Exhibit
10.67


 


CHANGE IN CONTROL AGREEMENT


 


THIS CHANGE IN CONTROL AGREEMENT (“Agreement”) is effective
as of
                        ,
2010, and is made by and between United Natural Foods, Inc., a Delaware
corporation (the “Company”), and
                    
(“Employee”).  For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
including without limitation the Employee’s willingness to continue his
employment with the Company and the other obligations of the parties hereunder,
the parties hereby agree as follows:


 


1.             The following terms shall have the
following definitions:


 


(a)           the term “Act” shall mean the
Securities Exchange Act of 1934, as amended to date.


 


(b)           the term “Affiliate” shall mean any
corporation which is a subsidiary of the Company within the definition of “subsidiary
corporation” under Section 424(f) of the Internal Revenue Code of
1986, as amended (the “Code”).


 


(c)           the term “Cause” shall mean (i) conviction
of Employee under applicable law of (A) any felony or (B) any
misdemeanor involving moral turpitude, (ii) unauthorized acts intended to
result in Employee’s personal enrichment at the material expense of the Company
or its reputation, or (iii) any violation of Employee’s duties or
responsibilities to the Company which constitutes willful misconduct or
dereliction of duty, or material breach of Section 5 of this Agreement.


 


(d)           The term “Change in Control” means
the happening of any of the following:


 


(i)            any
“person”, including a “group” (as such terms are used in Sections 13(d) and
14(d) of the Act, but excluding the Company, any of its Affiliates, or any
employee benefit plan of the Company or any of its Affiliates) is or becomes
the “beneficial owner” (as defined in Rule 13(d)(3) under the Act),
directly or indirectly, of securities of the Company representing the greater
of 30% or more of the combined voting power of the Company’s then outstanding
securities;


 


(ii)           the
stockholders of the Company shall approve a definitive agreement (1) for the
merger or other business combination of the Company with or into another
corporation if (A) a majority of the directors of the surviving
corporation were not directors of the Company immediately prior to the
effective date of such merger or (B) the stockholders of the Company
immediately prior to the effective date of such merger own less than 60% of the
combined voting power in the then outstanding securities in such surviving
corporation or (2) for the sale or other disposition of all or
substantially all of the assets of the Company; or


 


(iii)          the
purchase of 30% or more of the combined voting power of the Company’s then
outstanding securities pursuant to any tender or exchange


 

















 


offer
made by any “person”, including a “group” (as such terms are used in Sections
13(d) and 14(d) of the Act), other than the Company, any of its
Affiliates, or any employee benefit plan of the Company or any of its
Affiliates.


 


(e)           the term “Change in Control Date”
means the date on which a Change in Control occurs.  Anything in this Agreement to the contrary
notwithstanding, if a Change in Control occurs, and if the Employee’s
employment with the Company is terminated prior to the date on which the Change
in Control occurs, and if it is reasonably demonstrated by the Employee that
such termination of employment (i) was at the request of a third party who
has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise
arose in connection with or in anticipation of a Change in Control, then for
all purposes of this Agreement, the “Change of Control Date” shall mean the
date immediately prior to the date of such termination of employment.


 


(f)            the term “Disability” shall have the
meaning set forth in the long term disability provisions of the United Natural
Foods Employee Welfare Benefit Plan, or any successor long term disability plan
(the “Benefit Plan”), and no Disability shall be deemed to occur under the
Benefit Plan until the Employee meets all applicable requirements to receive
benefits under the long term disability provisions of such Benefit Plan;
provided, however, in the event that the Benefit Plan does not provide long
term disability insurance benefits then the Employee’s employment hereunder
cannot be terminated for Disability and any termination of the Employee during
such a period shall constitute a termination by the Company without Cause.


 


(g)           the term “Equity Plan” shall mean the
Company’s 2002 Stock Incentive Plan, as amended from time to time, the Company’s
Employee Stock Ownership Plan, as amended from time to time, and any other
current or future plan, program or arrangement of the Company or its affiliates
pursuant to which stock options, restricted stock or other equity awards are
made, including, but not limited to, the Company’s 2004 Equity Incentive Plan.


