SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED NATURAL FOODS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 05-0376157
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
260 Lake Road
Dayville, CT 06241
(Address of Principal Executive Offices) (Zip Code)
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United Natural Foods, Inc. 2004 Equity Incentive Plan
(Full Title of the Plan)
Steven H. Townsend
Chair of the Board, President and Chief Executive Officer
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
(Name and Address of Agent for Service)
(860) 779-2800
(Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
Paul V. Rogers, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
(202) 662-6000
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed
Maximum Proposed
Title of Each Class of Amount to be Offering Price Per Maximum Aggregate Amount of
Securities to be Registered Registered (1) Share (2) Offering Price (2) Registration Fee(3)
-----------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.01 per share ......... 1,000,000 shares $29.00 $29,000,000 $3,674.30
=======================================================================================================================
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, the number of shares of Common Stock registered hereby is subject to adjustment to prevent dilution by reason of any stock dividend, stock split, recapitalization or other similar transaction.
(2) Calculated in accordance with Rule 457(h) under the Securities Act on the basis of the average of the high and low sales prices per share of Common Stock on March 16, 2005, as reported by the Nasdaq National Market.
(3) Previously paid with the Registrant's filing on Form S-8 on March 21, 2005.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended. Such documents will not be filed with the Securities and Exchange Commission (the "Commission") either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
United Natural Foods, Inc. (the "Registrant") hereby incorporates by reference into this registration statement the following documents filed by it with the Commission:
1. Annual Report on Form 10-K for the fiscal year ended July 31, 2004, filed with the Commission on October 14, 2004;
2. Quarterly Reports on Form 10-Q for the fiscal quarter ended October 31, 2004, filed with the Commission on December 10, 2004, and for the fiscal quarter ended January 31, 2005, filed with the Commission on March 14, 2005;
3. Current Reports on Form 8-K, filed with the Commission on March 3, 2005 and March 4, 2005;
4. Description of the Registrant's Common Stock, par value $0.01 per share, contained in the Registrant's Registration Statement on Form 8-A filed with the Commission on October 11, 1996, including any amendment or report filed for the purpose of updating such description; and
5. All reports filed by the Registrant with the Commission under
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, since July 31, 2004.
In addition, all documents and reports filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the filing of such documents or reports.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
To the extent that any proxy statement is incorporated by reference herein, such incorporation shall not include any information contained in such proxy statement which is not, pursuant to the Commission's rules, deemed to be "filed" with the Commission or subject to the liabilities of Section 18 of the Exchange Act. Further, nothing in this registration statement shall be deemed to incorporate information furnished but not filed on Form 8-K.
The Registrant promptly will provide without charge to each person to whom a prospectus is delivered a copy of any or all information that has been incorporated herein by reference (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into such information) upon the written or oral request of such person directed to the Treasurer of the Registrant at its principal offices, 260 Lake Road, Dayville, Connecticut 06241, Telephone: (860) 779-2800.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
Article Ninth of the Registrant's Amended and Restated Certificate of Incorporation provides that a director or officer of the Registrant (a) shall be indemnified by the Registrant against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement reasonably incurred in connection with any litigation or other legal proceeding (other than an action by or in the right of the Registrant) brought against him by virtue of his position as a director or officer of the Registrant if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, and (b) shall be indemnified by the Registrant against all expenses (including attorneys' fees) and amounts paid in settlement reasonably incurred in connection with any action by or in the right of the Registrant by virtue of his position as a director or officer of the Registrant if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, except that no indemnification shall be made with respect to any such matter as to which such director or officer shall have been adjudged to be liable to the Registrant, unless a court determines that, despite such adjudication but in view of all the circumstances of the case, such person is entitled to indemnity for such expenses. Notwithstanding the foregoing, to the extent that a director or officer has been successful, on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, he is required to be indemnified by the Registrant against all expenses (including attorneys' fees) incurred in connection therewith. Expenses incurred in defending a civil or criminal action, suit or proceeding shall be advanced by the Registrant to a director or officer, at his request, upon receipt of an undertaking by the director or officer to repay such amount if it is ultimately determined that he is not entitled to indemnification.
