UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-K

 

Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the fiscal year ended December 31, 2016.

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: 000-31127

 

SPARTANNASH COMPANY

(Exact Name of Registrant as Specified in Its Charter)

 

 

Michigan

 

38-0593940

(State or Other Jurisdiction) of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

 

850 76th Street, S.W.

P.O. Box 8700

Grand Rapids, Michigan

 

49518-8700

(Address of Principal Executive Offices)

 

(Zip Code)

Registrant’s telephone number, including area code: (616) 878-2000

Securities registered pursuant to Section 12(b) of the Securities Exchange Act:

 

Title of Class

 

Name of Exchange on which Registered

Common Stock, no par value

 

NASDAQ Global Select Market

Securities registered pursuant to Section 12(g) of the Securities Exchange Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes       No  

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes       No  

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       No  

Indicate by a check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File requirement to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 229.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes       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.  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company (as defined in Rule 12b-2 of the Securities Exchange Act).

Large accelerated filer

 

 

Accelerated filer

 

 

Non-accelerated filer

 

 

Smaller reporting company

 

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes       No  

The aggregate market value of the registrant’s voting and non-voting common equity held by non-affiliates based on the last sales price of such stock on the NASDAQ Global Select Market on July 15, 2016 (which was the last trading day of the registrant’s second quarter in the fiscal year ended December 31, 2016) was $1,131,571,729.

The number of shares outstanding of the registrant’s Common Stock, no par value, as of February 28, 2017 was 37,519,304, all of one class.

DOCUMENTS INCORPORATED BY REFERENCE

 

Part III, Items 10, 11, 12, 13 and 14

  

Proxy Statement for Annual Meeting to be held May 23, 2017


 

 

 

 


Forward-Looking Statements

The matters discussed in this Annual Report on Form 10-K, in the Company’s press releases and in the Company’s website-accessible conference calls with analysts and investor presentations include “forward-looking statements” about the plans, strategies, objectives, goals or expectations of SpartanNash Company and subsidiaries (“SpartanNash” or “the Company”). These forward-looking statements are identifiable by words or phrases indicating that SpartanNash or management “expects,” “anticipates,” “plans,” “believes,” or “estimates,” or that a particular occurrence or event “will,” “may,” “could,” “should,” or “will likely” result, occur or be pursued or “continue” in the future, that the “outlook” or “trend” is toward a particular result or occurrence, that a development is an “opportunity,” “priority,” “strategy,” “focus,” that the Company is “positioned” for a particular result, or similarly stated expectations. Accounting estimates, such as those described under the heading “Critical Accounting Policies” in Item 7 of this Annual Report on Form 10-K, are inherently forward-looking. The Company’s asset impairment and restructuring cost provisions are estimates and actual costs may be more or less than these estimates and differences may be material. Undue reliance should not be placed on these forward-looking statements, which speak only as of the date of the Annual Report, other report, release, presentation, or statement.

In addition to other risks and uncertainties described in connection with the forward-looking statements contained in this Annual Report on Form 10-K and other periodic reports filed with the Securities and Exchange Commission (“SEC”), there are many important factors that could cause actual results to differ materially. These risks and uncertainties include general business conditions, changes in overall economic conditions that impact consumer spending, the Company’s ability to integrate acquired assets, the impact of competition and other factors which are often beyond the control of the Company, and other risks listed in Part I, “Item 1A. Risk Factors,” of this report and risks and uncertainties not presently known to the Company or that the Company currently deems immaterial.

 

This section and the discussions contained in Item 1A. “Risk Factors,” and in Item 7, subheading “Critical Accounting Policies” in this report, both of which are incorporated here by reference, are intended to provide meaningful cautionary statements for purposes of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. This should not be construed as a complete list of all of the economic, competitive, governmental, technological and other factors that could adversely affect the Company’s expected consolidated financial position, results of operations or liquidity. Additional risks and uncertainties not currently known to SpartanNash or that SpartanNash currently believes are immaterial also may impair its business, operations, liquidity, financial condition and prospects. The Company undertakes no obligation to update or revise its forward-looking statements to reflect developments that occur or information obtained after the date of this Annual Report.

 

PART I

 

Item 1. Business

Overview

SpartanNash Company (together with its subsidiaries, “SpartanNash” or “the Company”) is a Fortune 400 company whose core businesses include distributing grocery products to independent grocery retailers (“independent retailers”), select national retailers, food service distributors, its corporate owned retail stores, and United States (“U.S.”) military commissaries. SpartanNash serves customer locations in 47 states and the District of Columbia, Europe, Cuba, Puerto Rico, Bahrain and Egypt. As of December 31, 2016, the Company operated 157 supermarkets, primarily under the banners of Family Fare Supermarkets, VG’s Food and Pharmacy, D&W Fresh Market, Sun Mart and Family Fresh Market . Through its Military division, SpartanNash is the leading distributor of grocery products to military commissaries in the United States. The Company operates three reportable business segments: Food Distribution, Military and Retail. For the fiscal year ended December 31, 2016, the Company generated net sales of approximately $7.7 billion.

Established in 1917 as a cooperative grocery distributor, Spartan Stores Inc. (“Spartan Stores”) converted to a for-profit business corporation in 1973. In January 1999, Spartan Stores began to acquire retail supermarkets in its focused geographic regions. In August 2000, Spartan Stores common stock became listed on the NASDAQ Stock Market under the symbol “SPTN.” On November 19, 2013, Spartan Stores merged with Nash-Finch Company (“Nash-Finch”) and the combined company was named SpartanNash Company. Unless the context otherwise requires, the use of the terms “SpartanNash,” and “the Company” in this Annual Report on Form 10-K refers to the surviving corporation SpartanNash Company and, as applicable, its consolidated subsidiaries.

On January 6, 2017, the Company acquired certain assets and assumed certain liabilities of Caito Foods Service (“Caito”), a leading supplier of fresh fruit and vegetables as well as value-added solutions for retailers, and its affiliate, Blue Ribbon Transport (“BRT”), which provides temperature-controlled distribution and logistics services throughout North America. The acquisition strengthens the Company’s fresh product offerings and value-added services, such as freshly-prepared centerplate and side dish categories, and also complements the Company’s existing supply chain network.

- 2-


The Company’s hybrid business model supports the close functioning of its Food Distribution, Military and Retail operations, optimizing the natural complements of each business segment while a lso enhancing the ability of the Company’s independent retailers to compete long-term in the grocery industry. The model produces operational efficiencies, helps stimulate distribution product demand, and provides sharper visibility and broader business gr owth options. In addition, the Food Distribution, Military and Retail diversification provides added flexibility to pursue the best long-term growth opportunities in each segment.

SpartanNash has established key management priorities for the longer-term strategy of the Company, including establishing a well-differentiated product offering for its Food Distribution, Military and Retail segments, and additional strategies designed to create value for its shareholders, retailers and customers. These priorities are:

Food Distribution:

 

Integrate and leverage the recent acquisition of Caito Foods Service to strengthen the Company’s produce and value-added produce and meal solution offerings and increase the size and scope of its customer base.

 

Provide innovative and impactful solutions for customers.

 

Leverage retail competency and combined distribution platform capabilities to increase business within the existing account base and to potentially add new distribution categories and take advantage of current competitive dynamics to supply new customers.

 

Proactively pursue financially and strategically attractive acquisition opportunities.

 

Increase private brand penetration and overall purchase concentration.

 

Enhance the value-added offer to exceed the expectations and further meet the needs of customers.

Military:

 

Highlight the resale and sale opportunities available to potential Military customers in all segments to attract additional customers to the Company’s Military platform.

 

Continue to partner with Coastal Pacific Food Distributors, the second largest military distributor of grocery products, in terms of revenue, to leverage the advantage of a worldwide distribution network.

 

Partner with the Defense Commissary Agency (“DeCA”) in its new initiative to offer a variety of private brand products to military commissaries worldwide and begin shipping these products during the first half of fiscal 2017.

Retail:

 

Focus on high quality fresh offerings, value pricing, customer convenience and the associates at corporate owned retail stores.

 

Drive a lean and efficient operating cost structure to increase profits and compete effectively.

 

Continue to rationalize existing store base to maximize capital efficiency and enhance profitability.

 

Make targeted capital investments to modernize and improve the existing store base.

 

Expand consumer relationships with pharmacy, e-commerce and fuel, and personalize target customer offers.

Supply Chain:

 

Leverage competitive position, scale and financial flexibility to further grow the distribution channel.

 

Gain efficiencies through productivity and efficiency initiatives and by leveraging one supply chain network across segments, and further realize benefits from continued investments in the supply chain network.

 

Explore synergies with the acquisition of Blue Ribbon Transport to seek opportunities to optimize the inbound lanes as a larger, integrated company.

Food Distribution Segment

The Company’s Food Distribution segment uses a multi-platform sales approach to distribute grocery products to independent retailers, select national retailers, food service distributors, and the Company’s corporate owned retail stores. Total net sales from the Company’s Food Distribution segment, including sales to corporate owned retail stores that are eliminated in the consolidated financial statements, were approximately $4.4 billion for the fiscal year ended December 31, 2016. As of the end of fiscal 2016, the Company believes it is the sixth largest wholesale distributor, in terms of annual revenue, to supermarkets in the United States.

- 3-


Customers. The Company’s Food Distribution segment supplies grocery products to a diverse group of approximately 2,1 00 independent retailers with operations ranging from a single store to supermarket chains with over 30 stores, food service distributors and the Company’s corporate owned retail stores. As of December 31, 2016, the Company operates in 47 states by leverag ing a platform of 17 distribution centers servicing the Food Distribution and Military segments. This extensive geographic reach drives economies of scale and provides opportunities for independent retailers to purchase products at competitive prices in or der to compete long-term in the grocery industry.

Through its Food Distribution segment, the Company also services select national retailers, including Dollar General. Sales to Dollar General are made to approximately 13,000 of its retail locations, with sales representing 11.2% and 10.7% of consolidated net sales for fiscal 2016 and 2015, respectively. Except for these two fiscal years, sales to this customer did not exceed 10% of consolidated net sales for any other year presented. The Company’s Food Distribution customer base is diverse, and no other single customer exceeded 5% of consolidated net sales in any of the years presented.

The Company’s five largest Food Distribution customers (excluding corporate owned retail stores) accounted for approximately 39% of total Food Distribution net sales for the fiscal year ended December 31, 2016. In addition, approximately 83% of Food Distribution net sales for the fiscal year ended December 31, 2016, including sales to corporate owned retail stores, are either covered under supply agreements with independent retailers or are intercompany sales.

The recent acquisition of Blue Ribbon Transport on January 6, 2017 expanded the Company’s capability to offer temperature-controlled distribution and logistics services throughout North America.

Products. The Company’s Food Distribution segment provides a selection of approximately 60,000 stock-keeping units (SKUs) of nationally branded and private brand grocery products (see “Marketing and Merchandising – Private Brands”) and perishable food products, including dry groceries, produce, dairy products, meat, delicatessen items, bakery goods, frozen food, seafood, floral products, general merchandise, beverages, tobacco products, health and beauty care products and pharmacy. With the acquisition of Caito, the product offering will include fresh protein-based foods, prepared meals, and value-added products such as fresh-cut fruits and vegetables and prepared salads. These product offerings, along with best in class services, allow independent retailers the opportunity to support the majority of their operations with a single supplier. Meeting consumers’ needs will continue to be SpartanNash’s priority as it executes its hybrid business model of Food Distribution, Military and Retail operations.

Additional Services. The Company offers and provides many of its independent Food Distribution customers with value-added services, including:

 

●   Site identification and market analysis

  

●   Coupon redemption

●   Store planning and development

  

●   Product reclamation

●   Marketing, promotion and advertising

  

●   Graphic services

●   Website design, technology and information services

  

●   Category management

●   Accounting, payroll and tax preparation

  

●   Real estate services

●   Human resource services

  

●   Construction management services

●   Fuel technology

  

●   Pharmacy retail and procurement services

●   Account management field sales support

  

●   Retail pricing

●   InSite and NetNash Business to Business communications

  

●   Security consulting and investigation services

●   Digital coupons

 

●   Demo program

 

 

 

Military Segment

The Company’s Military segment contracts with manufacturers and brokers to distribute a wide variety of grocery products primarily to U.S. military commissaries and exchanges.

The distributed grocery products are delivered to over 160 military commissaries and over 440 exchanges located in more than 45 states across the United States and the District of Columbia, Europe, Cuba, Puerto Rico, Bahrain and Egypt. The Company’s distribution centers are strategically located among the largest concentration of military bases in the areas the Company serves and near Atlantic ports used to ship grocery products to overseas commissaries and exchanges. The Company’s Military segment has an outstanding reputation as a distributor focused on U.S. military commissaries and exchanges, based in large measure on its excellent service metrics, which include fill rate, on-time delivery and shipping accuracy.

- 4-


DeCA operates a chain of over 238 commissaries on U.S. military installations throughout the world that sell approximately $5.2 billion of grocery products annually. DeCA contracts with manufacturers to obtain grocery product s for the commissary system. Manufacturers either deliver the products to the commissaries themselves or, more commonly, contract with distributors such as SpartanNash to deliver the products. Manufacturers must authorize the distributors as their official representatives to DeCA, and the distributors must adhere to DeCA’s frequent delivery system (“FDS”) procedures governing matters such as product identification, ordering and processing, information exchange and resolution of discrepancies. The Company ob tains distribution contracts with manufacturers through competitive bidding processes and direct negotiations.

As of December 31, 2016, the Company has approximately 250 distribution contracts representing approximately 600 manufacturers that supply products to the DeCA commissary system and various exchange systems. Generally, larger contracts or those subject to a request-for-proposal process have definitive durations, whereas smaller contracts generally have indefinite terms; and all contract types allow for termination by either party without cause upon 30 days prior written notice to the other party. The contracts typically specify the commissaries and exchanges to supply on behalf of the manufacturer, the manufacturer’s products to be supplied, service and delivery requirements, and pricing and payment terms. The Company’s ten largest manufacturer customers represented approximately 43% of the Company’s Military segment sales for the fiscal year ended December 31, 2016.

As commissaries need to be restocked, DeCA identifies the manufacturer with which an order is to be placed, determines which distributor is the manufacturer’s official representative for a particular commissary or exchange location, and then places a product order with that distributor under the auspices of DeCA’s master contract with the applicable manufacturer. The distributor selects that product from its existing inventory, delivers it to the commissary or commissaries designated by DeCA, and bills the manufacturer for the product shipped. The manufacturer then bills DeCA under the terms of its master contract. Overseas commissaries are serviced in a similar fashion, except that a distributor’s responsibility is to deliver products as and when needed to the port designated by DeCA, which in turn bears the responsibility for shipping the product to the applicable commissary or overseas warehouse.

After the Company ships a particular manufacturer’s products to commissaries in response to an order from DeCA, the Company invoices the manufacturer for the product price plus a drayage fee that is typically based on a percentage of the purchase price, but may in some cases be based on a dollar amount per case or pound of product sold. The Company’s order handling and invoicing activities are facilitated by procurement and billing systems developed specifically for the Military business, which address the unique aspects of its business, and provides the Company’s manufacturer customers with a web-based, interactive means of accessing critical order, inventory and delivery information.

 

On December 8, 2016, the Company was competitively awarded by DeCA to be the exclusive worldwide supplier of a variety of private brand products to U.S. military commissaries for the first time in the agency’s history. DeCA stated that its key selection criteria in choosing its partner were simplicity, ease and efficiency of implementation, cost savings, and ability to support and grow the program in the future. The Company will begin distribution of certain private brand products in the first half of fiscal 2017.

 

Retail Segment

As of December 31, 2016, the Company operated 157 corporate owned retail stores in the Midwest and Great Lakes regions primarily under the banners of Family Fare Supermarkets, VG’s Food and Pharmacy, D&W Fresh Markets, Sun Mart and Family Fresh Market . Retail banners and numbers of stores are more fully detailed in Item 2, “Properties,” of this report.

The Company’s neighborhood market strategy distinguishes its corporate owned retail stores from supercenters and limited assortment stores by emphasizing convenient locations, demographically-targeted merchandise selections, high-quality fresh offerings, customer service, value pricing and community involvement.

The Company’s corporate owned retail stores offer nationally branded and private brand grocery products (see “Marketing and Merchandising – Private Brands”), as well as perishable food products including dry groceries, produce, dairy products, meat, delicatessen items, bakery goods, frozen food, seafood, floral products, general merchandise, beverages, tobacco products and health and beauty care products. The private brand grocery products provide higher retail margins and may help improve customer loyalty by providing quality products at affordable prices. The Company also offered pharmacy services in 90 of its corporate owned retail stores as of December 31, 2016. The Company’s corporate owned retail stores range in size from approximately 14,000 to 89,800 total square feet, or on average, approximately 41,000 total square feet per store.

As of December 31, 2016, the Company operated 30 fuel centers primarily at its corporate owned retail stores operating under the banners Family Fare Quick Stop , D&W Quick Stop , VG’s Quick Stop, Forest Hills Quick Stop and Sun Mart Express Fuel . These fuel centers offer refueling facilities and in the adjacent convenience store, a limited variety of popular consumable products. The Company’s prototypical Quick Stop stores are approximately 1,100 square feet in size. The Company has experienced increased supermarket sales upon opening fuel centers and initiating cross-merchandising activities.

- 5-


The Company’s corporate owned retail stores are primarily the result of acq uisitions prior to June 2015, including the merger with Nash-Finch Company in November 2013. The following chart details the changes in the number of corporate owned retail stores over the last five fiscal years, including the transition year ended Decembe r 28, 2013:

 

 

March 30,

 

 

December 28,

 

 

January 3,

 

 

January 2,

 

 

December 31,

 

 

2013

 

 

2013

 

 

2015

 

 

2016

 

 

2016

 

Number of stores at beginning of year

 

96

 

 

 

101

 

 

 

172

 

 

 

162

 

 

 

163

 

Stores acquired or added during year

 

5

 

 

 

78

 

 

 

1

 

 

 

7

 

 

 

 

Stores closed or sold during year

 

 

 

 

7

 

 

 

11

 

 

 

6

 

 

 

6

 

Number of stores at end of year

 

101

 

 

 

172

 

 

 

162

 

 

 

163

 

 

 

157

 

During the fiscal year ended December 31, 2016, the Company completed twelve major remodels, four of which were initiated in fiscal 2015, and also opened one new fuel center . In connection with the remodeling efforts, the Company converted eight corporate owned retail stores to the Family Fare Supermarkets banner.

 

The Company expects to continue making targeted capital investments during fiscal 2017 by performing a number of major remodels at select corporate owned retail stores and, if opportunities arise, by either opening additional fuel centers or entering into partnerships with existing fuel operations. The Company will continue to evaluate its store base and may close or sell up to ten stores during the course of 2017 depending on circumstances and opportunities. In February 2017, two low-performing stores were closed upon lease expiration. The Company evaluates proposed capital projects based on demographics and competition within each geographic area, and prioritizes projects based on their expected returns on investment. Approval of proposed capital projects requires a projected internal rate of return that meets or exceeds the Company’s policy; however, the Company may undertake projects that do not meet this standard to the extent they represent required maintenance or necessary infrastructure improvements. In addition, the Company performs a post completion review of financial results versus its expectation on all major projects. The Company believes that focusing on such measures provides an appropriate level of discipline in its capital expenditures process.

Supply Chain Network

The Company has further integrated its supply chain organization to optimize the network, increase asset utilization and leverage programs that will drive more value for its retailers, customers, and shareholders. The Company believes its distribution facilities are strategically located to efficiently serve current customers and also have the available capacity to support future growth. The Company continually evaluates inventory movement and assigns SKUs to appropriate areas within its distribution facilities to reduce the time required to stock and pick products and to achieve additional efficiencies.

The Company has several projects planned for the fiscal year ending December 30, 2017. These projects are designed to further integrate the Company’s supply chain capabilities across distribution centers and thereby increase efficiency of both inbound and outbound distribution operations. To demonstrate the Company’s commitment across the entire network, the Company has invested in uniformly branding all tractors with a new logo that embodies the Company’s tagline, “ Taking Food Places®. ” Newly purchased trailers will also receive the new logo layout. In 2017, the Company expects to complete the branding of all existing trailers within the SpartanNash supply chain. This will allow the Company to increase asset utilization by sharing resources across all facilities.

Supply Chain Functions . The Company’s distribution network is comprised of 17 distribution centers, which are utilized to service the Food Distribution and Military segments. The distribution centers provide for approximately 8.3 million total square feet of warehouse space.

The Company operates a fleet of approximately 500 over-the-road tractors, 500 dry vans, and 1,000 refrigerated trailers. Through routing optimization systems, the Company carefully manages the more than 50 million miles its fleet drives annually servicing military commissaries, exchanges, independent retailers, select national retailers and corporate owned retail stores. The Company is also expanding its effort to equip a portion of its refrigerated trailers with a refrigeration unit that has the capability to run on electric standby, offering an economical and environmentally friendly alternative to diesel fuel. The Company remains committed to the ongoing investment required to maintain a best in class fleet while focusing on low cost and environmentally friendly solutions.

Products

The Company offers a wide variety of grocery products, general merchandise and health and beauty care, pharmacy, fuel and other items and services. Consolidated net sales include the net sales of its Food Distribution business, which exclude sales to corporate owned retail stores, the net sales of its Military segment, and the net sales of its corporate owned retail stores and fuel centers in its Retail segment.

- 6-


Refer to Part II, Item 8 of this report under the Reporting Segment Information section in the notes to consolidated financial statements for additional information about the Company’s sales by type of similar products and services, which is herein incorporated by reference.

Reporting Segment Financial Data

More detailed information about the Company’s reporting segments can be found in Part II, Item 8 of this report under the Reporting Segment Information section in the notes to consolidated financial statements, which is herein incorporated by reference. All of the Company’s sales and assets are in the United States of America.

Discontinued Operations

Certain of the Company’s Food Distribution and Retail operations have been recorded as discontinued operations. Discontinued operations consist of certain locations that have been closed or sold.

Marketing and Merchandising

General. The Company continues to align its marketing and merchandising strategies with current consumer behaviors by delivering initiatives centered on personalization, value beyond price, and health and wellness – all designed to deliver a superior shopping experience for customers. These strategies seek to use consumer data and insights to deliver products, promotions, content and experiences to satisfy the consumer’s needs.

The Company believes that data from its “ yes ” loyalty program gives it competitive insight into consumer shopping behavior. This gives the Company the flexibility to adapt to rapidly changing conditions by making tactical and more effective adjustments to its marketing and merchandising programs. In fiscal 2016, the Company expanded its yes program to the remaining Family Fare stores in the Omaha market and to the remaining Family Fresh Markets stores in Minnesota and Wisconsin.  

The Company’s investment to further strengthen its knowledge of the consumer has continued to drive process improvements in several areas: a robust self-serve data tool that enables category managers to make consumer centric merchandising and marketing decisions; new Key Value Items analyses that align pricing for the most price sensitive items with the most price sensitive customer segments; the development of a customer strategy that will be used to guide its internal business processes and go-to market strategy; and the evolution of its customer segmentation that takes it beyond the purchase and transactional behavior to lifestyle. These accomplishments better position the Company to deliver a shopping experience that constantly responds to the changing needs of its consumers.  

The Company has been building tools and capabilities to enable relevant, personalized content across its marketing channels and focusing on expanding its digital, social and mobile capabilities. The Company also implemented a number of capabilities that enables it to more effectively target consumers and more efficiently develop and execute campaigns. This will help the Company to further build longer-term customer loyalty, maintain efficient marketing spend and increase return on investment, improve its sales growth opportunities, and further strengthen its business position. As the Company continues to build these capabilities, along with its other strategies, the Company will continue to share its marketing and merchandising learnings and best practices across its wholesale customer base.  

The Company believes it can differentiate itself from its competitors by offering a full set of services, from value added services in its Food Distribution segment to the inclusion of fuel centers and Starbucks Coffee or Caribou Coffee shops in certain corporate owned retail stores. The Company also provides consumers with fuel purchase discounts at fuel centers through its corporate owned retail stores or by partnering with third party fuel centers. In addition, the Company has refined its fuel promotions and executed several pilots to further enhance the program’s value to the customer.

As of December 31, 2016, the Company offered pharmacy services in 90 of its corporate owned retail stores and operates three free-standing pharmacy locations. The Company believes the pharmacy service offering in its corporate owned retail stores is an important part of the consumer experience. In its Michigan pharmacies and a number of its pharmacies in Minnesota and Nebraska, the Company offers free medications (antibiotics, diabetic medications and prenatal vitamins) along with generic drugs for $4 and $10, and food solutions for preventative health and education for its customers.

- 7-


As consumers increasingly emphasize health and wellness, the Company believes that it can be a provider and resource for products and services that will support their needs. In fiscal 2016, the Company continued to expand its offerings and partnerships and undertook the following key initiatives. First, the Company continued to expand its “Livi ng Well” product offerings through store-within-a-store and in-line merchandising concepts. Second, the Company established partnerships with health systems and providers to provide wellness specialists-led store tours to help educate consumers to make hea lthier food choices. Third, the Company increased its retail product offering and assortment for organic, gluten-free, meat-free, non-GMO products and other healthier food options. The Company is also proud to work with local farmers and vendors to provide as many locally grown produce and products possible in its stores.  

Private Brands. SpartanNash currently markets and distributes over 7,100 total private brand items primarily under the following brands: Spartan ™ and Our Family (national brand equivalent or better grocery products); Open Acres ™ (fresh products); Top Care (health and beauty care); Tippy Toes (baby); Full Circle ™ (organic and wellness); B-leve (premium bath and beauty); PAWS Premium (pet supplies); and Valu Tim e (value) . Open Acres is a new proprietary “fresh” brand launched in fiscal 2016 that includes produce, meat, delicatessen items, bakery goods and seafood. The Company believes that its private brand offerings are some of its most valuable strategic assets, demonstrated through customer loyalty and profitability.

The Company has worked to develop a best in class private brand program. The Company added approximately 700 private brand products to its consumer offerings in the past year and plans to introduce approximately 300 additional new items in fiscal 2017. The Company’s products have been frequently recognized for excellence in packaging design and product development. These awards underscore the Company’s continued commitment to providing the consumer with quality products at exceptional value. The Company’s focus is and will continue to be the pursuit of new opportunities and expansion of private brand offerings to its customers.

Competition

The Company’s Food Distribution, Military and Retail segments operate in a highly competitive industry, which typically result in low profit margins for the industry as a whole. The Company competes with, among others, regional and national grocery distributors, large chain stores that have integrated wholesale and retail operations, mass merchandisers, e-commerce providers, limited assortment stores and wholesale membership clubs, many of whom have greater resources than the Company.

The primary competitive factors in the Food Distribution business include price, service, product quality, variety and other value-added services. The Company believes its overall service level, which is defined as actual units shipped divided by actual units ordered, is among industry leaders in terms of performance.

The Company is one of less than ten distributors in the United States with annual sales to the DeCA commissary system in excess of $100 million that distributes products via the frequent delivery system. The remaining distributors that supply DeCA tend to be smaller regional and local providers. In addition, manufacturers contract with others to deliver certain products, such as baking supplies, produce, delicatessen items, soft drinks and snack items, directly to DeCA commissaries and service exchanges. Because of the narrow margins in this industry, it is of critical importance for distributors to achieve economies of scale, which is typically a function of the density or concentration of military bases within the geographic area(s) a distributor serves. As a result, no single distributor in this industry, by itself, has a nationwide presence. Rather, distributors tend to concentrate on specific regions, or areas within specific regions, where they can achieve critical mass and utilize warehouse and distribution facilities efficiently. In addition, distributors that operate larger non-military specific distribution businesses tend to compete for DeCA commissary business in areas where such business would enable them to more efficiently utilize the capacity of their existing distribution centers. The Company believes the principal competitive factors among distributors within this industry are customer service, price, operating efficiencies, reputation with DeCA and location of distribution centers. The Company believes its competitive position is very strong with respect to all of these factors within the geographic areas where it competes.

The principal competitive factors in the retail grocery business include the location and image of the store; the price, quality and variety of the perishable products; and the quality, convenience and consistency of service. The Company believes it has developed and implemented strategies and processes that allow it to be competitive in its Retail segment. The Company monitors planned competitor store openings and uses established proactive strategies to respond to new competition both before and after the competitive store opening. Strategies to react to competition vary based on many factors, such as the competitor’s format, strengths, weaknesses, pricing and sales focus. During the past three fiscal years, 13 competitor supercenters opened in geographic areas in which the Company currently operates corporate owned retail stores with three additional openings expected to occur during fiscal 2017. As a result of these openings, the Company believes the majority of its supermarkets compete with one or more supercenters.

- 8-


Seasonality

In certain geographic areas, the Company’s sales and operating performance varies with seasonality. Many stores are dependent on tourism and therefore, are most affected by seasons and weather patterns, including, but not limited to, the amount and timing of snowfall during the winter months and the range of temperature during the summer months. The Company’s first quarter is typically its lowest sales quarter. Therefore, operating results are generally lower during this quarter. All fiscal quarters are 12 weeks, except for the Company’s first quarter, which is 16 weeks and will generally include the Easter holiday. The fourth quarter includes the Thanksgiving and Christmas holidays. Fiscal year ended January 3, 2015 contained 53 weeks; therefore, the fourth quarter of fiscal 2014 consisted of 13 weeks rather than 12 weeks.

Suppliers

The Company purchases products from a large number of national, regional and local suppliers of name brand and private brand merchandise. The Company has not encountered any material difficulty in procuring or maintaining an adequate level of products to serve its customers. No single supplier accounts for more than 5% of the Company’s purchases. The Company continues to develop strategic relationships with key suppliers and believes this will prove valuable in the development of enhanced promotional programs and consumer value perceptions.

Intellectual Property

The Company owns valuable intellectual property, including trademarks and other proprietary information, some of which are of material importance to its business.

Technology

Over the last year the Company has continued to focus on the integration of various key systems from the two merged companies, Spartan Stores and Nash Finch. The integration has proceeded well and is largely complete. During the last year there were additional projects completed to accommodate business operations that were unrelated to the integration of the two companies.

Supply Chain. During fiscal 2016, the Company standardized the Master Data Management systems resulting in standardized customer, vendor and item information; installed a new centralized suggested pricing system for support of its wholesale customers; standardized the inbound scheduling system across the entire distribution network; completed a pilot of a new environmental integrity monitoring system for its transportation fleet, which will be installed in 2017; began the implementation of a standard order management system across its distribution network, which will continue over the next two years; and completed the redesign and upgrade of the communications technology in support of its distribution center network. In the non-integration area, the Company continued with additional supply chain enhancement projects to support its national accounts business.

Retail Systems. During fiscal 2016, the Company standardized the space planning system for all retail locations and Food Distribution customers; enhanced its electronic payment system for fuel centers to support fleet payment cards; upgraded its loyalty systems as it expanded their use in the Omaha, Nebraska locations; continued to enhance the mobile loyalty application for customer use; and, deployed an integrated ordering system in the western retail locations in preparation for computer assisted ordering. In non-integration projects, the Company continued a multi-year customization effort for the major upgrade of point-of-sale (“POS”) software in preparation for a pilot in 2017; completed a major upgrade to its self-check-out systems; and enhanced its pharmacy systems for support of customer interaction through various mobile platforms.

Administrative Systems. During fiscal 2016, the consolidation on to a single accounts receivable system was substantially completed and will be implemented in the first quarter of 2017; the financial reporting and planning systems installation was completed; a major upgrade of the human resources and payroll system was completed; and consolidation on to a single electronic data interface (“EDI”) system was also completed.

Information Technology Infrastructure. The consolidation of four data centers to two data centers was completed in fiscal 2016 and major enhancements to the disaster recovery and non-stop processing capabilities between the two data centers were also implemented.

Associates

As of December 31, 2016, the Company employed approximately 14,700 associates, 8,300 on a full-time basis and 6,400 on a part-time basis. Of the 14,700 associates the Company employs, approximately 1,200 associates, or 8% of the total workforce, were represented by unions under collective bargaining agreements; the collective bargaining agreements covering these associates will either expire between October 2017 and September 2019 or have been extended on their own terms and have a contemplated expiration date in either January 2019 or February 2019. The Company considers its relations with its union and non-union associates to be good and have not had any material work stoppages in over twenty years.

- 9-


Regulation

The Company is subject to federal, state and local laws and regulations concerning the conduct of its business, including those pertaining to the workforce and the purchase, handling, sale and transportation of its products. Many of the Company’s products are subject to federal Food and Drug Administration (“FDA”) and United States Department of Agriculture (“USDA) regulation. The Company believes that it is in substantial compliance in all material respects with the FDA, USDA and other federal, state and local laws and regulations governing its businesses.

Forward-Looking Statements

The matters discussed in this Item 1 include forward-looking statements. See “Forward-Looking Statements” at the beginning of this Annual Report on Form 10-K.

Available Information

The address of the SpartanNash web site is www.spartannash.com. The inclusion of the Company’s website address in this Form 10-K does not include or incorporate by reference the information on or accessible through the Company’s website, and the information contained on or accessible through those websites should not be considered as part of this Form 10-K. The Company makes its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other reports (and amendments to those reports) filed or furnished pursuant to Section 13(a) of the Securities Exchange Act of 1934 available on the Company’s web site as soon as reasonably practicable after the Company electronically files or furnishes such materials with the SEC. Interested persons can view such materials without charge by clicking on “For Investors” and then “SEC Filings” on the Company’s web site. SpartanNash is a “large accelerated filer” within the meaning of Rule 12b-2 under the Securities Exchange Act.

 

 

Item 1A. Risk Factors

The Company faces many risks. If any of the events or circumstances described in the following risk factors occur, the Company’s financial condition or results of operations may suffer, and the trading price of the Company’s common stock could decline. This discussion of risk factors should be read in conjunction with the other information in this Annual Report on Form 10-K. All of these forward-looking statements are affected by the risk factors discussed in this item and this discussion of risk factors should be read in conjunction with the discussion of forward-looking statements, which appears at the beginning of this report.

Business and Operational Risks

The Company operates in an extremely competitive industry. Many of its competitors are much larger than the Company and may be able to compete more effectively.

The Company’s Food Distribution and Retail segments have many competitors, including regional and national grocery distributors, large chain stores that have integrated wholesale and retail operations, mass merchandisers, e-commerce providers, limited assortment stores and wholesale membership clubs. Many of the Company’s competitors have greater resources than the Company.

The Company’s Military segment faces competition from large national and regional food distributors and smaller distributors. Industry consolidation, alternative store formats, nontraditional competitors and e-commerce have contributed to market share losses for traditional grocery stores. These trends have produced even stronger competition for the Company’s Retail business and for the independent retailers of the Company’s Food Distribution business. If the Company fails to implement strategies to respond effectively to these competitive pressures, its operating results could be adversely affected by price reductions, decreased sales or margins, or loss of customer base. The Company may not be able to compete successfully in this environment.

 

- 10-


The Company may not be able to successfully integrate the assets of Caito Foods Service and Blue Ribbon Transport, and the Company may incur significant costs to integrate and support these and other assets it acquires.

In January 2017, the Company acquired the assets of Caito Foods Service and its affiliate, Blue Ribbon Transport. The integration of acquired assets requires significant time and resources, and the Company may not manage these processes successfully. As part of this acquisition, the Company acquired a newly constructed Fresh Kitchen facility. The Fresh Kitchen has no history of operations, and the Company may incur difficulties in commencing its operation and achieving efficient levels of production volume. The Company expects that the Fresh Kitchen will not be profitable in the short-term, and there is no guarantee it will be profitable in the long-term. In addition, some grocery retailers previously serviced by Caito Foods Service were anticipated to discontinue their purchases leading up to the Company’s acquisition of the Caito assets. The Company is making investments of resources to support the acquired Caito Foods Service and Blue Ribbon Transport assets and replace any lost business, which will result in significant ongoing operating expenses and may divert resources and management attention from other areas of the business. If the Company fails to successfully integrate these assets and develop new business opportunities, it may not realize the benefits expected from the transaction and its business may be harmed.

 

The Company’s private brand program for U.S. military commissaries may not achieve the desired results .

In December 2016, the Defense Commissary Agency (“DeCA” or “the Agency”), which operates U.S. military commissaries worldwide, competitively awarded the Company the contract to support and supply products for the Agency’s new private brand product program. Private brand products have not previously been offered in the Agency’s commissaries. The Company expects to invest significant resources as it partners with DeCA to develop and roll out the new program, and there is no guarantee of its success. The Company expects that DeCA will face significant competition in each product category from national brands that are familiar to consumers. If the Agency is unable to shift consumer preferences from national brands to the new private brand, then both DeCA and the Company may be unable to achieve expected returns from this program, which could have a material adverse effect on the Company’s business. The success of the program will depend in part on factors beyond the Company’s control, including the actions of the Agency.

The Company may not be able to implement its strategy of growth through acquisitions .

Part of the Company’s growth strategy involves selected acquisitions of additional retail grocery stores, grocery store chains or distribution facilities. Because the Company operates in the Food Distribution business, future acquisitions of retail grocery stores could result in the Company competing with its independent retailers and could adversely affect existing business relationships with those customers. As a result, the Company may not be able to identify suitable acquisition candidates in the future, complete acquisitions or obtain the necessary financing and this may adversely affect the Company’s ability to grow profitably.

Substantial operating losses may occur if the customers to whom the Company extends credit or for whom the Company guarantees loans or lease obligations fail to repay the Company.

In the ordinary course of business, the Company advances funds, extends credit and lends money to certain independent retailers and guarantees some customers’ loan or lease obligations. The Company seeks to obtain security interest and other credit support in connection with these arrangements but the collateral may not be sufficient to cover the Company’s exposure. Greater than expected losses from existing or future credit extensions, loans, guarantee commitments or sublease arrangements could negatively and materially impact the Company’s operating results and financial condition.

Changes in relationships with the Company’s vendor base may adversely affect its business, margins, and profitability.

The Company sources the products it sells from a wide variety of vendors. The Company generally does not have long-term written contracts with its major suppliers that would require them to continue supplying it with merchandise. The Company depends on its vendors for appropriate allocation of merchandise, assortments of products, operation of vendor-focused shopping experiences within its stores, and funding for various forms of promotional allowances. There has been significant consolidation in the food industry, and this consolidation may continue to the Company’s commercial disadvantage. Such changes could have a material adverse impact on the Company’s revenues and profitability.

Disruptions to the Company’s information technology systems, including security breaches and cyber-attacks, could negatively affect the Company’s business.

The Company has complex information technology (“IT”) systems that are important to its business operations. The Company gathers and stores sensitive information, including personal information about its customers, vendors and associates, and other proprietary or sensitive information. The Company could incur significant losses due to disruptions in its systems and business if it were to experience difficulties accessing data stored in its IT systems or if the sensitive information stored is compromised by third parties.

- 11-


Although the Company has implemented security prog rams and disaster recovery facilities and procedures, c yber threats evolve rapidly and are becoming more sophisticated. Despite the Company’s efforts to secure its information and systems, cyber attackers may defeat the security measures and compromise the personal information of customers, associates, vendors and other sensitive information. A ssociate error, faulty password management or other problems may compromise the security measures and result in a breach of the Company’s information systems , systems disruptions, data theft or other criminal activity .

This could result in a loss of sales or profits or cause the Company to incur significant costs to restore its systems or to reimburse third parties for damages.

Threats to security or the occurrence of severe weather conditions, natural disasters or other unforeseen events could harm the Company’s business.

The Company’s business could be severely impacted by severe weather conditions, natural disasters, or other events that could affect the warehouse and transportation infrastructure used by the Company and its vendors to supply the Company’s corporate owned retail stores, and Food Distribution and Military customers. While the Company believes it has adopted commercially reasonable precautions, insurance programs, and contingency plans; the damage or destruction of Company facilities could compromise the Company’s ability to distribute products and generate sales. Unseasonable weather conditions that impact growing conditions and the availability of food could also adversely affect sales, profits and asset values.

Impairment charges for goodwill or other intangible assets could adversely affect the Company’s financial condition and results of operations.

The Company is required to perform an annual impairment test for goodwill and indefinite-lived intangible assets in the fourth quarter of each year, or more frequently if indicators are present or changes in circumstances suggest that impairment may exist. Testing goodwill and other intangible assets for impairment requires management to make significant estimates about the Company’s future performance, cash flows, and other assumptions that can be affected by potential changes in economic, industry or market conditions, business operations, competition, or the Company’s stock price and market capitalization. Changes in these factors, or changes in actual performance compared with estimates of the Company’s future performance, may affect the fair value of goodwill or other intangible assets. This could result in the Company recording a non-cash impairment charge for goodwill or other intangible assets in the period the determination of impairment is made. The Company cannot accurately predict the amount and timing of any impairment of assets. Should the value of goodwill or other intangible assets become impaired, the Company’s financial condition and results of operations may be adversely affected. In January 2017, a new accounting standard was issued that simplifies the subsequent measurement of goodwill by eliminating Step 2 of the annual goodwill impairment test, which could significantly impact the amount of impairment charge to be recorded if goodwill was determined to be impaired. Refer to Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements for additional information.

The Company may be unable to retain its key management personnel.

The Company’s success depends to a significant degree upon the continued contributions of senior management. The loss of any key member of the Company’s management team may prevent it from implementing its business plans in a timely manner. The Company cannot assure that successors of comparable ability will be identified and appointed and that the Company’s business will not be adversely affected.

Legal, Regulatory and Legislative Risks

The Company’s Military segment is dependent upon domestic and international military operations. A change in the military commissary system, or level of governmental funding, could negatively impact the Company’s results of operations and financial condition.

Because the Company’s Military segment sells and distributes grocery products to military commissaries and exchanges in the United States and overseas, any material changes in the commissary system, the level of governmental funding to DeCA, military staffing levels, or the locations of bases may have a corresponding impact on the sales and operating performance of this segment. These changes could include privatization of some or all of the military commissary system, relocation or consolidation of commissaries and exchanges, base closings, troop redeployments or consolidations in the geographic areas containing commissaries and exchanges served by the Company, or a reduction in the number of persons having access to the commissaries and exchanges. Mandated reductions in the government expenditures, including those imposed as a result of sequestration, may impact the level of funding to DeCA and could have a material impact on the Company’s operations.

- 12-


Safety concerns regarding the Company’s products could harm the Company’s business.

It is sometimes necessary for the Company to recall unsafe, contaminated or defective products. Recall costs can be material and the Company might not be able to recover costs from its suppliers. Concerns regarding the safety of food products sold by the Company could cause customers to avoid purchasing certain products from the Company, or to seek alternative sources of supply for some or all of their food needs, even if the basis for concern is outside of the Company’s control. Any loss of confidence on the part of the Company’s customers would be difficult and costly to overcome. Any real or perceived issue regarding the safety of any food or drug items sold by the Company, regardless of the cause, could have a substantial and adverse effect on the Company’s business.

A number of the Company’s associates are covered by collective bargaining agreements, and unions may attempt to organize additional associates.

Approximately 55% and 16% of the Company’s associates in its Food Distribution and Military business segments, respectively, are covered by collective bargaining agreements which expire between October 2017 and September 2019 or which the Company is in the process of negotiating and have contemplated expiration dates in either January 2019 or February 2019. The Company expects that rising healthcare, pension and other employee benefit costs, among other issues, will continue to be important topics of negotiation with the labor unions. Upon the expiration of the Company’s collective bargaining agreements, work stoppages by the affected workers could occur if the Company is unable to negotiate an acceptable contract with the labor unions. This could significantly disrupt the Company’s operations. Further, if the Company is unable to control healthcare and pension costs provided for in the collective bargaining agreements, the Company may experience increased operating costs and an adverse impact on future results of operations.

While the Company believes that relations with its associates are good, the Company may continue to see additional union organizing campaigns. The potential for unionization could increase as any new related legislation or regulations are passed. The Company respects its associates’ right to unionize or not to unionize. However, the unionization of a significant portion of the Company’s workforce could increase the Company’s overall costs at the affected locations and adversely affect its flexibility to run its business in the most efficient manner to remain competitive or acquire new business and could adversely affect its results of operations by increasing its labor costs or otherwise restricting its ability to maximize the efficiency of its operations.

Costs related to multi-employer pension plans and other postretirement plans could increase.

The Company contributes to the Central States Southeast and Southwest Pension Fund (“Central States Plan” or “the Plan”), a multi-employer pension plan, based on obligations arising from its collective bargaining agreements with Teamsters locals 406 and 908. SpartanNash does not administer or control this Plan, and the Company has relatively little control over the level of contributions the Company is required to make. Currently, the Central States Plan is underfunded and in critical status, and as a result, contributions are scheduled to increase. The Company expects that contributions to this Plan will be subject to further increases. Benefit levels and related issues will continue to create collective bargaining challenges. The amount of any increase or decrease in its required contributions to this Plan will depend upon the outcome of collective bargaining, the actions taken by the trustees who manage the Plan, governmental regulations, actual return on investment of Plan assets, the continued viability and contributions of other contributing employers, and the potential payment of withdrawal liability should the Company choose to exit a geographic area, among other factors.

The Company maintains defined benefit retirement plans for certain of its associates that do not participate in multi-employer pension plans. These plans are frozen. Expenses associated with the defined benefit plans may significantly increase due to changes to actuarial assumptions or investment returns on plan assets that are less favorable than projected. In addition, changes in the Company’s funding status could adversely affect the Company’s financial position.

 

Item 1B. Unresolved Staff Comments

None.

 

 


- 13-


Item 2. Properties

The following table lists the locations and approximate square footage of the Company’s distribution centers used by its Food Distribution and Military segments as of December 31, 2016. The lease expiration dates for the distribution centers primarily servicing Food Distribution segment range from November 2017 to July 2020, and for the Military segment range from August 2017 to January 2028. The Company believes that these facilities are generally well maintained, are generally in good operating condition, have sufficient capacity, and are suitable and adequate to carry on its business for each of these segments.

 

Distribution Centers

 

 

 

Square Footage

 

Location

 

Leased

 

 

Owned

 

 

Total

 

Grand Rapids, Michigan (a)

 

 

 

 

 

1,179,582

 

 

 

1,179,582

 

Norfolk, Virginia (b)

 

 

188,093

 

 

 

545,073

 

 

 

733,166

 

Omaha, Nebraska (a)

 

 

4,384

 

 

 

686,783

 

 

 

691,167

 

Bellefontaine, Ohio (a)

 

 

 

 

 

666,045

 

 

 

666,045

 

Oklahoma City, Oklahoma (b)

 

 

 

 

 

608,543

 

 

 

608,543

 

Columbus, Georgia (c)

 

 

531,900

 

 

 

 

 

 

531,900

 

Lima, Ohio (a)

 

 

 

 

 

517,552

 

 

 

517,552

 

Bloomington, Indiana (b)

 

 

 

 

 

471,277

 

 

 

471,277

 

San Antonio, Texas (b)

 

 

 

 

 

461,544

 

 

 

461,544

 

St. Cloud, Minnesota (a)

 

 

82,869

 

 

 

329,046

 

 

 

411,915

 

Lumberton, North Carolina (a)

 

 

386,129

 

 

 

 

 

 

386,129

 

Landover, Maryland (b)

 

 

368,088

 

 

 

 

 

 

368,088

 

Pensacola, Florida (b)

 

 

 

 

 

355,900

 

 

 

355,900

 

Fargo, North Dakota (a)

 

 

 

 

 

288,824

 

 

 

288,824

 

Sioux Falls, South Dakota (a)

 

 

79,300

 

 

 

196,114

 

 

 

275,414

 

Bluefield, Virginia (a)

 

 

 

 

 

187,531

 

 

 

187,531

 

Minot, North Dakota (a)

 

 

 

 

 

185,250

 

 

 

185,250

 

Total Square Footage

 

 

1,640,763

 

 

 

6,679,064

 

 

 

8,319,827

 

 

 

(a)

Distribution center services the Food Distribution segment.

 

(b)

Distribution center services the Military segment.

 

(c)

Distribution center services both the Food Distribution and Military segments. Based on utilization estimates at December 31, 2016, the Food Distribution and Military segments utilize 33,365 square feet and 498,535 square feet, respectively. Also, this location requires periodic lease payments to the holder of the outstanding industrial revenue bond, which is held by the Company. Upon expiration of the lease terms, the Company will take title to the property upon redemption of the bond.

 

- 14-


 

The following table lists the retail banner, number of stores, location and approximate square footage under each banner as of December 31, 2016.

 

Retail Segment

 

 

 

 

 

Leased

 

 

Owned

 

 

Total

 

 

 

 

 

Number

 

Square

 

 

Number

 

 

Square

 

 

Number

 

Square

 

Grocery Store Retail Banner

 

Location

 

of Stores

 

Feet

 

 

of Stores

 

 

Feet

 

 

of Stores

 

Feet

 

Family Fare Supermarkets

 

Michigan, Minnesota, Nebraska, North Dakota, Iowa

 

75

 

 

3,258,578

 

 

7

 

 

 

346,419

 

 

82

 

 

3,604,997

 

VG’s Food and Pharmacy

 

Michigan

 

10

 

 

461,720

 

 

1

 

 

 

37,223

 

 

11

 

 

498,943

 

D&W Fresh Markets

 

Michigan

 

9

 

 

437,860

 

 

2

 

 

 

84,458

 

 

11

 

 

522,318

 

Sun Mart

 

Colorado, Minnesota, Nebraska

 

2

 

 

55,333

 

 

8

 

 

 

241,612

 

 

10

 

 

296,945

 

Econofoods

 

Minnesota, Wisconsin

 

4

 

 

137,533

 

 

4

 

 

 

95,635

 

 

8

 

 

233,168

 

Dan's Super Market

 

North Dakota

 

6

 

 

278,477

 

 

 

 

 

 

 

 

6

 

 

278,477

 

Family Fresh Market

 

Minnesota, Nebraska, Wisconsin

 

1

 

 

32,650

 

 

5

 

 

 

249,904

 

 

6

 

 

282,554

 

Valu Land

 

Michigan

 

5

 

 

112,908

 

 

 

 

 

 

 

 

5

 

 

112,908

 

Family Thrift Center

 

South Dakota

 

3

 

 

127,107

 

 

1

 

 

 

64,075

 

 

4

 

 

191,182

 

Supermercado Nuestra Familia

 

Nebraska

 

1

 

 

22,540

 

 

2

 

 

 

83,279

 

 

3

 

 

105,819

 

No Frills

 

Iowa, Nebraska

 

3

 

 

61,060

 

 

 

 

 

 

 

 

3

 

 

61,060

 

Forest Hills Foods

 

Michigan

 

1

 

 

50,791

 

 

 

 

 

 

 

 

1

 

 

50,791

 

Pick ‘n Save

 

Ohio

 

1

 

 

45,608

 

 

 

 

 

 

 

 

1

 

 

45,608

 

Germantown Fresh Market

 

Ohio

 

1

 

 

31,764

 

 

 

 

 

 

 

 

1

 

 

31,764

 

Prairie Market

 

South Dakota

 

1

 

 

32,528

 

 

 

 

 

 

 

 

1

 

 

32,528

 

Dillonvale IGA

 

Ohio

 

1

 

 

25,627

 

 

 

 

 

 

 

 

1

 

 

25,627

 

Madison Fresh Market

 

Wisconsin

 

1

 

 

21,470

 

 

 

 

 

 

 

 

1

 

 

21,470

 

Purdue Fresh Market

 

Indiana

 

1

 

 

21,622

 

 

 

 

 

 

 

 

1

 

 

21,622

 

Wholesale Food Outlet

 

Iowa

 

1

 

 

19,620

 

 

 

 

 

 

 

 

1

 

 

19,620

 

Total

 

 

 

127

 

 

5,234,796

 

 

30

 

 

 

1,202,605

 

 

157

 

 

6,437,401

 

 

The Company also owns one fuel center that is not reflected in the retail square footage above: a Family Fare Quick Stop in Michigan that is not included with a corporate owned retail store but is adjacent to the Company’s corporate headquarters. Also not reflected in the retail square footage above are three stand-alone pharmacies located in Cannon Falls, Minnesota; Clear Lake, Iowa; and Barron, Wisconsin.

The Company’s service centers are located in Grand Rapids, Michigan; Minneapolis, Minnesota; and Norfolk, Virginia; consisting of office space of approximately 286,100 square feet in Company-owned buildings and 26,300 square feet in leased facilities. The Company also leases two additional off-site storage facilities consisting of approximately 50,300 square feet.

 

Item 3. Legal Proceedings

The Company is engaged from time-to-time in routine legal proceedings incidental to its business. The Company does not believe that these routine legal proceedings, taken as a whole, will have a material impact on its business or financial condition. While the ultimate effect of such actions cannot be predicted with certainty, management believes that their outcome will not result in a material adverse effect on the Company’s consolidated financial position, operating results or liquidity.

Various lawsuits and claims, arising in the ordinary course of business, are pending or have been asserted against the Company. While the ultimate effect of such lawsuits and claims cannot be predicted with certainty, management believes that their outcome will not result in an adverse effect on the Company’s consolidated financial position, operating results or liquidity. Legal proceedings, various lawsuits, claims, and other matters are more fully described in Part II, Item 8 of this report under the Commitments and Contingencies section in the notes to consolidated financial statements, which is herein incorporated by reference .

 

 

Item 4. Mine Safety Disclosure

Not Applicable

 

 

 

- 15-


 

 

PART II

 

Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters

SpartanNash common stock is traded on the NASDAQ Global Select Market under the trading symbol “SPTN.”

Stock sale prices are based on transactions reported on the NASDAQ Global Select Market. Information on quarterly high and low sales prices for SpartanNash common stock for each of the last two fiscal years is as follows:

 

 

 

 

 

Year Ended December 31, 2016

 

 

 

 

 

Full Year

 

 

4th Quarter

 

 

3rd Quarter

 

 

2nd Quarter

 

 

1st Quarter

 

 

 

 

 

(52 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(16 Weeks)

 

Common stock price – High

 

 

 

$

 

39.96

 

 

$

 

39.96

 

 

$

 

33.89

 

 

$

 

31.48

 

 

$

 

31.01

 

Common stock price – Low

 

 

 

 

 

17.66

 

 

 

 

27.27

 

 

 

 

27.96

 

 

 

 

25.29

 

 

 

 

17.66

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended January 2, 2016

 

 

 

 

 

Full Year

 

 

4th Quarter

 

 

3rd Quarter

 

 

2nd Quarter

 

 

1st Quarter

 

 

 

 

 

(52 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(16 Weeks)

 

Common stock price – High

 

 

 

$

 

33.89

 

 

$

 

28.94

 

 

$

 

33.84

 

 

$

 

33.89

 

 

$

 

32.73

 

Common stock price – Low

 

 

 

 

 

20.99

 

 

 

 

20.99

 

 

 

 

24.85

 

 

 

 

30.11

 

 

 

 

24.44

 

At February 28, 2017, there were approximately 1,305 shareholders of record of SpartanNash common stock. The Company has paid a quarterly cash dividend every quarter since the fourth quarter of fiscal 2006.

