0001020859-13-000005.txt : 20130306 0001020859-13-000005.hdr.sgml : 20130306 20130306155458 ACCESSION NUMBER: 0001020859-13-000005 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 17 CONFORMED PERIOD OF REPORT: 20130126 FILED AS OF DATE: 20130306 DATE AS OF CHANGE: 20130306 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNITED NATURAL FOODS INC CENTRAL INDEX KEY: 0001020859 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 050376157 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-15723 FILM NUMBER: 13669539 BUSINESS ADDRESS: STREET 1: 313 IRON HORSE WAY CITY: PROVIDENCE STATE: RI ZIP: 02908 BUSINESS PHONE: 401-528-8634 MAIL ADDRESS: STREET 1: 313 IRON HORSE WAY CITY: PROVIDENCE STATE: RI ZIP: 02908 10-Q 1 unfi10q01262013.htm 10-Q UNFI 10Q 01.26.2013

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 10-Q
(Mark One)
 
ý      QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the quarterly period ended January 26, 2013
 
OR
 
o         TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 
 
Commission File Number: 000-21531
 
UNITED NATURAL FOODS, INC.
(Exact Name of Registrant as Specified in Its Charter)
 
Delaware
 
05-0376157
(State or Other Jurisdiction of
 
(I.R.S. Employer Identification No.)
Incorporation or Organization)
 
 
313 Iron Horse Way, Providence, RI
 
02908
(Address of Principal Executive Offices)
 
(Zip Code)
 
Registrant’s Telephone Number, Including Area Code: (401) 528-8634
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days:  Yes ý  No o
 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes ý  No o
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer ý
 
Accelerated filer o
 
 
 
Non-accelerated filer o
 
Smaller reporting company o
(Do not check if a smaller reporting company)
 
 
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes o  No ý
 
As of February 26, 2013 there were 49,298,389 shares of the Registrant’s Common Stock, $0.01 par value per share, outstanding.
 




TABLE OF CONTENTS
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


2



PART I.  FINANCIAL INFORMATION
Item 1.  Financial Statements
 
UNITED NATURAL FOODS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS (unaudited)
(In thousands, except per share amounts)
 
 
January 26,
2013
 
July 28,
2012
ASSETS
 
 

 
 

Current assets:
 
 

 
 

Cash and cash equivalents
 
$
8,085

 
$
16,122

Accounts receivable, net of allowance of $7,022 and $6,249, respectively
 
358,173

 
305,177

Inventories
 
674,046

 
578,555

Prepaid expenses and other current assets
 
30,726

 
21,654

Deferred income taxes
 
25,353

 
25,353

Total current assets
 
1,096,383

 
946,861

 
 
 
 
 
Property & equipment, net
 
302,368

 
278,455

 
 
 
 
 
Other assets:
 
 

 
 

Goodwill
 
203,906

 
193,741

Intangible assets, net of accumulated amortization of $12,236 and $10,809, respectively
 
51,981

 
52,496

Other assets
 
25,468

 
22,393

Total assets
 
$
1,680,106

 
$
1,493,946

 
 
 
 
 
LIABILITIES AND STOCKHOLDERS’ EQUITY
 
 

 
 

Current liabilities:
 
 

 
 

Accounts payable
 
$
285,943

 
$
242,179

Accrued expenses and other current liabilities
 
125,027

 
91,632

Current portion of long-term debt
 
357

 
350

Total current liabilities
 
411,327

 
334,161

 
 
 
 
 
Notes payable
 
173,947

 
115,000

Long-term debt, excluding current portion
 
849

 
635

Deferred income taxes
 
36,260

 
36,260

Other long-term liabilities
 
29,068

 
29,174

Total liabilities
 
651,451

 
515,230

 
 
 
 
 
Commitments and contingencies
 

 

 
 
 
 
 
Stockholders’ equity:
 


 


Preferred stock, $0.01 par value, authorized 5,000 shares; none issued or outstanding
 

 

Common stock, $0.01 par value, authorized 100,000 shares; 49,295 issued and outstanding shares at January 26, 2013; 49,011 issued and outstanding shares at July 28, 2012
 
493

 
490

Additional paid-in capital
 
370,634

 
364,598

Unallocated shares of Employee Stock Ownership Plan
 
(71
)
 
(89
)
Accumulated other comprehensive income
 
1,622

 
1,896

Retained earnings
 
655,977

 
611,821

Total stockholders’ equity
 
1,028,655

 
978,716

Total liabilities and stockholders’ equity
 
$
1,680,106

 
$
1,493,946

 
The accompanying notes are an integral part of the condensed consolidated financial statements.


3



UNITED NATURAL FOODS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME (unaudited)
(In thousands, except per share data amounts)
 
 
 
Three months ended
 
Six months ended
 
 
January 26,
2013
 
January 28,
2012
 
January 26,
2013
 
January 28,
2012
Net sales
 
$
1,445,703

 
$
1,286,910

 
$
2,855,740

 
$
2,504,338

Cost of sales
 
1,204,030

 
1,063,763

 
2,378,114

 
2,064,078

Gross profit
 
241,673

 
223,147

 
477,626

 
440,260

 
 
 
 
 
 
 
 
 
Operating expenses
 
202,693

 
185,760

 
400,451

 
371,473

Restructuring and asset impairment expenses (recoveries)
 

 
(126
)
 
1,629

 
5,219

Total operating expenses
 
202,693

 
185,634

 
402,080

 
376,692

 
 
 
 
 
 
 
 
 
Operating income
 
38,980

 
37,513

 
75,546

 
63,568

 
 
 
 
 
 
 
 
 
Other expense (income):
 
 

 
 

 
 
 
 
Interest expense
 
1,373

 
1,382

 
2,351

 
2,455

Interest income
 
(168
)
 
(219
)
 
(341
)
 
(389
)
Other, net
 
201

 
27

 
4,982

 
168

Total other expense, net
 
1,406

 
1,190

 
6,992

 
2,234

 
 
 
 
 
 
 
 
 
Income before income taxes
 
37,574

 
36,323

 
68,554

 
61,334

Provision for income taxes
 
14,954

 
14,312

 
24,398

 
24,166

Net income
 
$
22,620

 
$
22,011

 
$
44,156

 
$
37,168

 
 
 
 
 
 
 
 
 
Basic per share data:
 
 

 
 

 
 
 
 
Net income
 
$
0.46

 
$
0.45

 
$
0.90

 
$
0.76

 
 
 
 
 
 
 
 
 
Weighted average basic shares of common stock outstanding
 
49,289

 
48,774

 
49,174

 
48,665

 
 
 
 
 
 
 
 
 
Diluted per share data:
 
 

 
 

 
 
 
 
Net income
 
$
0.46

 
$
0.45

 
$
0.89

 
$
0.76

 
 
 
 
 
 
 
 
 
Weighted average diluted shares of common stock outstanding
 
49,528

 
49,019

 
49,475

 
48,933

 
The accompanying notes are an integral part of the condensed consolidated financial statements.


4



UNITED NATURAL FOODS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (unaudited)
(In thousands)
 
 
 
Three months ended
 
Three months ended
 
 
January 26, 2013
 
January 28, 2012
 
 
Pre-tax
 
Tax
 
After-tax
 
Pre-tax
 
Tax
 
After-tax
 
 
Amount
 
(expense) benefit
 
Amount
 
Amount
 
(expense) benefit
 
Amount
Net income
 
 

 
 

 
$
22,620

 
 

 
 

 
$
22,011

Other comprehensive income (loss):
 
 

 
 

 
 

 
 

 
 

 
 

Foreign currency translation adjustments
 
$
(739
)
 
$

 
$
(739
)
 
$
(768
)
 
$

 
$
(768
)
Change in fair value of swap agreements, net of tax
 

 

 

 
312

 
(123
)
 
189

Total other comprehensive income (loss)
 
$
(739
)
 
$

 
$
(739
)
 
$
(456
)
 
$
(123
)
 
$
(579
)
Total comprehensive income
 
 

 
 

 
$
21,881

 
 

 
 

 
$
21,432

 
 
 
Six months ended
 
Six months ended
 
 
January 26, 2013
 
January 28, 2012
 
 
Pre-tax
 
Tax
 
After-tax
 
Pre-tax
 
Tax
 
After-tax
 
 
Amount
 
(expense) benefit
 
Amount
 
Amount
 
(expense) benefit
 
Amount
Net income
 
 

 
 

 
$
44,156

 
 

 
 

 
$
37,168

Other comprehensive income (loss):
 
 

 
 

 
 

 
 

 
 

 
 

Foreign currency translation adjustments
 
$
(274
)
 
$

 
$
(274
)
 
$
(3,597
)
 
$

 
$
(3,597
)
Change in fair value of swap agreements, net of tax
 

 

 

 
639

 
(251
)
 
388

Total other comprehensive income (loss)
 
$
(274
)
 
$

 
$
(274
)
 
$
(2,958
)
 
$
(251
)
 
$
(3,209
)
Total comprehensive income
 
 

 
 

 
$
43,882

 
 

 
 

 
$
33,959

 
The accompanying notes are an integral part of the condensed consolidated financial statements.


5



UNITED NATURAL FOODS, INC.
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY (unaudited)
(In thousands)
 
 
 
Common Stock
 
Additional
Paid in Capital
 
Unallocated
Shares of ESOP
 
Accumulated
Other
Comprehensive Income
 
Retained Earnings
 
Total
Stockholders’ Equity
(In thousands)
 
Shares
 
Amount
 
 
 
 
 
Balances at July 28, 2012
 
49,011

 
$
490

 
$
364,598

 
$
(89
)
 
$
1,896

 
$
611,821

 
$
978,716

Allocation of shares to ESOP
 
 

 
 

 
 

 
18

 
 

 
 

 
18

Stock option exercises and restricted stock vestings, net
 
284

 
3

 
(1,883
)
 
 

 
 

 
 

 
(1,880
)
Share-based compensation
 
 

 
 

 
7,889

 
 

 
 

 
 

 
7,889

Tax benefit associated with stock plans
 
 

 
 

 
30

 
 

 
 

 
 

 
30

Foreign currency translation
 
 

 
 

 
 

 
 

 
(274
)
 
 

 
(274
)
Net income
 
 

 
 

 
 

 
 

 
 

 
44,156

 
44,156

Balances at January 26, 2013
 
49,295

 
$
493

 
$
370,634

 
$
(71
)
 
$
1,622

 
$
655,977

 
$
1,028,655

 
The accompanying notes are an integral part of the condensed consolidated financial statements.


6



UNITED NATURAL FOODS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)
(In thousands)
 
 
 
Six months ended
 
 
January 26,
2013
 
January 28,
2012
CASH FLOWS FROM OPERATING ACTIVITIES:
 
 

 
 

Net income
 
$
44,156

 
$
37,168

Adjustments to reconcile net income to net cash (used in) provided by operating activities:
 
 

 
 

Depreciation and amortization
 
20,944

 
19,190

Share-based compensation
 
7,889

 
6,433

Gain on disposals of property and equipment
 
(20
)
 
(306
)
Excess tax benefits from share-based payment arrangements
 
(30
)
 
(441
)
Impairment of intangible asset
 
1,629

 

Unrealized loss on foreign exchange
 
(63
)
 

Provision for doubtful accounts
 
1,497

 
1,832

Changes in assets and liabilities, net of acquired businesses:
 
 

 
 

Accounts receivable
 
(51,057
)
 
(67,522
)
Inventories
 
(94,621
)
 
(79,545
)
Prepaid expenses and other assets
 
(11,762
)
 
3,278

Accounts payable
 
32,140

 
14,203

Accrued expenses and other liabilities
 
714

 
7,905

Net cash used in operating activities
 
(48,584
)
 
(57,805
)
CASH FLOWS FROM INVESTING ACTIVITIES:
 
 

 
 

Capital expenditures
 
(20,026
)
 
(12,922
)
Purchases of acquired businesses, net of cash acquired
 
(9,266
)
 
(2,450
)
Proceeds from disposals of property and equipment
 
2,342

 
325

Net cash used in investing activities
 
(26,950
)
 
(15,047
)
CASH FLOWS FROM FINANCING ACTIVITIES:
 
 

 
 

Repayments of long-term debt
 
(400
)
 
(2,522
)
Proceeds from borrowings under revolving credit line
 
361,906

 
618,897

Repayments of borrowings under revolving credit line
 
(302,808
)

(543,897
)
Increase in bank overdraft
 
10,504

 
8,851

Proceeds from exercise of stock options
 
1,455

 
2,508

Payment of employee restricted stock tax withholdings
 
(3,335
)
 
(1,392
)
Excess tax benefits from share-based payment arrangements
 
30

 
441

Capitalized debt issuance costs
 
(12
)
 

Net cash provided by financing activities
 
67,340

 
82,886

EFFECT OF EXCHANGE RATE CHANGES ON CASH
 
157

 
(165
)
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS
 
(8,037
)
 
9,869

Cash and cash equivalents at beginning of period
 
16,122

 
16,867

Cash and cash equivalents at end of period
 
$
8,085

 
$
26,736

Supplemental disclosures of cash flow information:
 
 

 
 

Interest paid, net of amounts capitalized
 
$
2,195

 
$
2,423

Income taxes paid, net of refunds
 
$
32,315

 
$
18,023

 
The accompanying notes are an integral part of the condensed consolidated financial statements.


7



UNITED NATURAL FOODS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
January 26, 2013 (unaudited)

 
1.                                      SIGNIFICANT ACCOUNTING POLICIES
 
(a)  Basis of Presentation
 
United Natural Foods, Inc. and subsidiaries (the “Company”) is a leading national distributor and retailer of natural, organic and specialty products. The Company sells its products primarily throughout the United States and Canada.
 
The accompanying unaudited condensed consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All significant intercompany transactions and balances have been eliminated in consolidation.
 
The accompanying unaudited condensed consolidated financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission (the "SEC") for interim financial information, including the instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, certain information and footnote disclosures normally required in complete financial statements prepared in conformity with accounting principles generally accepted in the United States have been condensed or omitted. In the Company’s opinion, these financial statements include all adjustments necessary for a fair presentation of the financial position, results of operations and cash flows for the interim periods presented. The results of operations for interim periods, however, may not be indicative of the results that may be expected for a full year. These financial statements should be read in conjunction with the consolidated financial statements and footnotes thereto included in the Company’s Annual Report on Form 10-K for the fiscal year ended July 28, 2012.
 