Indemnification is required to be made unless the Registrant determines (in the manner provided in the Amended and Restated Certificate of Incorporation) that the applicable standard of conduct required for indemnification has not been met. In the event of a determination by the Registrant that the director or officer did not meet the applicable standard of conduct required for indemnification, or if the Registrant fails to make an indemnification payment within 60 days after such payment is claimed by such
person, such person is permitted to petition a court to make an independent determination as to whether such person is entitled to indemnification. As a condition precedent to the right of indemnification, the director or officer must give the Registrant notice of the action for which indemnity is sought and the Registrant has the right to participate in such action or assume the defense thereof.
Article Ninth of the Registrant's Amended and Restated Certificate of Incorporation further provides that the indemnification provided therein is not exclusive, and provides that in the event that the General Corporation Law of the State of Delaware is amended to expand the indemnification permitted to directors or officers, the Registrant must indemnify those persons to the fullest extent permitted by such law as so amended.
The Company has purchased a general liability insurance policy which covers certain liabilities of directors and officers of the Company arising out of claims based on acts or omissions in their capacity as directors or officers.
Article Eighth of the Registrant's Amended and Restated Certificate of Incorporation provides that, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The list of Exhibits is incorporated herein by reference to the Index of Exhibits.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dayville, State of Connecticut, on this 30th day of March, 2005.
UNITED NATURAL FOODS, INC.
By: /s/ Steven H. Townsend
-----------------------
Steven H. Townsend
Chair of the Board, President and
Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed on the 30th day of March, 2005, by the following persons in the capacities indicated.
Signature Title
--------- -----
/s/ Steven H. Townsend
-------------------------- Chair of the Board, President, Chief
Steven H. Townsend Executive Officer and Director
(principal executive officer)
/s/ Rick D. Puckett
-------------------------- Vice President, Chief Financial
Rick D. Puckett Officer and Treasurer (principal
financial and accounting officer)
/s/ Thomas B. Simone*
-------------------------- Vice Chair of the Board and Lead
Thomas B. Simone Independent Director
/s/ Michael S. Funk*
-------------------------- Director
Michael S. Funk
/s/ Richard Antonelli*
-------------------------- President of United Distribution and
Richard Antonelli Director
/s/ Gordon D. Barker*
-------------------------- Director
Gordon D. Barker
/s/ Joseph M. Cianciolo*
-------------------------- Director
Joseph M. Cianciolo
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Signature Title
--------- -----
/s/ Gail A. Graham*
-------------------------- Director
Gail A. Graham
/s/ James P. Heffernan*
-------------------------- Director
James P. Heffernan
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* By Rick D. Puckett, Attorney-in-Fact
EXHIBIT INDEX
Incorporated by Reference
----------------------------------------------------
Exhibit Filing Date Filed
Number Exhibit Description Form File No. Exhibit Herewith
-------------------------------------------------------------------------------------------------------------------------------
4.1 Amended and Restated Certificate of 10-Q 000-21531 3.1 3/14/2005
Incorporation
4.2 Certificate of Amendment to the Amended and 10-Q 000-21531 3.2 3/14/2005
Restated Certificate of Incorporation
4.3 Amended and Restated By-Laws 10-K 000-21531 3.3 10/29/2002
4.4 Specimen Certificate of Common Stock 10-K 000-21531 4.1 10/14/2004
5.1 Opinion of Covington & Burling X
23.1 Consent of KPMG LLP X
23.2 Consent of Covington & Burling (included in X
Exhibit 5.1)
24.1 Power of Attorney S-8 333-123462 3/21/2005
99.1 United Natural Foods, Inc. 2004 Equity 10-Q 000-21531 10.1 12/10/2004
Incentive Plan
99.2 Form of Restricted Stock Agreement pursuant X
to United Natural Foods, Inc. 2004 Equity
Incentive Plan
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Exhibit 5.1
[LETTERHEAD OF COVINGTON & BURLING]
March 30, 2005
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
Re: Post-Effective Amendment No. 1 to Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), for the registration of 1,000,000 shares of Common Stock, par value $0.01 per share (the "Shares"), of United Natural Foods, Inc., a Delaware corporation (the "Company"), issuable in connection with the equity awards granted under the Company's 2004 Equity Incentive Plan (the "2004 Plan").
