Exhibit 10.15


 


Tops
Markets, LLC

P.O. Box 1027


Buffalo, NY  14240-1027


 


	
   

  	
  August 25,
  2010

  



 


Ms. Lynne
Burgess

19 Range Road

Rowayton, Connecticut  06853


 


Dear
Lynne:


 


This letter confirms the terms of your employment at
Tops Markets, LLC (the “Company”).


 


General


 


During the term of your employment with the Company, you
will serve as the Senior Vice President, Secretary and General Counsel of the
Company and you will report to the Company’s Chief Executive Officer.  You will, subject to the direction and supervision
of the Chief Executive Officer and the Company’s policies in effect from time
to time, have supervision and control over, and responsibility
for, such management and operational functions of the Company as are normally
assigned to a person in such position or as may reasonably change from time to
time and shall have such other powers and duties as may from time to time be
prescribed by the Chief Executive Officer, consistent with the duties and
authorities normally afforded to a senior vice president and general counsel of
a company of the general size and type of the Company.


 


Your
employment by the Company will be effective on September 13, 2010 (the “Effective
Date”), provided that, on or prior to such date, you have executed and
delivered to the Company a counterpart signature page to this letter
agreement.


 


For
so long as you are employed by the Company, excluding any periods of vacation
and sick leave to which you are entitled, you will devote your full business
time and efforts, to the best of your ability, experience and talent, to the
business and affairs of the Company.  You
shall not be a member of the board of directors or other comparable governing
body of any other entity or be employed by or act as a consultant to, or
otherwise directly or indirectly engage in any other business activity on
behalf of, any other entity, in each case, without the prior written consent of
the Company.


 


Compensation


 


Beginning
on the Effective Date and for so long as you shall be employed by the Company,
you shall receive an annual base salary of $275,000 (the “Annual Base Salary”).  The Annual Base Salary shall be paid in
accordance with the customary payroll practices of the Company, subject to
customary withholding and other payroll taxes. 
For so long as you are employed by the Company, you will be eligible to
receive an annual bonus (the “Annual Bonus”)


 

















 


in
a target amount equal to 60% of your Annual Base Salary, which amount shall be
determined in good faith by the Company’s Board of Directors (the “Board”)
based on quantitative and qualitative factors (including the Company’s
performance relative to its budget for the applicable year) that the Board
deems appropriate.  The amount of the
Annual Bonus may be a greater or lesser percentage of your Annual Base Salary
in the discretion of the Board based on the foregoing factors.  Any Annual Bonus shall be payable if you were
employed by the Company on December 31 of the applicable year, and shall
be pro rated for the current calendar year.


 


Options


 


Pursuant
to a Non-Qualified Stock Option Agreement to be entered into between Tops
Holding Corporation (“Holdings”) and you (the “Option Agreement”),
and subject to the terms and conditions thereof, if you are employed by the
Company, Holdings will grant to you options (the “Options”) exercisable
for 555 shares of its common stock, par value $0.001 per share (“Common
Stock”) on the Effective Date.


 


The
Options will be exercisable, subject to vesting, for ten years from the date of
grant.  The Options will have an exercise
price per share equal to the Fair Market Value (as defined in Holdings’ 2007
Stock Incentive Plan (the “Plan”)) of a share of Common Stock on the
Effective Date, and will vest as to 33 1/3% on each of the third, fourth and fifth anniversaries of the date of
grant.  Upon a Change of Control (as
defined in the Plan), subject to the terms and conditions of the Plan, the
Options will accelerate and become fully vested.


 


Benefits


 


For
so long as you are employed by the Company, you will be entitled to participate
in all incentive, savings and retirement plans, practices, policies and
programs applicable generally to senior executives of the Company and you will
be eligible for participation in and will receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company to the
extent applicable generally to senior executives of the Company.