 


(h)           the term “Good Reason” shall mean,
without the Employee’s express written consent, the occurrence of any one or
more of the following: (i) the assignment of Employee to duties materially
adversely inconsistent with the Employee’s current duties, and failure to
rescind such assignment within thirty (30) days of receipt of notice from the
Employee; (ii) a material reduction in the Employee’s title, executive
authority or reporting status; (iii) a relocation of the Employee’s principal
office location more than fifty (50) miles from the Company’s Providence, Rhode
Island offices; (iv) a reduction by the Company in the Employee’s base
salary, or the failure of the Company to pay or cause to be paid any
compensation or benefits hereunder when due or under the terms of any plan
established by the Company, and failure to restore such base salary or make
such payments within five (5) days of receipt of notice from the Employee;
(v) failure to include the Employee in any new employee benefit plans
proposed by the Company or a material reduction in the Employee’s level of
participation in any existing plans of any type; provided, that, a Company-wide
reduction or elimination of such plans shall not be a violation of this Section (v);
or (vi) the failure of the Company to obtain a satisfactory agreement from
any successor to the Company with respect to the ownership of


 


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substantially all the stock or assets of the
Company to assume and agree to perform this Agreement.


 


2.             In the event (a) the Employee
is terminated for reasons other than Cause, death or Disability or (b) the
Employee resigns for Good Reason, and such termination or resignation takes
place on or within one (1) year after the Change in Control Date, then,
subject to any limitation imposed under applicable law and Section 6 of
this Agreement, Employee shall receive: (i) any unpaid base salary,
accrued and unpaid vacation, and bonus in respect of the prior fiscal year
which has not been paid (collectively such unpaid base salary, accrued vacation
and bonus, the “Accrued Payments”), payable within ten (10) days following
the termination of Employee’s employment, (ii) a lump sum payment equal to
(x) 2.99 times the Employee’s then applicable base salary plus (y) an
amount equal to the average of the annual bonus paid to the Employee for the
three fiscal years prior to the fiscal year in which the Employee’s employment
is terminated (in the event the Employee has not yet been employed by the
Company for more than three fiscal years, then the average of the bonuses he
has actually received, and if he has not received any bonuses as of the time of
the termination of his employment, then the Employee’s target bonus for the
fiscal year in which his employment is terminated) (the “Lump Sum Payment”),
payable within sixty (60) days of such termination or resignation, (iii) an
amount equal to the product of the Employee’s target bonus for the fiscal year
in which Employee’s employment is terminated multiplied by the quotient
resulting from dividing the number of full calendar months that have been
completed in the fiscal year in which the Employee is terminated by 12 (the “Pro-Rata
Bonus”), payable at such time as such bonus normally would be paid if the
Employee’s employment had not terminated (but in no event after the later of (i) March 15
of the calendar year following the calendar year in which the termination
occurs, or (ii) the 15th day of the third month following the end of
the Company’s fiscal year), and (iv) an amount equal to any unvested
account balance Employee has under the Employee Stock Ownership Plan.  In addition, (A) any and all unvested
and unexercised stock options held by the Employee as of the Change in Control
Date shall become fully vested and exercisable as of the Change in Control
Date, (B) all restrictions shall lapse on, and Employee shall become fully
vested in all rights to, restricted stock, restricted stock units and
performance units granted to Employee under any Equity Plan as of the Change in
Control Date, and (C) the Company shall continue to provide Employee and
his eligible dependents with medical benefits in effect as of the date of such
termination or resignation for a period of three (3) years following the
termination of his employment.


 


In the event of termination for Cause, death or
Disability, or resignation for other than Good Reason, the Company shall be
under no obligation other than to provide the Accrued Payments; provided,
however, with respect to a termination for Cause, the Company may withhold any
compensation due to Employee as a partial offset against any damages suffered
by the Company as a result of Employee’s actions.  In addition, the Employee agrees, upon demand
by the Company, to return promptly to the Company any portion of the Accrued
Payments, the Pro Rata Bonus or the Lump Sum Payment paid, or targeted to be
paid, to the Employee based upon financial results or performance metrics later
found to be materially inaccurate.  The
amount to be recovered shall be equal to the excess of the amount paid out (on
a pre-tax basis) over the amount that would have been paid out had such
financial results or performance metrics been fairly stated at the time the
payout was made.  The payment shall be
made in such manner and on such terms and conditions as may be required by the
Company.  The Company shall be


 


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entitled,
at its election, to set off against the amount of any such payment any amounts
otherwise owed to the Employee by the Company.


 


The foregoing notwithstanding, if the Employee is a “specified
employee” of the Company (within the meaning of Section 409A of the Code
and its regulations and other guidance (“Section 409A”)), or its
successor, any payment, subject to the next succeeding sentence of this
paragraph, that would otherwise be made pursuant to this Section 2 during
the six-month period beginning on the date of termination of employment that
constitutes “nonqualified deferred compensation” within the meaning of Section 409A
shall be accrued and paid on the date that is six months and one day after the
date of Employee’s “separation of service” with the Company (within the meaning
of Section 409A) or, if earlier, the Employee’s date of death, and no
interest or other adjustments shall be made to reflect the delay in payment.


