EXHIBIT 10.27
SUPERVALU INC.
1993 STOCK PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (this "Agreement"), dated as
of October 20, 1997, is entered into between SUPERVALU INC., a Delaware
corporation (the "Company"), and Jeffrey Noddle, a key employee of the Company
(the "Participant").
The Company, pursuant to its 1993 Stock Plan (the "Plan"), desires to
carry out the purpose of the Plan by awarding to the Participant Restricted
Stock Units, representing the right to receive shares of Common Stock, par value
$1.00 per share, of the Company ("Common Stock"), subject to the terms and
conditions contained in this Agreement and in the Plan. Terms used in this
Agreement which are defined in the Plan shall have the respective meanings
ascribed to such terms in the Plan, unless otherwise defined herein.
Accordingly, in consideration of the premises and the agreements
contained herein, the parties hereto hereby agree as follows:
1. Grant of Restricted Stock Units
The Company, effective as of the date of this Agreement, hereby grants
to the Participant 30,000 Restricted Stock Units, each Restricted Stock Unit
representing the right to receive one share of Common Stock on such date as set
forth herein, subject to the terms and conditions contained herein (the
"Restricted Stock Units").
2. Rights of the Participant with Respect to Restricted Stock Units
The rights of the Participant with respect to the Restricted Stock Units
shall remain forfeitable at all times prior to the date on which such rights
become vested in accordance with Section 3 hereof. The Participant shall not be
entitled to any rights of a stockholder of the Company's Common Stock solely by
reason of this award of Restricted Stock Units. Neither the Participant nor the
Participant's legal representatives shall have any of the rights and privileges
of a stockholder of the Company with respect to shares of Common Stock issuable
in payment of the Restricted Stock Units unless and until certificates for such
shares shall have been issued pursuant to Section 4 hereof.
3. Vesting; Forfeiture
(a) Subject to the terms and conditions of this Agreement, the
Restricted Stock Units shall vest in installments on the dates and in the
amounts shown below if the Participant remains continuously employed by the
Company or a subsidiary of the Company until such date.
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Percentage of
Date Restricted Stock Units Vested
Participant's 56th Birthday 71%
Participant's 57th Birthday 86%
Participant's 58th Birthday 100%
(b) Notwithstanding the vesting provisions contained in Section 3(a)
above, but subject to the other terms and conditions contained herein, upon the
date of the consummation of a "Change of Control" as defined in the Change of
Control Severance Agreement, dated April 10, 1990, or any successor agreement
thereto, between the Company and the Participant (the "Severance Agreement"),
prior to any termination of the Participant's employment with the Company or a
subsidiary of the Company, all of the Restricted Stock Units granted to the
Participant pursuant to this Agreement shall vest immediately.
(c) Upon the Participant's termination of employment with the
Company or a subsidiary of the Company, any Restricted Stock Units that have not
vested pursuant to the vesting provisions set forth in either Section 3(a) or
3(b) above shall be forfeited and all associated rights shall lapse without
value.
(d) Subject to the terms and conditions of this Agreement, if the
Participant dies before reaching age sixty (60), the Participant's legal
representatives, beneficiaries or heirs, as the case may be, shall be entitled
to the Restricted Stock Units that have vested pursuant to Section 3(a) or 3(b)
above prior to the date of such death, but any Restricted Stock Units that have
not so vested by such date shall be forfeited and all associated rights shall
lapse without value.
4. Payment of Restricted Stock Units; Issuance of Shares
(a) If all or a portion of the Restricted Stock Units vest pursuant
to Section 3(a) above, the Company shall make payment to the Participant by
issuing one share of the Company's Common Stock for each Restricted Stock Unit
that has vested pursuant to Section 3(a) above on the later of the following
dates (the "Payment Date"):
(i) the date the Participant reaches age 60; and
(ii) the first anniversary of the date of the Participant's
termination of employment with the Company or a subsidiary of the
Company or the 30th day following the date of the Participant's death,
if earlier.
Promptly following the Payment Date, the Company shall cause to be issued one or
more stock certificates, registered in the name of the Participant, evidencing
the shares issued in payment of the Restricted Stock Units.
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(b) If the Restricted Stock Units vest pursuant to Section 3(b)
above, the Company shall make payment to the Participant by issuing one share of
the Company's Common Stock for each Restricted Stock Unit granted to the
Participant pursuant to this Agreement as of the date of the consummation of a
"Change of Control" as defined in the Severance Agreement (the "Change of
Control Payment Date"). Promptly following the Change of Control Payment Date,
the Company shall cause to be issued one or more stock certificates, registered
in the name of the Participant, evidencing the shares issued in payment of the
Restricted Stock Units.
(c) If the Participant should die before reaching age sixty (60) and
Restricted Stock Units shall have vested as of the date of such death as
provided in Section 3(d) above, then, notwithstanding the payment provisions of
Section 4(a) above, the Company promptly shall cause to be issued one or more
stock certificates, registered in the name of the Participant's legal
representatives, beneficiaries or heirs, as the case may be, evidencing the
shares issued in payment of the vested Restricted Stock Units.