Net sales consists primarily of sales of natural, organic and specialty products to retailers, adjusted for customer volume discounts, returns and allowances. Net sales also includes amounts charged by the Company to customers for shipping and handling, and fuel surcharges. The principal components of cost of sales include the amount paid to manufacturers and growers for product sold, plus the cost of transportation necessary to bring the product to the Company’s distribution facilities. Cost of sales also includes amounts incurred by the Company’s manufacturing subsidiary, United Natural Trading LLC, which does business as Woodstock Farms Manufacturing, for inbound transportation costs and depreciation for manufacturing equipment offset by consideration received from suppliers in connection with the purchase or promotion of the suppliers’ products. Operating expenses include salaries and wages, employee benefits (including payments under the Company’s Employee Stock Ownership Plan), warehousing and delivery, selling, occupancy, insurance, administrative, share-based compensation and amortization expense. Operating expenses also include depreciation expense related to the wholesale and retail divisions. Other expense (income) includes interest on outstanding indebtedness, interest income and miscellaneous income and expenses.  During the six months ended January 26, 2013, other expense also includes a pre-tax charge of $4.9 million related to an agreement reached during the first quarter of fiscal 2013 to settle a multi-state unclaimed property audit. The condensed consolidated statement of cash flows for the six months ended January 28, 2012 has been adjusted to properly present proceeds and borrowings related to the Company's revolving credit facility on a gross basis.  These amounts were previously presented on a net basis. The revisions were not material to the Company's consolidated financial statements as a whole.
 
As noted above, the Company includes shipping and handling fees billed to customers in net sales. Shipping and handling costs associated with inbound freight are generally recorded in cost of sales, whereas shipping and handling costs for selecting, quality assurance, and outbound transportation are recorded in operating expenses. Outbound shipping and handling costs totaled $88.5 million and $74.2 million for the three months ended January 26, 2013 and January 28, 2012, respectively.  For the six months ended January 26, 2013 and January 28, 2012, these outbound shipping and handling costs totaled $174.8 million and $144.0 million, respectively. Outbound shipping and handling costs for the three and six months ended January 26, 2013 include employee benefit expenses which are now allocated.
 
2.                                      RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS

In July 2012, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2012-02 , Intangibles - Goodwill and Other (ASC Topic 350): Testing Indefinite-Lived Intangible Assets for Impairment (“ASU No. 2012-02”). ASU No. 2012-02 permits an entity to first assess qualitative factors to determine whether it is more likely than not that an indefinite-lived intangible asset is impaired as a basis for determining whether it is necessary to perform the quantitative impairment test in accordance with Subtopic 350-30, Intangibles-Goodwill and Other-General Intangibles Other than Goodwill. ASU No. 2012-02 is effective for fiscal years that begin after September 15, 2012, though early adoption is permitted. The Company’s adoption of ASU No. 2012-02 effective July 29, 2012 did not have a material impact on the presentation of the Company’s consolidated financial statements.

In June 2011, the FASB issued ASU 2011-05, Comprehensive Income (Topic 220): Presentation of Comprehensive Income (“ASU No. 2011-05”). ASU No. 2011-05 requires that an entity present the total of comprehensive income, the components of net income, and the components of other comprehensive income either in a single continuous statement of comprehensive income or in two separate but consecutive statements. ASU No. 2011-05 is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011. In December 2011 the FASB issued ASU No. 2011-12, Comprehensive Income (Topic 220), whereby the effective date of those changes in ASU 2011-05 that relate to the presentation of reclassification adjustments in the income statement are deferred to provide the FASB with more time to consider whether to present the effects of reclassifications out of accumulated other comprehensive income on the face of the financial statements for all periods presented. The Company’s adoption of ASU No. 2011-05 effective July 29, 2012 did not have a material impact on the presentation of the Company’s consolidated financial statements.

3.                                      ACQUISITIONS
 
During the first quarter of fiscal 2013, the Company, within its wholesale segment, completed three business combinations related to the acquisition of certain assets of three distribution companies. The total cash consideration related to these acquisitions was approximately $9.2 million. In addition, certain of the asset purchase agreements related to these acquisitions provide for future contingent consideration of up to $3.7 million combined through February 2017. Furthermore, in connection with one of the acquisitions, we granted restricted stock units which have pro-rata time-based vesting over four years similar to the structure of the majority of the awards of restricted stock units granted to employees, but for which the vesting may be fully accelerated after two years if net sales of the acquired business, as defined in the applicable asset purchase agreement, meets or exceeds a targeted amount in either of the first two years following consummation of our acquisition of the business.
 
The preliminary fair value assigned to identifiable intangible assets acquired in the three acquisitions was determined by using an income approach. The identifiable intangible assets recorded based on the provisional valuations include customer lists of $3.1 million, which are being amortized on a straight-line basis over estimated useful lives of approximately 5 - 10 years. Significant assumptions utilized in the income approach were based on company-specific information and projections, which are not observable in the market and are considered Level 3 measurements as defined by authoritative guidance.
 
These three acquisitions were financed through borrowings under the Company’s amended and restated revolving credit facility. The Company is still completing the final valuations of the acquired intangibles for these acquisitions and therefore the Company’s estimates and assumptions are subject to change within the measurement period. Acquisition costs related to these purchases were insignificant, have been expensed as incurred and are included within “Operating Expenses” in the Consolidated Statements of Income. Each of these businesses were absorbed by the operations of the Company’s broadline distribution business, therefore the Company does not record the expenses for these businesses separately from the rest of the broadline distribution business and it is not possible to provide complete financial results for each acquisition separately or in total. Net sales resulting from these three acquisitions totaled approximately $14.3 million and $25.5 million for the three and six months ended January 26, 2013, respectively.
 
4.                                      RESTRUCTURING ACTIVITIES AND ASSET IMPAIRMENTS
 
Divestiture of conventional non-foods and general merchandise lines of business
 
In June 2011, the Company entered into an asset purchase agreement with L&R Distributors, Inc. (“L&R Distributors”), a leading national distributor of non-food products and general merchandise, to divest the Company’s conventional non-foods and general merchandise lines of business. In connection with this divestiture, the Company ceased operations at its Harrison, Arkansas distribution center, and during the fourth quarter of fiscal 2011, the Company recognized a non-cash impairment charge on long-lived assets including land, building and equipment of $5.8 million. In addition, the Company incurred $0.5 million during the fourth quarter of fiscal 2011 to transition the specialty food line of business into the Company’s other distribution centers. Upon the closure of the Harrison, Arkansas distribution center during the first quarter of fiscal 2012, the carrying value of $2.6 million in long-term property and equipment was reclassified to assets held for sale. During the first quarter of fiscal 2012, the Company recognized $5.1 million in severance and other expenses related to the completion of the divestiture. During the fourth quarter of fiscal 2012, the land, buildings and equipment associated with the Harrison, Arkansas distribution center was sold to a third party, resulting in a nominal gain.
 

8



Impairment of an intangible asset
 
During fiscal 2007, the Company made several asset acquisitions under its Blue Marble Brands division, one of which included a licensing agreement under which we were permitted to sell products under the seller’s existing trademark in exchange for royalty payments. The fair value of the intangible asset at the time of acquisition was $2.1 million, and was being amortized over a life of 27 years, the maximum life of the licensing agreement including renewal periods. In October 2012, the Company entered into an agreement to terminate its licensing agreement with the former owners. In connection with this termination agreement, during the three months ended October 27, 2012 the Company recognized an impairment of $1.6 million representing the remaining unamortized balance of the intangible asset.

5.                                      EARNINGS PER SHARE
 
Following is a reconciliation of the basic and diluted number of shares used in computing earnings per share:
 
 
 
Three months ended
 
Six months ended
(In thousands)
 
January 26,
2013
 
January 28,
2012
 
January 26,
2013
 
January 28,
2012
Basic weighted average shares outstanding
 
49,289

 
48,774

 
49,174

 
48,665

Net effect of dilutive stock awards based upon the treasury stock method
 
239

 
245

 
301

 
268

Diluted weighted average shares outstanding
 
49,528

 
49,019

 
49,475

 
48,933

 
There were 307,980 and 168,392 anti-dilutive share-based payment awards outstanding for the three months ended January 26, 2013 and January 28, 2012, respectively. For the six months ended January 26, 2013 and January 28, 2012, there were 118,841 and 168,392 anti-dilutive stock awards outstanding, respectively. These anti-dilutive share-based payment awards were excluded from the calculation of diluted earnings per share.
 
6.                                      FAIR VALUE MEASUREMENTS OF FINANCIAL INSTRUMENTS
 
Fuel Supply Agreements
 
The Company is a party to several fixed price fuel supply agreements. During the first quarter of fiscal 2013, the Company entered into several agreements which require it to purchase a portion of its diesel fuel each month at fixed prices through July 2013. These fixed price fuel agreements qualify for, and the Company has elected to utilize, the “normal purchase” exception under FASB ASC 815, Derivatives and Hedging (“ASC 815”) as physical deliveries will occur rather than net settlements, and therefore the fuel purchases under these contracts are expensed as incurred and included within operating expenses. During the six months ended January 28, 2012, the Company was a party to several similar agreements which required it to purchase a portion of its diesel fuel each month at fixed prices through July 2012 and which also qualified and were accounted for using the “normal purchase” exception under ASC 815, and therefore the fuel purchases under those contracts were expensed as incurred and included within operating expenses.
 
Financial Instruments
 
With the settlement of the interest rate swap during fiscal 2012, there were no financial assets and liabilities measured on a recurring basis as of January 26, 2013 or July 28, 2012.
 
The fair value of the Company’s other financial instruments including cash, cash equivalents, accounts receivable, notes receivable, accounts payable and certain accrued expenses approximate carrying amounts due to the short-term nature of these instruments. We believe the Company’s credit risk is similar to the overall market and variable rate and rates have not moved significantly since we initiated the underlying borrowings, the fair value of notes payable approximate carrying amounts.
 
The following estimated fair value amounts for long term debt have been determined by the Company using available market information and appropriate valuation methodologies including the discounted cash flow method, taking into account the instruments’ interest rate, terms, maturity date and collateral, if any, in comparison to market rates for similar financial instruments and are therefore deemed Level 2 inputs. However, considerable judgment is required in interpreting market data to develop the estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts that the Company could realize in a current market exchange.

9



 
 
 
January 26, 2013
 
July 28, 2012
(In thousands)
 
Carrying Value
 
Fair Value
 
Carrying Value
 
Fair Value
Liabilities:
 
 

 
 

 
 

 
 

Long term debt, including current portion
 
$
1,206

 
$
1,222

 
$
985

 
$
988

 

7.                                      BUSINESS SEGMENTS
 
The Company has several operating divisions aggregated under the wholesale segment, which is the Company’s only reportable segment. These operating divisions have similar products and services, customer channels, distribution methods and historical margins. The wholesale segment is engaged in national distribution of natural, organic and specialty foods, produce and related products in the United States and Canada. The Company has additional operating divisions that do not meet the quantitative thresholds for reportable segments and are therefore aggregated under the caption of “Other”. “Other” includes a retail division, which engages in the sale of natural foods and related products to the general public through retail storefronts on the east coast of the United States, a manufacturing division, which engages in importing, roasting and packaging of nuts, seeds, dried fruit, trail mixes, granola, natural and organic snack items, confections and the Company’s Blue Marble Brands product lines. “Other” also includes certain corporate operating expenses that are not allocated to operating divisions and are necessary to operate the Company’s headquarters located in Providence, Rhode Island, which include depreciation, salaries, retainers, and other related expenses of officers, directors, corporate finance (including professional services), information technology, governance, legal, human resources and internal audit. As the Company continues to expand its business and serve its customers through a national platform, these corporate expense amounts have increased. These unallocated corporate expenses are the primary driver behind the operating losses within the “Other” category below. Non-operating expenses that are not allocated to the operating divisions are under the caption of “Unallocated Expenses”. The Company does not record its revenues for financial reporting purposes by product group, and it is therefore impracticable for the Company to report them accordingly.

The following table reflects business segment information for the periods indicated (in thousands):

 
 
Wholesale
 
Other
 
Eliminations
 
Unallocated
 
Consolidated
Three months ended January 26, 2013:
 
 

 
 

 
 

 
 

 
 

Net sales
 
$
1,431,047

 
$
37,441

 
$
(22,785
)
 


 
$
1,445,703

Operating income (loss)
 
47,078

 
(8,899
)
 
801

 


 
38,980

Interest expense
 


 


 


 
$
1,373

 
1,373

Interest income
 


 


 


 
(168
)
 
(168
)
Other, net
 


 


 


 
201

 
201

Income before income taxes
 
 

 
 

 
 

 
 

 
37,574

Depreciation and amortization
 
10,398

 
427

 


 


 
10,825

Capital expenditures
 
15,305

 
148

 


 


 
15,453

Goodwill
 
186,374

 
17,532

 


 


 
203,906

Total assets
 
1,548,772

 
140,595

 
(9,261
)
 


 
1,680,106

 
 
 
 
 
 
 
 
 
 
 
Three months ended January 28, 2012:
 
 

 
 

 
 

 
 

 
 

Net sales
 
$
1,273,400

 
$
34,987

 
$
(21,477
)
 


 
$
1,286,910

Operating income (loss)
 
43,139

 
(6,589
)
 
963

 


 
37,513

Interest expense
 


 


 


 
$
1,382

 
1,382

Interest income
 


 


 


 
(219
)
 
(219
)
Other, net
 


 


 


 
27

 
27

Income before income taxes
 
 

 
 

 
 

 
 

 
36,323

Depreciation and amortization
 
9,190

 
408

 


 


 
9,598

Capital expenditures
 
4,479

 
642

 


 


 
5,121

Goodwill
 
176,245

 
17,331

 


 


 
193,576

Total assets
 
1,400,094

 
153,017

 
(6,288
)
 


 
1,546,823


10



 
 
Wholesale
 
Other
 
Eliminations
 
Unallocated
 
Consolidated
Six months ended January 26, 2013:
 
 

 
 

 
 

 
 

 
 

Net sales
 
$
2,825,461

 
$
82,763

 
$
(52,484
)
 


 
$
2,855,740

Operating income (loss)
 
97,065

 
(20,496
)
 
(1,023
)
 


 
75,546

Interest expense
 


 


 


 
$
2,351

 
2,351

Interest income
 


 


 


 
(341
)
 
(341
)
Other, net
 


 


 


 
4,982

 
4,982

Income before income taxes
 
 
 
 

 
 

 
 

 
68,554

Depreciation and amortization
 
19,943

 
1,001

 


 


 
20,944

Capital expenditures
 
19,112

 
914

 


 


 
20,026

Goodwill
 
186,374

 
17,532

 


 


 
203,906

Total assets
 
1,548,772

 
140,595

 
(9,261
)
 


 
1,680,106

 
 
 
 
 
 
 
 
 
 
 
Six months ended January 28, 2012:
 
 

 
 
 
 

 
 

 
 
Net sales
 
$
2,476,482

 
$
77,455

 
$
(49,599
)
 


 
$
2,504,338

Operating income (loss)
 
81,541

 
(17,336
)
 
(637
)
 


 
63,568

Interest expense
 


 


 


 
$
2,455

 
2,455

Interest income
 


 


 


 
(389
)
 
(389
)
Other, net
 


 


 


 
168

 
168

Income before income taxes
 
 

 
 

 
 

 
 

 
61,334

Depreciation and amortization
 
18,375

 
815

 


 


 
19,190

Capital expenditures
 
11,986

 
936

 


 


 
12,922

Goodwill
 
176,245

 
17,331

 


 


 
193,576

Total assets
 
1,400,094

 
153,017

 
(6,288
)
 


 
1,546,823



11




8.                                      SUPPLEMENTAL CASH FLOW INFORMATION
 
Non-cash financing activities during the six months ended January 26, 2013 include approximately $24.5 million of payments made directly to contractors by the landlord under the terms of a lease agreement which is being accounted for by the Company as a sale-leaseback transaction. These amounts are recorded within property and equipment, net, with a corresponding amount within accrued expenses and other current liabilities at January 26, 2013.