The table below outlines quarterly dividends paid on SpartanNash common stock in each of the last three fiscal years as well as the Board of Directors’ recently approved quarterly dividend:

 

 

 

Dividend per

 

Effective Quarter

 

 

common share

 

1st through 4th quarters Fiscal January 3, 2015

 

 

$

 

0.120

 

1st through 4th quarters Fiscal January 2, 2016

 

 

 

 

0.135

 

1st through 4th quarters Fiscal December 31, 2016

 

 

 

 

0.150

 

1st quarter Fiscal December 30, 2017

 

 

 

 

0.165

 

 

Under its senior revolving credit facility, the Company is generally permitted to pay dividends in any fiscal year up to an amount such that all cash dividends, together with any cash distributions and share repurchases, do not exceed $35.0 million. Additionally, the Company is generally permitted to pay cash dividends and repurchase shares in excess of $35.0 million in any fiscal year so long as its Excess Availability, as defined in the senior revolving credit facility, is in excess of 10% of the Total Borrowing Base, as defined in the senior revolving credit facility, before and after giving effect to the repurchases and dividends.

 

Although the Company expects to continue to pay a quarterly cash dividend, adoption of a dividend policy does not commit the Board of Directors to declare future dividends. Each future dividend will be considered and declared by the Board of Directors at its discretion. Whether the Board of Directors continues to declare dividends and repurchase shares depends on a number of factors, including the Company’s future financial condition, anticipated profitability and cash flows, and compliance with the terms of its credit facilities. In May 2011, the Board of Directors authorized a five-year share repurchase program for up to $50 million of SpartanNash’s common stock that expired in May 2016. During the first quarter of fiscal 2016, the Board of Directors authorized a new five-year share repurchase program for an additional $50 million of SpartanNash’s common stock.

During the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015 the Company repurchased 396,030; 282,363; and 245,956 shares of common stock under its $50 million share repurchase program that expired in May 2016 for approximately $9.0 million, $9.0 million and $5.0 million, respectively. The Company did not repurchase any shares under its new $50 million share repurchase program for the fiscal year ended December 31, 2016.

The equity compensation plans table in Part III, Item 12 of this report is herein incorporated by reference.

There were no purchases of the Company’s own common stock during the last quarter of the fiscal year ended December 31, 2016.

-16-


 

 

 

Performance Graph

Set forth below is a graph comparing the cumulative total shareholder return on SpartanNash common stock to that of the Russell 2000 Total Return Index and the NASDAQ Retail Trade Index, over a period beginning March 31, 2012 and ending on December 31, 2016.

Cumulative total return is measured by the sum of (1) the cumulative amount of dividends for the measurement period, assuming dividend reinvestment, and (2) the difference between the share price at the end and the beginning of the measurement period, divided by the share price at the beginning of the measurement period.

The dollar values for total shareholder return plotted above are shown in the table below:

 

March 31,

 

 

March 30,

 

 

December 28,

 

 

January 3,

 

 

January 2,

 

 

December 31,

 

 

2012

 

 

2013

 

 

2013

 

 

2015

 

 

2016

 

 

2016

 

SpartanNash

$

 

100.00

 

 

$

 

98.80

 

 

$

 

135.32

 

 

$

 

150.40

 

 

$

 

128.71

 

 

$

 

239.79

 

Russell 2000 Total Return Index

 

 

100.00

 

 

 

 

116.30

 

 

 

 

143.33

 

 

 

 

149.95

 

 

 

 

144.03

 

 

 

 

174.72

 

NASDAQ Retail Trade

 

 

100.00

 

 

 

 

108.66

 

 

 

 

129.42

 

 

 

 

144.64

 

 

 

 

151.89

 

 

 

 

154.23

 

 

The information set forth under the Heading “Performance Graph” shall not be deemed to be “soliciting material” or to be “filed” with the Commission or subject to Regulation 14A or 14C, or to the liabilities of Section 18 of the Exchange Act, except to the extent that the registrant specifically requests that such information be treated as soliciting material or specifically incorporates it by reference into a filing under the Securities Act or the Exchange Act.

 

 

-17-


 

 

Item 6. Selected Financial Data

The following table provides selected historical consolidated financial information of SpartanNash for each of the five fiscal years and periods ended March 30, 2013 through December 31, 2016. For comparability purposes, the Company has also provided selected historical consolidated financial information for the 51-week period ended December 28, 2013.

 

 

Year Ended

 

 

Period Ended

 

 

Fiscal Year Ended

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

December 28,

 

 

December 28,

 

 

March 30,

 

 

2016

 

 

2016

 

 

2015

 

 

2013

 

 

2013 (a)

 

 

2013

 

(In thousands, except per share data)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

 

(51 Weeks)

 

 

(39 Weeks)

 

 

(52 Weeks)

 

Statements of Earnings Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales

$

 

7,734,600

 

 

$

 

7,651,973

 

 

$

 

7,916,062

 

 

$

 

3,190,039

 

 

$

 

2,597,230

 

 

$

 

2,608,160

 

Cost of sales

 

 

6,623,106

 

 

 

 

6,536,291

 

 

 

 

6,759,988

 

 

 

 

2,570,516

 

 

 

 

2,110,350

 

 

 

 

2,062,616

 

Gross profit

 

 

1,111,494

 

 

 

 

1,115,682

 

 

 

 

1,156,074

 

 

 

 

619,523

 

 

 

 

486,880

 

 

 

 

545,544

 

Selling, general and administrative expenses

 

 

963,652

 

 

 

 

975,572

 

 

 

 

1,022,387

 

 

 

 

546,100

 

 

 

 

433,450

 

 

 

 

482,987

 

Merger integration and acquisition

 

 

6,959

 

 

 

 

8,433

 

 

 

 

12,675

 

 

 

 

20,993

 

 

 

 

20,993

 

 

 

 

 

Restructuring charges and asset impairment (b)

 

 

32,116

 

 

 

 

8,802

 

 

 

 

6,166

 

 

 

 

16,877

 

 

 

 

15,644

 

 

 

 

1,589

 

Operating earnings

 

 

108,767

 

 

 

 

122,875

 

 

 

 

114,846

 

 

 

 

35,553

 

 

 

 

16,793

 

 

 

 

60,968

 

Interest expense

 

 

19,082

 

 

 

 

21,820

 

 

 

 

24,414

 

 

 

 

12,209

 

 

 

 

9,219

 

 

 

 

13,410

 

Loss on debt extinguishment

 

 

247

 

 

 

 

1,171

 

 

 

 

 

 

 

 

8,289

 

 

 

 

5,527

 

 

 

 

5,047

 

Other, net

 

 

(525

)

 

 

 

(375

)

 

 

 

(17

)

 

 

 

(27

)

 

 

 

(23

)

 

 

 

(756

)

Earnings before income taxes and discontinued operations

 

 

89,963

 

 

 

 

100,259

 

 

 

 

90,449

 

 

 

 

15,082

 

 

 

 

2,070

 

 

 

 

43,267

 

Income taxes

 

 

32,907

 

 

 

 

37,093

 

 

 

 

31,329

 

 

 

 

5,914

 

 

 

 

841

 

 

 

 

15,425

 

Earnings from continuing operations

 

 

57,056

 

 

 

 

63,166

 

 

 

 

59,120

 

 

 

 

9,168

 

 

 

 

1,229

 

 

 

 

27,842

 

Loss from discontinued operations, net of taxes (c)

 

 

(228

)

 

 

 

(456

)

 

 

 

(524

)

 

 

 

(725

)

 

 

 

(488

)

 

 

 

(432

)

Net earnings

$

 

56,828

 

 

$

 

62,710

 

 

$

 

58,596

 

 

$

 

8,443

 

 

$

 

741

 

 

$

 

27,410

 

Basic earnings from continuing operations per share

$

 

1.52

 

 

$

 

1.68

 

 

$

 

1.57

 

 

$

 

0.39

 

 

$

 

0.05

 

 

$

 

1.28

 

Diluted earnings from continuing operations per share

 

 

1.52

 

 

 

 

1.67

 

 

 

 

1.57

 

 

 

 

0.39

 

 

 

 

0.05

 

 

 

 

1.27

 

Basic earnings per share

 

 

1.52

 

 

 

 

1.67

 

 

 

 

1.56

 

 

 

 

0.36

 

 

 

 

0.03

 

 

 

 

1.26

 

Diluted earnings per share

 

 

1.51

 

 

 

 

1.66

 

 

 

 

1.55

 

 

 

 

0.36

 

 

 

 

0.03

 

 

 

 

1.25

 

Cash dividends declared per share

 

 

0.60

 

 

 

 

0.54

 

 

 

 

0.48

 

 

 

 

0.35

 

 

 

 

0.27

 

 

 

 

0.32

 

Balance Sheet Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total assets (d) (e)

$

 

1,930,336

 

 

$

 

1,917,263

 

 

$

 

1,923,455

 

 

$

 

1,973,366

 

 

$

 

1,973,366

 

 

$

 

784,595

 

Property and equipment, net

 

 

559,722

 

 

 

 

583,698

 

 

 

 

597,150

 

 

 

 

628,482

 

 

 

 

628,482

 

 

 

 

272,126

 

Working capital (d) (e)

 

 

387,507

 

 

 

 

396,263

 

 

 

 

455,694

 

 

 

 

418,076

 

 

 

 

418,076

 

 

 

 

10,869

 

Long-term debt and capital lease obligations (e)

 

 

413,675

 

 

 

 

467,793

 

 

 

 

541,683

 

 

 

 

588,034

 

 

 

 

588,034

 

 

 

 

143,114

 

Shareholders’ equity

 

 

825,407

 

 

 

 

790,779

 

 

 

 

747,253

 

 

 

 

706,873

 

 

 

 

706,873

 

 

 

 

335,655

 

 

(a)

The operating results of Nash-Finch are included in the consolidated results of operations beginning on November 19, 2013. The Company’s fiscal year end was changed from the last Saturday in March beginning with the transition year ended December 28, 2013.

 

(b)

See Part II, Item 8 of this report under the Restructuring Charges and Asset Impairment section in the notes to consolidated financial statements.

 

(c)

See Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements.

 

(d)

See Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements. Due to the retrospective adoption of ASU 2015-17, “Balance Sheet Classification of Deferred Taxes” in fiscal 2015, deferred income taxes were reclassified from Current assets and Current liabilities to Long-term liabilities for all periods presented. This resulted in a decrease in Total assets of $2,310 at March 30, 2013 as this was the only fiscal year presented with deferred income taxes included as a

-18-


 

 

 

component of current assets. Additionally, adoption of this standard resulted in an increase (decrease) in Working capital of $22,494, $19,909 and $(2,310) at January 3, 2015, December 28, 2013 and March 30, 2013, respectively.

 

(e)

See Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements. Due to the retrospective adoption of ASU 2015-03, “Interest – Imputation of Interest: Simplifying the Presentation of Debt Issuance Costs” in fiscal 2016, debt issuance costs were reclassified from Other assets, net to Long-term liabilities for all periods presented. This resulted in a decrease in Total assets and Long-term debt and capital lease obligations of $8,185, $8,827, 10,285 and $2,762 at January 2, 2016, January 3, 2015, December 28, 2013 and March 30, 2013, respectively.

Historical data is not necessarily indicative of the Company’s future results of operations or financial condition. See discussion of “Risk Factors” in Part I, Item 1A of this report; “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 of this report; and the consolidated financial statements and notes thereto in Part II, Item 8 of this Annual Report on Form 10-K.

 

 

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

About SpartanNash

SpartanNash, headquartered in Grand Rapids, Michigan, is a leading multi-regional grocery distributor and grocery retailer whose core businesses include distributing grocery products to independent grocery retailers (“independent retailers”), select national retailers, its corporate owned retail stores, and U.S. military commissaries. Through its Military division, SpartanNash is the leading distributor of grocery products to military commissaries in the United States. The Company operates three reportable business segments: Food Distribution, Military and Retail.

The Company’s Food Distribution segment provides a wide variety of nationally branded and private brand grocery products and perishable food products to approximately 2,100 independent retailers, food service distributors and the Company’s corporate owned retail stores. The Food Distribution segment currently conducts business in 47 states, primarily in the Midwest, Great Lakes, and Southeast regions of the United States. Through its Food Distribution segment, the Company also services select national retailers, including Dollar General. Sales to Dollar General are made to approximately 13,000 of its retail locations.

The Company’s Military segment contracts with manufacturers to distribute a wide variety of grocery products primarily to military commissaries and exchanges located in the United States, the District of Columbia, Europe, Cuba, Puerto Rico, Bahrain and Egypt. The Company has over 40 years of experience acting as a distributor to U.S. military commissaries and exchanges.

As of December 31, 2016, the Company’s Retail segment operated 157 corporate owned retail stores in the Midwest and Great Lakes regions primarily under the banners of Family Fare Supermarkets, VG’s Food and Pharmacy, D&W Fresh Markets, Sun Mart and Family Fresh Market . As of December 31, 2016, the Company also offered pharmacy services in 90 of its corporate owned stores and operated 30 fuel centers. The retail stores have a “neighborhood market” focus to distinguish them from supercenters and limited assortment stores.

The Company’s fiscal year end is the Saturday closest to December 31. All fiscal quarters are 12 weeks, except for the Company’s first quarter, which is 16 weeks and will generally include the Easter holiday. The fourth quarter includes the Thanksgiving and Christmas holidays. Fiscal year ended January 3, 2015 contained 53 weeks; therefore, the fourth quarter of fiscal 2014 consisted of 13 weeks rather than 12 weeks.

In certain geographic areas, the Company’s sales and operating performance may vary with seasonality. Many stores are dependent on tourism and therefore, are most affected by seasons and weather patterns, including, but not limited to, the amount and timing of snowfall during the winter months and the range of temperature during the summer months. The Company’s first quarter is typically its lowest sales quarter. Therefore, operating results are generally lower during this quarter.

-19-


 

 

Recent Developments

On January 6, 2017, the Company acquired certain assets and assumed certain liabilities of Caito Foods Service (“Caito”) and Blue Ribbon Transport (“BRT”) for $217.6 million in cash, in addition to reimbursing Caito for certain transaction costs and providing certain earn-out opportunities, which could be offset by a reimbursement of a portion of the purchase price if certain performance targets are not met. Founded in Indianapolis in 1965, Caito is a leading supplier of produce to grocery retailers and food service distributors across 22 states in the Southeast, Midwest and Eastern United States. Through its affiliate, BRT, the company also offers temperature-controlled distribution and logistics services throughout North America. Caito and BRT service customers from facilities in Indiana, Ohio and Florida.

Caito also has a central fresh cut fruit and vegetable facility in Indianapolis and a recently completed, new 118,000 square foot Fresh Kitchen facility, also in Indianapolis. The $32 million Fresh Kitchen will process, cook, and package fresh protein-based foods and complete meals, with the facility commencing production in the first half of fiscal 2017. The Company acquired Caito and BRT to strengthen its fresh product offerings to its existing customer base and to expand into fast-growing, value-added services, such as freshly-prepared centerplate and side dish categories.

On December 8, 2016, the Company announced that it had been competitively awarded by the Defense Commissary Agency (“DeCA”) the program to provide a variety of private brand products to commissaries for the first time in the agency’s history. As part of the arrangement, the Company will be the exclusive worldwide supplier of private brand products to U.S. military commissaries and will sell grocery products directly to DeCA. The Company will begin to roll out these products in the first half of fiscal 2017 and looks forward to partnering with DeCA on this new initiative to provide quality private brand products at competitive prices to military commissaries all over the world. The Company anticipates a steady ramp up of private brand products throughout fiscal 2017, but expects minimal financial benefit next year due to the anticipated costs to launch the program.

On December 20, 2016, SpartanNash Company and certain of its subsidiaries amended its senior secured credit facility (the “Credit Agreement”) at a cost of $2.4 million, which was capitalized as debt issuance costs and presented as a deduction from the carrying amount of the related liability on the consolidated balance sheet. The principal changes of the amendment were to reduce the number of tiers in the pricing grid from three to two, reset the advance rate on real estate to 75%, provide the ability to increase the size of the term loan by $33 million, and extend the maturity date of the agreement, which was set to expire on January 8, 2020, to December 20, 2021.

Overview of Fiscal 2016

In fiscal 2016, the Company continued to execute on its strategy to leverage its supply chain network to successfully drive new and existing customer supply business, as well as to drive results in its retail business through capital investments, which included the completion of twelve major store remodels, four of which were initiated in fiscal 2015, one store upgrade, and one new fuel center, and the expansion of consumer-centric merchandising and marketing programs. Consistent with its objective to pursue strategic opportunities, the Company announced the acquisition of Caito Foods Service and Blue Ribbon Transport, which closed in January 2017, as well as the selection by DeCA to be the exclusive worldwide supplier of private brand products to U.S. military commissaries, beginning in the second quarter of fiscal 2017. Despite the challenging operating environment, the Company delivered against its initiatives, strengthened its foundation and core competencies, and positioned itself for continued earnings growth in 2017 and beyond.

In addition to the recent developments outlined above, fiscal 2016 accomplishments and highlights include:

 

The Company realized sales growth in its Food Distribution segment due to new business gains and growth of existing accounts. The Company continues to focus on new business prospects to drive sales and related profits, including opportunities within the alternative channel space and those in which the Company offers supply chain solutions to complicated logistics issues.

 

The Company continued to integrate its supply chain organization to further optimize the network and increase asset utilization. In the first quarter, the Company consolidated its Westville, Indiana warehouse into its Lima, Ohio facility. In the second quarter, the Company consolidated its warehouse in Statesboro, Georgia, which was underutilized, into its facility in Columbus, Georgia, which now services both Food Distribution and Military customers. The Company expects that the consolidation of these facilities will lead to lower costs over time for its customers, as well as enhanced product freshness and selection.

 

The Company initiated the roll out of Open Acres™, a new private brand for fresh items. This new brand features items in meat, deli, bakery and produce. The introduction of the brand closes a gap in the private brands portfolio that existed in the non-Michigan footprint. Open Acres™ commits to deliver national brand quality or better products at a significant savings to consumers in both corporate owned and independent retail store locations.

-20-


 

 

 

The Company continued to expand its private brand program and living well offering for both independent retailers and its corporate owned retail stores. This expanded offering includes the natural and organic Full Circle™ private brand line as well as a significant increase in SKUs across organic produce and healthier specialty items.

 

The Company meaningfully outperformed industry trends in the Military segment by generating sales from new business associated with the distribution of fresh products to commissaries, lessening the impact of overall declines at the DeCA-operated commissaries.

 

The Company held grand re-openings of eight newly remodeled and re-bannered stores in Omaha, bringing the total number of Family Fare Supermarkets in this region to 14. As part of the grand re-openings, the Company completed the roll out of its customer loyalty program to all Family Fare Supermarkets in this region.

 

The Company continued to invest in analytical capabilities to provide helpful data and insights to help drive more targeted and personalized marketing as well as more relevant product and assortment selections. With the use of a refined customer segmentation dataset, the Company looks to better understand customer buying patterns in each of the regions in which it operates and believes the advancements will drive greater engagement by better matching product selection and overall value proposition to customer desires.

The above developments and highlights helped position the Company for future earnings growth, but they also present other challenges and potential changes in trends that will impact fiscal 2017. By building on the results of fiscal 2016, the Company expects to see growth in year-over-year sales in the Food Distribution segment, continued challenges with sales at DeCA impacting the Military segment, and slightly negative to flat comparable retail store sales that improve throughout the course of the year. With the Caito Fresh Kitchen facility commencing production in the first half of fiscal 2017, the Company is optimistic about the opportunities to offer fresh protein-based foods and prepared meals to its customers but expects minimal contributions from the Fresh Kitchen as that operation ramps up during fiscal 2017. In the Military segment, the Company expects limited contributions from the DeCA private brand program in the second half of the year as the program is rolled out. The Company expects deflation to eventually subside in the second half of the year, and as a result, does not expect a similar deflation-related LIFO benefit in the fourth quarter of fiscal 2017. Lastly, the Company anticipates benefits from certain efficiency initiatives to be realized in the second half of the year.

The Company expects the net long-term debt to Adjusted EBITDA ratio to be under 2.5 times by the end of fiscal 2017, excluding any new merger and acquisition activity.

Results of Operations

The following table sets forth items from the Company’s consolidated statements of earnings as a percentage of net sales and the year-to-year percentage change:

 

 

 

 

Percentage of Net Sales

 

 

Percentage Change

 

 

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

12/31/2016 to

 

 

1/2/2016 to

 

 

 

 

2016

 

 

2016

 

 

2015

 

 

1/2/2016

 

 

1/3/2015

 

 

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

 

52 vs. 52 Weeks

 

 

52 vs. 53 Weeks

 

Net sales

 

 

100.0

 

 

 

100.0

 

 

 

100.0

 

 

 

1.1

 

 

 

(3.3

)

Gross profit

 

 

14.4

 

 

 

14.6

 

 

 

14.6

 

 

 

(0.4

)

 

 

(3.5

)

Selling, general and administrative expenses

 

 

12.5

 

 

 

12.8

 

*

 

12.9

 

 

 

(1.2

)

 

 

(4.6

)

Merger integration and acquisition

 

 

0.1

 

 

 

0.1

 

 

 

0.1

 

*

 

(17.5

)

 

 

(33.5

)

Restructuring charges and asset impairment

 

 

0.4

 

 

 

0.1

 

 

 

0.1

 

 

 

264.9

 

 

 

42.8

 

Operating earnings

 

 

1.4

 

 

 

1.6

 

 

 

1.5

 

 

 

(11.5

)

 

 

7.0

 

Other income and expenses

 

 

0.2

 

 

 

0.3

 

 

 

0.4

 

*

 

(16.9

)

 

 

(7.3

)

Earnings before income taxes and discontinued operations

 

 

1.2

 

 

 

1.3

 

 

 

1.1

 

 

 

(10.3

)

 

 

10.8

 

Income taxes

 

 

0.5

 

*

 

0.5

 

 

 

0.4

 

 

 

(11.3

)

 

 

18.4

 

Earnings from continuing operations

 

 

0.7

 

 

 

0.8

 

 

 

0.7

 

 

 

(9.7

)

 

 

6.8

 

Loss from discontinued operations, net of taxes

 

 

 

 

 

 

 

 

 

 

 

(50.0

)

 

 

(13.0

)

Net earnings

 

 

 

0.7

 

 

 

0.8

 

 

 

0.7

 

 

 

(9.4

)

 

 

7.0

 

* Difference due to rounding

-21-


 

 

Results of Continuing Operations for Fiscal Year Ended Dec ember 31, 2016 Compared to Fiscal Year Ended January 2, 2016

Net Sales

 

 

Year Ended

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

Percentage of

 

January 2,

 

 

Percentage of

 

 

 

 

 

 

 

 

 

 

2016

 

 

Total

 

2016

 

 

Total

 

 

 

 

 

 

Percentage

 

(In thousands)

(52 Weeks)

 

 

Net Sales

 

(52 Weeks)

 

 

Net Sales

 

Variance

 

 

Change

 

Food Distribution

$

 

3,454,541

 

 

 

44.7

 

%

 

$

 

3,305,094

 

 

 

43.2

 

%

 

$

 

149,447

 

 

 

4.5

 

Military

 

 

2,197,014

 

 

 

28.4

 

 

 

 

 

2,207,161

 

 

 

28.8

 

 

 

 

 

(10,147

)

 

 

(0.5

)

Retail

 

 

2,083,045

 

 

 

26.9

 

 

 

 

 

2,139,718

 

 

 

28.0

 

 

 

 

 

(56,673

)

 

 

(2.6

)

Total net sales

$

 

7,734,600

 

 

 

100.0

 

%

 

$

 

7,651,973

 

 

 

100.0

 

%

 

$

 

82,627

 

 

 

1.1

 

 

Net sales for the fiscal year ended December 31, 2016 (“fiscal 2016”) increased $82.6 million, or 1.1%, from $7.65 billion in the fiscal year ended January 2, 2016 (“fiscal 2015” or “prior year”), to $7.73 billion. The increase was primarily driven by business gains from new and existing customers in the Food Distribution and Military segments, which more than offset the negative impact of food deflation on all segments; lower sales at the DeCA-operated commissaries; and lower sales attributable to both the decrease in comparable retail store sales and the closure of retail stores.

Food Distribution net sales, after intercompany eliminations, increased $149.4 million, or 4.5%, to $3.45 billion in fiscal 2016 from $3.31 billion in the prior year. The increase was primarily due to business gains from new and existing customers, which more than offset the negative impact of deflation.

Military net sales decreased $10.1 million, or 0.5%, to $2.20 billion in fiscal 2016 from $2.21 billion in the prior year. The decrease was primarily due to lower sales at the DeCA-operated commissaries, partially offset by new business gains associated with the distribution of fresh products.

Retail net sales decreased $56.7 million, or 2.6%, to $2.08 billion in fiscal 2016 from $2.14 billion in the prior year. Comparable store sales for the year, excluding fuel, improved to -2.4 percent from -2.9 percent in the prior year. Despite four consecutive quarters of improved comparable store sales trends, the ongoing deflationary environment and continued challenging economic conditions, particularly in certain western geographies, contributed to the lower sales at Retail. Specifically, the decrease in net sales was attributable to the negative comparable store sales and $40.0 million of lower sales due to the closure of retail stores and a fuel center, partially offset by $40.0 million of full-year net sales contributions from stores acquired in fiscal 2015. The Company defines a retail store as comparable when it is in operation for 14 accounting periods (a period equals four weeks), regardless of remodels, expansions, or relocated stores.. The Company’s definition of comparable store sales may differ from similarly titled measures at other companies.

Gross Profit Gross profit represents net sales less cost of sales, which include purchase costs, in-bound freight, physical inventory adjustments, markdowns and promotional allowances. Vendor allowances that relate to the buying and merchandising activities consist primarily of promotional allowances, which are generally allowances on purchased quantities and, to a lesser extent, slotting allowances, which are billed to vendors for the Company’s merchandising costs, such as setting up warehouse infrastructure. Vendor allowances associated with product cost are recognized as a reduction in cost of sales when the product is sold. Lump sum payments received for multi-year contracts are amortized over the life of the contracts based on contractual terms.

Gross profit was $1.11 billion in fiscal 2016 compared to $1.12 billion in the prior year. As a percent of net sales, gross profit decreased from 14.6% to 14.4% primarily due to the mix of business operations and the impact of continued deflation.

Selling, General and Administrative Expenses Selling, general and administrative (“SG&A”) expenses consist primarily of salaries and wages, employee benefits, warehousing costs, store occupancy costs, shipping and handling, utilities, equipment rental, depreciation and other administrative costs.

SG&A expenses decreased $11.9 million, or 0.4%, to $963.7 million in fiscal 2016 from $975.6 million in the prior year, representing 12.5% of net sales in fiscal 2016 compared to 12.8% in the prior year. The decrease was primarily attributable to benefits from merger synergies and cost reduction efforts, lower depreciation associated with fully depreciated assets, and the impact of retail store closures, partially offset by higher health care and other benefit costs. The decrease in the rate to net sales was primarily due to the factors mentioned previously.

-22-


 

 

Merger Integration and Acquisition Expenses Merger integration and acquisition expenses consist of costs to integrate operations following the merger with Nash-Fin ch, primarily system upgrades and implementations, as well as costs incurred in connection with fiscal 2016 and 2015 acquisitions. Merger integration and acquisition expenses decreased in fiscal 2016 as a result of completing various merger integration act ivities and despite acquisition-related costs associated with the Caito and BRT acquisition.

Restructuring Charges and Asset Impairment Fiscal 2016 included $32.1 million of restructuring and asset impairment charges primarily related to the closure of four retail stores and two distribution centers, which were part of the Company's warehouse and retail store rationalization plan, as well as asset impairment charges associated with certain underperforming retail stores. Fiscal 2015 included $8.8 million of restructuring and asset impairment charges primarily related to the closures of six retail stores and one distribution center, as well as asset impairment charges associated with certain underperforming retail stores.

Operating Earnings

 

 

Year Ended

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

 

 

January 2,

 

 

 

 

 

 

 

 

 

Change in

 

 

2016

 

 

Percentage of

 

2016

 

 

Percentage of

 

 

 

 

 

 

Percentage of

 

(In thousands)

(52 weeks)

 

 

Net Sales

 

(52 weeks)

 

 

Net Sales

 

Variance

 

 

Net Sales

 

Food Distribution

$

 

85,093

 

 

 

2.5

 

%

 

$

 

78,841

 

 

 

2.4

 

%

 

$

 

6,252

 

 

 

0.1

 

Military

 

 

12,160

 

 

 

0.6

 

 

 

 

 

17,059

 

 

 

0.8

 

 

 

 

 

(4,899

)

 

 

(0.2

)

Retail

 

 

11,514

 

 

 

0.6

 

 

 

 

 

26,975

 

 

 

1.3

 

 

 

 

 

(15,461

)

 

 

(0.7

)

Operating earnings

$

 

108,767

 

 

 

1.4

 

%

 

$

 

122,875

 

 

 

1.6

 

%

 

$

 

(14,108

)

 

 

(0.2

)

 

Operating earnings decreased $14.1 million, or 11.5%, to $108.8 million in fiscal 2016 from $122.9 million in the prior year. The decrease was primarily due to higher restructuring and asset impairment charges of $23.3 million and the impact of food deflation, which more than offset the sales growth at Food Distribution and lower operating expenses due in part to lower depreciation and productivity and efficiency initiatives.

Food Distribution operating earnings increased $6.3 million, or 7.9%, to $85.1 million in fiscal 2016 from $78.8 million in the prior year. The increase was driven by sales growth from new and existing business, and lower operating expenses associated with supply chain improvements and lower depreciation, partially offset by higher costs for warehouse closings and health care benefits, as well as the negative impact of deflation.

Military operating earnings decreased $4.9 million, or 28.7%, to $12.2 million in fiscal 2016 from $17.1 million in the prior year. The decrease was primarily due to lower sales at the DeCA-operated commissaries and the negative impact of deflation, which more than offset new business gains associated with the distribution of fresh products as well as lower restructuring and asset impairment charges that did not recur in fiscal 2016.

Retail operating earnings decreased $15.5 million, or 2.6%, to $11.5 million in fiscal 2016 from $27.0 million in the prior year. The decrease was primarily due to higher restructuring and impairment charges and a decrease in comparable stores sales, partially offset by favorable rebate programs, higher fuel margins, and lower occupancy costs.

Interest Expense Interest expense decreased $2.7 million, or 12.5%, to $19.1 million in fiscal 2016 from $21.8 million in the prior year. The decrease was primarily attributable to lower debt levels and lower interest rates primarily due to the prepayment of $50.0 million of Senior Notes in the prior year.

Debt Extinguishment A loss on debt extinguishment of $0.2 million was incurred in fiscal 2016 in connection with the amendment of the senior secured credit facility. A loss on debt extinguishment of $1.2 million was incurred in fiscal 2015 in connection with the prepayment of the Senior Notes (see Debt Management under “Liquidity and Capital Resources”).

-23-


 

 

Inc ome Taxes The effective income tax rates were 36.6% and 37.0% for fiscal 2016 and 2015, respectively. The differences from the statutory Federal rates in fiscal 2016 and 2015 were primarily due to state income taxes. Effective tax rates and the component s thereof are not expected to fluctuate significantly in fiscal 2017 from fiscal 2016 results.

 

Results of Continuing Operations for 52 Week Fiscal Year Ended January 2, 2016 Compared to 53 Week Fiscal Year Ended January 3, 2015

Net Sales

 

 

Year Ended

 

 

 

 

 

 

 

 

 

 

January 2,

 

 

Percentage of

 

January 3,

 

 

Percentage of

 

 

 

 

 

 

 

 

 

 

2016

 

 

Total

 

2015

 

 

Total

 

 

 

 

 

 

Percentage

 

(In thousands)

(52 weeks)

 

 

Net Sales

 

(53 weeks)

 

 

Net Sales

 

Variance

 

 

Change

 

Food Distribution

$

 

3,305,094

 

 

 

43.2

 

%

 

$

 

3,356,331

 

 

 

42.4

 

%

 

$

 

(51,237

)

 

 

(1.5

)

Military

 

 

2,207,161

 

 

 

28.8

 

 

 

 

 

2,275,512

 

 

 

28.7

 

 

 

 

 

(68,351

)

 

 

(3.0

)

Retail

 

 

2,139,718

 

 

 

28.0

 

 

 

 

 

2,284,219

 

 

 

28.9

 

 

 

 

 

(144,501

)

 

 

(6.3

)

Total net sales

$

 

7,651,973

 

 

 

100.0

 

%

 

$

 

7,916,062

 

 

 

100.0

 

%

 

$

 

(264,089

)

 

 

(3.3

)

 

Net sales for the fiscal year ended January 2, 2016 (“fiscal 2015”) decreased $264.1 million, or 3.3%, to $7.65 billion from $7.92 billion in the fiscal year ended January 3, 2015 (“fiscal 2014”). Excluding the extra week in fiscal 2014, which accounted for $135.2 million of net sales, the decrease of 1.7% was primarily due to decreases in comparable retail store sales, excluding fuel; lower sales resulting from retail store and fuel center closures; lower retail fuel prices; and lower sales at the DeCA-operated commissaries.

Food Distribution net sales, after intercompany eliminations, decreased $51.2 million, or 1.5%, to $3.31 billion in fiscal 2015 from $3.36 billion in fiscal 2014. Excluding the extra week in fiscal 2014, which accounted for $56.5 million of net sales, and despite low inflation, net sales increased 1.7% primarily due to net new business.

Military net sales decreased $68.4 million, or 3.0%, to $2.21 billion in fiscal 2015 from $2.28 billion in fiscal 2014. Excluding the extra week in fiscal 2014, which accounted for $36.9 million of net sales, the decrease of 1.4% was primarily due to lower sales at the DeCA-operated commissaries.

Retail net sales decreased $144.5 million, or 6.3%, to $2.14 billion in fiscal 2015 from $2.28 billion in fiscal 2014. Excluding the extra week in fiscal 2014, which accounted for $41.8 million of net sales in fiscal 2014, the decrease of 4.6% was primarily due to $71.1 million of lower sales due to the closure of retail stores and fuel centers, a 2.9% decrease in comparable stores sales, excluding fuel, and significantly lower fuel prices compared to fiscal 2014, partially offset by $53.2 million of net sales from stores acquired in fiscal 2015.

The decline in comparable store sales reflects the low inflationary environment and increased competition primarily in the western geographic areas, as well as the unseasonably warm weather in the Michigan geographic area in the fourth quarter of fiscal 2015. The Company defines a retail store as comparable when it is in operation for 14 accounting periods (a period equals four weeks), and it includes remodeled, expanded and relocated stores in comparable stores.

Gross Profit – Gross profit represents net sales less cost of sales, which include purchase costs, in-bound freight, physical inventory adjustments, markdowns and promotional allowances. Vendor allowances that relate to the buying and merchandising activities consist primarily of promotional allowances, which are generally allowances on purchased quantities and, to a lesser extent, slotting allowances, which are billed to vendors for the Company’s merchandising costs, such as setting up warehouse infrastructure. Vendor allowances associated with product cost are recognized as a reduction in cost of sales when the product is sold. Lump sum payments received for multi-year contracts are amortized over the life of the contracts based on contractual terms

Gross profit for fiscal 2015 was $1.12 billion compared to $1.16 billion in fiscal 2014, representing 14.6% of net sales in both years. Higher fuel margin rates in fiscal 2015 were offset by the net impact of low inflation related gains and LIFO expense, as well as a higher mix of lower margin Military and Food Distribution sales.

-24-


 

 

S elling, General and Administrative Expenses Selling, general and administrative (“SG&A”) expenses consist primarily of salaries and wages, employee benefits, warehousing costs, store occupancy costs, shipping and handling, utilities, equipment rental, de preciation and other administrative costs.

SG&A expenses decreased $46.8 million, or 4.6%, to $975.6 million in fiscal 2015 from $1.02 billion in fiscal 2014, and were 12.8% of net sales in fiscal 2015 compared to 12.9% in fiscal 2014. Excluding the extra week in fiscal 2014, SG&A expenses decreased $31.3 million, or 3.1%, and the percent to net sales in fiscal 2014 was 12.9%. The decrease was due primarily to benefits from merger synergies, cost improvements resulting from productivity and efficiency initiatives, the impact of store closures, and lower healthcare and transportation costs. The decrease in the rate to net sales was primarily due to expense control initiatives, benefits from merger synergies and lower healthcare costs.

Merger Integration and Acquisition Expenses Merger integration and acquisition expenses consist of costs to integrate operations following the merger with Nash-Finch as well as costs incurred in connection with fiscal 2015 acquisitions. Merger integration and acquisition expenses for fiscal 2015 decreased $4.3 million, or 33.5%, from $12.7 million in fiscal 2014 to $8.4 million.

Restructuring Charges and Asset Impairment Fiscal 2015 consisted of $8.8 million in charges primarily related to underperforming retail stores and costs related to the closure of retail stores and distribution centers, partially offset by the gains on sales of assets related to a previously closed food distribution center and retail stores and the favorable settlements of lease terminations of previously closed stores. Fiscal 2014 included charges of $6.2 million related to underperforming retail stores and costs associated with closed retail stores and a closed distribution center.

Operating Earnings

 

 

Year Ended

 

 

 

 

 

 

 

 

 

 

January 2,

 

 

 

 

January 3,

 

 

 

 

 

 

 

 

 

Change in

 

 

2016

 

 

Percentage of

 

2015

 

 

Percentage of

 

 

 

 

 

 

Percentage of

 

(In thousands)

(52 weeks)

 

 

Net Sales

 

(53 weeks)

 

 

Net Sales

 

Variance

 

 

Net Sales

 

Food Distribution

$

 

78,841

 

 

 

2.4

 

%

 

$

 

54,802

 

 

 

1.6

 

%

 

$

 

24,039

 

 

 

0.8

 

Military

 

 

17,059

 

 

 

0.8

 

 

 

 

 

21,721

 

 

 

1.0

 

 

 

 

 

(4,662

)

 

 

(0.2

)

Retail

 

 

26,975

 

 

 

1.3

 

 

 

 

 

38,323

 

 

 

1.7

 

 

 

 

 

(11,348

)

 

 

(0.4

)

Operating earnings

$

 

122,875

 

 

 

1.6

 

%

 

$

 

114,846

 

 

 

1.5

 

%

 

$

 

8,029

 

 

 

0.1

 

 

Operating earnings increased $8.0 million, or 7.0%, to $122.9 million in fiscal 2015 from $114.8 million in fiscal 2014. The increase was primarily due to lower operating expenses due in part to productivity, efficiency and cost control initiatives as well as the mix of business operations, partially offset by lower inflation related gains and higher restructuring and asset impairment compared to fiscal 2014.

Food Distribution operating earnings increased $24.0 million, or 43.9%, to $78.8 million in fiscal 2015 from $54.8 million in fiscal 2014. The increase was primarily driven by lower operating expenses associated with productivity and efficiency initiatives, as well as lower merger integration costs and depreciation.

Military operating earnings decreased $4.7 million, or 21.5%, to $17.1 million in fiscal 2015 from $21.7 million in fiscal 2014. The decrease was primarily due to lower sales at the DeCA-operated commissaries, lower inflation related gains, and warehouse closing charges, partially offset by lower operating expenses and transportation costs.

Retail operating earnings decreased $11.3 million, or 29.6%, to $27.0 million in fiscal 2015 from $38.3 million in fiscal 2014. The decrease was primarily due to a decrease in comparable store sales, higher acquisition costs related to stores acquired in fiscal 2015, partially offset by the impact of store closures, contributions from the stores acquired in fiscal 2015, and higher fuel margins.

Interest Expense Interest expense decreased $2.6 million, or 10.6%, to $21.8 million in fiscal 2015 from $24.4 million in fiscal 2014. The decrease in interest expense was primarily due to decreased borrowings and lower interest rates resulting from the amended senior secured credit agreement. On January 9, 2015, the Company amended its credit agreement which reduced the interest rate.

Debt Extinguishment A loss on debt extinguishment of $1.2 million was incurred in fiscal 2015 in connection with the prepayment of the Senior Notes.

-25-


 

 

Income Taxes The effective income tax rates were 37.0% and 34.6% for fiscal 2015 and 2014, respectively. The difference from the statutory Federal rate in fiscal 2015 was primarily due to state income taxes. The fiscal 2014 effective rate differs from the Federal statutory rate primarily due to the favor able settlement of unrecognized tax liabilities, partially offset by state income taxes.

Non-GAAP Financial Measures

Adjusted Operating Earnings

Adjusted operating earnings is a non-GAAP operating financial measure that the Company defines as operating earnings plus or minus adjustments for items that do not reflect the ongoing operating activities of the Company and costs associated with the closing of operational locations.

The Company believes that adjusted operating earnings provide a meaningful representation of its operating performance for the Company as a whole and for its operating segments. The Company considers adjusted operating earnings as an additional way to measure operating performance on an ongoing basis. Adjusted operating earnings is meant to reflect the ongoing operating performance of all of its distribution and retail operations; consequently, it excludes the impact of items that could be considered “non-operating” or “non-core” in nature, and also excludes the contributions of activities classified as discontinued operations. Because adjusted operating earnings and adjusted operating earnings by segment are performance measures that management uses to allocate resources, assess performance against its peers and evaluate overall performance, the Company believes it provides useful information for both management and its investors. In addition, securities analysts, fund managers and other shareholders and stakeholders that communicate with the Company request its operating financial results in an adjusted operating earnings format.

Adjusted operating earnings and adjusted operating earnings by segment are not measures of performance under accounting principles generally accepted in the United States of America (“GAAP”), and should not be considered as a substitute for operating earnings, cash flows from operating activities and other income or cash flow statement data. The Company’s definitions of adjusted operating earnings and adjusted operating earnings by segment may not be identical to similarly titled measures reported by other companies.

Following is a reconciliation of operating earnings to adjusted operating earnings for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015.

-26-


 

 

 

Year Ended

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 weeks)

 

Operating earnings

$

 

108,767

 

 

$

 

122,875

 

 

$

 

114,846

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Merger integration and acquisition expenses

 

 

6,959

 

 

 

 

8,433

 

 

 

 

12,675

 

Restructuring charges and asset impairment

 

 

32,116

 

 

 

 

8,802

 

 

 

 

6,166

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

569

 

 

 

 

900

 

Severance associated with cost reduction initiatives

 

 

859

 

 

 

 

549

 

 

 

 

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

1,578

 

Adjusted operating earnings, including 53rd week

 

 

148,701

 

 

 

 

141,228

 

 

 

 

136,165

 

53rd week

 

 

 

 

 

 

 

 

 

 

(3,673

)

Adjusted operating earnings, excluding 53rd week

$

 

148,701

 

 

$

 

141,228

 

 

$

 

132,492

 

Reconciliation of operating earnings to adjusted operating earnings by segment:

 

Food Distribution:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

$

 

85,093

 

 

$

 

78,841

 

 

$

 

54,802

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Merger integration and acquisition expenses

 

 

3,703

 

 

 

 

2,037

 

 

 

 

12,644

 

Restructuring charges (gains) and asset impairment

 

 

5,068

 

 

 

 

(216

)

 

 

 

(241

)

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

282

 

 

 

 

485

 

Severance associated with cost reduction initiatives

 

 

229

 

 

 

 

150

 

 

 

 

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

801

 

Adjusted operating earnings, including 53rd week

 

 

94,093

 

 

 

 

81,094

 

 

 

 

68,491

 

53rd week

 

 

 

 

 

 

 

 

 

 

(1,132

)

Adjusted operating earnings, excluding 53rd week

$

 

94,093

 

 

$

 

81,094

 

 

$

 

67,359

 

Military:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

$

 

12,160

 

 

$

 

17,059

 

 

$

 

21,721

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Merger integration and acquisition expenses

 

 

1

 

 

 

 

 

 

 

 

27

 

Restructuring (gains) charges and asset impairment

 

 

(473

)

 

 

 

1,048

 

 

 

 

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

75

 

 

 

 

87

 

Severance associated with cost reduction initiatives

 

 

245

 

 

 

 

125

 

 

 

 

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

67

 

Adjusted operating earnings, including 53rd week

 

 

11,933

 

 

 

 

18,307

 

 

 

 

21,902

 

53rd week

 

 

 

 

 

 

 

 

 

 

(573

)

Adjusted operating earnings, excluding 53rd week

$

 

11,933

 

 

$

 

18,307

 

 

$

 

21,329

 

Retail:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

$

 

11,514

 

 

$

 

26,975

 

 

$

 

38,323

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Merger integration and acquisition expenses

 

 

3,255

 

 

 

 

6,396

 

 

 

 

4

 

Restructuring charges and asset impairment

 

 

27,521

 

 

 

 

7,970

 

 

 

 

6,407

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

212

 

 

 

 

328

 

Severance associated with cost reduction initiatives

 

 

385

 

 

 

 

274

 

 

 

 

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

710

 

Adjusted operating earnings, including 53rd week

 

 

42,675

 

 

 

 

41,827

 

 

 

 

45,772

 

53rd week

 

 

 

 

 

 

 

 

 

 

(1,968

)

Adjusted operating earnings, excluding 53rd week

$

 

42,675

 

 

$

 

41,827

 

 

$

 

43,804

 

 


-27-


 

 

Adjusted Earnings from Continuing Operations

Adjusted earnings from continuing operations is a non-GAAP operating financial measure that the Company defines as earnings from continuing operations plus or minus adjustments for items that do not reflect the ongoing operating activities of the Company and costs associated with the closing of operational locations.

The Company believes that adjusted earnings from continuing operations provide a meaningful representation of its operating performance for the Company. The Company considers adjusted earnings from continuing operations as an additional way to measure operating performance on an ongoing basis. Adjusted earnings from continuing operations is meant to reflect the ongoing operating performance of all of its distribution and retail operations; consequently, it excludes the impact of items that could be considered “non-operating” or “non-core” in nature, and also excludes the contributions of activities classified as discontinued operations. Because adjusted earnings from continuing operations is a performance measure that management uses to allocate resources, assess performance against its peers and evaluate overall performance, the Company believes it provides useful information for both management and its investors. In addition, securities analysts, fund managers and other shareholders and stakeholders that communicate with the Company request its operating financial results in adjusted earnings from continuing operations format.

Adjusted earnings from continuing operations is not a measure of performance under accounting principles generally accepted in the United States of America, and should not be considered as a substitute for net earnings, cash flows from operating activities and other income or cash flow statement data. The Company’s definition of adjusted earnings from continuing operations may not be identical to similarly titled measures reported by other companies.

Following is a reconciliation of earnings from continuing operations to adjusted earnings from continuing operations for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015.

 

 

 

Year Ended

 

 

 

December 31, 2016

 

 

January 2, 2016

 

 

January 3, 2015

 

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

 

 

 

 

 

per diluted

 

 

 

 

 

per diluted

 

 

 

 

 

per diluted

 

 

(In thousands, except per share data)

Earnings

 

 

share

 

 

Earnings

 

 

share

 

 

Earnings

 

 

share

 

 

Earnings from continuing operations

$

 

57,056

 

 

$

 

1.52

 

 

$

 

63,166

 

 

$

 

1.67

 

 

$

 

59,120

 

 

$

 

1.57

 

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Merger integration and acquisition expenses

 

 

6,959

 

 

 

 

 

 

 

 

 

8,433

 

 

 

 

 

 

 

 

 

12,675

 

 

 

 

 

 

 

Restructuring charges and asset impairment

 

 

32,116

 

 

 

 

 

 

 

 

 

8,802

 

 

 

 

 

 

 

 

 

6,166

 

 

 

 

 

 

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

 

 

 

 

 

569

 

 

 

 

 

 

 

 

 

900

 

 

 

 

 

 

 

Severance associated with cost reduction initiatives

 

 

859

 

 

 

 

 

 

 

 

 

549

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,578

 

 

 

 

 

 

 

Loss on debt extinguishment

 

 

247

 

 

 

 

 

 

 

 

 

1,171

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total adjustments

 

 

40,181

 

 

 

 

 

 

 

 

 

19,524

 

 

 

 

 

 

 

 

 

21,319

 

 

 

 

 

 

 

Favorable settlement of unrecognized tax liability

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1,849

)

 

 

 

 

 

 

Tax planning strategies

 

 

 

 

 

 

 

 

 

 

 

(730

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Income tax effect on adjustments (a)

 

 

(15,071

)

 

 

 

 

 

 

 

 

(7,374

)

 

 

 

 

 

 

 

 

(8,646

)

 

 

 

 

 

 

Total adjustments, net of taxes

 

 

25,110

 

 

 

 

0.67

 

 

 

 

11,420

 

 

 

 

0.31

 

*

 

 

10,824

 

 

 

 

0.28

 

*

Adjusted earnings from continuing operations, including 53rd week

 

 

82,166

 

 

 

 

2.19

 

 

 

 

74,586

 

 

 

 

1.98

 

 

 

 

69,944

 

 

 

 

1.85

 

 

53rd week

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(2,022

)

 

 

 

(0.05

)

 

Adjusted earnings from continuing operations, excluding 53rd week

$

 

82,166

 

 

$

 

2.19

 

 

$

 

74,586

 

 

$

 

1.98

 

 

$

 

67,922

 

 

$

 

1.80

 

 

*Includes rounding

 

(a)

The income tax effect on adjustments is computed by applying the effective tax rate, before discrete items, to the total adjustment for the fiscal year.

.

-28-


 

 

Adjusted EBITDA

Adjusted Earnings Before Interest, Taxes, Depreciation and Amortization (“adjusted EBITDA”) is a non-GAAP operating financial measure that the Company defines as net earnings plus interest, discontinued operations, depreciation and amortization, and other non-cash items including deferred (stock) compensation, the LIFO provision, as well as adjustments for items that do not reflect the ongoing operating activities of the Company and costs associated with the closing of operational locations.

The Company believes that adjusted EBITDA provides a meaningful representation of its operating performance for the Company as a whole and for its operating segments. The Company considers adjusted EBITDA as an additional way to measure operating performance on an ongoing basis. Adjusted EBITDA is meant to reflect the ongoing operating performance of all of its distribution and retail operations; consequently, it excludes the impact of items that could be considered “non-operating” or “non-core” in nature, and also excludes the contributions of activities classified as discontinued operations. Because adjusted EBITDA and adjusted EBITDA by segment are performance measures that management uses to allocate resources, assess performance against its peers and evaluate overall performance, the Company believes it provides useful information for both management and its investors. In addition, securities analysts, fund managers and other shareholders and stakeholders that communicate with the Company request its operating financial results in an adjusted EBITDA format.

Adjusted EBITDA and adjusted EBITDA by segment are not measures of performance under accounting principles generally accepted in the United States of America, and should not be considered as a substitute for net earnings, cash flows from operating activities and other income or cash flow statement data. The Company’s definitions of adjusted EBITDA and adjusted EBITDA by segment may not be identical to similarly titled measures reported by other companies.

Following is a reconciliation of net earnings to adjusted EBITDA for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015.

-29-


 

 

 

 

Year Ended

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 weeks)

 

Net earnings

$

 

56,828

 

 

$

 

62,710

 

 

$

 

58,596

 

Loss from discontinued operations, net of tax

 

 

228

 

 

 

 

456

 

 

 

 

524

 

Income taxes

 

 

32,907

 

 

 

 

37,093

 

 

 

 

31,329

 

Other expenses, net

 

 

18,804

 

 

 

 

22,616

 

 

 

 

24,397

 

Operating earnings

 

 

108,767

 

 

 

 

122,875

 

 

 

 

114,846

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIFO (benefit) expense

 

 

(1,919

)

 

 

 

(1,201

)

 

 

 

5,604

 

Depreciation and amortization

 

 

77,246

 

 

 

 

83,334

 

 

 

 

86,994

 

Merger integration and acquisition expenses

 

 

6,959

 

 

 

 

8,433

 

 

 

 

12,675

 

Restructuring charges and asset impairment

 

 

32,116

 

 

 

 

8,802

 

 

 

 

6,166

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

569

 

 

 

 

900

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

1,578

 

Stock-based compensation

 

 

7,936

 

 

 

 

7,240

 

 

 

 

6,939

 

Other non-cash gains

 

 

(148

)

 

 

 

(530

)

 

 

 

(1,260

)

Adjusted EBITDA, including 53rd week

 

 

230,957

 

 

 

 

229,522

 

 

 

 

234,442

 

53rd week

 

 

 

 

 

 

 

 

 

 

(3,673

)

Adjusted EBITDA, excluding 53rd week

$

 

230,957

 

 

$

 

229,522

 

 

$

 

230,769

 

Reconciliation of operating earnings to adjusted EBITDA by segment:

 

Food Distribution:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

$

 

85,093

 

 

$

 

78,841

 

 

$

 

54,802

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIFO (benefit) expense

 

 

(1,128

)

 

 

 

(1,634

)

 

 

 

2,893

 

Depreciation and amortization

 

 

21,397

 

 

 

 

26,127

 

 

 

 

29,816

 

Merger integration and acquisition expenses

 

 

3,703

 

 

 

 

2,037

 

 

 

 

12,644

 

Restructuring charges (gains) and asset impairment

 

 

5,068

 

 

 

 

(216

)

 

 

 

(241

)

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

282

 

 

 

 

485

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

801

 

Stock-based compensation

 

 

3,491

 

 

 

 

3,337

 

 

 

 

3,258

 

Other non-cash charges (gains)

 

 

152

 

 

 

 

49

 

 

 

 

(318

)

Adjusted EBITDA, including 53rd week

 

 

117,776

 

 

 

 

108,823

 

 

 

 

104,140

 

53rd week

 

 

 

 

 

 

 

 

 

 

(1,132

)

Adjusted EBITDA, excluding 53rd week

$

 

117,776

 

 

$

 

108,823

 

 

$

 

103,008

 

Military:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

$

 

12,160

 

 

$

 

17,059

 

 

$

 

21,721

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIFO (benefit) expense

 

 

(331

)

 

 

 

108

 

 

 

 

1,262

 

Depreciation and amortization

 

 

11,484

 

 

 

 

12,081

 

 

 

 

11,350

 

Merger integration and acquisition expenses

 

 

1

 

 

 

 

 

 

 

 

27

 

Restructuring (gains) charges and asset impairment

 

 

(473

)

 

 

 

1,048

 

 

 

 

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

75

 

 

 

 

87

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

67

 

Stock-based compensation

 

 

1,347

 

 

 

 

1,137

 

 

 

 

577

 

Other non-cash charges (gains)

 

 

261

 

 

 

 

235

 

 

 

 

(62

)

Adjusted EBITDA, including 53rd week

 

 

24,449

 

 

 

 

31,743

 

 

 

 

35,029

 

53rd week

 

 

 

 

 

 

 

 

 

 

(573

)

Adjusted EBITDA, excluding 53rd week

$

 

24,449

 

 

$

 

31,743

 

 

$

 

34,456

 

Retail:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

$

 

11,514

 

 

$

 

26,975

 

 

$

 

38,323

 

Adjustments:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIFO (benefit) expense

 

 

(460

)

 

 

 

325

 

 

 

 

1,449

 

Depreciation and amortization

 

 

44,365

 

 

 

 

45,126

 

 

 

 

45,828

 

-30-


 

 

Merger integration and acquisition expenses

 

 

3,255

 

 

 

 

6,396

 

 

 

 

4

 

Restructuring charges and asset impairment

 

 

27,521

 

 

 

 

7,970

 

 

 

 

6,407

 

Fees and expenses related to tax planning strategies

 

 

 

 

 

 

212

 

 

 

 

328

 

Pension settlement charges

 

 

 

 

 

 

 

 

 

 

710

 

Stock-based compensation

 

 

3,098

 

 

 

 

2,766

 

 

 

 

3,104

 

Other non-cash gains

 

 

(561

)

 

 

 

(814

)

 

 

 

(880

)

Adjusted EBITDA, including 53rd week

 

 

88,732

 

 

 

 

88,956

 

 

 

 

95,273

 

53rd week

 

 

 

 

 

 

 

 

 

 

(1,968

)

Adjusted EBITDA, excluding 53rd week

$

 

88,732

 

 

$

 

88,956

 

 

$

 

93,305

 

 

Critical Accounting Policies

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. On an ongoing basis, the Company evaluates its estimates, including those related to bad debts, inventories, intangible assets, assets held for sale, long-lived assets, income taxes, self-insurance reserves, restructuring costs, retirement benefits, stock-based compensation, contingencies and litigation. Management bases its estimates on historical experience and various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that may not be readily apparent from other sources. Based on the Company’s ongoing review, the Company makes adjustments it considers appropriate under the facts and circumstances. This discussion and analysis of the Company’s financial condition and results of operations is based upon the Company’s consolidated financial statements. The Company believes these accounting policies and others set forth in Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements should be reviewed as they are integral to understanding the Company’s financial condition and results of operations. The Company has discussed the development, selection and disclosure of these accounting policies with the Audit Committee of the Board of Directors.

