8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):  June 30, 2017

WHOLE FOODS MARKET, INC.

(Exact name of registrant as specified in its charter)

Texas	0-19797	74-1989366
(State of	(Commission File	(IRS Employer
incorporation)	Number)	Identification Number)

550 Bowie Street

Austin, Texas 78703

(Address of principal executive offices)

(512) 477-4455

(Registrant’s telephone number, including area code)

Check the appropriate box if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company               ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.¨

Item 5.02              Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On June 30, 2017, Whole Foods Market, Inc. (the “Company”) adopted an amendment (the “Plan Amendment”) to the Whole Foods Executive Retention Plan and Non-Compete Arrangement (the “Plan”), which provides that, if a covered executive under the Plan becomes subject to the excise tax under Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the payments and benefits payable to such covered executive will be reduced such that the excise tax does not apply, unless the covered executive would be better off on an after- tax basis receiving all such payments and benefits.

On July 5, 2017, the Company entered into a letter agreement (the “Manbeck Letter Agreement”) with Keith Manbeck, the Company’s Executive Vice President and Chief Financial Officer, which agreement provides that, if Mr. Manbeck becomes subject to the excise tax under Sections 280G and 4999 of the Code, the payments and benefits payable to him under his change of control offer letter with the Company will be reduced such that the excise tax does not apply, unless he would be better off on an after- tax basis receiving all such payments and benefits.

The foregoing description of the Plan Amendment and Manbeck Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Plan Amendment and Manbeck Letter Agreement, respectively, which are attached hereto as Exhibits 10.1 and 10.2, respectively, and incorporated herein by reference.

Item 9.01              Financial Statements and Exhibits.

(d)           Exhibits

10.1        Amendment to the Whole Foods Executive Retention Plan and Non-Compete Arrangement.

10.2Letter Agreement, dated as of July 5, 2017, by and between Whole Foods Market, Inc. and Keith Manbeck.

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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 hereunto duly authorized.

		WHOLE FOODS MARKET, INC.
Date: July 5, 2017	By:	/s/ Heather Stern
		Heather Stern
		General Counsel and Global Vice President of Legal Affairs

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EX-10.1

Exhibit 10.1

AMENDMENT TO THE
WHOLE FOODS EXECUTIVE RETENTION PLAN AND
NON-COMPETE ARRANGEMENT

WHEREAS, Whole Foods Market, Inc., a Texas corporation (the “Company”), has adopted the Whole Foods Executive Retention Plan and Non-Compete Arrangement (the “Plan”) for the benefit of certain employees of the Company and its subsidiaries;

WHEREAS, the Company has entered into an Agreement and Plan of Merger, dated as of June 16, 2017 (the “Merger Agreement”), with Amazon.com, Inc., a Delaware corporation (“Parent”), and Walnut Merger Sub, Inc., a Texas corporation and wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which, at the Effective Time (as defined in the Merger Agreement), Merger Sub shall merge with and into the Company, with the Company surviving as a wholly owned subsidiary of Parent (the “Merger”);

WHEREAS, in connection with the Merger, the Board of Directors of the Company desires to amend the Plan as set forth herein; and

WHEREAS, Section 6.1(b) of the Company Disclosure Schedule (as defined in the Merger Agreement) permits the adoption of this amendment to the Plan.

NOW, THEREFORE, pursuant to Section 6.2 of the Plan, the Plan is hereby amended as follows:

1.Section 2.1 of the Plan is hereby amended to add the following definitions in appropriate alphabetical order and, consequently, renumbering all section references in Section 2.1 of the Plan:

“Accounting Firm” means a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to a Change of Control for purposes of making the applicable determinations hereunder, which firm shall not, without the Covered Executive’s consent, be a firm serving as accountant or auditor for the individual, entity, or group effecting the Change of Control.

“Net After-Tax Receipt” means the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Covered Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws that applied to the Covered Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Covered Executive in the relevant tax year(s).

“Parachute Value” of a Payment means the present value as of the date of the “change in ownership or control” for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the excise tax under Section 4999 of the Code will apply to such Payment.

“Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Covered Executive, whether paid or payable pursuant to the Plan or otherwise.