12





Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations
 
This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that involve substantial risks and uncertainties. In some cases you can identify these statements by forward-looking words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plans,” “planned,” “seek,” “should,” “will,” and “would,” or similar words. You should read statements that contain these words carefully because they discuss future expectations, contain projections of future results of operations or of financial positions or state other “forward-looking” information.
 
Forward-looking statements involve inherent uncertainty and may ultimately prove to be incorrect or false. You are cautioned not to place undue reliance on forward-looking statements. Except as otherwise may be required by law, we undertake no obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or actual operating results. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of various factors, including, but not limited to:
 
·                  our dependence on principal customers;
·                  our sensitivity to general economic conditions, including the current economic environment, changes in disposable
income levels and consumer spending trends;
·                  our ability to reduce our expenses in amounts sufficient to offset our increased focus on sales to conventional
supermarkets and the resulting lower gross margins on these sales;
·                  our reliance on the continued growth in sales of natural and organic foods and non-food products in comparison to
conventional products;
·                  our ability to timely and successfully deploy our new warehouse management system throughout our distribution
centers and our transportation management system Company-wide;
·                  increased fuel costs;
·                  our sensitivity to inflationary and deflationary pressures;
·                  the relatively low margins and economic sensitivity of our business;
·                  the potential for disruptions in our supply chain by circumstances beyond our control;
·                  the ability to identify and successfully complete acquisitions of other natural, organic and specialty food and non-food
products distributors; and
·                  management’s allocation of capital and the timing of capital expenditures.
 
This list of risks and uncertainties, however, is only a summary of some of the most important factors and is not intended to be exhaustive. You should carefully review the risks described under “Part I. Item 1A. Risk Factors” of our Annual Report on Form 10-K for the fiscal year ended July 28, 2012 and any cautionary language in this Quarterly Report on Form 10-Q, as the occurrence of any of these events could have an adverse effect on our business, results of operation and financial condition.
 

13



Overview
 
We believe we are the leading national distributor based on sales of natural, organic and specialty foods and non-food products in the United States and Canada, and that our twenty-six distribution centers, representing approximately 6.2 million square feet of warehouse space, provide us with the largest capacity of any North American-based distributor in the industry. We offer more than 65,000 high-quality natural, organic and specialty foods and non-food products, consisting of national brands, regional brands, private label and master distribution products, in six product categories: grocery and general merchandise, produce, perishables and frozen foods, nutritional supplements and sports nutrition, bulk and food service products and personal care items. We serve more than 27,000 customer locations primarily located across the United States and Canada, the majority of which can be classified into one of the following categories: independently owned natural products retailers, which include buying clubs; supernatural chains, which consist solely of Whole Foods Market Inc. (“Whole Foods Market”); conventional supermarkets, which include mass market chains; and other which includes foodservice and international customers.
 
Our operations are comprised of three principal operating divisions. These operating divisions are:
 
·                  our wholesale division, which includes our broadline natural, organic and specialty distribution business in the United States, UNFI Canada, which is our natural, organic and specialty distribution business in Canada, Albert’s, which is a leading distributor within the United States of organically grown produce and non-produce perishable items, and Select Nutrition, which distributes vitamins, minerals and supplements;
 
·                  our retail division, consisting of Earth Origins Market, which operates our 14 natural products retail stores within the United States; and
 
·                  our manufacturing division, consisting of Woodstock Farms Manufacturing, which specializes in the international importation, roasting, packaging and distribution of nuts, dried fruit, seeds, trail mixes, granola, natural and organic snack items, and confections, and our Blue Marble Brands product lines.
 
In recent years, our sales to existing and new customers have increased through the continued growth of the natural and organic products industry in general; increased market share as a result of our high quality service and a broader product selection, including specialty products, and the acquisition of, or merger with, natural and specialty products distributors; the expansion of our existing distribution centers; the construction of new distribution centers; the introduction of new products and the development of our own line of natural and organic branded products. Through these efforts, we believe that we have been able to broaden our geographic penetration, expand our customer base, enhance and diversify our product selections and increase our market share. Beginning in fiscal 2009, our strategic plan has focused on increasing market share, particularly in our conventional supermarket channel. This channel typically generates lower gross margins than our independent retailer channel, but also typically has lower operating expenses. As part of our “one company” approach, we are in the process of rolling out a national warehouse management and procurement system to convert our existing facilities into a single warehouse management and supply chain platform. We launched this system upgrade at our Lancaster, Texas facility in September 2010 and we converted our Ridgefield, Washington facility in July 2012. We plan to go live on our third facility in fiscal 2013 and expect to complete the roll out of this system upgrade in all of our distribution centers by the end of fiscal 2016. These steps and others are intended to promote operational efficiencies and further reduce our operating expenses as we attempt to offset the lower gross margins we expect to generate by increased sales to the supernatural and conventional supermarket channels.
 
Fiscal 2012 was a pivotal period for us as we completed the divestiture of our conventional non-foods and general merchandise lines of business that began in the fourth quarter of fiscal 2011. In connection with the divestiture, we moved the remaining organic and natural specialty product inventory from our Harrison, Arkansas facility to other distribution centers across the United States, and closed the Harrison, Arkansas facility. We were also successful in bringing onboard the single largest national customer at one time in our history.
 
Inflation continued to impact our financial results for the first half of fiscal 2013. For the quarter ended January 26, 2013, inflation in food prices was approximately 2.0% when compared to price levels in the three months ended January 28, 2012. We believe that based on the recent trend that levels are stabilizing near 2-3%. Moderate levels of annual inflation, which we generally consider to be between 2% and 4%, are beneficial to our results as the majority of our pricing is on a cost plus structure, and price changes in this range are more easily passed through the supply chain. We believe the current trend of moderate inflation will continue over the next 12 months.
 
We have been the primary distributor to Whole Foods Market for more than 14 years. Effective June 2010, we amended our distribution agreement with Whole Foods Market to extend the term of the agreement for an additional seven years. Under the terms of the amended agreement, we will continue to serve as the primary wholesale natural grocery distributor to Whole Foods Market in its United States regions where we were serving as the primary distributor at the time of the amendment. The amendment extended the expiration date of the agreement from September 25, 2013 to September 25, 2020. On July 28, 2010,

14



we announced that we had entered into an asset purchase agreement under which we agreed to acquire certain assets of Whole Foods Distribution Inc. (“Whole Foods Distribution”) previously used for their self-distribution of non-perishables in their Rocky Mountain and Southwest regions, and to become their primary distributor in these regions. We closed this transaction in late September 2010 in the case of the Southwest region and early October 2010 in the case of the Rocky Mountain region. We now serve as the primary distributor to Whole Foods Market in all of its regions in the United States, and have amended our distribution agreement with Whole Foods Market effective October 11, 2010 to include these regions. Whole Foods Market accounted for approximately 37% of our net sales for both the three months ended January 26, 2013 and January 28, 2012. Whole Foods Market accounted for approximately 37% and 36% of our net sales for the six months ended January 26, 2013 and January 28, 2012, respectively.
 
We expanded our operations into Canada with the acquisition of certain Canadian food distribution assets of the SunOpta Distribution Group business of SunOpta Inc. through our wholly-owned subsidiary, UNFI Canada, for cash consideration of $65.8 million in June 2010. With the acquisition, we became the largest distributor of natural, organic and specialty foods, including kosher foods, in Canada. During fiscal 2012, we utilized our UNFI Canada platform to further expand in the Canadian market, including through our purchase of substantially all of the assets of a specialty food distribution business in the Ontario market in November 2011. During the first quarter of fiscal 2013, we also utilized this platform for our August 2012 acquisition of substantially all of the assets of a dairy distribution business in the central Canada market.
 
The ability to distribute specialty food items (including ethnic, kosher and gourmet) has accelerated our expansion into a number of high-growth business markets and allowed us to establish immediate market share in the fast-growing specialty foods market. We have now integrated specialty food products and natural and organic specialty non-food products into most of our broadline distribution centers across the country. Due to our expansion into specialty foods, we were awarded new business with a number of conventional supermarkets since fiscal 2010 that we previously had not done business with because we did not distribute specialty products. We believe that distribution of these products enhances our conventional supermarket business channel and that our complementary product lines continue to present opportunities for cross-selling. On June 9, 2011, we entered into an asset purchase agreement with L&R Distributors pursuant to which we agreed to sell our conventional non-foods and general merchandise lines of business, including certain inventory related to these product lines. This divestiture was completed in the first quarter of fiscal 2012, and has allowed us to concentrate on our core business of the distribution of natural, organic, and specialty foods and non-food products.
 
To maintain our market leadership and improve our operating efficiencies, we seek to continually:
 
·                  expand our marketing and customer service programs across regions;
 
·                  expand our national purchasing opportunities;
 
·                  offer a broader product selection;
 
·                  offer operational excellence with high service levels and a higher percentage of on-time deliveries than our competitors;
 
·                  centralize general and administrative functions to reduce expenses;
 
·                  consolidate systems applications among physical locations and regions;
 
·                  increase our investment in people, facilities, equipment and technology;
 
·                  integrate administrative and accounting functions; and
 
·                  reduce the geographic overlap between regions.
 
Our continued growth has allowed us to expand our existing facilities and open new facilities in an effort to achieve increasing operating efficiencies. We have made significant capital expenditures and incurred considerable expenses in connection with the opening and expansion of our facilities. At January 26, 2013 our distribution capacity totaled approximately 6.2 million square feet. In September 2010, we began shipping products from our distribution center in Lancaster, Texas, which serves customers throughout the Southwestern United States, including Texas, Oklahoma, New Mexico, Arkansas and Louisiana.  In October 2010, in connection with the acquisition of the Rocky Mountain distribution business of Whole Foods Distribution, we took over the operations, including the assumption of an operating lease, at a distribution center in Aurora, Colorado, augmenting our existing Aurora, Colorado facility which was at capacity, in serving customers in Colorado, Utah, Arizona, and New Mexico. In April 2012, we entered into a lease for a new 535,000 square foot distribution center in Aurora, Colorado which is expected to become operational in the summer of 2013 and will replace our existing two broadline distribution centers, an Albert’s distribution center and an off-site storage location. We have also announced a multi-year expansion project with an additional distribution center planned for the United States in each of the Midwest and Northeast regions and Northern California.

15



 
Our net sales consist primarily of sales of natural, organic and specialty products to retailers, adjusted for customer volume discounts, returns and allowances. Net sales also consist of amounts charged by us to customers for shipping and handling and fuel surcharges. The principal components of our cost of sales include the amounts paid to manufacturers and growers for product sold, plus the cost of transportation necessary to bring the product to our distribution facilities. Cost of sales also includes amounts incurred by us at our manufacturing subsidiary, Woodstock Farms Manufacturing, for inbound transportation costs and depreciation for manufacturing equipment, offset by consideration received from suppliers in connection with the purchase or promotion of the suppliers’ products. Our gross margin may not be comparable to other similar companies within our industry that may include all costs related to their distribution network in their costs of sales rather than as operating expenses. We include purchasing and outbound transportation expenses within our operating expenses rather than in our cost of sales. Total operating expenses include salaries and wages, employee benefits (including payments under our Employee Stock Ownership Plan), warehousing and delivery, selling, occupancy, insurance, administrative, share-based compensation, depreciation and amortization expense. Other expenses (income) include interest on our outstanding indebtedness, interest income, unrealized foreign exchange gains or losses and other miscellaneous income and expenses. During the six months ended January 26, 2013 other expense also includes a pre-tax charge of $4.9 million in the first quarter related to an agreement to settle a multi-state unclaimed property audit.
 
Critical Accounting Policies
 
The preparation of our consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. The SEC has defined critical accounting policies as those that are both most important to the portrayal of our financial condition and results of operations and require our most difficult, complex or subjective judgments or estimates. Based on this definition and as further described in our Annual Report on Form 10-K for the year ended July 28, 2012, we believe our critical accounting policies include the following: (i) determining our allowance for doubtful accounts, (ii) determining our reserves for the self-insured portions of our workers’ compensation and automobile liabilities and (iii) valuing goodwill and intangible assets. For all financial statement periods presented, there have been no material modifications to the application of these critical accounting policies or estimates since our most recently filed Annual Report on Form 10-K.
 