In this connection, we have examined signed copies of the Registration Statement as filed with the Commission. We have also examined and relied upon the 2004 Plan, minutes of meetings of the stockholders and the Board of Directors of the Company as provided to us by the Company, record books of the Company as provided to us by the Company, and the Certificate of Incorporation and Bylaws of the Company, each as restated and/or amended to date, and such other documents as we have deemed necessary for purposes of rendering the opinions hereinafter set forth.
We have assumed that all signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform to the originals. We have assumed further that the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and legal right to issue the Shares.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when such Shares are issued and paid for in accordance with the terms of the 2004 Plan as contemplated by the Registration Statement, such Shares will be validly issued, fully paid and non-assessable.
We are members of the bar of the District of Columbia. We do not express any opinion herein on any laws other than the law of the District of Columbia and the Federal law of the United States of America.
United Natural Foods, Inc.
March 30, 2005
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/S/ COVINGTON & BURLING |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
United Natural Foods, Inc.:
We consent to incorporation by reference in this Post-Effective Amendment No. 1 to Form S-8 Registration Statement of United Natural Foods, Inc. of our reports dated August 26, 2004, relating to the consolidated balance sheets of United Natural Foods, Inc. and Subsidiaries as of July 31, 2004 and 2003 and the related consolidated statements of income, stockholders' equity and cash flows for each of the years in the three-year period ended July 31, 2004, and the related schedule, which reports appear in the July 31, 2004 annual report on Form 10-K of United Natural Foods, Inc.
/s/ KPMG LLP Providence, Rhode Island March 28, 2005 |
Exhibit 99.2
UNITED NATURAL FOODS, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") effective as of _____________, 20__, between United Natural Foods, Inc. ("Company") and ___________________ ("Participant"), who is an employee, consultant, or non-employee director of the Company or a Subsidiary, evidences the award of Restricted Stock to the Participant under the United Natural Foods, Inc. 2004 Equity Incentive Plan ("Plan").
In consideration of services rendered and agreed to be rendered, the Company makes this Award of Restricted Stock to the Participant named in the first sentence of this Agreement. This Agreement and the issuance or transfer of shares of the Company's common stock are conditioned on the following terms:
1. Definitions.
All capitalized terms that are not otherwise defined in this Agreement shall have the meanings set forth in the Plan.
(a) Grant Date means _________________, 20__ [same date as introductory paragraph]
(b) Participant, solely for purposes of this Agreement, means the employee, consultant or non-employee director designated above.
(c) Repurchase Option means the right and option of the Company to repurchase Restricted Stock pursuant to Sections 5 and 6 of this Agreement.
(d) Repurchase Price means the amount for which the Company may repurchase Shares from the Participant in exercising its Repurchase Option pursuant to Sections 5 and 6 of this Agreement.
(e) Restriction Period means the period commencing upon issuance of Shares in accordance with Section 2 and ending on the last date listed in Section 3 of this Agreement.
(f) Shares means Shares, as defined in Section 1(f) of the Plan, issued pursuant to this Agreement.
(g) Unvested Shares means Shares issued pursuant to this Agreement
as to which the Restriction Period has not expired under
Section 3 of this Agreement.
2. Grant or Purchase of Shares.
The Company hereby grants to the Participant, subject to the terms and conditions set forth in this Agreement and in the Plan, _____ Shares at a purchase price of $_______ per Share. The aggregate purchase price, if any, for the Shares shall be paid by the Participant by check payable to the order of the Company or such other method as may be acceptable to the Company. Upon receipt by the Company of any required payment for the Shares or upon the Grant Date (if no purchase price is required), the Company shall issue to the Participant one or more certificates in the name of the Participant for the number of Shares purchased by or granted to the Participant. The Participant agrees that the Shares shall be subject to the Repurchase Option set forth in Sections 5 and 6 of this Agreement and the restrictions on transfer set forth in Sections 7 and 8 of this Agreement.
