<PAGE>
(b) Except as provided in Section 3(b), 3(c), 3(d), 3(e), 3(f)
or 3(g) hereof, this Option may be exercised (i) only if you are, at all times
during the period beginning with the date hereof and ending on the day three
months before the date of exercise, an employee of either the Company, or a
parent or subsidiary of the Company, or of another corporation referred to in
Section 422(a)(2) of the Internal Revenue Code of 1986, as amended from time to
time (the "Code") and (ii) only with respect to shares exercisable during such
period of employment. The terms "parent" and "subsidiary" as used herein shall
have the meanings assigned to them by Section 425 of the Code.
(c) This Option may be exercised, with respect to shares as to
which the right to exercise has matured as herein provided in whole at any time
or in part from time to time, but not with respect to less than 25 shares in
each exercise or such lesser number with respect to which this Option remains
unexercised.
(d) This Option may be exercised by sending to the Company a
notice in writing, stating the number of shares being purchased hereunder and
transmitting with such notice a check in the appropriate amount of the number of
shares purchased.
(e) Anything herein to the contrary notwithstanding, this Option
shall become full exercisable in the event of a Change of Control (as defined in
Section 7(b) of the Plan as in effect on the date of grant of this Option).
3. (a) This Option is subject to all the terms, conditions, limitations
and restrictions contained in the Plan and may not be exercised, assigned or
transferred, in whole or in part, except as therein provided. Specifically, but
not by way of limitation, this Option is not transferable by you otherwise than
by will or the laws of descent and distribution and is exercisable during your
lifetime only by you.
(b) In the event you should die while employed by the Company,
or a parent or subsidiary of the Company, such person who shall have acquired,
by will or by the laws of descent and distribution, the right to exercise this
Option may exercise this Option with respect to all shares covered hereby at any
time prior to the expiration of the term of this Option, or prior to the first
anniversary of your death, whichever date is earlier.
(c) In the event you should die after termination of your
employment with the Company or a parent or subsidiary of the Company, but at a
time when you are still eligible to exercise all or any portion of this Option,
such person as shall have acquired, by will or by the laws of descent and
distribution, the right to exercise this Option may exercise this Option at any
time prior to the expiration of the term of this Option, or prior to the first
anniversary of your death, whichever date is earlier, but only with respect to
shares that became exercisable during your period of employment.
(d) In the event that you become disabled (within the meaning of
Section 22(e) (3) of the Code) while employed by the Company, or a parent or
subsidiary of the Company, you may exercise this Option at any time prior to the
expiration of the term of this Option, or prior to the first anniversary of your
becoming disabled, whichever date is earlier, but only with respect to shares
that became exercisable during your period of employment.
(e) In the event that you retire from the Company, or a parent
or subsidiary of the Company, (i) pursuant to a tax-qualified pension or
retirement plan of the Company, or a parent or subsidiary of the Company, or
(ii) after you have been employed by the Company, and/or a parent or subsidiary
of the Company, for not less than ten (10) years and have attained age 55, this
Option will become fully vested and you may exercise this Option at any time
prior to the expiration of the term of this Option, (provided, however, that
this option shall be treated as a non-qualified stock option rather than an
incentive stock option if it is exercised by you more than three months after
your retirement).
(f) In the event that your employment is terminated without "cause" (as defined
below) by the Company or a parent or subsidiary of the Company, or with the
written consent of the Company or a parent or subsidiary of the Company, you may
exercise this Option at any time prior to the expiration of the term of this
Option, or prior to the first anniversary of your termination of employment,
whichever date is earlier, but only with respect to shares that became
exercisable during your period of employment (provided, however, that this
option shall be treated as a non-qualified stock option rather than an incentive
stock option if it is exercised by you more than three months after your
termination of employment). For this purpose, "cause" shall mean any of the
following: (i) any act of gross negligence by you which results in material
injury to the Company or a parent or subsidiary of the Company, (ii) any willful
engagement by you in conduct which involves dishonesty, fraud or moral
turpitude, (iii) your conviction of a felony or any crime involving moral
turpitude, or (iv) any willful engagement by you in illegal or improper conduct
which results in material injury to the Company or a parent or subsidiary of the
Company or material personal enrichment to you at the expense of the Company or
a parent or subsidiary of the Company.