Results of Operations
 
The following table presents, for the periods indicated, certain income and expense items expressed as a percentage of net sales:
 
 
 
Three months ended
 
Six months ended
 
 
 
January 26,
2013
 
January 28,
2012
 
January 26,
2013
 
January 28,
2012
 
Net sales
 
100.0
 %
 
100.0
 %
 
100.0
 %
 
100.0
 %
 
Cost of sales
 
83.3
 %
 
82.7
 %
 
83.3
 %
 
82.4
 %
 
Gross profit
 
16.7
 %
 
17.3
 %
 
16.7
 %
 
17.6
 %
 
Total operating expenses
 
14.0
 %
 
14.4
 %
 
14.1
 %
 
15.0
 %
 
Operating income
 
2.7
 %
 
2.9
 %
 
2.6
 %
 
2.5
 %
*
Other expense (income):
 
 

 
 

 
 
 
 
 
Interest expense
 
0.1
 %
 
0.1
 %
 
0.1
 %
 
0.1
 %
 
Interest income
 
 %
 
 %
 
 %
 
 %
 
Other, net
 
 %
 
 %
 
0.2
 %
 
 %
 
Total other expense
 
0.1
 %
 
0.1
 %
 
0.2
 %
*
0.1
 %
 
Income before income taxes
 
2.6
 %
 
2.8
 %
 
2.4
 %
 
2.5
 %
*
Provision for income taxes
 
1.0
 %
 
1.1
 %
 
0.9
 %
 
1.0
 %
 
Net income
 
1.6
 %
 
1.7
 %
 
1.5
 %
 
1.5
 %
 
___________________________________________________ 
* Total reflects rounding
 


16



Three Months Ended January 26, 2013 Compared To Three Months Ended January 28, 2012
 
Net Sales
 
Our net sales for the three months ended January 26, 2013 increased approximately 12.3%, or $158.8 million, to $1.4 billion from $1.3 billion for the three months ended January 28, 2012. This increase was primarily due to organic growth (sales growth excluding the impact of acquisitions) in our wholesale division from our supernatural chain customer as well as increased sales within our conventional supermarket channel. Our organic growth is due to the continued growth of the natural and organic products industry in general, increased market share as a result of our focus on service and value added services and broader selection of products, including specialty foods. In addition to net sales growth attributable to our organic growth, we also benefited from the inclusion of $14.3 million in incremental sales during the three months ended January 26, 2013 related to our acquisitions of certain assets of three distributors completed during the first quarter of fiscal 2013. Net sales for the quarter ended January 26, 2013 also benefited from food price inflation of approximately 2.0% compared to price levels in the second quarter of the prior fiscal year.
 
Our net sales by customer type for the three months ended January 26, 2013 and January 28, 2012 were as follows (in millions):
 
 
 
Net Sales for the Three Months Ended
Customer Type
 
January 26,
2013
 
% of
Net Sales
 
January 28,
2012
 
% of
Net Sales
Independently owned natural products retailers
 
$
473

 
33
%
 
$
438

 
34
%
Supernatural chains
 
538

 
37
%
 
470

 
37
%
Conventional supermarkets
 
368

 
25
%
 
321

 
25
%
Other
 
67

 
5
%
 
58

 
4
%
Total
 
$
1,446

 
100
%
 
$
1,287

 
100
%

Net sales to our independent retailer channel increased by approximately $35 million, or 8%, during the three months ended January 26, 2013 compared to the three months ended January 28, 2012. While net sales in this channel have increased, they have grown at a slower rate than net sales in our supernatural and conventional supermarket channels, and therefore, represent a lower percentage of our total net sales in the second quarter of fiscal 2013 compared to the second quarter of fiscal 2012.
 
Whole Foods Market is our only supernatural chain customer, and net sales to Whole Foods Market for the three months ended January 26, 2013 increased by approximately $68 million, or 14%, as compared to the three months ended January 28, 2012, and accounted for approximately 37% of our total net sales for each of the three months ended January 26, 2013 and January 28, 2012. The increase in net sales to Whole Foods Market is primarily due to increases in same-store sales, as well as new store openings.
 
Net sales to conventional supermarkets for the three months ended January 26, 2013 increased by approximately $47 million, or 15%, from the three months ended January 28, 2012, and represented approximately 25% of our total net sales in each of the three months ended January 26, 2013 and January 28, 2012. The increase in net sales to conventional supermarkets is due in part to a large national customer that we began servicing in October 2011 as part of our strategy to be the sole supplier of natural, organic and specialty products to our conventional supermarket customers.
 
Other net sales, which include sales to foodservice customers and sales from the United States to other countries, as well as sales through our retail division, manufacturing division, and our branded product lines, increased by approximately $9.0 million, or 16%, during the three months ended January 26, 2013 compared to the three months ended January 28, 2012, and accounted for approximately 5% of total net sales for both the three months ended January 26, 2013 compared to 4% in the three months ended January 28, 2012.
 
As we continue to aggressively pursue new customers and expand relationships with existing customers, we expect net sales for fiscal 2013 to grow over net sales for fiscal 2012. We believe that the integration of our specialty business into our national platform has allowed us to attract customers that we would not have been able to attract without that business and will continue to allow us to pursue a broader array of customers as many customers seek a single source for their natural, organic and specialty products. We believe that our projected sales growth will come from both sales to new customers and an increase in the number of products that we sell to existing customers. We expect that most of this sales growth will occur in our lower gross margin supernatural and conventional supermarket channels. Although sales to these customers typically generate lower gross margins than sales to customers within our independent retailer channel, they also typically carry a lower average cost to serve than sales to our independent customers. We also believe that food price inflation similar to the levels experienced during

17



the second half of fiscal 2012 and the first half of fiscal 2013 will contribute to our projected net sales growth for the remainder of fiscal 2013.
 
Gross Profit
 
Our gross profit increased approximately 8.3%, or $18.5 million, to $241.7 million for the three months ended January 26, 2013, from $223.1 million for the three months ended January 28, 2012. Our gross profit as a percentage of net sales was 16.7% for the three months ended January 26, 2013 and 17.3% for the three months ended January 28, 2012. The decline in gross profit as a percentage of net sales between the second quarter of fiscal 2013 and the comparable period in fiscal 2012 is primarily due to a reduced number of promotional opportunities as well as increased sales of customers' private label brands. The continued shift in our customer mix towards the supernatural and conventional supermarket channels, along with changes in the product mix and higher shrink levels also negatively impacted gross margin in the quarter ended January 26, 2013.
 
Our gross profits are generally higher on net sales to independently owned retailers and lower on net sales in the supernatural and conventional supermarket channels. For the three months ended January 26, 2013, approximately 72%, or $115 million of our $159 million total net sales growth was from increased net sales in the supernatural and conventional supermarket channels. As a result, approximately 62% of our total net sales in the three months ended January 26, 2013 and January 28, 2012 were to the supernatural and conventional supermarket channels.
 
We anticipate net sales growth in the supernatural and conventional supermarket channels will continue to outpace growth in the independent retailer and other channels. We expect that our distribution relationship with Whole Foods Market and our opportunities in the conventional supermarket channel will continue to generate lower gross profit percentages than our historical rates. We will seek to fully offset these reductions in gross profit percentages by reducing our operating expenses as a percent of net sales primarily through improved efficiencies in our supply chain and improvements to our information technology infrastructure, including our ongoing national warehouse management and procurement system upgrade.

Operating Expenses
 
Our total operating expenses increased approximately 9.2%, or $17.1 million, to $202.7 million  for the three months ended January 26, 2013, from $185.6 million for the three months ended January 28, 2012. The increase in total operating expenses for the three months ended January 26, 2013 was primarily due to higher sales volume, $0.9 million in non-cash straight-line rent expense associated with our new Denver, Colorado area facility and $3.6 million in labor action related costs at our Auburn, Washington facility. The labor action was resolved in February 2013 and we expect that our labor-related operating expenses at our Auburn facility will return to normalized levels beginning in the third quarter of fiscal 2013.

Total operating expenses for the three months ended January 26, 2013 included share-based compensation expense of $3.2 million, compared to $2.5 million in the three months ended January 28, 2012. Share-based compensation expense was higher during the three months ended January 26, 2013 primarily due to increases in the grant date fair value of awards in recent years as our stock price has appreciated, as well as the expense from our granting two-year performance-based vesting equity awards to our senior executives as part of a new component to their compensation arrangements that began in fiscal 2012.
 
As a percentage of net sales, total operating expenses decreased to approximately 14.0% for the three months ended January 26, 2013, from approximately 14.4% for the three months ended January 28, 2012. The decrease in total operating expenses as a percentage of net sales was primarily attributable to the growth in the supernatural and conventional supermarket channels which in general have lower operating expenses and higher fixed cost coverage due to higher sales. We were also able to partially manage our fuel costs despite rising prices as a result of our continued efforts to lock in the price of a portion of our expected fuel usage. We expect that we will be able to continue to reduce our operating expenses as a percentage of net sales as we continue the roll-out of our national warehouse management and procurement system upgrade. We first launched this system upgrade at our Lancaster, Texas facility in September 2010, and we converted our Ridgefield, Washington facility in July 2012. We expect to install this system in a third facility in the second half of fiscal 2013 and to complete the roll out of this system upgrade in all of our distribution centers by the end of fiscal 2016.
 
Operating Income
 
Operating income increased approximately 3.9%, or $1.5 million, to $39.0 million for the three months ended January 26, 2013, from $37.5 million for the three months ended January 28, 2012. As a percentage of net sales, operating income was 2.7% for the three months ended January 26, 2013 compared to 2.9% for the three months ended January 28, 2012. The decrease in operating income as a percentage of net sales is attributable to $3.6 million in labor action costs incurred in the three months ended January 26, 2013. The increase in operating income is primarily attributable to the net sales growth and operating expense controls discussed above.
 

18



Other Expense (Income)
 
Other expense (income) increased $0.2 million to $1.4 million for the three months ended January 26, 2013, from $1.2 million for the three months ended January 28, 2012. Interest expense and interest income were approximately $1.4 million and $0.2 million in each of the three months ended January 26, 2013 and January 28, 2012, respectively.
 
Provision for Income Taxes
 
Our effective income tax rate was 39.8% and 39.4% for the three months ended January 26, 2013 and January 28, 2012, respectively. The increase in the effective income tax rate for the three months ended January 26, 2013 was impacted primarily by increases in blended state tax rates.

Net Income
 
Reflecting the factors described in more detail above, net income increased $0.6 million to $22.6 million, or $0.46 per diluted share, for the three months ended January 26, 2013, compared to $22.0 million, or $0.45 per diluted share, for the three months ended January 28, 2012.
 

Six Months Ended January 26, 2013 Compared To Six Months Ended January 28, 2012

Net Sales

Our net sales increased approximately 14.0%, or $351.4 million, to $2.9 billion for the six months ended January 26, 2013, from $2.5 billion for the six months ended January 28, 2012. This increase was primarily due to the same factors that contributed to our sales growth for the quarter ended January 26, 2013, including growth in our wholesale segment of $349.0 million. Our growth is due to the continued growth of the natural products industry in general, increased market share as a result of our focus on service and value added services, and the inclusion of a broader selection of products, including specialty food products, in our distribution centers. We also benefited from the inclusion of $25.5 million in net sales for the six months ended January 26, 2013 resulting from the three asset acquisitions we completed during the first quarter of fiscal 2013. Net sales also benefited from food price inflation of approximately 2.1% that we experienced in the six months ended January 26, 2013 compared to price levels in the prior year comparable period.
Our net sales by customer type for the six months ended January 26, 2013 and January 28, 2012 were as follows (in millions):

 
 
Net Sales for the Six Months Ended
Customer Type
 
January 26,
2013
 
% of
Net Sales
 
January 28,
2012
 
% of
Net Sales
Independently owned natural products retailers
 
$
957

 
34
%
 
$
881

 
35
%
Supernatural chains
 
1,045

 
37
%
 
905

 
36
%
Conventional supermarkets
 
713

 
25
%
 
595

 
24
%
Other
 
141

 
4
%
 
123

 
5
%
Total
 
$
2,856

 
100
%
 
$
2,504

 
100
%


Net sales to the supernatural chain channel for the six months ended January 26, 2013 increased by approximately $140 million or 15% as compared to the prior fiscal year's comparable period, and accounted for approximately 37% of our total net sales for the six months ended January 26, 2013 and January 28, 2012. The increase in sales to Whole Foods Market is due to increases in same-store sales, as well as new store openings.

Net sales to conventional supermarkets for the six months ended January 26, 2013 increased by approximately $118 million, or 20% from the six months ended January 28, 2012, and represented approximately 25% of total net sales in the six months ended January 26, 2013 compared to 24% in the six months ended January 28, 2012. The increase in net sales to conventional supermarkets is primarily due to our newest national customer we began servicing during the first quarter of fiscal 2012 as part of our strategy to be the sole supplier of natural, organic and specialty products to our conventional supermarket customers.


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Net sales to our independent retailer channel increased by approximately $76 million, or 9% during the six months ended January 26, 2013 compared to the six months ended January 28, 2012. While net sales in this channel have increased, they have grown at a slower rate than net sales in our supernatural and conventional supermarket channels, and therefore represent a lower percentage of our total net sales.

Other net sales, which include sales to foodservice and international customers, as well as sales through our retail division, manufacturing division, and the Company's branded product lines, increased by approximately $18 million, or 15% during the six months ended January 26, 2013 and accounted for approximately 4% of total net sales for the six months ended January 26, 2013 and 5% for the six months ended January 28, 2012.

Gross Profit

Our gross profit increased approximately 8.5%, or $37.4 million, to $477.6 million for the six months ended January 26, 2013, from $440.3 million for the six months ended January 28, 2012. Our gross profit as a percentage of net sales was 16.7% for the six months ended January 26, 2013, compared to 17.6% for the six months ended January 28, 2012. The decline in gross profit as a percentage of net sales is due to the continued change in the mix of net sales by channel that began during the second fiscal quarter of 2010, as well as a reduced number of promotional opportunities as well as increased sales of customers' private label brands combined with higher inbound freight costs and inventory shrink. Our decision to maintain higher service levels in the first quarter of fiscal 2013 despite greater supplier out of stocks also negatively impacted our gross margin in the first six months of fiscal 2013 due to increased costs to move freight between our facilities.

Our gross profits are generally higher on net sales to independently owned retailers and lower on net sales in our conventional supermarket and supernatural channels. For the six months ended January 26, 2013 approximately $258 million of our $352 million total net sales growth was from increased net sales in the conventional supermarket and supernatural channels. As a result, approximately 62% of our total net sales in the six months ended January 26, 2013 were to the conventional supermarket and supernatural channels compared to approximately 60% in the six months ended January 28, 2012. This change in sales mix contributed to the decline in gross profit as a percentage of net sales during the six months ended January 26, 2013.

Operating Expenses

Our total operating expenses increased approximately 6.7%, or $25.4 million, to $402.1 million for the six months ended January 26, 2013, from $376.7 million for the six months ended January 28, 2012. The increase in total operating expenses for the six months ended January 26, 2013 was primarily due to higher sales volume, approximately $4.6 million in labor action related costs at our Auburn, Washington facility, approximately $1.6 million related to the termination of a licensing agreement and write-off of the associated intangible asset, and $1.6 million in non-cash straight-line rent expense associated with our new Denver, Colorado area distribution facility. The six months ended January 28, 2012 was impacted by $5.2 million in severance and other costs related to the divestiture of our conventional non-food and general merchandise lines of business and approximately $1.6 million in start-up expenses incurred in connection with onboarding our newest national customer. In addition, we recorded approximately $0.3 million for severance payments for a former executive, and our bad debt expense for the six months ended January 28, 2012 included $0.6 million associated with a bankruptcy filing by one of our customers.

Total operating expenses for the six months ended January 26, 2013 include share-based compensation expense of $7.9 million, compared to $6.4 million in the six months ended January 28, 2012. Share-based compensation expense was higher during the six months ended January 26, 2013 primarily due to expense recognized for new two-year performance-based equity awards for our senior executives.