An accounting policy is considered critical if: a) it requires an accounting estimate to be made based on assumptions about matters that are highly uncertain at the time the estimate is made, and b) different estimates that reasonably could have been used, or changes in the accounting estimates that are reasonably likely to occur periodically, could materially impact the Company’s consolidated financial statements. The Company considers the following accounting policies to represent the more critical estimates and assumptions used in the preparation of its consolidated financial statements:

Inventories

Inventories are valued at the lower of cost or market, the majority of which use the last-in, first-out (“LIFO”) method. The remaining inventories are valued on the first-in, first-out (“FIFO”) method. The Company accounts for its Food Distribution and Military inventory using a perpetual system and utilizes the retail inventory method (“RIM”) to value inventory for center store products in the Retail segment. Under the RIM, inventory is stated at cost with cost of sales and gross margin calculated by applying a cost ratio to the retail value of inventories. Fresh, pharmacy and fuel products are accounted for at cost in the Retail segment. The Company evaluates inventory shortages throughout the year based on actual physical counts in its facilities. The Company records allowances for inventory shortages based on the results of recent physical counts to provide for estimated shortages from the last physical count to the financial statement date. The estimates and assumptions used in valuing inventories, including those used in past calculations, are reviewed and applied consistently, and as a result, the Company believes the estimates and assumptions are both reasonable and accurate. The Company does not anticipate future changes to the estimates or assumptions used in valuing inventories, but it does anticipate that inflation and/or deflation will continue to have a significant impact on the Company’s LIFO reserve as price changes represent a significant driver of the calculation.

-31-


 

 

 

Vendor Funds, Allowances and Credits

The Company receives funds from many of its vendors when purchasing products to sell to its corporate owned retail stores and independent retailers. Given the highly promotional nature of the retail supermarket industry, vendor allowances are generally intended to help defray the costs of promotion, advertising and selling the vendor’s products. Vendor allowances that relate to the Company’s buying and merchandising activities consist primarily of promotional allowances, which are generally allowances on purchased quantities and, to a lesser extent, slotting allowances, which are billed to vendors for the Company’s merchandising costs such as setting up warehouse infrastructure. The proper recognition and timing of accounting for these items are significant to the reporting of the results of the Company’s operations. Vendor allowances are recognized as a reduction in cost of sales when the related product is sold. Lump sum payments received for multi-year contracts are amortized over the life of the contracts based on contractual terms.

Customer Exposure and Credit Risk

Allowance for Doubtful Accounts – Methodology. The Company evaluates the collectability of its accounts and notes receivable based on a combination of factors. In most circumstances when the Company becomes aware of factors that may indicate a deterioration in a specific customer’s ability to meet its financial obligations (e.g., reductions of product purchases, deteriorating store conditions, changes in payment patterns), the Company records a specific reserve to reduce the receivable to an amount the Company reasonably believes will be collected. In determining the adequacy of the reserves, the Company analyzes factors such as the value of any collateral, customer financial statements, historical collection experience, aging of receivables and other economic and industry factors. It is possible that the accuracy of the estimation process could be materially affected by different judgments as to the collectability based on information considered and further deterioration of accounts. If circumstances change (e.g., further evidence of material adverse creditworthiness, additional accounts become credit risks, store closures), the Company’s estimates of the recoverability of amounts due could be reduced by a material amount, including to zero.

Funds Advanced to Independent Retailers. The Company advances funds to certain independent retailers which are earned by the retailers primarily through achieving specified purchase volume requirements, as outlined in their supply agreements with the Company, or in limited instances, for remaining a SpartanNash customer for a specified time period. These advances must be repaid if the purchase volume requirements are not met or if the retailer no longer remains a customer for the specified time period. In the event these retailers are unable to repay these advances or otherwise experience an event of default, the Company may be unable to recover the unearned portion of the funds advanced to these independent retailers. The Company evaluates the recoverability of these advances based on a number of factors, including anticipated and historical purchase volume, the value of any collateral, customer financial statements and other economic and industry factors, and establishes a reserve for the advances as necessary.

Guarantees of Debt and Lease Obligations of Others. The Company may guarantee debt and lease obligations of independent retailers. In the event these retailers are unable to meet their debt service payments or otherwise experience an event of default, the Company would be unconditionally liable for the outstanding balance of their debt and lease obligations, which would be due in accordance with the underlying agreements.

The Company has guaranteed the outstanding lease obligations of certain independent retailers and bank debt for one independent retailer. These guarantees, which are secured by certain business assets and personal guarantees of the respective independent retailers, represent the maximum undiscounted payments the Company would be required to make in the event of default. The Company believes these independent retailers will be able to perform under the lease agreements and that no payments will be required and no loss will be incurred under the guarantees. A liability representing the fair value of the obligations assumed under the guarantees is included in the accompanying consolidated financial statements.

The Company also subleases and assigns various leases to third parties. In circumstances when the Company becomes aware of factors that indicate deterioration in a third party’s ability to meet its financial obligations guaranteed or assigned by SpartanNash, the Company records a specific reserve in the amount the Company reasonably believes it will be obligated to pay on the third party’s behalf, net of any anticipated recoveries from the third party. In determining the adequacy of these reserves, the Company analyzes factors such as those described above in “Allowance for Doubtful Accounts – Methodology” and “Lease Commitments.” It is possible that the accuracy of the estimation process could be materially affected by different judgments as to the obligations based on information considered and further deterioration of accounts, with the potential for a corresponding adverse effect on operating results and cash flows. Triggering these guarantees or obligations under assigned leases would not, however, result in cross default of the Company’s debt, but could restrict resources available for general business initiatives. Refer to Part II, Item 8 of this report under the Concentration of Credit Risk section in the notes to consolidated financial statements for additional information regarding customer exposure and credit risk.

-32-


 

 

Business Combinations

The Company accounts for acquired businesses using the purchase method of accounting, which requires that the assets acquired and liabilities assumed be recorded at their estimated fair values as of the acquisition date, with any excess purchase price over the estimated fair values of the net assets acquired being recorded as goodwill.

Significant judgment is required in estimating the fair value of intangible assets and in assigning their respective useful lives. The fair value estimates are based on available historical information and on future expectations and assumptions deemed reasonable by the Company but are inherently uncertain. Also, determining the estimated useful life of an intangible asset requires judgment based on the Company’s expected use of the asset, as different types of intangible assets will have different useful lives and certain assets may even be considered to have indefinite useful lives. The Company typically utilizes the income method to estimate the fair value of intangible assets, which discounts the projected future cash flows attributable to the respective assets. Significant estimates and assumptions inherent in the valuation reflect a consideration of other marketplace competition and include the amount and timing of future cash flows (including expected growth rates and profitability) and the discount rate applied to the cash flows. Unanticipated market or macroeconomic events and circumstances may occur that could affect the accuracy or validity of the estimates and assumptions.

Goodwill

Goodwill is tested for impairment on an annual basis (during the last quarter of the fiscal year), or whenever events occur or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount. For purposes of its goodwill impairment testing, the Company maintains three reporting units, which are the same as the Company’s reporting segments; however, no goodwill currently exists within the Military segment. Fair values are determined based on the discounted cash flows and comparable market values of each reporting segment. If the fair value of the reporting unit is less than its carrying value, the fair value of the implied goodwill is calculated as the difference between the fair value of the reporting unit and the fair value of the underlying assets and liabilities, excluding goodwill. An impairment charge is recorded for any excess of the carrying value over the implied fair value. The Company’s goodwill impairment analysis also includes a comparison of the aggregate estimated fair value of each reporting unit to the Company’s total market capitalization. Therefore, a significant and sustained decline in the Company’s stock price could result in goodwill impairment charges. During times of financial market volatility, significant judgment is given to determine the underlying cause of the decline and whether stock price declines are short-term in nature or indicative of an event or change in circumstances. When testing goodwill for impairment, the Company’s corporate owned retail stores represent components of its Retail segment. Stores have been aggregated and deemed a single reporting unit as they have similar economic characteristics.

Determining market values using a discounted cash flow method requires that the Company make significant estimates and assumptions, including long-term projections of cash flows, market conditions and appropriate discount rates. The Company’s judgments are based on the perspective of a market participant, historical experience, current market trends and other information. In estimating future cash flows, the Company utilizes internally generated three-year forecasts for sales and operating profits, including capital expenditures, and a 3.0% long-term assumed growth rate of cash flows for periods after the three-year forecast for both the Food Distribution and Retail segments. The future estimated cash flows were discounted using a rate of 10.5% and 8.8% for the Food Distribution and Retail segments, respectively. The Company generally develops its forecasts based on recent sales data for existing operations and other factors. While the Company believes that the estimates and assumptions underlying the valuation methodology are reasonable, different assumptions could result in different outcomes.

Based on the Company’s annual review during the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, no goodwill impairment charge was required to be recorded. As of the date of the most recent goodwill impairment test, which utilized data and assumptions as of October 8, 2016, the Food Distribution reporting unit had a fair value that was substantially in excess of its carrying value and the fair value of the Retail reporting unit, which had $190.5 million of recorded goodwill as of the assessment date, exceeded its carrying value by 13.1%. The f air value calculations contain significant judgments and estimates related to the Retail reporting unit’s projected weighted average cost of capital, future revenues and cash flows, and overall profitability. These judgments and estimates are impacted by a number of different factors, both internal and external, that could result in changes in the estimates and their related outcomes. Specifically, certain changes in economic, industry or market conditions, business operations, competition, or the Company’s performance could affect the estimates used in the fair value calculations.

-33-


 

 

The Company has sufficient available information, both current and historical, to support its assumptions, judgments and estimates; however, if actual results are not consistent with the Company’s estimates it could result in the Company recording a significant non-cash impairment charge. From a sensitivity perspective, n o goodwill impairment charge would be required for the Retail reporting unit even if the estimate of future discounted cash flow was 10% lower or if the discount rate increased by 60 basis points. However, if the Company’s stock price experiences a signifi cant and sustained decline or other events or changes in circumstances occur, such as interest rate increases, which can significantly impact the projected weighted average cost of capital; changes in macroeconomic conditions; or operating results of the R etail reporting unit not meeting the Company’s estimates; it could result in the Company recording a significant non-cash impairment charge.

Impairment of Long-Lived Assets Other Than Goodwill

Long-lived assets to be held and used are evaluated for impairment when events or circumstances indicate that the carrying amount of an asset may not be recoverable. When the undiscounted future cash flows are not sufficient to recover an asset’s carrying amount, the fair value is compared to the carrying value to determine the impairment loss to be recorded. Long-lived assets are evaluated at the asset-group level, which is the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. Impairments of long-lived assets were $15.6 million, $4.2 million and $7.6 million for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Estimates of future cash flows and expected sales prices are judgments based upon the Company’s experience and knowledge of operations. These estimates project cash flows several years into the future and are affected by changes in the economy, real estate market conditions and inflation.

Long-lived assets to be disposed of are reported at the lower of carrying amount or fair value, less cost to sell. Management determines fair values using independent appraisals, quotes or expected sales prices developed by internal real estate professionals. Estimates of expected sales prices are judgments based upon the Company’s experience, knowledge of market conditions and current offers received. Changes in market conditions, the economic environment and other factors, including the Company’s ability to effectively compete and react to competitor openings, can significantly impact these estimates. While the Company believes that the estimates and assumptions underlying the valuation methodology are reasonable, different assumptions could result in a different outcome.

Reserves for Closed Properties

The Company records reserves for closed properties that are subject to long-term lease commitments based upon the future minimum lease payments and related ancillary costs from the date of closure to the end of the remaining lease term, net of estimated sublease rentals that could be reasonably expected to be obtained for the property. Future cash flows are based on contractual lease terms and knowledge of the geographic area in which the closed site is located. These estimates are subject to multiple factors, including inflation, ability to sublease the property and other economic conditions. Internally developed estimates of sublease rentals are based upon the geographic areas in which the properties are located, the results of previous efforts to sublease similar properties, and the current economic environment. Reserves may be adjusted in the future based upon the actual resolution of each of these factors. For any closed site reserves recorded as part of purchase accounting prior to the adoption of Accounting Standards Codification (“ASC”) Topic 805, adjustments that decrease the liability are generally recorded as a reduction of goodwill. At December 31, 2016, reserves for closed properties for distribution center and store lease and ancillary costs totaling $21.9 million are recorded net of approximately $0.2 million of existing sublease rentals. Based upon the current economic environment, the Company does not believe that it will be able to obtain any additional sublease rentals. A 5% increase/decrease in future estimated ancillary costs would result in a $0.6 million increase/decrease in the restructuring charge liability.

Insurance Reserves

SpartanNash is self-insured through self-insurance retentions or high deductible programs for workers’ compensation, general liability, and automobile liability, and is also self-insured for healthcare costs. Self-insurance liabilities are recorded based on claims filed and an estimate of claims incurred but not yet reported. Workers’ compensation, general liability and automobile liabilities are actuarially estimated based on available historical information on an undiscounted basis. The Company has purchased stop-loss coverage to limit its exposure on a per claim basis for its self-insurance retentions and high deductible programs. On a per claim basis, the Company’s exposure is up to $0.5 million for workers’ compensation, general liability and automobile liability, and $0.5 million for healthcare per covered life per year. Refer to Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements for additional information related to self-insurance reserves.

-34-


 

 

Any projection of losses concerning insurance reserves is subject to a degree of variability. Among the causes of variability are unpredictable external factors affecting future inflation rates, discount rates, litigation trends, changing regulations, legal interpretations, benefit level changes and claim settlement patt erns. Although the Company’s estimates of liabilities incurred do not anticipate significant changes in historical trends for these variables, such changes could have a material impact on future claim costs and currently recorded liabilities. The impact of many of these variables is difficult to estimate.

Pension

Accounting for defined benefit pension plans involves estimating the cost of benefits to be provided in the future, based on vested years of service, and attributing those costs over the time period each employee works. The significant factors affecting the Company’s pension costs are the fair values of plan assets and the selections of management’s key assumptions, including the expected return on plan assets and the discount rate used by the Company’s actuary to calculate its liability. The Company considers current market conditions, including changes in interest rates and investment returns, in selecting these assumptions. The discount rate is based on current investment yields on high quality fixed-income investments and projected cash flow obligations. Expected return on plan assets is based on projected returns by asset class on broad, publicly traded equity and fixed-income indices, as well as the Company’s target asset allocation, which is designed to meet the Company’s long-term pension requirements. While the Company believes the assumptions selected are reasonable, significant differences in its actual experience, plan amendments or significant changes in the fair value of its plan assets may materially affect its pension obligations and its future expense.

Sensitivities to changes in the major assumptions for the SpartanNash Company Pension Plan and the SpartanNash Company Retiree Medical Plan as of December 31, 2016, are as follows:

 

Percentage

 

 

 

 

 

Point

 

Projected Benefit Obligation

 

Expense

(In millions, except percentages)

Change

 

Decrease / (Increase)

 

Decrease / (Increase)

Expected return on plan assets - SpartanNash Company Pension Plan

+/- 0.75

 

N/A

 

$0.6 / $(0.6)

Discount rate - SpartanNash Company Pension Plan

+/- 0.75

 

$4.0 / $(4.4)

 

N/A

Discount rate - SpartanNash Company Retiree Medical Plan

+/- 0.75

 

$0.8 / $(0.9)

 

N/A

Refer to Part II, Item 8 of this report under the Associate Retirement Plans section in the notes to consolidated financial statements for additional information related to the assumptions used to estimate the cost of benefits and for details related to changes in the funded status of the defined benefit pension plans.

Income Taxes

SpartanNash is subject to periodic audits by the Internal Revenue Service and other state and local taxing authorities. These audits may challenge certain of the Company’s tax positions such as the timing and amount of income credits and deductions and the allocation of taxable income to various tax jurisdictions. The Company evaluates its tax positions and establishes liabilities in accordance with the applicable accounting guidance on uncertainty in income taxes. These tax uncertainties are reviewed as facts and circumstances change and are adjusted accordingly. This requires significant management judgment in estimating final outcomes. Actual results could materially differ from these estimates and could significantly affect the Company’s effective income tax rate and cash flows in future years. The Company recognizes deferred tax assets and liabilities for the expected tax consequences of temporary differences between the tax bases of assets and liabilities and their reported amounts using enacted tax rates in effect for the year in which it expects the differences to reverse. Refer to Part II, Item 8 of this report under the Taxes on Income section in the notes to consolidated financial statements for additional information on income taxes.

-35-


 

 

Liquidity and Capital Resources

Cash Flow Information

The following table summarizes the Company’s consolidated statements of cash flows for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015:

 

 

Year Ended

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Cash flow activities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net cash provided by operating activities

$

 

154,524

 

 

$

 

219,489

 

 

$

 

139,073

 

Net cash used in investing activities

 

 

(68,227

)

 

 

 

(95,300

)

 

 

 

(81,687

)

Net cash used in financing activities

 

 

(83,927

)

 

 

 

(107,696

)

 

 

 

(59,962

)

Net cash used in discontinued operations

 

 

(738

)

 

 

 

(217

)

 

 

 

(197

)

Net increase (decrease) in cash and cash equivalents

 

 

1,632

 

 

 

 

16,276

 

 

 

 

(2,773

)

Cash and cash equivalents at beginning of fiscal year

 

 

22,719

 

 

 

 

6,443

 

 

 

 

9,216

 

Cash and cash equivalents at end of fiscal year

$

 

24,351

 

 

$

 

22,719

 

 

$

 

6,443

 

Net cash provided by operating activities. Net cash provided by operating activities decreased during the fiscal year ended December 31, 2016 (“fiscal 2016” or “current year”) over the fiscal year ended January 2, 2016 (“fiscal 2015” or “prior year”) by approximately $65.0 million. The decrease was primarily due to customer advances and higher inventory levels to support sales growth and the timing of working capital requirements and income tax payments.

Net cash provided by operating activities increased during fiscal 2015 over the fiscal year ended January 3, 2015 (“fiscal 2014”) by approximately $80.4 million. The increase was primarily due to changes in working capital, which were largely the result of inventory management initiatives and the timing of payments in the prior year.

During the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, the Company paid $35.8 million, $23.5 million and $27.4 million, respectively, in income tax payments.

Net cash used in investing activities. Net cash used in investing activities decreased $27.1 million in fiscal 2016 compared to fiscal 2015 primarily due to $41.5 million of payments for acquisitions in the prior year, partially offset by $14.9 million of lower proceeds on the sales of assets of previously closed facilities compared to fiscal 2015.

Net cash used in investing activities increased $13.6 million in fiscal 2015 compared to fiscal 2014 primarily due to $41.5 million of payments for fiscal 2015 acquisitions, partially offset by $10.6 million of lower capital expenditure related payments and $9.9 million of higher proceeds on the sales of assets of previously closed facilities compared to fiscal 2014.

The Food Distribution, Military and Retail segments utilized 26.0%, 8.8% and 65.2% of capital expenditures, respectively, for the fiscal year ended December 31, 2016. Expenditures for fiscal 2016 primarily related to retail store remodels and upgrades, which include eight major store remodels, one store upgrade, and one new fuel center, as well as various IT system upgrades and implementations to better streamline processes and meet the operational needs of the Company. The Company expects capital expenditures to range from $70 million to $72 million for fiscal 2017.

Net cash used in financing activities. Net cash used in financing activities decreased $23.8 million during fiscal 2016 over fiscal 2015 primarily due to the $50.0 million prepayment of the Senior Notes in the prior year and an additional $23.4 million of payments on the senior secured credit facility in the current year.

Net cash used in financing activities increased $47.7 million during fiscal 2015 over fiscal 2014 primarily due to the $50.0 million prepayment of the Senior Notes.

Net cash used in discontinued operations. Net cash used in discontinued operations contains the net cash flows of the Company’s Food Distribution and Retail discontinued operations and is primarily composed of facility maintenance expenditures.

-36-


 

 

Debt Management

Total debt, including capital lease obligations and current maturities, decreased $55.7 million to $431.1 million as of December 31, 2016 from $486.8 million at January 2, 2016. The decrease in total debt was primarily driven by payments on the senior secured credit facility as a result of cash provided by operating activities exceeding working capital requirements and payments on capital lease obligations.

In December 2016, SpartanNash Company and certain of its subsidiaries amended its senior secured credit facility (the “Credit Agreement”). The principal changes of the amendment were to reduce the number of tiers in the pricing grid from three to two, reset the advance rate on real estate to 75%, provide the ability to increase the size of the term loan by $33 million, and extend the maturity date of the agreement, which was set to expire on January 8, 2020, to December 20, 2021. The Credit Agreement provides for borrowings of $1.0 billion, consisting of three tranches: a $900 million secured revolving credit facility (Tranche A), a $40 million secured revolving credit facility (Tranche A-1), and a $60 million term loan (Tranche A-2). The Company has the ability to increase the size of the Credit Agreement by an additional $400 million, subject to certain conditions in the Credit Agreement. The Company’s obligations under the related Credit Agreement are secured by substantially all of the Company’s personal and real property. The Company may repay all loans in whole or in part at any time without penalty.

Liquidity

The Company’s principal sources of liquidity are cash flows generated from operations and its senior secured credit facility, which has maximum available credit of $1.0 billion. As of December 31, 2016, the senior secured credit facility had outstanding borrowings of $386.1 million. Additional available borrowings under the Company’s $1.0 billion Credit Agreement are based on stipulated advance rates on eligible assets, as defined in the Credit Agreement. The Credit Agreement requires that the Company maintains Excess Availability of 10% of the borrowing base, as defined in the Credit Agreement. The Company had excess availability after the 10% requirement of $415.8 million at December 31, 2016. Payment of dividends and repurchases of outstanding shares are permitted, provided that certain levels of excess availability are maintained. The credit facility provides for the issuance of letters of credit, of which $9.6 million were outstanding as of December 31, 2016. The revolving credit facility matures December 2021, and is secured by substantially all of the Company’s assets. The Company believes that cash generated from operating activities and available borrowings under the Credit Agreement will be sufficient to meet anticipated requirements for working capital, capital expenditures, dividend payments, and debt service obligations for the foreseeable future. However, there can be no assurance that the business will continue to generate cash flow at or above current levels or that the Company will maintain its ability to borrow under the Credit Agreement.

The Company’s current ratio (current assets to current liabilities) was 1.77:1.00 at December 31, 2016 compared to 1.81:1.00 at January 2, 2016, and its investment in working capital was $387.5 million at December 31, 2016 compared to $396.3 million at January 2, 2016. Net debt to total capital ratio decreased to 0.33:1.00 at December 31, 2016 from 0.37:1.00 at January 2, 2016.

As discussed in the Recent Developments section, on January 6, 2017, the Company purchased Caito and BRT. The acquisition was funded with proceeds under the Credit Agreement.

Total net debt is a non-GAAP financial measure that is defined as long-term debt and capital lease obligations, plus current maturities of long-term debt and capital lease obligations, less cash and cash equivalents. The Company believes both management and its investors find the information useful because it reflects the amount of long-term debt obligations that are not covered by available cash and temporary investments. Total net debt is not a substitute for GAAP financial measures and may differ from similarly titled measures of other companies.

Following is a reconciliation of long-term debt and capital lease obligations to total net long-term debt and capital lease obligations as of December 31, 2016 and January 2, 2016.

 

 

December 31,

 

 

January 2,

 

(In thousands)

2016

 

 

2016

 

Current maturities of long-term debt and capital lease obligations

$

 

17,424

 

 

$

 

19,003

 

Long-term debt and capital lease obligations

 

 

413,675

 

 

 

 

467,793

 

Total debt

 

 

431,099

 

 

 

 

486,796

 

Cash and cash equivalents

 

 

(24,351

)

 

 

 

(22,719

)

Total net long-term debt

$

 

406,748

 

 

$

 

464,077

 

-37-


 

 

 

Contractual Obligations

The table below presents the Company’s significant contractual obligations as of December 31, 2016 (a) :

 

Amount Committed By Period

 

 

Total

 

 

Less

 

 

 

 

 

 

 

 

 

 

 

 

More

 

 

Amount

 

 

than 1

 

 

 

 

 

 

 

 

 

 

 

 

than 5

 

(In thousands)

Committed

 

 

year

 

 

1-3 years

 

 

3-5 years

 

 

years

 

Long-term debt (b)

$

 

391,109

 

 

$

 

11,557

 

 

$

 

20,000

 

 

$

 

359,552

 

 

$

 

 

Estimated interest on long-term debt

 

 

44,228

 

 

 

 

9,765

 

 

 

 

17,710

 

 

 

 

16,753

 

 

 

 

 

Capital leases (c)

 

 

48,255

 

 

 

 

5,867

 

 

 

 

12,077

 

 

 

 

6,742

 

 

 

 

23,569

 

Interest on capital lease

 

 

22,596

 

 

 

 

3,394

 

 

 

 

5,614

 

 

 

 

4,196

 

 

 

 

9,392

 

Operating leases (c)

 

 

253,647

 

 

 

 

51,072

 

 

 

 

79,096

 

 

 

 

45,762

 

 

 

 

77,717

 

Lease and ancillary costs of closed sites, including imputed interest

 

 

21,932

 

 

 

 

3,209

 

 

 

 

5,030

 

 

 

 

4,888

 

 

 

 

8,805

 

Purchase obligations (merchandise) (d)

 

 

53,418

 

 

 

 

25,919

 

 

 

 

19,451

 

 

 

 

4,066

 

 

 

 

3,982

 

Unrecognized tax liabilities, including interest

 

 

2,489

 

 

 

 

924

 

 

 

 

1,565

 

 

 

 

 

 

 

 

 

Self-insurance liability

 

 

14,730

 

 

 

 

8,292

 

 

 

 

4,178

 

 

 

 

1,513

 

 

 

 

747

 

Total

$

 

852,404

 

 

$

 

119,999

 

 

$

 

164,721

 

 

$

 

443,472

 

 

$

 

124,212

 

 

(a)

Excludes funding of pension and other postretirement benefit obligations. The Company does not expect to make payments to its defined benefit pension plans in fiscal 2017. Also excludes contributions under various multi-employer pension and health and welfare plans, which totals $13.4 million and $14.3 million, respectively, for the fiscal year ended December 31, 2016. For additional information, refer to Part II, Item 8 of this report under the Associate Retirement Plans section in the notes to consolidated financial statements.

 

(b)

Refer to Part II, Item 8 of this report under the Long-Term Debt section in the notes to consolidated financial statements for additional information regarding long-term debt.

 

(c)

Operating and capital lease obligations do not include common area maintenance, insurance or tax payments for which the Company is also obligated. For the fiscal year ended December 31, 2016, these charges totaled approximately $17.4 million.

 

(d)

The amount of purchase obligations shown in this table represents the amount of product the Company is contractually obligated to purchase in order to earn $10.9 million in advanced contract monies that are receivable under the contracts. At December 31, 2016, $1.9 million in advanced contract monies has been received under these contracts where recognition has been deferred on the consolidated balance sheet. If the Company does not fulfill these purchase obligations, it would only be obligated to repay the unearned upfront contract monies. The amount shown here does not include the following: a) purchase obligations made in the normal course of business as those obligations involve purchase orders based on current Company needs that are typically cancelable and/or fulfilled by vendors within a very short period of time; b) agreements that are cancelable by the Company without significant penalty, including contracts for routine outsourced services; and c) contracts that do not contain minimum annual purchase commitments but include other standard contractual considerations that must be fulfilled in order to earn advanced contract monies that have been received.

The Company has also made certain commercial commitments that extend beyond December 31, 2016. These commitments include standby letters of credit and guarantees of certain Food Distribution customer lease obligations. The following summarizes these commitments as of December 31, 2016:

 

 

Amount Committed By Period

 

 

Total

 

 

Less

 

 

 

 

 

 

 

 

 

 

 

 

More

 

 

Amount

 

 

than 1

 

 

 

 

 

 

 

 

 

 

 

 

than 5

 

(In thousands)

Committed

 

 

year

 

 

1-3 years

 

 

3-5 years

 

 

years

 

Standby Letters of Credit (a)

$

 

9,605

 

 

$

 

9,605

 

 

$

 

 

 

$

 

 

 

$

 

 

Guarantees (b)

 

 

1,945

 

 

 

 

329

 

 

 

 

657

 

 

 

 

657

 

 

 

 

302

 

Total Other Commercial Commitments

$

 

11,550

 

 

$

 

9,934

 

 

$

 

657

 

 

$

 

657

 

 

$

 

302

 

 

 

(a)

Letters of credit supports the Company’s self-insurance obligations.

 

(b)

Refer to Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section and the Concentration of Credit Risk section in the notes to consolidated financial statements for additional information regarding debt guarantees, lease guarantees and assigned leases. The amount shown here includes interest.

-38-


 

 

Cash Dividends

The Company paid a quarterly cash dividend of $0.15, $0.135 and $0.12 per common share in each quarter of the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively. Under the Credit Agreement, the Company is generally permitted to pay dividends in any fiscal year up to an amount such that all cash dividends, together with any cash distributions and share repurchases, do not exceed $35.0 million. Additionally, the Company is generally permitted to pay cash dividends in excess of $35.0 million in any fiscal year so long as its Excess Availability, as defined in the Credit Agreement, is in excess of 10% of the Total Borrowing Base, as defined in the Credit Agreement, before and after giving effect to the repurchases and dividends. Although the Company currently expects to continue to pay a quarterly cash dividend, adoption of a dividend policy does not commit the Board of Directors to declare future dividends. Each future dividend will be considered and declared by the Board of Directors at its discretion. Whether the Board of Directors continues to declare dividends depends on a number of factors, including the Company’s future financial condition, anticipated profitability and cash flows and compliance with the terms of its credit facilities.

Recently Adopted Accounting Standards

Refer to Part II, Item 8 of this report under the Summary of Significant Accounting Policies and Basis of Presentation section in the notes to consolidated financial statements for additional information.

 

Item 7A. Quantitative and Qualitative Disclosure About Market Risk

The Company is exposed to industry related price changes on several commodities, such as dairy, meat and produce that it buys and sells in all of its segments. These products are purchased for and sold from inventory in the ordinary course of business. The Company is also exposed to other general commodity price changes such as utilities, insurance and fuel costs.

The Company had $386.1 million of variable rate debt as of December 31, 2016. The weighted average interest rate on debt outstanding for the fiscal year ended December 31, 2016 was 3.70%.

At December 31, 2016 and January 2, 2016, the estimated fair value of the Company’s long-term debt, including current maturities, was higher than book value by approximately $1.4 million and $2.1 million, respectively. The estimated fair values were based on market quotes for instruments with similar terms and remaining maturities.

The following table sets forth the future principal payments of the Company’s outstanding debt and related weighted average interest rates for the outstanding instruments as of December 31, 2016:

 

December 31, 2016

 

 

Aggregate Payments by Fiscal Year

 

(In thousands, except rates)

Fair Value

 

 

Total

 

 

2017

 

 

2018

 

 

2019

 

 

2020

 

 

2021

 

 

Thereafter

 

Fixed rate debt

 

Principal payable

$

 

54,678

 

 

$

 

53,283

 

 

$

 

7,424

 

 

$

 

8,655

 

 

$

 

6,468

 

 

$

 

4,654

 

 

$

 

2,513

 

 

$

 

23,569

 

Average interest rate

 

 

 

 

 

 

 

6.66

%

 

 

 

6.76

%

 

 

 

7.06

%

 

 

 

7.57

%

 

 

 

7.81

%

 

 

 

7.92

%

 

 

 

8.13

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Variable rate debt

 

Principal payable

$

 

386,081

 

 

$

 

386,081

 

 

$

 

10,000

 

 

$

 

10,000

 

 

$

 

6,954

 

 

$

 

 

 

$

 

359,127

 

 

$

 

 

Average interest rate

 

 

 

 

 

 

 

2.59

%

 

 

 

2.54

%

 

 

 

2.45

%

 

 

 

2.37

%

 

 

 

2.33

%

 

 

 

2.33

%

 

 

 

 

 

 

 

 

-39-


 

 

Item 8. Financial Statements and Supplementary Data

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Shareholders of

SpartanNash Company and Subsidiaries

Grand Rapids, Michigan

We have audited the accompanying consolidated balance sheets of SpartanNash Company and subsidiaries (the "Company") as of December 31, 2016 and January 2, 2016, and the related consolidated statements of earnings, comprehensive income, shareholders' equity, and cash flows for each of the fiscal years ended January 3, 2015, January 2, 2016 and December 31, 2016. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2016 and January 2, 2016, and the results of their operations and their cash flows for each of the fiscal years ended January 3, 2015, January 2, 2016 and December 31, 2016, in conformity with accounting principles generally accepted in the United States of America.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company's internal control over financial reporting as of December 31, 2016, based on the criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 1, 2017 expressed an unqualified opinion on the Company's internal control over financial reporting.

/s/ DELOITTE & TOUCHE LLP

Grand Rapids, Michigan

March 1, 2017

 

 

 

 

-40-


 

 

CONSOLIDATED BALANCE SHEETS

SpartanNash Company and Subsidiaries

(In thousands)  

 

December 31,

 

 

January 2,

 

 

2016

 

 

2016

 

Assets

 

 

 

 

 

 

 

 

 

Current assets

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

$

 

24,351

 

 

$

 

22,719

 

Accounts and notes receivable, net

 

 

291,568

 

 

 

 

317,183

 

Inventories, net

 

 

539,857

 

 

 

 

521,164

 

Prepaid expenses and other current assets

 

 

37,187

 

 

 

 

22,521

 

Property and equipment held for sale

 

 

521

 

 

 

 

 

Total current assets

 

 

893,484

 

 

 

 

883,587

 

 

 

 

 

 

 

 

 

 

 

Property and equipment, net

 

 

559,722

 

 

 

 

583,698

 

Goodwill

 

 

322,686

 

 

 

 

322,902

 

Other assets, net

 

 

154,444

 

 

 

 

127,076

 

 

 

 

 

 

 

 

 

 

 

Total assets

$

 

1,930,336

 

 

$

 

1,917,263

 

 

 

 

 

 

 

 

 

 

 

Liabilities and Shareholders’ Equity

 

 

 

 

 

 

 

 

 

Current liabilities

 

 

 

 

 

 

 

 

 

Accounts payable

$

 

372,432

 

 

$

 

353,688

 

Accrued payroll and benefits

 

 

75,333

 

 

 

 

71,973

 

Other accrued expenses

 

 

40,788

 

 

 

 

42,660

 

Current maturities of long-term debt and capital lease obligations

 

 

17,424

 

 

 

 

19,003

 

Total current liabilities

 

 

505,977

 

 

 

 

487,324

 

 

 

 

 

 

 

 

 

 

 

Long-term liabilities

 

 

 

 

 

 

 

 

 

Deferred income taxes

 

 

123,243

 

 

 

 

116,600

 

Postretirement benefits

 

 

16,266

 

 

 

 

16,008

 

Other long-term liabilities

 

 

45,768

 

 

 

 

38,759

 

Long-term debt and capital lease obligations

 

 

413,675

 

 

 

 

467,793

 

Total long-term liabilities

 

 

598,952

 

 

 

 

639,160

 

 

 

 

 

 

 

 

 

 

 

Commitments and contingencies (Note 9)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shareholders’ equity

 

 

 

 

 

 

 

 

 

Common stock, voting, no par value; 100,000 shares

     authorized; 37,539 and 37,600 shares outstanding

 

 

521,984

 

 

 

 

521,698

 

Preferred stock, no par value, 10,000 shares authorized; no shares outstanding

 

 

 

 

 

 

 

Accumulated other comprehensive loss

 

 

(11,437

)

 

 

 

(11,447

)

Retained earnings

 

 

314,860

 

 

 

 

280,528

 

Total shareholders’ equity

 

 

825,407

 

 

 

 

790,779

 

 

 

 

 

 

 

 

 

 

 

Total liabilities and shareholders’ equity

$

 

1,930,336

 

 

$

 

1,917,263

 

See notes to consolidated financial statements.

 

 

-41-


 

 

CONSOLIDATED STATEMENTS OF EARNINGS

SpartanNash Company and Subsidiaries

(In thousands, except per share data)

 

 

Year Ended

 

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

 

2016

 

 

2016

 

 

2015

 

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

 

Net sales

$

 

7,734,600

 

 

$

 

7,651,973

 

 

$

 

7,916,062

 

 

Cost of sales

 

 

6,623,106

 

 

 

 

6,536,291

 

 

 

 

6,759,988

 

 

Gross profit

 

 

1,111,494

 

 

 

 

1,115,682

 

 

 

 

1,156,074

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   Selling, general and administrative

 

 

963,652

 

 

 

 

975,572

 

 

 

 

1,022,387

 

 

   Merger integration and acquisition

 

 

6,959

 

 

 

 

8,433

 

 

 

 

12,675

 

 

   Restructuring charges and asset impairment

 

 

32,116

 

 

 

 

8,802

 

 

 

 

6,166

 

 

Total operating expenses

 

 

1,002,727

 

 

 

 

992,807

 

 

 

 

1,041,228

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating earnings

 

 

108,767

 

 

 

 

122,875

 

 

 

 

114,846

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other (income) and expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   Interest expense

 

 

19,082

 

 

 

 

21,820

 

 

 

 

24,414

 

 

   Loss on debt extinguishment

 

 

247

 

 

 

 

1,171

 

 

 

 

 

 

   Other, net

 

 

(525

)

 

 

 

(375

)

 

 

 

(17

)

 

Total other expenses, net

 

 

18,804

 

 

 

 

22,616

 

 

 

 

24,397

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings before income taxes and discontinued operations

 

 

89,963

 

 

 

 

100,259

 

 

 

 

90,449

 

 

   Income taxes

 

 

32,907

 

 

 

 

37,093

 

 

 

 

31,329

 

 

Earnings from continuing operations

 

 

57,056

 

 

 

 

63,166

 

 

 

 

59,120

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Loss from discontinued operations, net of taxes

 

 

(228

)

 

 

 

(456

)

 

 

 

(524

)

 

Net earnings

$

 

56,828

 

 

$

 

62,710

 

 

$

 

58,596

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   Earnings from continuing operations

$

 

1.52

 

 

$

 

1.68

 

 

$

 

1.57

 

 

   Loss from discontinued operations

 

 

 

*

 

 

(0.01

)

 

 

 

(0.01

)

 

   Net earnings

$

 

1.52

 

 

$

 

1.67

 

 

$

 

1.56

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   Earnings from continuing operations

$

 

1.52

 

 

$

 

1.67

 

 

$

 

1.57

 

 

   Loss from discontinued operations

 

 

(0.01

)

 

 

 

(0.01

)

 

 

 

(0.02

)

*

   Net earnings

$

 

1.51

 

 

$

 

1.66

 

 

$

 

1.55

 

 

* Includes rounding.

 

See notes to consolidated financial statements.

 

 

 

-42-


 

 

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

SpartanNash Company and Subsidiaries

(In thousands)

 

 

Year Ended

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Net earnings

$

 

56,828

 

 

$

 

62,710

 

 

$

 

58,596

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other comprehensive income (loss), before tax

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension and postretirement liability adjustment

 

 

14

 

 

 

 

429

 

 

 

 

(4,785

)

Total other comprehensive income (loss), before tax

 

 

14

 

 

 

 

429

 

 

 

 

(4,785

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Income tax (expense) benefit related to items of other comprehensive income

 

 

(4

)

 

 

 

(221

)

 

 

 

1,924

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total other comprehensive income (loss), after tax

 

 

10

 

 

 

 

208

 

 

 

 

(2,861

)

Comprehensive income

$

 

56,838

 

 

$

 

62,918

 

 

$

 

55,735

 

See notes to consolidated financial statements.

 

 

 

-43-


 

 

CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY

SpartanNash Company and Subsidiaries

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other

 

 

 

 

 

 

 

 

 

 

 

 

Shares

 

 

Common

 

 

Comprehensive

 

 

Retained

 

 

 

 

 

 

 

Outstanding

 

 

Stock

 

 

Income (Loss)

 

 

Earnings

 

 

Total

 

Balance at December 28, 2013

 

37,371

 

 

$

 

518,056

 

 

$

 

(8,794

)

 

$

 

197,611

 

 

$

 

706,873

 

Net earnings

 

 

 

 

 

 

 

 

 

 

 

 

 

58,596

 

 

 

 

58,596

 

Other comprehensive loss

 

 

 

 

 

 

 

 

 

(2,861

)

 

 

 

 

 

 

 

(2,861

)

Dividends - $0.48 per share

 

 

 

 

 

 

 

 

 

 

 

 

 

(18,090

)

 

 

 

(18,090

)

Share repurchase

 

(246

)

 

 

 

(4,987

)

 

 

 

 

 

 

 

 

 

 

 

 

 

(4,987

)

Stock-based employee compensation

 

 

 

 

 

6,939

 

 

 

 

 

 

 

 

 

 

 

 

6,939

 

Issuance of common stock and related tax benefit

     on stock option exercises and stock bonus plan

 

173

 

 

 

 

1,824

 

 

 

 

 

 

 

 

 

 

 

 

1,824

 

Issuance of restricted stock and related income

     tax benefits

 

317

 

 

 

 

588

 

 

 

 

 

 

 

 

 

 

 

 

 

 

588

 

Cancellations of stock-based awards

 

(91

)

 

 

 

(1,629

)

 

 

 

 

 

 

 

 

 

 

 

(1,629

)

Balance at January 3, 2015

 

37,524

 

 

 

 

520,791

 

 

 

 

(11,655

)

 

 

 

238,117

 

 

 

 

747,253

 

Net earnings

 

 

 

 

 

 

 

 

 

 

 

 

 

62,710

 

 

 

 

62,710

 

Other comprehensive income

 

 

 

 

 

 

 

 

 

208

 

 

 

 

 

 

 

 

208

 

Dividends - $0.54 per share

 

 

 

 

 

 

 

 

 

 

 

 

 

(20,299

)

 

 

 

(20,299

)

Share repurchase

 

(282

)

 

 

 

(9,000

)

 

 

 

 

 

 

 

 

 

 

 

 

 

(9,000

)

Stock-based employee compensation

 

 

 

 

 

7,240

 

 

 

 

 

 

 

 

 

 

 

 

7,240

 

Issuance of common stock and related tax benefit

     on stock option exercises and stock bonus plan

     and from deferred compensation plan

 

223

 

 

 

 

4,279

 

 

 

 

 

 

 

 

 

 

 

 

4,279

 

Issuance of restricted stock and related income

     tax benefits

 

315

 

 

 

 

1,114

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,114

 

Cancellations of stock-based awards

 

(180

)

 

 

 

(2,726

)

 

 

 

 

 

 

 

 

 

 

 

(2,726

)

Balance at January 2, 2016

 

37,600

 

 

 

 

521,698

 

 

 

 

(11,447

)

 

 

 

280,528

 

 

 

 

790,779

 

Net earnings

 

 

 

 

 

 

 

 

 

 

 

 

 

56,828

 

 

 

 

56,828

 

Other comprehensive income

 

 

 

 

 

 

 

 

 

10

 

 

 

 

 

 

 

 

10

 

Dividends - $0.60 per share

 

 

 

 

 

 

 

 

 

 

 

 

 

(22,496

)

 

 

 

(22,496

)

Share repurchase

 

(396

)

 

 

 

(9,000

)

 

 

 

 

 

 

 

 

 

 

 

(9,000

)

Stock-based employee compensation

 

 

 

 

 

7,936

 

 

 

 

 

 

 

 

 

 

 

 

7,936

 

Issuance of common stock and related tax benefit

     on stock option exercises and stock bonus plan

 

144

 

 

 

 

3,697

 

 

 

 

 

 

 

 

 

 

 

 

3,697

 

Issuance of restricted stock and related income

     tax benefits

 

315

 

 

 

 

(118

)

 

 

 

 

 

 

 

 

 

 

 

(118

)

Cancellations of stock-based awards

 

(124

)

 

 

 

(2,229

)

 

 

 

 

 

 

 

 

 

 

 

(2,229

)

Balance at December 31, 2016

 

37,539

 

 

$

 

521,984

 

 

$

 

(11,437

)

 

$

 

314,860

 

 

$

 

825,407

 

See notes to consolidated financial statements.

 

 

 

-44-


 

 

CONSOLIDATED STATEMENTS OF CASH FLOWS

SpartanNash Company and Subsidiaries

(In thousands)

 

 

 

Year Ended

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Cash flows from operating activities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings

$

 

56,828

 

 

$

 

62,710

 

 

$

 

58,596

 

Loss from discontinued operations, net of tax

 

 

228

 

 

 

 

456

 

 

 

 

524

 

Earnings from continuing operations

 

 

57,056

 

 

 

 

63,166

 

 

 

 

59,120

 

Adjustments to reconcile net earnings to net cash provided by operating activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Non-cash restructuring, asset impairment and other charges

 

 

32,191

 

 

 

 

9,755

 

 

 

 

6,166

 

Loss on debt extinguishment

 

 

247

 

 

 

 

1,171

 

 

 

 

 

Depreciation and amortization

 

 

79,183

 

 

 

 

84,905

 

 

 

 

88,475

 

LIFO (income) expense

 

 

(1,919

)

 

 

 

(1,201

)

 

 

 

5,603

 

Postretirement benefits expense (income)

 

 

1,780

 

 

 

 

(41

)

 

 

 

2,686

 

Deferred taxes on income

 

 

6,761

 

 

 

 

2,512

 

 

 

 

3,537

 

Stock-based compensation expense

 

 

7,936

 

 

 

 

7,240

 

 

 

 

6,939

 

Excess tax benefit on stock compensation

 

 

(438

)

 

 

 

(1,308

)

 

 

 

(699

)

Other, net

 

 

(254

)

 

 

 

(22

)

 

 

 

(213

)

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accounts receivable

 

 

30,537

 

 

 

 

(33,063

)

 

 

 

(517

)

Inventories

 

 

(18,456

)

 

 

 

59,473

 

 

 

 

6,004

 

Prepaid expenses and other assets

 

 

(45,506

)

 

 

 

(545

)

 

 

 

13,292

 

Accounts payable

 

 

21,946

 

 

 

 

30,250

 

 

 

 

(29,231

)

Accrued payroll and benefits

 

 

(1,036

)

 

 

 

(1,903

)

 

 

 

(8,401

)

Postretirement benefit payments

 

 

(413

)

 

 

 

(1,013

)

 

 

 

(4,155

)

Other accrued expenses and other liabilities

 

 

(15,091

)

 

 

 

113

 

 

 

 

(9,533

)

   Net cash provided by operating activities

 

 

154,524

 

 

 

 

219,489

 

 

 

 

139,073

 

Cash flows from investing activities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchases of property and equipment

 

 

(73,429

)

 

 

 

(79,394

)

 

 

 

(90,012

)

Net proceeds from the sale of assets

 

 

5,989

 

 

 

 

20,928

 

 

 

 

11,008

 

Acquisitions, net of cash acquired

 

 

 

 

 

 

(41,517

)

 

 

 

 

Loans to customers

 

 

(1,962

)

 

 

 

(1,450

)

 

 

 

(6,429

)

Payments from customers on loans

 

 

2,183

 

 

 

 

1,733

 

 

 

 

3,653

 

Proceeds from company owned life insurance

 

 

 

 

 

 

5,004

 

 

 

 

 

Other

 

 

(1,008

)

 

 

 

(604

)

 

 

 

93

 

   Net cash used in investing activities

 

 

(68,227

)

 

 

 

(95,300

)

 

 

 

(81,687

)

Cash flows from financing activities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   Proceeds from senior secured credit facility

 

 

1,341,215

 

 

 

 

1,089,979

 

 

 

 

1,062,173

 

   Payments on senior secured credit facility

 

 

(1,384,958

)

 

 

 

(1,110,344

)

 

 

 

(1,079,654

)

   Share repurchase

 

 

(9,000

)

 

 

 

(9,000

)

 

 

 

(4,987

)

   Prepayment of senior notes

 

 

 

 

 

 

(50,000

)

 

 

 

 

   Debt extinguishment costs

 

 

 

 

 

 

(831

)

 

 

 

 

   Repayment of other long-term debt

 

 

(9,146

)

 

 

 

(10,157

)

 

 

 

(20,353

)

   Financing fees paid

 

 

(2,498

)

 

 

 

(2,013

)

 

 

 

(870

)

   Excess tax benefit on stock compensation

 

 

438

 

 

 

 

1,308

 

 

 

 

699

 

   Proceeds from exercise of stock options

 

 

2,518

 

 

 

 

3,661

 

 

 

 

1,120

 

   Dividends paid

 

 

(22,496

)

 

 

 

(20,299

)

 

 

 

(18,090

)

   Net cash used in financing activities

 

 

(83,927

)

 

 

 

(107,696

)

 

 

 

(59,962

)

Cash flows from discontinued operations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   Net cash used in operating activities

 

 

(738

)

 

 

 

(740

)

 

 

 

(197

)

   Net cash provided by investing activities

 

 

 

 

 

 

523

 

 

 

 

 

   Net cash used in discontinued operations

 

 

(738

)

 

 

 

(217

)

 

 

 

(197

)

Net increase (decrease) in cash and cash equivalents

 

 

1,632

 

 

 

 

16,276

 

 

 

 

(2,773

)

Cash and cash equivalents at beginning of fiscal year

 

 

22,719

 

 

 

 

6,443

 

 

 

 

9,216

 

Cash and cash equivalents at end of fiscal year

$

 

24,351

 

 

$

 

22,719

 

 

$

 

6,443

 

See notes to consolidated financial statements.

 

-45-


 

 

SPARTANNASH COMPANY AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

 

Note 1 – Summary of Significant Accounting Policies and Basis of Presentation

 

Principles of Consolidation: The consolidated financial statements are prepared in conformity with accounting principles generally accepted in the United State of America (“GAAP”) and include the accounts of SpartanNash Company and its subsidiaries (“SpartanNash” or “the Company”). Intercompany accounts and transactions have been eliminated.

Fiscal Year: The Company’s fiscal year end is the Saturday nearest to December 31. All fiscal quarters are 12 weeks, except for the Company’s first quarter, which is 16 weeks. The fiscal year ended January 3, 2015 contained 53 weeks; therefore, the fourth quarter of fiscal 2014 contained 13 weeks rather than 12 weeks.

Use of Estimates: The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect amounts reported therein. Due to the inherent uncertainty involved in making estimates, actual results reported in future periods might differ from those estimates.

Revenue Recognition: The Company recognizes revenue when the sales price is fixed or determinable, collectability is reasonably assured, and the customer takes possession of the merchandise. The Military segment recognizes revenues upon the delivery of the product to the commissary or commissaries designated by the Defense Commissary Agency (DeCA), or in the case of overseas commissaries, when the product is delivered to the port designated by DeCA, which is when DeCA takes possession of the merchandise and bears the responsibility for shipping the product to the commissary or overseas warehouse. Revenues from consignment sales are included in the Company’s reported sales on a net basis. The Food Distribution segment recognizes revenues when products are delivered or ancillary services are provided. Sales and excise taxes are excluded from revenue. The Retail segment recognizes revenues from the sale of products at the point of sale. Based upon the nature of the products the Company sells, its customers have limited rights of return which are immaterial. Discounts provided by the Company to customers at the time of sale are recognized as a reduction in sales as the products are sold. The Company does not recognize a sale when it awards customer loyalty points or sells gift cards and gift certificates; rather, a sale is recognized when the customer loyalty points, gift card or gift certificate are redeemed to purchase product. Sales taxes collected from customers are remitted to the appropriate taxing jurisdictions and are excluded from sales revenue as the Company considers itself a pass-through conduit for collecting and remitting sales taxes.

Cost of Sales: Cost of sales is the cost of inventory sold during the period, including purchase costs, in-bound freight, physical inventory adjustments, markdowns and promotional allowances. Vendor allowances and credits that relate to the Company’s buying and merchandising activities consist primarily of promotional allowances, which are generally allowances on purchased quantities and, to a lesser extent, slotting allowances, which are billed to vendors for the Company’s merchandising costs such as setting up warehouse infrastructure. Vendor allowances are recognized as a reduction in cost of sales when the related product is sold. Lump sum payments received for multi-year contracts are amortized over the life of the contracts based on contractual terms. The distribution segments include shipping and handling costs in the selling, general and administrative section of operating expenses on the consolidated statement of earnings.

Cash and Cash Equivalents: Cash and cash equivalents consist of cash and highly liquid investments with an original maturity of three months or less at the date of purchase.

Accounts and Notes Receivable: Accounts and notes receivable are shown net of allowances for credit losses of $6.7 million and $6.8 million as of December 31, 2016 and January 2, 2016, respectively. The Company evaluates the adequacy of its allowances by analyzing the aging of receivables, customer financial condition, historical collection experience, the value of collateral and other economic and industry factors. Actual collections may differ from historical experience, and if economic, business or customer conditions deteriorate significantly, adjustments to these reserves may be required. When the Company becomes aware of factors that indicate a change in a specific customer’s ability to meet its financial obligations, the Company records a specific reserve for credit losses. Operating results include bad debt expense of $1.4 million, $2.1 million and $3.0 million for fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

-46-


 

 

Inventory Valuation: Inventories are valued at the lower of cost or market. Approximately 86.7% and 88.2% of the Company’s inventories were valued on the last-in, first-out (LIFO) method at December 31, 2016 and January 2 , 2016, respectively. If replacement cost had been used, inventories would have been $47.6 million and $49.5 million higher at December 31, 2016 and January 2, 2016, respectively. The replacement cost method utilizes the most current unit purchase cost to calculate the value of inventories. During fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, certain inventory quantities were reduced. The reductions resulted in liquidation of LIFO inventory carried at lower costs prevailing in p rior years, the effect of which decreased the LIFO provision in fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015 by $0.2 million, $0.6 million and $0.8 million, respectively. The Company accounts for its Food Distribution and Milit ary inventory using a perpetual system and utilizes the retail inventory method (“RIM”) to value inventory for center store products in the Retail segment. Under RIM, inventory is stated at cost with cost of sales and gross margin calculated by applying a cost ratio to the retail value of inventories. Fresh, pharmacy and fuel products are accounted for at cost in the Retail segment. The Company evaluates inventory shortages throughout the year based on actual physical counts in its facilities. The Company r ecords allowances for inventory shortages based on the results of recent physical counts to provide for estimated shortages from the last physical count to the financial statement date.