(g) In the event that your employment is terminated for "cause" (as defined in
Section 3(f) above) by the Company or a parent or subsidiary of the Company,
this Option shall terminate immediately upon such termination of employment, and
in no event shall you have any rights under this Option following such
termination of employment.
4. (a) Subject to the provisions of the Plan, the Company shall issue
certificates for stock purchased pursuant to this Option within a reasonable
time after notice of exercise of this Option and payment of the option price.
Each share of stock shall be fully paid and non-assessable.
(b) You shall not have any rights of a record holder with
respect to such shares until such certificates are actually paid for and issued
to you.
(c) You shall assume all risks incident to any change hereafter
in the applicable laws or regulations or incident to any change in the market
value of any shares issued to you upon the exercise of this Option in whole or
in part.
5. Nothing herein contained shall obligate the Company or any
subsidiary of the Company to continue your employment for any particular period
or on any particular basis of compensation, or constitute a request to postpone
your retirement date.
Very truly yours,
Chairman, President and Chief Executive Officer
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>8
<FILENAME>ex10restrictedstockgrant.txt
<DESCRIPTION>EX 10.22 RESTRICTED SHARE UNIT AWARD AGREEMENT
<TEXT>
Exhibit 10.22
Date
Name & Address
Dear:
Reference: 2005 Turnaround Incentive Compensation Program ("Program")
Restricted Share Unit Award Agreement ("Agreement")
This will confirm the terms and conditions of an Award being made to you
pursuant to The Great Atlantic & Pacific Tea Company, Inc. (the "Company") 1998
Long Term Incentive and Share Award Plan (the "Plan"), a copy of which is
attached hereto and made a part of this Agreement.
1. Restricted Share Units. Provided that you have signed and returned this
Agreement indicating your acceptance of its terms and conditions, the Company
will grant ________ Restricted Share Units ("Units") to you, subject to all of
the terms contained in this Agreement.
2. Shareholder Approval. The grant of the Units is contingent upon the
Shareholders approving an increase in the number of Shares reserved for issuance
under the Plan at the July 2005 Annual Meeting of Shareholders, and is subject
to the performance criteria outlined below.
3. Performance Criteria and Vesting Requirements. (a) If the Company achieves
After-Tax Profitability, as hereinafter defined, in fiscal year 2006, then 33.3%
of the Units awarded shall vest as of April 31, 2007, an additional 33.3% of the
Units awarded shall vest as of April 31, 2008 if After-Tax Profitability is
sustained in fiscal year 2007, and the remaining 33.3% of the Units awarded
shall vest as of April 31, 2009 if After-Tax Profitability is sustained in
fiscal years 2007 and 2008. If the Company does not achieve After-Tax
Profitability in fiscal year 2006 but does achieve After-Tax Profitability in
fiscal year 2007, then 50% of the Units awarded shall vest as of April 31, 2008
and an additional 50% of the Units awarded shall vest as of April 31, 2009 if
After-Tax Profitability is sustained in fiscal year 2008. For purposes of this
grant, After-Tax Profitability is defined as net income as defined by GAAP,
adjusted for the following items: Adjustments required as a result of changes in
GAAP or interpretations of GAAP; Impairment charges outside the normal course of
business (e.g., normal store closures and remodels); Restructuring charges
(including severance, impairments, vacancy and other exiting costs);
Discontinued operations; One-time costs associated with major transactions,
including: Refinancing costs and other costs associated with raising capital,
Acquisition costs, Disposal costs, Costs of establishing outsourcing
arrangements; Gains and losses on disposals of businesses relating either to a
restructuring or discontinued operation; Costs of special projects approved by
board; Costs associated with significant litigation; Costs associated with
regulatory changes (e.g., tax law changes, labor law changes, etc.); and, Other
items of a similar nature.
