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8-K - UNITED NATURAL FOODS, INC. - UNITED NATURAL FOODS INC | eps3691.htm |
Exhibit
10.1
EMPLOYMENT
SEPARATION AGREEMENT AND RELEASE
United
Natural Foods, Inc., a Delaware corporation (the “Company”) and Daniel V. Atwood
(“Mr. Atwood”) hereby agree as follows:
1.
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The
Company and Mr. Atwood hereby agree that,
Mr. Atwood’s service with the Company as (i) an employee and officer of
the Company and (ii) an employee, officer or director of any subsidiaries
of the Company, shall terminate effective January 8, 2010 (the “Separation
Date”).
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2.
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On
the later of the Separation Date or the expiration of the Revocation
Period (as hereinafter defined), the Company will pay Mr. Atwood for any unused
vacation time (as reflected in the Company’s records) earned by him
through the Separation Date. Beginning with the later of the Separation
Date or the expiration of the Revocation Period (as hereinafter
defined):
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a.
The Company shall continue Mr. Atwood’s base salary of $363,000 per year
and medical benefits as in effect as of the Separation Date for a period
of one (1) year from the Separation Date, subject to applicable
withholdings and deductions; provided, however that the Company shall make
no base salary payments under this Section 2(a) until six months and one
day after the Separation Date, at which point the Company shall pay Mr.
Atwood all accrued and unpaid base salary payments (less applicable
withholdings and deductions) for such six-month period, and thereafter the
Company shall pay base salary for the balance of the period ending one
year following the Separation Date in accordance with its normal payroll
policies.
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b.
After the expiration of the above-referenced one-year period, the Company
shall respect Mr. Atwood’s rights (and his dependents’ rights), if any, to
continued medical coverage at his own expense under the Consolidated
Omnibus Budget Reconciliation Act.
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3.
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a.
As of the Separation Date, Mr. Atwood shall no longer be eligible to
receive long-term disability benefits or to participate in the Company’s
401(k) and Profit Sharing Plan or any other benefit plan of the Company or
any of its subsidiaries. The Company will promptly notify Mr.
Atwood in writing concerning his options with regard to his 401(k)
account.
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b.
Mr. Atwood may at any time exercise his rights under the Company’s
Employee Stock Ownership Plan (“ESOP”) to effect the distribution and
sale, if he so elects, of shares of the Company’s Common Stock allocated
to him, in accordance with the provisions of the
ESOP.
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4.
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a. In
consideration of the foregoing, which Mr. Atwood acknowledges includes
compensation, benefits and other rights to which he is not otherwise
entitled, Mr. Atwood hereby knowingly
and voluntarily releases and forever discharges the Company, its present
and former directors, officers, employees, agents, subsidiaries,
affiliates and shareholders, and its and their successors and assigns
(collectively, the “Released Parties”), from any and all liabilities,
causes of action, debts, claims and demands (including without limitation
claims and demands for monetary payment) both in law and in equity, known
or unknown, fixed or contingent, which he may have or claim to have
against the Released Parties, including any liabilities, causes of action,
debts, claims or demands based upon or in any way related to: (i) his
employment (as an officer, director or employee) by or with the Company
and any subsidiary thereof, (ii) any rights or entitlements related
thereto or (iii) termination of such employment by the Company, and hereby
covenants not to file a lawsuit or charge to assert such
claims. This includes but is not limited to claims arising
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
1981, all claims of discrimination based on age, as provided under the Age
Discrimination in Employment Act of 1967, as amended, or the Older
Workers’-Benefit-Protection Act, all claims under the Employee Retirement
Income Security Act (ERISA), all claims under the Family and Medical Leave
Act (FMLA), all claims of employment discrimination under the Americans
with Disabilities Act (ADA), as well as claims under any other applicable
federal, state or local laws concerning Mr. Atwood’s
employment.
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b.
Mr. Atwood understands that various State and Federal laws prohibit
employment discrimination based on age, sex, race, color, national origin,
religion, handicap or veteran status. These laws are enforced
through the Equal Employment Opportunity Commission (EEOC), Department of
Labor and State Human Rights Agencies. Mr. Atwood acknowledges
that he has been advised by the Company to discuss this Agreement with his
attorney and has been encouraged to take this Agreement home for up to
twenty-one (21) days so that he can thoroughly review it and understand
the effect of this Agreement before acting on
it.
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5.
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a.
Mr. Atwood acknowledges and agrees that all payments and benefits payable
to him under this Agreement (other than earned wages and payment for
accrued and unpaid vacation) are contingent upon: (i) his continued
compliance with the provisions of this Agreement and (ii) his agreement to
make himself available in any third party claims, investigations,
litigation or similar proceedings to answer any questions relating to his
employment or actions as an employee, officer or director of the Company,
including without limitation attendance at any deposition or similar
proceeding, and the Company shall pay Mr. Atwood’s reasonable and
documented personal expenses actually incurred in connection with his
fulfillment of his obligations under this subsection (ii) of this Section
5(a). Any reimbursement of expenses under subsection (ii) of
this Section 5(a) shall be made as soon as reasonably practicable
following Mr. Atwood’s delivery of an accounting of such expenses and in
accordance with Sections 1.409A-1(b)(9)(v) or 1.409A-3(i)(1)(iv) of the
Treasury Regulations, as
applicable.
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b.
Mr. Atwood further
acknowledges and agrees that the availability of such payments and
benefits provided by this Agreement is sufficient consideration for the
release set forth in paragraph 4(a) and the amendment to his
non-competition and non-solicitation obligations set forth below in
paragraph 5(c) and termination of such payments and benefits due to his
non-compliance with the terms of this Agreement shall not affect the
release set forth in Paragraph
4(a).