 


3.             In the event that any payments or
benefits that are paid or payable to or for the benefit of the Employee
pursuant to this Agreement would be subject to the excise tax imposed by Section 4999
of the Code, the Executive shall be entitled to receive an additional payment
(a “280G Gross-Up Payment”) determined in accordance with Exhibit A
attached hereto.


 


4.             The availability, if any, of any
other benefits shall be governed by the terms and conditions of the plans
and/or agreements under which such benefits are granted.  The benefits granted under this Agreement are
in addition to, and not in limitation of, any other benefits granted to
Employee under any policy, plan and/or agreement; provided, however, that any
benefits paid to the Employee under this Agreement shall reduce any severance
or similar benefits payable to the Employee under any Company benefit plan or
arrangement, including any severance plan or agreement between the Company and
the Employee providing benefits upon the termination of Employee’s employment
with the Company similar to the benefits provided hereunder.


 


5.             Employee covenants with the Company
as follows (as used in this Section 5, “Company” shall include the Company
and its subsidiaries and Affiliates):


 


(a)           Employee shall not knowingly use for
Employee’s own benefit or disclose or reveal to any unauthorized person, any
trade secret or other confidential information relating to the Company, or to
any of the businesses operated by it, including, without limitation, any
customer lists, customer needs, price and performance information, processes,
specifications, hardware, software, devices, supply sources and
characteristics, business opportunities, potential business interests,
marketing, promotional pricing and financing techniques, or other information
relating to the business of the Company, and Employee confirms that such
information constitutes the exclusive property of the Company.  Such restrictions shall not apply to
information which is (i) generally available in the industry, (ii) disclosed
through no fault of Employee or (iii) required to be disclosed pursuant to
applicable law or regulation or the order of a governmental or regulatory body
(provided that the Company is given reasonable notice of any such required
disclosure).  Employee agrees that
Employee will return to the Company upon request, but in any event upon
termination of employment, any physical embodiment of


 


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any confidential information and/or any summaries
containing any confidential information, in whole in part, in any media.


 


(b)           During the term of employment, and
for a period of one (1) year following termination of such employment for
any reason, Employee shall not engage, directly or indirectly (which includes,
without limitation, owning, managing, operating, controlling, being employed
by, giving financial assistance to, participating in or being connected in any
material way with any person or entity), anywhere in the United States, in any
activities with the following companies: Tree of Life or any of its
subsidiaries, Nature’s Best, C&S Distributors or any other company which is
a direct competitor of the Company with respect to (i) the Company’s
activities on the date hereof and/or (ii) any activities which the Company
becomes involved in during the Employee’s term of employment; provided,
however, that Employee’s ownership as a passive investor of less than five percent
(5%) of the issued and outstanding stock of a publicly held corporation so
engaged, shall not by itself be deemed to constitute such competition. Further,
during such one-year (1-year) period, Employee shall not act to induce any of
the Company’s vendors, customers or employees to take action which might be
disadvantageous to the Company or otherwise disturb such party’s relationship
with the Company.


 


(c)           Employee hereby acknowledges that
Employee will treat as for the Company’s sole benefit, and fully and promptly
disclose and assign to the Company without additional compensation, all ideas,
information, discoveries, inventions and improvements which are based upon or
related to any confidential information protected under Section 5(a) herein,
and which are made, conceived or reduced to practice by Employee during
Employee’s employment by the Company and within one (1) year after
termination thereof.  The provisions of
this subsection (c) shall apply whether such ideas, discoveries,
inventions, improvements or knowledge are conceived, made or gained by Employee
alone or with others, whether during or after usual working hours, either on or
off the job, directly or indirectly related to the Company’s business interests
(including potential business interests), and whether or not within the realm
of Employee’s duties.


 


(d)           Employee shall, upon request of the
Company, but at no expense to Employee, at any time during or after employment
by the Company, sign all instruments and documents and cooperate in such other
acts reasonably required to protect rights to the ideas, discoveries,
inventions, improvements and knowledge referred to above, including applying
for, obtaining and enforcing patents and copyrights thereon in any and all
countries.