As a percentage of net sales, total operating expenses decreased to approximately 14.1% for the six months ended January 26, 2013, from approximately 15.0% for the six months ended January 28, 2012. The decrease in total operating expenses as a percentage of net sales was primarily attributable to higher leverage on fixed costs, the growth in the supernatural and conventional supermarket channels which in general have lower operating expenses, as well as expense control programs across all of our divisions. Our operating expenses as a percentage of sales were also negatively impacted by certain items in each period which are specifically noted above. We were able to manage our fuel costs despite rising prices as a result of our continued efforts to lock in the price of a portion of our expected fuel usage.

Operating Income

Operating income increased approximately 18.8%, or $12.0 million, to $75.5 million for the six months ended January 26, 2013, from $63.6 million for the six months ended January 28, 2012. As a percentage of net sales, operating income was 2.6% for the six months ended January 26, 2013 compared to 2.5% for the six months ended January 28, 2012.

20




We anticipate net sales growth in our conventional supermarket and supernatural channels will continue to outpace growth in the independent and other channels. We expect that our expansion with Whole Foods Market, both as a result of organic growth and as a result of becoming their primary distributor in their Rocky Mountain and Southwest regions, and our opportunities in the conventional supermarket channel will continue to generate lower gross profit percentages than our historical rates. We will seek to fully offset these reductions in gross profit percentages by reducing our operating expenses as a percent of net sales primarily through improved efficiencies in our supply chain and improvements to our IT infrastructure.

Other Expense (Income)

Other expense was $7.0 million and $2.2 million for the six months ended January 26, 2013 and January 28, 2012, respectively. Interest expense was $2.4 million and $2.5 million for the six months ended January 26, 2013 and January 28, 2012, respectively. During the six months ended January 26, 2013, other expense includes $4.9 million recorded in connection with an agreement to settle a multi-state unclaimed property audit.

Provision for Income Taxes

Our effective income tax rate was 35.6% and 39.4% for the six months ended January 26, 2013 and January 28, 2012, respectively. The decrease in the effective income tax rate for the six months ended January 26, 2013 was driven by a net benefit of $2.9 million from certain discrete tax items recorded during the first quarter of fiscal 2013. These items consisted of a tax benefit from the net reversal of uncertain tax positions of $3.7 million, primarily due to audit resolutions during the first quarter of fiscal 2013, offset by other adjustments of $0.8 million. Absent these discrete tax items, the six months ended January 26, 2013 annual effective tax rate would have been 39.8%.

Net Income

Reflecting the factors described in more detail above, net income increased approximately $7.0 million to $44.2 million, or $0.89 per diluted share, for the six months ended January 26, 2013, compared to $37.2 million, or $0.76 per diluted share, for the six months ended January 28, 2012.



21



Liquidity and Capital Resources
 
We finance our day to day operations and growth primarily with cash flows from operations, borrowings under our amended and restated revolving credit facility, operating leases, trade payables and bank indebtedness. In addition, from time to time, we may issue equity and debt securities to finance our operations and acquisitions. We believe that our cash on hand and available credit through our amended and restated revolving credit facility as discussed below is sufficient to finance our operations and planned capital expenditures over the next twelve months. The condensed consolidated statement of cash flows present proceeds and borrowings related to the Company's revolving credit facility on a gross basis.  We expect to generate an average of $70 million to $100 million in cash flow from operations in each of fiscal 2013 and fiscal 2014. We intend to continue to utilize this cash generated from operations to fund acquisitions, fund investment in working capital and capital expenditure needs, and reduce our debt levels. We intend to manage capital expenditures to no more than approximately 1.3% of net sales for fiscal 2013. We expect to finance these requirements with cash generated from operations and borrowings under our amended and restated revolving credit facility. Our planned capital projects will provide both new and expanded facilities as well as technology that we believe will provide us with increased efficiency and the capacity to continue to support the growth of our customer base. Future investments and acquisitions may be financed through equity, long-term debt negotiated at the time of the potential acquisition or borrowings under our amended and restated revolving credit facility.
 
The Company has not recorded a tax provision for U.S. tax purposes on UNFI Canada profits as they have no assessable profits arising in or derived from the United States and we intend to indefinitely reinvest accumulated earnings in the UNFI Canada operations for the foreseeable future.
 
In May 2012, we amended and restated our revolving credit facility, pursuant to which we now have a $500 million amended and restated revolving credit facility which matures on May 24, 2017, of which up to $450.0 million is available to the Company’s U.S. subsidiaries and up to $50.0 million is available to UNFI Canada. This amended and restated revolving credit facility also provides a one-time option, subject to approval by the lenders under the amended and restated revolving credit facility, to increase the borrowing base by up to an additional $100 million. The borrowings of the U.S. portion of the amended and restated revolving credit facility accrue interest, at our option, at either (i) a base rate (generally defined as the highest of (x) the Bank of America Business Capital prime rate, (y) the average overnight federal funds effective rate plus one-half percent (0.50%) per annum and (z) one-month LIBOR plus one percent (1%) per annum plus an initial margin of 0.50%), or (ii) LIBOR for one, two, three or six months or, if approved by all affected lenders, nine months plus an initial margin of 1.50%. The borrowings on the Canadian portion of the amended and restated revolving credit facility for Canadian swing-line loans, Canadian overadvance loans or Canadian protective advances accrue interest, at our option, at either (i) a prime rate (generally defined as the highest of (x) 0.50% over 30-day Reuters Canadian Deposit Offering Rate for bankers’ acceptances, (y) the prime rate of Bank of America, N.A.’s Canada branch, and (z) a bankers’ acceptance equivalent rate for a one month interest period plus 1.00% plus an initial margin of 0.50%), or (ii) the CDOR rate, and an initial margin of 1.50%. All other borrowings on the Canadian portion of the amended and restated revolving credit facility must exclusively accrue interest under the CDOR rate plus the applicable margin. The amended and restated revolving credit facility supports our working capital requirements in the ordinary course of business and provides capital to grow our business organically or through acquisitions. Our borrowing base is determined as the lesser of (1) $500 million or (2) the fixed percentages of our previous fiscal month-end eligible accounts receivable and inventory levels. As of January 26, 2013, our borrowing base, which was calculated based on our eligible accounts receivable and inventory levels, was $475.3 million. As of January 26, 2013, we had $173.9 million outstanding under our amended and restated revolving credit facility and $34.1 million in letter of credit commitments and reserves which reduced our available borrowing capacity under our amended and restated revolving credit facility on a dollar for dollar basis. Our resulting remaining availability was $267.3 million as of January 26, 2013. The amended and restated revolving credit facility subjects us to a springing minimum fixed charge coverage ratio (as defined in the underlying credit agreement) of 1.0 to 1.0 calculated at the end of each of our fiscal quarters on a rolling four quarter basis when aggregate availability (as defined in the underlying credit agreement) is less than the greater of (i) $35.0 million and (ii) 10% of the aggregate borrowing base. We were not subject to the fixed charge coverage ratio covenant during the three months ended January 26, 2013.

In connection with our entering into the amended and restated revolving credit facility described above, we used a portion of our availability to pay off our term loan agreement, which was maturing on July 28, 2012. Concurrently, we settled our interest rate swap entered into in July 2005 by paying $0.3 million during the fourth quarter of fiscal 2012. Our amended and restated revolving credit facility includes borrowing rates that are approximately 50 to 100 basis points higher than our prior revolving credit facility, depending on remaining availability. However, we do not expect our overall interest expense to increase significantly if rates remain relatively stable as we have terminated our higher fixed rate interest rate swap, which covered our term loan that we repaid in May 2012.


22



Net cash used in operations was $48.6 million for the six months ended January 26, 2013, a decrease of $9.2 million from the $57.8 million used in operations for the six months ended January 28, 2012. The primary reasons for the net cash used in operations for the six months ended January 26, 2013 were an increase in inventories of $94.6 million and an increase in accounts receivable of $51.1 million due to sales growth during the year, partially offset by an increase in accounts payable of $32.1 million and net income of $44.2 million. The primary reasons for the net cash used in operations for the six months ended January 28, 2012 were an increase in inventories of $79.5 million and an increase in accounts receivable of $67.5 million due to our sales growth during the year, partially offset by an increase in accounts payable of $14.2 million and net income of $37.2 million. Days in inventory increased slightly to 53 days at January 26, 2013, compared to 50 days at July 28, 2012. Days sales outstanding remained at 22 days at January 26, 2013 and July 28, 2012. Working capital increased by $72.4 million, or 11.8%, to $685.1 million at January 26, 2013, compared to working capital of $612.7 million at July 28, 2012.
 
Net cash used in investing activities increased $11.9 million to $27.0 million for the six months ended January 26, 2013, compared to $15.0 million for the six months ended January 28, 2012. The increase from the fiscal six months ended January 28, 2012 was primarily due to our three acquisitions during the first quarter of fiscal 2013.
 
Net cash provided by financing activities was $67.3 million for the six months ended January 26, 2013. As noted above, we present proceeds and borrowings related to the Company's revolving credit facility on a gross basis.  The net cash provided by financing activities was primarily due to gross borrowings under our revolving credit line of $361.9 million, partially offset by repayments of our revolving credit line of $302.8 million, as well as increases in bank overdrafts of $10.5 million. Net cash provided by financing activities was $82.9 million for the six months ended January 28, 2012, primarily due to gross borrowings under our revolving credit line of $618.9 million, partially offset by repayments of our revolving credit line of $543.9 million, as well as increases in bank overdrafts of $8.9 million.
 
From time-to-time we enter into fixed price fuel supply agreements. As of January 26, 2013, we had entered into agreements which require us to purchase a total of approximately 5.2 million gallons of diesel fuel at prices ranging from $3.33 to $3.99 per gallon through July 2013. As of January 28, 2012, we had entered into agreements which required us to purchase a total of approximately 3.6 million gallons of diesel fuel for the period August 2011 through July 2012 at prices ranging from $3.56 to $3.90 (including taxes) per gallon. All of these fixed price fuel agreements qualified and are accounted for using the “normal purchase” exception under ASC 815, Derivatives and Hedging as physical deliveries will occur rather than net settlements, and therefore the fuel purchases under these contracts have been and will be expensed as incurred and included within operating expenses.
 
Contractual Obligations
 
There have been no material changes to our contractual obligations and commercial commitments during the three months ended January 26, 2013 from those disclosed in our Annual Report on Form 10-K for the year ended July 28, 2012.
 
Seasonality
 
While we have historically seen an increase in our inventory during the first quarter of our fiscal year, generally, we do not experience any material seasonality. However, our sales and operating results may vary significantly from quarter to quarter due to factors such as changes in our operating expenses, management’s ability to execute our operating and growth strategies, personnel changes, demand for natural products, supply shortages and general economic conditions.
 

23



Item 3.  Quantitative and Qualitative Disclosures About Market Risk
 
Our exposure to market risk results primarily from fluctuations in interest rates on our borrowings and price increases in diesel fuel. As more fully described in Note 6 to the condensed consolidated financial statements, we previously used an interest rate swap agreement to modify variable rate obligations to fixed rate obligations for a portion of our debt. In May 2012, we terminated this swap agreement in connection with repaying our outstanding term loan. In addition, from time to time we have used fixed price purchase contracts to lock the pricing on a portion of our expected diesel fuel usage. There have been no material changes to our exposure to market risks from those disclosed in our Annual Report on Form 10-K for the year ended July 28, 2012.
 
Item 4. Controls and Procedures
 
(a)                     Evaluation of disclosure controls and procedures.    We carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended) as of the end of the period covered by this quarterly report on Form 10-Q (the “Evaluation Date”). Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of the Evaluation Date, our disclosure controls and procedures were effective.
 
(b)                     Changes in internal controls.    There has been no change in our internal control over financial reporting that occurred during the second quarter of fiscal 2013 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
 
PART II.  OTHER INFORMATION
 
Item 1. Legal Proceedings
 
From time to time we are involved in routine litigation that arises in the ordinary course of our business.  In the opinion of management, the outcome of pending litigation is not expected to have a material adverse effect on our results of operations or financial condition.
 
Item 1A. Risk Factors
 
There have been no material changes to our risk factors contained in Part I, Item 1A, “Risk Factors,” of our Annual Report on Form 10-K for the fiscal year ended July 28, 2012.
 
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
 
None.

Item 3. Defaults Upon Senior Securities
 
None.
 
Item 4. Mine Safety Disclosures
 
Not applicable.
 
Item 5. Other Information
 
None.

24



Item 6.  Exhibits

Exhibit Index
 
Exhibit No.
 
Description
10.1
 
United Natural Foods, Inc. 2012 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on December 12, 2012) (the "2012 Equity Plan").
10.2*
 
Form of Terms and Conditions of Grant of Non-Statutory Stock Options to Employee, pursuant to the 2012 Equity Plan.

10.3*
 
Form of Terms and Conditions of Grant of Non-Statutory Stock Options to Director, pursuant to the 2012 Equity Plan.

10.4*
 
Form of Terms and Conditions of Grant of Restricted Share Units to Employee, pursuant to the 2012 Equity Plan.

10.5*
 
Form of Terms and Conditions of Grant of Restricted Share Units to Director, pursuant to the 2012 Equity Plan.

10.6*
 
Form of Performance-Based Vesting Restricted Share Unit Award Agreement, pursuant to the 2012 Equity Plan.

10.7*
 
Form of Performance-Based Vesting Restricted Share Award Agreement, pursuant to the 2012 Equity Plan.

31.1*
 
Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2*
 
Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1*
 
Certification of CEO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2*
 
Certification of CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101*
 
The following materials from the United Natural Foods, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended January 26, 2013, formatted in XBRL (eXtensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated Statements of Income, (iii) Condensed Consolidated Statements of Comprehensive Income, (iv) Condensed Consolidated Statement of Stockholders’ Equity, (v) Condensed Consolidated Statements of Cash Flows, and (vi) Notes to Condensed Consolidated Financial Statements.
______________________________________________
*                                         Filed herewith.


 
*                 *                 *
 
We would be pleased to furnish a copy of this Form 10-Q to any stockholder who requests it by writing to:
 
    
United Natural Foods, Inc.
Investor Relations
313 Iron Horse Way
Providence, RI 02908


25



SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
UNITED NATURAL FOODS, INC.
 