(d) For purposes of this Agreement, the date of the Participant's
termination of employment shall be the date on which the Participant actually or
effectively ceases to be an employee of the Company or a subsidiary of the
Company, in accordance with the Company's personnel policies. The Participant
shall not be deemed to have terminated employment as a result of short-term
illness, vacation or other authorized leave of absence, provided the Participant
continues to be an employee and returns to his duties as an employee following
the completion of such illness, vacation or other absence.
(e) The Participant shall also not be deemed to have terminated
employment as a result of a disability which renders the Participant incapable
of returning to work. In the event of such a disability, the Restricted Stock
Units shall continue to vest as and when provided in Section 3 and shall be paid
as and when provided in Sections 4(a)-(c) above as if the Participant had
remained employed by the Company. For purposes of this Section 4(e),
"disability" is defined as eligibility for long-term disability payments under
the applicable Long-Term Disability Plan of the Company.
5. Adjustments
In the event of any stock dividend or other distribution,
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of shares
of Common Stock or other securities of the Company, issuance of warrants or
other rights to purchase shares of Common Stock or other securities of the
Company, or other similar corporate transaction or event, the Committee may, as
it determines to be appropriate, adjust the number and/or type of shares subject
to the Restricted Stock Units.
6. Covenant Not to Compete and Protection of Confidential
Information
(a) The Participant stipulates and represents that the following
facts are true: the Participant is an Executive Vice President of the Company
and led one of the Company's
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primary business units; the Participant participates as a member of the
Company's senior executive staff; by virtue of his position on that senior
executive staff, the Participant has had access to highly sensitive and
confidential information regarding, without limitation, the Company's margins on
products in all areas of its business, financial data and strategic plans for
all areas of the Company's business, and the Participant has a business
relationship with most if not all of the Company's major customers and it is an
important part of the Participant's responsibilities to cultivate and further
those relationships. The Participant acknowledges that this information was
gained by virtue of his employment at the Company, is confidential and--secret
information from which -the Company draws economic value, actual or potential,
from its not being generally known to persons outside the Company, is
information which Company has taken reasonable measures to preserve its
confidentiality, and could not easily be duplicated by others, and is
information which the Company required considerable time and effort to develop.
The Participant further acknowledges that the misuse, misappropriation or
disclosure of this information could cause irreparable harm to the Company, both
during and after the term of the Participant's employment.
(b) The Participant agrees that he will not, within the Continental
United States, directly or indirectly, own, manage, operate, join, control, be
employed by or participate in ownership, management, operation or control of,
provide consulting services to, or be connected in any manner with any business
that competes with the Company or any of its food retailing or food wholesaling
affiliates; provided, however, that this subparagraph (b) shall not apply after
a "Change of Control" as defined in the Severance Agreement. The Participant
shall retain the right to seek the written approval of the Company's Chief
Executive Officer to waive the requirements of this Paragraph 6(b) with respect
to any particular activity in which the Participant seeks to engage, which
approval shall be granted or denied based upon the Company's reasonable desire
to protect its business interest, but in its sole discretion.
(c) The Participant agrees that during his employment and at all
times thereafter the Participant will hold in a fiduciary capacity for the
benefit of the Company and will not divulge or disclose, directly or indirectly,
to any other person, firm or business, all confidential or proprietary
information, knowledge and data (including, but not limited to, processes,
programs, trade "know how," ideas, details of contracts, marketing plans,
strategies, business development techniques, business acquisition plans,
personnel plans, pricing practices and business methods and practices) relating
in any way to the business of the Company, its affiliates, customers, suppliers,
joint ventures, licensors, licensees, distributors or other persons and entities
with whom the Company does business ("Confidential Data"), except upon the
Company's written consent or as required by the Participant's duties with the
Company, for so long as such Confidential Data remains confidential and all such
Confidential Data, together with all copies thereof and notes and other
references thereto, shall remain the sole property of the Company.
(d) The Participant agrees that the Participant will not either
directly, or in concert with others, recruit, solicit or induce, or attempt to
induce, any employee or employees of the Company or any of its subsidiaries to
terminate their employment with the Company
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and/or become associated with another employer. The Participant further agrees
that the Participant will not either directly, or in concert with others,
solicit, divert or take away or attempt to divert or take away, the business or
patronage of any of the customers or accounts which were contacted, solicited or
served by the Company while the Participant was employed with the Company.
(e) The Participant agrees not to make disparaging statements about
the Company, its officers, directors, agents, employees, products or services
which are false or misleading.
(f) The Participant agrees that except as otherwise provided in
Section 6(c) above, the foregoing covenants contained in this Section 6 shall
continue in effect until the later of age sixty (60) or one (1) year after the
Participant's termination (for any reason whatsoever) of employment with the
Company. The Participant acknowledges that damages which may arise from a breach
of any of the foregoing covenants contained in this Section 6 are impossible to
ascertain or prove with certainty. If any covenant in this Section 6 is
breached, all Restricted Stock Units shall be forfeited, and all associated
rights shall lapse and be terminated, and in addition to other legal remedies
which may be available, the Company shall be entitled to an immediate injunction
from a court of competent jurisdiction to end such breach, without further proof
of damage.