3. Restriction Period.
(a) The Restriction Period under this Agreement shall expire, with respect to the number or percentage of Shares designated in the schedule below, at the close of business on the dates enumerated in the schedule below [or, if earlier, upon the death or disability (as defined in Section 14(a) of the Plan) of the Participant][and shall not expire earlier than such dates as a result of death or disability (as defined in Section 14(a) of the Plan) of the Participant]
Number or Percentage of Shares
or Additional Shares As To Which
Date Restrictions Lapse on This Date
----------------- -------------------------
----------------- -------------------------
----------------- -------------------------
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(b) All restrictions imposed on an Award [shall][shall not] lapse if, within twelve months after the Company obtains actual knowledge that a Change in Control has occurred, a Participant's employment with the Company and its Subsidiaries ceases for any reason. (See Section 14(c) of the Plan.)
4. Rights of the Participant as a Stockholder.
The Participant, as the owner of record of the Shares issued or
transferred pursuant to this Agreement, shall be entitled to all the rights of a
stockholder of the Company, including the right to vote, the right to receive
dividends payable either in stock or in cash, and the right to receive shares in
any recapitalization of the Company, subject, however, to the restrictions
stated in the Plan and this Agreement and referred to in the legend described in
Section 9 below. If the Participant receives any additional shares of stock of
the Company by reason of being the holder of the Shares issued or transferred
under this Agreement, all such additional shares of stock shall be subject to
the restrictions set forth in this Agreement that apply to such Shares, and all
certificates evidencing ownership of the additional shares of common stock shall
bear the legend described in Section 9 below.
5. Repurchase Option.
In the event the Participant ceases to be employed by the Company or a Subsidiary for any reason or no reason, the Company shall have the right and option (the "Repurchase Option") to purchase some or all of the Unvested Shares from the Participant, for the sum of $_________ [the amount in Section (2) above] per share (the "Repurchase Price"). In the event that such Unvested Shares were issued at no cost, the Company's Repurchase Option is the right to require forfeiture and transfer of some or all of the Unvested Shares to the Company without any payment by the Company.
6. Exercise of Repurchase Option and Closing.
(a) The Company may exercise the Repurchase Option by delivering or mailing to the Participant (or his estate), within 60 days after the termination of the Participant's employment, a written notice of exercise of the Repurchase Option. Such notice shall specify the number of Shares to be purchased (or forfeited, in the event the Shares were issued at no cost). If and to the extent the Repurchase Option is not so exercised by the giving of such a notice within such 60-day period, the Repurchase Option shall automatically expire and terminate effective upon the expiration of such 60-day period.
(b) Within 10 days after delivery to the Participant of the Company's notice of the exercise of the Repurchase Option pursuant to subsection (a) above, the Participant (or his estate) shall, pursuant to the provisions of the joint Escrow Instructions referred to in Section 8, tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase in accordance with the terms of this Agreement, duly endorsed in blank or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Promptly following its receipt of such certificate or certificates, the Company shall pay to the Participant the aggregate Repurchase Price, if any, for such Shares; provided, however, that any delay in making such payment shall not invalidate the Company's exercise of the Repurchase Option with respect to such Shares.
(c) After the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the provisions of Section 4 shall not apply, and the Company shall not pay any dividend to the Participant on account of such Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, insofar as permitted by law, treat the Company as the owner of record of such Shares.
(d) The Repurchase Price, if any, may be payable, at the option of the Company, in cancellation of all or a portion of any outstanding indebtedness of the Participant to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon exercise of the Repurchase Option, and any fraction of a Share shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Repurchase Option to one or more persons or entities.
7. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively "transfer") any Shares, or any interest therein, that are subject to the Repurchase Option.