 
 
 
 
/s/ Mark E. Shamber
 
Mark E. Shamber
 
Chief Financial Officer
 
(Principal Financial and Accounting Officer)
 
Dated:  March 6, 2013



26
EX-10.2 2 exhibit102.htm EX-10.2 Exhibit 10.2


Exhibit 10.2
UNITED NATURAL FOODS, INC.
Terms and Conditions of Grant of Non-Statutory Stock Options to Employee
2012 Equity Incentive Plan
These Terms and Conditions of Grant of Non-Statutory Stock Options to Employee (these “Terms and Conditions”), shall apply to the grant by United Natural Foods, Inc., a Delaware corporation (the “Company”), to the Participant of an award of Options, pursuant to the Company's 2012 Equity Incentive Plan (as amended from time to time, the “Plan”). Except in the preceding sentence and where the context otherwise requires, the term “Company” shall include the Company and all present and future Subsidiaries. All capitalized terms that are used in these Terms and Conditions without definition shall have the meanings set forth in the Plan.
1.
Definitions.

(a)
Award Agreement has the meaning set forth in Section 2 of these Terms and Conditions.
(b)
Communication of Award means the communication delivered by an authorized representative of the Company to the Participant identifying that an Award has been granted together with the details of the award (including the identity of the Participant, the Grant Date, the number of Options that were awarded to the Participant, and the Option Price per Share) set forth in the Award summary portion of the online award acceptance process used in connection with electronic administration of Awards under the Plan.
(c)
Expiration Date means the tenth anniversary of the Grant Date.
(d)
Grant Date means the date on which the Options were granted as set forth in the Communication of Award.
(e)
Option means the option to purchase any one Share of the Company's common stock, par value $0.01 per share, from the Company during the period commencing on the Grant Date and ending on the Expiration Date at the Option Price Per Share.
(f)
Option Price per Share means the Option Price per Share set forth in the Communication of Award.
(g)
Participant, solely for purposes of the Award Agreement, means the individual identified in the Communication of Award.

2.Grant of Options. Effective on the Grant Date and subject to the provisions of the Plan and these Terms and Conditions, the Company has granted to the Participant the number of Options set forth in the Communication of Award. The information contained in the Communication of Award with respect to the Participant and the Options is incorporated herein by reference and together with these Terms and Conditions shall constitute an Award Agreement (the “Award Agreement”) for purposes of the Plan. By accepting the award of Options and acknowledging these Terms and Conditions, the Participant agrees to be bound by the provisions of the Plan and these Terms and Conditions with respect to the Options. Acceptance of the award of Options and acknowledgment of these Terms and Conditions may be made in a writing signed by the Participant and delivered to the Company or through the online award acceptance process used in connection with electronic administration of awards under the Plan. The Options are not intended to qualify as incentive stock options within the meaning of Section 422 of the Code.

3.
Exercise of Option and Provisions for Termination.

(a)Vesting Schedule. The Options shall vest with respect to ________ percent (___%) of the Shares subject to the Options on the first anniversary of the Grant Date and with respect to an additional ________ percent (___%) of such Shares on each succeeding anniversary of the Grant Date so as to be completely vested on the ________ anniversary of the Grant Date, conditioned on each such date on the Participant maintaining continuous employment with (or other service-





providing capacity with) the Company since the Grant Date. Except as otherwise provided in these Terms and Conditions, the Options may not be exercised at any time on or after the Expiration Date.

(b)Exercise Procedure. Subject to these Terms and Conditions, the Options shall be exercised by the Participant's delivery of written notice of exercise to the Treasurer of the Company, specifying the number of Shares to be purchased and the purchase price to be paid therefor and accompanied by payment in full in accordance with Section 4 of these Terms and Conditions. Such exercise shall be effective upon receipt by the Treasurer of the Company of such written notice together with payment in full of the Option Price per Share. The Participant may purchase less than the number of Shares covered hereby, provided that no partial exercise of the Options may be for any fractional share or for fewer than ten whole Shares.     

(c)Continued Employment Required. Except as otherwise provided in this Section 3, Options may not be exercised unless at the time of exercise the Participant is, and has been at all times since the Grant Date (or if later, the date on which the Participant first became an employee), employed by (or has other service-providing capacity with) the Company. If the Options shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, employment by or service to such assuming or substituting corporation shall be considered for all purposes of the Options to be employment by or service to the Company.

(d)Exercise Period Upon Termination of Employment. If the Participant's employment with or service to the Company or any Affiliate is terminated for any reason, then, except as provided in paragraphs (e), (f), and (g) below, the Participant's right to exercise the Options shall terminate on the earlier to occur of 90 days after such termination or the Expiration Date; provided that unless otherwise determined by the Committee, the Options shall be exercisable only to the extent that the Participant was entitled to exercise such Options on the date of such termination. Notwithstanding the foregoing, if the Participant, prior to the Expiration Date, materially violates the non-competition or confidentiality provisions of any employment, confidentiality and nondisclosure, or other agreement between the Participant and the Company, the right to exercise the Options shall terminate immediately upon written notice to the Participant from the Company describing such violation.

(e)Exercise Period Upon Death or Disability. If the Participant dies or suffers a Disability prior to the Expiration Date while he or she is an employee of or providing service to the Company, or if the Participant dies within 90 days after termination of the Participant's employment with or service to the Company (other than as the result of a discharge for Cause), the Options shall be exercisable at any time on or before the earlier to occur of the date that is one year after such termination or the Expiration Date, provided that the Options shall be exercisable only to the extent that the Options were exercisable by the Participant on the date of his or her death or Disability. Except as otherwise indicated by the context, the term “Participant”, as used in these Terms and Conditions, shall be deemed to include the estate of the Participant or any Person who acquires the right to exercise the Options by bequest or inheritance or otherwise by reason of the death of the Participant.

(f)Discharge for Cause. If, prior to the Expiration Date, the Participant's employment with or service to the Company terminates as a result of Cause, the right to exercise the Options shall terminate immediately upon such termination of employment or service. The Participant's employment with or service to the Company shall be considered to have been terminated for Cause if the Committee determines, within 30 days after the Participant's termination of employment or service, that discharge for Cause was warranted.

(g)Termination of Employment after a Change in Control. Notwithstanding the provisions of paragraphs (d), (e) and (f) above, if, within twelve months after the Company obtains actual knowledge that a Change in Control has occurred, the Participant's employment with or service to the Company or any Affiliate is terminated for any reason, all unvested Options shall become fully vested, and thereafter the Participant may exercise all the unexercised Options in full at any time within 90 days after such termination of employment or service.

4.Payment of Purchase Price. The payment of the purchase price for Shares purchased upon exercise of Options shall be made (i) in cash or cash equivalents, (ii) at the discretion of the Committee, by transfer, either actually or by attestation, of unencumbered Shares previously acquired by the Participant valued at the Fair Market Value of such Shares on the date of exercise of the Options (or the next succeeding trading date, if the exercise date is not a trading date), together with any Withholding Taxes (as defined below), (iii) by a combination of (i) or (ii), or (iv) by any other method approved or accepted by the Committee in its sole discretion, including, if the Committee so determines, (x) a cashless (broker-assisted) exercise that complies with applicable laws or (y) withholding Shares (net-exercise) otherwise deliverable to the Participant pursuant to the Option having an aggregate Fair Market Value at the time of exercise equal to the total Option Price for the number of Shares purchased, together with any applicable Withholding Taxes.






5.Delivery of Shares; Compliance with Securities Laws, Etc.

(a)General. The Company shall, upon payment of the Option Price for the number of Shares purchased and paid for, make prompt delivery of such Shares to the Participant (whether by delivery of certificates or book entry), provided that if any law or regulation requires the Company to take any action with respect to such Shares before the issuance thereof, then the date of delivery of such Shares shall be extended for the period necessary to complete such action.

(b)Listing, Qualification, Etc. The Options shall be subject to the requirement that if, at any time, counsel to the Company shall determine that the listing, registration or qualification of the Shares subject to the Award Agreement upon any securities exchange or under any state or federal law, or the consent or approval of any governmental or regulatory body, or that the disclosure of non‑public information or the satisfaction of any other condition is necessary as a condition of, or in connection with, the issuance or purchase of Shares hereunder, the Options may not be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval, disclosure or satisfaction of such other condition shall have been effected or obtained on terms acceptable to the Board of Directors of the Company. Nothing herein shall be deemed to require the Company to apply for, effect or obtain such listing, registration, qualification or disclosure, or to satisfy such other condition.

(c)Nontransferability of Option. Except as otherwise provided in the Plan, the Options and the Award Agreement shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant, except by will or the laws of descent and distribution. No transfer of the Options by will or by laws of descent and distribution shall be effective to bind the Company unless the Company has been furnished with written notice thereof and an authenticated copy of the will and/or such other evidence as the Committee may deem necessary or appropriate to establish the validity of the transfer. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Options otherwise than as permitted by the Plan and this Award Agreement shall, at the election of the Company, be null and void. Transfer of the Options for value is not permitted under the Plan or this Award Agreement.

6.Rights as a Stockholder. The Participant shall have no rights as a stockholder with respect to any Shares which may be purchased by exercise of the Options (including, without limitation, voting rights and any rights to receive dividends or non-cash distributions with respect to such Shares) unless and until the Shares have been issued to Participant. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such Shares are issued.

7.Withholding. The Company's obligation to deliver the Shares upon the exercise of Options shall be subject to the Participant's satisfaction of any applicable federal, state, and foreign withholding obligations or withholding taxes (“Withholding Taxes”), including any employer minimum statutory withholding, and the Participant shall pay the amount of any such Withholding Taxes to the Company as set forth in this Section 7. The Participant may satisfy his or her obligation to pay the Withholding Taxes by (i) making a cash payment to the Company in an amount equal to the Withholding Taxes; (ii) having the Company withhold Shares otherwise deliverable to the Participant in connection with the exercise of the Option; or (iii) delivering to the Company shares of Common Stock already owned by the Participant; provided that in the case of (ii) or (iii) the amount of such Shares withheld or shares of Common Stock delivered shall not exceed the amount necessary to satisfy the Withholding Taxes. The Participant acknowledges and agrees that the Company has the right to deduct from compensation or other amounts owing to the Participant an amount not to exceed the Withholding Taxes.

8.No Guarantee of Employment. Nothing in the Award Agreement or in the Plan shall confer upon the Participant any right to continue in the employ of the Company, or shall interfere with or restrict in any way the rights of the Company, which are hereby expressly reserved, to discharge the Participant at any time for any reason whatsoever, with or without Cause.

9.Amendment. Subject to the restrictions contained in the Plan, the Committee may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel or terminate, the Award Agreement and the Options, prospectively or retroactively in time (and in accordance with Section 409A of the Code with regard to awards subject thereto); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant or any holder or beneficiary of the Options shall not to that extent be effective without the consent of the Participant, holder or beneficiary. The Committee is authorized to make equitable and proportionate adjustments in the terms and conditions of, and the criteria included in, the Award Agreement and the Options as set forth in the Plan.
  





10.Determinations by Committee. Except as otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or the Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons.

11.Provisions of the Plan. The Participant hereby acknowledges receipt of a copy of the Plan with the Award Agreement and agrees to be bound by all the terms and provisions of the Plan. The Award Agreement is governed by the terms of the Plan, and in the case of any inconsistency between the Award Agreement and the terms of the Plan, the terms of the Plan shall govern.

12.Notices. Any notice required or permitted to be given to the Participant under the Award 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 the Award 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.

13.Waiver. The waiver by the Company of any provision of the Award 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 the Award Agreement at any subsequent time or for any other purpose.

14.Governing Law. The validity, construction and effect of the Award Agreement shall be determined in accordance with the laws of the State of Delaware without giving effect to conflicts of laws principles.

15.Successors. The Award Agreement shall inure to the benefit of and be binding upon any successor to the Company and shall inure to the benefit of the Participant's legal representative. All obligations imposed upon the Participant and all rights granted to the Company under the Award Agreement shall be binding upon the Participant's heirs, executors, administrator and successors.

16.Electronic Communication. The Company may, in its sole discretion, decide to deliver any document related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company.





EX-10.3 3 exhibit103.htm EX-10.3 Exhibit 10.3


Exhibit 10.3
UNITED NATURAL FOODS, INC.
Terms and Conditions of Grant of Non-Statutory Stock Options to Director
2012 Equity Incentive Plan
These Terms and Conditions of Grant of Non-Statutory Stock Options to Director (these “Terms and Conditions”), shall apply to the grant by United Natural Foods, Inc., a Delaware corporation (the “Company”), to the Participant of an award of Options, pursuant to the Company's 2012 Equity Incentive Plan (as amended from time to time, the “Plan”). Except in the preceding sentence and where the context otherwise requires, the term “Company” shall include the Company and all present and future Subsidiaries. All capitalized terms that are used in these Terms and Conditions without definition shall have the meanings set forth in the Plan.
1.
Definitions.

(a)
Award Agreement has the meaning set forth in Section 2 of these Terms and Conditions.

(b)
Communication of Award means the communication delivered by an authorized representative of the Company to the Participant identifying that an Award has been granted together with the details of the Award (including the identity of the Participant, the Grant Date, the number of Options that were awarded to the Participant, and the Option Price per Share) set forth in the award summary portion of the online award acceptance process used in connection with electronic administration of Awards under the Plan

(c)
Expiration Date means the tenth anniversary of the Grant Date.

(d)
Grant Date means the date on which the Options were granted as set forth in the Communication of Award.

(e)
Option means the option to purchase any one Share of the Company's common stock, par value $0.01 per share, from the Company during the period commencing on the Grant Date and ending on the Expiration Date at the Option Price Per Share.

(f)
Option Price per Share means the Option Price per Share set forth in the Communication of Award.

(g)
Participant, solely for purposes of the Award Agreement, means the individual identified in the Communication of Award.

2.Grant of Options. Effective on the Grant Date and subject to the provisions of the Plan and these Terms and Conditions, the Company has granted to the Participant the number of Options set forth in the Communication of Award. The information contained in the Communication of Award with respect to the Participant and the Options is incorporated herein by reference and together with these Terms and Conditions shall constitute an Award Agreement (the “Award Agreement”) for purposes of the Plan. By accepting the award of Options and acknowledging these Terms and Conditions, the Participant agrees to be bound by the provisions of the Plan and these Terms and Conditions with respect to the Options. Acceptance of the award of Options and acknowledgment of these Terms and Conditions may be made in a writing signed by the Participant and delivered to the Company or through the online award acceptance process used in connection with electronic administration of awards under the Plan. The Options are not intended to qualify as incentive stock options within the meaning of Section 422 of the Code.

3.
Exercise of Option and Provisions for Termination.

(a)Vesting Schedule. The Options shall vest with respect to ________ percent (___%) of the Shares subject to the Options on the Grant Date and with respect to an additional ________ percent (___%) of such Shares on each succeeding anniversary of the Grant Date so as to be completely vested on the _______ anniversary of the Grant Date, conditioned on each such date on the Participant maintaining continuous status as a member of the Board of Directors of the Company since the Grant Date (or if later, the date on which the Participant first became a member of the Board of Directors).