 


The
Company will provide moving expenses for you in accordance with the Company’s
customary practices for senior executives and subject to the approval of the
Board.  In the event that you are subject
to federal, state or local income tax (together, “Taxes”) as a result of
the reimbursement of such expenses (the “Reimbursement Amount”), the
Company will pay to you an additional amount (the “Moving Expense Gross-Up
Payment”), such that the net amount retained by you, after taking into
account (A) the payment of any Taxes resulting from the payment of the
Reimbursement Amount or any additional Taxes imposed upon the Moving Expense Gross-Up
Payment, and (B) the Tax benefit of any deduction or credit arising from
the payment of any Taxes referred to in clause (A), shall be equal to the
Reimbursement Amount; provided, however,
that the Company shall not be responsible for and the Moving Expense Gross-Up
Payment shall not include any interest or penalties imposed due to your failure
to timely or properly file and pay any Taxes due; and provided,
further, that the Moving Expense Gross-Up Payment shall be paid no
later than the end of the year following the year in which the related Taxes
are paid.


 


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In
addition, subject to your execution and delivery of this letter agreement, not
later than 60 days following the Effective Date, if you are then employed by
the Company, the Company will pay to you a signing bonus (the “Signing Bonus”)
in an amount that, after taking into account any federal, state or local income
tax to which the Signing Bonus is subject, shall be equal to $55,000.  In
the event that you terminate your employment with the Company for any reason
prior to January 1, 2012, you shall repay to the Company the Signing Bonus
within 30 days of your termination date.


 


You
will be entitled to receive reimbursement for all reasonable and documented
out-of-pocket expenses incurred by you in connection with the performance of
your duties hereunder, in accordance with the policies, practices and
procedures of the Company as in effect from time to time.  In addition, subject to your execution and
delivery of this letter agreement, promptly following the Effective Date, if
you are then employed by the Company, you will be entitled to receive
reimbursement for all reasonable and documented out-of-pocket legal expenses
incurred by you in connection with the negotiation of this letter agreement.


 


For
so long as you are employed by the Company, the Company shall provide you with
the use of an automobile in accordance with the Company’s policies.


 


For
so long as you are employed by the Company, you will be entitled to holidays
and four weeks paid vacation in accordance with the policies of the Company
applicable to other senior executives of the Company generally.


 


Your
employment with the Company will be “at-will,” and you understand that either
the Company or you may terminate your employment, at any time, with or without
Cause (as defined below), with no prior notice. 
No course of action typically followed by the Company, oral statement by
any agent of the Company or statement in any benefits or policy manual or
similar document describing the Company’s policies or procedures shall
eliminate or limit the Company’s right to terminate your employment at any
time, with or without Cause, unless such statement is in writing, is signed by
an officer of the Company, and explicitly states that it is the intention to
change your at-will employment into an employment for a term of years.


 


Termination


 


If
your employment is terminated without Cause (other than by reason of your death
or Disability (as defined in the then-existing disability insurance plan
covering you), and other than by reason of your resignation), then the Company
will provide you with the following severance payments and/or benefits:


 


(i)            (A) on the date on which you would have received the
next installment of your Annual Base Salary following the date on which such
termination is effective (the “Termination Date”) had you then been
employed by the Company,
the Company shall pay to you a lump sum in the amount of your accrued but
unpaid Annual Base Salary through the Termination Date, and (B) within 45
days of the Termination Date, the Company shall pay to you a lump sum in the
amount of any unpaid reimbursable expenses and any unpaid amounts
to which you are entitled pursuant to any of the Company’s or its affiliates’
benefit plans or programs in which you participated while you were employed by
the Company (in the manner 


 


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and in accordance with the terms of such plans and
program, in each case through the Termination Date) (“Accrued Obligations”);


 


(ii)           the Company shall continue to pay you your Annual Base
Salary in accordance with customary payroll practices (and subject to customary
withholding and payroll taxes) until the first anniversary of the Termination
Date (the “Severance Period”); and


