Exhibit 99.2
UNITED NATURAL FOODS, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") effective as of
_____________, 20__, between United Natural Foods, Inc. ("Company") and
___________________ ("Participant"), who is an employee, consultant, or
non-employee director of the Company or a Subsidiary, evidences the award of
Restricted Stock to the Participant under the United Natural Foods, Inc. 2004
Equity Incentive Plan ("Plan").
In consideration of services rendered and agreed to be rendered, the
Company makes this Award of Restricted Stock to the Participant named in the
first sentence of this Agreement. This Agreement and the issuance or transfer of
shares of the Company's common stock are conditioned on the following terms:
1. Definitions.
All capitalized terms that are not otherwise defined in this
Agreement shall have the meanings set forth in the Plan.
(a) Grant Date means _________________, 20__ [same date as
introductory paragraph]
(b) Participant, solely for purposes of this Agreement, means the
employee, consultant or non-employee director designated
above.
(c) Repurchase Option means the right and option of the Company to
repurchase Restricted Stock pursuant to Sections 5 and 6 of
this Agreement.
(d) Repurchase Price means the amount for which the Company may
repurchase Shares from the Participant in exercising its
Repurchase Option pursuant to Sections 5 and 6 of this
Agreement.
(e) Restriction Period means the period commencing upon issuance
of Shares in accordance with Section 2 and ending on the last
date listed in Section 3 of this Agreement.
(f) Shares means Shares, as defined in Section 1(f) of the Plan,
issued pursuant to this Agreement.
(g) Unvested Shares means Shares issued pursuant to this Agreement
as to which the Restriction Period has not expired under
Section 3 of this Agreement.
2. Grant or Purchase of Shares.
The Company hereby grants to the Participant, subject to the terms
and conditions set forth in this Agreement and in the Plan, _____ Shares at a
purchase price of $_______ per Share. The aggregate purchase price, if any, for
the Shares shall be paid by the Participant by check payable to the order of the
Company or such other method as may be acceptable to the Company. Upon receipt
by the Company of any required payment for the Shares or upon the Grant Date (if
no purchase price is required), the Company shall issue to the Participant one
or more certificates in the name of the Participant for the number of Shares
purchased by or granted to the Participant. The Participant agrees that the
Shares shall be subject to the Repurchase Option set forth in Sections 5 and 6
of this Agreement and the restrictions on transfer set forth in Sections 7 and 8
of this Agreement.
3. Restriction Period.
(a) The Restriction Period under this Agreement shall expire, with
respect to the number or percentage of Shares designated in the schedule below,
at the close of business on the dates enumerated in the schedule below [or, if
earlier, upon the death or disability (as defined in Section 14(a) of the Plan)
of the Participant][and shall not expire earlier than such dates as a result of
death or disability (as defined in Section
14(a) of the Plan) of the Participant]
Number or Percentage of Shares
or Additional Shares As To Which
Date Restrictions Lapse on This Date
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(b) All restrictions imposed on an Award [shall][shall not] lapse if,
within twelve months after the Company obtains actual knowledge that a Change in
Control has occurred, a Participant's employment with the Company and its
Subsidiaries ceases for any reason. (See Section 14(c) of the Plan.)
4. Rights of the Participant as a Stockholder.
The Participant, as the owner of record of the Shares issued or
transferred pursuant to this Agreement, shall be entitled to all the rights of a
stockholder of the Company, including the right to vote, the right to receive
dividends payable either in stock or in cash, and the right to receive shares in
any recapitalization of the Company, subject, however, to the restrictions
stated in the Plan and this Agreement and referred to in the legend described in
Section 9 below. If the Participant receives any additional shares of stock of
the Company by reason of being the holder of the Shares issued or transferred
under this Agreement, all such additional shares of stock shall be subject to
the restrictions set forth in this Agreement that apply to such Shares, and all
certificates evidencing ownership of the additional shares of common stock shall
bear the legend described in Section 9 below.
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5. Repurchase Option.
In the event the Participant ceases to be employed by the Company or a
Subsidiary for any reason or no reason, the Company shall have the right and
option (the "Repurchase Option") to purchase some or all of the Unvested Shares
from the Participant, for the sum of $_________ [the amount in Section (2)
above] per share (the "Repurchase Price"). In the event that such Unvested
Shares were issued at no cost, the Company's Repurchase Option is the right to
require forfeiture and transfer of some or all of the Unvested Shares to the
Company without any payment by the Company.
6. Exercise of Repurchase Option and Closing.
(a) The Company may exercise the Repurchase Option by delivering
or mailing to the Participant (or his estate), within 60 days
after the termination of the Participant's employment, a
written notice of exercise of the Repurchase Option. Such
notice shall specify the number of Shares to be purchased (or
forfeited, in the event the Shares were issued at no cost). If
and to the extent the Repurchase Option is not so exercised by
the giving of such a notice within such 60-day period, the
Repurchase Option shall automatically expire and terminate
effective upon the expiration of such 60-day period.
(b) Within 10 days after delivery to the Participant of the
Company's notice of the exercise of the Repurchase Option
pursuant to subsection (a) above, the Participant (or his
estate) shall, pursuant to the provisions of the joint Escrow
Instructions referred to in Section 8, tender to the Company
at its principal offices the certificate or certificates
representing the Shares which the Company has elected to
purchase in accordance with the terms of this Agreement, duly
endorsed in blank or with duly endorsed stock powers attached
thereto, all in form suitable for the transfer of such Shares
to the Company. Promptly following its receipt of such
certificate or certificates, the Company shall pay to the
Participant the aggregate Repurchase Price, if any, for such
Shares; provided, however, that any delay in making such
payment shall not invalidate the Company's exercise of the
Repurchase Option with respect to such Shares.
(c) After the time at which any Shares are required to be
delivered to the Company for transfer to the Company pursuant
to subsection (b) above, the provisions of Section 4 shall not
apply, and the Company shall not pay any dividend to the
Participant on account of such Shares or permit the
Participant to exercise any of the privileges or rights of a
stockholder with respect to such Shares, but shall, insofar as
permitted by law, treat the Company as the owner of record of
such Shares.
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(d) The Repurchase Price, if any, may be payable, at the option of
the Company, in cancellation of all or a portion of any
outstanding indebtedness of the Participant to the Company or
in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon
exercise of the Repurchase Option, and any fraction of a Share
shall be rounded to the nearest whole Share (with any one-half
Share being rounded upward).
(f) The Company may assign its Repurchase Option to one or more
persons or entities.
7. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively "transfer") any Shares, or any interest therein, that are subject
to the Repurchase Option.
8. Escrow
The Participant shall, upon the execution of this Agreement, execute
joint Escrow Instructions in the form attached to this Agreement as Exhibit A.
The joint Escrow Instructions shall be delivered to the Secretary of the
Company, as escrow agent thereunder. The Participant shall deliver to such
escrow agent a stock assignment duly endorsed in blank and hereby instructs the
Company to deliver to such escrow agent, on behalf of the Participant, the
certificate(s) evidencing the Shares issued hereunder. Such materials shall be
held by such escrow agent pursuant to the terms of such Joint Escrow
Instructions. The Participant shall have the right to withdraw from the escrow
any Shares as to which the Repurchase Option has terminated or expired.
9. Restrictive Legends.
Each certificate representing ownership of Shares acquired pursuant
to this Agreement that is delivered during the Restriction Period shall have
affixed thereto, in addition to any legends required under the Plan or under
federal or state securities laws, a legend in substantially the following form:
"The shares of stock represented by this certificate have been
issued or transferred subject to a certain Restricted Stock
Agreement between the Corporation and the registered owner of such
shares (or his predecessor in interest), and are subject to
restrictions on transfer and an option to purchase set forth in that
Agreement. The Restricted Stock Agreement is available for
inspection without charge at the office of the Secretary of the
Corporation."
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10. Effect of Prohibited Transfer.
The Company shall not be required (a) to transfer on its books any
of the Shares which shall have been sold or transferred in violation of any of
the provisions set forth in this Agreement or the Plan or (b) to treat as owner
of such Shares or to pay dividends to any transferee to whom any such Shares
shall have been so sold or transferred.
11. Withholding and Section 83(b) Election.
(a) The Participant acknowledges and agrees that the Company has
the right to deduct from payments of any kind otherwise due to
the Participant any federal, state or local taxes of any kind
required by law to be withheld with respect to the purchase by
or grant to the Participant of the Shares or the lapse of the
Repurchase Option, and to require that the Company be paid the
amount of any federal, state, or local taxes required by law
to be withheld.
(b) The Participant acknowledges that he has been informed of the
availability of making an election in accordance with Section
83(b) of the Code, as amended; that such election must be
filed with the Internal Revenue Service within 30 days of the
transfer of shares to the Participant; and that the
Participant is solely responsible for making such election.
12. Amendment. The Committee may in its sole discretion amend, modify, or
terminate this Agreement, including but not limited to substituting therefore
another Award of the same or a different type or changing the Restriction
Period. Except as otherwise provided in the Plan or in this Agreement or as
necessary to conform this Agreement to mandatory provisions of applicable
federal or state laws, regulations, or rulings, the Committee shall obtain the
Participant's consent before it amends this Agreement in a manner that
significantly reduces the Participant's rights or benefits under this Agreement.
13. Determinations by Committee. Determinations by the Committee shall be
final, binding and conclusive with respect to the interpretation of the Plan and
this Agreement.
14. Provisions of the Plan. This grant is subject to the provisions of the
Plan, which is incorporated into this Agreement by reference and a copy of which
is furnished to the Participant with this Agreement.