(b) The Units will vest only if you are, at all times during the period
beginning with the date hereof and ending on the dates of vesting, an employee
of the Company or a parent or subsidiary of the Company.
(c) As the Units vest, each vested Unit will be converted to one share
of the Company's Common Stock. Such vested Units will be delivered to you in the
form of a stock certificate as soon as practicable following each vesting date.
(d) The Units are subject to the terms, conditions, limitations and
restrictions contained in the Plan and may not be assigned or transferred, in
whole or in part, except as therein provided.
(e) In the event that your employment is terminated for any reason by
you or by the Company or a parent or subsidiary of the Company, you shall
forfeit the Units immediately upon such termination of employment.
4. Non-Competition. In exchange for the opportunity to participate in the
Program, you agree that during the term of your employment with the Company, and
for a period of eighteen months following termination of your employment for
whatever reason, you will not, within any of the geographical areas of the
United States or Canada in which the Company is then conducting business (either
directly or through franchisees), directly or indirectly, own, manage, operate,
control, be employed by, participate in, provide consulting services to, or be
connected in any manner with the ownership, management, operation or control of
any business engaged in retail sale of goods and products that are in direct
competition with any of the types of businesses conducted by the Company to any
significant extent during your employment or on the date of termination of your
employment, except that you may own for investment purposes up to 1% of the
capital stock of any company whose stock is publicly traded. For the same
eighteen-month period, you also agree to not contact or solicit employees of the
Company for the purpose of inducing such employees to leave the employ of the
Company.
5. Trade Secrets and Proprietary Information. You hereby acknowledge that you
have and/or will have access to and become acquainted with various trade secrets
and proprietary information of the Company and other confidential information
relating to the Company. You covenant that you will not, directly or indirectly,
disclose or use such information except (i) as is necessary and appropriate in
connection with your employment by the Company, (ii) as is required pursuant to
a judicial or administrative subpoena, or (iii) if such information is already
in the public domain (other than by reason of your breach of your obligations
hereunder). Subject to the exceptions set forth above, you agree that you will
adhere in all respects to the Company's policies against the use or disclosure
of such information.
6. Confidentiality. You further agree that your participation in the Program,
and the terms and conditions of this Agreement, are confidential and that you
will not in any manner publish, publicize, disclose or otherwise make known or
permit or cause to be made known to any third person your participation in the
Program or the terms and conditions of this Agreement. Nothing in this paragraph
shall be construed to prohibit the disclosure of this Agreement to your spouse
or any legal, tax or financial consultant retained by you, provided that the
persons to whom the disclosure is being made agree to be bound by the
confidentiality provisions of this paragraph.
7. Arbitration; Injunctive Relief. Any controversy or claim arising out of or
relating to this Agreement, directly or indirectly, or the performance or breach
thereof, will be settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The
arbitration will be held in Bergen County or Passaic County in New Jersey, or
such other place as may be agreed upon at the time by the parties to the
arbitration. The parties shall bear their own expenses in connection with any
arbitration or proceeding arising out of or relating to this Agreement, directly
or indirectly, or the performance or breach thereof; provided, however, that in
the event that you substantially prevail, the Company agrees promptly to
reimburse you for all expenses (including costs and fees of witnesses, evidence
and attorneys fees and expenses) reasonably incurred by you in investigating,
prosecuting, defending, or preparing to prosecute or defend any action,
proceeding or claim arising out of or relating to this Agreement, directly or
indirectly, or performance or breach thereof. You acknowledge and agree that a
breach of your obligations under Sections 4, 5 and/or 6 of this Agreement could
cause irreparable harm for which the Company would have no adequate remedy at
law, and further agree that, notwithstanding the agreement to arbitrate
controversies or claims as set forth above, the Company may apply to a court of
competent jurisdiction to seek to enjoin preliminarily or permanently any breach
or threatened breach of your obligations under Sections 4, 5 and/or 6 of this
Agreement.
8. General. (a) Each share of stock awarded hereunder, once vested, shall be
fully paid and non-assessable.
(b) You shall not have any rights of a record holder with respect to
such shares until such certificates are actually issued to you.