8. Escrow The Participant shall, upon the execution of this Agreement, execute joint Escrow Instructions in the form attached to this Agreement as Exhibit A. The joint Escrow Instructions shall be delivered to the Secretary of the Company, as escrow agent thereunder. The Participant shall deliver to such escrow agent a stock assignment duly endorsed in blank and hereby instructs the Company to deliver to such escrow agent, on behalf of the Participant, the certificate(s) evidencing the Shares issued hereunder. Such materials shall be held by such escrow agent pursuant to the terms of such Joint Escrow Instructions. The Participant shall have the right to withdraw from the escrow any Shares as to which the Repurchase Option has terminated or expired.
9. Restrictive Legends.
Each certificate representing ownership of Shares acquired pursuant to this Agreement that is delivered during the Restriction Period shall have affixed thereto, in addition to any legends required under the Plan or under federal or state securities laws, a legend in substantially the following form:
"The shares of stock represented by this certificate have been issued or transferred subject to a certain Restricted Stock Agreement between the Corporation and the registered owner of such shares (or his predecessor in interest), and are subject to restrictions on transfer and an option to purchase set forth in that Agreement. The Restricted Stock Agreement is available for inspection without charge at the office of the Secretary of the Corporation."
10. Effect of Prohibited Transfer.
The Company shall not be required (a) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement or the Plan or (b) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
11. Withholding and Section 83(b) Election.
(a) The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the purchase by or grant to the Participant of the Shares or the lapse of the Repurchase Option, and to require that the Company be paid the amount of any federal, state, or local taxes required by law to be withheld.
(b) The Participant acknowledges that he has been informed of the availability of making an election in accordance with Section 83(b) of the Code, as amended; that such election must be filed with the Internal Revenue Service within 30 days of the transfer of shares to the Participant; and that the Participant is solely responsible for making such election.
12. Amendment. The Committee may in its sole discretion amend, modify, or terminate this Agreement, including but not limited to substituting therefore another Award of the same or a different type or changing the Restriction Period. Except as otherwise provided in the Plan or in this Agreement or as necessary to conform this Agreement to mandatory provisions of applicable federal or state laws, regulations, or rulings, the Committee shall obtain the Participant's consent before it amends this Agreement in a manner that significantly reduces the Participant's rights or benefits under this Agreement.
13. Determinations by Committee. Determinations by the Committee shall be final, binding and conclusive with respect to the interpretation of the Plan and this Agreement.
14. Provisions of the Plan. This grant is subject to the provisions of the Plan, which is incorporated into this Agreement by reference and a copy of which is furnished to the Participant with this Agreement.
15. Notices and Payments. Any notice required or permitted to be given to the Participant under this Agreement shall be in writing and shall be deemed effective upon personal delivery or upon deposit in the United States mail with postage and fees prepaid. Any notice or communication required or permitted to be given to the Company under this Agreement shall be in writing and shall be deemed effective only upon receipt by the Secretary of the Company at the Company's principal office.
16. Waiver. The waiver by the Company of any provision of this Agreement at any time or for any purpose shall not operate as or be construed to be a waiver of the same or any other provision of this Agreement at any subsequent time or for any other purpose.
17. Governing Law. The validity and construction of this Agreement shall be governed by the laws of the State of Delaware, excluding any conflicts or choice of law rules or principles that might otherwise refer construction or interpretation of any provision of this Agreement to the substantive law of another jurisdiction.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by an officer of the Company, and the Participant has accepted and signed this Agreement, all on the day and year first mentioned above.
UNITED NATURAL FOODS, INC.
By: __________________________________
Title: __________________________________
Date: __________________________________
EXHIBIT A
UNITED NATURAL FOODS, INC.