“Plan Payments” has the meaning set forth in Section 4.11(a).

“Safe Harbor Amount” means 2.99 times the Covered Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code.

2.A new Section 4.11 is added to the Plan as follows:

4.11Certain Reduction of Payments.

(a)Reduced Payments.  Anything in the Plan to the contrary notwithstanding, in the event the Accounting Firm shall determine that receipt of all Payments would subject a Covered Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to the Plan (the “Plan Payments”) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount.  The Plan Payments shall be so reduced only if the Accounting Firm determines that the Covered Executive would have a greater Net After-Tax Receipt of aggregate Payments if the Plan Payments were so reduced.  If the Accounting Firm determines that the Covered Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Plan Payments were so reduced, the Covered Executive shall receive all Plan Payments to which the Covered Executive is entitled hereunder.

(b)Determination of Reduction.  If the Accounting Firm determines that aggregate Plan Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give the Covered Executive notice to that effect and a copy of the detailed calculation thereof.  In the case of a reduction in the Plan Payments, the Plan Payments will be reduced in the following

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order:  (i) payments that are payable in cash that are valued at full value under Treasury Regulation § 1.280G-1, Q&A-24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity valued at full value under Treasury Regulation § 1.280G-1, Q&A-24(a), with the highest values reduced first (as such values are determined under Treasury Regulation § 1.280G-1, Q&A-24) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation § 1.280G-1, Q&A-24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation § 1.280G-1, Q&A-24, with the highest values reduced first (as such values are determined under Treasury Regulation § 1.280G-1, Q&A-24) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) will be next reduced on a pro rata basis.  Any reductions made pursuant to each of clauses (i)—(v) above will be made in the following manner:  first, a pro rata reduction of cash payments and payments and benefits due in respect of any equity not subject to Section 409A of the Code, and second, a pro rata reduction of cash payments and payments and benefits due in respect of any equity subject to Section 409A as deferred compensation.  All determinations made by the Accounting Firm under this Section 4.11 shall be binding upon the Company and the Covered Executive, and shall be made as soon as reasonably practicable and in no event later than 15 business days following the Date of Termination.  For purposes of reducing the Plan Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the Plan (and no other Payments) shall be reduced.  All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Company.

(c)Reasonable Compensation.  The Company and the Covered Executive shall cooperate in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by the Covered Executive (including, without limitation, the Covered Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on, or after the date of a change in ownership or control of the Company (within the meaning of Treasury Regulation § 1.280G-1, Q&A-2(b))), such that payments in respect of such services may be considered reasonable compensation within the meaning of Treasury Regulation § 1.280G-1, Q&A-9 and Q&A-40 to Q&A-44 and/or exempt from the definition of the term “parachute payment” within the meaning of Treasury Regulation § 1.280G-1, Q&A-2(a) in accordance with Treasury Regulation § 1.280G-1, Q&A-5(a).

In all other respects, the Plan shall remain in full force and effect in accordance with its terms.

Adopted by the Board of Directors of the Company on June 30, 2017.

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EX-10.2

Exhibit 10.2

July 5, 2017

Keith Manbeck

c/o Whole Foods Market, Inc.

550 Bowie Street

Austin, Texas 78703

Re:  Section 280G of the Internal Revenue Code

Dear Keith:

Reference is made to the offer letter, dated May 2, 2017 (the “Offer Letter”), by and between Whole Foods Market, Inc. (the “Company”) and you; and the change of control letter agreement, dated as of June 14, 2017, by and between the Company and you (the “COC Letter”).

The Company and you hereby agree as follows:

Reduced Payments.  Anything in the Offer Letter or COC Letter to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject you to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to the COC Letter (the “Letter Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below).  The Letter Payments shall be so reduced only if the Accounting Firm determines that you would have a greater Net After-Tax Receipt of aggregate Payments if the Letter Payments were so reduced.  If the Accounting Firm determines that you would not have a greater Net After-Tax Receipt of aggregate Payments if the Letter Payments were so reduced, you shall receive all Letter Payments to which you are entitled thereunder.