(c) You shall assume all risks incident to any change hereafter in the
applicable laws or regulations or incident to any change in the market value of
any shares issued to you upon the vesting of the Units in whole or in part.
(d) Nothing herein contained shall obligate the Company, or any parent,
division, affiliate or subsidiary of the Company, to continue your employment
for any particular period or on any particular basis of compensation.
<PAGE>
9. Your Acceptance and Return of Agreement. To indicate your agreement and
acceptance, please sign the Agreement where indicated below. If you are located
in Montvale, return the signed original Agreement by hand delivery to Judy
Barbarino (3rd floor Hartford building, extension 4461) on or before Wednesday,
March 9, 2005. If you are located in Paterson, return the signed original
Agreement by hand delivery to Alexia Finley (1st floor Human Resources area,
extension 3713) on or before Wednesday, March 9, 2005. You should retain a
signed copy of the original Agreement for your records.
Very truly yours,
By:/s/Allan Richards
------------------------------------
ALLAN RICHARDS
Senior Vice President, Human Resources
and Labor Relations
Agreed and accepted:
By: _____________________________________
Signature
Print Name: ______________________________
Social Security No.: ________________________
Date: ____________________________________
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>9
<FILENAME>ex1024longtermperfincentive.txt
<DESCRIPTION>EXHIBIT 10.24 DESC. LONG-TERM PERF. INCENTIVE
<TEXT>
Exhibit 10.21
Description of 2005 Turnaround Incentive Compensation Plan
Purpose: Attract, retain and reward key employees for completing a
successful and sustained turnaround.
No awards under this program will be made unless the Company has returned to
profitability for a full fiscal year during the performance period (fiscal years
2005 through 2007) and complete vesting of awards will not occur unless the
Company sustains that profitability.
Return to profitability will be met if net profit is achieved for total
fiscal year 2006 or 2007. For the purpose of complete vesting, net profitability
must be sustained through fiscal year 2008. For this purpose, net profit is
defined as positive Net Income, excluding extraordinary income or loss not
associated with on-going business operations.
Performance Period: Three years (2005 -2007)
Vesting: If profitability returns for total fiscal year 2006
33.3% - April 2007
33.3% - April 2008, if profitability is sustained in fiscal 2007
33.3% - April 2009, if profitability is sustained in fiscal 2007 & 2008
Vesting: If profitability returns for total fiscal year 2007
50% - April 2008
50% - April 2009, if profitability is sustained in fiscal 2008
Special Provision: Non-Compete Clause
Plan requires executive share ownership:
It is the view of the Board that senior executives with significant impact on
the future success of A&P have a substantial "at risk" personal equity
investment in A&P common stock.
Furthermore, the Board believes that it is necessary to link the economic
Interests of key managers with each other and with shareholders in general.
This will promote key management stability, retention, motivation and long-term
focus on corporate strategy. As such, the Compensation Committee recommended,
and the Board approved, the following executive share-ownership requirements:
Share-ownership value
CEO 3 X base salary
Executive Mgt Team: 2 X base salary
Senior Mgt Team: 1 X base salary
Executives will have up to five years to meet ownership requirement
This grant would be a one-time grant for the target period
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>10
<FILENAME>ex1025mgmtincentiveplan.txt
<DESCRIPTION>EX. 10.26 DESC. MANAGMENT INCENTIVE PLAN
<TEXT>
Exhibit 10.26
Description of Management Incentive Plan
- ----------------------------------------
Purpose: The Management Incentive Plan is designed to provide attractive and
competitive financial rewards when solid results are achieved. Incentives are
used to reward managers for continuous improvements in operating and financial
results and for growing the business in a profitable way. The plan allows
flexibility for rewarding individual performance.