Except as otherwise provided in these Terms and Conditions, the Options may not be exercised at any time on or after the Expiration Date.

(b)Exercise Procedure. Subject to these Terms and Conditions, the Options shall be exercised by the Participant's delivery of written notice of exercise to the Treasurer of the Company, specifying the number of Shares to be purchased and the purchase price to be paid therefor and accompanied by payment in full in accordance with Section 4 of these Terms and Conditions. Such exercise shall be effective upon receipt by the Treasurer of the Company of such written notice together with payment in full of the Option Price per Share. The Participant may purchase less than the number of Shares covered hereby, provided that no partial exercise of the Options may be for any fractional share or for fewer than ten whole Shares.     

(c)Continued Service Required. Except as otherwise provided in this Section 3, Options may not be exercised unless at the time of exercise the Participant is, and has been at all times since the Grant Date, a member of the Board of Directors of the Company (or if later, the date on which the Participant first became a member of the Board of Directors). If the Options shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, service on the board of directors (or comparable body) of such assuming or substituting corporation shall be considered for all purposes of the Options to be service on the Board of Directors of the Company.

(d)Exercise Period Upon Termination of Service. If the Participant ceases to be a member of the Board of Directors of the Company for any reason, then, except as provided in paragraphs (e) and (f) below, the Participant's right to exercise the Options shall terminate on the earlier to occur of 90 days after such cessation or the Expiration Date; provided that unless otherwise determined by the Board of Directors of the Company, the Options shall be exercisable only to the extent that the Participant was entitled to exercise such Options on the date of such termination. Notwithstanding the foregoing, if the Participant, prior to the Expiration Date, materially violates the non-competition or confidentiality provisions of any confidentiality and nondisclosure, or other agreement between the Participant and the Company, the right to exercise the Options shall terminate immediately upon written notice to the Participant from the Company describing such violation.

(e)Exercise Period Upon Death or Disability. If the Participant dies or suffers a Disability prior to the Expiration Date while he or she is a member of the Board of Directors of the Company, or if the Participant dies within 90 days after the Participant ceases to be a member of the Board of Directors of the Company, the Options shall be exercisable at any time on or before the earlier to occur of the date that is one year after such cessation or the Expiration Date, provided that the Options shall be exercisable only to the extent that the Options were exercisable by the Participant on the date of his or her death or Disability. Except as otherwise indicated by the context, the term “Participant”, as used in these Terms and Conditions, shall be deemed to include the estate of the Participant or any Person who acquires the right to exercise the Options by bequest or inheritance or otherwise by reason of the death of the Participant.

(f)Termination of Employment after a Change in Control. Notwithstanding the provisions of paragraphs (d) and (e) above, if, within twelve months after the Company obtains actual knowledge that a Change in Control has occurred, the Participant ceases to serve as a member of the Board of Directors of the Company for any reason, all unvested Options shall become fully vested, and thereafter the Participant may exercise all the unexercised Options in full at any time within 90 days after such cessation of service.

4.Payment of Purchase Price. The payment of the purchase price for Shares purchased upon exercise of Options shall be made (i) in cash or cash equivalents, (ii) at the discretion of the Board of Directors of the Company, by transfer, either actually or by attestation, of unencumbered Shares previously acquired by the Participant valued at the Fair Market Value of such Shares on the date of exercise of the Options (or the next succeeding trading date, if the exercise date is not a trading date), (iii) by a combination of (i) or (ii), or (iv) by any other method approved or accepted by the Board of Directors of the Company, including, if the Board of Directors so determines, (x) a cashless (broker-assisted) exercise that complies with applicable laws or (y) withholding Shares (net-exercise) otherwise deliverable to the Participant pursuant to the Option having an aggregate Fair Market Value at the time of exercise equal to the total Option Price for the number of Shares purchased.

5.Delivery of Shares; Compliance with Securities Laws, Etc.

(a)General. The Company shall, upon payment of the Option Price for the number of Shares purchased and paid for, make prompt delivery of such Shares to the Participant (whether by delivery of certificates or book entry), provided that if any law or regulation requires the Company to take any action with respect to such Shares before the issuance thereof, then the date of delivery of such Shares shall be extended for the period necessary to complete such action.






(b)Listing, Qualification, Etc. The Options shall be subject to the requirement that if, at any time, counsel to the Company shall determine that the listing, registration or qualification of the Shares subject to the Award Agreement upon any securities exchange or under any state or federal law, or the consent or approval of any governmental or regulatory body, or that the disclosure of non‑public information or the satisfaction of any other condition is necessary as a condition of, or in connection with, the issuance or purchase of Shares hereunder, the Options may not be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval, disclosure or satisfaction of such other condition shall have been effected or obtained on terms acceptable to the Board of Directors of the Company. Nothing herein shall be deemed to require the Company to apply for, effect or obtain such listing, registration, qualification or disclosure, or to satisfy such other condition.

(c)Nontransferability of Option. Except as otherwise provided in the Plan, the Options and the Award Agreement shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant, except by will or the laws of descent and distribution. No transfer of the Options by will or by laws of descent and distribution shall be effective to bind the Company unless the Company has been furnished with written notice thereof and an authenticated copy of the will and/or such other evidence as the Board of Directors of the Company may deem necessary or appropriate to establish the validity of the transfer. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Options otherwise than as permitted by the Plan and this Award Agreement shall, at the election of the Company, be null and void. Transfer of the Options for value is not permitted under the Plan or this Award Agreement.

6.Rights as a Stockholder. The Participant shall have no rights as a stockholder with respect to any Shares which may be purchased by exercise of the Options (including, without limitation, voting rights and any rights to receive dividends or non-cash distributions with respect to such Shares) unless and until the Shares have been issued to Participant. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such Shares are issued.

7.No Guarantee of Continued Service. Nothing in the Award Agreement or in the Plan shall confer upon the Participant any right to continue to serve as a member of the Board of Directors of the Company or the right to be employed by the Company, or shall interfere with or restrict in any way the rights of the Company.

8.Amendment. Subject to the restrictions contained in the Plan, the Board of Directors of the Company may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel or terminate, the Award Agreement and the Options, prospectively or retroactively in time (and in accordance with Section 409A of the Code with regard to awards subject thereto); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant or any holder or beneficiary of the Options shall not to that extent be effective without the consent of the Participant, holder or beneficiary. The Board of Directors of the Company is authorized to make equitable and proportionate adjustments in the terms and conditions of, and the criteria included in, the Award Agreement and the Options as set forth in the Plan.

9.Determinations by the Board of Directors. Except as otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or the Award Agreement shall be within the sole discretion of the Board of Directors of the Company, may be made at any time and shall be final, conclusive, and binding upon all Persons.

10.Provisions of the Plan. The Participant hereby acknowledges receipt of a copy of the Plan with the Award Agreement and agrees to be bound by all the terms and provisions of the Plan. The Award Agreement is governed by the terms of the Plan, and in the case of any inconsistency between the Award Agreement and the terms of the Plan, the terms of the Plan shall govern.

11.Notices. Any notice required or permitted to be given to the Participant under the Award 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 the Award 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.

12.Waiver. The waiver by the Company of any provision of the Award 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 the Award Agreement at any subsequent time or for any other purpose.

13.Governing Law. The validity, construction and effect of the Award Agreement shall be determined in accordance with the laws of the State of Delaware without giving effect to conflicts of laws principles.






14.Successors. The Award Agreement shall inure to the benefit of and be binding upon any successor to the Company and shall inure to the benefit of the Participant's legal representative. All obligations imposed upon the Participant and all rights granted to the Company under the Award Agreement shall be binding upon the Participant's heirs, executors, administrator and successors.

15.Electronic Communication. The Company may, in its sole discretion, decide to deliver any document related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company.



EX-10.4 4 exhibit104.htm EX-10.4 Exhibit 10.4


Exhibit 10.4
UNITED NATURAL FOODS, INC.
Terms and Conditions of Grant of Restricted Share Units to Employee
2012 Equity Incentive Plan
These Terms and Conditions of Grant of Restricted Share Units to Employee (these “Terms and Conditions”), shall apply to the grant by United Natural Foods, Inc., a Delaware corporation (the “Company”), to the Participant of an award of Restricted Share Units, pursuant to the Company's 2012 Equity Incentive Plan (as amended from time to time, the “Plan”). Except in the preceding sentence and where the context otherwise requires, the term “Company” shall include the Company and all present and future Subsidiaries. All capitalized terms that are used in these Terms and Conditions without definition shall have the meanings set forth in the Plan.
1.Definitions.

(a)
Award Agreement has the meaning set forth in Section 2 of these Terms and Conditions.

(b)
Communication of Award means the communication delivered by an authorized representative of the Company to the Participant identifying that an Award has been granted together with the details of the Award (including the identity of the Participant, the Grant Date, and the number of Restricted Share Units that were awarded to the Participant) set forth in the award summary portion of the online award acceptance process used in connection with electronic administration of Awards under the Plan.

(c)
Grant Date means the date on which the Restricted Share Units were granted as set forth in the Communication of Award.

(d)
Participant, solely for purposes of the Award Agreement, means the individual identified in the Communication of Award.

(e)
Restricted Share Unit means a right to receive any one Share of the Company's common stock, par value $0.01 per share, from the Company following the expiration of the Restriction Period.

(f)
Restriction Period with respect to the Restricted Share Units means the period commencing upon the Grant Date and ending on the dates provided under Section 3 of these Terms and Conditions.

2.Grant of Restricted Share Units. Effective on the Grant Date and subject to the provisions of the Plan and these Terms and Conditions, the Company has granted to the Participant the number of Restricted Share Units set forth in the Communication of Award. A Restricted Share Unit does not represent an equity interest in the Company and carries no voting or dividend rights. The information contained in the Communication of Award with respect to the Participant and the Restricted Share Units is incorporated herein by reference and together with these Terms and Conditions shall constitute an Award Agreement (the “Award Agreement”) for purposes of the Plan. By accepting the award of Restricted Share Units and acknowledging these Terms and Conditions, the Participant agrees to be bound by the provisions of the Plan and these Terms and Conditions with respect to the Restricted Share Units. Acceptance of the award of Restricted Share Units and acknowledgment of these Terms and Conditions may be made in a writing signed by the Participant and delivered to the Company or through the online award acceptance process used in connection with electronic administration of awards under the Plan.

3.Restriction Period.

(a)    The Restriction Period shall expire with respect to ________ percent (___%) of the Restricted Share Units on the first anniversary of the Grant Date and with respect to an additional ________ percent (___%) of such Restricted Share Units on each succeeding anniversary of the Grant Date so as to be expired with regard to all Restricted Share Units on the ________ anniversary of the Grant Date, conditioned on each such date on the Participant maintaining continuous employment with (or other service-providing capacity with) the Company since the Grant Date (or if later, the date on which the Participant first became an employee or service provider). Notwithstanding the foregoing, the Restriction Period shall expire with respect to all Restricted Share Units upon the death or Disability of the Participant.





(b)    The Restriction Period shall be deemed to expire for all Restricted Share Units if, within twelve months after the Company obtains actual knowledge that a Change in Control has occurred, the Participant's employment with or service to the Company or any Affiliate of the Company is terminated for any reason.

(c)    If the Participant's employment with or service to the Company or any Affiliate is terminated, or the Participant otherwise separates from service under circumstances not described in Sections 3(a) or 3(b), all Restricted Share Units as to which the Restriction Period has not expired shall be canceled immediately, and shall not be payable, except to the extent the Committee decides otherwise.

4.Payment. No later than 2½ months after the end of the calendar year in which the Restriction Period expires with respect to Restricted Share Units, the Company shall issue to the Participant (or the Participant's assignee or beneficiary if permitted by the Plan or the Committee) one Share for each Restricted Share Unit for which the Restriction Period expired.

5.Rights as a Stockholder. The Participant shall have no rights as a stockholder with respect to any Shares which may be issued upon expiration of the Restriction Period (including, without limitation, voting rights and any rights to receive dividends or non-cash distributions with respect to such Shares) unless and until the Restriction Period shall have expired. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such Restriction Period shall have expired.

6.Withholding. The Company's obligation to deliver the Shares upon the expiration of the Restriction Period shall be subject to the Participant's satisfaction of any applicable federal, state, and foreign withholding obligations or withholding taxes (“Withholding Taxes”), including any employer minimum statutory withholding, and the Participant shall pay the amount of any such Withholding Taxes to the Company as set forth in this Section 5. The Participant may satisfy his or her obligation to pay the Withholding Taxes by (i) making a cash payment to the Company in an amount equal to the Withholding Taxes; (ii) having the Company withhold Shares otherwise deliverable to the Participant in connection with the expiration of the Restriction Period; or (iii) delivering to the Company shares of Common Stock already owned by the Participant; provided that in the case of (ii) or (iii) the amount of such Shares withheld or shares of Common Stock delivered shall not exceed the amount necessary to satisfy the Withholding Taxes. The Participant acknowledges and agrees that the Company has the right to deduct from compensation or other amounts owing to the Participant an amount not to exceed the Withholding Taxes.

7.No Guarantee of Employment. Nothing in the Award Agreement or in the Plan shall confer upon the Participant any right to continues in the employ of the Company, or shall interfere with or restrict in any way the rights of the Company, which are hereby expressly reserved, to discharge the Participant at any time for any reason whatsoever, with or without Cause.

8.Amendment. Subject to the restrictions contained in the Plan, the Committee may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel or terminate, this Award Agreement and the Restricted Share Units, prospectively or retroactively in time (and in accordance with Section 409A of the Code with regard to awards subject thereto); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant or any holder or beneficiary of the Restricted Share Units shall not to that extent be effective without the consent of the Participant, holder or beneficiary. The Committee is authorized to make equitable and proportionate adjustments in the terms and conditions of, and the criteria included in, the Award Agreement and the Restricted Share Units as set forth in the Plan.

9.Determinations by Committee. Except as otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or the Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons.

10.Provisions of the Plan. The Participant hereby acknowledges receipt of a copy of the Plan with the Award Agreement and agrees to be bound by all the terms and provisions of the Plan. The Award Agreement is governed by the terms of the Plan, and in the case of any inconsistency between the Award Agreement and the terms of the Plan, the terms of the Plan shall govern.

11.Nontransferability of Restricted Share Units. Except as otherwise provided in the Plan, the Restricted Share Units and this Award Agreement shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Share Units otherwise than as permitted by the Plan and this Award Agreement shall, at the election of the Company, be null and void. Transfer of the Restricted Share Units for value is not permitted under the Plan or this Award Agreement.