Determination of Reduction.  If the Accounting Firm determines that aggregate Letter Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give you notice to that effect and a copy of the detailed calculation thereof.  In the case of a reduction in the Letter Payments, the Letter Payments will be reduced in the following order:  (i) payments that are payable in cash that are valued at full value under Treasury Regulation § 1.280G-1, Q&A-24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity valued at full value under Treasury Regulation § 1.280G-1, Q&A-24(a), with the highest values reduced first (as such values are determined under Treasury Regulation § 1.280G-1, Q&A-24) will next be reduced; (iii) payments that are payable in cash

that are valued at less than full value under Treasury Regulation § 1.280G-1, Q&A-24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation § 1.280G-1, Q&A-24, with the highest values reduced first (as such values are determined under Treasury Regulation § 1.280G-1, Q&A-24) will next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) will be next reduced on a pro rata basis.  Any reductions made pursuant to each of clauses (i)—(v) above will be made in the following manner:  first, a pro rata reduction of cash payments and payments and benefits due in respect of any equity not subject to Section 409A of the Code, and second, a pro rata reduction of cash payments and payments and benefits due in respect of any equity subject to Section 409A as deferred compensation.  All determinations made by the Accounting Firm under this letter agreement shall be binding upon the Company and you, and shall be made as soon as reasonably practicable and in no event later than 15 business days following the date of your termination of employment.  For purposes of reducing the Letter Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under the COC Letter (and no other Payments) shall be reduced.  All reasonable fees and expenses of the Accounting Firm shall be borne solely by the Company.

Reasonable Compensation.  The Company and you shall cooperate in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by you (including, without limitation, you agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on, or after the date of a change in ownership or control of the Company (within the meaning of Treasury Regulation § 1.280G-1, Q&A-2(b))), such that payments in respect of such services may be considered reasonable compensation within the meaning of Treasury Regulation § 1.280G-1, Q&A-9 and Q&A-40 to Q&A-44 and/or exempt from the definition of the term “parachute payment” within the meaning of Treasury Regulation, § 1.280G-1, Q&A-2(a) in accordance with Treasury Regulation, § 1.280G-1, Q&A-5(a).

Certain Definitions.  For purposes of this letter agreement, the following definitions have the meanings set forth below:

“Accounting Firm” means a nationally recognized certified public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by the Company prior to a Change of Control (as defined in the Whole Foods Executive Retention Plan and Non-Compete Arrangement as in effect on the date hereof) for purposes of making the applicable determinations hereunder, which firm shall not, without your consent, be a firm serving as accountant or auditor for the individual, entity, or group effecting the Change of Control.

“Net After-Tax Receipt” means the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on you with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate

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under Section 1 of the Code and under state and local laws that applied to your taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determines to be likely to apply to you in the relevant tax year(s).

“Parachute Value” of a Payment means the present value as of the date of the “change in ownership or control” for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the excise tax under Section 4999 of the Code will apply to such Payment.

“Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for your benefit, whether paid or payable pursuant to the Offer Letter, COC Letter, or otherwise.

“Safe Harbor Amount” means 2.99 times your “base amount,” within the meaning of Section 280G(b)(3) of the Code.

Miscellaneous.  This letter agreement may not be amended or modified except by an agreement in writing signed by you and the Company.  This letter agreement shall be binding upon any successor of the Company or its businesses (whether direct or indirect, by purchase, merger, consolidation, or otherwise), in the same manner and to the same extent that the Company would be obligated under this letter agreement if no succession had taken place.  The term “Company,” as used in this letter, shall mean the Company as defined above and any successor or assignee to the business or assets that by reason hereof becomes bound by this letter.  This letter shall be governed by, and construed in accordance with, the laws of the State of Texas without reference to conflict of law rules.

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If you have any questions, please feel free to contact me.

[Signature Page Follows]

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Please confirm your agreement to the foregoing by executing this letter agreement as indicated below.

Sincerely,
WHOLE FOODS MARKET, INC.
By:	/s/ Glenda Flanagan
	Name: Glenda Flanagan
	Title: Executive Vice President and Senior Advisor

Acknowledged and Agreed:

/s/ Keith Manbeck

Keith Manbeck

[Signature Page to Section 280G Letter Agreement]

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