The Company's Management Incentive Plan provided target annual incentive awards
for Fiscal 2004 contingent upon the attainment of the following performance
goals: sales; profitability; cash flow; and the executive's individual
performance objectives. With respect to Corporate Staff executives, 30% of the
incentive was based on the attainment of a net income goal, 30% on a free cash
flow goal and 40% on achieving individual performance goals. With respect to
operating unit executives, 25% of the incentive was based on the attainment of
sales goals, 25% on the attainment of operating income goals, 25% on the
attainment of operating cash flow goals and 25% on achieving individual
performance goals.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-13
<SEQUENCE>11
<FILENAME>ex13annualreport.txt
<DESCRIPTION>ANNUAL REPORT
<TEXT>
The Great Atlantic & Pacific Tea Company, Inc.
Fiscal 2004
Annual Report to Stockholders
<PAGE>
Table of Contents
CEO Letter to Stockholders.............................................. 3
Management's Discussion and Analysis................................... 6
Consolidated Statements of Operations.................................. 46
Consolidated Statements of Stockholders' Equity
And Comprehensive (Loss) Income................................. 47
Consolidated Balance Sheets............................................ 48
Consolidated Statements of Cash Flows.................................. 49
Notes to Consolidated Financial Statements............................. 50
Management's Annual Report on Internal Control over Financial Reporting 115
Report of Independent Registered Public Accounting Firm................ 116
Five Year Summary of Selected Financial Data........................... 118
Executive Officers..................................................... 120
Board of Directors..................................................... 120
Stockholder Information................................................ 121
Company Profile
- ---------------
The Great Atlantic & Pacific Tea Company, Inc. ("We," "Our," "Us" or "our
Company"), based in Montvale, New Jersey, operates combination food and drug
stores, conventional supermarkets and limited assortment food stores in 10 U.S.
states, the District of Columbia and Ontario, Canada, under the A&P(R),
Waldbaum's(TM), Super Foodmart, The Food Emporium(R), Super Fresh(R), Farmer
Jack(R), Sav-A-Center(R), Dominion(R), Ultra Food & Drug, Food Basics(R) and The
Barn Markets(R) trade names.
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CHAIRMAN and CEO LETTER TO STOCKHOLDERS
To Our Stockholders:
A&P made solid progress in fiscal 2004 toward the return to
profitability, with our operating results and financial position again improved.
Despite a difficult retailing environment, we grew sales, maintained market
share, and increased ongoing operating earnings.
The strong performance of A&P Canada, continued progress of our U.S.
operations and ongoing management of expenses and liquidity all contributed to
improved results and greater financial stability. In addition, we took steps to
accelerate our progress in the U.S. with organizational changes that have
sharpened our merchandising and operational execution while improving our cost
structure.
A&P Canada achieved one of its best years ever in fiscal 2004, with
significant year-over-year sales and profit improvement driven by our "Fresh
Obsessed" food marketing initiatives and the disciplined execution of our
Food Basics operations.
Our successful Fresh Box format is fully in place in nearly fifty
stores in Ontario, and many elements of our "Fresh Obsessed" merchandising and
service strategy are enhancing other mainstream stores as well. On the discount
side, the settlement of litigation brought by some Food Basics franchisees
resulted in our purchase of 24 previously franchised stores. The improvement of
those operations under Corporate direction contributed to the generally
strengthened performance of the entire Canadian Food Basics group.
Our U.S. business continued to improve, as we again emphasized
merchandising and store operating execution, expense management and productivity
measures. We successfully introduced our U.S. fresh store format in more than a
dozen locations in our core markets during Fiscal 2004 - and as of this writing
have nearly tripled that total. Customer reaction has been very positive, and we
are enthusiastic about the sales and profit potential of this format as we go
forward with its implementation.
We continued to develop and improve merchandising and operations in our
discount Food Basics stores in the U.S. to drive top-line growth and
productivity. Identical store sales in our well-established northeastern
locations have been excellent, and underline our confidence in the success of a
strong discount food presence in our core markets.
In November 2004, we implemented the next phase of our U.S. rebuilding
program by consolidating corporate and operating leadership, and centralizing
the management and support of our retail business. This has already resulted in
more effective merchandising and better store-level execution across our banner
operations. It will also reduce overhead costs substantially, with savings
estimated at $50 million in fiscal 2005 and a total of approximately $75 million
by the end of fiscal 2006.