 


(e)           Employee recognizes that the possible
restrictions on Employee’s activities which may occur as a result of Employee’s
performance of Employee’s obligations under this Agreement are required for the
reasonable protection of the Company and its investments, and Employee
expressly acknowledges that such restrictions are fair and reasonable for that
purpose.  Employee further expressly
acknowledges that damages alone will be an inadequate remedy for any breach or
violation of any of the provisions of this Agreement, and that the Company, in
addition to all other remedies hereunder, shall be entitled, as a matter of
right, to injunctive relief, including specific performance, with respect to
any such breach or violation or threatened 


 


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breach or violation, in any court of competent
jurisdiction.  If any of the provisions
of this Agreement are held to be in any respect an unreasonable restriction
upon Employee then they shall be deemed to extend only over the maximum period of
time, geographic area, and/or range of activities as to which they may be
enforceable.  Employee expressly agrees
that all payments and benefits due Employee under this Agreement shall be
subject to Employee’s compliance with the provisions set forth in this Section 5.


 


(f)            Except with respect to any shorter
term as expressly provided herein, this Section 5 shall survive the
expiration or earlier termination of Employee’s relationship with the Company
for a period of ten (10) years.


 


6.             All payments and benefits under
this Agreement are conditioned on the Employee’s executing and not revoking a
release of claims against the Company, which release must be executed, not be
revoked and have become irrevocable within sixty (60) days of the Employee’s
termination or resignation; provided, that the Company may, in its discretion,
make such payments at any time within the period set forth in Section 2.  The Employee shall not be required to release
(i) any rights the Employee has under this Agreement, (ii) any rights
that Employee has pursuant to any plan, program or agreement subject to the
Employee Retirement Security Act of 1974, as amended (“ERISA”), (iii) any
rights pursuant to any incentive or compensation plans of the Company or its
Affiliates, any Equity Plan or any rights pursuant to any award agreements
issued pursuant to any incentive or compensation plan of the Company or its
Affiliates or any Equity Plan, (iv) any rights the Employee and his
beneficiaries may have to continued medical coverage under the continuation
coverage provisions of the Code, ERISA or applicable state law or (v) any
rights the Employee may have to indemnification under state or other law or the
Certificate of Incorporation or by-laws of the Company and its affiliated
companies, or under any indemnification agreement with the Company or under any
insurance policy providing directors’ and officers’ coverage for any lawsuit or
claim relating to the period when the Employee was a director or officer of the
Company or any affiliated company.


 


7.             The Employee shall not be required
to seek alternative employment during any period in which he receives payments
or benefits under Section 2 of this Agreement, nor shall such payments or
benefits be reduced to reflect any compensation or benefits received by
Employee from any employment which does not violate Section 5 of this
Agreement.


 


8.             This Agreement may not be modified
or amended except by an instrument in writing signed by the parties hereto. If,
for any reason, any provision of this Agreement is held invalid, such
invalidity shall not affect any other provision of this Agreement not held so
invalid, and each such other provision shall to the full extent consistent with
law continue in force and effect.  This
Agreement has been executed and delivered in the State of Rhode Island, and its
validity, interpretation, performance, and enforcement shall be governed by the
laws of said State.  This Agreement
contains the entire understanding between the parties hereto and supersedes any
and all prior agreements, oral or written, on the subject matter hereof between
the Company and Employee, but it is not intended to, and does not, limit any
prior, present or future obligations of the Employee with respect to
confidentiality, ownership of intellectual property and/or non-competition
which are greater than those set forth herein. 
For the avoidance of doubt, the Employee acknowledges and agrees that
upon execution of this Agreement Section       
of that certain Severance Agreement by and between the Company and the Employee
dated 


 


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                               ,
           shall be null and
void and no longer of any force or effect. 
This Agreement shall be binding upon any successor or assign of the
Company.


 


[signature block appears on the next page]


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement, intending the Agreement to become binding and effective as of
the date and year first written above.


 


	
  United Natural Foods, Inc.

  	
  Employee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  



 


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EXHIBIT A


 


EXCISE TAX GROSS-UP


 


1)             Gross-Up Payment - If any payment or benefit received or to
be received by the Employee from the Company pursuant to the terms of Section 2
of the Agreement to which this Exhibit A is attached or otherwise  (the “Payments”)
would be subject to the excise tax (the “Excise Tax”)
imposed by Section 4999 of the Code, as determined in accordance with this
Exhibit A, the Company shall pay the Employee, at the time specified
below, an additional amount (the “Gross-Up Payment”)
such that the net amount that the Employee retains, after deduction of the
Excise Tax on the Payments and any federal, state, and local income tax upon
the Gross-Up Payment (but not upon the Payments) and the Excise Tax upon the
Gross-Up Payment, and any interest, penalties, or additions to tax payable by
the Employee with respect thereto, shall be equal to the total present value
(using the applicable federal rate (as defined in Section 1274(d) of
the Code) in such calculation) of the Payments at the time such Payments are to
be made.