Goodwill and Intangible Assets: Goodwill represents the excess purchase price over the fair value of tangible net assets acquired in business combinations after amounts have been allocated to intangible assets. Goodwill is not amortized, but is reviewed for impairment during the last quarter of each year, or whenever events occur or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount, using a discounted cash flow model and comparable market values of each reporting segment. Measuring the fair value of reporting units is a Level 3 measurement under the fair value hierarchy. See Note 8 for a discussion of levels.

Intangible assets primarily consist of trade names, customer relationships, favorable lease agreements, pharmacy prescription lists, franchise agreements and fees, non-compete agreements and liquor licenses. The following assets are amortized on a straight-line basis over the period of time in which their expected benefits will be realized: favorable leases (related lease terms), prescription lists and customer relationships (period of expected benefit), non-compete agreements and franchise fees (length of agreements), and trade names with definite lives (expected life of the assets). Indefinite-lived trade names are not amortized but are tested at least annually for impairment, and liquor licenses are also not amortized as they have indefinite lives. Intangible assets are included in “Other Assets, net” in the consolidated balance sheets.

Property and Equipment: Property and equipment are recorded at cost. Expenditures which improve or extend the life of the respective assets are capitalized, whereas expenditures for normal repairs and maintenance are charged to operations as incurred. Depreciation expense on land improvements, buildings and improvements, and equipment is computed using the straight-line method as follows:

 

Land improvements

 

 

15 years

 

Buildings and improvements

 

 

15 to 40 years

 

Equipment

 

 

3 to 15 years

 

Property under capital leases and leasehold improvements are amortized on a straight-line basis over the shorter of the remaining terms of the leases or the estimated useful lives of the assets. Internal use software is included in property and equipment and amounted to $32.9 million and $20.3 million as of December 31, 2016 and January 2, 2016, respectively.

Impairment of Long-Lived Assets: The Company reviews and evaluates long-lived assets for impairment when events or circumstances indicate that the carrying amount of an asset may not be recoverable. When the undiscounted expected future cash flows are not sufficient to recover an asset’s carrying amount, the fair value is compared to the carrying value to determine the impairment loss to be recorded. Long-lived assets to be disposed of are reported at the lower of carrying amount or fair value, less the cost to sell. Fair values are determined by independent appraisals or expected sales prices based upon market participant data developed by third party professionals or by internal licensed real estate professionals. Estimates of future cash flows and expected sales prices are judgments based upon the Company’s experience and knowledge of operations. These estimates project cash flows several years into the future and are affected by changes in the economy, real estate market conditions and inflation.

-47-


 

 

Reserves for Closed Properties: The Company records reserves for closed properties that are subject to long-term lease commitments based upon the future minimum lease payments and related ancillary costs from the date of closure to the end of the remaining lease term, net of estimated sublease rentals that could be reasonably expected to be obtained for the property. Future cash flows are based on contractual lease terms and knowledge of the geographic area in which the closed site i s located. These estimates are subject to multiple factors, including inflation, ability to sublease the property and other economic conditions. Internally developed estimates of sublease rentals are based upon the geographic areas in which the properties are located, the results of previous efforts to sublease similar properties, and the current economic environment. The reserved expenses are paid over the remaining lease terms, which range from one to 12 years. Adjustments to closed property reserves prim arily relate to changes in subtenant income or actual exit costs differing from original estimates. Adjustments are made for changes in estimates in the period in which the changes become known. The current portion of the future lease obligations of stores is included in “Other accrued expenses,” and the long-term portion is included in “Other long-term liabilities” in the consolidated balance sheets.

Debt Issuance Costs : Debt issuance costs are amortized over the term of the related financing agreement and are included as a direct deduction from the carrying amount of the related debt liability in “Long-term debt and capital lease obligations” in the consolidated balance sheets.

Insurance Reserves: SpartanNash is self-insured through self-insurance retentions or high deductible programs for workers’ compensation, general liability, and automobile liability, and is also self-insured for healthcare costs. Self-insurance liabilities are recorded based on claims filed and an estimate of claims incurred but not yet reported. Workers’ compensation, general liability and automobile liabilities are actuarially estimated based on available historical information on an undiscounted basis. The Company has purchased stop-loss coverage to limit its exposure to any significant exposure on a per claim basis for its self-insurance retentions and high deductible programs. On a per claim basis, the Company’s exposure is up to $0.5 million for workers’ compensation, general liability and automobile liability and $0.5 million for healthcare per covered life per year. Any projection of losses concerning workers’ compensation, general liability, automobile liability and healthcare costs is subject to a considerable degree of variability. Among the causes of this variability are unpredictable external factors affecting future inflation rates, discount rates, litigation trends, changing regulations, legal interpretations, benefit level changes and claim settlement patterns. Although the Company’s estimates of liabilities incurred do not anticipate significant changes in historical trends for these variables, such changes could have a material impact on future claim costs and currently recorded liabilities.

A summary of changes in the Company’s self-insurance liability is as follows:

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

(In thousands)

2016

 

 

2016

 

 

2015

 

Balance at beginning of period

$

 

14,466

 

 

$

 

19,413

 

 

$

 

22,454

 

Expenses

 

 

49,560

 

 

 

 

43,851

 

 

 

 

53,297

 

Claim payments, net of employee contributions

 

 

(49,296

)

 

 

 

(48,798

)

 

 

 

(56,338

)

Balance at end of period

$

 

14,730

 

 

$

 

14,466

 

 

$

 

19,413

 

The current portion of the self-insurance liability was $8.3 million and $8.2 million as of December 31, 2016 and January 2, 2016, respectively, and is included in “Other accrued expenses” in the consolidated balance sheets. The long-term portion was $6.4 million and $6.2 million as of December 31, 2016 and January 2, 2016, respectively, and is included in “Other long-term liabilities” in the consolidated balance sheets.

Income Taxes: Deferred income tax assets and liabilities are computed for differences between the financial statement and tax bases of assets and liabilities that will result in taxable or deductible amounts in the future. Such deferred income tax asset and liability computations are based on enacted tax laws and rates applicable to periods in which the differences are expected to affect taxable income. Valuation allowances are established when necessary to reduce deferred tax assets to the amounts expected to be realized. Income tax expense is the tax payable or refundable for the period plus or minus the change during the period in deferred and other tax assets and liabilities.

Earnings per share: Earnings per share (“EPS”) is computed using the two-class method. The two-class method determines EPS for each class of common stock and participating securities according to dividends and their respective participation rights in undistributed earnings. Participating securities include non-vested shares of restricted stock in which the participants have non-forfeitable rights to dividends during the performance period. Diluted EPS includes the effects of stock options.

-48-


 

 

The following table sets forth the computation of basic and diluted EPS for continuing operations:

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands, except per share amounts)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Numerator:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings from continuing operations

$

 

57,056

 

 

$

 

63,166

 

 

$

 

59,120

 

Adjustment for earnings attributable to participating securities

 

 

(1,011

)

 

 

 

(1,098

)

 

 

 

(1,015

)

Earnings from continuing operations used in calculating earnings per share

$

 

56,045

 

 

$

 

62,068

 

 

$

 

58,105

 

Denominator:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding, including participating securities

 

 

37,483

 

 

 

 

37,612

 

 

 

 

37,641

 

Adjustment for participating securities

 

 

(664

)

 

 

 

(654

)

 

 

 

(646

)

Shares used in calculating basic earnings per share

 

 

36,819

 

 

 

 

36,958

 

 

 

 

36,995

 

Effect of dilutive stock options

 

 

73

 

 

 

 

106

 

 

 

 

69

 

Shares used in calculating diluted earnings per share

 

 

36,892

 

 

 

 

37,064

 

 

 

 

37,064

 

Basic earnings per share from continuing operations

$

 

1.52

 

 

$

 

1.68

 

 

$

 

1.57

 

Diluted earnings per share from continuing operations

$

 

1.52

 

 

$

 

1.67

 

 

$

 

1.57

 

 

Weighted average shares issuable upon the exercise of stock options that were not included in the EPS calculations because they were anti-dilutive were 322,914 for the fiscal year ended January 3, 2015. There were no anti-dilutive stock options in fiscal years ended December 31, 2016 and January 2, 2016.

Stock-Based Compensation: All share-based payments to associates are recognized in the consolidated financial statements as compensation cost based on the fair value on the date of grant. The grant date closing price per share of SpartanNash stock is used to estimate the fair value of restricted stock awards and restricted stock units. The value of the portion of awards expected to vest is recognized as expense over the requisite service period.

Shareholders’ Equity: The Company’s restated articles of incorporation provide that the Board of Directors may at any time, and from time to time, provide for the issuance of up to 10 million shares of preferred stock in one or more series, each with such designations as determined by the Board of Directors. At December 31, 2016 and January 2, 2016, there were no shares of preferred stock outstanding.

Advertising Costs: The Company’s advertising costs are expensed as incurred and are included in Selling, general and administrative expenses. Advertising expenses were $46.6 million, $47.7 million and $41.1 million for fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Accumulated Other Comprehensive Income (Loss): The Company reports comprehensive income (loss) that includes net income (loss) and other comprehensive income (loss). Other comprehensive income (loss) refers to revenues, expenses, gains and losses that are not included in net earnings, such as pension and other postretirement liability adjustments, but rather are recorded directly to shareholders’ equity. These amounts are also presented in the consolidated statements of comprehensive income. As of December 31, 2016 and January 2, 2016, the accumulated other comprehensive loss relates to the pension and postretirement liability.

Discontinued operations: Certain of the Company’s Food Distribution and Retail operations have been recorded as discontinued operations. Results of discontinued operations are excluded from the accompanying notes to the consolidated financial statements for all periods presented, unless otherwise noted. Results of discontinued operations reported on the consolidated statements of earnings are reported net of tax.

-49-


 

 

Recently Issued Accounting Standards

 

In January 2017, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2017-04, “Intangibles – Goodwill and Other: Simplifying the Test for Goodwill Impairment.” ASU 2017-04 simplifies the subsequent measurement of goodwill by eliminating Step 2 of the goodwill impairment test. If a reporting unit fails Step 1 of the goodwill impairment test, entities are no longer required to compute the implied fair value of goodwill following the same procedure that would be required in determining the fair value of assets acquired and liabilities assumed in a business combination. Instead, the guidance requires an entity to perform its annual or interim goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount and to recognize an impairment charge for the amount by which the carrying amount exceeds the reporting unit’s fair value. The new guidance is effective for the Company in fiscal year ending January 2, 2021. Early adoption is permitted for interim or annual goodwill impairment tests performed on testing dates after January 1, 2017. The Company is currently evaluating the impact of adoption of this standard on its consolidated financial statements.

In March 2016, the FASB issued ASU 2016-09, “Compensation – Stock Compensation: Improvements to Employee Share-Based Payment Accounting.” ASU 2016-09 provides for simplification of several aspects of the accounting for share-based payment transactions, including income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. The new guidance is effective for the Company in the first quarter of its fiscal year ending December 30, 2017. Early adoption is permitted for any entity in any interim or annual period. The Company does not expect the adoption of this standard to have a material impact on its consolidated financial statements.

In March 2016, the FASB issued ASU 2016-04, “Liabilities – Extinguishment of Liabilities: Recognition of Breakage for Certain Prepaid Stored-Value Products.” ASU 2016-04 amends the guidance on extinguishing financial liabilities for certain prepaid stored-value products. The new guidance requires entities that sell prepaid stored-value products redeemable for goods, services or cash at third-party merchants to recognize breakage for those liabilities consistent with the breakage guidance outlined in ASU 2014-09, “Revenue from Contracts with Customers.” The new guidance is effective for the Company in the first quarter of its fiscal year ending December 29, 2018. The Company is currently in the process of evaluating the impact of adoption of this standard on its consolidated financial statements.

-50-


 

 

In February 2016, the FASB issued ASU 2016-02, “Leases.” ASU 2016-02 provides guidance for lease accounting, and stipulates that lessees will need to recognize a right-of-use asset and a lease liability for substantially all l eases (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. Treatment in the consolidated statements of earnings will be similar to the current treatment of operating and cap ital leases. The new guidance is effective on a modified retrospective basis for the Company in the first quarter of its fiscal year ending December 28, 2019. The Company is currently in the process of evaluating the impact of adoption of this standard on its consolidated financial statements.

In May 2015, the FASB issued ASU 2015-07, “Fair Value Measurement: Disclosures for Investments in Certain Entities that Calculate Net Asset Value Per Share (or its Equivalent).” ASU 2015-07 removes the requirement to make certain disclosures as well as categorize within the fair value hierarchy all investments for which fair value is measured using the net asset value (“NAV”) as a practical expedient. The Company adopted the new standard in fiscal 2016 on a retrospective basis for all periods presented. Adoption of this standard changed certain fair value hierarchy disclosures but overall did not have a material impact on the financial statements.

In April 2015, the FASB issued ASU 2015-03, Interest – Imputation of Interest: Simplifying the Presentation of Debt Issuance Costs . ” In August 2015, the FASB issued ASU 2015-15, “Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements.” The standards require that debt issuance costs related to a recognized debt liability, including a line of credit, be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts, and amortized ratably over the term of the debt liability. The Company adopted the new standards in the first quarter of fiscal 2016 on a retrospective basis for all periods presented. Adoption of the standards resulted in an $8.2 million reduction of Other assets and Long-term debt related to unamortized debt issuance costs on the consolidated balance sheet as of January 2, 2016.

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers.” ASU 2014-09 provides guidance for revenue recognition. The new guidance affects any reporting organization that either enters into contracts with customers to transfer goods or services or enters into contracts for the transfer of nonfinancial assets unless those contracts are within the scope of other standards. The standard’s core principle is that a company will recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which the company expects to be entitled in exchange for those goods or services. In August 2015, the FASB issued ASU 2015-14, “Deferral of the Effective Date,” which results in the guidance being effective for the Company in the first quarter of its fiscal year ending December 29, 2018. The adoption will include updates as provided under ASU 2016-08, “Principal versus Agent Considerations (Reporting Revenue Gross versus Net);” ASU 2016-10, “Identifying Performance Obligations and Licensing;” and ASU 2016-12, “Narrow-Scope Improvements and Practical Expedients.” Adoption is allowed by either the full retrospective or modified retrospective approach. The Company is currently in the process of evaluating the impact of adoption of this standard on its consolidated financial statements.

The Company is currently in the process of evaluating the impact of adoption of this standard on its consolidated financial statements and is substantially complete with its initial evaluation of the major focus areas that could impact the Company. From a principal versus agent considerations perspective, the Company has evaluated its significant arrangements and has determined that revenue recognition on a gross reporting basis will remain relatively unchanged, with the exception of a few smaller contracts that could be reported on a net basis depending on the nature of the arrangements and management’s final assessment. As it pertains to the Food Distribution and Military segments, the Company determined that the promised goods or services outlined in the contracts with customers are immaterial in the context of the contracts, and therefore, the Company expects the amount and timing of revenue to remain unchanged. Many of these contracts also include contingent amounts of variable consideration, and the Company expects there to be few, if any, changes to the timing of revenue as the Company currently recognizes these amounts under the presumption that they are fixed and determinable. The Company also expects there to be few, if any, changes to revenue recognition in its Retail segment based on how the Company currently records gift card breakage and loyalty rewards, which are immaterial with respect to the consolidated financial statements. The Company expects to complete its evaluation and implementation of the standard in mid-2017 and is currently in the process of updating its existing accounting policies as well as implementing processes and controls to address the relevant changes that will result from adopting the new standard.

 

Note 2 – Acquisitions

 

On June 16, 2015, the Company acquired certain assets and assumed certain liabilities of Dan’s Super Market, Inc. (Dan’s) for a total purchase price of $32.6 million. Dan’s was a six-store chain serving Bismarck and Mandan, North Dakota, and was not a customer of the SpartanNash Food Distribution segment prior to the acquisition. The Company acquired the Dan’s stores to strengthen its offering in this region from both a retail and distribution perspective. During the measurement period, which ended June 15, 2016, there were no material adjustments made to the initial fair values of the assets acquired and liabilities assumed as part of the Dan’s acquisition.

 

-51-


 

 

Note 3 – Accounts and Notes Receivable

Accounts and notes receivable are comprised of the following:

 

 

December 31,

 

 

January 2,

 

(In thousands)

2016

 

 

2016

 

Customer notes receivable

$

 

3,219

 

 

$

 

2,385

 

Customer accounts receivable

 

 

252,778

 

 

 

 

282,153

 

Other receivables

 

 

42,142

 

 

 

 

37,817

 

Allowance for doubtful accounts

 

 

(6,571

)

 

 

 

(5,172

)

Net current accounts and notes receivable

$

 

291,568

 

 

$

 

317,183

 

Long-term notes receivable

 

 

15,393

 

 

 

 

21,774

 

Allowance for doubtful accounts

 

 

(139

)

 

 

 

(1,597

)

Net long-term notes receivable

$

 

15,254

 

 

$

 

20,177

 

 

 

Note 4 – Property and Equipment

 

Property and equipment consists of the following:

 

 

December 31,

 

 

January 2,

 

(In thousands)

2016

 

 

2016

 

Land and improvements

$

 

76,409

 

 

$

 

73,524

 

Buildings and improvements

 

 

483,687

 

 

 

 

483,764

 

Equipment

 

 

529,705

 

 

 

 

502,283

 

Total property and equipment

 

 

1,089,801

 

 

 

 

1,059,571

 

Less accumulated depreciation and amortization

 

 

530,079

 

 

 

 

475,873

 

Property and equipment, net

$

 

559,722

 

 

$

 

583,698

 

 

 

 

Note 5 – Goodwill and Other Intangible Assets

Changes in the carrying amount of goodwill were as follows:

 

 

 

 

 

 

 

 

Food

 

 

 

 

 

 

 

 

 

 

 

(In thousands)

 

 

 

 

 

 

Distribution

 

 

Retail

 

 

Total

 

Balance at January 3, 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

 

$

 

131,348

 

 

$

 

252,532

 

 

$

 

383,880

 

Accumulated impairment charges

 

 

 

 

 

 

 

 

 

 

 

 

(86,600

)

 

 

 

(86,600

)

Goodwill, net

 

 

 

 

 

 

 

 

131,348

 

 

 

 

165,932

 

 

 

 

297,280

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Acquisition (Dan's)

 

 

 

 

 

 

 

 

1,019

 

 

 

 

24,603

 

 

 

 

25,622

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at January 2, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

 

 

 

132,367

 

 

 

 

277,135

 

 

 

 

409,502

 

Accumulated impairment charges

 

 

 

 

 

 

 

 

 

 

 

 

(86,600

)

 

 

 

(86,600

)

Goodwill, net

 

 

 

 

 

 

 

 

132,367

 

 

 

 

190,535

 

 

 

 

322,902

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other (Note 6)

 

 

 

 

 

 

 

 

 

 

 

 

(216

)

 

 

 

(216

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at December 31, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Goodwill

 

 

 

 

 

 

 

 

132,367

 

 

 

 

276,919

 

 

 

 

409,286

 

Accumulated impairment charges

 

 

 

 

 

 

 

 

 

 

 

 

(86,600

)

 

 

 

(86,600

)

Goodwill, net

 

 

 

 

 

 

$

 

132,367

 

 

$

 

190,319

 

 

$

 

322,686

 

-52-


 

 

The following table reflects the components of amortized intangible assets, included in “Other assets, net” on the consolidated balance she ets:

 

 

 

 

December 31, 2016

 

 

January 2, 2016

 

 

 

 

 

Gross

 

 

 

 

 

 

 

Gross

 

 

 

 

 

 

 

 

 

 

Carrying

 

 

Accumulated

 

 

Carrying

 

 

Accumulated

 

(In thousands)

 

 

 

Amount

 

 

Amortization

 

 

Amount

 

 

Amortization

 

Non-compete agreements

 

 

 

$

 

1,244

 

 

$

 

978

 

 

$

 

1,306

 

 

$

 

725

 

Favorable leases

 

 

 

 

 

8,744

 

 

 

 

3,807

 

 

 

 

8,744

 

 

 

 

3,248

 

Pharmacy customer prescription lists

 

 

 

 

 

7,168

 

 

 

 

3,445

 

 

 

 

7,887

 

 

 

 

3,441

 

Customer relationships

 

 

 

 

 

17,633

 

 

 

 

2,187

 

 

 

 

17,542

 

 

 

 

1,308

 

Trade names

 

 

 

 

 

1,068

 

 

 

 

236

 

 

 

 

1,068

 

 

 

 

86

 

Franchise fees and other

 

 

 

 

 

929

 

 

 

 

270

 

 

 

 

559

 

 

 

 

205

 

Total

 

 

 

$

 

36,786

 

 

$

 

10,923

 

 

$

 

37,106

 

 

$

 

9,013

 

 

The weighted average amortization periods for amortizable intangible assets as of December 31, 2016 are as follows:

Non-compete agreements

 

 

 

 

 

 

 

 

 

 

 

 

 

5.0 years

Favorable leases

 

 

 

 

 

 

 

 

 

 

 

 

 

15.7 years

Pharmacy customer prescription lists

 

 

 

 

 

 

 

 

 

 

 

 

 

7.4 years

Customer relationships

 

 

 

 

 

 

 

 

 

 

 

 

 

20.0 years

Trade names

 

 

 

 

 

 

 

 

 

 

 

 

 

7.0 years

Franchise fees and other

 

 

 

 

 

 

 

 

 

 

 

 

 

9.2 years

 

Amortization expense for intangible assets was $3.0 million, $3.3 million and $3.7 million for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Estimated amortization expense for each of the five succeeding fiscal years is as follows:

 

 

Fiscal Year

 

(In thousands)

2017

 

 

2018

 

 

2019

 

 

2020

 

 

2021

 

Amortization expense

$

 

2,835

 

 

$

 

2,607

 

 

$

 

2,489

 

 

$

 

2,115

 

 

$

 

1,394

 

Indefinite-lived intangible assets that are not amortized, consisting primarily of trade names and licenses for the sale of alcoholic beverages, totaled $34.3 million and $35.1 million as of December 31, 2016 and January 2, 2016, respectively.

 

 

Note 6 – Restructuring Charges and Asset Impairment

The following table summarizes the reserve activity for closed properties for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015. Reserves for closed properties recorded in the consolidated balance sheets are included in “Other accrued expenses” in Current liabilities and “Other long-term liabilities” in Long-term liabilities based on when the obligations are expected to be paid.

-53-


 

 

 

 

Lease and

 

 

 

 

 

 

 

(In thousands)

Ancillary Costs

 

 

Severance

 

 

Total

 

Balance at December 28, 2013

$

 

19,496

 

 

$

 

1,035

 

 

$

 

20,531

 

Provision for closing charges (a)

 

 

543

 

 

 

 

 

 

 

 

543

 

Provision for severance (b)

 

 

 

 

 

 

306

 

 

 

 

306

 

Changes in estimates (c)

 

 

(563

)

 

 

 

 

 

 

 

(563

)

Accretion expense

 

 

841

 

 

 

 

 

 

 

 

841

 

Payments

 

 

(6,329

)

 

 

 

(1,261

)

 

 

 

(7,590

)

Balance at January 3, 2015

 

 

13,988

 

 

 

 

80

 

 

 

 

14,068

 

Provision for closing charges (a)

 

 

7,200

 

 

 

 

 

 

 

 

7,200

 

Provision for severance (b)

 

 

 

 

 

 

395

 

 

 

 

395

 

Changes in estimates (c)

 

 

(56

)

 

 

 

(80

)

 

 

 

(136

)

Lease termination adjustment (d)

 

 

(1,745

)

 

 

 

 

 

 

 

(1,745

)

Accretion expense

 

 

592

 

 

 

 

 

 

 

 

592

 

Payments

 

 

(5,531

)

 

 

 

(395

)

 

 

 

(5,926

)

Balance at January 2, 2016

 

 

14,448

 

 

 

 

 

 

 

 

14,448

 

Provision for closing charges (a)

 

 

13,925

 

 

 

 

 

 

 

 

13,925

 

Provision for severance (b)

 

 

 

 

 

 

919

 

 

 

 

919

 

Changes in estimates (c)

 

 

689

 

 

 

 

(40

)

 

 

 

649

 

Lease termination adjustment (d)

 

 

(2,437

)

 

 

 

 

 

 

 

(2,437

)

Accretion expense

 

 

675

 

 

 

 

 

 

 

 

675

 

Payments

 

 

(5,368

)

 

 

 

(879

)

 

 

 

(6,247

)

Balance at December 31, 2016

$

 

21,932

 

 

$

 

 

 

$

 

21,932

 

 

(a)

The provision for closing charges represents initial costs estimated to be incurred for lease and related ancillary costs, net of sublease income, related to store and distribution center closings in the Retail and Food Distribution segments, respectively.

 

(b)

The provision for severance represents severance charges made in connection with property closures.

 

(c)

As a result of changes in estimates, goodwill was reduced by $0.2 million and $1.3 million in the fiscal years ended December 31, 2016 and January 3, 2015, respectively, as the initial charges for certain stores were adjusted in the purchase price allocations for previous acquisitions.

 

(d)

The lease termination adjustment represents the benefit recognized in connection with lease buyouts on previously closed stores. The lease liabilities were formerly included in the Company’s restructuring cost liability based on initial estimates.

Restructuring charges and asset impairment included in the consolidated statements of earnings consisted of the following:

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Asset impairment charges (a)

$

 

15,586

 

 

$

 

4,220

 

 

$

 

7,550

 

Provision for closing charges (b)

 

 

13,925

 

 

 

 

7,200

 

 

 

 

543

 

Gain on sales of assets related to closed facilities (c)

 

 

(134

)

 

 

 

(2,997

)

 

 

 

(4,518

)

Provision for severance (d)

 

 

919

 

 

 

 

395

 

 

 

 

306

 

Other costs associated with distribution center and store closings (e)

 

 

3,692

 

 

 

 

1,865

 

 

 

 

1,504

 

Changes in estimates (f)

 

 

865

 

 

 

 

(136

)

 

 

 

781

 

Lease termination adjustment (g)

 

 

(2,737

)

 

 

 

(1,745

)

 

 

 

 

 

$

 

32,116

 

 

$

 

8,802

 

 

$

 

6,166

 

 

(a)

Asset impairment charges were recorded in each fiscal year presented in the Retail segment in connection with the Company’s store rationalization plan and the underperformance of certain retail stores. Asset impairment charges of $880 were recorded in the fiscal year ended January 2, 2016 in connection with the closure of a distribution center in the Military segment.

 

(b)

The provision for closing charges represents initial costs estimated to be incurred for lease and related ancillary costs, net of sublease income, related to property closures. In each fiscal year presented, closing charges were recorded for store closings in the Retail segment, particularly retail stores in the western geographies in connection with the Company’s store rationalization plan. In fiscal 2016, closing charges were also recorded in the Food Distribution segment associated with the closure of a distribution center.

-54-


 

 

 

(c)

The gain on sales of assets in fiscal 2016 relate to gains on the sale of vacant land in the Military segment and net gains on the sale of previously closed stores in the Retail segment, partially offset by losses on the sale of a closed distribution center in the Food Distribution segment. The gain on sales of assets i n the fiscal year ended January 2, 2016 resulted from the sale of a closed distribution center in the Food Distribution segment and net gains on the sales of closed stores in the Retail segment. The gains on sales of assets in the fiscal year ended January 3, 2015 resulted from sales of closed stores in the Retail segment.

 

(d)

The provision for severance relates to distribution center closings in the Food Distribution and Military segments and store closings in the Retail segment.

 

(e)

Other closing costs associated with distribution center and store closings represent additional costs, mainly labor, inventory transfer and other administrative costs, incurred in connection with winding down certain operations in the Food Distribution and Retail segments.

 

(f)

The changes in estimates relate to revised estimates of lease, ancillary and severance costs associated with previously closed facilities, primarily in the Retail and Food Distribution segments.

 

(g)

The lease termination adjustment represents the benefits recognized in connection with lease buyouts on previously closed stores.

Lease obligations for closed facilities included in restructuring costs include the present value of future minimum lease payments, calculated using a risk-free interest rate, and related ancillary costs from the date of closure to the end of the remaining lease term, net of estimated sublease income.

Long-lived assets are analyzed for impairment whenever circumstances arise that could indicate the carrying value of long-lived assets may not be recoverable. If such circumstances exist, then estimates are made of future cash flows expected to result from the use of the assets and their eventual disposition. If the sum of the expected cash flows (undiscounted and without interest charges) is less than the carrying amount of the asset, an impairment loss is recognized in the consolidated statements of earnings. Measurement of the impairment loss to be recorded is equal to the excess of the carrying amount of the assets over the discounted future cash flows. When analyzing the assets for impairment, assets are grouped at the lowest level for which there are identifiable cash flows that are largely independent of the cash flows of other groups of assets.

 

 

 

Note 7 – Long-Term Debt

Long-term debt consists of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

January 2,

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

 

2016

 

   Senior secured revolving credit facility, due December 2021

$

 

359,127

 

 

$

 

394,982

 

  Senior secured term loan, due December 2021

 

 

26,954

 

 

 

 

34,842

 

  Capital lease obligations (Note 10)

 

 

48,255

 

 

 

 

58,599

 

  Other, 2.61% - 8.75%, due 2019 - 2020

 

 

5,028

 

 

 

 

6,558

 

    Total debt - principal

 

 

439,364

 

 

 

 

494,981

 

  Unamortized debt issuance costs

 

 

(8,265

)

 

 

 

(8,185

)

    Total debt

 

 

431,099

 

 

 

 

486,796

 

  Less current portion

 

 

17,424

 

 

 

 

19,003

 

    Total long-term debt

$

 

413,675

 

 

$

 

467,793

 

In December 2016, SpartanNash Company and certain of its subsidiaries amended its senior secured credit facility (the “Credit Agreement”). The principal changes of the amendment were to reduce the number of tiers in the pricing grid from three to two, reset the advance rate on real estate to 75%, provide the ability to increase the size of the term loan by $33 million, and extend the maturity date of the agreement, which was set to expire on January 8, 2020, to December 20, 2021. The Credit Agreement provides for borrowings of $1.0 billion, consisting of three tranches: a $900 million secured revolving credit facility (Tranche A), a $40 million secured revolving credit facility (Tranche A-1), and a $60 million term loan (Tranche A-2). The Company has the ability to increase the size of the Credit Agreement by an additional $400 million, subject to certain conditions in the Credit Agreement. The Company’s obligations under the related Credit Agreement are secured by substantially all of the Company’s personal and real property. The Company may repay all loans in whole or in part at any time without penalty.

Availability under the Credit Agreement is based upon advance rates on certain asset categories owned by the Company, including, but not limited to the following: inventory, accounts receivable, real estate, prescription lists, cigarette tax stamps, and rolling stock.

-55-


 

 

The Credit Agreement imposes certain requirements, including: limitations on dividends and investments, limitations on the Company’s abil ity to incur debt, make loans, acquire other companies, change the nature of the Company’s business, enter a merger or consolidation, or sell assets. These requirements can be more restrictive depending upon the Company’s Excess Availability, as defined un der the Credit Agreement.

Borrowings under the three tranches of the credit facility bear interest at the Company’s option as either Eurodollar loans or Base Rate loans, subject to a grid based upon Excess Availability . As of December 31, 2016, the interest rate terms are as follows:

 

Credit

 

Outstanding

 

 

 

 

 

 

Facility

 

as of

 

 

 

 

 

 

Tranche

 

December 31, 2016

 

 

Eurodollar Rate

 

Base Rate

Tranche A

 

$

 

325,000

 

 

LIBOR plus 1.50% to 1.75%

 

Greater of:

(i) the Federal Funds Rate plus 1.00% to 1.25%

 

 

 

 

 

 

 

 

 

 

(ii) the Eurodollar Rate plus 1.25% to 1.50%

 

 

 

 

 

 

 

 

 

 

(iii) the prime rate plus 0.25% to 0.50%

Tranche A-1

 

$

 

34,127

 

 

LIBOR plus 2.75% to 3.00%

 

Greater of:

(i) the Federal Funds Rate plus 2.25% to 2.50%

 

 

 

 

 

 

 

 

 

 

(ii) the Eurodollar Rate plus 2.50% to 2.75%

 

 

 

 

 

 

 

 

 

 

(iii) the prime rate plus 1.50% to 1.75%

Tranche A-2

 

$

 

26,954

 

 

LIBOR plus 5.25%

 

Greater of:

(i) the Federal Funds Rate plus 4.75%

 

 

 

 

 

 

 

 

 

 

(ii) the Eurodollar Rate plus 5.25%

 

 

 

 

 

 

 

 

 

 

(iii) the prime rate plus 4.25%

The Company also incurs an unused line of credit fee on the unused portion of the loan commitments at a rate of 0.25%   .

As of December 31, 2016 and January 2, 2016, the secured revolving credit facilities and senior secured term loan had total outstanding borrowings of $386.1 million and $429.8 million, respectively. The Credit Agreement requires that the Company maintain Excess Availability of 10% of the borrowing base, as defined in the Credit Agreement. The Company is in compliance with all financial covenants as of December 31, 2016 and had Excess Availability after the 10% requirement of $415.8 million and $334.3 million at December 31, 2016 and January 2, 2016, respectively. The credit facility provides for the issuance of letters of credit, of which $9.6 million and $11.1 million were outstanding as of December 31, 2016 and January 2, 2016, respectively.

In November 2015, the Company called for redemption all of the outstanding $50.0 million aggregate principal amount of the 6.625% Senior Notes due December 2016 (the “Notes”). The Company redeemed the Notes for cash, using borrowings under its revolving credit facility, on December 15, 2015. Notes called for redemption became due and payable on the redemption date at a cash redemption price of 101.65625% of the principal amount of the Notes, plus accrued and unpaid interest. A loss on debt extinguishment of $1.2 million was incurred consisting of the redemption premium and the write-off of unamortized issuance costs.

The weighted average interest rate for all borrowings, including loan fee amortization, was 3.70% for the fiscal year ended December 31, 2016.

At December 31, 2016, aggregate annual maturities and scheduled payments of long-term debt are as follows:

 

 

Fiscal Year

 

 

 

 

 

 

 

 

 

 

 

(In thousands)

2017

 

 

2018

 

 

2019

 

 

2020

 

 

2021

 

 

Thereafter

 

 

Total

 

 

$

 

17,424

 

 

$

 

18,655

 

 

$

 

13,422

 

 

$

 

4,654

 

 

$

 

361,640

 

 

$

 

23,569

 

 

$

 

439,364

 

 

 

-56-


 

 

Note 8 – Fair Value Measurements

Financial instruments include cash and cash equivalents, accounts and notes receivable, accounts payable and long-term debt. The carrying amounts of cash and cash equivalents, accounts and notes receivable, and accounts payable approximate fair value because of the short-term maturities of these financial instruments. The book value and estimated fair value of the Company’s debt instruments, excluding debt financing costs, were as follows:

 

 

December 31,

 

 

January 2,

 

(In thousands)

2016

 

 

2016

 

Book value of debt instruments, excluding debt financing costs:

 

 

 

 

 

 

 

 

 

Current maturities of long-term debt and capital lease obligations

$

 

17,424

 

 

$

 

19,003

 

Long-term debt and capital lease obligations

 

 

421,940

 

 

 

 

475,978

 

Total book value of debt instruments

 

 

439,364

 

 

 

 

494,981

 

Fair value of debt instruments, excluding debt financing costs

 

 

440,759

 

 

 

 

497,116

 

Excess of fair value over book value

$

 

1,395

 

 

$

 

2,135

 

 

The estimated fair value of debt is based on market quotes for instruments with similar terms and remaining maturities (Level 2 inputs and valuation techniques).

 

Accounting Standards Codification (“ASC”) Topic 820 prioritizes the inputs to valuation techniques used to measure fair value into the following hierarchy:

Level 1: Quoted prices (unadjusted) in active markets for identical assets or liabilities.

Level 2: Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly.

Level 3: Unobservable inputs for the asset or liability, reflecting the reporting entity’s own assumptions about the assumptions that market participants would use in pricing.

Long-lived assets are measured at fair value on a nonrecurring basis using Level 3 inputs as defined in the fair value hierarchy. As of the fiscal years ended December 31, 2016 and January 2, 2016, assets with a book value of $20.1 million and $11.9 million were measured at a fair value of $4.5 million and $7.7 million, respectively. Fair value of long-lived assets is determined by estimating the amount and timing of net future cash flows, discounted using a risk-adjusted rate of interest. The Company estimates future cash flows based on experience and knowledge of the geographic area in which the assets are located, and when necessary, uses real estate brokers. See Note 6 for discussion of long-lived asset impairment charges.

 

 

Note 9 – Commitments and Contingencies

The Company subleases property at certain locations and for the fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, received rental income of $4.8 million, $5.3 million and $5.0 million, respectively. In the event of the customer’s default, the Company would be responsible for fulfilling these lease obligations. The future payment obligations under these leases are disclosed in Note 10.

Unions represent approximately 8% of SpartanNash’s associates. These associates are covered by collective bargaining agreements. The facilities covered by collective bargaining agreements, the unions representing the covered associates and the expiration dates for each existing collective bargaining agreement are provided in the following table:

 

Distribution Center Locations

 

Union Locals

 

Expiration Dates

Lima, Ohio (a)

 

IBT 908

 

January, 2019

Bellefontaine, Ohio GTL Truck Lines, Inc. (a)

 

IBT 908

 

February, 2019

Bellefontaine, Ohio General Merchandise Service Division (a)

 

IBT 908

 

February, 2019

Grand Rapids, Michigan

 

IBT 406

 

October, 2017

Landover, Maryland

 

IBT 639

 

February, 2018

Norfolk, Virginia

 

IBT 822

 

April, 2019

Columbus, Georgia

 

IBT 528

 

September, 2019

 

(a)

The Company is in the process of negotiating contract extensions at these locations, which have been updated with the contemplated expiration dates.

-57-


 

 

The Company is engaged from time-to-time in routine legal proceedings incidental to its business. The Company does not believe that these routine legal proceedings, taken as a whole, will have a material impact on its business or financial condition. While the ultimate effect of such actions cannot be predicted with certainty, management believes that their outcome will not result in an adverse effect on the Company’s consolidated financial position, operating results or liquidity.

The Company contributes to the Central States Southeast and Southwest Pension Fund (“Central States Plan” or “the Plan”), a multi-employer pension plan, based on obligations arising from its collective bargaining agreements in Bellefontaine, Ohio, Lima, Ohio, and Grand Rapids, Michigan covering its supply chain associates at those locations. This Plan provides retirement benefits to participants based on their service to contributing employers. The benefits are paid from assets held in trust for that purpose. Trustees are appointed by contributing employers and unions; however, SpartanNash is not a trustee. The trustees typically are responsible for determining the level of benefits to be provided to participants, as well as for such matters as the investment of the assets and the administration of the plan. The Company currently contributes to the Central States Plan under the terms outlined in the “Primary Schedule” of Central States’ Rehabilitation Plan or those outlined in the “Default Schedule.” Both the Primary and Default schedules require varying increases in employer contributions over the previous year’s contribution. Increases are set within the collective bargaining agreement and vary by location.

On December 13, 2014, Congress passed the Multi-employer Pension Reform Act of 2014 (“MPRA”). The MPRA is intended to address funding shortfalls in both multi-employer pension plans and the Pension Benefit Guaranty Corporation. As the Plan’s application to suspend payment of pension benefits under the provisions of the MPRA was denied, the MPRA is unlikely to significantly impact the Plan.  

Based on the most recent information available to the Company, management believes that the present value of actuarial accrued liabilities in this multi-employer plan significantly exceeds the value of the assets held in trust to pay benefits. Because SpartanNash is one of a number of employers contributing to this plan, it is difficult to ascertain what the exact amount of the underfunding would be, although management anticipates that the Company’s contributions to this plan will increase each year. Management is not aware of any significant change in funding levels since December 31, 2016. To reduce this underfunding, management expects meaningful increases in expense as a result of required incremental multi-employer pension plan contributions in future years. Any adjustment for withdrawal liability will be recorded when it is probable that a liability exists and can be reasonably determined.

 

Note 10 – Leases

A substantial portion of the Company’s retail stores and warehouse properties are operated in leased facilities. The Company also leases small ancillary warehouse facilities, the tractor and trailer fleet, and certain other equipment. Most of the property leases contain renewal options of varying terms. Terms of certain leases contain provisions requiring payment of percentage rent based on sales and payment of executory costs such as property taxes, utilities, insurance, maintenance and other occupancy costs applicable to the leased premises. Terms of certain leases of transportation equipment contain provisions requiring payment of percentage rent based upon miles driven. Certain properties or portions thereof are subleased to others. Operating leases often contain renewal options. In those locations in which it makes economic sense to continue to operate, management expects that, in the normal course of business, leases that expire will be renewed or replaced by other leases.

Rental expense, net of sublease income, under operating leases consisted of the following:  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Minimum rentals

$

 

57,478

 

 

$

 

57,625

 

 

$

 

56,848

 

Contingent rental payments

 

 

314

 

 

 

 

267

 

 

 

 

563

 

Sublease rental income

 

 

(4,830

)

 

 

 

(5,311

)

 

 

 

(5,027

)

Total

 

 

 

 

 

 

 

 

 

 

 

 

$

 

52,962

 

 

$

 

52,581

 

 

$

 

52,384

 

-58-


 

 

The Company’s total future lease commitments under operating and capital leases in effect at December 31, 2016 are as follows:

 

 

 

 

 

 

 

 

 

 

 

Operating Leases

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Used in

 

 

Subleased

 

 

 

 

 

Capital

 

(In thousands)

 

 

 

 

 

 

 

 

 

Operations

 

 

to Others

 

 

Total

 

 

Leases

 

Fiscal Year

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2017

 

 

 

 

 

 

 

 

 

$

 

49,236

 

 

$

 

1,836

 

 

$

 

51,072

 

 

$

 

9,261

 

2018

 

 

 

 

 

 

 

 

 

 

 

43,231

 

 

 

 

1,822

 

 

 

 

45,053

 

 

 

 

9,048

 

2019

 

 

 

 

 

 

 

 

 

 

 

32,681

 

 

 

 

1,362

 

 

 

 

34,043

 

 

 

 

8,643

 

2020

 

 

 

 

 

 

 

 

 

 

 

25,723

 

 

 

 

1,087

 

 

 

 

26,810

 

 

 

 

6,449

 

2021

 

 

 

 

 

 

 

 

 

 

 

18,258

 

 

 

 

694

 

 

 

 

18,952

 

 

 

 

4,489

 

Thereafter

 

 

 

 

 

 

 

 

 

 

 

76,745

 

 

 

 

972

 

 

 

 

77,717

 

 

 

 

32,961

 

Total

 

 

 

 

 

 

 

 

 

$

 

245,874

 

 

$

 

7,773

 

 

$

 

253,647

 

 

 

 

70,851

 

 

 

 

 

 

 

 

 

 

 

Interest

 

 

 

 

(22,596

)

 

 

 

 

 

 

 

 

 

 

Present value of minimum lease obligations

 

 

 

 

48,255

 

 

 

 

 

 

 

 

 

 

 

Current maturities

 

 

 

 

5,867

 

 

 

 

 

 

 

 

 

 

 

Long-term capitalized lease obligations

 

 

$

 

42,388

 

Assets held under capital leases consisted of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

January 2,

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

 

2016

 

Building and improvements

 

$

 

61,831

 

 

$

 

72,297

 

Equipment

 

 

 

3,403

 

 

 

 

5,281

 

Assets under capitalized leases

 

 

 

65,234

 

 

 

 

77,578

 

Less accumulated amortization and depreciation

 

 

 

25,163

 

 

 

 

31,372

 

Net assets under capitalized leases

 

$

 

40,071

 

 

$

 

46,206

 

Amortization expense for property under capital leases was $5.2 million, $3.6 million and $4.4 million in fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Certain retail store facilities, either owned or obtained through leasing arrangements, are leased to others. A majority of the leases provide for minimum and contingent rentals based upon stipulated sales volumes and contain renewal options. Certain of the leases contain escalation clauses.

Owned assets, included in property and equipment, which are leased to others are as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

January 2,

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

 

2016

 

Land and improvements

$

 

3,860

 

 

$

 

3,508

 

Buildings

 

 

13,948

 

 

 

 

10,640

 

Long-term debt and capital lease obligations

 

 

17,808

 

 

 

 

14,148

 

Less accumulated amortization and depreciation

 

 

7,625

 

 

 

 

5,890

 

Net property

$

 

10,183

 

 

$

 

8,258

 

Future minimum rentals to be received under lease obligations in effect at December 31, 2016 are as follows:

 

 

Fiscal Year

 

 

 

 

 

 

 

(In thousands)

2017

 

 

2018

 

 

2019

 

 

2020

 

 

2021

 

 

Thereafter

 

 

Total

 

Owned property

$

 

3,158

 

 

$

 

2,119

 

 

$

 

1,326

 

 

$

 

963

 

 

$

 

694

 

 

$

 

839

 

 

$

 

9,099

 

Leased property

 

 

4,372

 

 

 

 

3,384

 

 

 

 

2,122

 

 

 

 

1,571

 

 

 

 

854

 

 

 

 

1,118

 

 

 

 

13,421

 

Total

$

 

7,530

 

 

$

 

5,503

 

 

$

 

3,448

 

 

$

 

2,534

 

 

$

 

1,548

 

 

$

 

1,957

 

 

$

 

22,520

 

 

 

-59-


 

 

Note 11 – Associate Retirement Plans

The Company’s retirement programs include pension plans providing non-contributory benefits and salary deferral defined contribution plans. Substantially all of the Company’s associates not covered by collective bargaining agreements are covered by a frozen non-contributory pension plan, a defined contribution plan, or both. Associates covered by collective bargaining agreements at the Company’s Columbus, Georgia; Norfolk, Virginia; and Landover, Maryland facilities all participate in the Company’s defined contribution plan; the remaining associates covered under collective bargaining agreements participate in a multi-employer pension plan.

Defined Contribution Plans

Expense for employer matching and profit sharing contributions made to defined contribution plans totaled $11.9 million, $21.1 million and $13.6 million in fiscal years end December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Executive Compensation Plans

The Company has a deferred compensation plan for a select group of management personnel or highly compensated associates. The plan is unfunded and permits participants to defer receipt of a portion of their base salary, annual bonus, or long-term incentive compensation which would otherwise be paid to them. The deferred amounts, plus earnings, are distributed following the associate’s termination of employment. Earnings are based on the performance of hypothetical investments elected by the participant from a portfolio of investment options.

The Company had two separate trusts established for the protection of cash balances owed to participants in its deferred compensation plans. The Company was required, as specified by the plan documents, to fund these trusts with 125% of its pre-merger liability to plan participants. These trusts were terminated in 2015 and the Company received cash proceeds from the liquidation of corporate owned life insurance policies of $5.0 million.

The Company also holds variable universal life insurance policies on certain key associates intended to fund distributions under the deferred compensation plan referenced above. The net cash surrender value of approximately $4.2 million at both December 31, 2016 and January 2, 2016, is recorded in “Other assets, net” in the consolidated balance sheets. These policies have an aggregate amount of life insurance coverage of approximately $15.0 million.

Defined Benefit Plans

The Company sponsors defined benefit pension plans for certain associates. The pension benefits are primarily based on years of service and compensation, with some differences resulting from the nature of how benefits were calculated under the Company’s legacy defined benefit plans, as described below.

The Spartan Stores, Inc. Cash Balance Pension Plan (“Cash Balance Pension Plan”), a non-contributory cash balance pension plan, was frozen effective January 1, 2011. As a result of the freeze, no additional associates were eligible to participate in the plan after January 1, 2011, and additional service credits were no longer added to each participant’s account; however, interest credits continue to accrue. Prior to the plan freeze, the plan benefit formula utilized a cash balance approach whereby credits were added annually to a participant’s account based on compensation and years of vested service, with interest credits also added to the participant’s account at the Company’s discretion.

The Retirement Plan for Employees of Super Food Services, Inc. (“Super Foods Plan”), a qualified non-contributory pension plan offered by one of the Company’s subsidiaries, provides retirement income for certain eligible full-time associates who are not covered by a union retirement plan. Pension benefits under the plan are based on length of service and compensation, and contributions meet the minimum funding requirements. This plan has been curtailed and no new associates can enter the plan. This plan was frozen effective January 1, 1998.

On December 31, 2014, the Super Foods Plan was merged into the Cash Balance Pension Plan and renamed the SpartanNash Company Pension Plan. The merging of the plans resulted in lower administrative fees and reduced cash funding. Annual payments to the pension trust fund are determined in compliance with the Employee Retirement Income Security Act of 1976 (“ERISA”). Plan assets consist principally of U.S. government and corporate obligations and common stocks. The plan does not hold any SpartanNash stock.

If lump sum distributions are made in an amount exceeding annual interest cost, settlement accounting is triggered and the resulting settlement expense is recorded as a component of total pension expense (income). During the fiscal year ended December 31, 2016, lump sum distributions of $2.8 million were made and a resulting pension settlement charge of $0.7 million was incurred. During the fiscal year ended January 3, 2015, terminated vested participants of the Cash Balance Pension Plan and the Super Foods Plan were offered a temporary opportunity to elect to receive a lump sum distribution, and total lump sum distributions of $10.6 million were made. As a result of these distributions, and normal lump sum distributions, a pension settlement charge of $1.6 million was incurred in fiscal 2014.

-60-


 

 

Postretirement Me dical Plans

SpartanNash Company and certain subsidiaries provide healthcare benefits to retired associates who were not covered by collective bargaining arrangements during their employment (“covered associates”) under the SpartanNash Company Retiree Medical Plan (“SpartanNash Medical Plan”). Former Spartan Stores, Inc. associates who have at least   10 years of service and have attained age 55, and who were not covered by collective bargaining arrangements during their employment, qualify as covered associates. Qualified covered associates that retired prior to March 31, 1992 receive major medical insurance with deductible and coinsurance provisions until age 65 and Medicare supplemental benefits thereafter. Covered associates retiring after April 1, 1992 are eligible for monthly postretirement healthcare benefits of $5 multiplied by the associate’s years of service. This benefit is in the form of a credit against the monthly insurance premium. The retiree pays the balance of the premium. Associates hired after December 31, 2001 are not eligible for these benefits.

The following tables set forth the actuarial present value of benefit obligations, funded status, change in benefit obligation, change in plan assets, weighted average assumptions used in actuarial calculations and components of net periodic benefit costs for the Company’s significant pension and postretirement benefit plans, excluding multi-employer plans. The prepaid, current accrued, and noncurrent accrued benefit costs associated with pension and postretirement benefits are reported in “Other assets, net,” “Accrued payroll and benefits,” and “Postretirement benefits,” respectively, in the consolidated balance sheets.

 

 

 

 

 

 

 

SpartanNash Company Pension Plan

 

 

SpartanNash Medical Plan

 

 

 

 

 

 

 

 

December 31,

 

 

January 2,

 

 

December 31,

 

 

January 2,

 

(In thousands, except percentages)

 

 

 

 

 

 

2016

 

 

2016

 

 

2016

 

 

2016

 

Funded Status

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Projected/Accumulated benefit obligation:

 

 

 

 

 

 

 

 

 

 

 

Balance at beginning of year

 

 

 

 

 

 

$

 

83,398

 

 

$

 

93,034

 

 

$

 

9,179

 

 

$

 

9,905

 

Service cost

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

187

 

 

 

 

231

 

Interest cost

 

 

 

 

 

 

 

 

2,977

 

 

 

 

3,325

 

 

 

 

345

 

 

 

 

404

 

Actuarial loss (gain)

 

 

 

 

 

 

 

 

1,598

 

 

 

 

(4,985

)

 

 

 

213

 

 

 

 

(1,117

)

Benefits paid

 

 

 

 

 

 

 

 

(7,623

)

 

 

 

(7,976

)

 

 

 

(261

)

 

 

 

(244

)

Balance at end of year

 

 

 

 

 

 

$

 

80,350

 

 

$

 

83,398

 

 

$

 

9,663

 

 

$

 

9,179

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair value of plan assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at beginning of year

 

 

 

 

 

 

$

 

84,753

 

 

$

 

93,718

 

 

$

 

 

 

$

 

 

Actual return on plan assets

 

 

 

 

 

 

 

 

4,852

 

 

 

 

(1,639

)

 

 

 

 

 

 

 

 

Company contributions

 

 

 

 

 

 

 

 

 

 

 

 

650

 

 

 

 

261

 

 

 

 

244

 

Benefits paid

 

 

 

 

 

 

 

 

(7,623

)

 

 

 

(7,976

)

 

 

 

(261

)

 

 

 

(244

)

Balance at end of year

 

 

 

 

 

 

$

 

81,982

 

 

$

 

84,753

 

 

$

 

 

 

$

 

 

Funded (unfunded) status

 

 

 

 

 

 

$

 

1,632

 

 

$

 

1,355

 

 

$

 

(9,663

)

 

$

 

(9,179

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Components of net amount recognized in consolidated balance sheets:

 

 

 

 

 

 

 

 

 

 

 

Noncurrent assets

 

 

 

 

 

 

$

 

1,632

 

 

$

 

1,355

 

 

$

 

 

 

$

 

 

Current liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(412

)

 

 

 

(340

)

Noncurrent liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(9,251

)

 

 

 

(8,839

)

Net asset (liability)

 

 

 

 

 

 

$

 

1,632

 

 

$

 

1,355

 

 

$

 

(9,663

)

 

$

 

(9,179

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Amounts recognized in accumulated other comprehensive income:

 

 

 

 

 

 

 

 

 

 

 

Net actuarial loss

 

 

 

 

 

 

$

 

16,938

 

 

$

 

17,322

 

 

$

 

1,434

 

 

$

 

1,263

 

Prior service credit

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(408

)

 

 

 

(566

)

Accumulated other comprehensive loss

 

$

 

16,938

 

 

$

 

17,322

 

 

$

 

1,026

 

 

$

 

697

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average assumptions at measurement date:

 

 

 

 

 

 

 

 

 

 

 

Discount rate

 

 

 

 

 

 

3.82%

 

 

4.04%

 

 

4.26%

 

 

4.55%

 

Expected return on plan assets

 

 

 

 

 

 

4.83%

 

 

5.05%

 

 

N/A

 

 

N/A

 

Ultimate health care cost trend rate

 

 

 

 

 

 

N/A

 

 

N/A

 

 

5.00%

 

 

5.00%

 

-61-


 

 

  

Components of net periodic benefit cost (income):

 

 

SpartanNash Company Pension Plan

 

 

SpartanNash Medical Plan

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

 

2016

 

 

2016

 

 

2015

 

(In thousands, except percentages)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks) (a)

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Service cost

$

 

 

 

$

 

 

 

$

 

 

 

$

 

187

 

 

$

 

231

 

 

$

 

186

 

Interest cost

 

 

2,977

 

 

 

 

3,325

 

 

 

 

4,223

 

 

 

 

345

 

 

 

 

404

 

 

 

 

394

 

Amortization of prior service cost

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(158

)

 

 

 

(158

)

 

 

 

(158

)

Expected return on plan assets

 

 

(4,269

)

 

 

 

(4,923

)

 

 

 

(5,737

)

 

 

 

 

 

 

 

 

 

 

 

 

Recognized actuarial net loss

 

 

706

 

 

 

 

827

 

 

 

 

970

 

 

 

 

42

 

 

 

 

174

 

 

 

 

20

 

Net periodic benefit (income) expense

$

 

(586

)

 

$

 

(771

)

 

$

 

(544

)

 

$

 

416

 

 

$

 

651

 

 

$

 

442

 

Settlement expense

 

 

692

 

 

 

 

 

 

 

 

2,588

 

 

 

 

 

 

 

 

 

 

 

 

 

Total expense (income)

$

 

106

 

 

$

 

(771

)

 

$

 

2,044

 

 

$

 

416

 

 

$

 

651

 

 

$

 

442

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average assumptions used to determine net periodic benefit cost (income):

 

Discount rate

4.04%

 

 

3.75%

 

 

4.35%/4.65%

 

 

4.55%

 

 

4.15%

 

 

5.05%

 

Expected return on plan assets

5.05%

 

 

5.50%

 

 

5.95%/5.70%

 

 

N/A

 

 

N/A

 

 

N/A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On December 31, 2014, the Super Foods Plan was merged into the Cash Balance Pension Plan and renamed the SpartanNash Company Pension Plan.