JOINT ESCROW INSTRUCTIONS
[Date of Restricted Stock Agreement]
[Name of Secretary of the Company]
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
Dear _____________:
As Escrow Agent for United Natural Foods, Inc., a Delaware corporation (the "Company"), and the undersigned person ("Holder"), you are hereby authorized and directed to hold the documents delivered to you pursuant to the terms of that certain Restricted Stock Agreement (the "Agreement") of even date herewith, to which a copy of these joint Escrow Instructions is attached, in accordance with the following instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit with you any certificates evidencing Shares (as defined in the Agreement) to be held by you hereunder and any additions and substitutions to said Shares. Holder does hereby irrevocably constitute and appoint you as his attorney-in-fact and agent for the term of this escrow to execute with respect to such Shares an documents necessary or appropriate to make such Shares negotiable and to complete any transaction herein contemplated. Subject to the provisions of this paragraph 1 and the terms of the Agreement, Holder shall exercise all rights and privileges of a stockholder of the Company while the Shares are held by you.
2. Closing of Purchase.
(a) Upon any purchase by the Company of the Shares pursuant to the Agreement, the Company shall give to Holder and you a written notice specifying the purchase price for the Shares, as determined pursuant to the Agreement, and the time for a closing hereunder (the "Closing") at the principal office of the Company. Holder and the Company hereby irrevocably authorize and direct you to close the transaction contemplated by such notice in accordance with the terms of said notice.
(b) At the Closing, you are directed (a) to date the stock assignment form or forms necessary for the transfer of the Shares, (b) to fill in on such form or forms the number of Shares being transferred, and (c) to deliver same, together with the certificate or certificates evidencing the Shares to be transferred, to the Company against the simultaneous delivery to you of the purchase price, if any, for the Shares being purchased or granted pursuant to the Agreement.
3. Withdrawal. The Holder shall have the right to withdraw from this escrow any Shares as to which the Repurchase Option (as defined in the Agreement) has terminated or expired.
4. Duties of Escrow Agent.
(a) Your duties hereunder may be altered, amended, modified or revoked only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by you to be genuine and to have been signed or presented by the proper party or parties. You shall not be personally liable for any act you may do or omit to do hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good faith and in the exercise of your own good judgment, and any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive evidence of such good faith.
(c) You are hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or company, excepting only orders or process of courts of law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case you obey or comply with any such order, judgment or decree of any court, you shall not be liable to any of the parties hereto or to any other person, firm or company by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder.
(e) You shall be entitled to employ such legal counsel and other experts as you may deem necessary properly to advise you in connection with your obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall terminate if (i) you cease to be Secretary of the Company or (ii) you resign by written notice to each party. In the event of a termination under clause (i), your successor as Secretary shall automatically and without notice become Escrow Agent hereunder; in the event of a termination under clause (ii), the Company shall appoint a successor Escrow Agent hereunder.
(g) If you reasonably require other or further instruments in connection with these joint Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
(h) It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the securities held by you hereunder, you are authorized and directed to retain in your possession without liability to anyone all or any part of said securities until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but you shall be under no duty whatsoever to institute or defend any such proceedings.
(i) These joint Escrow Instructions set forth your sole duties with respect to any and all matters pertinent hereto and no implied duties or obligations shall be read into these joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless against any and all damages, losses, liabilities, costs, and expenses, including attorneys' fees and disbursements, for anything done or omitted to be done by you as Escrow Agent in connection with this Agreement or the performance of your duties hereunder, except such as shall result from your gross negligence or willful misconduct.
5. Notice. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail with postage and fees prepaid, addressed to each of the other parties thereunto entitled at the following addresses, or at such other addresses as a party may designate by ten days' advance written notice to each of the other parties hereto.
if to the Company: United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
Attn: [Name of Sender of these Instructions]
if to the Holder: Notices to Holder shall be sent to the
address setforth below Holder's signature
below.
if to the Escrow Agent: [Name of Secretary of the Company]
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
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6. Miscellaneous.
(a) By signing these Joint Escrow Instructions, you become a party hereto only for the purpose of said Joint Escrow Instructions, and you do not become a party to the Agreement.
(b) This instrument shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Very truly yours,
United Natural Foods, Inc.
By: ____________________
[Name of Sender]
[Title of Sender]
Holder:
Address: ______________________
Date Signed: ___________________
Escrow Agent: