EXHIBIT 10.30
EMPLOYMENT AGREEMENT
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THIS AGREEMENT ("Agreement") is made and entered into this 31st day of
October, 1997, by and between UNITED NATURAL FOODS, INC., a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXXXXX of X.X. Xxx 00, Xxxxx Xxxx,
Xxxxxxxxxxxx, Xxx Xxxxxxxxx 00000 ("Executive").
WITNESSETH:
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WHEREAS, each of the Company and Stow Xxxxx, Inc. a Vermont corporation
("Stow Xxxxx"), are engaged in the wholesale distribution of natural foods and
related products (the "Company Business");
WHEREAS, Stow Xxxxx has become a wholly-owned subsidiary of the Company
effective the date hereof;
WHEREAS, Executive has heretofore been employed by Stow Xxxxx for a number
of years and possesses significant knowledge and information respecting the
Company Business, which knowledge and information will be increased, developed
and enhanced by his continued employment;
WHEREAS, Executive is a key employee of Stow Xxxxx familiar with and
responsible for the success of the Company Business; and
WHEREAS, the parties hereto desire to enter into this Agreement as to the
Company's employment of Executive on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties agree as follows:
1. Employment and Term. Subject to the terms and conditions of this
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Agreement, the Company hereby employs Executive, and Executive hereby accepts
employment by the Company as President and Chief Executive Officer of Stow
Xxxxx and President and Chief Executive Officer of the Company's Eastern Region
which includes the business operations of Stow Xxxxx and the Company's
Cornucopia Natural Foods division (the "Eastern Region"). Additionally, during
the term hereof, Executive shall serve as one of two Directors of Stow Xxxxx.
In such capacity Executive shall have full management responsibility for the
business and operations of the Company's Eastern Region, which responsibilities
shall include, without limitation, integration of Stow Xxxxx into the Company's
Eastern Region operations. The Executive shall report to the Chairman and Chief
Executive officer of the Company. Executive's employment under this Agreement
shall be for an initial term (the "Initial Term") terminating on the second
anniversary of the date hereof. On such date and on each anniversary of such
date (the "Renewal Date"), Executive's employment hereunder shall automatically
be extended for an additional one-year term ("Renewal Term"), unless either
party shall notify the other party in writing not less than ninety (90) days
prior to any such Renewal Date of his or its election to terminate Executive's
employment with the Company upon the expiration of the then current term.
Executive and the Company agree that any relocation of Executive shall only be
by mutual agreement of the parties. In the event of any such relocation, the
Company shall pay all reasonable and necessary moving expenses to relocate the
Executive and his immediate family.
2. Duties. Executive hereby agrees that during the term of this
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Agreement he will devote his full time, attention and energies to the diligent
performance of his duties as an employee of the Company, provided that Executive
may engage in any venture or activity which (a) is not competitive with or
adverse to the business of the Company or any subsidiary or affiliate of the
Company (other than the ownership of not more than five percent (5%) of the
stock or other equity interest of any publicly traded corporation or other
entity), and (b) does not interfere with Executive's performance of his duties
hereunder.
3. Compensation. In consideration of Executive's services hereunder, the
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Company shall pay to Executive during the term of his employment with the
Company a salary at the rate of not less than One Hundred Thirty Thousand
Dollars ($130,000) per annum, in equal installments at such times as the Company
shall make payments of salary and wages to its employees generally. Executive's
salary will be reviewed by the Compensation Committee of the Board of Directors
of the Company at the beginning of each of its fiscal years and, in the sole
discretion of the Compensation Committee of the Board of Directors of the
Company, may be increased, but not decreased, for such year.
4. Other Benefits. The Company will furnish Executive with four (4)
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weeks paid vacation each year; an automobile allowance sufficient to allow him
to retain his current, or a comparable, automobile; and reimbursement of
reasonable and necessary out-of-pocket expenses incurred in the course of
performing his duties hereunder. Executive shall further be entitled to other
employee benefits substantially equivalent to those generally provided by the
Company to its senior executive employees similarly situated for so long as the
Company provides or offers such benefits, and to bonuses and stock options as
determined by the Compensation Committee of the Company's Board of Directors and
substantially equivalent to those provided to other Senior Executive Officers of
the Company and its subsidiaries.
5. Termination.
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(a) The Executive may terminate this Agreement at any time during the
Initial Term or any Renewal Term, without cause, upon ninety (90) days prior
written notice to the Company.
(b) Following the Initial Term, the Company may terminate this Agreement
at any time, without cause, upon ninety (90) days prior written notice to the
Executive.
(c) The Executive shall have the right to terminate this Agreement upon
thirty (30) days prior written notice to the Company, unless the grounds for
termination have been eliminated during such notice period, if (i) the Company
fails to make any salary or other payment due to Executive hereunder, (ii) the
Company removes or demotes Executive from his position as President and Chief
Executive Officer of Stow Xxxxx or from his position as President and Chief
Executive Officer of the Eastern Region or otherwise materially reduces the
scope of Executive's title, duties or authority, or (iii) the Company otherwise
breaches any material covenant, obligation or agreement hereunder.
(d) The Company shall have the right to terminate this Agreement for cause
upon thirty (30) days prior written notice to the Executive, unless the grounds
for termination have been eliminated during such notice period, and provided the
Executive has been given an opportunity to be heard by the Board of Directors,
if any of the following occurs:
(i) conviction of Executive for commission of a felony involving an
act of dishonesty;
(ii) the willful and continued failure by Executive to substantially
perform his duties hereunder (other than any such failure resulting from
Executive's incapacity due to physical or mental illness); or
(iii) Executive shall have given aid to a competitor of the Company
or any of its subsidiaries to the material detriment of the Company.