 

(a) Amounts reflect the combined values of the Cash Balance Pension Plan and Super Foods Plan. For weighted average assumptions, these reflect the assumptions used for the Cash Balance Pension Plan and the Super Foods Plan, respectively.

 

 

The net actuarial loss and prior service cost included in “Accumulated Other Comprehensive Income” and expected to be recognized in net periodic benefit cost during fiscal year 2017 are as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SpartanNash

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Company

 

 

SpartanNash

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

Pension Plan

 

 

Medical Plan

 

Prior service credit

 

 

 

 

 

 

 

 

 

 

 

 

$

 

 

 

$

 

(158

)

Net actuarial loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

222

 

 

 

 

59

 

 

Prior service costs (credits) are amortized on a straight-line basis over the average remaining service period of active participants. Actuarial gains and losses for the SpartanNash Company Pension Plan are amortized over the average remaining service life of active participants when the accumulation of such gains and losses exceeds 10% of the greater of the projected benefit obligation and the fair value of plan assets.

Assumed healthcare cost trend rates have a significant effect on the amounts reported for the postretirement plan. Assumed healthcare cost trend rates used to determine net periodic benefit cost (income) were as follows:

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

January 2,

 

January 3,

 

 

 

 

 

 

 

 

 

 

2016

 

2016

 

2015

Pre-65

 

 

 

 

 

 

 

 

 

7.50%

 

7.75%

 

8.00%

Post-65

 

 

 

 

 

 

 

 

 

8.40%

 

6.85%

 

7.00%

The effect of a one-percentage point increase or decrease in assumed healthcare cost trend rates on the total service and interest components and the post-retirement benefit obligations would be less than $0.1 million.

-62-


 

 

Expected Return on Assets and Investment Strategy

The Company has assumed an average long-term expected return on the SpartanNash Company Pension Plan assets of 4.83% as of December 31, 2016. The expected return assumption was modeled by third-party investment portfolio managers, based on asset allocations and the expected return and risk components of the various asset classes in the portfolio. Determining projected stock and bond returns and then applying these returns to the target asset allocations of the plan assets developed the expected return. Equity returns were based primarily on historical returns of the S&P 500 Index. Fixed-income projected returns were based primarily on historical returns for the broad U.S. bond market. This overall return assumption is believed to be reasonable over a longer-term period that is consistent with the liabilities.

The Company has an investment policy for the SpartanNash Company Pension Plan with a long-term asset allocation mix designed to meet the long-term retirement obligations by investing in equity, fixed income and other securities to cover cash flow requirements of the plan and minimize long-term costs. The asset allocation mix is reviewed periodically and, on a regular basis, actual allocations are rebalanced to approximate the prevailing targets. The following table summarizes both the targeted allocation of the SpartanNash Company Pension Plan’s weighted-average asset allocation by asset category and actual allocations as of December 31, 2016 and January 2, 2016:

 

 

Target (a)

 

Actual

 

December 31,

 

December 31,

 

January 2,

Asset Category

2016

 

2016

 

2016

Equity securities

 

20.0

 

%

 

 

20.8

 

%

 

 

30.6

 

%

Fixed income

 

80.0

 

 

 

 

76.9

 

 

 

 

68.5

 

 

Cash equivalents

 

 

 

 

 

2.3

 

 

 

 

0.9

 

 

Total

 

100.0

 

%

 

 

100.0

 

%

 

 

100.0

 

%

 

(a)

At the end of fiscal 2015, the Company updated the target allocation of the SpartanNash Company Pension Plan investment portfolio to reduce its return-seeking equity securities to approximate a 20% allocation. The Company continually evaluated financial market conditions and prudently transitioned the pension plan assets to approximate the revised target allocation as of December 31, 2016.

 

The investment policy emphasizes the following key objectives: (1) provide benefit security to participants by maximizing the return on plan assets at an acceptable risk level (2) maintain adequate liquidity for current benefit payments (3) avoid unexpected increases in pension expense and (4) within the scope of the above objectives, minimize long term funding to the plan.

The fair values of the pension plan assets at December 31, 2016 and January 2, 2016, by asset category, are as follows:

 

 

 

 

 

Fair Value of Assets as of December 31, 2016

 

(In thousands)

 

 

 

Total

 

 

Level 1

 

 

Level 2

 

 

Level 3

 

 

NAV (a)

 

Mutual funds

 

 

 

$

 

14,178

 

 

$

 

 

 

$

 

 

 

$

 

 

 

$

 

14,178

 

Pooled funds

 

 

 

 

 

50,506

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

50,506

 

Money market fund

 

 

 

 

 

1,872

 

 

 

 

 

 

 

 

1,872

 

 

 

 

 

 

 

 

 

Guaranteed annuity contract

 

 

 

 

 

15,426

 

 

 

 

 

 

 

 

 

 

 

 

15,426

 

 

 

 

 

Total fair value

 

 

 

$

 

81,982

 

 

$

 

 

 

$

 

1,872

 

 

$

 

15,426

 

 

$

 

64,684

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Value of Assets as of January 2, 2016

 

(In thousands)

 

 

 

Total

 

 

Level 1

 

 

Level 2

 

 

Level 3

 

 

NAV (a)

 

Mutual funds

 

 

 

$

 

9,401

 

 

$

 

 

 

$

 

 

 

$

 

 

 

$

 

9,401

 

Pooled funds

 

 

 

 

 

58,355

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

58,355

 

Money market fund

 

 

 

 

 

799

 

 

 

 

 

 

 

 

799

 

 

 

 

 

 

 

 

 

Guaranteed annuity contract

 

 

 

 

 

16,198

 

 

 

 

 

 

 

 

 

 

 

 

16,198

 

 

 

 

 

Total fair value

 

 

 

$

 

84,753

 

 

$

 

 

 

$

 

799

 

 

$

 

16,198

 

 

$

 

67,756

 

-63-


 

 

 

 

(a)

Assets are measured at the net asset value (“NAV”) (or its equivalent) on a non-active market, and therefore, have not been classified in the fair value hierarchy.

Level 3 assets consisted of the guaranteed annuity contracts. A reconciliation of the beginning and ending balances for Level 3 assets is as follows:

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2016

 

 

January 2, 2016

 

Balance at beginning of year

$

 

16,198

 

 

$

 

17,749

 

Purchases, sales, issuances and settlements, net

 

 

(1,733

)

 

 

 

(2,227

)

Interest income

 

 

631

 

 

 

 

680

 

Unrealized gains (losses)

 

 

330

 

 

 

 

(4

)

Balance at end of year

$

 

15,426

 

 

$

 

16,198

 

See Note 8 for a discussion of the levels of the fair value hierarchy. The assets’ fair value measurement level above is based on the lowest level of any input that is significant to the fair value measurement.

The following is a description of the valuation methods used for the plans’ assets measured at fair value in the above tables:

Cash & money market funds: The carrying value approximates fair value. Money market funds are valued on a daily basis at the NAV using the amortized cost of the securities held in the fund. Because amortized cost does not meet the criteria for an active market, money market funds are classified within Level 2 of the fair value hierarchy of ASC 820.

Mutual Funds: These investments are valued using the NAV as a practical expedient to estimate fair value and are not classified in the fair value hierarchy. The NAV is determined once a day after the closing of the exchange based upon the underlying assets in the fund, less the fund’s liabilities, expressed on a per-share basis. Mutual funds held by the SpartanNash Company Pension Plan are open end mutual funds that are registered with the Securities and Exchange Commission (“SEC”). These funds are required to publish their daily NAV and to transact at that price. The mutual funds held by the SpartanNash Company Pension Plan are therefore deemed to be actively traded.

Pooled Funds: The plan holds units of various Aon Hewitt Group Trust Funds offered through a private placement. The units are valued daily using the NAV as a practical expedient to estimate fair value. The NAV’s are based on the fair value of each fund’s underlying investments, and are not classified in the fair value hierarchy. The practical expedient is not used when it is determined to be probable that the investment will be sold for an amount different than the reported NAV.

Guaranteed Annuity Contracts: The guaranteed annuity contracts are immediate participation contracts held with insurance companies that act as custodian of the pension plans’ assets. The guaranteed annuity contracts are stated at contract value as determined by the custodians, which approximate fair values. The Company evaluates the general financial condition of the custodians as a component of validating whether the calculated contract value is an accurate approximation of fair value. The review of the general financial condition of the custodians is considered obtainable/observable through the review of readily available financial information the custodians are required to file with the SEC. The group annuity contracts are classified within Level 3 of the valuation hierarchy of ASC 820.

The methods described above may produce a fair value calculation that may not be indicative of net realizable value or reflective of future fair values. Furthermore, while the Company believes its valuations methods are appropriate and consistent with other market participants, the use of different methodologies or assumptions to determine the fair value of certain financial instruments could result in a different fair value measurement.

The Company does not expect to make any contributions to the SpartanNash Company Pension Plan in the fiscal year ending December 30, 2017. The Company expects to make contributions of $0.4 million to the SpartanNash Medical Plan in the fiscal year ending December 30, 2017.

The following estimated benefit payments are expected to be paid in the following fiscal years:

 

(In thousands)

2017

 

 

2018

 

 

2019

 

 

2020

 

 

2021

 

 

2022 to 2026

 

Pension benefits

$

 

8,875

 

 

$

 

8,174

 

 

$

 

7,740

 

 

$

 

7,242

 

 

$

 

7,361

 

 

$

 

27,705

 

Post-retirement medical benefits

 

 

412

 

 

 

 

453

 

 

 

 

494

 

 

 

 

530

 

 

 

 

562

 

 

 

 

3,199

 

-64-


 

 

 

Multi-Employer Health and Welfare Plans

In addition to the plans described above, the Company participates in the Michigan Conference of Teamsters and Ohio Conference of Teamsters Health and Welfare plans. The Company contributes to these multi-employer plans under the terms contained in existing collective bargaining agreements and in the amounts set forth within these agreements. The health and welfare plans provide medical, dental, pharmacy, vision, and other ancillary benefits to active associates and retirees, as determined by the trustees of the plan. The vast majority of the Company’s contributions benefit active associates, and as such, may not constitute contributions to a postretirement benefit plan. However, the Company is unable to separate contribution amounts for postretirement benefits from contribution amounts paid for active participants in the plan. These plans have a significant surplus of funds held in reserve in excess of claims incurred, and there is no potential withdrawal liability related to the Company’s participation in the plans. With respect to the Company’s participation in these plans, expense is recognized as contributions are funded. The Company contributed $14.3 million, $15.1 million and $14.3 million to these plans for fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Multi-Employer Pension Plan

The Company also participates in the Central States Southeast and Southwest Areas Pension Plan (“Central States Plan” or “the Plan”). The Company contributes to this multi-employer pension plan under the terms contained in existing collective bargaining agreements and in the amounts set forth within these agreements. With respect to the Company’s participation in the Central States Plan, expense is recognized as contributions are funded. The Company contributed $13.4 million, $12.9 million and $12.9 million to this plan for fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively. The risk of participating in a multi-employer pension plan is different from the risk associated with single-employer plans in the following respects:

 

a.

Assets contributed to the multi-employer plan by one employer may be used to provide benefits to associates of other participating employers.

 

b.

If a participating employer stops contributing to the plan, the unfunded obligations of the plan may be borne by the remaining participating employers.

 

c.

If a company chooses to stop participating in a multi-employer plan, makes market exits such as closing a distribution center without opening another one in the same locale, or otherwise has participation in the plan drop below certain levels, the company may be required to pay those plans an amount based on the underfunded status of the plan, referred to as a withdrawal liability.

The Company’s participation in the Central States Plan is outlined in the tables below, which provide additional information about the collective bargaining agreements associated with this multi-employer plan. Unless otherwise noted, the most recent Pension Protection Act (“PPA”) zone status available in 2016 and 2015 relates to the Plan’s two most recent fiscal year-ends. The zone status is based on information that the Company received from the Plan and is certified by each plan’s actuary. Among other factors, red zone status plans are generally less than 65% funded and are considered in critical status. The FIP/RP Status Pending/Implemented column indicates plans for which a financial improvement plan (“FIP”) or a rehabilitation plan (“RP”) is either pending or has been implemented by the trustees of each plan. On December 13, 2014, Congress passed the Multi-employer Pension Reform Act of 2014 (“MPRA”). The MPRA is intended to address funding shortfalls in both multi-employer pension plans and the Pension Benefit Guaranty Corporation. As the Plan’s application to suspend payments of pension benefits under the provisions of the MPRA was denied, the MPRA is unlikely to significantly impact the Plan. See Note 9 for further information regarding the Company’s participation in the Central States Plan.

 

 

 

 

 

 

 

 

 

 

 

 

 

Percentage of

 

 

2016 Company

 

 

Plan

 

Pension

 

FIP / RP

 

 

 

Associates under

 

 

Contributions

 

 

Month /

 

Protection Act

 

Status

 

Expiration Dates of

 

Collective

 

 

More Than 5%

EIN - Pension

 

Day End

 

Zone Status

 

Pending /

 

Collective Bargaining

 

Bargaining

 

 

of Total Plan

Plan Number

 

Date

 

2016

 

2015

 

Implemented

 

Agreements

 

Agreements

 

 

Contributions

36-6044243-001 (a)

 

12/31

 

Red

 

Red

 

Implemented

 

10/2017 to 9/2019

 

 

8%

 

 

No

-65-


 

 

 

 

(a)

SpartanNash is party to four collective-bargaining agreements that require contributions to the Central States Plan. These agreements cover warehouse personnel and drivers in Grand Rapids, Michigan; Bellefontaine, Ohio; and Lima, Ohio. In the last contract negotiation, the Agreement covering the Bellefontaine warehouse associates was consolidated into the General Merchandise Services (“GMS”) Agreement. The collective-bargaining agreement that covers warehouse personnel and drivers in the Grand Rapids, Michigan distribution center has no surcharges imposed while the agreements that cover warehouse personnel and drivers in the Bellefontaine, Ohio and Lima, Ohio distribution centers do have permanent surcharges imposed due to the failure to adopt the trustee recommended rehabilitation plan.

As of the date the financial statements were issued, Form 5500 was not available for the plan year ended in 2016.

 

 

Note 12 – Accumulated Other Comprehensive Income or Loss

Accumulated other comprehensive income or loss (“AOCI”) represents the cumulative balance of other comprehensive income (loss), net of tax, as of the end of the reporting period and relates to pension and other postretirement benefit obligation adjustments.

Changes in AOCI are as follows:

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Balance at beginning of the fiscal year, net of tax

$

 

(11,447

)

 

$

 

(11,655

)

 

$

 

(8,794

)

Other comprehensive loss before reclassifications

 

 

(643

)

 

 

 

(455

)

 

 

 

(8,195

)

Income tax benefit

 

 

236

 

 

 

 

114

 

 

 

 

3,138

 

Other comprehensive loss, net of tax, before reclassifications

 

 

(407

)

 

 

 

(341

)

 

 

 

(5,057

)

Amortization of amounts included in net periodic benefit cost (a)

 

 

657

 

 

 

 

884

 

 

 

 

3,410

 

Income tax expense (b)

 

 

(240

)

 

 

 

(335

)

 

 

 

(1,214

)

Amounts reclassified out of AOCI, net of tax

 

 

417

 

 

 

 

549

 

 

 

 

2,196

 

Other comprehensive income (loss), net of tax

 

 

10

 

 

 

 

208

 

 

 

 

(2,861

)

Balance at end of the fiscal year, net of tax

$

 

(11,437

)

 

$

 

(11,447

)

 

$

 

(11,655

)

 

(a)

Reclassified from AOCI into Selling, general and administrative expense. Amortization of amounts included in net periodic benefit cost include amortization of prior service cost and amortization of net actuarial loss.

 

(b)

Reclassified from AOCI into Income taxes expense.

 

 

Note 13 – Taxes on Income

The income tax provision for continuing operations is made up of the following components:

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Current income tax expense:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Federal

$

 

22,936

 

 

$

 

31,437

 

 

$

 

27,015

 

State

 

 

3,210

 

 

 

 

3,144

 

 

 

 

777

 

Total current income tax expense

 

 

26,146

 

 

 

 

34,581

 

 

 

 

27,792

 

Deferred income tax expense (benefit):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Federal

 

 

6,509

 

 

 

 

3,255

 

 

 

 

3,362

 

State

 

 

252

 

 

 

 

(743

)

 

 

 

175

 

Total deferred income tax expense

 

 

6,761

 

 

 

 

2,512

 

 

 

 

3,537

 

Total income tax expense

$

 

32,907

 

 

$

 

37,093

 

 

$

 

31,329

 

-66-


 

 

 

A reconciliation of the statutory federal rate to the effective rate is as follows:

 

 

December 31,

 

January 2,

 

January 3,

 

2016

 

2016

 

2015

 

(52 Weeks)

 

(52 Weeks)

 

(53 Weeks)

Federal statutory income tax rate

 

35.0

 

%

 

 

35.0

 

%

 

 

35.0

 

%

State taxes, net of federal income tax benefit

 

2.5

 

 

 

 

1.6

 

 

 

 

2.9

 

 

Charitable product donations

 

(0.5

)

 

 

 

(0.3

)

 

 

 

(0.4

)

 

Changes in tax contingencies

 

 

 

 

 

(0.1

)

 

 

 

(2.7

)

 

Domestic production activities deduction

 

(0.3

)

 

 

 

(0.2

)

 

 

 

(0.2

)

 

Non-deductible expenses

 

0.5

 

 

 

 

0.4

 

 

 

 

0.9

 

 

Other, net

 

(0.6

)

 

 

 

0.6

 

 

 

 

(0.9

)

 

Effective income tax rate

 

36.6

 

%

 

 

37.0

 

%

 

 

34.6

 

%

Deferred tax assets and liabilities resulting from temporary differences as of December 31, 2016 and January 2, 2016 are as follows:

 

 

 

 

 

December 31,

 

 

January 2,

 

(In thousands)

 

 

 

2016

 

 

2016

 

Deferred tax assets:

 

 

 

 

 

 

 

 

 

 

 

 

Employee benefits

 

 

 

$

 

30,626

 

 

$

 

29,218

 

Accrued workers' compensation

 

 

 

 

 

2,624

 

 

 

 

2,712

 

Allowance for doubtful accounts

 

 

 

 

 

2,945

 

 

 

 

3,341

 

Intangible assets

 

 

 

 

 

2,060

 

 

 

 

326

 

Restructuring

 

 

 

 

 

6,087

 

 

 

 

732

 

Deferred revenue

 

 

 

 

 

2,990

 

 

 

 

2,047

 

Accrued rent

 

 

 

 

 

3,555

 

 

 

 

3,884

 

Accrued insurance

 

 

 

 

 

1,279

 

 

 

 

866

 

All other

 

 

 

 

 

4,417

 

 

 

 

6,804

 

Total deferred tax assets

 

 

 

 

 

56,583

 

 

 

 

49,930

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deferred tax liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

Property and equipment

 

 

 

 

 

52,401

 

 

 

 

43,201

 

Inventory

 

 

 

 

 

46,332

 

 

 

 

48,120

 

Goodwill

 

 

 

 

 

79,904

 

 

 

 

62,005

 

Leases (a)

 

 

 

 

 

 

 

 

 

12,279

 

All other

 

 

 

 

 

1,189

 

 

 

 

925

 

Total deferred tax liabilities

 

 

 

 

 

179,826

 

 

 

 

166,530

 

Net deferred tax liability

 

 

 

$

 

123,243

 

 

$

 

116,600

 

 

(a)

Beginning in fiscal 2016, lease related items are classified together with the associated property and equipment or intangible asset items.

-67-


 

 

A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:

 

 

 

 

 

December 31,

 

 

January 2,

 

(In thousands)

 

 

 

2016

 

 

2016

 

Balance at beginning of year

 

 

 

$

 

2,211

 

 

$

 

2,179

 

Gross increases - tax positions taken in prior years

 

 

 

 

 

184

 

 

 

 

186

 

Gross decreases - tax positions taken in prior years

 

 

 

 

 

(2

)

 

 

 

(105

)

Gross increases - tax positions taken in current year

 

 

 

 

 

718

 

 

 

 

660

 

Lapse of statute of limitations

 

 

 

 

 

(742

)

 

 

 

(709

)

Balance at end of year

 

 

 

$

 

2,369

 

 

$

 

2,211

 

Unrecognized tax benefits of $0.9 million are set to expire prior to December 30, 2017. The Company recognizes interest and penalties accrued related to unrecognized tax benefits in income tax expense. The amount of unrecognized tax benefits, including interest and penalties, that would reduce the Company’s effective income tax rate if recognized in future periods was $1.3 million as of December 31, 2016.

SpartanNash or its subsidiaries file income tax returns with federal, state and local tax authorities within the United States. With few exceptions, SpartanNash is no longer subject to U.S. federal, state or local examinations by tax authorities for fiscal years before March 31, 2012. Income tax returns related to the former Nash-Finch Company, with few exceptions, are no longer subject to U.S. federal, state or local examinations by tax authorities for the fiscal year ended December 29, 2012 and earlier.

 

 

Note 14 – Stock-Based Compensation

The Company has a shareholder-approved 10-year stock incentive plan covering 2,500,000 shares of SpartanNash’s common stock. The SpartanNash Company Stock Incentive Plan of 2015 (the “2015 Plan”) provides for the granting of stock options, stock appreciation rights, restricted stock, restricted stock units, stock awards, and other stock-based and stock-related awards to directors, officers and other key associates. Shares issued, as a result of stock option exercises, will be funded with the issuance of new shares. Holders of restricted stock and stock awards are entitled to participate in cash dividends and dividend equivalents. As of December 31, 2016, a total of 2,193,985 shares remained unissued under the 2015 Plan.

All outstanding unvested stock options and unvested shares of restricted stock vest immediately upon a “Change in Control,” as defined by the Plan. The Company has not issued any stock options since 2009 and all outstanding options are vested.

The following table summarizes stock option activity for the three years ended December 31, 2016:

 

 

 

 

 

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

 

 

 

 

 

 

Weighted

 

 

Average

 

 

 

 

 

 

 

 

 

 

 

 

Average

 

 

Remaining

 

 

Aggregate

 

 

Shares

 

 

Exercise

 

 

Contractual

 

 

Intrinsic Value

 

 

Under Options

 

 

Price

 

 

Life Years

 

 

(in thousands)

 

Options outstanding and exercisable at December 28, 2013

 

 

586,766

 

 

$

 

19.30

 

 

 

 

4.01

 

 

$

 

2,965

 

Exercised

 

 

(88,152

)

 

 

 

12.68

 

 

 

 

 

 

 

 

 

869

 

Cancelled/Forfeited

 

 

(4,131

)

 

 

 

3.25

 

 

 

 

 

 

 

 

 

 

 

Options outstanding and exercisable at January 3, 2015

 

 

494,483

 

 

 

 

20.61

 

 

 

 

3.30

 

 

 

 

2,772

 

Exercised

 

 

(185,627

)

 

 

 

19.72

 

 

 

 

 

 

 

 

 

1,543

 

Cancelled/Forfeited

 

 

(63

)

 

 

 

11.50

 

 

 

 

 

 

 

 

 

 

 

Options outstanding and exercisable at January 2, 2016

 

 

308,793

 

 

 

 

21.15

 

 

 

 

2.46

 

 

 

 

773

 

Exercised

 

 

(107,338

)

 

 

 

23.46

 

 

 

 

 

 

 

 

 

1,043

 

Cancelled/Forfeited

 

 

(938

)

 

 

 

14.36

 

 

 

 

 

 

 

 

 

 

 

Options outstanding and exercisable at December 31, 2016

 

 

200,517

 

 

$

 

19.94

 

 

 

 

1.65

 

 

$

 

3,929

 

-68-


 

 

 

Cash received from option exercises was $2.5 million, $3.7 million and $1.1 million during fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

Restricted shares awarded to associates vest ratably over a four-year service period and over one year for grants to the Board of Directors. Awards are subject to forfeiture and certain transfer restrictions prior to vesting. All shares fully vest upon a “Change in Control,” as defined by the Plan. Compensation expense, representing the fair value of the stock at the measurement date of the award, is recognized over the required service period.  

The following table summarizes restricted stock activity for fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted Average

 

 

 

 

 

 

 

 

 

 

 

 

 

Grant-Date

 

 

 

 

 

 

 

 

Shares

 

 

Fair Value

 

Outstanding and nonvested at December 28, 2013

 

 

 

 

 

 

 

 

518,835

 

 

$

 

23.56

 

Granted

 

 

 

 

 

 

 

 

317,827

 

 

 

 

22.63

 

Vested

 

 

 

 

 

 

 

 

(219,894

)

 

 

 

23.56

 

Forfeited

 

 

 

 

 

 

 

 

(16,115

)

 

 

 

23.03

 

Outstanding and nonvested at January 3, 2015

 

 

 

 

 

 

 

 

600,653

 

 

 

 

23.08

 

Granted

 

 

 

 

 

 

 

 

314,595

 

 

 

 

26.59

 

Vested

 

 

 

 

 

 

 

 

(265,737

)

 

 

 

23.19

 

Forfeited

 

 

 

 

 

 

 

 

(11,956

)

 

 

 

23.85

 

Outstanding and nonvested at January 2, 2016

 

 

 

 

 

 

 

 

637,555

 

 

 

 

24.75

 

Granted

 

 

 

 

 

 

 

 

314,944

 

 

 

 

28.34

 

Vested

 

 

 

 

 

 

 

 

(255,156

)

 

 

 

24.56

 

Forfeited

 

 

 

 

 

 

 

 

(37,200

)

 

 

 

25.80

 

Outstanding and nonvested at December 31, 2016

 

 

 

 

 

 

 

 

660,143

 

 

$

 

26.48

 

The total fair value of shares vested during fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015 was $6.6 million, $7.6 million and $4.7 million, respectively.

Stock-based compensation expense recognized and included in “Selling, general and administrative expenses” in the consolidated statements of earnings, and related tax benefits were as follows:

 

 

 

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

 

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

 

 

 

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Restricted stock

 

 

 

$

 

7,936

 

 

$

 

7,240

 

 

$

 

6,939

 

Tax benefits

 

 

 

 

 

(2,976

)

 

 

 

(2,758

)

 

 

 

(2,632

)

Stock-based compensation expense, net of tax

 

 

 

$

 

4,960

 

 

$

 

4,482

 

 

$

 

4,307

 

As of December 31, 2016, total unrecognized compensation cost related to non-vested share-based awards granted under the stock incentive plans was $5.8 million for restricted stock. The remaining compensation costs not yet recognized are expected to be recognized over a weighted average period of 2.3 years for restricted stock. All compensation costs related to stock options have been recognized.

The Company recognized tax deductions of $8.0 million, $9.5 million and $5.9 million related to the exercise of stock options and the vesting of restricted stock during fiscal years ended December 31, 2016, January 2, 2016 and January 3, 2015, respectively.

The Company has a stock bonus plan covering 300,000 shares of SpartanNash common stock. Under the provisions of this plan, certain officers and key associates may elect to receive a portion of their annual bonus in common stock rather than cash and will be granted additional shares of common stock worth 20% of the portion of the bonus they elect to receive in stock. After the shares are issued, the holder is not able to sell or otherwise transfer the shares until the end of the holding period, which is currently 24 months. Compensation expense is recorded based upon the market price of the stock as of the measurement date. A total of 21,169 shares remained unissued under the stock bonus plan at December 31, 2016.

-69-


 

 

The Company also has an associate stock purchas e plan covering 200,000 shares of SpartanNash common stock. The plan provides that associates of the Company may purchase shares at 95% of the fair market value. The associate stock purchase plan was suspended during the 39-week period ended December 28, 2 013 in conjunction with the merger with Nash-Finch and was reinstated in April 2014.As of December 31, 2016, a total of 70,960 shares had been issued under the plan.

 

 

 

Note 15 – Concentration of Credit Risk

The Company provides financial assistance in the form of loans to certain independent retailers for inventories, store fixtures and equipment and store improvements. Loans are generally secured by liens on real estate, inventory and/or equipment, personal guarantees and other types of collateral, and are generally repayable over a period of five to seven years. The Company establishes allowances for doubtful accounts based upon periodic assessments of the credit risk of specific customers, collateral value, historical trends and other information. The Company believes that adequate provisions have been recorded for any doubtful accounts. In addition, the Company may guarantee debt and lease obligations of independent retailers. In the event these retailers are unable to meet their debt service payments or otherwise experience an event of default, the Company would be unconditionally liable for the outstanding balance of their debt and lease obligations, which would be due in accordance with the underlying agreements.

In the ordinary course of business, the Company advances funds to certain independent retailers which are earned by the retailers primarily through achieving specified purchase volume requirements, as outlined in their supply agreements with the Company, or in limited instances, for remaining a SpartanNash customer for a specified time period. These advances must be repaid if the purchase volume requirements are not met or if the retailer no longer remains a customer for the specified time period. The Company has an unearned advanced amount to one independent retailer for an amount representing approximately two percent of the Company’s total assets as of December 31, 2016. The Company’s collateral related to this advance is a security interest in the business assets of the independent retailer’s stores. However, in the event of default, the Company may be unable to recover the unearned portion of the funds advanced to this independent retailer. Based on the uncertainty associated with estimating the value of the collateral and the risks related to taking possession of and divesting the secured business assets, the Company cannot reasonably estimate the amount of advanced funds, if any that may be considered at risk. Accordingly, the Company has not established a related reserve for the unearned portion of advanced funds.

As of December 31, 2016, the Company has guaranteed bank debt for one independent retailer in the amount of $1.7 million. This guarantee, which is secured by certain business assets and personal guarantees of the retailer, represents the maximum undiscounted payments the Company would be required to make in the event of default. The Company believes this independent retailer will be able to perform under the loan agreement and that no payments will be required and no loss will be incurred under the guarantee. The fair value of the obligation assumed under the guarantee is not material. In the ordinary course of business, the Company also subleases and assigns various leases to third parties. As of December 31, 2016, the Company estimates the present value of its maximum potential obligations for subleases and assigned leases to be approximately $11.3 million and $15.6 million, respectively.

 

 

Note 16 – Supplemental Cash Flow Information

Supplemental cash flow information is as follows:

 

 

December 31,

 

 

January 2,

 

 

January 3,

 

 

2016

 

 

2016

 

 

2015

 

(In thousands)

(52 Weeks)

 

 

(52 Weeks)

 

 

(53 Weeks)

 

Non-cash financing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Issuance of note payable on purchase of assets

$

 

 

 

$

 

2,000

 

 

$

 

 

Recognition of capital lease obligations

 

 

3,536

 

 

 

 

3,236

 

 

 

 

2,423

 

Derecognition of capital lease obligations

 

 

(6,068

)

 

 

 

 

 

 

 

 

Deferred gain on derecognition of capital lease obligations

 

 

3,052

 

 

 

 

 

 

 

 

 

Non-cash investing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditures included in accounts payable

 

 

5,465

 

 

 

 

8,896

 

 

 

 

3,370

 

Receipt of notes receivable on sale of assets

 

 

 

 

 

 

4,531

 

 

 

 

 

Capital lease asset additions

 

 

3,536

 

 

 

 

3,236

 

 

 

 

2,423

 

Capital lease asset disposals

 

 

(3,016

)

 

 

 

 

 

 

 

 

Other supplemental cash flow information:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash paid for interest

 

 

16,184

 

 

 

 

19,178

 

 

 

 

22,990

 

Cash paid for income taxes

 

 

35,836

 

 

 

 

23,531

 

 

 

 

27,429

 

 

 

-70-


 

 

Note 17 – Reporting Segment Information

SpartanNash sells and distributes products that are typically found in supermarkets. The operating segments reflect the manner in which the business is managed and how the Company allocates resources and assesses performance internally. The Company’s chief operating decision maker is the Chief Executive Officer, who determines the allocation of resources and, through a regular review of financial information, assesses the performance of the operating segments. The business is classified by management into three reportable segments: Food Distribution, Military and Retail. These reportable segments are three distinct businesses, each with a different customer base, management structure, and basis for determining budgets, forecasts, and executive compensation. The Company reviews its reportable segments on an annual basis, or more frequently if events or circumstances indicate a change in reportable segments has occurred.

The Company’s Food Distribution segment, consisting of 11 distribution centers, one of which is shared with the Military segment, supplies grocery products, including dry groceries, produce, dairy products, meat, delicatessen items, bakery goods, frozen food, seafood, floral products, general merchandise, beverages, tobacco products, health and beauty care products and pharmacy to a diverse group of independent retailers, select national retailers, food service distributors and the Company’s corporate owned retail stores. Sales to independent retailers and inter-segment sales are recorded based upon both a “cost plus” model and a “variable mark-up” model, which vary by commodity and servicing distribution center. To supply its wholesale customers, the Company operates a fleet of tractors, conventional trailers and refrigerated trailers.

The Military segment contracts with manufacturers to distribute a wide variety of grocery products primarily to U.S. military commissaries and exchanges from its 7 distribution centers, one of which is shared with the Food Distribution segment. The contracts typically specify the commissaries and exchanges to supply on behalf of the manufacturer, the manufacturer’s products to be supplied, service and delivery requirements and pricing and payment terms .

The Retail segment operated 157 corporate owned retail stores and 30 fuel centers in the Midwest and Great Lakes regions as of December 31, 2016. The Company’s retail stores typically offer dry groceries, produce, dairy products, meat, delicatessen items, bakery goods, frozen food, seafood, floral products, general merchandise, beverages, tobacco products and health and beauty care products. The Company also offered pharmacy services in 90 of its corporate owned retail stores as of December 31, 2016.

Identifiable assets represent total assets directly associated with the reporting segments. Eliminations in assets identified to segments include intercompany receivables, payables and investments.

-71-


 

 

The following tables set forth information about the Company by reporting segment:

 

 

Food

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(In thousands)

Distribution

 

 

Military

 

 

Retail

 

 

Total

 

Year Ended December 31, 2016 (52 Weeks):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales to external customers

$

 

3,454,541

 

 

$

 

2,197,014

 

 

$

 

2,083,045

 

 

$

 

7,734,600

 

Inter-segment sales

 

 

918,095

 

 

 

 

 

 

 

 

 

 

 

 

918,095

 

Merger integration and acquisition expenses

 

 

3,703

 

 

 

 

1

 

 

 

 

3,255

 

 

 

 

6,959

 

Depreciation and amortization

 

 

21,397

 

 

 

 

11,484

 

 

 

 

44,365

 

 

 

 

77,246

 

Operating earnings

 

 

85,093

 

 

 

 

12,160

 

 

 

 

11,514

 

 

 

 

108,767

 

Capital expenditures

 

 

19,075

 

 

 

 

6,447

 

 

 

 

47,907

 

 

 

 

73,429

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended January 2, 2016 (52 weeks):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales to external customers

$

 

3,305,094

 

 

$

 

2,207,161

 

 

$

 

2,139,718

 

 

$

 

7,651,973

 

Inter-segment sales

 

 

973,512

 

 

 

 

 

 

 

 

 

 

 

 

973,512

 

Merger integration and acquisition expenses

 

 

2,037

 

 

 

 

 

 

 

 

6,396

 

 

 

 

8,433

 

Depreciation and amortization

 

 

26,127

 

 

 

 

12,081

 

 

 

 

45,126

 

 

 

 

83,334

 

Operating earnings

 

 

78,841

 

 

 

 

17,059

 

 

 

 

26,975

 

 

 

 

122,875

 

Capital expenditures

 

 

17,967

 

 

 

 

3,768

 

 

 

 

57,659

 

 

 

 

79,394

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended January 3, 2015 (53 Weeks):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales to external customers

$

 

3,356,331

 

 

$

 

2,275,512

 

 

$

 

2,284,219

 

 

$

 

7,916,062

 

Inter-segment sales

 

 

1,005,844

 

 

 

 

 

 

 

 

 

 

 

 

1,005,844

 

Merger integration and acquisition expenses

 

 

12,644

 

 

 

 

27

 

 

 

 

4

 

 

 

 

12,675

 

Depreciation and amortization

 

 

29,816

 

 

 

 

11,350

 

 

 

 

45,828

 

 

 

 

86,994

 

Operating earnings

 

 

54,802

 

 

 

 

21,721

 

 

 

 

38,323

 

 

 

 

114,846

 

Capital expenditures

 

 

31,953

 

 

 

 

15,088

 

 

 

 

42,971

 

 

 

 

90,012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

 

January 2,

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

2016

 

 

2016

 

Total Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Food Distribution

 

 

 

 

 

 

 

 

 

 

$

 

776,725

 

 

$

 

750,277

 

Military

 

 

 

 

 

 

 

 

 

 

 

 

395,737

 

 

 

 

415,140

 

Retail

 

 

 

 

 

 

 

 

 

 

 

 

754,625

 

 

 

 

747,359

 

Discontinued operations

 

 

 

 

 

 

 

 

 

 

 

 

3,249

 

 

 

 

4,487

 

Total

 

 

 

 

 

 

 

 

 

 

$

 

1,930,336

 

 

$

 

1,917,263

 

 

The Company offers a wide variety of grocery products, general merchandise and health and beauty care, pharmacy, fuel, and other items and services. The following table presents sales by type of similar product and services:

 

 

December 31, 2016

 

January 2, 2016

 

January 3, 2015

(In thousands, except percentages)

(52 Weeks)

 

(52 Weeks)

 

(53 Weeks)

Non-perishables (a)

$

 

4,908,142

 

 

 

63.5

 

%

 

$

 

4,845,763

 

 

 

63.3

 

%

 

$

 

4,998,895

 

 

 

63.1

 

%

Perishables (b)

 

 

2,359,829

 

 

 

30.5

 

 

 

 

 

2,373,829

 

 

 

31.0

 

 

 

 

 

2,449,562

 

 

 

31.0

 

 

Pharmacy

 

 

356,010

 

 

 

4.6

 

 

 

 

 

310,377

 

 

 

4.1

 

 

 

 

 

289,494

 

 

 

3.7

 

 

Fuel (c)

 

 

110,619

 

 

 

1.4

 

 

 

 

 

122,004

 

 

 

1.6

 

 

 

 

 

178,111

 

 

 

2.2

 

 

Consolidated net sales

$

 

7,734,600

 

 

 

100.0

 

%

 

$

 

7,651,973

 

 

 

100.0

 

%

 

$

 

7,916,062

 

 

 

100.0

 

%

 

(a)

Consists primarily of general merchandise, dry groceries, beverages, health and beauty care products, tobacco products and frozen foods.

 

(b)

Consists primarily of produce, dairy, meat, bakery goods, delicatessen items, floral products and seafood.

 

(c)

Fuel sales are specific to the Retail segment only.

 

 

-72-


 

 

Note 18- Quarterly Financial Information (Unaudited)

Earnings per share amounts for each quarter are required to be computed independently and may not equal the amount computed for the total year.

 

 

Year Ended December 31, 2016

 

 

Full Year

 

 

4th Quarter

 

 

3rd Quarter

 

 

2nd Quarter

 

 

1st Quarter

 

(In thousands, except per share amounts)

(52 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(16 Weeks)

 

Net sales

$

 

7,734,600

 

 

$

 

1,828,183

 

 

$

 

1,800,085

 

 

$

 

1,827,562

 

 

$

 

2,278,770

 

Gross profit

 

 

1,111,494

 

 

 

 

259,258

 

 

 

 

255,295

 

 

 

 

262,699

 

 

 

 

334,242

 

Merger integration and acquisition

 

 

6,959

 

 

 

 

2,722

 

 

 

 

2,427

 

 

 

 

913

 

 

 

 

897

 

Restructuring charges and asset impairment

 

 

32,116

 

 

 

 

8,402

 

 

 

 

2,662

 

 

 

 

5,748

 

 

 

 

15,304

 

Earnings before income taxes and discontinued operations

 

 

89,963

 

 

 

 

20,079

 

 

 

 

25,594

 

 

 

 

28,303

 

 

 

 

15,987

 

Earnings from continuing operations

 

 

57,056

 

 

 

 

12,806

 

 

 

 

16,730

 

 

 

 

17,560

 

 

 

 

9,960

 

(Loss) earnings from discontinued operations, net of taxes

 

 

(228

)

 

 

 

39

 

 

 

 

(82

)

 

 

 

(76

)

 

 

 

(109

)

Net earnings

$

 

56,828

 

 

$

 

12,845

 

 

$

 

16,648

 

 

$

 

17,484

 

 

$

 

9,851

 

Earnings from continuing operations per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

$

 

1.52

 

 

$

 

0.34

 

 

$

 

0.45

 

 

$

 

0.47

 

 

$

 

0.27

 

Diluted

 

 

1.52

 

 

 

 

0.34

 

 

 

 

0.45

 

 

 

 

0.47

 

 

 

 

0.27

 

Net earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

$

 

1.52

 

 

$

 

0.34

 

 

$

 

0.44

 

 

$

 

0.47

 

 

$

 

0.26

 

Diluted

 

 

1.51

 

 

 

 

0.34

 

 

 

 

0.44

 

 

 

 

0.47

 

 

 

 

0.26

 

Dividends

$

 

22,496

 

 

$

 

5,623

 

 

$

 

5,620

 

 

$

 

5,621

 

 

$

 

5,632

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended January 2, 2016

 

 

Full Year

 

 

4th Quarter

 

 

3rd Quarter

 

 

2nd Quarter

 

 

1st Quarter

 

(In thousands, except per share amounts)

(52 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(16 Weeks)

 

Net sales

$

 

7,651,973

 

 

$

 

1,768,025

 

 

$

 

1,775,401

 

 

$

 

1,795,864

 

 

$

 

2,312,683

 

Gross profit

 

 

1,115,682

 

 

 

 

258,345

 

 

 

 

259,049

 

 

 

 

262,042

 

 

 

 

336,246

 

Merger integration and acquisition

 

 

8,433

 

 

 

 

1,181

 

 

 

 

4,417

 

 

 

 

151

 

 

 

 

2,684

 

Restructuring charges (gains) and asset impairment

 

 

8,802

 

 

 

 

1,040

 

 

 

 

760

 

 

 

 

(336

)

 

 

 

7,338

 

Earnings before income taxes and discontinued operations

 

 

100,259

 

 

 

 

26,813

 

 

 

 

24,389

 

 

 

 

31,926

 

 

 

 

17,131

 

Earnings from continuing operations

 

 

63,166

 

 

 

 

17,164

 

 

 

 

15,248

 

 

 

 

20,307

 

 

 

 

10,447

 

(Loss) earnings from discontinued operations, net of taxes

 

 

(456

)

 

 

 

(435

)

 

 

 

145

 

 

 

 

(46

)

 

 

 

(120

)

Net earnings

$

 

62,710

 

 

$

 

16,729

 

 

$

 

15,393

 

 

$

 

20,261

 

 

$

 

10,327

 

Earnings from continuing operations per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

$

 

1.68

 

 

$

 

0.46

 

 

$

 

0.41

 

 

$

 

0.54

 

 

$

 

0.28

 

Diluted

 

 

1.67

 

 

 

 

0.46

 

 

 

 

0.40

 

 

 

 

0.54

 

 

 

 

0.28

 

Net earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

$

 

1.67

 

 

$

 

0.44

 

 

$

 

0.41

 

 

$

 

0.54

 

 

$

 

0.27

 

Diluted

 

 

1.66

 

 

 

 

0.44

 

 

 

 

0.41

 

 

 

 

0.54

 

 

 

 

0.27

 

Dividends

$

 

20,299

 

 

$

 

5,076

 

 

$

 

5,072

 

 

$

 

5,059

 

 

$

 

5,092

 

 

 

 

 

-73-


 

 

Note 19- Subsequent Events

On January 6, 2017, the Company acquired certain assets and assumed certain liabilities of Caito Foods Service (“Caito”) and Blue Ribbon Transport (“BRT”) for $217.6 million in cash, in addition to reimbursing Caito for certain transaction costs and providing certain earn-out opportunities that have the potential to pay the sellers an additional $27.4 million, collectively, if the business achieves certain performance targets. If certain performance targets are not met in the first year after acquisition, the Company will be reimbursed a portion of the initial purchase price at an amount not to exceed the sum of: a) $15.0 million, representing the funds paid into escrow, and b) any earn-out opportunities earned by the sellers. The reduction in purchase price, if applicable, will first be applied to funds paid into escrow and then as an offset against and a reduction to any payments owed on the various earn-out opportunities. The acquisition was funded with proceeds from the Company’s Credit Agreement (Note 7).

Founded in Indianapolis in 1965, Caito Foods Service is a leading supplier of fresh fruits and vegetables as well as value-added meal solutions to grocery retailers and food service distributors across 22 states in the Southeast, Midwest and Eastern United States. Through its affiliate, Blue Ribbon Transport, the company also offers temperature-controlled distribution and logistics services throughout North America. Caito and BRT service customers from facilities in Indiana, Ohio and Florida. Caito also has a central fresh cut fruit and vegetable facility in Indianapolis and a recently completed new 118,000 square foot Fresh Kitchen facility, also in Indianapolis. The $32 million Fresh Kitchen will process, cook, and package fresh protein-based foods and complete meals, with the facility expected to commence production in the first half of fiscal 2017. The Company acquired Caito and BRT to strengthen its fresh product offerings to its existing customer base and to expand into fast-growing, value-added services, such as freshly-prepared centerplate and side dish categories.

The acquired assets and assumed liabilities were recorded at their estimated fair values as of the acquisition date and were based on preliminary estimates. These estimates are subject to revision upon the finalization of the valuations of the acquired real estate and intangible assets. Any adjustments will be made prior to January 5, 2018. The excess of the purchase price over the fair value of net assets acquired, preliminarily estimated at $46.0 million, will be recorded as goodwill in the consolidated balance sheet and allocated to the Food Distribution segment. The goodwill recognized is attributable primarily to expected synergies and the assembled workforce of Caito and BRT. The Company expects that all goodwill attributable to the acquisition will be deductible for tax purposes.

 


-74-


 

 

Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

Not applicable.

 

 

Item 9A. Controls and Procedures

Disclosure Controls and Procedures

An evaluation of the effectiveness of the design and operation of SpartanNash Company’s disclosure controls and procedures (as currently defined in Rule 13a-15(e) under the Securities Exchange Act of 1934) was performed as of December 31, 2016 (the “Evaluation Date”). This evaluation was performed under the supervision and with the participation of SpartanNash Company’s management, including its Chief Executive Officer (“CEO”), Chief Financial Officer (“CFO”) and Chief Accounting Officer (“CAO”). As of the Evaluation Date, SpartanNash Company’s management, including the CEO, CFO and CAO, concluded that SpartanNash’s disclosure controls and procedures were effective as of the Evaluation Date to ensure that material information required to be disclosed in the reports that the Company files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified by the Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports that the Company files or submits under the Securities Exchange Act of 1934 is accumulated and communicated to management, including its principal executive and principal financial officers as appropriate to allow for timely decisions regarding required disclosure.

Management’s Report on Internal Control Over Financial Reporting

The management of SpartanNash Company, including its Chief Executive Officer, Chief Financial Officer and Chief Accounting Officer, is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934. SpartanNash Company’s internal controls were designed by, or under the supervision of, the Chief Executive Officer, Chief Financial Officer and Chief Accounting Officer, and effected by the Company’s Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of its financial reporting and the preparation and presentation of the consolidated financial statements for external purposes in accordance with accounting principles generally accepted in the United States and includes those policies and procedures that (1) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of SpartanNash Company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of SpartanNash Company are being made only in accordance with authorizations of management and directors of SpartanNash Company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of SpartanNash Company’s assets that could have a material effect on the financial statements.

Management of SpartanNash Company conducted an evaluation of the effectiveness of its internal controls over financial reporting based on the framework in Internal Control—Integrated Framework (2013)  issued by the Committee of Sponsoring Organizations of the Treadway Commission. This evaluation included review of the documentation of controls, evaluation of the design effectiveness of controls, testing of the operating effectiveness of controls and a conclusion on this evaluation. Through this evaluation, management did not identify any material weakness in the Company’s internal control. There are inherent limitations in the effectiveness of any system of internal control over financial reporting. Based on the evaluation, management has concluded that SpartanNash Company’s internal control over financial reporting was effective as of December 31, 2016.

The registered public accounting firm that audited the consolidated financial statements included in this Form 10-K Annual Report has issued an attestation report on the effectiveness of the Company’s internal control over financial reporting as of December 31, 2016 as stated in their report on the following page.

 

 

 

-75-


 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Shareholders of

SpartanNash Company and Subsidiaries

Grand Rapids, Michigan

 

We have audited the internal control over financial reporting of SpartanNash Company and subsidiaries (the “Company”) as of December 31, 2016, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Controls over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed by, or under the supervision of, the company’s principal executive and principal financial officers, or persons performing similar functions, and effected by the company’s board of directors, management, and other personnel 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. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2016, based on the criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements as of and for the year ended December 31, 2016 of the Company and our report dated March 1, 2017 expressed an unqualified opinion on those consolidated financial statements.

/s/ DELOITTE & TOUCHE LLP

Grand Rapids, Michigan

March 1, 2017

 

 

 

-76-


 

 

Changes in Internal Controls Over Financial Reporting

During the last fiscal quarter, there was no change in SpartanNash’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, SpartanNash’s internal control over financial reporting.

 

 

 

 

 

 

-77-


 

 

PART III

 

 

Item 10. Directors, Executive Officers and Corporate Governance

The information required by this item is here incorporated by reference from the sections titled “The Board of Directors,” “SpartanNash’s Executive Officers,” “Section 16(a) Beneficial Ownership Reporting Compliance,” “Corporate Governance Principles,” and “Transactions with Related Persons” in SpartanNash’s definitive proxy statement relating to its annual meeting of shareholders to be held in 2017.

 

 

Item 11. Executive Compensation

The information required by this item is here incorporated by reference from the sections entitled “Executive Compensation,” “Potential Payments Upon Termination or Change in Control,” “Compensation of Directors,” “Compensation Committee Interlocks and Insider Participation” and “Compensation Committee Report” in SpartanNash’s definitive proxy statement relating to its annual meeting of shareholders to be held in 2017.

 

 

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

The information required by this item is here incorporated by reference from the section titled “Ownership of SpartanNash Stock” in SpartanNash’s definitive proxy statement relating to its annual meeting of shareholders to be held in 2017.

The following table provides information about SpartanNash’s equity compensation plans regarding the number of securities to be issued under these plans, the weighted-average exercise prices of options outstanding under these plans and the number of securities available for future issuance as of the end of fiscal 2016.

EQUITY COMPENSATION PLANS

 

 

 

 

 

 

 

 

 

 

Number of securities remaining

 

 

Number of securities to

 

 

 

 

 

 

available for future issuance

 

 

be issued upon exercise

 

 

Weighted-average exercise

 

 

under equity compensation

 

 

of outstanding options,

 

 

price of outstanding options,

 

 

plans (excluding securities

 

 

warrants and rights

 

 

warrants and rights

 

 

reflected in column (1)

 

Plan Category

(1)

 

 

(2)

 

 

(3)

 

Equity compensation Plans approved by security holders (a)

 

200,517

 

 

 

19.94

 

 

 

2,215,154

 

Equity compensation plans not approved by security holders

 

 

 

Not applicable

 

 

 

 

Total

 

200,517

 

 

 

19.94

 

 

 

2,215,154

 

 

 

(a)

Consists of the Spartan Stores, Inc. 2001 Stock Bonus Plan and the Stock Incentive Plan of 2015. The numbers of shares reflected in column (3) in the table above with respect to the Stock Incentive Plan of 2015 (2,193,985 shares) and the 2001 Stock Bonus Plan (21,169 shares) represent shares that may be issued other than upon the exercise of an option, warrant or right. Each plan listed above contains customary anti-dilution provisions that are applicable in the event of a stock split or certain other changes in SpartanNash’s capitalization.

 

Item 13. Certain Relationships and Related Transactions, and Director Independence

The information required by this item is here incorporated by reference from the section titled “Transactions with Related Persons” and the table captioned “Board of Directors Committee Membership” in SpartanNash’s definitive proxy statement relating to its annual meeting of shareholders to be held in 2017.

 

 

Item 14. Principal Accountant Fees and Services

The information required by this item is here incorporated by reference from the section titled “Independent Auditors” in SpartanNash’s definitive proxy statement relating to its annual meeting of shareholders to be held in 2017.

 

 

-78-


 

 

PART IV

 

 

Item 15. Exhibits and Financial Statement Schedules

 

(a)

The following documents are filed as part of this Report:

 

1.

Financial Statements.

A. In Item 8 .

Reports of Independent Registered Public Accounting Firm of Deloitte & Touche LLP dated March 1, 2017

Consolidated Balance Sheets at December 31, 2016 and January 2, 2016

Consolidated Statements of Earnings for the years ended December 31, 2016, January 2, 2016 and January 3, 2015

Consolidated Statements of Comprehensive Income for the years ended December 31, 2016, January 2, 2016 and January 3, 2015

Consolidated Statements of Shareholders’ Equity for the years ended December 31, 2016, January 2, 2016 and January 3, 2015

Consolidated Statements of Cash Flows for the years ended December 31, 2016, January 2, 2016 and January 3, 2015

Notes to Consolidated Financial Statements

 

2.

Financial Statement Schedules.

Schedules are omitted because the required information is either inapplicable or presented in the consolidated financial statements or related notes.

 

3.

Exhibits.

The information required by this Section (a)(3) of Item 15 is set forth on the exhibit index that follows the Signatures page of this Form 10-K and is incorporated herein by reference.

 

 

 

-79-


 

 

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, SpartanNash Company (the Registrant) has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

 

 

SPARTANNASH COMPANY

(Registrant)

 

 

 

 

Date: March 1, 2017

 

 

 

By

 

/s/ DENNIS EIDSON

 

 

 

 

 

 

Dennis Eidson

Chairman and Chief Executive Officer

(Principal Executive Officer)

-80-


 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of SpartanNash Company and in the capacities and on the dates indicated.

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

M. Shân Atkins

Director

 

 

 

 

March 1, 2017

 

 

 

By

 

/s/ DENNIS EIDSON

 

 

 

 

 

 

Dennis Eidson

Chairman, Chief Executive Officer and Director

(Principal Executive Officer)

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Mickey P. Foret

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Dr. Frank M. Gambino

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Douglas A. Hacker

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Yvonne R. Jackson

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Elizabeth A. Nickels

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Timothy J. O’Donovan

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

Hawthorne Proctor

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

*

 

 

 

 

 

 

William R. Voss

Director

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

/s/ CHRISTOPHER P. MEYERS

 

 

 

 

 

 

Christopher P. Meyers

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

 

 

 

 

 

 

 

March 1, 2017

 

 

 

By

 

/s/ TAMMY R. HURLEY

 

 

 

 

 

 

Tammy R. Hurley

Vice President, Finance and Chief Accounting Officer

(Principal Accounting Officer)

 

 

 

 

 

 

 

March 1, 2017

 

 

 

*By

 

/s/ DENNIS EIDSON

 

 

 

 

 

 

Dennis Eidson

Attorney-in-Fact

-81-


 

 

EXHIBIT INDEX

 

Exhibit
Number

  

Document

 

 

    2.1

  

Agreement and Plan of Merger by and among the Company, Nash-Finch Company, and SS Delaware, Inc. dated July 21, 2013. Previously filed as an exhibit to the Company’s Current Report on Form 8-K filed on July 22, 2013.  Incorporated herein by reference.

