Exhibit
10.68


 


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 4 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 


 


2

















 


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 5 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) 1.50 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 


 


3

















 


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.             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.


 


4.             Employee covenants with the Company
as follows (as used in this Section 4, “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 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, 


 


4

















 


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 4(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 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 4.


 


5

















 


(f)            Except
with respect to any shorter term as expressly provided herein, this Section 4
shall survive the expiration or earlier termination of Employee’s relationship
with the Company for a period of ten (10) years.


 


5.             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.


 


6.             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 4 of this
Agreement.


 


7.             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
                          ,
           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]


 


6

















 


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:

  	
   

  	
   

  	
   

  	
   

  



 


7