On the financial side, we maintained diligent management of cash flow,
capital spending and debt levels to ensure adequate liquidity to operate and
invest as necessary. Capital spending was lower than initially anticipated,
reflecting our emphasis on preserving cash while maintaining the strength and
competitiveness of our operations. As a result, along with improved results, we
ended the year with liquidity in excess of $330 million.
In short, we moved closer to our objective of actual and sustainable
profitability by improving performance, upgrading operations, strengthening our
financial position, and implementing new and promising retail strategies.
Turning to the future, we announced on May 10, 2005 a major strategic
restructuring under which the Company will focus on growth in our core Northeast
U.S. markets, and devote a significantly greater portion of our resources going
forward to our operations there.
Specifically, we are at this writing actively pursuing the following
major initiatives:
o exploring strategic transactions to unlock the value of A&P Canada;
o planning the divestiture of our Farmer Jack and Food Basics operations and
support facilities in Michigan and Ohio;
o continuing the rollout of our fresh and discount retail formats
throughout our core Northeast markets, and
o pursuing initiatives to produce additional, significant reductions in
labor, operating, supply chain and administrative costs.
Our longstanding success in Ontario, combined with current conditions
in the Canadian retail marketplace, present us with a unique opportunity to
realize the substantial value of A&P Canada at this time. The proceeds of any
such transaction would improve our balance sheet and liquidity, helping to
establish a solid financial footing from which to achieve and sustain
profitability and growth in the U.S.
Although our Midwest U.S. operations are also improving and positioned
well in their markets, our strategy to focus investment and attention elsewhere
may result in a lesser allocation of resources than required to realize their
full potential; hence our decision to divest those operations at this time.
The decision to seek appropriate and committed buyers for our Canadian
and Midwest operations--both of which have long been a part of our North
American business--was not easy. We believe, however, that doing so now will
help us achieve our overarching objective of enhancing the value of our core
U.S. businesses and thereby creating long-term value and stability for all A&P
stakeholders.
Our strategic plan going forward is to grow The New A&P from a solid
platform that currently includes:
o 250 stores in the Metropolitan New York area, with the fresh
format expanding under the A&P, Waldbaum's and The Food
Emporium banners; and the discount operations growing under
the Food Basics name;
o 75 stores in the Mid-Atlantic region, with fresh stores being
developed under the SuperFresh banner and discount operations
as Food Basics, in the greater Philadelphia and Baltimore
markets; and
o 28 stores in the New Orleans market under the Sav-A-Center banner. While
not designated as a core business for expansion, our Sav-A-Center
operation remains a well-managed part of our business, with a solid
number-two market position and improving results.
Our strong and improving Metro New York area and Mid-Atlantic
operations will comprise the core business designated for ongoing development
and expansion. In fiscal 2004, they achieved positive same-store sales despite
difficult competitive conditions, maintaining strong market shares while
improving operating profitability.
With prime locations, successful fresh store development well
under way, and discount units contributing significant sales growth, those
businesses offer excellent potential, which would be realized through the
conversion of our store base to these new concepts and the pursuit of additional
locations. This would be facilitated by the de-leveraging of our Company's
balance sheet resulting from the contemplated transactions, and supported
thereafter by the lower overhead cost structure that will follow their
completion.
Over the past two years, we have taken major steps to improve our
results and financial position, rebuild our U.S. organization and operations,
and create attractive retail strategies for the future. I am confident that the
execution of the strategies we have announced, combined with significant,
additional operating efficiencies we are pursuing, will make possible our return
to sustainable profitability in the latter part of fiscal 2006.
On behalf of the entire Board of Directors and management team, I want
to thank our loyal associates throughout the Company for their continued
dedication and hard work in fiscal 2004 and beyond, and my appreciation to our
customers, suppliers and investors for their continuing support.
Christian Haub
Chairman of the Board
and Chief Executive Officer
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The Great Atlantic & Pacific Tea Company, Inc.
Management's Discussion and Analysis
INTRODUCTION
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The following Mana