 

 

    2.2

  

Asset Purchase Agreement dated as of November 3, 2016 by and among SpartanNash Company, Caito Food Service, Inc., Blue Ribbon Transport, Inc., and Matthew Caito as Seller’s Representative. Previously filed as an exhibit to the Company’s Current Report on Form 8-K filed on January 9, 2017. Incorporated herein by reference.

 

 

    2.3

  

Amendment to Asset Purchase Agreement dated as of January 6, 2017 by and among SpartanNash Company, Caito Food Service, Inc., Blue Ribbon Transport, Inc., and Matthew Caito as Seller’s Representative. Previously filed as an exhibit to the Company’s Current Report on Form 8-K filed on January 9, 2017. Incorporated herein by reference.

 

 

    3.1

  

Restated Articles of Incorporation of SpartanNash Company, as amended. Previously filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 23, 2016. Incorporated herein by reference.

 

 

    3.2

  

Bylaws of SpartanNash Company, as amended.

 

 

  10.1

  

Amended and Restated Loan and Security Agreement, among Spartan Stores, Inc. and certain of its subsidiaries, as borrowers, and Wells Fargo Capital Finance, LLC, as administrative agent, and certain lenders from time to time party thereto, dated November 19, 2013. Previously filed as an exhibit to the Company’s Current Report on Form 8-K filed on November 19, 2013. Incorporated herein by reference.

 

 

  10.2

  

Amendment No. 1 to Amended and Restated Loan and Security Agreement, dated January 9, 2015, among SpartanNash Company and certain of its subsidiaries, as borrowers, and Wells Fargo Capital Finance, LLC, as administrative agent, and certain lenders from time to time party thereto. Previously filed as an exhibit to the Company's Current Report on Form 8-K filed on January 12, 2015. Incorporated herein by reference.

 

 

  10.3

  

Amendment No. 2 to Amended and Restated Loan and Security Agreement, dated December 20, 2016, among SpartanNash Company and certain of its subsidiaries, as borrowers, and Wells Fargo Capital Finance, LLC, as administrative agent, and certain lenders from time to time party thereto. Previously filed as an exhibit to the Company's Current Report on Form 8-K filed on December 21, 2016. Incorporated herein by reference.

 

 

  10.4* 

 

  

Amended and Restated SpartanNash Company Executive Cash Incentive Plan of 2015. Previously filed as an exhibit to the Company’s Current Report on Form 8-K filed on June 3, 2015. Incorporated herein by reference.

 

 

  10.5*

  

Form of 2016 Long-Term Executive Incentive Plan Award. Previously filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 23, 2016. Incorporated herein by reference.

 

 

  10.6*

  

Form of 2015 Long-Term Executive Incentive Plan Award. Previously filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 25, 2015. Incorporated herein by reference.

 

 

  10.7*

  

Form of 2014 Long-Term Executive Incentive Plan Award. Previously filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 19, 2014. Incorporated herein by reference.

 

 

  10.8*

  

SpartanNash Company Stock Incentive Plan of 2015. Previously filed as an exhibit to the Company’s Form S-8 filed on June 4, 2015. Incorporated herein by reference.

 

 

  10.9*

  

SpartanNash Company Supplemental Executive Retirement Plan, as amended. Previously filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended March 27, 2010. Incorporated herein by reference.

 

 

  10.10*

  

SpartanNash Company Supplemental Executive Savings Plan. Previously filed as an exhibit to the Company’s Form S-8 Registration Statement filed on December 21, 2001. Incorporated herein by reference.

 

 

  10.11*

  

SpartanNash Company 2001 Stock Bonus Plan. Previously filed as an exhibit to the Company’s Transition Report on Form 10-K for the period ended December 28, 2013. Incorporated herein by reference.

 

 

  10.12*

  

Form of Restricted Stock Award to Executive Officers. Previously filed as an exhibit to SpartanNash Company’s Quarterly Report on Form 10-Q for the quarter ending April 25, 2015. Incorporated herein by reference.

 

 

  10.13*

  

Form of Restricted Stock Award to Non-Employee Directors. Previously filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ending April 25, 2015. Incorporated herein by reference.

 

 

-82-


 

 

Exhibit
Number

  

Document

  10.14*

  

Form of Executive Employment Agreement between SpartanNash Company and certain executive officers, as amended. Previously filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended March 31, 2012. Incorporated herein by reference.

 

 

  10.15*

  

Form of Executive Employment Agreement between SpartanNash Company and certain executive officers.

 

 

  10.16*

  

Form of Executive Severance Agreement between SpartanNash Company and certain executive officers as amended. Previously filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended March 31, 2012. Incorporated herein by reference.

 

 

  10.17*

 

Form of Executive Severance Agreement between SpartanNash Company and certain executive officers.

 

 

  10.18*

 

Form of Indemnification Agreement. Previously filed as an exhibit to the Company’s Annual Report on Form 10-K for the period ended January 2, 2016. Incorporated herein by reference.

 

 

  21

  

Subsidiaries of SpartanNash Company.

 

 

  23

  

Consent of Independent Registered Public Accounting Firm.

 

 

  24

  

Powers of Attorney.

 

 

  31.1

  

Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

 

  31.2

  

Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

 

  31.3  

  

Certification of Chief Accounting Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

 

 

  32.1

 

Certification pursuant to 18 U.S.C. § 1350. This exhibit is furnished, not filed, in accordance with SEC Release Number 33-8212.

 

 

101.INS

  

XBRL Instance Document

 

 

101.SCH

  

XBRL Taxonomy Extension Schema Document

 

 

101.CAL

  

XBRL Taxonomy Extension Calculation Linkbase Document

 

 

101.DEF

  

XBRL Taxonomy Extension Definition Linkbase Document

 

 

101.LAB

  

XBRL Taxonomy Extension Label Linkbase Document

 

 

101.PRE

  

XBRL Taxonomy Extension Presentation Linkbase Document

 

*

These documents are management contracts or compensation plans or arrangements required to be filed as exhibits to this Form 10-K.

 

-83-

EXHIBIT 3.2

BYLAWS OF

SPARTANNASH COMPANY

 

ARTICLE I

OFFICES

Section 1. Location . The Corporation may have offices at such places both within and without the State of Michigan as the Board of Directors may from time to time determine.

ARTICLE II

MEETINGS OF SHAREHOLDERS

Section 1. Times and Places of Meetings .   All meetings of the shareholders shall be held at such times and places, within or without the State of Michigan, as may be determined from time to time by the Board of Directors.

Section 2. Annual Meetings of Shareholders . Annual meetings of shareholders for the election of directors and for such other business as may come before the meeting shall be held each year at a time and place so designated by a majority vote of the Board of Directors, or at such other time and date as the Board of Directors determines.

Section 3. Special Meetings . The Board of Directors of the Corporation may call a special meeting of shareholders by giving notice of the meeting to each shareholder entitled to vote at the meeting.

Section 4. Notice of Meetings . Written notice of each meeting of shareholders, stating the time, place and purposes thereof, shall be given to each shareholder entitled to vote at the meeting not less than 10 nor more than 60 days before the date fixed for the meeting. Notice of a meeting need not be given to any shareholder who signs a waiver of notice before or after the meeting. Attendance of a shareholder at a meeting shall constitute (a) waiver of objection to lack of notice or defective notice, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting any business because the meeting has not been lawfully called or convened, and (b) waiver of objection to consideration of a particular matter at the meeting that is not within the purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.

 

Section 5. Shareholder List . The officer or agent having charge of the stock transfer books for shares of the Corporation shall make and certify a complete list of the shareholders entitled to vote at a shareholders’ meeting or any adjournment thereof. The list shall be:

(a) Arranged alphabetically within each class and series, with the address of, and the number of shares held by, each shareholder;

(b) Produced at the time and place of the meeting;

(c) Subject to inspection by any shareholder during the whole time of the meeting; and

(d) Prima facie evidence as to who are the shareholders entitled to examine the list or to vote at the meeting.

Any failure to comply with the procedures of this Section shall not affect the validity of any action taken at a meeting before a shareholder demands the Corporation to comply with the procedures.

Section 6. Quorum . Unless a greater or lesser quorum is provided by the Restated Articles of Incorporation or statute, the presence in person or by proxy of shareholders holding shares entitled to cast a majority of the votes which may be cast at a meeting shall constitute a quorum at the meeting. The shareholders present in person or by proxy at such meeting may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Whether or not a quorum is present, the meeting may be adjourned by a

1


EXHIBIT 3.2

vote of the shares present. When the holders of a class or series of shares are entitled to vote separately on an item of business, this Section applies in determining the presence of a quorum of the class or series for transaction of the item of business unless a greater or lesser quorum is provided in the Restated Articles of Incorporation or statute. If there is no quorum, the chairman of the meeting shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present, when any business may be transacted which might have been transacted at the meeting as first convened had there been a quorum.

Section 7. Vote of Shareholders . Except as otherwise provided by the Restated Articles of Incorporation, each outstanding share shall be entitled to one vote on each matter submitted to a vote. Any action, other than the election of directors, to be taken by vote of the shareholders shall be authorized by a majority of the votes cast by the holders of shares entitled to vote on the action, unless a greater vote is required by the Restated Articles of Incorporation or statute. Except as otherwise provided by the Restated Articles of Incorporation, directors shall be elected by a plurality of the votes cast at an election. Shareholders shall not have cumulative voting rights.

Section 8. Class Voting . The Restated Articles of Incorporation may provide that a class of shares, or any series thereof, shall vote as a class to authorize any action, including amendment to the Restated Articles of Incorporation. Such voting as a class or series shall be in addition to any other required vote. Where voting as a class or series is required on a matter other than the election of directors, it shall be by a majority of the votes cast by the holders of the class or series entitled to vote thereon, unless a greater vote is required by the Restated Articles of Incorporation or statute.

Section 9. Record Date .

(a)  Shareholders Entitled to Notice and Vote.  For the purpose of determining shareholders entitled to notice of and to vote at a meeting of shareholders or an adjournment of a meeting, the Board of Directors may fix a record date, which shall not precede the date on which the resolution fixing the record date is adopted by the Board. The date shall not be more than sixty (60) nor less than ten (10) days before the date of the meeting. If a record date is not fixed, the record date for determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be the close of business on the day next preceding the day on which notice is given, or if no notice is given, the day next preceding the day on which the meeting is held. When a determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders has been made as provided in this Section, the determination applies to any adjournment of the meeting, unless the Board of Directors fixes a new record date under this Section for the adjourned meeting.

(b)  Shareholders Entitled to Express Consent or Dissent.  For the purpose of determining shareholders entitled to express consent to or to dissent from a proposal without a meeting, the Board of Directors may fix a record date, which shall not: (i) precede the date on which the resolution fixing the record date is adopted by the Board, (ii) be more than ten (10) days after the Board resolution; and, (iii) be more than sixty (60) days before effectuation of the action proposed to be taken. If a record date is not fixed and prior action by the Board of Directors is required with respect to the corporate action to be taken without a meeting, the record date shall be the close of business on the day on which the resolution of the Board is adopted. If a record date is not fixed and prior action by the Board of Directors is not required, the record date shall be the first date on which a signed written consent is delivered to the Corporation as provided in these bylaws.

(c)  Other Actions.  For the purpose of determining shareholders entitled to receive payment of a share dividend or distribution, or allotment of a right, or for the purpose of any other action, the Board of Directors may fix a record date, which shall not precede the date on which the resolution fixing the record date is adopted by the Board. The date shall not be more than sixty (60) days before the payment of the share dividend or distribution or allotment of a right or other action. If a record date is not fixed, the record date shall be the close of business on the day on which the resolution of the Board of Directors relating to the corporate action is adopted.

 

Section 10. Proxies . A shareholder entitled to vote at a shareholder meeting or to express consent or dissent without a meeting may authorize one or more other persons to act for the shareholder by proxy only by the following methods:

2


EXHIBIT 3.2

(a) The execution of a writing authorizing another person or persons to act for the shareholder as proxy. Execution may be accomplished by the shareholder or by an authorized officer, director, employee, or agent of the shareholder by either signing the writing or causing his or her signature to be affixed to the writing by any reasonable means including, but not limited to, facsimile signature.

(b) Transmitting or authorizing the transmission of a telegram, cablegram, or other means of electronic transmission to the person who will hold the proxy or to a proxy solicitation firm, proxy support service organization, or similar agent fully authorized by the person who will hold the proxy to receive that transmission. Any telegram, cablegram, or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram, or other electronic transmission was authorized by the shareholder. If a telegram, cablegram, or other electronic transmission is determined to be valid, the inspectors, or, if there are no inspectors, the persons making the determination shall specify the information upon which they relied.

A copy, facsimile telecommunication, or other reliable reproduction of the writing or transmission created pursuant to subsections (a) or (b) may be substituted or used in lieu of the original writing or transmission for any purpose for which the original writing or transmission could be used, if the copy, facsimile telecommunication, or other reproduction is a complete reproduction of the entire original writing or transmission.

A proxy is not valid after the expiration of three years from its date unless otherwise provided in the proxy. A proxy must be filed with the Corporation at or before the meeting.

Section 11. Shareholder Proposals . Except as otherwise provided by statute, the Corporation’s Restated Articles of Incorporation, or these bylaws:

(a) No matter may be presented for shareholder action at an annual or special meeting of shareholders unless such matter is: (i) specified in the notice of the meeting (or any supplement to the notice) given by or at the direction of the Board of Directors; (ii) otherwise presented at the meeting by or at the direction of the Board of Directors; (iii) properly presented for action at the meeting by a shareholder in accordance with the notice provisions set forth in this Section and any other applicable requirements; or (iv) a procedural matter presented, or accepted for presentation, by the Chairman of the meeting in his or her sole discretion.

(b) For a matter to be properly presented by a shareholder, the shareholder must have given timely notice of the matter in writing to the Secretary of the Corporation. To be timely, the notice must be delivered to or mailed to and received at the principal executive offices of the Corporation not less than 120 calendar days prior to the date corresponding to the date of the Corporation’s proxy statement or notice of meeting released to shareholders in connection with the last preceding annual meeting of shareholders in the case of an annual meeting (unless the Corporation did not hold an annual meeting within the last year, or if the date of the upcoming annual meeting changed by more than 30 days from the date of the last preceding meeting, then the notice must be delivered or mailed and received not more than seven days after the earlier of the date of the notice of the meeting or public disclosure of the date of the meeting), and not more than seven days after the earlier of the date of the notice of the meeting or public disclosure of the date of the meeting in the case of a special meeting. The notice by the shareholder must set forth: (i) a brief description of the matter the shareholder desires to present for shareholder action; (ii) the name and record address of the shareholder proposing the matter for shareholder action; (iii) the class and number of shares of capital stock of the Corporation that are beneficially owned by the shareholder; and (iv) any material interest of the shareholder in the matter proposed for shareholder action.

(c) The shareholder proposal, together with any accompanying supporting statement, shall not in the aggregate exceed 500 words. Except to the extent that a shareholder proposal submitted pursuant to this Section is not made available at the time of mailing, the notice of the purposes of the meeting shall include the name and address of and the number of shares of the voting security held by the proponent of each shareholder proposal.

(d) A shareholder may submit matters and proposals for shareholder action at any annual or special shareholder meeting if the matters and proposals are of general concern to, and are proper subjects for action by, the shareholders. A submitted proposal or matter may not be presented for shareholder action if it: (i) relates to the enforcement of a personal claim or the redress of a personal

3


EXHIBIT 3.2

grievance against the Corporation, its management, or any other person; (ii) consists of a recommendation, request, or mandate that action be taken with respect to a matter, including a general economic, political, racial, religious, social, or similar cause, that is not significantly related to the Corporation’s business or is not within the Corporation’s power to effectuate; (iii) has, at the shareholder’s request, previously been submitted in either of the last two annual shareholder meetings and the shareholder has failed to present the proposal, in person or by proxy, for action at the meeting; (iv) is substantially similar to a matter or proposal presented within the preceding five calendar years: (x) if it was submitted once during the past five annual meetings and it received less than 3% of the total votes cast, or (y) if it was submitted twice during the past five annual meetings and it received less than 6% of the total votes cast at the time of its second submission, or (z) if it was submitted three times during such period and it received less than 10% of the votes cast at the time of its third submission (if any of (x), (y) or (z) apply, the proposal may not be presented for three years after the latest previous submission); or (v) consists of a recommendation or request that the management take action with respect to a matter relating to the conduct of the Corporation’s ordinary business operations.

 

(e) Notwithstanding the above, if the Corporation is subject to the solicitation rules and regulations of the Securities Exchange Act of 1934, as amended, and the shareholder desires to require the Corporation to include the shareholder’s proposal in the Corporation’s proxy materials, matters and proposals submitted for inclusion in the Corporation’s proxy materials shall be governed by those rules and regulations.

Section 12. Conduct of Meetings . At every meeting of the shareholders, the Chairman of the Board, or in such person's absence or inability to act, a director or officer designated by the Board of Directors shall serve as chairperson. The Board of Directors of the Corporation may adopt by resolution such rules or regulations for the conduct of meetings of shareholders as it determines appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chair of any meeting of shareholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chair, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following: (1) the establishment of an agenda or order of business; (2) rules and procedures for maintaining order and safety; (3) limitations on attendance or participation to shareholders of record of the Corporation or their duly authorized proxies or such other persons as the chair shall permit; (4) restrictions on entry to the meeting after the time fixed for the call to order; and (5) limitations on the time allotted to questions or comments by participants.

 

Section 13. Registered Shareholders . The Corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not the Corporation shall have express or other notice thereof, except as otherwise provided by the laws of the state of Michigan.

Section 14. Inspectors of Election . The Board of Directors or, if they shall not have so acted, the chairman of a meeting of shareholders, may appoint, at or prior to any meeting of shareholders, one or more persons (who may be directors, officers or employees of the Corporation) to serve as inspectors of election. The inspectors so appointed shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes or ballots, hear and determine challenges and questions arising in connection with the right to vote, count and tabulate votes or ballots, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders.

Section 15. Adjournment . If a meeting is adjourned to another time and place, it is not necessary, unless the bylaws otherwise provide, to give notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken and at the adjourned meeting only business is transacted that might have been transacted at the original meeting. If after the adjournment the Board of Directors fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to notice. The Board of Directors are authorized to adjourn any meeting of shareholders as to which notice to the shareholders has been made.

4


EXHIBIT 3.2

ARTICLE III

DIRECTORS

Section 1. Number of Directors . The Board of Directors shall consist of such number of directors as may be determined from time to time by at least seventy-five percent (75%) of the entire Board of Directors then in office. Directors need not be shareholders. At each annual meeting of the shareholders, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the next annual meeting of shareholders and until such directors’ successors shall have been elected and qualified. If shareholders of any class or series of shares have the exclusive right to elect one or more directors, those directors may be elected only by the vote of those shareholders. 

 

Section 2. Vacancies . Except as otherwise provided by statute or in the Restated Articles of Incorporation, a vacancy occurring in the Board (including a vacancy resulting from an increase in the number of directors) may be filled by the Board or, if the directors remaining in office constitute fewer than a quorum, by the affirmative vote of a majority of the remaining directors. Except as otherwise provided in the Restated Articles of Incorporation, if the holders of any class of shares or series are entitled to elect one or more directors to the exclusion of other shareholders, vacancies of that class or series may be filled by the holders of shares of that class or series. A vacancy that will occur at a specific date, by reason of resignation effective at a later date, may be filled before the vacancy occurs, but the newly elected or appointed director may not take office until the vacancy occurs.

Section 3. Resignation . A director may resign by written notice to the Corporation. A resignation is effective upon its receipt by the Corporation or a later time as set forth in the notice of resignation.

Section 4. Powers . The Board of Directors shall manage the business of the Corporation and may exercise all of the powers of the Corporation and do all lawful acts except those powers or acts required to be exercised or done by the shareholders.

Section 5. First Meeting of Newly Elected Board . The first meeting of each newly elected Board of Directors shall be held immediately following the annual meeting of shareholders, at the same place as the shareholder’s meeting, for the purpose of electing officers and transacting any other business; provided, however, that such meeting may be held at a different date, time, and place with the consent of a majority of the directors then in office. If the first meeting immediately follows the annual meeting of shareholders, no notice to the directors of the meeting shall be necessary to legally constitute the meeting, provided a quorum shall be present. If the Board changes the date, time, or place of the first meeting, then notice of the meeting shall be given to each director who was absent at the meeting at which such change was made.

Section 6. Regular Meetings . Regular meetings of the Board of Directors may be held with or without notice at such time and at such place as shall from time to time be determined by the Board of Directors.

Section 7. Special Meetings . Special meetings of the Board of Directors may be called by the Chairman of the Board or the Chief Executive Officer on one day’s notice to each director. Special meetings shall be called by the Chairman of the Board or Chief Executive Officer in like manner and on like notice on the written request of two directors.

Section 8. Purpose Need Not Be Stated . Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting.

Section 9. Notice of Meetings . Except as otherwise provided by these bylaws, any required notice of the date, time, place, and purposes of a meeting of the Board of Directors shall be given by the Secretary to each member of the Board by either of the following methods:

 

(a) By mailing, postage prepaid, a written notice of such meeting to such address as each director may from time to time designate or, in the absence of any such designation, to the last known address of the director, at least five (5) days prior to the date set for such meeting.

5


EXHIBIT 3.2

(b) By delivering a written notice of such meeting to the director at least twenty-four (24) hours in advance of such meeting, personally or by facsimile transmission or by other means of electronic transmission to the director’s last known office or home.

Section 10. Purpose Need Not Be Stated . Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting.

Section 11. Quorum . At all meetings of the Board a majority of the directors shall constitute a quorum for the transaction of business, and the acts of a majority of the directors present at any meeting at which there is a quorum shall be acts of the Board of Directors except as may be otherwise specifically provided by statute or by the Restated Articles of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 12. Action by Written Consent . Action required or permitted to be taken under authorization voted at a meeting of the Board of Directors or a committee of the Board, may be taken without a meeting if, before or after the action, all members of the Board then in office or of the committee consent to the action in writing. The written consents shall be filed with the minutes of the proceedings of the Board or committee. The consent has the same effect as a vote of the Board or committee for all purposes.

Section 13. Meeting by Telephone or Similar Equipment . The Board of Directors or any committee designated by the Board of Directors may participate in a meeting of such Board or committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear one another, and participation in a meeting pursuant to this section shall constitute presence in person at such meeting.

Section 14. Waiver of Notice . The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting has not been lawfully called or convened.

Section 15. Interested Directors .

(a) No contract or transaction between the Corporation and one or more of its directors and officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if:

(i) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum;

(ii) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by the vote of the shareholders; or

(iii) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved, or ratified by the Board of Directors, a committee thereof, or the shareholders.

(b) Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

Section 16. Compensation of Directors . The Board of Directors, by affirmative vote of a majority of directors in office and irrespective of any personal interest of any of them, may establish reasonable compensation of

6


EXHIBIT 3.2

directors for services to the Corporation as directors or officers. Directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board or a committee.

ARTICLE IV

COMMITTEES OF DIRECTORS

Section 1. Executive Committee . The Board of Directors may appoint an Executive Committee whose membership shall consist of the Chairman and/or the Chief Executive Officer, or President if there is no Chief Executive Officer, and such number of other directors as a majority of the entire Board of Directors may deem advisable from time to time to serve during the pleasure of the Board. One of the members of the committee shall be designated the chairman thereof by the Board of Directors. The Board of Directors also may appoint directors to serve as alternates for members of the committee in the absence or disability of regular members. The Executive Committee shall have and may exercise the powers and authority of the Board in the management of the affairs of the Corporation, except the power to change the membership or to fill vacancies in the Board or the Committee, the power to amend, add to, rescind, or repeal the bylaws of the Corporation and any other powers that, under Michigan law, may not be delegated to it by the Board of Directors. The Board shall have the power at any time to change the membership of the Executive Committee (subject to the requirement that the Chairman and/or the President of the Corporation be a member thereof) and to fill vacancies in it. The Executive Committee may make rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of the committee shall constitute a quorum.

Section 2. Audit Committee . The Board of Directors shall appoint an Audit Committee consisting of one or more members who are directors. The Audit Committee will perform the function of an audit committee for the Corporation and each of it’s subsidiaries as that function is defined by the Board of Directors in the Audit Committee Charter adopted by the Board of Directors from time to time. The Audit Committee shall have the authority, responsibilities and powers provided in the Audit Committee Charter, any resolutions adopted by the Board of Directors from time to time, and any applicable laws and regulations.

Section 3. Compensation Committee . The Compensation Committee will perform the function of a compensation committee for the Corporation and each of it’s subsidiaries as that function is defined by the Board of Directors in the Compensation Committee Charter adopted by the Board of Directors from time to time. The Compensation Committee shall have the authority, responsibilities and powers provided in the Compensation Committee Charter, any resolutions adopted by the Board of Directors from time to time, and any applicable laws and regulations.

Section 4 Nominating and Corporate Governance Committee . The Board of Directors shall annually appoint a Nominating and Corporate Governance Committee consisting of one or more directors. The Nominating and Corporate Governance Committee shall identify potential nominees for election to the Board and review their qualifications to serve as directors. The Nominating and Corporate Governance Committee shall use the same procedures as a committee of the Board.  Section 5. Other Committees . The Board of Directors may designate such other committees as it may deem appropriate, and such committees shall exercise the authority delegated to them. Unless the Board shall otherwise provide, a majority of any such Committee may determine its action and fix the time and place of its meetings. The Board shall have power at any time to change the members of any such Committee, to fill vacancies, and to discharge any such Committee.

Section 6. Committee Meetings . Each committee provided for above shall meet as often as its business may require and may fix a day and time at intervals for regular meetings, notice of which shall not be required. Whenever the day fixed for a meeting shall fall on a holiday, the meeting shall be held on the business day following or on such other day as the committee may determine. Special meetings of the committees may be called by the chairman of the committee or any two (2) members other than the chairman, and notice thereof may be given to the members by telephone, telegram, telecopy, or letter. A majority of its members shall constitute a quorum for the transaction of the business of any of the committees. A record of the proceedings of each committee shall be kept and presented to the Board of Directors.

 


7


EXHIBIT 3.2

 

ARTICLE V

OFFICERS

Section 1. Selection of Officers . The Board of Directors, at its first meeting following the annual meeting of shareholders or as soon thereafter as practicable, shall elect or appoint from their number a Chairman of the Board. In addition, the Board shall also elect or appoint a Chief Executive Officer, President, Secretary and Treasurer and may also elect or appoint one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, which officers need not be directors. Officers shall have such terms and powers and duties as shall be determined from time to time by the Board. Two or more offices may be held by the same person, but an officer shall not execute, acknowledge, or verify an instrument in more than one capacity if the instrument is required by law or the Restated Articles of Incorporation or these bylaws to be executed, acknowledged, or verified by two or more officers. The dismissal of an officer, the appointment of an officer to fill the office of one who has been dismissed or has ceased for any reason to be an officer, the appointment of any additional officers, and the change of an officer to a different or additional office, may be made by the Board of Directors at any later meeting.  Section 2. Appointment of Titled Positions.  The Board of Directors or the Chief Executive Officer may from time to time appoint individuals to hold titled positions. Holders of titled positions who may from time to time be appointed pursuant to this Section shall hold such titles as are assigned by the Board of Directors or the Chief Executive Officer and shall perform such duties and exercise such authority as may be assigned by the Board of Directors or the Chief Executive Officer. Dismissal of the holder of a titled position, appointment of a replacement for a holder of a titled position, appointment of any additional titled position holders, and change of a titled position holder to a different or additional position, may be made by the Board of Directors or the Chief Executive Officer. Any two or more titled positions may be held by the same person. 

Section 3. Authority of Officers.  The Chief Executive Officer, the President (if not also the Chief Executive Officer), the Secretary, the Treasurer, and such other persons as the Board of Directors shall have appointed and expressly designated as officers shall be the only officers of the Corporation. Only the officers of the Corporation shall have discretionary authority to determine the fundamental policies of the Corporation. Holders of titled positions who have not been expressly designated as officers of the Corporation in this Section or by the Board of Directors shall not be officers of the Corporation regardless of their titles. 

Section 4. Authority of Titled Positions . Holders of titled positions who are not officers shall not have discretionary authority to determine fundamental policies of the Corporation and shall not, by reason of holding such titled positions, be entitled to have access to any files, records or other information relating or pertaining to the Corporation, its business and finances, or to attend or receive the minutes or any meetings of the Board of Directors or any committee of the Corporation, except as and to the extent expressly authorized and permitted by the Board of Directors or the Chief Executive Officer. 

Section 5. Term of Service . Each officer and holder of a titled position shall serve at the pleasure of the Board of Directors. The Board of Directors or the Chief Executive Officer may remove any officer or holder of a titled position from that office or position for cause or without cause. Any officer or holder of a titled position may resign his or her office or position at any time, such resignation to take effect upon receipt of written notice thereof by the Corporation unless otherwise specified in the resignation.  [

Section 6. Chairman of the Board of Directors . The Chairman of the Board shall preside at all meetings of the shareholders and the Board of Directors. The Chairman of the Board shall perform such other duties as may be assigned from time to time by the Board of Directors, and unless otherwise provided by resolution of the Board shall be an  ex officio  member of all committees of the Board. Except where by law the signature of the President is required, the Chairman of the Board shall possess the same power and authority as the President to make and execute any contract, instrument, paper, and document in the name of and on behalf of the Corporation. 

Section 7. Vice Chairman of the Board of Directors . During the absence or disability of the Chairman of the Board, or while that office is vacant, any Vice Chairmen of the Board, in the order designated by the Board, shall exercise all of the powers and discharge all of the duties of the Chairman. The Vice Chairmen of the Board shall perform such other duties as may be assigned from time to time by the Board of Directors. 

8


EXHIBIT 3.2

Section 8. Chief Executive Officer.  The Chief Executive Officer shall have final authority, subject to the control of the Board of Directors, over the general policy and business of the Corporation and shall have the general control and management of the business and affairs of the Corporation. In case of the absence or inability to act of the Chairman of the Board and any Vice Chairman of the Board, the Chief Executive Officer shall exercise all of the duties and responsibilities of the Chairman of the Board until the Board of Directors shall otherwise direct.  Section 9. President . The President shall, subject to the direction of the Board of Directors, see that all orders and resolutions of the Board of Directors are carried into effect, and shall perform all other duties necessary or appropriate to his or her office, subject, however, to his or her right and the right of the directors to delegate any specific powers to any other officer or officers of the Corporation. In case of the absence or inability to act of the Chairman of the Board, any Vice Chairman of the Board, and any Chief Executive Officer, the President shall exercise all of the duties and responsibilities of the Chairman of the Board until the Board of Directors shall otherwise direct. The Board may designate the Chairman, one or more Vice Chairmen, or one or more Vice Presidents, in the order designated by the Board, to perform the duties and exercise the powers of the President during the absence or disability of the President. 

Section 10. Vice Presidents . The Board of Directors or the Chief Executive Officer may elect or appoint one or more Vice Presidents having such titles, such as Executive or Senior Vice President, as the Board or the Chief Executive Officer determines to be appropriate. The Vice Presidents shall perform such duties as may be from time to time delegated to them by the Board of Directors or the Chief Executive Officer. Each Vice President has the authority to sign or execute contracts and other documents which shall be binding on the Corporation and to fulfill the terms thereof, but a Vice President shall not be considered an officer of the Corporation, nor have the discretionary policy-making authority conferred upon the officers by these Bylaws, unless expressly designated as an officer by the Board of Directors. 

Section 11. Secretary . The Secretary shall cause to be recorded and maintained minutes of all meetings of the Board, Board committees, and shareholders. The Secretary shall give or cause the giving of all notices required by law, these bylaws, or resolution of the Board and shall perform such other duties as may be from time to time delegated by the Board of Directors or the President. The Secretary may delegate to such Assistant Secretaries such aspects of his or her duties as he or she may from time to time determine to be appropriate.  [Renumbered paragraph as amended by the Board of Directors on August 6, 2003.]

Section 12. Treasurer . The Treasurer shall keep or cause to be kept in books belonging to the Corporation a full and accurate account of all receipts, disbursements, and other financial transactions of the Corporation. The Treasurer shall perform such other duties as may be from time to time delegated by the Board of Directors or the President.  Section 13. Assistant Secretaries and Assistant Treasurers . Any Assistant Secretary and any Assistant Treasurer may perform any duty or exercise any authority of the Secretary or Treasurer, respectively. The Assistant Secretaries and Assistant Treasurers shall also perform such duties as may be from time to time assigned to them by the Secretary or by the Treasurer, respectively, or by the Board of Directors or the President.  Section 14. Other Officers . All other officers, as may from time to time be appointed by the Board of Directors, shall perform such duties and exercise such authority as the Board of Directors or President shall prescribe. 

 

ARTICLE VI

INDEMNIFICATION

Section 1. Indemnification in Action by Third Party  The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding (other than an action by or in the right of the Corporation), whether civil, criminal, administrative, or investigative and whether formal or informal, by reason of the fact that the person is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic Corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not for profit, against expenses (including attorneys’ fees), judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation or its shareholders and, with respect to a criminal action or proceeding, the person had no reasonable cause to believe his or her conduct was unlawful. The termination of an action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not,

9


EXHIBIT 3.2

of itself, create a presumption that the person did not act in good faith and in a manner that the person reasonably believed to be in or not opposed to the best interests of the Corporation or its shareholders and, with respect to a criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.

Section 2. Indemnification in Action by or in Right of the Corporation . The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not for profit, against expenses, including attorney fees and amounts paid in settlement actually and reasonably incurred by the person in connection with the action or suit, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation or its shareholders. Indemnification shall not be made for a claim, issue, or matter in which the person shall have been found liable to the Corporation except to the extent authorized by statute.

Section 3. Expenses . To the extent that a director, officer, employee, or agent of the Corporation has been successful on the merits or otherwise in defense of an action, suit, or proceeding referred to in Section 1 or 2 of this Article, or in defense of a claim, issue, or matter in the action, suit, or proceeding, the Corporation shall indemnify that person against actual and reasonable expenses, including attorneys’ fees that person incurred in connection with the action, suit, or proceeding and an action, suit, or proceeding brought to enforce the mandatory indemnification provided in this Section.

 

Section 4. Determination, Evaluation, and Authorization of Indemnification

(a) Except as otherwise provided in Subsection (e) of this Section or unless ordered by a court, the Corporation shall make an indemnification under Section 1 or 2 of this Article only upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 1 or 2 of this Article and upon an evaluation of the reasonableness of expenses and amounts paid in settlement. This determination and evaluation may be made in any of the following ways:

(1) By a majority vote of a quorum of the Board of Directors consisting of directors who are not parties or threatened to be made parties to the action, suit, or proceeding.

(2) If a quorum cannot be obtained under Subsection (1) above, by majority vote of a committee duly designated by the Board and consisting solely of two or more directors not at the time parties or threatened to be made parties to the action, suit, or proceeding.

(3) By independent legal counsel in a written opinion, which counsel shall be selected in one of the following ways:

(A) By the Board or its committee in the manner prescribed in Subsections (1) or (2) above.

(B) If a quorum of the Board cannot be obtained under Subsection (1) above and a committee cannot be designated under Subsection (2) above, by the Board.

(4) By all independent directors (as that term is defined in the Michigan Business Corporation Act) who are not parties or threatened to be made parties to the action, suit, or proceeding.

(5) By the shareholders, but shares held by directors, officers, employees, or agents who are parties or threatened to be made parties to the action, suit, or proceeding may not be voted.

(b) In the designation of a committee under Subsection (a)(2) or in the selection of independent legal counsel under Subsection (a)(3)(B), all directors may participate.

(c) If a person is entitled to indemnification under Section 1 or 2 for a portion of expenses, including reasonable attorneys’ fees, judgments, penalties, fines, and amounts paid in settlement, but not for the total amount, the Corporation may indemnify the person for the portion of the expenses,

10


EXHIBIT 3.2

judgments, penalties, fines, or amounts paid in settlement for which the person is entitled to be indemnified.

 

(d) The Corporation shall authorize payment of indemnification under this section in one of the following ways:

(1) By the Board in one of the following ways:

(A) If there are two or more directors who are not parties or threatened to be made parties to the action, suit, or proceeding, by a majority vote of all directors who are not parties or threatened to be made parties, a majority of whom shall constitute a quorum for this purpose.

(B) By a majority of the members of a committee of two or more directors who are not parties or threatened to be made parties to the action, suit, or proceeding.

(C) If the Corporation has one or more independent directors who are not parties or threatened to be made parties to the action, suit, or proceeding, by a majority vote of all independent directors who are not parties or are threatened to be made parties, a majority of whom shall constitute a quorum for this purpose.

(D) If there are no independent directors and less than two directors who are not parties or threatened to be made parties to the action, suit, or proceedings, by the vote necessary for action by the Board in accordance with Section 523 of the Michigan Business Corporation Act, as amended (the “Michigan Business Corporation Act”) in which authorization all directors may participate.

(2) By the shareholders, but shares held by directors, officers, employees, or agents who are parties or threatened to be made parties to the action, suit, or proceeding may not be voted on the authorization.

(e) To the extent that the Restated Articles of Incorporation include a provision eliminating or limiting the liability of a director pursuant to Section 209(1)(c) of the Michigan Business Corporation Act, the Corporation may indemnify a director for the expenses and liabilities described in this Subsection without a determination that the director has met the standard of conduct set forth in Sections 1 or 2 of this Article, but no indemnification shall be made except to the extent authorized in Section 564(c) of the Michigan Business Corporation Act if the director received a financial benefit to which he or she was not entitled, intentionally inflicted harm on the Corporation or its shareholders, violated Section 551 of the Michigan Business Corporation Act, or intentionally committed a criminal act. In connection with an action or suit by or in the right of the Corporation as described in Section 2 of this Article, indemnification under this Subsection shall be for expenses, including attorneys’ fees, actually and reasonably incurred. In connection with an action, suit, or proceeding other than an action, suit, or proceeding by or in the right of the Corporation, as described in Section 1 of this Article, indemnification under this Subsection shall be for expenses, including attorneys’ fees, actually and reasonably incurred, and for judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred.

Section 5. Advances .

(a) The Corporation shall pay or reimburse the reasonable expenses incurred by a director, officer, employee, or agent who is a party or threatened to be made a party to an action, suit, or proceeding before final disposition of the proceeding if both of the following apply:

(1) The person furnishes the Corporation a written affirmation of the person’s good faith belief that he or she has met the applicable standard of conduct set forth in Section 1 or 2 of this Article.

11


EXHIBIT 3.2

(2) The person furnishes the Corporation a written undertaking, executed personally or on the person’s behalf, to repay the advance if it is ultimately determined that the person did not meet the standard of conduct set forth in Section 1 or 2 of this Article.

(b) The undertaking required by Subsection (a)(2) above must be an unlimited general obligation of the person, but need not be secured and may be accepted without reference to the financial ability of the person to make repayment.

(c) Determinations and evaluations under this Section shall be made in the manner specified in Section 4(a) above, and authorizations shall be made in the manner specified in Section 4(d) above.

(d) A provision in the Restated Articles of Incorporation or bylaws, a resolution of the Board or shareholders, or an agreement making indemnification mandatory also shall make the advancement of expenses mandatory unless the provision, resolution, or agreement specifically provides otherwise.

Section 6. Other Indemnification Agreements  The indemnification or advancement of expenses provided by this Article is not exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the Restated Articles of Incorporation, these bylaws, or a contractual agreement. The total amount of expenses advanced or indemnified from all sources combined may not exceed the amount of actual expenses incurred by the person seeking indemnification or advancement of expenses. The indemnification provided in Sections 1 to 6 of this Article continues as to a person who ceases to be a director, officer, employee, or agent and shall inure to the benefit of the person’s heirs, executors, and administrators.

 

Section 7. Insurance . The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against the person and incurred by the person in any such capacity or arising out of the person’s status as such, whether or not the Corporation would have power to indemnify the person against the liability under Sections 1 to 6 of this Article. To the extent that the Restated Articles of Incorporation include a provision eliminating or limiting the liability of a director pursuant to Section 209(1)(c) of the Michigan Business Corporation Act, the Corporation may purchase insurance on behalf of a director from an insurer owned by the Corporation, but insurance purchased from that insurer may insure a director against monetary liability to the Corporation or its shareholders only to the extent that the Corporation could indemnify the director under Section 4(e).

Section 8. Constituent Corporation . For the purposes of this Article, “Corporation” includes all constituent corporations absorbed in a consolidation or merger and the resulting or surviving corporation, so that a person who is or was a director, officer, employee, or agent of the constituent corporation or is or was serving at the request of the constituent corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise whether for profit or not shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as the person would if the person had served the resulting or surviving corporation in the same capacity.

Section 9. Savings Clause . If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation nevertheless shall indemnify each director and officer, or other person whose indemnification is authorized by the Board of directors as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law.

Section 10. Construction . It is the intent of this Article to grant to the directors and officers of the corporation, and to directors and officers serving at the request of the corporation as directors, officers, employees, or agents of another corporation, partnership, joint venture, trust, or other enterprise, the broadest indemnification permitted under the laws of the state of Michigan, as the same may be amended from time to time, and this Article shall be construed liberally to give effect to such intent. The corporation further intends, acknowledges, and agrees that all directors and officers have undertaken and will undertake the performance of their duties and obligations in reliance upon the indemnification provided for in this Article, and accordingly, such rights of indemnification may not be retroactively reduced or abolished as to any director and officer, without his or her consent.

12


EXHIBIT 3.2

 

ARTICLE VII

SUBSIDIARIES

Section 1. Subsidiaries . The Board of Directors, the Chief Executive Officer, or any executive officer designated by the Board of Directors may vote the shares of stock owned by the Corporation in any subsidiary, whether wholly or partly owned by the Corporation, in such manner as they may deem in the best interests of the Corporation, including, without limitation, for the election of directors of any subsidiary corporation, or for any amendments to the charter or bylaws of any such subsidiary corporation, or for the liquidation, merger, or sale of assets of any such subsidiary corporation. The Board of Directors, the Chief Executive Officer, or any executive officer designated by the Board of Directors may cause to be elected to the Board of Directors of any such subsidiary corporation such persons as they shall designate, any of whom may, but need not, be directors, executive officers, or other employees or agents of the Corporation. The Board of Directors, the Chief Executive Officer, or any executive officer designated by the Board of Directors may instruct the directors of any such subsidiary corporation as to the manner in which they are to vote upon any issue properly coming before them as the directors of such subsidiary corporation, and such directors shall have no liability to the Corporation as the result of any action taken in accordance with such instructions.

Section 2. Subsidiary Officers Not Executive Officers . The officers of any subsidiary corporation shall not, by virtue of holding such title and position, be deemed to be executive officers of the Corporation, nor shall any such officer of a subsidiary corporation, unless he shall also be a director or executive officer of the Corporation, be entitled to have access to any files, records, or other information relating or pertaining to the Corporation, its business and finances, or to attend or receive the minutes of any meetings of the Board of Directors or any committee of the Corporation, except as and to the extent expressly authorized and permitted by the Board of Directors or the Chief Executive Officer.

ARTICLE VIII

CERTIFICATES OF STOCK

Section 1. Share Certificates; Required Signatures . Except as otherwise permitted by statute, the Restated Articles of Incorporation, or these bylaws, the stock of the Corporation shall be represented by certificates which shall be signed by the Chairman of the Board, a Vice Chairman of the Board, the President, or a Vice-President and shall also be signed by another officer of the Corporation, and may be sealed with the seal of the Corporation or a facsimile of the seal. The signatures of the officers may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation itself or its employee. If an officer who has signed or whose facsimile signature has been placed upon a certificate ceases to be an officer before the certificate is issued, it may be issued by the Corporation with the same effect as if he were the officer at the date of issue.

 

Section 2. Facsimile Signature . Where a certificate is signed (i) by a transfer agent or an assistant transfer agent, or (ii) by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman, President, Vice President, Treasurer, Assistant Treasurer, Secretary, or Assistant Secretary may be a facsimile. In case any officer, transfer agent, or registrar who has signed, or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Section 3. Replacement of Lost or Destroyed Share Certificates . The Corporation may issue a new certificate for shares in place of a certificate alleged to have been lost or destroyed, and the Board of Directors may require the owner of the lost or destroyed certificate, or his or her legal representative, to give the Corporation a bond or other security sufficient to indemnify the Corporation against any claim that may be made against it on account of the allegedly lost or destroyed certificate or the issuance of the new certificate.

Section 4. Transfers of Stock . Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to

13


EXHIBIT 3.2

transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

Section 5 .  Issuance of Shares Without Certificates . The Corporation may issue some or all of the shares of any or all of its classes or series without certificates. Within a reasonable time after issuance or transfer of shares without certificates, the Corporation shall send the shareholder a written statement confirming the issuance or transfer of shares without certificates. Such written statement shall include (i) the name of the Corporation and that it is formed under the laws of the State of Michigan, (ii) the name of the person to whom the shares are issued, (iii) the number and class of shares and the designation of the series, if any, (iv) that the holder of the shares is entitled to have a certificate upon written request made to the Secretary of the Corporation, and (v) any other information required by law . Section 6. Fractional Shares . The Corporation may issue fractions of shares. The Corporation may issue certificates for fractions of shares or issue fractions of shares without certificates. Holders of fractions of shares shall be entitled to exercise voting rights and to receive dividends and distributions in proportion to their fractional shares. The Corporation may, alternatively, pay in cash the fair value of fractions of shares, as determined from time to time by the Board of Directors, as of the time when those entitled to receive the fractions are determined. 

 

ARTICLE IX

GENERAL PROVISIONS

Section 1. Dividends . By action of the Board of Directors, the Corporation may declare and pay dividends or make other distributions as permitted by law.

Section 2. Reserves . Before payment of any dividends, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall think conducive to the interest of the Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.

Section 3. Voting Securities . Unless otherwise directed by the Board, the Chairman of the Board, or the President, or in the case of their absence or inability to act, the Vice Presidents, in such order as may be designated by the Board, shall have full power and authority on behalf of the Corporation to attend and to act and to vote, or to execute in the name or on behalf of the Corporation a consent in writing in lieu of a meeting of shareholders or a proxy authorizing an agent or attorney-in-fact for the Corporation to attend and vote, at any meetings of security holders of corporations in which the corporation may hold securities, and at such meetings such officer or such officer’s duly authorized agent or attorney-in-fact shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Corporation might have possessed and exercised if present. The Board by resolution from time to time may confer like power upon any other person or persons.

Section 4. Checks . All checks, drafts, and orders for the payment of money shall be signed in the name of the Corporation in such manner and by such officer or officers or such other person or persons as the Board of Directors shall from time to time designate for that purpose.

Section 5. Fiscal Year . The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 6. Contracts, Conveyances, Etc . When the execution of any contract, conveyance, or other instrument has been authorized without specification of the executing officers, the Chairman of the Board, the President, or any Vice President may execute the same in the name and on behalf of the Corporation and may affix the corporate seal thereto. The Board of Directors shall have power to designate the officers and agents who shall have authority to execute any instrument on behalf of this Corporation.

Section 7. Corporate Books and Records . The Corporation shall keep books and records of account and minutes of the proceedings of its shareholders, Board of Directors and executive committee, if any. The books, records, and minutes may be kept outside this state. The Corporation shall keep at its registered office, or at the office of its transfer agent within or without this state, records containing the names and addresses of all

14


EXHIBIT 3.2

shareholders; the number, class and series of shares held by each; and, the dates when they respectively became holders of record. Any of such books, records, or minutes shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Corporation shall convert into written form without charge any such record not in written form, unless otherwise requested by a person entitled to inspect the record.

Section 8. Seal . The corporate seal shall have inscribed thereon the name of the Corporation and the words “Corporate Seal, Michigan.” The seal may be used by causing it or a facsimile thereof to be impressed, affixed, reproduced or otherwise. A seal shall not be a prerequisite for the validity or enforceability of any agreement, instrument or other document of the Corporation.

ARTICLE X

AMENDMENTS

These bylaws may be altered, amended, or repealed, in whole or in part, or new bylaws may be adopted, by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal, or adoption of new bylaws be contained in the notice of such meeting of the Board of Directors. Except as otherwise required by statute, the Restated Articles of Incorporation, or these bylaws, these bylaws may be altered, amended, or repealed, in whole or in part, or new bylaws may be adopted, by the shareholders upon the affirmative vote of at least two-thirds (2/3) of the total voting power of all shares of stock entitled to vote, voting together as a single class. 

 

-23-

 

15

EXHIBIT 10.15

Schedule to Notes in Form of Employment Agreement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Note (A)

  

Note (B)

  

Note (C)

  

Note (D)

 

  

Note (E)

 

KATHLEEN M. MAHONEY

  

December 2, 2013

  

Executive Vice President, General Counsel and Secretary

  

 

325,000

  

  

 

360,000

  

EDWARD L. BRUNOT

  

December 3, 2013

  

Executive Vice President, President of MDV

  

 

400,000

  

  

 

412,000

  

Christopher P Meyers

  

April 11, 2016

  

Executive Vice President Chief Financial Officer

  

 

450,000

  

  

 

n/a

  

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made by SpartanNash Company, a Michigan corporation (the “ Company ”), and     (A)     (“ Executive ”). The parties agree as follows:

1.  Effective Date and Term . This Agreement will take effect as of     (B)     (“ Effective Date ”), and will remain in effect during Executive’s Employment (as defined in Section 2) and thereafter as to those provisions that expressly state that they will remain in effect after termination of Executive’s employment.

2.  Employment . Executive will serve as     (C)     of the Company or an Affiliate, or may be transferred to another management position with the Company or an Affiliate at the same or a different location and at the same or greater annual salary and bonus opportunity (except for economic or business motivated salary changes described in Section 5(b)(i) and changes to bonus opportunity), as may be assigned by the Company (the “ Employment ”). If Executive refuses a transfer permitted by the preceding sentence Executive will be deemed to have resigned from the Employment and will not be entitled to severance pay under Section 6 or otherwise. Executive will perform the duties assigned from time to time to Executive’s position. The Employment will be full time and Executive’s entire business time and efforts will be devoted to the Employment, except as otherwise provided by written Company policy. Executive agrees to comply with Company policies, including but not limited to any applicable Company policy requiring Executive to own shares of common stock in the Company. As used in this Agreement, the term “ Affiliate ” includes any organization controlling, controlled by or under common control with the Company.

3.  Term of Employment . The term of the Employment will be indefinite and will continue until terminated pursuant to this Agreement.

4.  Compensation . Executive will be compensated during the Employment as follows:

(a)  Salary . The Executive’s salary as of the Effective Date is $    (D)     per year (or a pro-rated weekly amount for any partial year), [to be increased to $    (E)     effective December 29, 2013,] 1  subject to normal payroll deductions and payable in accordance with the Company’s normal payroll practices. Executive’s salary will be reviewed annually by the Company and subject to the limitations in Section 5(b)(i) may be adjusted to reflect Company determinations of Executive’s performance, Company performance, or business or economic conditions.

(b)  Bonus . Executive will be eligible to participate in any bonus programs designated by the Company from time to time for executives occupying positions at the same level as Executive’s position, in accordance with the terms of such programs, which are subject to change from time to time in the Company’s discretion.

 

 

 

 


1  

This language is omitted in the case of Mr. Meyers.

 

 

(c)  Benefits . Executive will be eligible to participate in fringe benefit programs covering the Company’s salaried employees as a group, and in any programs applicable under Company policy to executives occupying positions at the same level as Executive’s position. The terms of applicable insurance policies and benefit plans in effect from time to time will govern with regard to specific issues of coverage and benefit eligibility. All benefit programs are subject to change from time to time in the Company’s discretion.

(d)  Relocation Assistance . Executive agrees to relocate to the Grand Rapids, Michigan area within nine months after the Effective Date. Executive will receive Company-paid relocation assistance pursuant to the Company’s relocation assistance policy and the Company’s offer letter to Executive. Executive agrees that if Executive resigns other than for Good Reason during the first twelve (12) months of Executive’s relocation to the Grand Rapids, Michigan area, Executive will repay the Company for all relocation expenses paid by the Company in connection with Executive’s relocation. 2

(e)  Business Expenses . The Company will reimburse Executive for reasonable, ordinary and necessary business expenses that are specifically authorized or authorized by Company policy, subject to Executive’s prompt submission of proper documentation for tax and accounting purposes. Such expenses shall be reimbursed within thirty (30) days after Executive requests reimbursement, but in no event later than two and one-half (2   1 / 2 ) months after the end of the year in which the expense is incurred.

 

 

5.  Termination of Employment.

(a)  Termination Without Severance Pay . Executive shall not be entitled to any further compensation from the Company or any Affiliate after termination of the Employment as permitted by this Section 5(a), except (A) unpaid salary installments through the end of the week in which the Employment terminates, and (B) any vested benefits accrued before the termination of Employment under the terms of any written Company policy or benefit program.

i.  Death . The Employment will terminate automatically upon Executive’s death.

ii.  Disability . If Executive is unable to perform Executive’s duties under this Agreement due to physical or mental disability for a continuous period of one hundred eighty (180) days or longer and Executive is eligible for benefits under the Company’s long-term disability insurance policy (“long-term disability benefits”), the Company may terminate the Employment under this Section 5(a)(ii). If the Company terminates the Employment as the result of Executive’s inability to perform Executive’s duties for less than one hundred eighty (180) days due to a disability, the termination of Employment will be deemed to be pursuant to Section 5(b)(ii) below.

iii.  Termination by Company for Cause . The Company may terminate the Employment for “ Cause ,” defined as Executive’s: (A) breach of any provision of Sections 7, 8, or 9 of this Agreement; (B) willful continued failure to perform or willful poor performance of duties (other than due to disability) after warning and reasonable opportunity to meet reasonable required performance standards; (C) gross negligence causing or placing the Company at risk of significant damage or harm; (D) misappropriation of or intentional damage to Company property; (E) conviction of a felony (other than negligent vehicular homicide); or (F) intentional act or omission that Executive knows or should know is significantly detrimental to the interests of the Company.

If the Company becomes aware after termination of the Employment other than for Cause that Executive engaged before the termination of Employment in willful misconduct constituting Cause, the Company may recharacterize Executive’s termination as having been for Cause.

 

 

 


2  

Subsection (d) is omitted only in the case of the President of MDV, and the subsequent subsection is renumbered accordingly.

 

 

iv.  Discretionary Termination by Executive . Executive may terminate the Employment at will, with at least thirty (30) days advance written notice. If Executive gives such notice of termination, the Company may (but need not) relieve Executive of some or all of Executive’s responsibilities for part or all of such notice period, provided that Executive’s pay and benefits are continued for the lesser of thirty (30) days or the remaining period of the Employment.