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c.
Mr. Atwood further agrees that for a period from the date hereof until the
date that is one year following the Separation Date, he shall not, whether
directly or indirectly, alone or in conjunction with another party, as an
owner, shareholder, officer, employee, manager, consultant, independent
contractor, or otherwise: (i) interfere with or harm, or
attempt to interfere with or harm, the relationship of the Company or its
affiliates with any person who is an employee, customer, vendor, product
or services supplier, independent contractor, or business agent or partner
of the Company or any of its affiliates; (ii) contact any employee of the
Company or its affiliates for the purpose of discussing or suggesting that
such employee resign from employment with the Company or its affiliates
for the purpose of becoming employed elsewhere or provide information
about individual employees of the Company or its affiliates or personnel
policies or procedures of the Company or its affiliates to any person or
entity, including any individual, agency or company engaged in the
business of recruiting employees, executives or officers; (iii) recruit or
hire, or attempt to recruit or hire, any person who is an employee of the
Company or any of its affiliates, or was an employee of the Company or any
of its affiliates within the prior six months; (iv) disclose to or release
any Company trade secrets, proprietary or confidential information or data
to any unauthorized person or entity; or (v) own, manage, advise, operate,
join, control, be employed by, consult with or participate in the
ownership, management, advisement, operation or control of, or be
connected with as a stockholder, partner, officer, manager, employee, or
consultant, any Competing or Related Business; provided, however, that
“beneficial ownership,” either individually or as a member of a “group” as
such terms are used in Rule 13d of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, of not more than two
percent (2%) of the voting stock of any publicly held corporation, shall
not be a violation of this Agreement. For purposes of the
foregoing, the term “Competing and Related Business” shall mean any
business, individual, company, partnership, firm, corporation or other
entity that (A) engages in any business engaged in by the Company on the
Separation Date, or any date during the term of Mr. Atwood’s employment
with the Company; or (B) is a customer of the Company or any of its
affiliates on the Separation Date, or any date during the term of Mr.
Atwood’s employment with the Company, including, but not limited to, the
following entities and their affiliates: Kehe Food Distributors, Inc.,
Tree of Life, Inc., Royal Wessanen NV, Perkins, Inc., Nature’s Best Food
Co., Ltd., Steiner Foods, Inc., DPI Specialty Foods Inc., Haddon House
Food Products, Inc., Davidson Food Equipment and Supplies Ltd., Whole
Foods Market, Inc., National Cooperative Grocers Association, Ahold and
Wegmans Food Market, Inc.
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6.
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Mr.
Atwood shall at no time make any derogatory or disparaging comments
regarding the Company, its business, or its present or past directors,
officers or employees. The Company shall at no time make any
derogatory or disparaging comments regarding Mr. Atwood. Mr.
Atwood hereby waives any and all rights to future employment with the
Company. Notwithstanding the foregoing, the Company shall be
permitted to (a) reasonably defend itself against any public statement or
communication made by Mr. Atwood that disparages the Company, but only if
statements made in such defense are not false statements and (b) provide
truthful testimony in any legal proceeding or
process.
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7.
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The
execution of this Agreement shall not be construed as an admission of a
violation of any statute or law or breach of any duty or obligation by
either the Company or Mr. Atwood.
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8.
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No
party to this Agreement shall cause, discuss, cooperate or otherwise aid
in the preparation of any press release or other publicity other than
filings required by the securities laws, concerning any other party to
this Agreement or the Agreement’s operation without prior approval of such
other party, unless required by law, in which case notice of such
requirement shall be given to the other
party.
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9.
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The
invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid and unenforceable
provisions were omitted.
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10.
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This
Agreement is personal to Mr. Atwood and may not be assigned by
him. However, in the event of Mr. Atwood’s death, all the
rights of Mr. Atwood set forth in this Agreement shall accrue to his
spouse, if she is living; otherwise, to his heirs. This
Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the Company.
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11.
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This
Agreement is made pursuant to and shall be governed by the laws of the
State of Rhode Island, without regard to its rules regarding conflict of
laws. The parties agree that the courts of the State of Rhode
Island, and the Federal Courts located therein, shall have exclusive
jurisdiction over all matters arising from this Agreement. Mr.
Atwood and the Company hereby agree that service of process by certified
mail, return receipt requested, shall be deemed appropriate service of
process.
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12.
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Except
as otherwise expressly indicated, this Agreement contains the entire
understanding between Mr. Atwood and the Company, supersedes all prior
agreements, oral or written, regarding the subject matter hereof, and may
not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification,
extension or discharge is sought. Mr. Atwood acknowledges that
he has not relied upon any representation or statement, written or oral,
not set forth in this Agreement.
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13.
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Mr.
Atwood may revoke this Agreement at any time during the seven-day period
following the date of his signature below (the “Revocation Period”) by
delivering written notice of his revocation to the Company’s attention at
313 Iron Horse Way, Providence, Rhode Island 02908; Attention: Carl
Koch. This Agreement shall become effective upon the expiration
of the Revocation Period. In the event that Mr. Atwood revokes
this Agreement prior to the expiration of the Revocation Period, he shall
not be entitled to any of the benefits provided in this Agreement,
including but not limited to, payment of the amounts set forth in Section
2(b).
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[signature
lines appear on the next page]
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
below.
United
Natural Foods, Inc.
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Witness: /s/ Carrie L.
Walker
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By:
/s/ Carl F.
Koch
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Date: January 20, 2010
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/s/ Daniel V. Atwood
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Witness: /s/ Mary E.
Atwood
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Date: January 20, 2010
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