 


(iii)          at the expense of the Company, you and members of your
family shall be entitled to continue your participation in all welfare and
benefit plans of the Company or its affiliates in which you were participating
immediately prior to the Termination Date (as such benefits are from time to
time in effect at the Company or its affiliates), until the earlier of (A) the
expiration of the Severance Period and (B) the date that you are eligible
to receive coverage and benefits from a new employer; provided,
however, that if you are precluded from continuing your
participation in any such welfare or benefit plan, then the Company shall pay
you the economic equivalent of the benefits provided under such plan for the
period specified above, it being understood that the economic equivalent of a
benefit foregone shall be deemed to be the cost in the State of New York that
would reasonably be incurred by you in obtaining such benefit yourself on an
individual basis.


 


If your employment is terminated by the Company with
Cause or by you for any reason, then the Company shall have no further payment
obligations to you other than (i) for payment of the Accrued Obligations,
and (ii) as otherwise required under the Consolidated Omnibus Budget
Reconciliation Act of 1985.


 


If your employment is terminated due to your death
or Disability, then the Company shall have no further payment obligations to
you (or your legal representative, as applicable) other than for: (i) payment
of the Accrued Obligations; (ii) continuance of benefits under the Company’s
or its affiliates’ disability, life, welfare and benefit plans to the
Termination Date; and (iii) as otherwise required under the Consolidated
Omnibus Budget Reconciliation Act of 1985.


 


As
used herein, the term “Cause” means (i) the willful failure by you
to perform such duties as are reasonably requested by the Company’s Chief
Executive Officer, as determined in good faith by the Board, and such failure
shall have continued for a period of ten (10) days after the Company gives
written notice to you specifying such failure, (ii) the failure by you to
observe material Company policies generally applicable to employees of the
Company, (iii) gross negligence or willful misconduct by you in the
performance of your duties, as determined in good faith by the Board, (iv) the
commission by you of any act of fraud (including, without limitation, any
material misrepresentation made by you to the Company or any of its
predecessors or affiliates, including, without limitation, Morgan Stanley, and
their respective agents, in connection with such party’s evaluation of you as a
prospective employee), theft or financial dishonesty with respect to the
Company or any of its affiliates, (v) your indictment, conviction of, or
pleading no contest or nolo contendere to, any felony or a lesser crime
involving dishonesty or moral turpitude, (vi) breach of any material
provision of this letter, (vii) your failure to obtain or retain any
permits, licenses or approvals which may be required by any state or local
authorities in order to permit you to continue employment in the ordinary
course, (viii) any act or omission that is materially injurious
(financially or otherwise) to the Company or 


 


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its
reputation, (ix) chronic absenteeism or (x) alcohol or other
substance abuse by you.  The Board shall
determine whether Cause for termination exists.


 


Termination Obligations


 


Following
the Termination Date, you shall, to the extent reasonably requested by the
Company, and except as may be required by applicable law, cooperate in good
faith with and assist the Company or any of its affiliates in the pursuit or
defense of any claim, administrative charge or cause of action by or against
the Company or any of its affiliates as to which you, by virtue of your
employment with the Company, have relevant knowledge or information, including
by acting as the Company’s representative in any such proceeding.


 


The
Company’s obligations to make any payments hereunder in respect of any
termination of your employment, other than payment of the Accrued Obligations,
will be conditioned upon your execution and delivery of a customary general
release in form and substance satisfactory to the Company.


 


Notwithstanding
anything to the contrary contained herein, upon termination of your employment
for any reason, you shall be deemed to have given the Company notice of your
resignation from any and all positions as officer of the Company and its
affiliates and as member of the board of directors or other similar governing
body of the Company and its affiliates, to the extent applicable.


 


Upon
termination of your employment hereunder, you shall return any and all of the
Company’s and its affiliates’ property (including, without limitation, all
computers, keys, credit cards, identification tags, documents and other
proprietary materials) and other materials.