 

(b)  Termination With Severance Pay . Executive shall not be entitled to any further compensation from the Company or any Affiliate after termination of the Employment as permitted by this Section 5(b), except (A) unpaid salary installments through the end of the week in which the Employment terminates, (B) any vested benefits accrued before the termination of Employment under the terms of any written Company policy or benefit program, and (C) any Severance Pay to which Executive is entitled under this Section 5(b).

i.  Termination by Executive for Good Reason . Executive may terminate the Employment for “ Good Reason ” if and only if the Company materially breaches the Company’s obligations to Executive under this Agreement, or materially reduces Executive’s salary other than an economic or business motivated reduction accompanied by proportionate reductions in the salaries of all other similarly situated executives [and the material breach or material reduction occurs on or after November 19, 2015] 3 . Executive may not resign for Good Reason unless (A) Executive notifies the Company’s Chief Executive Officer in writing, within thirty (30) days after the act or omission in question, asserting that the act or omission in question constitutes Good Reason and explaining why, (B) the Company fails, within thirty (30) days after the notification, to take all reasonable steps to cure the breach, and (C) Executive resigns by written notice within thirty (30) days after expiration of the thirty (30) day period under Section 5(b)(i)(B). If Executive terminates the Employment for Good Reason, Executive will be entitled to Severance Pay as provided in and subject to Section 6. Executive’s failure to object to a material breach as provided above will not waive Executive’s right to resign with Good Reason after following the above procedure with regard to any subsequent material breach.

ii.  Discretionary Termination by Company . The Company may terminate the Employment at will, but if the Company does so [on or after November 19, 2015, then] 4  Executive will be entitled to Severance Pay as provided in and subject to Section 6. Any termination of Executive’s Employment by the Company under Section 5(a) that is found not to meet the standards of such Section will be considered to have been a termination under Section 5(b)(ii).

 

6.  Severance Pay . The Company will pay and provide Executive with the payments and benefit continuation provided in this Section 6 (“ Severance Pay ”) upon Executive’s “separation from service” as that term is defined by Section 409A of the Internal Revenue Code  (the “ Code ”), if Executive’s Employment is terminated as provided in Section 5(b) [on or after November 19, 2015] 5 , and the Executive contemporaneously or subsequently experiences a separation from service. [No Severance Pay will be paid under this Agreement under any circumstances if Executive’s Employment terminates before November 19, 2015.] 6

 

 

3, 4,5, 6  

This language is included only in the case of Ms. Mahoney.

 

 

 


 

(a)  Amount and Duration of Severance Pay . Subject to the other provisions of this Section, Severance Pay will consist of:

i.  Cash Payment.  A lump sum cash payment equal to fifty-two (52) weeks of Executive’s salary as of the date on which Executive’s separation from service occurs, payable as provided in Section 6(b). The lump sum cash payment will be considered wages allocated equally to each of the weeks covered by the payment for purposes of any applicable unemployment compensation or workers compensation laws, and any applicable disability insurance program, but will not be considered to extend Executive’s employment beyond the date of Executive’s separation from service under any Company qualified retirement plan or other Company benefit plan or program.

ii.  Health Coverage Reimbursement . Reimbursement to Executive by the Company of the COBRA continuation coverage premiums incurred and paid by Executive to continue Executive’s then current employee and dependent health, dental, and prescription drug coverage for fifty-two (52) weeks after the date of termination of the Employment, provided that (A) Executive elects and remains eligible for COBRA continuation coverage, (B) Executive continues to pay the normal employee contribution for such coverage, and (C) that the Company’s obligation to provide coverage will end if Executive becomes eligible for comparable coverage from a new employer. Reimbursement for each monthly premium paid by Executive will be made not later than thirty (30) days after Executive requests reimbursement, but in no event later than the end of the second year after that in which the Executive’s separation from service occurs. Reimbursements under this Section 6(a)(ii) will be reported as part of Executive’s W-2 compensation and will be subject to Federal income tax withholding.

iii.  Outplacement Assistance . Up to six (6) months of outplacement assistance from an outplacement assistance firm approved by the Company. All costs under this Section 6(a)(iii) must be incurred during the period beginning with the date of Executive’s separation from service and ending not later than the last day of the year following that in which the Executive’s separation from service occurs, and will be paid not later than sixty (60) days after the expense is incurred and billed to the Company.

 

 

 

 

(b)  Payment Terms.  The lump sum cash payment under Section 6(a)(i) will be made on the Company’s first normal pay date after the release provided for in Section 6(c)(iii) becomes effective and any revocation period provided for in the release has expired. In no event will the latest date for (A) signing of the release, and (B) expiration of any revocation period in the release, and (C) the completion of payments under Section 6(a)(i), be deferred beyond the fifteenth (15th) day of the third (3rd) month after the end of the year in which the Executive’s separation from service occurs.

The Executive will receive the payments called for by Section 6(a)(i) notwithstanding any other earnings that Executive may have, and subject to offset only as provided in Section 6(d). If Executive dies before all payments under Section 6(a) have been made, the lump sum cash payment will be paid to Executive’s designated beneficiary (or Executive’s estate if Executive fails to designate a beneficiary), and health coverage continuation under Section 6(a)(ii) will continue for Executive’s eligible dependents for the remainder of the fifty-two (52) week period subject to the conditions in Sections 6(a)(ii)(A) and (B). If Executive becomes eligible for long-term disability benefits , no further payments will be made under Section 6(a)(i) after the date that Executive is eligible to begin receiving such disability benefits.

(c)  Conditions to Severance Pay . To be eligible for Severance Pay, Executive must meet the following conditions: (i) Executive must comply with Executive’s obligations under this Agreement that continue after termination of the Employment; (ii) Executive must not claim unemployment compensation for any week for which Executive receives payment  under Section 6(a)(i) above; (iii) Executive must promptly sign and continue to honor a release, in form acceptable to the Company, of any and all claims arising out of or relating to Executive’s Employment or its termination and that Executive might otherwise have against the Company, the Company’s Affiliates, [or] any of their officers, directors, employees and agents, provided that the release will not waive Executive’s right to any payments due under this Section or Section 5, or any right of Executive to liability insurance coverage under any liability insurance policy or to indemnification under the Company’s Articles of Incorporation or Bylaws or any written


indemnification agreement; (iv) Executive must reaffirm in writing upon request by Company Executive’s obligations under Sections 7, 8 and 9 of this Agreement; (v) Execu tive must resign upon written request by Company from all positions with or representing the Company or any Affiliate, including but not limited to membership on boards of directors; and (vi) Executive must provide the Company for a period of ninety (90) d ays after the Employment termination date with consulting services regarding matters within the scope of Executive’s former duties, upon request by the Company’s Chief Executive Officer; Executive will only be required to provide those services by telephon e at Executive’s reasonable convenience and without substantial interference with Executive’s other activities or commitments. The Executive will receive the salary continuation provided in Section 6(a)(i) notwithstanding any other earnings that Executive may have, and subject to offset only as provided in Section 6(d). If Executive dies during the Severance Pay Period, salary continuation under Section 6(a)(i) will continue for the remainder of the Severance Pay Period for the benefit of Executive’s design ated beneficiary (or Executive’s estate if Executive fails to designate a beneficiary), and health coverage continuation under Section 6(a)(ii) will continue for Executive’s eligible dependents for the remainder of the Severance Pay Period subject to the c onditions in Sections 6(a)(ii)(A) and (B). If Executive becomes eligible for long-term disability benefits during the Severance Pay Period, Severance Pay will end on the date that Executive is eligible to begin receiving such disability benefits.

 

(d)  Offsets to Severance Pay . The Severance Pay due to Executive under Section 6(a)(i) will be reduced (but not below 0) by: (i) any disability benefits to which Executive i] entitled for any portion of the fifty-two (52) week period covered by Section 6(a)(i) under any disability insurance policy or program of the Company or any Affiliate (including but not limited to worker’s disability compensation); (ii) any severance pay payable to Executive under any other agreement or Company policy; (iii) any payment due to Executive under the Federal Worker Adjustment and Retraining Notification Act or any comparable state statute or local ordinance; and (iv) any amount owing by Executive to the Company that the Company is legally entitled to set off against the Severance Pay under applicable law.

7.  Loyalty and Confidentiality; Certain Property and Information .

(a)  Loyalty and Confidentiality . Executive will be loyal to the Company during the Employment and will forever hold in strictest confidence, and not use or disclose, any information regarding techniques, processes, developmental or experimental work, trade secrets, customer or prospect names or information, or proprietary or confidential information relating to the current or planned products, services, sales, pricing, costs, employees or business of the Company or any Affiliate, except as disclosure or use may be required in connection with Executive’s work for the Company or any Affiliate or as may be compelled pursuant to court order or subpoena. Executive will also keep the terms of this Agreement confidential. The Executive’s commitment not to use or disclose information does not apply to information that becomes publicly known without any breach of this Agreement by Executive.

 

 

 

(b)  Certain Property and Information . Upon termination of the Employment, Executive will deliver to the Company any and all property owned or leased by the Company or any Affiliate and any and all materials and information (in whatever form) relating to the business of the Company or any Affiliate, including without limitation all customer lists and information, financial information, business notes, business plans, documents, keys, credit cards and other Company-provided equipment. All Company property will be returned promptly and in good condition except for normal wear.

Executive’s commitments in this Section will continue in effect after termination of the Employment. The parties agree that any breach of Executive’s covenants in this Section would cause the Company irreparable harm, and that injunctive relief would be appropriate.

8.  Ideas, Concepts, Inventions and Other Intellectual Property . All business ideas and concepts and all inventions, improvements, developments and other intellectual property made or conceived by Executive, either solely or in collaboration with others, during the Employment, whether or not during working hours, and relating to the business or any aspect of the business of the Company or any Affiliate or to any business or product the Company or any Affiliate is actively planning to enter or develop, shall become and remain the exclusive property of the Company, and the Company’s successors and assigns. Executive shall disclose promptly in writing to the Company all such inventions, improvements, developments and other intellectual property, and will cooperate in


confirming, protecting, and obtaining legal protection o f the Company’s ownership rights. Executive’s commitments in this Section will continue in effect after termination of the Employment as to ideas, concepts, inventions, improvements and developments and other intellectual property made or conceived in whol e or in part before the date the Employment terminates. The parties agree that any breach of Executive’s covenants in this Section would cause the Company irreparable harm, and that injunctive relief would be appropriate.

Executive represents and warrants that there are no ideas, concepts, inventions, improvements, developments or other intellectual property that Executive invented or conceived before becoming employed by the Company to which Executive, or any assignee of Executive, now claims title, and that would be covered by this Section if made or conceived by Employee during the Employment.

9.  Covenant Not to Compete.

(a)  Executive’s Commitments . During the Employment Executive will not do or prepare to do, and for twelve (12) months after any termination of the Employment Executive will not do, any of the following:

i. directly or indirectly compete with the Company or any Affiliate; or

ii. be employed by, perform services for, advise or assist, own any interest in or loan or otherwise provide funds to, any other business that is engaged (or seeking Executive’s services with a view to becoming engaged) in any Competitive Business (as defined below); or

 

iii. solicit or suggest, or provide assistance to anyone else seeking to solicit or suggest, that any person having or contemplating a Covered Relationship (as defined below) with the Company or an Affiliate refrain from entering into or terminate the Covered Relationship, or enter into any similar relationship with anyone else instead of the Company or the Affiliate.

This Section 9 does not prohibit Executive from owning not more than two percent (2%) of any class of securities of a publicly traded entity, provided that Executive does not engage in other activity prohibited by this Section 9.

Executive’s commitments in this Section will continue in effect after termination of the Employment for the twelve (12) month period set forth above. The parties agree that any breach of Executive’s commitments in this Section would cause the Company irreparable harm, and that injunctive relief would be appropriate.

(b)  Definitions . As used in this Section 9:

i. “ Competitive Business ” means a business that:

(A) owns, operates or sells or supplies products similar to or that substitute for products supplied by the Company or an Affiliate to any Covered Operation (as defined below) that is located within fifteen (15) miles of any Covered Operation that the Company or an Affiliate owns or operates, or to which the Company or an Affiliate sells or supplies products; or

(B) provides food or other grocery products to any military commissary or exchange, within or outside the U.S., directly or under a subcontract.

ii. “ Covered Operation ” means any grocery store, grocery superstore, mass merchandiser, wholesale club, supermarket, limited assortment store, convenience store, drug store, pharmacy or any other store that offers grocery or food products separate or in combination with pharmaceutical products, general merchandise or other nonfood products, or any grocery or convenience store product distribution facility.

iii. “ Covered Relationship ” means a customer relationship, a vendor relationship, an employment relationship, or any other contractual or independent contractor relationship.

 

 

10.  Amendment and Waiver . No provisions of this Agreement may be amended, modified, waived or discharged unless the waiver, modification, or discharge is authorized by the Company’s Board of Directors, or a


committee of the Board of Directors, and is agreed to in a writing signed by Executi ve and by the Chief Executive Officer of the Company. No waiver by either party at any time of any breach or non-performance of this Agreement by the other party shall be deemed a waiver of any prior or subsequent breach or non-performance.

11.  Severability . The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect. If a court of competent jurisdiction ever determines that any provision of this Agreement (including, but not limited to, all or any part of the non-competition covenant in this Agreement) is unenforceable as written, the parties intend that the provision shall be deemed narrowed or revised in that jurisdiction (as to geographic scope, duration, or any other matter) to the extent necessary to allow enforcement of the provision. The revision shall thereafter govern in that jurisdiction, subject only to any allowable appeals of that court decision.

12.  Entire Agreement . No agreements or representations, oral or otherwise, express or implied, with respect to Executive’s Employment with the Company or any Affiliate or any of the subjects covered by this Agreement have been made by either party that are not set forth expressly in this Agreement and the Executive Severance Agreement between Executive and the Company (“ Executive Severance Agreement ”), and this Agreement supersedes any pre-existing employment agreements ***  7 .

13.  Non-Contravention . Executive represents and warrants that:

(a)  No Restrictive Agreement . Executive is not a party to or bound by any agreement that purports to prevent or restrict Executive from: (A) engaging in the Employment that Executive has been offered by the Company; (B) inducing any person to become an employee of the Company; (C) using any information and expertise that Executive possesses (other than information constituting a trade secret of another person under applicable law) for the benefit of the Company; or (D) performing any obligation under this Agreement.

 

 

 

7  

In the case of Ms. Mahoney, “with the Company, any Affiliate, or Nash-Finch Company or any Nash-Finch Company Subsidiary, and any other agreements on the subjects covered by this Agreement (including but not limited to Executive’s offer letter agreement with Nash-Finch Company dated November 19, 2009), except the Executive Severance Agreement, Executive’s Indemnification Agreement with Nash-Finch Company dated November 9, 2007, and Executive’s change in control letter agreement with Nash-Finch Company dated November 19, 2009, as amended (other than the non-competition restrictions in Section 3(iv) of Executive’s letter agreement with Nash-Finch Company dated November 19, 2009, as amended, which are superseded by the covenant not to compete in Section 9 of this Agreement).”

 

In the case of Mr. Brunot, “with the Company, any Affiliate, or Nash-Finch Company or any Nash-Finch Company Subsidiary, and any other agreements on the subjects covered by this Agreement (including but not limited to Executive’s offer letter agreement with Nash-Finch Company dated February 27, 2012, and Executive’s change in control letter agreement with Nash-Finch Company dated February 27, 2012), except the Executive Severance Agreement and Executive’s Indemnification Agreement with Nash-Finch Company dated November 9, 2007.”

 

 

In the case of Mr. Meyers, “and any other agreements on the subjects covered by this Agreement, except the Executive Severance Agreement.”

 

 

(b)  No Abuse of Confidential Information or Trade Secrets . Executive will not use in the course of Executive’s Employment with the Company, or disclose to the Company or its personnel, any information belonging to any other person that is subject to any confidentiality agreement with or constitutes a trade secret of another person.

14.  Dispute Resolution .

(a)  Arbitration . The Company and Executive agree that except as provided in Section 14(b) the sole and exclusive method for resolving any dispute between them arising out of or relating to this Agreement shall be arbitration under the procedures set forth in this Section, except that nothing in this


Section prohibits a party from seeking preliminary or permanent judicial injunctive relief, or from seeking judicial enforcem ent of the arbitration award. The arbitrator shall be selected pursuant to the Rules for Commercial Arbitration of the American Arbitration Association. The arbitrator shall hold a hearing at which both parties may appear, with or without counsel, and pres ent evidence and argument. Pre-hearing discovery shall be allowed in the discretion of and to the extent deemed appropriate by the arbitrator, and the arbitrator shall have subpoena power. The procedural rules for an arbitration hearing under this Section shall be the rules of the American Arbitration Association for Commercial Arbitration hearings and any rules as the arbitrator may determine. The hearing shall be completed within ninety (90) days after the arbitrator has been selected and the arbitrator s hall issue a written decision within sixty (60) days after the close of the hearing. The hearing shall be held in Grand Rapids, Michigan. The award of the arbitrator shall be final and binding and may be enforced by and certified as a judgment of the Circu it Court for Kent County, Michigan or any other court of competent jurisdiction. One-half of the fees and expenses of the arbitrator shall be paid by the Company and one-half by Executive. The attorney fees and expenses incurred by the parties shall be pai d by each party. Notwithstanding the foregoing, however, the Company will reimburse the Executive for Executive’s portion of the arbitrator’s fees and expenses, and the Executive’s reasonable attorney fees and expenses incurred in connection with the arbit ration proceeding, if the Executive substantially prevails in the arbitration proceeding or, if the Executive prevails in part, then the Company will reimburse a proportionate part of such fees and expenses, with such proportion to represent the approximat e portion of such fees and expenses relating to the issues on which the Executive prevailed. The decision as to whether the Executive has substantially prevailed, or prevailed in part, and on the amount to be reimbursed to the Executive under the standards in this Section, will be made by the arbitrator. Reimbursement of attorney fees and expenses called for by this Section must be made within sixty (60) days after receipt by the Company of the arbitrator’s award, but in no event after the last day of the y ear following that in which the expense being reimbursed was incurred.

(b) Section 14(a) shall be inapplicable to a dispute arising out of or relating to Sections 7, 8 or 9 of this Agreement.

 

15.  Assignability . This Agreement contemplates personal services by Executive, and Executive may not transfer or assign Executive’s rights or obligations under this Agreement, except that Executive may designate beneficiaries for Severance Pay in the event of Executive’s death, and may designate beneficiaries for benefits as allowed by the Company’s benefit programs. This Agreement may be assigned by the Company to any subsidiary or parent corporation or a division of that corporation, but the Company shall remain liable for any Severance Pay due under this Agreement and not paid by any assignee. The Company is not required to assign this Agreement but if the Agreement is assigned as provided above, Executive will be given notice and this Agreement will continue in effect.

16.  Notices . Notices to a party under this Agreement must be personally delivered or sent by certified mail (return receipt requested) and will be deemed given upon post office delivery or attempted delivery to the recipient’s last known address. Notices to the Company must be sent to the attention of the Company’s Chief Executive Officer.

17.  Governing Law . The validity, interpretation, and construction of this Agreement are to be governed by Michigan laws, without regard to choice of law rules. The parties agree that any judicial action involving a dispute arising under this Agreement will be filed, heard and decided in either Kent County Circuit Court or the U.S. District Court for the Western District of Michigan. The parties agree that they will subject themselves to the personal jurisdiction and venue of either court, regardless of where Executive or the Company may be located at the time any action may be commenced. The parties agree that Kent County is a mutually convenient forum and that each of the parties conducts business in Kent County.

18.  Counterparts . This Agreement may be signed in original or by fax in counterparts, each of which shall be deemed an original, and together the counterparts shall constitute one complete document.

19.  Section 409A.  This Agreement is intended to be exempt from Section 409A of the Code partially as a short-term deferral as that term is understood under Treasury Regulations Section 1.409A-1(b)(4) and partially as an involuntary separation pay plan as that term is understood under Treasury Regulation 1.409A-1(b)(9) and shall be interpreted and operated consistently with those intentions. Notwithstanding any other provision to the contrary, the total payments under this Agreement, other than the lump sum cash payment under Section 6(a)(i), are limited to the 409A Limit to avoid the application of Section 409A of the Code to this Agreement. “ 409A Limit ” means the lesser


of (1) two times Executive’s annualized compensation as determined under Section 409A of the Code; or ( 2) two times the maximum amount that may be taken into account under a qualified retirement plan under Section 401(a)(17) of the Code for the year in which Executive experiences a separation from service. If the benefits under this Agreement are required t o be limited by the Section 409A Limit, the first benefit to be limited will be reimbursements otherwise called for by Section 14. If further limitation is required, the remaining benefits under this Agreement, disregarding the lump sum cash payment under Section 6(a)(i), shall be limited pro rata until the benefits payable under the Agreement do not exceed the 409A Limit.

 

 

20.  Coordination of Severance Pay Under This Agreement With Executive Severance Agreement . If Executive receives Severance Benefits under Section 3 of the Executive Severance Agreement, Executive will not be entitled to Severance Pay under this Agreement. If Executive becomes entitled to receive Severance Benefits under Section 3 of the Executive Severance Agreement after receiving Severance Pay under this Agreement, the amount of Severance Benefits to which Executive is entitled under Section 3 of the Executive Severance Agreement will be reduced by the amount of Severance Pay received by Executive under this Agreement.

The parties have signed this Employment Agreement as of the Effective Date in Section 1.

SPARTAN STORES, INC.

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

Dennis Eidson

 

 

 

    (A)    

Its:

 

President and Chief Executive Officer

 

 

 

“Executive”

 

 

“Company”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 10.17

 

 

Schedule to Notes in Form of Executive Severance Agreement

 

 

 

 

 

Note (A)

  

Note (B)

  

KATHLEEN M. MAHONEY

  

December 2, 2013

  

EDWARD L. BRUNOT

  

December 3, 2013

  

Christopher P. Meyers

  

April 11, 2016

  

 

 

EXECUTIVE SEVERANCE AGREEMENT

 

 

THIS AGREEMENT is entered into as of      (B)     (the “ Effective Date ), by and between SPARTANNASH COMPANY, a Michigan corporation (“ SpartanNash ”), and      (A)    (“ Executive ”).  

 

W I T N E S S E T H:

 

WHEREAS, Executive currently serves as a key employee of SpartanNash and/or its subsidiaries (the “ Company ”) and his services and knowledge are valuable to the Company in connection with the management of one or more of the Company’s principal operating facilities, divisions, or subsidiaries; and

 

WHEREAS, the Company considers the establishment and maintenance of a sound and vital management to be essential to protecting and enhancing the best interests of the Company and its shareholders; and

 

WHEREAS, the Board has determined that it is in the best interests of the Company and its shareholders to secure Executive’s continued services and to ensure Executive’s continued dedication and objectivity in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as hereafter defined) of the Company, without concern as to whether Executive might be hindered or distracted by personal uncertainties and risks created by any such possible Change in Control, and to encourage Executive’s full attention and dedication to the Company and/or its subsidiaries, the Board has authorized the Company to enter into this Agreement.

 

NOW, THEREFORE, THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:

 

 

1.   

Definitions.   As used in this Agreement, the following terms shall have the respective meanings set forth below:

 

(a) Board ” means the Board of Directors of the Company.

 

(b) Cause ” means (1) the willful and continued failure by Executive to substantially perform his duties with the Company (other than any such failure resulting from Executive’s incapacity due to physical or mental injury or illness, or any such actual or anticipated failure resulting from Executi ve’s termination for Good Reason) after a demand for substantial performance is delivered to Executive by the Board (which demand shall specifically identify the manner in which the Board believes that Executive has not substantially performed

 

 

 


 

Executive’s d uties); or (2) the willful engaging by Executive in gross misconduct materially and demonstrably injurious to the Company.  For purposes of this Section, no act or failure to act on the part of Executive shall be considered “willful” unless done or omitte d to be done by Executive not in good faith and without reasonable belief that his action(s) or omission(s) was in the best interests of the Company.  Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause unless and until the Company provides Executive with a copy of a resolution adopted by an affirmative vote of not less than two-thirds of the entire membership of the Board at a meeting of the Board called and held for the purpose (after reasonable notice to Executi ve and an opportunity for Executive, with counsel, to be heard before the Board), finding that in the good faith opinion of the Board the Executive has been guilty of conduct set forth in subsections (1) or (2) above, setting forth the particulars in detai l.  A determination for Cause by the Board shall not be binding upon or entitled to deference by any finder of fact in the event of a dispute, it being the intent of the parties that such finder of fact shall make an independent determination of whether th e termination was for “Cause” as defined in (1) or (2) above.

 

 

(c)

Change in Control ” means:

 

(1) the acquisition by any individual, entity, or group (a “ Person ”), including any “person” within the meaning of Sections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act, of 20% or m ore of either (i) the then outstanding shares of common stock of the Company (the “ Outstanding Company Common Stock ”) or (ii) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of director s (the “ Outstanding Company Voting Securities ”); provided, however, that the following acquisitions shall not constitute a Change in Control: (A) any acquisition by the Company, (B) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any Person controlled by the Company, (C) any acquisition by any corporation pursuant to a reorganization, merger, or consolidation involving the Company, if, immediately after such reorganization, merger, or consolidation, each of the conditions described in clauses (i), (ii), and (iii) of subsection (c)(3) shall be satisfied, or (D) any acquisition by the Executive or any group of persons including the Executive; and provided further that, for purposes of clause (A), if any Person (other than the Company or any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company) shall become the beneficial owner of 20% or more of the Outstanding Company Common Stock or 20% or more of the Outstanding Company Voting Securities by reason of an acquisition by the Company and such Person shall, after such acquisition by the Company, become the beneficial owner of any additional shares of the Outstanding Company Common Stock o r any additional Outstanding Company Voting Securities, such additional beneficial ownership shall constitute a Change in Control;

 

(2) individuals who, as of the date hereof, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of such Board; provided, however, that any individual who becomes a director of the Company subsequent to the date hereof whose election, or nomination for election by the shareholders of the Company, was approved by the vote of at least two-thirds of the directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for

2

 


 

director, without objection to such nomination) shall be deemed to have been a member of the Incumbent Board; and provided further, that no individual who was initially elected as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board, shall be deemed to have been a member of the Incumbent Board;

 

(3) the effective time and consumma tion of  a reorganization, merger, or consolidation approved by the shareholders of the Company unless, in any such case, immediately after such reorganization, merger, or consolidation, (i) more than 50% of the then outstanding shares of common stock of the corporation resulting from such reorganization, merger, or consolidation and more than 50% of the combined voting power of the then outstanding securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals or entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such reorganization, merger, or consolidation and in substantially the same proportions relative to each other as their ownership, immediately prior to such reorganization, merger, or consolidation, of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (ii) no Person (other than (A) the Company, any employee benefit plan (or related trust) sponsored or maintained by the Company or the corporation resulting from such reorganization, merger, or consolidation (or any corporation controlled by the Company), or (B) any Person which beneficially owned, immediately prior to such reorganization, merger, or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Stock or the Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of the then outstanding shares of common stock of such corporation or 20% or more of the combined voting power of the then outstanding securities of such corporation entitled to vote generally in the election of directors, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger, or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such reorganization, merger, or consolidation; or

 

(4) the effective time and consummation of  (i) a plan of complete liquidation or dissolution of the Company as approved by the shareholders of the Company or (ii) the sale or other disposition of all or substantially all of the assets of the Company as approved by the shareholders of the Company other than to a corporation with respect to which, immediately after such sale or other disposition, (A) more than 50% of the then outstanding shares of common stock thereof and more than 50% of the combined voting power of the then outstanding securities thereof entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such sale or other disposition and in substantially the same proportions relative to each other as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (other than the Company, any employee benefit plan (or related trust) sponsored or maintained

3

 


 

by the Company or such corporation (or any corporation controlled by the Company), or any Person which beneficially owned, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common Stock or the Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of the then outstanding shares of common stock thereof or 20% or more of the combined voting power of the then outstanding securities thereof entitled to vote generally in the election of directors and (C) at least a majority of the members of the board of directors thereof were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition.

 

Notwithstanding anything contained in this Agreement to the contrary, if Executive’s employment is terminated prior to a Change in Control and Executive reasonably demonstrates that such termination was at the request of or in response to a third party who has indicated an intention or taken steps reasonably calculated to effect a Change in Control (a “ Third Party ”), and who subsequently effectuates a Change in Control, then for all purposes of this Agreement, the date of a Change in Control shall mean the date immediately prior to the date of such termination of Executive’s employment.

 

(d) Code ” means the Internal Revenue Code of 1986, as amended.

 

(e) Common Stock ” means the common stock of the Company, no par value per share.

 

(f) Date of Termination ” means the effective date on which Executive’s employment by the Company terminates as specified in a Notice of Termination by the Company or Executive, as the case may be , in a manner that constitutes a “separation from service” as that term is defined by Section 409A of the Code. Notwithstanding the previous sentence, (i) if the Executive’s employment is terminated for Disability, as defined in Section 1(g), then such Date of Termination shall be no earlier than thirty (30) days following the date on which a Notice of Termination is received, and (ii) if the Executive’s employment is terminated by the Company other than for Cause, then such Date of Termination shall be no earlier than thirty (30) days following the date on which a Notice of Termination is received.

 

( g) Disability ” means Executive’s failure to be available to substantially perform his duties with the Company on a full-time basis for at least one hundred eighty (180) consecutive days as a result of Executive’s incapacity due to mental or physical illness.

 

( h ) Good Reason ” means, without Executive’s express written consent, the occurrence of any of the following events after or in connection with a Change in Control:

 

(1) (i) the assignment to Executive of any duties inconsistent in any material adverse respect with Executive’s position(s), duties, responsibilities, or status with the Company immediately prior to such Change in Control, (ii) a material adverse change in Executive’s positions, reporting responsibilities, titles or offices with the Company as in effect immediately prior to such Change in Control, (iii) any removal or involuntary termination of Executive by the Company otherwise than as expressly permitted by this Agreement (including any purported termination of employment which is not effected by a Notice of Termination), or (iv) any failure to re-elect Executive to any position with the Company held by Executive immediately prior to such Change in Control;

 

4

 


 

(2) a reduction by the Company in Executive’s rate of annual base salary as in effect immediately prior to such Change in Control or as the same may be increased from time to time thereafter;

 

(3) any requirement of the Company that Executive (i) be based anywhere other than the facility where Executive is located at the time of the Change in Control or reasonably equivalent facilities within Kent County, Michigan [in t he case of Mr. Brunot, Norfolk, Virginia or the surrounding area] or (ii) engage in business travel to an extent substantially more burdensome than the travel obligations of Executive immediately prior to such Change in Control;

 

(4) the failure of the Com pany to continue the Company’s executive incentive plans or bonus plans in which Executive is participating immediately prior to such Change in Control or a reduction of the Executive’s target incentive award opportunity under any such bonus plan, unless Executive is permitted to participate in other plans providing Executive with substantially comparable benefits or receives compensation as a substitute for such plans providing Executive with a substantially equivalent economic benefit;

 

(5) the failure of the Company to (i) continue in effect any employee benefit plan or compensation plan in which Executive is participating immediately prior to such Change in Control, unless Executive is permitted to participate in other plans providing Executive with substantially comparable benefits or receives compensation as a substitute for such plans providing Executive with a substantially equivalent after-tax economic benefit, or the taking of any action by the Company which would adversely affect Executive’s participation in or materially reduce Executive’s benefits under any such plan, (ii) provide Executive and Executive’s dependents with welfare benefits (including, without limitation, medical, prescription, dental, disability, salary continuance, employee life, group life, accidental death and travel accident insurance plans and programs) in accordance with the most favorable plans, practices, programs, and policies of the Company in effect for Executive immediately prior to such Change in Control, (iii) provide other fringe benefits in accordance with the most favorable plans, practices, programs, and policies of the Company in effect for Executive immediately prior to such Change in Control, or (iv) provide Executive with paid vacation in accordance with the most favorable plans, policies, programs and practices of the Company as in effect for Executive immediately prior to such Change in Control;

 

(6) the failure of the Company to pay any amounts owed Executive as salary, bonus, deferred compensation or other co mpensation;

 

(7) the failure of the Company to obtain any assumption agreement contemplated in Section 9( b);

 

(8) any purported termination of Executive’s employment which is not effected pursuant to a Notice of Termination which satisfies the requirement s of a Notice of Termination; or

 

(9) any other material breach by the Company of its obligations under this Agreement.

 

5

 


 

For purposes of this Agreement, any good faith determination of Good Reason made by Executive shall be conclusive on the parties; excep t that an isolated and insubstantial action taken in good faith and which is remedied by the Company within ten (10) days after receipt of notice thereof given by Executive shall not constitute Good Reason.  Any event or condition described in this Section 1( h ) which occurs prior to a Change in Control, but which Executive reasonably demonstrates was at the request of or in response to a Third Party who effectuates a Change in Control or who has indicated an intention or taken steps reasonably calculated to effect a Change in Control, shall constitute Good Reason following a Change in Control for purposes of this Agreement notwithstanding that it occurred prior to the Change in Control.

 

Executive may not terminate the employment for Good Reason unless:

 

(i) Executive notifies the Board in writing, within sixty (60) days after Executive becomes aware of the act or omission constituting Good Reason that the act or omission in question constitutes Good Reason and explaining why the Executive considers it to constitute Good Reason;

 

(ii) the Company fails, within ten (10) days after notice from Executive under (i) above, to revoke the action or correct the omission and make the Executive whole; and

 

(iii) Executive gives notice of termination within thirty (30) days after expiration of the ten (10) day period under (ii) above.

 

Executive’s failure to give notice as provided in (i) above will not waive Executive’s right to resign with Good Reason, provided that he follows the above procedure, with regard to any subsequent act or omission constituting Good Reason.

 

Executive need not fulfill the above conditions a second time if the Company repeats the act or omission constituting Good Reason.

 

(i) Mandatory Retirement ” means Executive’s involuntary retirement as required by a lawful Company policy requiring Executive to retire at or after age sixty‑five (65), but only if such policy is adopted by the Company before a Change in Control and only if such policy was not adopted by the Company at the request of or in response to a Third Party who subsequently effectuates a Change in Control.

 

(j) Nonqualifying Termination ” means a termination of Executive’s employment (1) by the Company for Cause, (2) by Executive for any reason (including a voluntary retirement) other than for Good Reason with Notice of Termination, (3) as a result of Executive’s death, ( 4) by the Company due to Executive’s Disability, unless within thirty (30) days after Notice of Termination is provided to Executive, Executive shall have returned (or offered to return, if not permitted by the Company to do so) to substantial performance of Executive’s duties on a full-time basis, or (5) as a result of Executive’s Mandatory Retirement.

 

( k) Notice of Termination ” means a written notice by the Company or Executive, as the case may be, to the other, which (1) indicates the specific reason for Executive’s termination, (2) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment, and (3) specifies the Date of Termination.  The failure by Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall

6

 


 

not waive any right of Executive or the Company hereunder or preclude Executive or the Company from asserting such fact or circumstance in enforcing Executive’s or the Company’s rights hereunder.

 

(l) Termination Period ” means the peri od of time beginning with a Change in Control and ending two (2) years following the Change in Control.

 

 

2.   

Term of Agreement.   This Agreement shall commence on the Effective Date and shall continue in effect until the Company has fulfilled all of its obligations under this Agreement following any termination of Executive’s employment with the Company.

 

 

3.   

Severance Benefits.    If the employment of Executive with the Company shall terminate during the Termination Period in a manner that constitutes a “separation from service” as that term is defined by Section 409A of the Code, other than by reason of a Nonqualifying Termination, then Executive shall receive the following severance benefits as compensation for services rendered:

 

(a) Lump Sum Cash Payment.    On the tenth ( 10th) business day after the Date of Termination, Executive shall receive a lump sum cash payment in an amount equal to the sum of the following:

 

(1) Executive’s unpaid base salary from the Company through the Date of Termination at the rate in effect (without taking into account any reduction of base salary constituting Good Reason), just prior to the time a Notice of Termination is given plus any benefit awards (including both the cash and stock components) and bonus payments wh ich pursuant to the terms of any plans have been earned and become payable , to the extent not theretofore paid.

 

(2) A bonus will be paid under the Company’s Annual Incentive Plan or any successor plan (“ Annual Plan ”) for the time Executive was employed by the Company in the fiscal year of termination, in an amount equal to the product of (i) the number of days Executive was employed by the Company prior to the Date of Termination in the year of termination divided by the number of days in the year, multiplied by (ii) 100% of the Executive’s current year target bonus (with such calculations to be made as though the target level has been achieved for each Performance Goal (as defined in the Annual Plan)).

 

(3) [If the Date of Termination occurs before Novembe r 19, 2015, an amount equal to one (1) times the sum of (i) and (ii) as follows, or if the Date of Termination occurs on or after November 19, 2015,] 1 an amount equal to two (2) times the sum of [(i) and (ii) as follows] 1 : (i) the higher of the Executive’ s annual rate of base salary from the Company in effect on the Date of Termination or in effect on the day before the Change in Control; and (ii) the higher of (A) the Executive’s current year target bonus under the Annual Plan (with such calculations to be made as though the target level has been achieved for each performance goal (as defined in the Annual Plan)), or (B) the current ‑year forecasted bonus under the Annual Plan as of the Date of Termination.

 

 

1

This text appears only in Ms. Mahoney’s agreement.

 

7

 


 

 

(4) If Executive’s target bonus under the Annual Plan for the fiscal year in which the Date of Termination occurs has not been established by the Date of Termination, then the bonus amount under Section 3(a)(2)(ii) and the bonus amount under Section 3(a)(3)(ii) shall be the Executive’s target bonus under the Annual Plan for the fiscal year immediately preceding that in which the Date of Termination occurs (with such calculations to be made as though the target level has been achieved for each Performance Goal (as defined in the Annual Plan)).

 

(b) Benefits.   The Company shall provide Executive with the benefits, payments and reimbursements set forth in subsections (1) to (3) below.  The benefits provided for in this section are subject to the reimbursement or in-kind benefit conditions provided in Section 8 below.

 

(1) For the period beginning on the Date of Termination and ending on the earlier of (A) the end of the twenty-fourth (24th) month after the Date of Termination or (B) the date on whi ch Executive receives a substantially equal benefit from a new employer, the Company will reimburse Executive for 100% of Executive’s cost to obtain health, dental and prescription drug benefits equal to those provided by the Company for the Executive and eligible dependents immediately before the Date of Termination.  Such reimbursement shall consist of the COBRA continuation cost for any portion of the above period that Executive is entitled to elect COBRA continuation coverage.  For any portion of the above period that Executive is not entitled to elect COBRA continuation coverage, such reimbursement shall be in the amount of the Executive’s cost to obtain equivalent coverage from another source.  Reimbursements under this Section 3(b)(1) will be made no later than thirty (30) days after Executive requests reimbursement, but in no event after the year following that in which the Executive incurs such expense.  Reimbursements under this Section 3(b)(1) will be reported as part of Executive's W-2 compensation and will be subject to Federal income tax withholding.

 

(2) For the period beginning on the Date of Termination and ending on the earlier of (A) the end of the twelfth ( 12th) month after the Date of Termination or ( B) the date on which Executive receive s a substantially equal benefit from a new employer , the Company will continue the Executive’s tax and financial planning benefit , with reimbursement of any costs incurred by Executive to obtain such benefits to be made to the Executive within thirty (30) days after Executive requests reimbursement, but in no event after the end of the year following that in which the Executive incurs such costs.

 

(3) For the period beginning on the Date of Termination and ending on the earlier of (A) the end of the twent y-fourth (24th) month after the Date of Termination or (B) the date on which Executive receives a substantially equal benefit from a new employer, the Company will continue all of the Executive’s Company funded life insurance coverage, or, if the Company’s life insurance program does not permit such continued coverage, the Company will pay the Executive’s cost to replace such coverage, with reimbursement of any costs incurred by Executive to replace such coverage to be made to the Executive within thirty (30) days after Executive requests reimbursement, but in no event after the end of the year following that in which the Executive incurs such costs.

 

In addition to the payments called for by Section 3(b)(1), (2) and (3) the Company shall make payments to Executive in the amount necessary to eliminate the income tax cost to Executive

8

 


 

resulting from any conversion of such benefits from non ‑taxable employee benefits to taxable benefits, payments or reimbursements.  Such additional payments shall be made at the same time that the Company reimburses the Executive under this Section 3(b).

 

(c) Outplacement Services.   The Company will provide the Executive with outplacement services through an outplacement services firm selected by the Company with the Executive’s a pproval, which shall not be withheld if the firm selected is reputable , at a cost not to exceed an amount equal to $25,000.  The timing of outplacement services to be received shall be determined by the Executive, provided that all costs under this subsect ion must be incurred, and all applicable payments to the outplacement firm made, not later than the last day of the second year following that in which the Date of Termination occurred.

 

(d) Certain Reductions Disregarded .  In computing the payments under subsections (a) through ( c) above, any reduction in Executive’s base salary, bonus or fringe benefits shall be disregarded if such reduction constituted Good Reason as defined in Section 1(h) of this Agreement including the text before and in subsections ( 1) through (9) and the paragraph immediately following subsection (9), but excluding the remaining text of Section 1(h).

 

 

 

4.

Acceleration of Vesting Upon Change in Control. Effective at the time of a Change in Control, all unvested stock options and stock previously issued to Executive as to which rights of ownership are subject to forfeiture shall immediately vest; all risk of forfeiture of the ownership of stock or stock options and restrictions on the exercise of options shall lapse; and, Executive shall be entitled to exercise any or all options, such that the underlying shares will be considered outstanding at the time of the Change in Control. [This section 4 is not included in Mr. Meyers’ Agreement.]

 

 

5.

Delay in Payment to a Specified Employee.   Notwithstanding any other timing provision in this Agreement, if, at the time the payments would commence, Executive is a “Specified Employee” as defined by Section 409A of the Code, then no payment under this Agreement may be paid before the date that is six (6) months after Executive’s separation from service, except for payment of current compensation under Section 3(a)(1) and the acceleration of vesting under Section 4.  Payments to which Executive would otherwise have been entitled during that six (6) months will be accumulated and paid on the first day after six (6) months following the date of Executive’s separation from service.  All payments that would otherwise be made more than six (6) months following the date of Executive’s separation from service will be made in accordance with the general timing provisions described above.  If the six (6) month delay in payment to a Specified Employee applies and Executive dies before the end of the six (6) month period, the delay shall cease and payments shall begin upon Executive’s death.  Payments to which Executive would otherwise have been entitled during the delay shall be accumulated and paid on the tenth business day after Executive’s death.

 

6.   

Parachute Payment Restrictions.   Notwithstanding any other provisions of this Agreement, if any payments or distributions by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“ Payments ”)) (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 6, would trigger application of the excise tax imposed by Section 4999 of the Code, or any successor Code provision (such excise tax, together with any interest and penalties, are hereinafter collectively referred to as the Excise Tax ”), then Executive’s Payments shall be payable as provided in (a) below.

9

 


 

 

(a) Executive’s Payments sh all be payable (i) in full (with Executive paying any excise taxes due), or (ii) in such lesser amount that would result in no portion of the Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of such Payments may be taxable under Section 4999 of the Code.

 

(b) If Executive’s Payments are to be reduced under Section 6(a)(ii), the Payments shall be reduced in the amount necessary to eliminate the Excise Tax in the following order: (i) the benefit under Section 3(c), (ii) the benefit under Section 3(b)(2), ( iii) the payment under Section 3(a)(3), (iv) elimination of accelerated vesting under Section 4 (to be applied pro rata to all of Executive’s outstanding equity awards), and (v) the benefit under Section 3(b)(1).

 

(c) All determinations required to be ma de under this Section 6, including whether and when a reduction in the Payments is required under Section 6(a) and the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “ Accounting Firm ”) which shall provi de detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of a request from the Company or Executive (collectively, the “ Determination ”).    In the event that the Accounting Firm is serving as acco untant or auditor for the individual, entity, or group effecting the Change in Control, Executive shall appoint another nationally recognized public accounting firm to make the Determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder).  All fees and expenses of the Accounting Firm shall be borne solely by the Company.  The Determination by the Accounting Firm shall be binding upon the Company and Executive; however, as a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Executive will have received amounts that should not have been paid (the “ Overpayments ”) or amounts were reduced that should have been paid (the “ Underpayments ”) under Section 6(a).   If the Accounting Firm determines, based on an Internal Revenue Service assertion that the Accounting Firm believes has a high probability of success, that an Overpayment has been made, any such Overpayment shall be deemed for all purposes to be a loan to Executive made on the date that Executive received the Overpayment and Executive shall repay the Overpayment to the Company on demand (but not less than ten days after Executive receives a written demand for payment from the Company) together with interest on the Overpayment at the applicable federal rate prescribed pursuant to Section 1274(d)(1)(A) of the Code (the “ Applicable Federal Rate ”) from the date of Executive’s receipt of the Overpayment until the date the Overpayment is repaid.  If the Accounting Firm, based on controlling precedent or substantial authority, determines that an Underpayment has been made, the Company will pay Executive an amount equal to the Underpayment in a lump sum within ten days of such determination together with interest on the Underpayment at the Applicable Federal Rate from the date such amount would have been paid to Executive until the date the Underpayment is paid.

 

7.   

Withholding Taxes.   The Company may withhold from all payments due to Executive (or his beneficiary or estate) hereunder all taxes which, by applicable federal, state, local, or other law, the Company is required to withhold therefrom.

 

8.   

Reimbursement of Expenses.   If any contest or dispute shall arise under or related to this Agreement involving termination of Executive’s employment with the Company or involving the failure or refusal of the Company to perform fully in accordance with the terms hereof, the

10

 


 

Company shall reimburse Executive, on a current basis, for all reason able legal fees and expenses, if any, incurred by Executive in connection with such contest or dispute regardless of the result thereof.   The reimbursement of an eligible amount must be made within thirty (30) days after Executive requests reimbursement, b ut in no event after the end of the year following that in which the Executive incurs such expense.  Any reimbursement or in-kind benefit provided for under this Agreement shall comply with the conditions on such payments required by Treasury Regulation § 1.409A-3(i)(1)(iv) as follows:

 

(a) The expenses eligible for reimbursement, or the provision of the in-kind benefits, shall be provided on an objectively determinable nondiscretionary basis.  

 

(b) The reimbursement of expenses incurred, or the provision of the in-kind benefits, shall be provided during an objectively and specifically prescribed period.

 

(c) The amount of expenses eligible for reimbursement, or in-kind benefits provided, during Executive’s taxable year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.  Expenses eligible for reimbursement or the provision of in-kind benefits shall be provided pro rata monthly over the period of the benefits and may not be prepaid or delayed in any way that would affect the benefits provided in any other taxable year.

 

(d) The reimbursement of an eligible expense shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred.

 

(e) The right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

 

9.   

Successors; Binding Agreement.

 

(a) This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Com pany is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company.  In the event of any such merger, consolidation, or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred.

 

(b) The Company agrees that concurrently with any merger, consolidation or transfer of assets referred to in this Section 9, it will cause any successor or transferee unconditionally to assume, by written instrument delivered to Executive (or his beneficiary or estate), all of the obligations of the Company hereunder.  Failure of the Company to obtain such assumption prior to the effectiveness of any such merger, consolidation, or transfer of assets shall be a breach of this Agreement and shall constitute Good Reason hereunder and shall entitle Executive to compensation and other benefits from the Company in the same amount and on the same terms as Executive would be entitled hereunder if Executive’s employment were terminated following a Change in Control other than by reason of a Nonqualifying Termination.  For purposes of implementing the foregoing, the date on which any such merger, consolidation, or transfer becomes effective shall be deemed the date Good Reason occurs, and shall be the Date of Termination if requested by Executive.

 

(c) This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal repre sentatives, executors, administrators, successors, heirs, distributees,

11

 


 

devisees and legatees.  If Executive shall die while any amounts would be payable to Executive hereunder had Executive continued to live, all such amounts, unless otherwise provided he rein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by Executive to receive such amounts or, if no person is so appointed, to Executive’s estate.

 

 

10.

Notice.   For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or received by facsimile transmission or five (5) days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed as follows:

 

If to the Executive:

 

[Name]

[Address]

[City, State, Zip]

 

If to the Company:

 

SpartanNash Company

850 76th Street, S.W.

P. O. Box 8700

Grand Rapids, Michigan 49518 -8700

Attention: Chief Legal Officer

 

 

or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

 

 

11.

Full Settlement; Resolution of Disputes.

 

(a) The Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against Executive or others.  In no event shall Executive be obligated to seek other employment or take other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not Executive obtains other employment.

 

(b) If there shall be any dispute between the Company and Executive in the event of any termination of Executive’s employment then, until there is a final, nonappealable, determina tion pursuant to arbitration declaring that such termination was for Cause, that the determination by Executive of the existence of Good Reason was not made in good faith, or that the Company is not otherwise obligated to pay any amount or provide any benefit to Executive and his dependents or other beneficiaries, as the case may be, under Section 3, the Company shall pay all amounts, and provide all benefits, to Executive and his dependents or other beneficiaries, as the case may be, that the Company would be required to pay or provide pursuant to Section 3 as though such termination were by the Company without Cause or by Executive with Good Reason; except that the Company shall not be required to pay any disputed amounts pursuant to this Section 11 except upon receipt of an undertaking by or on behalf of

12

 


 

Executive to repay all such amounts to which Executive is ultimately determined by the arbitrator not to be entitled.

 

(c) Arbitration.   Any dispute or controversy under this Agreement shall be settled exc lusively by arbitration in Grand Rapids, Michigan, in accordance with the rules of the American Arbitration Association then in effect, except that Executive shall be entitled to seek specific performance of his right to be paid pursuant to Section 11(b) d uring a dispute.  Judgment may be entered on the arbitration award in any court having jurisdiction.  The Company shall reimburse Executive for all reasonable costs and expenses arising in connection with any arbitration proceeding pursuant to this Section 11(c).  The reimbursement of an eligible amount must be made within thirty (30) days after Executive requests reimbursement, but in no event after the end of the year following that in which the Executive incurred the expense.

 

 

12.

Governing Law; Validity.   The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Michigan without regard to the principle of conflicts of laws.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which other provisions shall remain in full force and effect.

 

 

13.

Establishment of Trust.   Upon written request by Executive and except as provided below, immediately prior to a Change in Control, the Company shall establish and maintain a Trust in the form attached as Exhibit A.  Upon the occurrence of a Change in Control the Company shall pay into the Trust the amounts called for under Exhibit A (to be determined as of the Change in Control), and shall thereafter make such additional payments as called for under Exhibit A.  No payment to the Trust by the Company shall reduce the Company’s obligations to make payments to Executive under this Agreement. Notwithstanding the above, the Company shall not set aside, reserve or restrict (directly or indirectly) any assets to informally fund the Agreement, including, but not limited to, the Company’s obligation to establish and make payments to the Trust (but not the Company’s obligation to make payment to Executive when called for by this Agreement), if such action would result in inclusion of any amount in Executive’s taxable income under Section 409A(b) of the Code before such funds are paid to Executive

 

 

 

14.

Counterparts.   This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

 

 

15.

Miscellaneous. No provision of this Agreement may be modified or waived unless such modification is agreed to in writing and signed by Executive and by a duly authorized officer of the Company, or such waiver is signed by the waiving party.  No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.  Failure by Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right Executive or the Company may have hereunder, including without limitation, the right of Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.  The rights of, and benefits payable to, Executive, his estate, or his beneficiaries pursuant to this Agreement are in addition to any rights of, or benefits payable to, Executive, his estate, or his beneficiaries under any other employee benefit plan or compensation program of the Company, except that no benefits pursuant to any other employee plan or compensation

13

 


 

 

program that become payable or are paid in accordance with this Agreement shall be duplicated by operation of this Agreement.  No agreements or representations, oral or otherwise, express or implied, with regard to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement.

 

 

16.

409A Compliance .  This Agreement is intended to comply with Section 409A and the regulations and guidance promulgated thereunder and shall be interpreted and operated consistently with those intentions.  The time and schedule of payment under this Agreement may not be accelerated or delayed for any reason except as permitted by Section 409A.  In addition to any other restriction in the Agreement, the Agreement may not be amended or terminated except in compliance with Section 409A.  

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company.  Executive has executed this Agreement as of the day and year first written above.

 

 

 

 

/s/ (A)

“Executive”

SPARTANNASH COMPANY

 

By: /s/ Dennis Eidson

Dennis Eidson

Its President and Chief Executive Officer

“Company”

 

 

 

 

 

 

 

14

 


 

 

 

 

Exhibit A

 

 

 

 

 

 

SPARTANNASH COMPANY

EXECUTIVE SEVERANCE AGREEMENT

EXHIBIT A

EXECUTIVE BENEFIT TRUST

Dated: __________, 20__

 

 

 

 


 

TABLE OF CONTENTS

 

Page

 

SECTION 1

Establishment of the Trust2

 

1.1

Trust; Sub-Trusts2

 

1.2

Company Contributions2

 

1.3

Irrevocable3

 

1.4

Grantor Trust3

 

1.5

Limited Rights of Executive3

 

1.6

Acceptance by Trustee4

 

1.7

Committee; Absence of Committee or the Company4

 

1.8

Trust Funding Restrictions4

 

(a)

Covered Employees4

 

(b)

Offshore Trust5

 

(c)

The Company's Financial Health5

SECTION 2

Payments to Executives5

 

2.1

Payment Schedule5

 

2.2

Right To Payment5

 

2.3

Direct Payment by the Company6

 

2.4

Default Payment By Trustee6

 

2.5

Payment Deductions7

 

2.6

Limit On Payments; Company Obligation7

 

2.7

Missing Persons7

 

2.8

Documentation and Information for Trustee8

SECTION 3

Insolvency; Administration8

 

3.1

Insolvency8

 

3.2

Claims of General Creditors8

 

(a)

Duty to Inform; Notice8

 

(b)

Duty to Inquire8

 

(c)

Payments9

 

(d)

Resumption9

 

(e)

Omitted Payments9

SECTION 4

Payments to the Company9

 

4 .1

General Limitation9

 

4.2

Trust Income10

SECTION 5

Administration of Trust10

 

5.1

In General10

 

5.2

Duties and Powers of Trustee10

 

(a)

Control, Manage, and Invest Assets10

 

(b)

Records; Reports10

 

(c)

Payments10

 

(d)

Acquire and Dispose of Assets11

 

(e)

Extend Due Dates11

 

(f)

Voting Rights11

 

(g)

Exercise Other Rights11

 

(h)

Employ Agents and Advisors11

 

(i)

Insure Assets11

 

(j)

Custodian11

 

(k)

Collection11

 

(l)

Registration and Holding of Trust Assets12

 

(m)

Claims12

i


 

 

(n)

Execute Documents 12

 

(o)

Other Acts12

 

5.3

Limitation on Duties and Powers of the Trustee12

 

(a)

Custody and Protection13

 

(b)

Acquisitions13

 

(c)

Dispositions13

 

(d)

Accountings13

 

(e)

Authorized Actions13

 

(f)

Ministerial and Custodial Tasks13

 

5.4

Accounting by Trustee14

 

(a)

Records and Accounting14

 

(b)

Objection; Settlement14

 

(c)

Revision14

 

(d)

Sub-Trust Accounting15

 

(e)

Compensation and Expenses15

 

5.5

Carrying on a Business15

 

5.6

Fiduciary Duty of Trustee16

SECTION 6

Investment and Investment Managers16

 

6.1

Investment of Trust Assets16

 

(a)

SERP and Severance Agreement Sub-Trust Investment Authority16

 

(b)

SESP Sub-Trust Investment Authority16

 

(c)

Other Sub-Trust Investment Authority17

 

( d)

Short Term Investment Authority17

 

6.2

Investment Discretion17

SEC TION 7

Resignation and Removal of Trustee18

 

7.1

Resignation of Trustee18

 

7.2

Removal of Trustee18

 

7.3

Appointment of Successor18

 

7.4

Duties of Predecessor Trustee and Successor Trustee18

 

7.5

Expenses19

SECTION 8

Amendment or Termination19

 

8.1

Amendment19

 

(a)

In General19

 

(b)

Trustee; Investment Manager19

 

8.2

Termination19

 

(a)

Timing20

 

(b)

Continuing Powers20

 

(c)

Assets20

 

( d)

Trust21

SECTION 9

Liability and Indemnification21

 

9.1

Liabilities Mutually Exclusive21

 

9.2

Indemnification21

SECTION 10

General Provisions22

 

10.1

Successor to the Company22

 

10.2

Merger of Trustee22

 

10.3

Nonalienation22

 

10.4

Severability22

 

10.5

Governing Law22

 

10.6

Notices23

 

10.7

Counterparts23

 

10.8

Gender and Number23

ii


 

 

10.9

Scope of this Agreement 23

 

10.10

Statutory References23

 

10.11

Headings23

 

10.12

Section 409A24

 

iii


 

SPARTANNASH COMPANY

EXECUTIVE SEVERANCE AGREEMENT

EXHIBIT A

EXECUTIVE BENEFIT TRUST

 

 

This Agreement (the “Trust Agreement”) is made this ____ day of ________, 20__, by and between SpartanNash Company (the “Company”), a Michigan corporation, and _____________ (“Trustee”).  