(e) The Company may terminate this Agreement in the event that Executive
shall fail, because of illness, physical or mental disability or other
incapacity for an aggregate of one hundred twenty (120) days in any 365-day
period, to render the services provided for by this Agreement and as provided
immediately prior to the onset of such illness, disability or incapacity. The
effective date of termination based on disability shall be the date that is
thirty (30) days after the date that the Company gives the Executive notice of
termination based on disability. If any controversy should arise as to whether
such a disability exists, the Executive shall be examined by a physician or
physicians mutually selected by the parties and the determination of such
physician(s) shall be binding.
(f) This Agreement shall terminate on the date of death of the Executive.
(g) If this Agreement is terminated pursuant to paragraphs (a), (b),
(d), (e) or (f) above, the Executive shall receive the compensation and benefits
owing to him hereunder, pro-rated to the date of termination. If however, the
Executive terminates this Agreement during the Initial Term pursuant to
paragraph (c) above, or if the Company terminates this Agreement other than
pursuant to paragraphs (d), (e) or (f) above prior to the expiration of the
Initial Term, the Executive shall be entitled to full compensation and benefits
provided hereunder through the end of the Initial Term.
6. Non-Competition.
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(a) For a period of one (1) year following (i) the voluntary
termination or non-renewal of this Agreement by Executive, other than pursuant
to Section 5(c) or (ii) termination of this Agreement by the
Company pursuant to Section 5(d), Executive shall not, directly or indirectly,
either as an employee, employer consultant, agent, principal, partner,
stockholder, corporate officer, director, or in any other individual or
representative capacity, engage or participate in (x) any wholesale distribution
business that is in competition with the wholesale distribution business of the
Company or any of its subsidiaries or affiliates as now conducted or in the
future during the Initial Term or any Renewal Term conducted or planned, or (y)
any retail business that is in competition with any retail operations of the
Company or its subsidiaries as now conducted or in the future during the Initial
Term or any Renewal Term conducted or planned and has a location within twenty-
five (25) miles from a retail store now owned by the Company or its subsidiaries
or planned or acquired during the Initial Term or any Renewal Term, provided,
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however, that Executive's ownership of not more than five percent (5%) of the
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shares or other equity interest of any publicly traded corporation or other
entity engaged in any such business shall not be deemed a breach of this
covenant. For purposes hereof, "affiliate" means a company controlling,
controlled by or under common control with the Company.
(b) During the Initial Term and any Renewal Term, Executive shall not
divert, take away, interfere with or attempt to take away, interfere with or
attempt to take away any present or future employee or customer of the company
or Stow Xxxxx or any of their respective subsidiaries or affiliates.
(c) In the event that the provisions of this Section 6 shall ever be
deemed to exceed the time or geographic limitations or any other limitations
permitted by applicable law, then such provision shall be deemed reformed to he
maximum permitted by applicable law. Executive acknowledges and agrees that the
foregoing covenant is an essential element of this Agreement and that, but for
the agreement of Executive to comply with the covenant, the Company would not
have entered into this Agreement, and that the remedy at law for any breach of
the covenant will be inadequate and the Company, in addition to any other relief
available to it, shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damage.
7. Confidential Information.
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(a) The parties acknowledge and agree that during the Initial Term and
any Renewal Term and in the course of the discharge of his duties hereunder,
Executive shall have access to and become acquainted with information concerning
the operation of the Company and Stow Xxxxx, including without limitation,
customer lists, patents, inventions, copyrights, methods or doing business, and
proprietary information that is owned by the Company or Stow Xxxxx and regularly
used in the operation of the Company's or Stow Xxxxx' business and that this
information constitutes the Company's or Stow Xxxxx' trade secrets.
(b) Executive agrees that he shall not disclose any such trade
secrets, directly or indirectly, to any other person or use them in any way,
during the Initial Term, any Renewal Term and for a period of one (1) year
following the voluntary termination or non-renewal of this Agreement by
Executive (other than pursuant to Section 5(c)) or termination of this Agreement
by the Company pursuant to Section 5(d), except as is (i) required in the course
of his employment with the Company or Stow Xxxxx; (ii) in the public domain;
(iii) acquired prior to the discussions concerning the acquisition of Stow Xxxxx
by the Company; (iv) required to be disclosed in litigation or to governmental
authorities; or (v) acquired from third parties without knowledge or any
confidentiality obligation.
(c) Execute specifically acknowledges and agrees that the remedy at
law for any breach of the foregoing shall be inadequate and that the Company or
Stow Xxxxx, in addition to any other relief available to them, shall be entitled
to temporary and permanent injunctive relief without the necessity of proving
actual damage.
8. Return of Company Documents and Equipment. Upon the termination or
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expiration of his employment hereunder, Executive agrees to deliver promptly to
the Company all Company files, customer lists, catalogs, price lists, management
reports, memoranda, research, Company forms, financial data and reports and
other documents supplied to or created by him in connection with his employment
hereunder (including all copies of the foregoing) in his possession or control
and all of the Company's equipment and other materials in his possession or
control.
9. Provisions Severable. If any provision or covenant of this Agreement,
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or any part thereof, should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, the invalidity, legality or
enforceability of any such provisions shall not affect the remaining provisions
or covenants of this Agreement, or any part thereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.
10. Waiver. Failure of either party to insist, in one or more instances,
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on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
11. Amendments and Modifications. This Agreement may be amended or
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modified only by a writing signed by both parties hereto.
12. Governing Law. The validity and effect of this Agreement shall be
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governed by and construed and enforced in accordance with the laws of the State
of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
UNITED NATURAL FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chairman of the Board
