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Paci Separation Agreement

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Exhibit 10.1



SEPARATION OF EMPLOYMENT AND CONSULTING AGREEMENT




THIS SEPARATION OF EMPLOYMENT AND CONSULTING AGREEMENT ("Agreement") is made and entered into by Frank G. Paci ("Paci") and The Pantry, Inc. (the "Corporation"). Throughout this Agreement, the Corporation and Paci may be collectively referred to as "the parties."




Whereas , the Corporation currently employs Paci as Executive Vice President - Finance and Chief Financial Officer, pursuant to an Amended and Restated Employment Agreement dated November 20, 2007, as amended by a First Amendment to Amended and Restated Employment Agreement dated May 2, 2008 (collectively, the " Employment Agreement");



Whereas , Paci desires to resign from his position as Executive Vice President - Finance and Chief Financial Officer with the Corporation and simultaneously enter into this Agreement with the Corporation effective September 26, 2010 (the "Effective Date");




Whereas , the Corporation desires to obtain from Paci and Paci desires to provide to the Corporation consulting services from the Effective Date through December 31, 2010; and



Whereas , the Corporation and Paci mutually desire to: establish the terms and conditions of Paci's post-termination consultancy; terminate their employment relationship on mutually agreeable terms; and avoid all litigation relating to the employment relationship and its termination.



Now Therefore , in consideration of the above and the mutual promises set forth below, Paci and the Corporation agree as follows:




1. RESIGNATION . As of the Effective Date, Paci hereby resigns from his position as Executive Vice President - Finance and Chief Financial Officer of the Corporation.




2. CONSULTANCY .




A. Consulting Services . For the period of time commencing on the Effective Date and ending on December 31, 2010 (the "Consulting Period ?), Paci shall provide such consulting services as may be reasonably requested by the Corporation upon reasonable notice to Paci and shall report directly to the Corporation's President and Chief Executive Officer. Provided however, no such consulting services shall be provided during the seven (7) day revocation period described in Paragraph 10 below. In performing the consulting services, Paci agrees to be available for meetings from time to time at the principal executive offices of the Corporation and elsewhere at such times as may be mutually agreed upon by the parties and agrees to be available for up to 40 hours per month. Failure by Paci to comply with this provision shall be grounds for termination of this Agreement by the Corporation.







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B. Consulting Fee . The Corporation shall pay Paci a consulting fee in the amount of Eight Thousand and No/100 Dollars ($8,000.00) per full calendar month during the Consulting Period and a pro-rated portion of such fee for each partial month during the Consulting Period. The consulting fee shall be paid on the last day of the month. In addition, the Corporation shall also pay expenses reasonably incurred by Paci in rendering consulting services hereunder. Paci shall submit monthly invoices for his expenses incurred and the Corporation shall pay such expenses within thirty (30) days of receipt of the s ame.




3. INDEPENDENT CONTRACTOR STATUS . The parties hereby acknowledge and agree that Paci's consulting services for the Corporation shall be provided strictly as an independent contractor. Nothing in this Agreement shall be construed to render him an employee, co-venturer, agent, or other representative of the Corporation. Paci understands that he must comply with all tax laws applicable to a self-employed individual, including the filing of any necessary tax returns and the payment of all income and self-employment taxes. The Corporation shall not be required to withhold from payment of the consulting fee any state or federa l income taxes or to make payments for Social Security (FICA) tax, unemployment insurance, or any other payroll taxes. The Corporation shall not be responsible for, and shall not obtain, worker's compensation insurance, disability benefits insurance, or unemployment security insurance coverage for Paci. Consistent with his duties and obligations under this Agreement, Paci shall, at all times, maintain sole and exclusive control over the manner and method by which he performs his services.




4. PARTICIPATION IN ANNUAL INCENTIVE PLAN; NO ADDITIONAL CONSIDERATION . Notwithstanding that Paci will not be an employee of the Corporation on the date that awards under the Corporation's Annual Incentive Plan are granted and paid for fiscal year 2010, Paci shall be eligible for such award, if any are granted to other participants.




Except as set forth in this Agreement, it is agreed and understood that the Corporation shall not have any obligation to provide Paci at any time in the future with any payments, benefits, or considerations other than those recited in this Agreement, or those required by law, other than under the terms of any benefit plan which provide benefits or payments to former employees according to their terms. Paci further agrees and acknowledges that he is owed no additional payments from the Corporation beyond what may be due to him under this Agreement.




5. RELEASE . In consideration of the benefits conferred by this Agreement, PACI (ON BEHALF OF HIMSELF AND HIS ASSIGNS, HEIRS AND OTHER REPRESENTATIVES) RELEASES CORPORATION AND ITS RELATED PARTIES (DEFINED BELOW) ("RELEASEES") FROM ALL CLAIMS AND WAIVES ALL RIGHTS KNOWN OR UNKNOWN, HE MAY HAVE OR CLAIM TO HAVE RELATING TO HIS EMPLOYMENT WITH CORPORATION, ITS PREDECESSORS, SUBSIDIARIES OR AFFILIATES OR HIS SEPARATION THER
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