The Company has entered into an Agreement dated ____________, 20__ (the “Agreement”) with _____________________________.

The Company has established and maintains a Supplemental Executive Retirement Plan (“SERP”) and a Supplemental Executive Savings Plan (“SESP”) for a number of key executives, including the executives identified in Appendix A.  The Company has entered into Executive Severance Agreements (each a “Severance Agreement” and collectively the “Severance Agreements”) with a number of key executives, including the executives identified in Appendix A.  The SERP, the SESP and each Severance Agreement, together with each other designated plan, agreement or program providing for deferred compensation that is in effect as to any key executive identified in Appendix A at the time this Trust is created or funded, is an “Executive Compensation Plan” and collectively they are the “Executive Compensation Plans”.  Each executive identified in Appendix A is an “Executive” and collectively they are the “Executives”.  

Appendix A shall be deemed amended from time to time to reflect the addition of each new plan, agreement or program designated by the Company as an Executive Compensation Plan for purposes of this Trust Agreement, the removal of any existing or new Executive Compensation Plan that is terminated in accordance with its terms by the Company, the addition of a new executive designated by the Company as an Executive with respect to one or more Executive Compensation Plans and the removal of an individual as an Executive with respect to one or more Executive Compensation Plans upon the full satisfaction of all liabilities to that Executive under that plan.

The Executive Compensation Plans are maintained for the purpose of providing deferred compensation for a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended, and are provided only to a select group of management and highly compensated employees.  The Company has incurred and expects in the future to incur liability under the Executive Compensation Plans with respect to one or more of the Executives or a beneficiary (“Beneficiary”) of a deceased Executive.  Each Executive Compensation Plan provides for the creation of a trust to hold assets relating to that liability.  The Company intends to establish this Trust (“Trust”) to satisfy its obligations to create a trust for the Executives and to facilitate meeting its obligations to the Executives under the respective Executive Compensation Plans.  However, because this Trust does not extend to key executives other than the Executives identified in Appendix A, the creation of this Trust does not fulfill its obligations to those other key executives under the Executive Compensation Plans as they may apply to those other executives.  

In connection with the Agreement, the Company wishes to establish this Trust and to contribute to the Trust assets to be held in the Trust, subject to the claims of the Company’s creditors in the event of the Company’s Insolvency, as defined in Section 3, until paid to the Executives or their beneficiaries in such manner and at such times as specified in the Executive Compensation Plans or otherwise disposed of as provided in this Trust Agreement.

1


 

The parties intend that this Trust shall constitute an unfunded arrangement that shall not affect the unfunded status of the Executive Compensation Plans.  It is the intention of the Company to make contributions to this Trust to provide itself with a sour ce of funds to assist it in meeting its liabilities under the Executive Compensation Plans, but the existence of this Trust will not in any way eliminate or decrease the Company’s liabilities to the Executives or Beneficiaries under the respective Executiv e Compensation Plans except to the extent assets of the Trust are actually used to pay benefits due to Executives.

Therefore, by this Trust Agreement the parties establish the Trust and agree that the Trust shall be comprised of the assets contributed to it and described in this Trust Agreement and shall be held, administered and disposed of as follows:

SECTION 1

Establishment of the Trust

1.1 Trust; Sub-Trusts .

Notwithstanding this creation of a single trust for the Executive Compensation Plans, the Trustee at all times shall maintain separate sub-trusts for each Executive or Beneficiary with respect to each of the Executive Compensation Plans under which the Executive or Beneficiary has rights (each a “Sub-Trust” and collectively the “Sub-Trusts”).  The three Sub-Trusts for each current Executive based on the SERP, the SESP and the respective Severance Agreements are identified in Appendix A.  Additional sub-trusts will be created as necessary as additional Executives acquire rights under an Executive Compensation Plan and as new Executive Compensation Plans are created.

Notwithstanding any other provision in this Trust Agreement, except as otherwise expressly specified in this Trust Agreement, the provisions of this Trust Agreement shall apply separately to each Sub-Trust maintained for each Executive or Beneficiary with respect to each Executive Compensation Plan, including but not limited to the accounting provisions of Section 5.4. Further, except as provided in Section 8.2(c), no assets of any Sub-Trust may be used for the benefit of any Executive or Beneficiary other than the Executive or Beneficiary with respect to whom the Sub-Trust is designated in Appendix A.

1.2 Company Contributions .

No later than the effective time of a “Change in Control” of the Company, as defined in the Executive Severance Agreements (the “Effective Time”), or as soon thereafter as permitted by Section 1.8, the Company will make an initial irrevocable contribution to each Sub-Trust as specified in Appendix A that equals a reasonable, good faith estimate of 100% of the amount necessary to pay the Executive to whom the Sub-Trust relates the total amount due and potentially due to the Executive under the Executive Compensation Plan to which the Sub-Trust relates.  The Company shall make the contributions in cash.

In the event the value of the assets in a Sub-Trust, determined as of the last day of each Plan Year of the Executive Compensation Plan to which the Sub-Trust relates pursuant to the accounting procedures set forth in this Trust Agreement, is less than 100% of the amount necessary to pay the applicable Executive the amount the Executive could be entitled to under the applicable Executive Compensation Plan, determined as of such date by the Trustee, the Company shall deposit additional funds into each applicable Sub-Trust sufficient to bring the value of the assets in each Sub-Trust to that 100% threshold within 30 days after receiving notice from the Trustee that additional contributions are needed to attain the 100% level of funding for each Sub-Trust or as soon thereafter as permitted by Section 1.8.

2


 

The Company, in its sole discr etion but subject to Section 1.8, at any time and from time to time, may make additional deposits in excess of the amounts provided above to one or more Sub ‑Trusts of cash or other property acceptable to the Trustee to augment the principal and to be held, administered, and disposed of by the Trustee as pro vided in this Trust Agreement.  Neither the Trustee nor any Executive or Beneficiary shall have any right to compel such additional deposits.

1.3 Irrevocable .

Prior to the Effective Time, the Trust shall be revocable by the Company.  On and after the Effective Time, the Trust shall be irrevocable, except that each Sub-Trust shall be revocable with the written consent of the Company and the Executive for whom the Sub-Trust was created, and each Sub-Trust is subject to Sections 2.7 and 8.2(c).

1.4 Grantor Trust .  

The Trust is intended to be a grantor trust, of which the Company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be construed accordingly.

1.5 Limited Rights of Executive .  

The principal and earnings of each Sub-Trust shall be held separate and apart from other funds of the Company and each other Sub-Trust and except as provided herein shall be used exclusively for the uses and purposes of the applicable Executive, Beneficiary and general creditors and for the payment of related fees and expenses as set forth herein.  No Executive or Beneficiary shall have a preferred claim on, or a beneficial ownership interest in, any assets of the Trust or any Sub-Trust.  The rights created under the Executive Compensation Plans and this Trust Agreement shall be mere unsecured contractual rights of each Executive and Beneficiary against the Company.  Assets held in the Trust or Sub-Trust will be subject to the claims of the Company’s general creditors under federal and state law in the event of Insolvency, as defined in Section 3.1.

1.6 Acceptance by Trustee .  

The Trustee accepts its duties and obligations as Trustee under this Trust Agreement, agrees to accept funds delivered to it by the Company, and agrees to hold, manage, administer, and apply all Trust assets in accordance with the terms and conditions of this Trust Agreement.

1.7 Committee; Absence of Committee or the Company .  

The Compensation Committee (“Committee”) of the Board of Directors of the Company, or another committee designated by the Board of Directors, shall have the powers, rights, and duties of the Committee described in this Trust Agreement.  The highest ranking human resources officer of the Company will certify to the Trustee from time to time the names of the members of the Committee.  The Trustee may rely on the most recent certificate without further inquiry or verification.  The Trustee also may rely on minutes and other written communications, certified by the secretary or acting secretary of the Committee or the highest ranking human resources officer of the Company, as accurately setting forth any action or decision by the Committee.

If for any period there are no members of the Committee, or the Committee is unable to exercise its powers and duties under this Trust Agreement, the Board of Directors of the Company shall act on behalf of, and shall have all of the powers, rights, and duties otherwise reserved to, the Committee.  The

3


 

Company warrants that all dir ections and authorizations by the Committee, or by the Board of Directors, whether for the payment of money or otherwise, will comply with the provisions of each Executiv e Compensation Plan and this Trust Agreement.

In the event that the Company no longer exists and there is no successor to the Company, the Trustee shall have all of the powers and duties (other than any contribution requirement) of the Company and the Committee under this Trust Agreement and, in its sole discretion, shall determine and make all payments from Trust assets due Executives and Beneficiaries under the Executive Compensation Plans or due general creditors under Section 3.

1.8 Trust Funding Restrictions .  

Notwithstanding the general rules of this Trust Agreement, including but not limited to the funding obligations of Section 1.2, the Company’s obligation to establish and make payments to the Trust (but not the Company’s obligations to make payment to an Executive or Beneficiary when called for by an Executive Compensation Plan) is subject to the restrictions of Section 409A(b) of the Code as follows:

(a) Covered Employees .  

The Trust will not be established or funded for a Covered Employee during a Restricted Period.  This restriction shall not apply to funds contributed to the Trust before a Restricted Period.

(i) Covered Employee Defined .  A “Covered Employee” means an “Applicable Covered Employee” as defined by Section 409A(b)(3)(D)(i) of the Code.  

(ii) Restricted Period Defined .  “Restricted Period” has the meaning provided in Section 409A(b)(3)(B) of the Code.

(b) Offshore Trust .  

Notwithstanding anything else in this Trust Agreement, the Trust, including any assets of the Trust, may not be located or transferred outside the United States unless substantially all of the services to which the payments under the applicable Executive Compensation Plan relate are performed in such jurisdiction.

(c) The Company’s Financial Health .  

Notwithstanding anything else in this Trust Agreement, the Trust may not be established or funded if such establishment or funding will result in inclusion of trust funds in Executive’s taxable income under Section 409A(b)(2) of the Code before such funds are paid to Executive.

SECTION 2

Payments to Executives

2.1 Payment Schedule .  

The Company shall deliver to the Trustee a schedule (the “Payment Schedule”) that indicates the amounts payable in respect of each Executive (and his or her Beneficiaries) or a formula or other instructions acceptable to the Trustee for determining the amounts so payable, the form in which such amount is to be paid (as provided for or available under the Executive Compensation Plans), and the time of commencement for payment of such amounts. Except as otherwise provided in this Trust Agreement, the Trustee shall make payments to the Executives and their Beneficiaries in accordance with the Payment Schedule, formula or payment instructions. The Trustee shall make provision for the reporting and withholding of any federal, state or local taxes that may be required to be withheld with respect to the

4


 

payment of benefits pursuant to the terms of the Executive Compensation Plans and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by the Company.

2.2 Right To Payment .

The entitlement of an Executive or Beneficiary to benefits under the applicable Executive Compensation Plan shall be determined by the Company or such party as it shall designate under the Executive Compensation Plans (other than any Executive or Beneficiary), and any claim for benefits shall be considered and reviewed under the procedures set forth in the applicable Executive Compensation Plan.  However, notwithstanding that general rule, after the Effective Time, the dispute resolution procedure and arbitration provisions of the Executive’s Severance Agreement shall be substituted for the claims procedure set forth in each of the Executive Compensation Plans, subject to the limitations of Section 3.  Further, in the event of a dispute between an Executive and the Company after the Effective Time involving any of the Executive Compensation Plans, the determinations of the Company (or any plan administrator) shall not be entitled to deference, it being the intent of the parties that there shall be independent determinations of any disputed fact or issue through the dispute resolution and arbitration procedures.

2.3 Direct Payment by the Company .

The Company may make direct payments to each eligible Executive or Beneficiary as benefits become due under the terms of the applicable Executive Compensation Plan.  The Company shall notify the Trustee in writing of its decision to make such payments directly prior to the time amounts are payable to Executives or their Beneficiaries.  Subject to Section 3, the Company may direct the Trustee in writing to reimburse the Company from the Trust, and debit the applicable Sub-Trust of the applicable Executive, for amounts the Company paid directly to the Executive or Beneficiary on or after the date the funding obligations of Section 1.2 have been met.  Subject to Section 3, the Trustee shall reimburse the Company for such payments promptly after the Trustee receives satisfactory written evidence that the Company has made the direct payments.  In addition, if the principal of the Trust (including any Sub-Trust), and any earnings thereon, are not sufficient to pay any portion of any benefit in accordance with the terms of the Executive Compensation Plans, the Company shall make the balance of each such payment as it falls due. The Trustee shall notify the Company where principal and earnings are not sufficient.  

2.4 Default Payment By Trustee .  

Upon receipt of a written notice from an Executive or Beneficiary that a payment is due with respect to the Executive under an Executive Compensation Plan and that amounts due have not been paid, the Trustee shall notify the Company in writing that an Executive or Beneficiary has made a claim for benefits.  The Company shall have ten (10) days from the receipt of such notice in which to provide the Trustee a written notice disputing the right to payment from the Trust.  If the Company does not respond within the time specified in the preceding sentence and no Insolvency has occurred or any Insolvency is no longer continuing, the Trustee shall make the payment or payments due each Executive or Beneficiary in the required amount as due, subject to Section 2.6 below.

If the Company disputes the Executive’s or Beneficiary’s right to payment from the Trust, the Trustee, the Executive or the Company may initiate proceedings to settle the dispute.  Notwithstanding the claims procedures governing the applicable Executive Compensation Plan, any such dispute under this Trust Agreement shall be settled exclusively by arbitration in Grand Rapids, Michigan, in accordance

5


 

with the rules of the American Arbitration Association then in effect.  Judgment may be entered on the arbitration award in any court having jurisdiction.  

The Company shall reimburse the Executive and the Trustee for all reasonable costs and expenses arising in connection with any arbitration proceeding pursuant to this Section 2.4.  The reimbursement of an eligible amount must be made within thirty (30) days after the Executive or the Trustee requests reimbursement, but in the case of an Executive in no event after the end of the year following that in which the Executive incurred the expense.  

In the event of such a dispute involving a Severance Agreement, subject to the limitations of Section 3, until there is a final, nonappealable, determination pursuant to arbitration regarding the Executive’s or Beneficiary’s right to payment the Trustee shall pay all such disputed amounts and provide all benefits under the Severance Agreement to Executive or the Beneficiary; provided, however, the Trustee shall not make any such payments except upon receipt of an undertaking by or on behalf of Executive to repay all such amounts to which Executive or Beneficiary is ultimately determined by the arbitrator (or other final determination) not to be entitled.

The Company waives all rights to contest any payment by the Trustee pursuant to this Section 2.4 except in the event of intentional misconduct by the Trustee or a violation of Section 3.  Nothing in this Section 2.4 shall require the Trustee to undertake an independent determination or payment.

2.5 Payment Deductions .  

Except as otherwise provided in this Trust Agreement, the Trustee shall make the payment or payments to each eligible Executive or Beneficiary and shall debit each payment from the applicable Sub-Trust.

2.6 Limit On Payments; Company Obligation .  

In no event shall a payment from the Trust to or with respect to an Executive under an Executive Compensation Plan exceed the amount allocated to the applicable Sub-Trust at the time of the payment.  The Company shall be solely responsible for, and shall make as due, all required payments to or with respect to an Executive under the applicable Executive Compensation Plan that are not made from the Trust.

2.7 Missing Persons .

If the recipient entitled to any payment to be made by the Trustee from the Trust cannot be located directly by the Trustee through reasonable efforts, the Trustee shall notify the Committee of that fact.  The Trustee shall then determine whether to continue to issue payments to or on behalf of the recipient, to discontinue payments pending the receipt of further information, or to terminate the Sub‑Trust with regard to that recipient.  The Trustee shall use reasonable efforts to determine the status of the recipient and may, but shall not be required to, seek a judicial determination of the recipient’s status or the action to be taken by the Trustee under this Section 2.7.  The Trustee thereafter shall have no obligation to search for or ascertain the whereabouts of any payee under this Trust Agreement.

2.8 Documentation and Information for Trustee .

The Company at all times shall provide the Trustee with current copies of all Executive Compensation Plans for which the Trust is established and maintained from time to time, including amendments, and shall notify the Trustee when any Executive Compensation Plan is modified or

6


 

terminated or a new Executive Compensation Plan is created.  At least annually, the Company also shall provide t he Trustee with updated information concerning the amounts payable with respect to each Executive under each Executive Compensation Plan and the underlying information necessary for calculating the amounts due.

SECTION 3

Insolvency; Administration

3.1 Insolvency .  

Notwithstanding any other provision of this Trust Agreement, the Trustee shall cease payment of benefits from the Trust to any Executive or Beneficiary, and shall cease any reimbursements to the Company, if the Company is Insolvent.  The Company shall be considered “Insolvent” for purposes of this Trust Agreement if the Company is (a) unable to pay its debts as they become due, (b) subject to a pending proceeding as a debtor under the United States Bankruptcy Code or (c) determined to be insolvent by a governing federal or state regulatory agency.

3.2 Claims of General Creditors .  

At all times during the continuance of this Trust, the principal and income of the Trust shall be subject to claims of general creditors of the Company under federal and state law as set forth below.

(a) Duty to Inform; Notice .  

The Board of Directors and the highest ranking officer of the Company shall have the duty to inform the Trustee in writing of the Company’s Insolvency.  If a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, the Trustee shall determine whether the Company is Insolvent and, pending such determination, the Trustee shall discontinue payments from the Trust to Executives and Beneficiaries and shall discontinue reimbursements to the Company.

(b) Duty to Inquire .  

Unless the Trustee has actual knowledge of the Company’s Insolvency, or has received notice from the Company or a person claiming to be a creditor alleging that the Company is Insolvent, the Trustee shall have no duty to inquire whether the Company is Insolvent.  The Trustee may in all events rely on such evidence concerning the Company’s solvency as may be furnished to the Trustee and that provides the Trustee with a reasonable basis for making a determination concerning the Company’s solvency.

(c) Payments .  

If at any time the Trustee has determined that the Company is Insolvent, the Trustee shall discontinue payments to Executives and Beneficiaries, shall discontinue reimbursements or Sub-Trust termination payments to the Company, and shall hold the assets of the Trust for the benefit of the Company’s general creditors.  Nothing in this Trust Agreement shall in any way diminish any rights of any Executive or Beneficiary to pursue rights as a general creditor of the Company with respect to benefits due under the applicable Executive Compensation Plan or otherwise.  Any assets of the Trust used for the benefit of creditors as provided above shall be debited from each Sub-Trust in proportion to the assets of Sub-Trust relative to the assets of the Trust as a whole.

(d) Resumption .  

The Trustee shall resume payments from the Trust to Executives and Beneficiaries and reimbursements to the Company in accordance with  Section 2 of this Trust Agreement only after the Trustee has determined that the Company is not Insolvent or is no longer Insolvent.

7


 

(e) Omitted Payments .   

Provided that there are sufficient assets, if the Trustee discontinues the payment of benefits from the Trust pursuant to this Section 3.2 and subsequently resumes such payments, the first payments following such discontinuance shall include the aggregate amount of all payments due to Executives and Beneficiaries under the terms of the Executive Compensation Plans for the period of such discontinuance, plus interest at the applicable federal rate as published by the IRS for the applicable period, less the aggregate amount of any payments made by the Company in lieu of the payments provided for under this Trust Agreement during the period of discontinuance.

SECTION 4

Payments to the Company

4.1 General Limitation .

Except as otherwise provided in this Trust Agreement, after the Trust has become irrevocable, the Company shall not have any right or power to direct the Trustee to return to the Company or to divert to others any of the Trust assets before payment of all benefits has been made to the Executives and Beneficiaries pursuant to the terms of this Trust Agreement and the applicable Executive Compensation Plans.

4.2 Trust Income .  

During the term of this Trust, except to the extent explicitly provided otherwise in this Trust Agreement, all income received by the Trust, net of expenses and taxes, shall be accumulated and reinvested.  

SECTION 5

Administration of Trust

5.1 In General .  

The Trust and all Trust assets shall be administered by the Trustee pursuant to all of the express and implied duties and powers and subject to all express and implied conditions and limitations contained in or derived from the provisions of this Trust Agreement and conferred and imposed by applicable law.  All rights associated with administration of the Trust and with Trust assets shall be exercised by the Trustee, the Committee, or the Company or a person designated by the Trustee, the Committee, or the Company, as provided in this Trust Agreement, and in no event shall such rights be exercisable by or rest with any Executive or Beneficiary, except to the extent that approval of an amendment of the Trust Agreement or removal of the Trustee and appointment of a successor Trustee is reserved to the Executive.

5.2 Duties and Powers of Trustee .

In addition to the duties and powers set forth in other provisions of this Trust Agreement, and subject to all applicable conditions and limitations, the Trustee shall have the following duties and powers with respect to the Trust:

(a) Control, Manage, and Invest Assets .  

To the extent necessary to carry out the investment responsibilities in Section 6, to hold, manage, improve, repair, control and invest all assets forming part of the Trust;

8


 

(b) Records; Reports .   

To maintain records and to prepare and file reports required by law to be filed by the Trustee or required by agreement with the Company or by this Trust Agreement;

(c) Payments .  

To make payments and distributions from the fund as provided in this Trust Agreement, including benefits that have become payable under the applicable Executive Compensation Plan pursuant to Section 2 or that are required to be made to the general creditors of the Company as set forth in Section 3;

(d) Acquire and Dispose of Assets .  

To the extent necessary to carry out the investment responsibilities in Section 6, to purchase, sell, convey, exchange, lease, convert, transfer, divide, repair, partition, consent to partition, or otherwise acquire or dispose of any property at any time held in trust under this Trust Agreement by public or private transaction, for the consideration and upon the terms and conditions determined by the Trustee;

(e) Extend Due Dates .  

To the extent necessary to carry out the investment responsibilities in Section 6, to extend the time of payment of any investment obligation held by it;

(f) Voting Rights .  

To exercise all voting rights with respect to property held in the Trust directly or by proxy, with or without the power of substitution, and to delegate the Trustee’s powers and discretions with respect to such property to any such proxy;

(g) Exercise Other Rights .  

To the extent necessary to carry out the investment responsibilities in Section 6, to exchange securities, to  sell or exercise subscription, conversion, and other rights and options, and make payments from the Trust in connection with that action, with respect to any property held in the Trust;

(h) Employ Agents and Advisors .  

To engage as reasonably necessary agents, attorneys, accountants, and other persons (who also may be employed by the Company or the Committee), to delegate duties and discretionary powers to such persons, and to reasonably rely upon information and advice furnished by such persons; provided that each delegation and acceptance of duties and powers shall be in writing; and provided further that the Trustee may not delegate its responsibilities for the management and control of the assets of the Trust;

(i) Insure Assets .  

To insure Trust assets when appropriate (as determined by the Trustee in its discretion) through a policy or contract of casualty insurance;

(j) Custodian .  

To keep on deposit with a custodian in the United States any part of the Trust;

(k) Collection .  

To demand, collect, and receive the principal, dividends, interest, other income and all other money or property due the Trust;

(l) Registration and Holding of Trust Assets .  

To register investments in its own name or in the name of a nominee; to hold any investment in bearer form; and to combine certificates representing securities with certificates of the same issue held by it in other fiduciary capacities; to deposit or to arrange for the deposit of such securities with any depository or other securities clearing entity, even though, when so deposited, such securities may be held in the name of the nominee of such depository with other securities deposited therewith by other persons; or to deposit or to arrange for the deposit of any securities issued or guaranteed by the United States government, or any agency or instrumentality thereof, including securities evidenced by book entries rather than by certificates, with the United States Department of the Treasury or a Federal Reserve Bank, even though, when so deposited,

9


 

such securities may not be held separate from securities deposited therein by other persons; provided, however, that no securities held in the Trust shall be deposited with the United States Department of the Treasury or a Federal Reserve Bank or other depository in the same account as any indivi dual property of the Trustee, and provided, further, that the books and records of the Trustee shall at all times show that all such securities are part of the Trust;

(m) Claims .  

To settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust, to commence or defend suits or legal proceedings to protect any interest of the Trust, and to represent the Trust in all suits or legal proceedings in any court or before any other body or tribunal; provided, however, that the Trustee shall not be required to take any such action unless it shall have been indemnified by the Company to its reasonable satisfaction against liability or expenses it may incur;

(n) Execute Documents .  

To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers granted in this Trust Agreement; and

(o) Other Acts .  

To perform all other acts the Trustee deems necessary, suitable, or desirable for the control and management of the Trust and discharge of its duties.

Notwithstanding the foregoing, the Trustee shall have, without exclusion, all powers conferred on trustees by applicable law, unless expressly provided otherwise herein.  

 

5.3 Limitation on Duties and Powers of the Trustee .  

Unless expressly provided for in this Trust Agreement or otherwise properly delegated and assumed by agreement of the Trustee, the Trustee shall not be required to exercise a duty or power of the Company, the Committee, or any other fiduciary under this instrument.

If the Trustee appoints an investment manager to manage and invest some or all of the Trust assets (an “Investment Manager”), the Investment Manager shall have, and the Trustee shall not have, the express and implied duties and powers under this Trust Agreement with respect to investment of Trust assets subject to the Investment Manager’s control.  The Trustee shall have no obligation or power to exercise discretionary authority or control with respect to investment of the assets managed by the Investment Manager, or to render advice regarding the investment of such assets.  The Trustee shall not be liable for the investment performance of the assets managed by the Investment Manager, other than as provided in Section 6.2.  The powers and duties of the Trustee with respect to such Trust assets shall be limited to the following:

(a) Custody and Protection .  

To act as custodian of the Trust assets not transferred to the custody of the Investment Manager or another custodian, and to protect the assets in its custody from loss by theft, fire, or other cause;

(b) Acquisitions .  

To acquire additional assets for the Trust in accordance with the direction of the Investment Manager;

(c) Dispositions .  

To sell or otherwise dispose of Trust assets in accordance with the direction of the Investment Manager;

(d) Accountings .  

To account for and render accountings with respect to the Trust, except for assets held by another custodian;

10


 

(e) Authorized Actions .   

To take authorized actions for and on behalf of the Trust in accordance with the direction of the Investment Manager; and

(f) Ministerial and Custodial Tasks .  

To perform other ministerial and custodial tasks in accordance with the direction of the Investment Manager.

If Trust assets are transferred to another custodian, that custodian shall have, and the Trustee shall not have, the duties and powers set forth under Section 5.2 with respect to those assets.

Except as provided in Section 6.2, the Trustee shall have no liability or responsibility for any loss resulting to the Trust by reason of the sale or purchase of any investment directed by an Investment Manager or by reason of the failure to take any action with respect to any investment that was acquired pursuant to any such direction in the absence of further directions of such Investment Manager.  The Trustee may rely upon any order, certificate, notice, direction or other documentary confirmation purporting to have been issued by the Investment Manager which the Trustee believes to be genuine and to have been issued by the Investment Manager.

5.4 Accounting by Trustee .

(a) Records and Accounting .  

The Trustee shall keep accurate and detailed records of all investments, receipts, disbursements, and all other transactions required to be made, including such specific records as shall be agreed upon in writing between the Company and Trustee.  As soon as reasonably practicable following the close of each calendar year and each other valuation date agreed by the Company and the Trustee, and after the removal or resignation of the Trustee, the Trustee shall deliver to the Committee an account of its administration of the Trust during such year, or during the period from the close of the last valuation period to the date of the removal or resignation, setting forth all investments, receipts, disbursements and other transactions effected by it, including a description of all securities and investments purchased and sold with the cost or net proceeds of such purchases or sales (accrued interest paid or receivable being shown separately), and showing all cash, securities and other property held in the Trust at the end of such year or valuation period, or as of the date of such removal or resignation, as the case may be.

(b) Objection; Settlement .  

The Committee may object to an accounting within 180 days after it is furnished and require that it be settled by an audit by a qualified, independent certified public accountant.  The auditor shall be chosen by the Trustee from a list of at least three such accountants furnished by the Committee at the time the audit is requested.  Either the Committee or the Trustee may require that the account be settled by a court of competent jurisdiction, in lieu of or in conjunction with the audit.  All expenses of any audit or court proceedings, including reasonable attorney fees, shall be allowed as administrative expenses of the Trust and paid by the Company.

(c) Revision .  

If the Committee does not object to an accounting within the time provided, the account shall be deemed settled and final for the period covered by it.  Notwithstanding the preceding sentence, the Trustee agrees it will, at reasonable cost, revise any accounting if determined by the Company to be necessary due to a latent error or omission and will do so at no cost to the extent the error or omission was the fault of the Trustee.

(d) Sub-Trust Acco unting .  

The Trustee shall maintain a recordkeeping account for each Sub-Trust that, pursuant to rules established by the Trustee, will reflect with respect to each Sub-Trust:

(i) Deposits .  Deposits made by the Company to the Sub-Trust pursuant to

11


 

Section 1 of this Trust Agreement;

(ii) Income .  Income, losses, and appreciation or depreciation in the value of Sub‑Trust assets resulting from investment of the assets;

(iii) Payments .  Payments made from the Sub-Trust to the Executive or Beneficiary and to the Company; and

(iv) Other .  Any other amounts charged to the Sub-Trust, including administrative and investment expenses as described in this Trust Agreement.

The accounting provisions of this Section 5.4 shall be applied separately to each Sub‑Trust maintained for each Executive under each applicable Executive Compensation Plan.

(e) Compensation and Expenses .  

The Company shall pay directly reasonable compensation of the Trustee and all expenses reasonably incurred by the Trustee and the Committee in the administration of this Trust, including compensation of agents, actuaries, attorneys, accountants, and other persons employed by the Trustee or the Committee, and including indemnification costs described in Section 9.2, and including any other amounts owed to Trustee or expenses of the Trust under this Trust Agreement other than as provided in the following sentence.  Expenses solely attributable to investment of the Trust assets, such as investment manager fees, load or other commission fees, brokerage, postage, express or insurance charges, and stock transfer stamps expense, shall be paid from the Trust to the extent not paid directly by the Company and shall be charged to each Sub-Trust in proportion to the assets in the Sub-Trust.  

To the extent such compensation and expenses remain unpaid forty-five (45) days after mailing of an invoice for the same by the Trustee to the Company, the Trustee may notify the Company of its intent to pay the amounts due from the Trust.  If any amount remains unpaid thirty (30) days after mailing of the notice of intent to pay from the Trust, the Trustee may pay such compensation and expenses from the Trust.  Expenses paid from the Trust shall be charged to each Sub-Trust in proportion to the assets in the Sub-Trust.

5.5 Carrying on a Business .  

Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or applicable law, the Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains from that business within the meaning of Section 301.7701-2 of the Treasury Regulations promulgated pursuant to the Code.

5.6 Fiduciary Duty of Trustee .

The Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.  

SECTION 6

Investment and Investment Managers

6.1 Investment of Trust Assets .

12


 

(a) SERP and Severance Agreement Sub-Trust Investment Authority .   

The Trustee may only invest SERP and Severance Agreement Sub-Trust assets in investment grade debt securities as provided in this Section 6.1(a) and shall invest those assets with the goal of preserving principal and maintaining liquidity.  SERP and Severance Agreement Sub-Trust assets may be invested and reinvested in any readily marketable investment grade debt securities, such as preferred stocks; corporate bonds; municipal bonds; notes; debentures; certificates of deposit or demand or time deposits, including any such deposits with the Trustee; and obligations of the United States.   Notwithstanding these general rules, the Trustee shall not invest SERP or Severance Agreement  Sub-Trust assets in any security (including stock or rights to acquire stock) issued by the Company or any affiliate other than a de minimis amount held in a mutual fund.  

(b) SESP Sub-Trust Investment Authority .   The "Investment Results” (as such term is defined in Section 2.19 of the SESP) of the SESP Accounts shall be determined in accordance with Section 4.5 of the SESP and amounts credited to an Executive's SESP Sub-Trust shall be determined in accordance with those Investment Results.  Notwithstanding the foregoing, and notwithstanding Sections 2.19 and 4.5 of the SESP, after the Effective Time the Plan Administrator of the SESP (as defined in Section 2.24 of the SESP) may determine that some or all of the investment funds will no longer be available to Executives participating in the SESP for purposes of determining the Investment Results to be credited to an Executive's SESP Sub-Trust.  If the SESP Plan Administrator makes such a determination, an Executive may choose among the remaining investment funds made periodically available by the SESP Plan Administrator for the purpose of determining the Investment Results credited to that Executive's SESP Sub-Trust.    Notwithstanding these general rules, after the Effective Time the Trustee shall not invest in any security (including stock or rights to acquire stock) or obligations issued by the Company or any affiliate other than a de minimis amount held in a mutual fund.

Notwithstanding anything to the contrary contained in this Section 6.1(b), however, the Trustee shall be under no obligation to make actual investments that correspond to the Executive's investment elections, even though the Executive's elections are used to determine the Investment Results on the Executive's SESP Sub-Trust.  

 

If at any time no investment funds are made available, the Trustee shall invest the SESP Sub-Trust assets as provided in Section 6.1(a), above, and the Investment Results of the SESP Accounts shall be determined based on the actual investment experience of the Trustee with respect to those SESP Sub-Trust assets. 

 

The provisions of this Section 6.1(b) constitute an amendment of Sections 2.19 and 4.5 of the SESP in accordance with Section 8.2 of the SESP, effective at the Effective Time.

 

(c) Other Sub-Trust Investment Authority .      Any additional sub-trusts created in accordance with Section 1.1 shall be invested as provided in Section 6.1(a).

(d) Short Term Investment Authority .  

Trust assets may be held uninvested only for such reasonable periods as are necessary to invest new assets deposited in Trust or to clear investment transactions and reinvest the proceeds.  The Trustee may hold reasonable amounts of assets invested only in an appropriate daily or other short-term investment alternative for a reasonable period of time pending payment of benefits, payment of expenses or other distributions, or pending availability of other investments.

6.2 Investment Discretion .  

13


 

Except as provided in Section 6.1, the Trustee shall have sole and absolute discretion in the management and investment of the fund and in exercising investment responsibility shall have all the duties and power s set forth under Section 5.2.  The Company and the Committee shall not have any of the express or implied duties and powers contained in this Trust Agreement with respect to the control, management and investment of Trust assets and shall not have any pow er to approve or withhold approval of any action by the Trustee with respect to the control, management and investment of the Trust.  The Trustee shall have the sole right to retain or discharge Investment Managers and related custodians, and to determine the terms of the engagement of any Investment Manager and related custodian.

The Trustee shall have the right, in its sole discretion, to delegate its investment responsibility to an Investment Manager, which may be an affiliate of the Trustee.  In the event the Trustee appoints an affiliated Investment Manager, the Trustee shall remain, at all times, responsible for the acts of the affiliated Investment Manager.  In all cases, the Trustee may not appoint an Investment Manager if the appointment will increase the cost or expense to be paid by the Company unless the Company consents to the appointment.

SECTION 7

Resignation and Removal of Trustee

7.1 Resignation of Trustee .  

The Trustee may resign at any time by written notice to the Company, which shall be effective 60 days after receipt of such notice unless the Company and the Trustee agree otherwise.  

7.2 Removal of Trustee .  

The Trustee may be removed by the Company only with the consent of a majority of the total number of Executives and Beneficiaries of deceased Executives who remain entitled to benefits under the Executive Compensation Plans at such time.

7.3 Appointment of Successor .  

Subject to Sections 7.1 and 7.2 of this Trust Agreement, if the Trustee resigns or is removed, a successor that is independent of the Company shall be appointed by the Company as provided in this Section 7.3.   If a Trustee desires to resign or is removed, a successor Trustee, which shall be the trust department of a bank or trust company ranked among the 50 largest banks in size of total assets in the United States, shall be appointed by the Company with the consent of a majority of the total number of Executives and Beneficiaries of deceased Executives who remain entitled to benefits under the Executive Compensation Plans at such time.  In the event the Company does not appoint a successor Trustee, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Trustee or for instructions.  The appointment of the successor shall be effective when accepted in writing by the new Trustee or as of such later date or dates when Trust assets are delivered to the successor Trustee.

7.4 Duties of Predecessor Trustee and Successor Trustee .  

Upon the resignation or removal of the Trustee and appointment of a successor Trustee, the resigning or removed Trustee shall transfer and deliver the assets of the Trust to such successor after reserving such reasonable amounts as it shall deem necessary to provide for any expenses, fees, or taxes then or thereafter chargeable against the Trust.  The transfer shall be completed within 10 days after receipt of notice of resignation or removal, unless the Company extends the time limit.  A Trustee that

14


 

resigns or is removed shall promptly fur nish to the Committee and the successor Trustee a final account of its administration of the Trust.  A successor Trustee shall succeed to all rights in and ownership of the predecessor Trustee in the assets of the Trust and the predecessor Trustee shall de liver the property comprising the Trust to the successor Trustee together with any instruments of transfer, conveyance, assignment, and further assurances as the successor Trustee may reasonably require.  Each successor Trustee shall have all the powers, r ights, and duties con ferred by this Trust Agreement as if named the initial Trustee.  Subject to applicable law, no Trustee shall be personally liable for any act or failure to act of a predecessor or successor Trustee.

7.5 Expenses .  

All reasonable expenses of any resigning or removed Trustee, including the reasonable cost of any court proceeding deemed necessary by the resigning or removed Trustee, shall be administrative expenses paid by the Company.

SECTION 8


Amendment or Termination

8.1 Amendment .

(a) In General .  

This Trust Agreement as a whole or its provisions governing a particular Sub-Trust may be amended by a written instrument executed by the Trustee and the Company.  If an amendment to the Trust Agreement as a whole could reasonably be anticipated to have an adverse impact on an Executive or Beneficiary (including but not limited to an impact on the amount, likelihood or timing of payment of any amount due or that may become due under an Executive Compensation Plan) or to affect an Executive’s or Beneficiary’s voting rights, then the amendment shall also require the written consent of the majority of the total number of Executives and Beneficiaries of deceased Executives who remain entitled to benefits under the Executive Compensation Plans at such time who could reasonably be anticipated to be adversely impacted by the amendment.  

If the amendment to a particular Sub-Trust could reasonably be anticipated to have an adverse impact on the Executive or Beneficiary as to whom the Sub-Trust relates (including but not limited to an impact on the amount, likelihood or timing of payment of any amount due or that may become due under an Executive Compensation Plan) or to affect an Executive’s or Beneficiary’s voting rights, then the amendment to the Sub-Trust shall also require the written consent of the Executive or Beneficiary to whom the Sub-Trust relates.  

Notwithstanding the foregoing, no such amendment shall conflict with the terms of an Executive Compensation Plan or shall make the Trust revocable after it has become irrevocable in accordance with Section 1.2 of this Trust Agreement.

(b) Trustee; Investment Manager .  

The powers, duties and liabilities of the Trustee and any Investment Manager under this Trust Agreement cannot be changed without their mutual written consent.

8.2 Term ination .

(a) Timing .  

Subject to the allocation of assets provided in Section 8.2(c), below, each Sub-Trust shall automatically terminate when an Executive and/or Beneficiary is no longer entitled

15


 

to benefits pursuant to the terms of the applicable Executive Compensation Plan; pro vided, however, that if any Executive or Beneficiary has an out standing claim against the Company regarding his or her benefits under an Executive Compensation P lan, the Sub-Trust shall not terminate until the claim has been finally resolved, until all assets held in the Sub-Trust have been properly distributed, or until the Executive agrees in writing to the termination.  A Sub-Trust may also terminate with the w ritten consent of the affected Executive or Beneficiary, as provided in Section 1.3.  The entire Trust shall terminate upon the termination of all Sub-Trusts.  Except as provided above, the Trust and each Sub-Trust shall not terminate with respect to an Ex ecutive or Beneficiary until the date on which such Executive and/or Beneficiary is no longer entitled to any benefits pursuant to the terms of any of the Executive Compensation Plans.

(b) Continuing Powers .  

Upon termination of this Trust or any Sub-Trust, the Trustee shall continue to have such of the powers provided in this Trust Agreement as are necessary or desirable for the orderly liquidation and distribution of the Trust or Sub-Trust assets.  

(c) Assets .  

Upon termination of a Sub-Trust, all assets remaining in the Sub-Trust shall be allocated as provided in this Section 8.2(c).  The Trustee shall not make any transfer to another Sub-Trust or pay any funds to the Company under this Section 8.2 prior to satisfaction of all benefit obligations to which the applicable Sub-Trust relates.

(i) Direct Assets to Executive’s Sub-Trusts .  The Trustee shall transfer the assets from any terminated Sub-Trust to the other Sub-Trusts relating to the affected Executive, and allocate the assets among the Executive’s other Sub-Trusts proportionately based on the assets in the other Sub-Trusts, until such assets are fully allocated or such Sub-Trusts reach 100% of the amount necessary to pay the Executive the amount the Executive could be entitled to under the applicable Executive Compensation Plan.  If assets remain after the application of the immediately preceding sentence, such assets shall be allocated pursuant to Section 8.2(c)(ii) below.

(ii) Direct Assets to Other Sub-Trusts.   If there are assets remaining after the allocation provided for in Section 8.2(c)(i), above, the Trustee shall transfer the remaining assets from that Sub-Trust to the Sub-Trusts for all other Executives, and allocate the assets among the other Sub‑Trusts proportionately based on the assets in the other Sub-Trusts, until such assets are fully allocated or such Sub-Trusts reach 100% of the amount necessary to pay the Executive the amount the Executive could be entitled to under the applicable Executive Compensation Plan.  

(iii) Return to the Company.   If assets remain after the application of Sections 8.2(c)(i) and (c)(ii), to the extent permitted by Section 3, such assets shall be returned to the Company.  

(d) Trust .   Upon termination of the entire Trust, all assets remaining in the Trust shall be returned to the Company.

SECTION 9

Liability and Indemnification

9.1 Liabilities Mutually Exclusive .  

Except as otherwise provided in this Trust Agreement or by applicable law, the Company, the Trustee, the Committee, the Board of Directors, and each member thereof and each Investment Manager shall be responsible only for its or their own acts or omissions.

16


 

9.2 Indemnification .   

The Company hereby agrees to indemnify and hold harmless the Trustee and its directors, officers, employees and agents from and against all losses, damages, liabilities, claims, costs, and expenses, including reasonable attorneys’ fees, that the Trustee or its directors, officers, employees and agents may incur by reason of the negligence or willful misconduct of the Company or the Committee.  In making any distributions and taking any other action under this Trust Agreement, the Trustee may rely upon and shall be fully protected in relying upon, any notice, certificate, or other paper or written document provided by the Company or the Committee that is reasonably believed to be genuine and consistent with this Trust Agreement and the Executive Compensation Plans.

All duties and responsibilities of the Trustee shall be exercised in its sole and absolute discretion and, except as provided below, the Trustee and its directors, officers, employees and agents shall be protected from any loss or liability in the good faith exercise of that discretion.  The Company agrees that it will indemnify and hold harmless the Trustee and its directors, officers, employees and agents from and against all losses, damages, liabilities, claims, costs and expenses, including reasonable attorneys’ fees, that the Trustee may incur by reason of its good faith acts or omissions in the exercise of its discretion.  However, indemnification shall not apply to grossly negligent acts or omissions, acts or omissions in bad faith or to willful misconduct.

The indemnification obligation described in this Section 9.2 shall survive and continue after the termination of the Trust or any Sub-Trust and may not be altered or amended with respect to any current or former Trustee without its written consent.

SECTION 10

General Provisions

10.1 Successor to the Company .  

In the event the Company is succeeded by another entity, references to the Company in this Trust Agreement shall refer to the successor.

10.2 Merger of Trustee .  

If the Trustee is merged or consolidated with, or shall sell or transfer all or substantially all of its assets and business to another entity, or shall be in any manner reorganized or reincorporated, then the successor corporation or other entity shall continue to be the Trustee pending subsequent resignation or removal as provided in Section 7.

10.3 Nonalienation .  

Benefits payable to Executives and their Beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process.  An interest in an amount promised shall not provide collateral or security for a debt of an Executive or Beneficiary or be subject to garnishment, execution, assignment, levy, or to another form of judicial or administrative process or to the claim of a creditor of an Executive or Beneficiary, through legal process or otherwise.  Any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise dispose of benefits payable, before actual receipt of the benefits, or a right to receive benefits, shall be void and shall not be recognized.

17


 

10.4 Severability .

Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof.

10.5 Governing Law .  

This Trust Agreement shall be governed by and construed in accordance with the laws of the state of Michigan, to the extent not preempted by federal law.

10.6 Notices .  

Notices pursuant to this Trust Agreement shall be given by first class or priority U.S. mail or by commercial express delivery and shall be addressed to:

Company:

SpartanNash Company

Attn :  General Counsel

850 76th Street S.W.

P.O. Box 8700

Grand Rapids, Michigan 49518

 

Trustee:

Attn :  

 

 

 

10.7 Counterparts .  

This Trust Agreement and any amendment hereto may be executed in two or more counterparts.

10.8 Gender and Number .  

Except when otherwise indicated by the context, words denoting the masculine gender shall include the feminine, the singular shall include the plural, and the plural shall include the singular.

10.9 Scope of this Agreement .  

This Trust Agreement will be binding on the Executives and all other persons entitled to any  benefits hereunder and their respective heirs and legal representatives, and upon the Company, the Committee, the Trustee, and any Investment Managers, and their successors and assigns.

10.10 Statutory References .

Any references in this Trust Agreement to a section of the Code or any other statute or regulation shall include any comparable section or sections that amends, supplements, or supersedes that section.

18


 

10.11 Headings .   

The headings contained herein are inserted only as a matter of convenience and for reference and in no way define, limit, enlarge, or describe the scope or intent of the Trust Agreement or the construction of any provision thereof.

10.12 Section 409A .

This Trust is intended to comply with the trust funding restrictions of Section 409A(b) of the Code and shall be interpreted and operated consistently with those intentions.

IN WITNESS WHEREOF, this Trust Agreement is executed on behalf of the Company, and the Trustee by their respective authorized officers, as of the day and year set forth above.

 

 

SPARTANNASH COMPANY

 

By

 

Its

 

 

[TRUSTEE]

 

By

 

Its

 

19

EXHIBIT 21

LIST OF SUBSIDIARIES OF SPARTANNASH COMPANY

 

Name

Jurisdiction of Formation

Other Names Under Which Business is Conducted

Nash-Finch Company

Delaware

Bag ‘n Save

Econofoods

Family Fare

Family Fresh Market

Family Thrift Center

Germantown Fresh Market

No Frills Supermarkets

Pick ‘n Save

Prairie Market

SunMart Foods

Supermercado Nuestra Familia

Wholesale Food Outlet

Caito Foods, LLC

Michigan

 

BRT SpartanNash, LLC

Michigan

Blue Ribbon Transport

Spartan Stores Distribution, LLC

Michigan

 

Market Development, LLC

Michigan

Jefferson Square (in IN)

Market Street Plaza (in IN)

Seaway Food Town, Inc.

Michigan

 

SpartanNash Procurement, LLC

Michigan

 

Spartan Stores Fuel, LLC

Michigan

D&W Quick Stop

Family Fare Quick Stop

Forest Hill Fuel

VG’s Quick Stop

SpartanNash Associates, LLC

Michigan

 

Family Fare, LLC

Michigan

D&W Fresh Market

D&W Pharmacy

Family Fare Pharmacy

Family Fare Supermarkets

Forest Hills Pharmacy

Forest Hills Foods

VG’s Food Center

VG’s Pharmacy

Valu Land

Prevo’s Family Markets, Inc.

Michigan

D&W Fresh Market

D&W Pharmacy

Family Fare Pharmacy

Family Fare Supermarket

 

MSFC, LLC

Michigan

 

MDV SpartanNash LLC

Delaware

MDV

Erickson’s Diversified Corporation

Wisconsin

 

Fresh City Market LLC

Wisconsin

 

GTL Truck Lines, Inc.

Nebraska

 

Hinky Dinky Supermarkets

Nebraska

 

Pique Brands, Inc.

Delaware

 

Super Food Services, Inc.

Delaware

 

T.J. Morris Company

Georgia

 

U Save Foods, Inc.

Nebraska

 

The Pharm of Michigan, Inc.

Michigan

 

Spartan Properties Management, Inc.

Ohio

 

Valley Farm Distributing Co.

Ohio

VFD


Name

Jurisdiction of Formation

Other Names Under Which Business is Conducted

Custer Pharmacy, Inc.

Michigan

 

Gruber’s Real Estate, LLC

Michigan

 

 

Exhibit 23

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in Registration Statement Nos. 333-110593, 333-110952, 333-129156, 333-145432, 333-161742, 333-161745, 333-161749, 333-186683, 333-49448, 333-65802, 333-66430, 333-71774, 333-72010, 333-75810, 333-96615, 333-192713, 333-100794, 333-204725 on Form S-8, and Registration Statement No. 333-53672 on Form S-3 of our reports dated March 1, 2017, relating to the consolidated financial statements of SpartanNash Company and Subsidiaries (the “Company”), and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2016.

/s/ DELOITTE & TOUCHE LLP

Grand Rapids, MI

 

March 1, 2017

 

Exhibit 24

POWER OF ATTORNEY

The undersigned in his or her capacity as a director or officer, or both, of SpartanNash Company, does hereby appoint dennis Eidson and DAVID M. STAPLES or either of them, his or her attorneys or attorney, with full power of substitution, to execute in his or her name an Annual Report of SpartanNash Company on Form 10-K for its fiscal year ended December 31, 2016, and any amendments to that report, and to file it with the Securities and Exchange Commission or other regulatory authority.  Each attorney shall have power and authority to do and perform in the name and on behalf of the undersigned, in any and all capacities, every act to be done in the premises as fully and to all intents and purposes as the undersigned could do in person, and the undersigned hereby ratifies and approves the acts of such attorneys.

 

Signature:

/s/ M. Shân Atkins

 

Signature:

/s/ Mickey P. Foret

Print Name: 

M. Shân Atkins

 

Print Name: 

Mickey P. Foret

Title:

Director

 

Title:

Director

Date:

February 28, 2017

 

Date:

February 28, 2017

 

 

 

 

 

Signature:

/s/ Dr. Frank M. Gambino

 

Signature:

/s/ Douglas A. Hacker

Print Name: 

Dr. Frank M. Gambino

 

Print Name:

Douglas A. Hacker

Title:

Director

 

Title:

Director

Date:

February 28, 2017

 

Date:

February 28, 2017

 

 

 

 

 

Signature:

/s/ Yvonne R. Jackson

 

Signature:

/s/ Elizabeth A. Nickels

Print Name: 

Yvonne R. Jackson

 

Print Name: 

Elizabeth A. Nickels

Title:

Director

 

Title:

Director

Date:

February 28, 2017

 

Date:

February 28, 2017

 

 

 

 

 

Signature:

/s/ Timothy J. O’Donovan

 

Signature:

/s/ Hawthorne Proctor

Print Name: 

Timothy J. O’Donovan

 

Print Name:

Hawthorne Proctor

Title:

Director

 

Title:

Director

Date:

February 28, 2017

 

Date:

February 28, 2017

 

 

 

 

 

Signature:

/s/ William R. Voss

 

 

 

Print Name: 

William R. Voss

 

 

 

Title:

Director

 

 

 

Date:

February 28, 2017

 

 

 

 

Exhibit 31.1

CERTIFICATION

I, Dennis Eidson, certify that:

1. I have reviewed this Annual Report on Form 10-K of SpartanNash Company;

2. Based on my knowledge, this 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 report;

3. Based on my knowledge, the financial statements, and other financial information included in this 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 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 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 report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this 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 reasonably 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.

 

Date: March 1, 2017

 

/s/ Dennis Eidson

 

 

Dennis Eidson

Chairman and Chief Executive Officer

(Principal Executive Officer)

 

Exhibit 31.2

CERTIFICATION

I, Christopher P. Meyers, certify that:

1. I have reviewed this Annual Report on Form 10-K of SpartanNash Company;

2. Based on my knowledge, this 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 report;

3. Based on my knowledge, the financial statements, and other financial information included in this 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 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 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 report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this 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 reasonably 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.

 

Date: March 1, 2017

 

/s/ Christopher P. Meyers

 

 

Christopher P. Meyers

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

 

Exhibit 31.3

CERTIFICATION

I, Tammy R. Hurley, certify that:

1. I have reviewed this Annual Report on Form 10-K of SpartanNash Company;

2. Based on my knowledge, this 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 report;

3. Based on my knowledge, the financial statements, and other financial information included in this 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 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 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 report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this 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 reasonably 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.

 

Date: March 1, 2017

 

/s/ Tammy R. Hurley

 

 

Tammy R. Hurley

Vice President, Finance and Chief Accounting Officer

(Principal Accounting Officer)

 

 

Exhibit 32.1

CERTIFICATION

Pursuant to 18 U.S.C. § 1350, each of the undersigned hereby certifies in his capacity as an officer of SpartanNash Company (the “Company”) that the Annual Report of the Company on Form 10-K for the accounting period ended December 31, 2016 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such report fairly presents, in all material respects, the financial condition of the Company at the end of such period and the results of operations of the Company for such period.

This Certificate is given pursuant to 18 U.S.C. § 1350 and for no other purpose.

 

Dated: March 1, 2017

 

/s/ Dennis Eidson

 

 

Dennis Eidson

Chairman and Chief Executive Officer

(Principal Executive Officer)

 

Dated: March 1, 2017

 

/s/ Christopher P. Meyers

 

 

Christopher P. Meyers

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

 

Dated: March 1, 2017

 

/s/ Tammy R. Hurley

 

 

Tammy R. Hurley

Vice President, Finance and Chief Accounting Officer

(Principal Accounting Officer)

 

A signed original of this written statement has been provided to SpartanNash Company and will be retained by SpartanNash Company and furnished to the Securities and Exchange Commission or its staff upon request.