 


Non-Compete/Non-Solicitation/Confidentiality/Assignment
of Inventions/Non-Disparagement


 


For so long as you are employed by the Company and
for one (1) year after the Termination Date (the “Non-Compete Period”),
you shall not, and shall not permit any of your affiliates to, directly or
indirectly, own, manage, control, participate in, consult with, render services
for, or in any manner engage in any activity or represent any business whether
now existing or hereafter established that competes with (or proposes or plans
to compete with) the Company or its affiliates (a “Competitor”) (as
determined in good faith by the Board) in any line of business engaged in or
under development by the Company; nor shall you entice, induce or encourage any
of the Company’s other employees to engage in any activity which, were it done
by you, would violate any provision hereof.


 


During the Non-Compete Period, you agree that you will not, directly or
indirectly: (i) attempt to contact, recruit or solicit any customers of
the Company; (ii) enter into any agreement with any party to recruit or
solicit such customers; (iii) request any customers of the Company to
curtail or cancel their business with the Company; (iv) induce or attempt
to induce any employee of the Company to leave the Company’s employment; (v) assist
any other person or entity in requesting or inducing any such employee of the
Company to leave such employment; or (vi) induce or attempt to induce any
employee of the Company to join with you in any capacity, directly or
indirectly.


 


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From
and after the date hereof (whether or not the conditions to the effectiveness
of the Effective Date occur), you will not disclose or use at any time, any
Confidential Information of which you are or become aware, whether or not such
information is developed by you, except to the extent that such disclosure or
use (i) is directly related to and required by your performance in good
faith of duties assigned to you by the Company or (ii) is required by applicable law; provided, however, that this sentence
shall not be deemed to prohibit you from complying with any subpoena, order,
judgment or decree of a court or governmental or regulatory agency of competent
jurisdiction (an “Order”); provided, further, however, that (i) you agree to provide the
Company with prompt written notice of any such Order and to assist the Company,
at the Company’s expense, in asserting any legal challenges to or appeals of
such Order that the Company in its reasonable discretion pursues, and
(ii) in complying with any such Order, you shall limit your disclosure
only to the Confidential Information that is expressly required to be disclosed
by such Order.


 


In
the event you are requested (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigate demand or similar
process) to disclose any part of the Confidential Information, you will notify
the Company promptly in writing so that the Company may seek an appropriate
protective order.  Any required
disclosure made shall be no more extensive than is necessary to meet the
minimum requirement imposed on you.  You
shall deliver to the Company on the Termination Date, or at any time the
Company may request, all memoranda, notes, plans, records, reports, computer
tapes and software and other documents and data (and copies thereof) relating
to the Confidential Information or the Work Product (as hereinafter defined) of
the business of the Company or any of its affiliates which you may then possess
or have under your control.


 


As
used herein, the term “Confidential Information” means information that
is not generally known to the public and that is used, developed or obtained by
the Company or any of its affiliates in connection with its business,
including, but not limited to, information, observations and data obtained by
you while employed by the Company or any predecessors thereof (including those
obtained prior to the date of hereof) concerning (i) the business or
affairs of the Company or such predecessors, (ii) products or services, (iii) fees,
costs and pricing structures, (iv) designs, (v) analyses, (vi) drawings,
photographs and reports, (vii) computer software, including operating
systems, applications and program listings, (viii) flow charts, manuals
and documentation, (ix) data bases, (x) accounting and business methods,
(xi) inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (xii) customers
and clients and customer or client lists, (xiii) other copyrightable
works, (xiv) all production methods, processes, technology and trade
secrets, and (xv) all similar and related information in whatever
form.  You hereby assign, transfer and
convey to the Company all of your right, title and interest to all inventions
discoveries or improvements (whether or not patented, copyrighted or
trademarked) conceived or developed by solely by you, or jointly by you with
others (“Work Product”), during the period during which you are employed
by the Company (and for the Non-Compete Period if and to the extent such Work
Product results from any work performed for the Company or any of its
affiliates, any use of the Company’s or any of its affiliates’ premises or
property or any use of the Company’s or any of its affiliates’ Confidential
Information).  You will promptly disclose
all Work Product to the Board and perform all actions reasonably requested by
the Board (whether prior to or after the Termination Date) to establish and
confirm the Company’s ownership of 