 


2)             Calculations - For purposes of determining whether any of
the Payments shall be subject to the Excise Tax and the amount of such Excise
Tax,


 


(a) The total amount of the Payments shall be
treated as “parachute payments” within the meaning of Section 280G(b)(2) of
the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of
the Code shall be treated as subject to the excise tax, except to the extent
that, in the written opinion of independent counsel selected by the Company and
reasonably acceptable to the Employee (“Independent Counsel”),
a Payment (in whole or in part) does not constitute a “parachute payment”
within the meaning of Section 280G(b)(2) of the Code, or such “excess
parachute payments” (in whole or in part) are not subject to the Excise Tax;


 


(b) The amount of the Payments that shall be
subject to the Excise Tax shall be equal to the lesser of (i) the total
amount of the Payments or (ii) the amount of “excess parachute payments”
within the meaning of Section 280G(b)(l) of the Code (after applying clause
(a), above); and


 


(c) The value of any noncash benefits or any
deferred payment or benefit shall be determined by Independent Counsel in
accordance with the principles of Section 280G(d)(3) and (4) of
the Code.


 


3)             Tax Rates - For purposes of determining the amount of the
Gross-Up Payment, the Employee shall be deemed to pay federal income taxes at
the highest marginal rates of federal income taxation applicable to individuals
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation applicable to
individuals as are in effect in the state and locality of the Employee’s
residence in the calendar year in which the Gross-Up Payment is to be made, net
of the maximum reduction in federal income taxes that can be obtained from
deduction of such state and local taxes, taking into account any limitations
applicable to individuals subject to federal income tax at the highest marginal
rates, including, but not limited to, any alternative minimum tax restrictions
resulting 


 


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solely
from the Employee’s Compensation from the Employer which limit the Employee’s
ability to deduct State and local taxes.


 


4)             Time of Gross-Up Payments - The Gross-Up Payments provided
for in this Exhibit A shall be made upon the earlier of (a) the
payment to the Employee of any Payment or (b) the imposition upon the
Employee, or any payment by the Employee, of any Excise Tax; provided, that,
all such Gross-Up Payments shall be made prior to the end of the Employee’s
taxable year next following the taxable year in which the taxes are remitted to
the taxing authority.


 


5)             Adjustments to Gross-Up Payments - If it is established
pursuant to a final determination of a court or an Internal Revenue Service
proceeding or the written opinion of Independent Counsel that the Excise Tax is
less than the amount previously taken into account hereunder, the Employee
shall repay the Company, within 30 days of his receipt of notice of such final
determination or opinion, the portion of the Gross-Up Payment attributable to
such reduction (plus the portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state, and local income tax imposed on the Gross-Up
Payment being repaid by the Employee if such repayment results in a reduction
in Excise Tax or a federal, state, and local income tax deduction) plus any
interest received by the Employee on the amount of such repayment; provided,
that, if any such amount has been paid by or on behalf of the Employee as an
Excise Tax or other tax, the Employee shall cooperate with the Company in
seeking a refund of any tax overpayments, and the Employee shall not be
required to make repayments to the Company until the overpaid taxes and
interest thereon are refunded to the Employee.


 


6)             Additional Gross-Up Payment - If it is established pursuant
to a final determination of a court or an Internal Revenue Service proceeding
or the written opinion of Independent Counsel that the Excise Tax exceeds the
amount taken into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in respect of
such excess within 30 days of the Company’s receipt of notice of such final
determination or opinion.


 


7)             Change In Law or Interpretation - In the event of any change
in or further interpretation of Section 280G or 4999 of the Code and the
regulations promulgated thereunder, the Employee shall be entitled, by written
notice to the Company, to request a written opinion of Independent Counsel
regarding the application of such change or further interpretation to any of
the foregoing, and the Company shall use its best efforts to cause such opinion
to be rendered as promptly as practicable.


 


8)             Fees And Expenses - All fees and expenses of Independent
Counsel incurred in connection with this Exhibit A shall be borne by the
Company.


 


9)             Survival - The Company’s obligation to make a Gross-Up
Payment with respect to Payments made or accrued prior to the termination of
Employee’s employment shall survive such termination.


 


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10)           Defined Terms - Except where clearly provided to the
contrary, all capitalized terms used in this Exhibit A shall have the
definitions given to those terms in the Agreement to which this Exhibit A
is attached.


 


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