12.Notices. Any notice required or permitted to be given to the Participant under the Award 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 the Award 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.

13.Waiver. The waiver by the Company of any provision of the Award 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 the Award Agreement at any subsequent time or for any other purpose.

14.Governing Law. The validity, construction and effect of the Award Agreement shall be determined in accordance with the laws of the State of Delaware without giving effect to conflicts of laws principles.

15.Successors. The Award Agreement shall inure to the benefit of and be binding upon any successor to the Company and shall inure to the benefit of the Participant's legal representative. All obligations imposed upon the Participant and all rights granted to the Company under the Award Agreement shall be binding upon the Participant's heirs, executors, administrator and successors.

16.Electronic Communication. The Company may, in its sole discretion, decide to deliver any document related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company.








EX-10.5 5 exhibit105.htm EX-10.5 Exhibit 10.5


Exhibit 10.5
UNITED NATURAL FOODS, INC.
Terms and Conditions of Grant of Restricted Share Units to Director
2012 Equity Incentive Plan
These Terms and Conditions of Grant of Restricted Share Units to Director (these “Terms and Conditions”), shall apply to the grant by United Natural Foods, Inc., a Delaware corporation (the “Company”), to the Participant of an award of Restricted Share Units, pursuant to the Company's 2012 Equity Incentive Plan (as amended from time to time, the “Plan”). Except in the preceding sentence and where the context otherwise requires, the term “Company” shall include the Company and all present and future Subsidiaries. All capitalized terms that are used in these Terms and Conditions without definition shall have the meanings set forth in the Plan.
1.Definitions.

(a)
Award Agreement has the meaning set forth in Section 2 of these Terms and Conditions.

(b)
Communication of Award means the communication delivered by an authorized representative of the Company to the Participant identifying that an Award has been granted together with the details of the Award (including the identity of the Participant, the Grant Date, and the number of Restricted Share Units that were awarded to the Participant) set forth in the award summary portion of the online award acceptance process used in connection with electronic administration of Awards under the Plan.

(c)
Grant Date means the date on which the Restricted Share Units were granted as set forth in the Communication of Award.

(d)
Participant, solely for purposes of the Award Agreement, means the individual identified in the Communication of Award.

(e)
Restricted Share Unit means a right to receive any one Share of the Company's common stock, par value $0.01 per share, from the Company following the expiration of the Restriction Period.

(f)
Restriction Period with respect to the Restricted Share Units means the period commencing upon the Grant Date and ending on the dates provided under Section 3 of these Terms and Conditions.

2.Grant of Restricted Share Units. Effective on the Grant Date and subject to the provisions of the Plan and these Terms and Conditions, the Company has granted to the Participant the number of Restricted Share Units set forth in the Communication of Award. A Restricted Share Unit does not represent an equity interest in the Company and carries no voting or dividend rights. The information contained in the Communication of Award with respect to the Participant and the Restricted Share Units is incorporated herein by reference and together with these Terms and Conditions shall constitute an Award Agreement (the “Award Agreement”) for purposes of the Plan. By accepting the award of Restricted Share Units and acknowledging these Terms and Conditions, the Participant agrees to be bound by the provisions of the Plan and these Terms and Conditions with respect to the Restricted Share Units. Acceptance of the award of Restricted Share Units and acknowledgment of these Terms and Conditions may be made in a writing signed by the Participant and delivered to the Company or through the online award acceptance process used in connection with electronic administration of awards under the Plan.

3.Restriction Period.

(a)    The Restriction Period shall expire with respect to ________ percent (___%) of the Restricted Share Units on the Grant Date and with respect to an additional ________ percent (___%) of such Restricted Share Units on each succeeding anniversary of the Grant Date so as to be expired with regard to all Restricted Share Units on the ________ anniversary of the Grant Date, conditioned on each such date on the Participant maintaining continuous status as a member of the Board of Directors of the Company since the Grant Date (or if later, the date on which the Participant first became a member of the Board of Directors). Notwithstanding the foregoing, the Restriction Period shall expire with respect to all Restricted Share Units upon the death or Disability of the Participant.





(b)    The Restriction Period shall be deemed to expire for all Restricted Share Units if, within twelve months after the Company obtains actual knowledge that a Change in Control has occurred, the Participant ceases to be a member of the Board of Directors for any reason.

(c)    If the Participant ceases to be a member of the Board of Directors under circumstances not described in Sections 3(a) or 3(b), all Restricted Share Units as to which the Restriction Period has not expired shall be canceled immediately, and shall not be payable, except to the extent the Board of Directors of the Company decides otherwise.

4.Payment. No later than 2½ months after the end of the calendar year in which the Restriction Period expires with respect to Restricted Share Units, the Company shall issue to the Participant (or the Participant's assignee or beneficiary if permitted by the Plan or the Board of Directors of the Company) one Share for each Restricted Share Unit for which the Restriction Period expired.

5.Rights as a Stockholder. The Participant shall have no rights as a stockholder with respect to any Shares which may be issued upon expiration of the Restriction Period (including, without limitation, voting rights and any rights to receive dividends or non-cash distributions with respect to such Shares) unless and until the Restriction Period shall have expired. No adjustment shall be made for dividends or other rights for which the record date is prior to the date the Restriction Period shall have expired.

6.No Guarantee of Continued Service. Nothing in the Award Agreement or in the Plan shall confer upon the Participant any right to continue to serve as a member of the Board of Directors of the Company or the right to be employed by the Company, or shall interfere with or restrict in any way the rights of the Company.

7.Amendment. Subject to the restrictions contained in the Plan, the Board of Directors of the Company may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel or terminate, the Award Agreement and the Restricted Share Units, prospectively or retroactively in time (and in accordance with Section 409A of the Code with regard to awards subject thereto); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant or any holder or beneficiary of the Restricted Share Units shall not to that extent be effective without the consent of the Participant, holder or beneficiary. The Board of Directors of the Company is authorized to make equitable and proportionate adjustments in the terms and conditions of, and the criteria included in, the Award Agreement and the Restricted Share Units as set forth in the Plan.

8.Determinations by the Board of Directors. Except as otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or the Award Agreement shall be within the sole discretion of the Board of Directors of the Company, may be made at any time and shall be final, conclusive, and binding upon all Persons.

9.Provisions of the Plan. The Participant hereby acknowledges receipt of a copy of the Plan with the Award Agreement and agrees to be bound by all the terms and provisions of the Plan. The Award Agreement is governed by the terms of the Plan, and in the case of any inconsistency between the Award Agreement and the terms of the Plan, the terms of the Plan shall govern.

10.Nontransferability of Restricted Share Units. Except as otherwise provided in the Plan, the Restricted Share Units and this Award Agreement shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Share Units otherwise than as permitted by the Plan and this Award Agreement shall, at the election of the Company, be null and void. Transfer of the Restricted Share Units for value is not permitted under the Plan or this Award Agreement.

11.Notices. Any notice required or permitted to be given to the Participant under the Award 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 the Award 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.

12.Waiver. The waiver by the Company of any provision of the Award 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 the Award Agreement at any subsequent time or for any other purpose.

13.Governing Law. The validity, construction and effect of the Award Agreement shall be determined in accordance with the laws of the State of Delaware without giving effect to conflicts of laws principles.






14.Successors. The Award Agreement shall inure to the benefit of and be binding upon any successor to the Company and shall inure to the benefit of the Participant's legal representative. All obligations imposed upon the Participant and all rights granted to the Company under the Award Agreement shall be binding upon the Participant's heirs, executors, administrator and successors.

15.Electronic Communication. The Company may, in its sole discretion, decide to deliver any document related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company.


EX-10.6 6 exhibit106.htm EX-10.6 Exhibit 10.6


Exhibit 10.6
UNITED NATURAL FOODS, INC.
2012 EQUITY INCENTIVE PLAN
PERFORMANCE-BASED VESTING RESTRICTED SHARE UNIT AWARD AGREEMENT
This Performance-Based Vesting Restricted Share Unit Award Agreement (this “Agreement”) effective as of __________ ___, 20__, between United Natural Foods, Inc. (the “Company”) and __________________ (the “Participant”), who is an employee of the Company, evidences a Performance Award denominated in Restricted Share Units to the Participant under the United Natural Foods, Inc. 2012 Equity Incentive Plan (as amended from time to time, the “Plan”). Except in the preceding sentence and where the context otherwise requires, the term “Company” shall include the Company and all present and future Subsidiaries. All capitalized terms that are used in this Agreement without definition shall have the meanings set forth in the Plan.
1.Definitions.

(a)
Participant, solely for purposes of this Agreement, means the employee designated above.

(b)
Performance Criteria means the performance targets related to one or more performance goals specified in Section 4 of this Agreement.

(c)
Performance Period means the period beginning on _______ __, _____ and ending on ______ __, ____.

(d)
Restricted Share Unit means a right to receive a payment in the form of any one Share of the Company's common stock, par value $0.01 per share, or in the form of cash equal to the Fair Market Value of a Share following the successful attainment of the Performance Criteria to the satisfaction of the Committee.

2.Grant of Restricted Share Units. In consideration of services rendered and agreed to be rendered, the Company hereby grants to the Participant, subject to the terms and conditions set forth in this Agreement and in the Plan, ________ Restricted Share Units (subject to adjustment under Section 4.2 of the Plan)[, provided that, to the extent that the Participant vests in greater than one hundred percent (100%) of the Restricted Share Units (as provided in Section 4 of this Agreement), additional Restricted Share Units will be paid to the Participant. For purposes of clarity and the avoidance of doubt, the actual number of Restricted Share Units earned shall be equal to __________ times the applicable percentage set forth on Exhibit A, which may result in a higher or lower number of Restricted Share Units than the ________ targeted Restricted Share Units. The maximum number of Restricted Share Units that may be earned is subject to the limitation in Section 11.3 of the Plan.]

3.Vesting.

(a) To the extent that the Performance Criteria under Section 4 of this Agreement have been satisfied as of the last day of the Performance Period, the Participant shall vest in the number of Restricted Share Units awarded under this Agreement, as calculated in accordance with Section 4, and the Participant's rights to such vested Restricted Share Units shall become nonforfeitable as of the last day of the Performance Period, subject to Section 3(d) below. [Except as provided in Section [3(b) or (c)] below, to the extent that such Performance Criteria have not been satisfied as of the last day of the Performance Period, any Restricted Share Units awarded under this Agreement that do not vest, as calculated in accordance with Section 4, shall be canceled immediately and shall not be payable to the Participant.] Prior to the payment of any Restricted Share Units, the Committee shall certify in writing (which may be set forth in the minutes of a meeting of the Committee) the extent to which the Performance Criteria and all other material terms of this Agreement have been met.

(b) [In the event the Participant dies or terminates employment on account of a Disability before the end of the Performance Period, the Participant shall vest in the ________ Restricted Share Units granted under Section 2 of this Agreement [(and, for the avoidance of doubt, no additional Restricted Share Units in which the Participant may have been entitled to vest in accordance with the Performance Criteria)] and the Participant's rights to such vested Restricted Share Units shall become nonforfeitable as of the date of death or termination of employment on account of a Disability.]






(c) [In the event the Participant's employment with or service to the Company or any of its Affiliates is terminated for any reason within twelve months after the Company obtains actual knowledge that a Change in Control has occurred, and before the Restricted Share Units have become vested under Section 3(a) or (b), the Participant shall vest in the _______ Restricted Share Units granted under Section 2 of this Agreement [(and, for the avoidance of doubt, no additional Restricted Share Units in which the Participant may have been entitled to vest in accordance with the Performance Criteria)] and the Participant's rights to such vested Restricted Share Units shall become nonforfeitable as of the date on which the Participant's employment with or service to the Company is terminated.]

(d) [Except as provided in Section [3(b) or (c)] above], if the Participant's employment with the Company terminates for any reason prior to the expiration of the Performance Period, all then-unvested Restricted Share Units shall be canceled immediately and shall not be payable to the Participant.]

4.Performance Criteria. [The Performance Criteria are set forth in Exhibit A to this Agreement.]

5.Payment. The Company shall issue to the Participant one Share, or at the Committee's discretion shall pay to the Participant in cash the Fair Market Value of one Share, for each Restricted Share Unit which has become vested with respect to the Performance Period pursuant to Section 3 of this Agreement. It is the intent of the Committee, as of the date of grant, to settle the Restricted Share Units by delivery of Shares. Such payment, whether in Shares or cash, shall be made to the Participant (or the Participant's assignee or beneficiary if permitted by the Plan or the Committee) no later than March 15th of the calendar year next following the calendar year in which the Performance Period ends and may, in the case of a payment in Shares, be made as a book-entry confirmation or through the issuance of a certificate evidencing such Shares.

6.Rights as a Stockholder. The Participant shall have no rights as a stockholder with respect to any Shares which may be issued upon the vesting of the Restricted Share Units (including, without limitation, voting rights and any rights to receive dividends or non-cash distributions with respect to such Shares) unless and until the Shares have been issued to Participant. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such Shares are issued.

7.Withholding. The Company's obligation to make payment of vested Restricted Share Units shall be subject to the Participant's satisfaction of any applicable federal, state, and foreign withholding obligations or withholding taxes (“Withholding Taxes”), including any employer minimum statutory withholding, and the Participant shall pay the amount of any such Withholding Taxes to the Company as set forth in this Section 7. The Participant may satisfy his or her obligation to pay the Withholding Taxes by (i) making a cash payment to the Company in an amount equal to the Withholding Taxes; (ii) having the Company withhold Shares otherwise deliverable to the Participant pursuant to settlement of vested Restricted Share Units; or (iii) delivering to the Company shares of Common Stock already owned by the Participant; provided that in the case of (ii) or (iii) the amount of such Shares withheld or shares of Common Stock delivered shall not exceed the amount necessary to satisfy the Withholding Taxes. The Participant acknowledges and agrees that the Company has the right to deduct from compensation or other amounts owing to the Participant an amount not to exceed the Withholding Taxes.

8.No Guarantee of Employment. Nothing in this Agreement or in the Plan shall confer upon the Participant any right to continue in the employ of the Company, or shall interfere with or restrict in any way the rights of the Company, which are hereby expressly reserved, to discharge the Participant at any time for any reason whatsoever, with or without Cause.

9.Amendment. Subject to the restrictions contained in the Plan, the Committee may waive any conditions or rights under, amend any terms of or alter, suspend, discontinue, cancel or terminate, this Agreement and the Restricted Share Units, prospectively or retroactively in time (and in accordance with Section 409A of the Code with regard to awards subject thereto); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant or any holder or beneficiary of the Restricted Share