 


6

















 


such
Work Product (including, without limitation, the execution and delivery of
assignments, consents, powers of attorney and other instruments) and to provide
reasonable assistance to the Company or any of its affiliates (whether before
or after the Termination Date) in connection with the prosecution of any
applications for patents, trademarks, trade names, service marks or reissues
thereof or in the prosecution or defense of interferences relating to any Work
Product.  You recognize and agree that
the Work Product, to the extent copyrightable, constitutes works for hire under
the copyright laws of the United States or corresponding foreign law.


 


You
agree that, except as may be required by applicable law, you will not make, or
cause to be made, any statement, observation or opinion, or communicate any
information (whether oral or written), to any person other than the Board, that
disparages the Company or any of its affiliates (including, without limitation,
Morgan Stanley or any of its affiliates) or is likely in any way to harm the
business or the reputation of the Company or any of its affiliates (including,
without limitation, Morgan Stanley or any of its affiliates), or any of their
respective former, present, or future managers, directors, officers, members,
stockholders, employees, vendors, clients, successors or assigns.


 


If,
from and after the Termination Date, you violate any provision of this letter
agreement, then the Company’s obligations to make any payments or provide any
benefits to you hereunder, other than the obligation to pay the Accrued
Obligations, shall be terminated and of no further force or effect, without
limiting or affecting your obligations set forth herein under the caption “Non-Compete/Non-Solicitation/Confidentiality/Assignment
of Inventions/Non-Disparagement,” or the Company’s other rights and remedies
available at law or equity.


 


Because
your services are special, unique and extraordinary and because you have access
to Confidential Information and Work Product, the parties hereto agree that
money damages would be an inadequate remedy for any breach of this letter
agreement.  Therefore, in the event of a
breach or threatened breach of this letter agreement, the Company or its successors
or assigns may, in addition to other rights and remedies existing in their
favor at law or in equity, apply to any court of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce, or
prevent any violations of, the provisions hereof (without posting a bond or
other security).


 


Miscellaneous


 


Morgan Stanley shall be a third party beneficiary to
the agreements made in this letter agreement and shall have the right to
enforce such agreements directly against you. 
Except as set forth in the preceding sentence, nothing herein is
intended to, nor shall it, confer, expressly or by implication, upon any person
or entity any right or remedy under or by reason of this letter agreement,
whether as a purported third party beneficiary or otherwise.


 


This letter agreement and the rights and obligations
of the parties hereunder shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to its conflict of laws
principles.


 


In the event of a breach by you of the provisions of
this letter agreement, the Company is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, and 


 


7

















 


after
ten (10) days prior written notice to you, to set-off and apply any and
all amounts at any time held by the Company on your behalf and all indebtedness
at any time owing by the Company to you against any and all of your obligations
now or hereafter existing.


 


Lynne,
we are delighted to have you on the Tops team. 
I am confident that you will continue to help us make Tops an
outstanding business in upstate New York.


 


[Signature Page Follows]


 


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Please
acknowledge your agreement by your signature and return a signed copy to me.


 


	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TOPS MARKETS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Frank Curci

  
	
   

  	
   

  	
   

  	
  Name: Frank Curci

  
	
   

  	
   

  	
   

  	
  Title: President and Chief Executive Officer

  



 


AGREED AND ACKNOWLEDGED

This 25th day of September, 2010


 


	
  /s/ Lynne Burgess

  	
   

  	
   

  
	
  Lynne Burgess