(g) To the extent any provision of this Section of the Agreement
shall be determined to be invalid or unenforceable, such provision shall be
deleted from this Agreement, and the validity and enforceability of the
remainder of such provision and of this Agreement shall be unaffected. In
furtherance of and not in limitation of the foregoing, the Participant expressly
agrees that should the duration of or geographical extent of, or business
activities covered by, any provision of this Agreement be in excess of that
which is valid or enforceable under applicable law, then such provision shall be
construed to cover only that duration, extent or activities that may validly or
enforceably be covered. The Participant acknowledges the uncertainty of the law
in this respect and expressly stipulates that this Agreement shall be construed
in a manner that renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under
(h) Nothing in this Section 6 shall amend, limit, terminate or
replace any other confidentiality or non-compete obligation that the Participant
may have in any other agreement with the Company. 7.
7. Transferability
The Restricted Stock Units shall not be transferable otherwise than by
will or the laws of descent and distribution. More particularly (but without
limiting the generality of the foregoing), the Restricted Stock Units may not be
assigned, transferred (except as aforesaid), pledged or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Restricted Stock
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Units contrary to the provisions hereof and the levy of an execution, attachment
or similar process upon the Restricted Stock Units shall be void.
8. Taxes
(a) The Participant acknowledges that he will consult with his
personal tax advisor regarding the income tax consequences of the vesting and
payment of the Restricted Stock Units or any other matters related to this
Agreement. In order to comply with all applicable federal or state income tax
laws or regulations, the Company may take such action as it deems appropriate to
ensure that all applicable federal or state payroll, withholding, income or
other taxes, which are the sole and absolute responsibility of a Participant,
are withheld or collected from the Participant.
(b) The Participant may elect to satisfy any federal and state
income tax withholding obligations arising from the payment of the Restricted
Stock Units pursuant to Section 4 hereof by (i) having the Company withhold a
portion of the shares of Common Stock otherwise to be delivered in payment of
the Restricted Stock Units having a Fair Market Value (as defined in the Plan)
equal to the amount of federal and state income taxes required to be withheld in
connection with such payment or (ii) delivering to the Company shares of Common
Stock other than the shares issuable in connection with the payment of the
Restricted Stock Units having a Fair Market Value equal to such taxes. The
Participant may elect to satisfy any federal and state income tax withholding
obligations arising prior to the payment of the Restricted Stock Units pursuant
to Section 4 hereof by delivering to the Company shares of Common Stock other
than the shares issuable in payment of the Restricted Stock Units having a Fair
Market Value equal to such taxes. Any election must be made on or before the
date that the amount of taxes to be withheld is determined.
9. No Right to Employment
Nothing in this Agreement or in the Plan shall be construed as giving
the Participant any right to be retained in the employ of the Company or any
subsidiary of the Company, nor shall this Agreement or the Plan affect in any
way the right of the Company or a subsidiary of the Company to terminate the
Participant's employment at any time, with or without cause.
10. General Provisions
(a) The Restricted Stock Units are granted pursuant to the Plan and
are subject to the terms and conditions contained therein. A copy of the Plan is
available to the Participant upon request.
(b) This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and shall supersede any prior
expressions of intent or understanding with respect to the Restricted Stock
Units.
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(c) This Agreement is subject to all applicable laws and the
applicable rules and regulations of any governmental agencies or national
securities exchanges. The Company shall not be required to issue or deliver any
shares of Common Stock in payment of the Restricted Stock Units until the
requirements of any federal or state securities laws, rules or regulations or
other laws or rules (including the rules of the New York Stock Exchange) as may
be determined by the Company to be applicable are satisfied.
(d) The validity, construction and effect of this Agreement, and any
rules and regulations relating to this Agreement, shall be determined in
accordance with the laws of the State of Minnesota (other than its law
respecting choice of law), except to the extent the general corporation law of
the State of Delaware would be applicable.
(e) If any provision of this Agreement is or becomes or is deemed to
be invalid, illegal or unenforceable in any applicable jurisdiction, such
provision shall be construed or deemed amended to conform to applicable laws, or
if it cannot be so construed or deemed amended without, in the determination of
the Committee, materially altering the purpose or intent of this Agreement, such
provision shall be stricken and the remainder of this Agreement shall remain in
full force and effect.
(f) The headings in this Agreement are for convenience of reference
only and shall not be deemed in any way to be material or relevant to the
construction or interpretation of this Agreement or any provision hereof.
IN WITNESS WHEREOF, the Company and the Participant have signed this
Agreement as of the date first above written.
SUPERVALU INC.
By: /s/ Michael W. Wright
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Its: Chairman and CEO
PARTICIPANT
/s/ Jeffrey Noddle
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Jeffrey Noddle
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