15. Notices and Payments. Any notice required or permitted to be given to
the Participant under this Agreement shall be in writing and shall be deemed
effective upon personal delivery or upon deposit in the United States mail with
postage and fees prepaid. Any notice or communication required or permitted to
be given to the Company under this Agreement shall be in writing and shall be
deemed effective only upon receipt by the Secretary of the Company at the
Company's principal office.
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16. Waiver. The waiver by the Company of any provision of this Agreement
at any time or for any purpose shall not operate as or be construed to be a
waiver of the same or any other provision of this Agreement at any subsequent
time or for any other purpose.
17. Governing Law. The validity and construction of this Agreement shall
be governed by the laws of the State of Delaware, excluding any conflicts or
choice of law rules or principles that might otherwise refer construction or
interpretation of any provision of this Agreement to the substantive law of
another jurisdiction.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by an officer of the Company, and the Participant has accepted and
signed this Agreement, all on the day and year first mentioned above.
UNITED NATURAL FOODS, INC.
By: __________________________________
Title: __________________________________
Date: __________________________________
________________________________ ________________________________
Participant Date
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EXHIBIT A
UNITED NATURAL FOODS, INC.
JOINT ESCROW INSTRUCTIONS
[Date of Restricted Stock Agreement]
[Name of Secretary of the Company]
United Natural Foods, Inc.
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Dear _____________:
As Escrow Agent for United Natural Foods, Inc., a Delaware
corporation (the "Company"), and the undersigned person ("Holder"), you are
hereby authorized and directed to hold the documents delivered to you pursuant
to the terms of that certain Restricted Stock Agreement (the "Agreement") of
even date herewith, to which a copy of these joint Escrow Instructions is
attached, in accordance with the following instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit
with you any certificates evidencing Shares (as defined in the Agreement) to be
held by you hereunder and any additions and substitutions to said Shares. Holder
does hereby irrevocably constitute and appoint you as his attorney-in-fact and
agent for the term of this escrow to execute with respect to such Shares an
documents necessary or appropriate to make such Shares negotiable and to
complete any transaction herein contemplated. Subject to the provisions of this
paragraph 1 and the terms of the Agreement, Holder shall exercise all rights and
privileges of a stockholder of the Company while the Shares are held by you.
2. Closing of Purchase.
(a) Upon any purchase by the Company of the Shares pursuant to the
Agreement, the Company shall give to Holder and you a written notice specifying
the purchase price for the Shares, as determined pursuant to the Agreement, and
the time for a closing hereunder (the "Closing") at the principal office of the
Company. Holder and the Company hereby irrevocably authorize and direct you to
close the transaction contemplated by such notice in accordance with the terms
of said notice.
(b) At the Closing, you are directed (a) to date the stock
assignment form or forms necessary for the transfer of the Shares, (b) to fill
in on such form or forms the number of Shares being transferred, and (c) to
deliver same, together with the certificate or certificates evidencing the
Shares to be transferred, to the Company against the simultaneous delivery to
you of the purchase price, if any, for the Shares being purchased or granted
pursuant to the Agreement.
3. Withdrawal. The Holder shall have the right to withdraw from this
escrow any Shares as to which the Repurchase Option (as defined in the
Agreement) has terminated or expired.
4. Duties of Escrow Agent.
(a) Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties
as are specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by you
to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good
faith and in the exercise of your own good judgment, and any act done or omitted
by you pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
(c) You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or company,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or company by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the
identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
(e) You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall
terminate if (i) you cease to be Secretary of the Company or (ii) you resign by
written notice to each party. In the event of a termination under clause (i),
your successor as Secretary shall automatically and without notice become Escrow
Agent hereunder; in the event of a termination under clause (ii), the Company
shall appoint a successor Escrow Agent hereunder.
(g) If you reasonably require other or further instruments in
connection with these joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
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(h) It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
(i) These joint Escrow Instructions set forth your sole duties with
respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into these joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless against
any and all damages, losses, liabilities, costs, and expenses, including
attorneys' fees and disbursements, for anything done or omitted to be done by
you as Escrow Agent in connection with this Agreement or the performance of your
duties hereunder, except such as shall result from your gross negligence or
willful misconduct.
5. Notice. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' advance written notice to each of the other parties
hereto.
if to the Company: United Natural Foods, Inc.
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Attn: [Name of Sender of these Instructions]
if to the Holder: Notices to Holder shall be sent to the
address setforth below Holder's signature
below.
if to the Escrow Agent: [Name of Secretary of the Company]
United Natural Foods, Inc.
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6. Miscellaneous.
(a) By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions, and you do not
become a party to the Agreement.
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(b) This instrument shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
Very truly yours,
United Natural Foods, Inc.
By: ____________________
[Name of Sender]
[Title of Sender]
Holder:
____________________________
[Name of Recipient of Award]
Address: ______________________
______________________
Date Signed: ___________________
Escrow Agent:
_________________________________
[Name of Secretary of the Company]
Secretary
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