Exhibit 10.20
PERFORMANCE UNIT AWARD
AGREEMENT
THIS PERFORMANCE UNIT AWARD
AGREEMENT is entered into and effective as of this 1st day of
October, 2001 (the “Date of Grant”), by and between
Nash-Finch Company (the “Company”) and Ron Marshall
(the “Grantee”).
A. The Company has adopted the
Nash-Finch Company 2000 Stock Incentive Plan (the
“Plan”) authorizing the Board of Directors of the
Company, or a committee as provided for in the Plan (the Board or
such a committee to be referred to as the “Committee”),
to grant performance unit awards to employees and non-employee
directors, consultants and independent contractors of the Company
and its Subsidiaries (as defined in the Plan).
B. The Company has amended the
Nash Finch Company Executive Incentive Bonus and Deferred
Compensation Plan (the “Deferred Compensation Plan”) to
permit a participant in the Deferred Compensation Plan who was
actively employed by the Company, or was on an approved leave of
absence, on September 30. 2001, to transfer all, but not part,
of the share equivalents contingently credited to such participant
pursuant to the Deferred Compensation Plan into Performance Units
(as defined in the Plan) granted under the Plan and payable in
shares of Common Stock (as defined in the Plan) upon the
achievement of certain employment or service goals by such
participant and upon the termination of such participant’s
employment or other service with the Company.
C. The Grantee, who was a
participant in the Deferred Compensation Plan and was actively
employed by the Company on September 30, 2001, has elected to
transfer all of the share equivalents contingently credited to him
pursuant to the Deferred Compensation Plan into Performance Units
granted under the Plan, and the Company desires to grant the
Grantee a Performance Unit award payable in shares of Common Stock
pursuant to this Agreement and the terms of the Plan and the
Deferred Compensation Plan.
Accordingly, the
parties agree as follows:
1.
Grant of Performance Unit Award .
The Company hereby
grants to the Grantee a performance unit award (the
“Award”) consisting of Fifteen Thousand Nine Hundred
Fourteen and 4764/ten thousands (15,914.4764) performance units
(the “Performance Units”), which Performance Units
shall be reflected in a book account maintained by the Company and
shall be settled pursuant to Section 2 in shares of the
Company’s common stock, par value $1.66 2/3 per share
(together with the Common Stock Purchase Rights attached thereto,
the “Common Stock”) to the extent provided for in this
Agreement and the Plan. Each reference to the Performance Units in
this Agreement will be deemed to include any additional Performance
Units granted to the Grantee pursuant to Section 4.1 and any
additional Performance Units granted to the Grantee or other
securities issued to the Grantee pursuant to Section 4.2, and
shall also include the Performance Shares (as defined in
Section 2) underlying such Performance Units.
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2.
Settlement of Performance Units and Distribution of Performance
Shares to Grantee .
Subject to the forfeiture
provisions in Section 3 below, as soon as administratively
practicable following termination of the Grantee’s
employment, the Company shall in full settlement of the Performance
Units, distribute to the Grantee one share of Common Stock for each
Performance Unit or fractional Performance Unit granted to the
Grantee (each, a “Performance Share”). Performance
Shares shall not be distributed to the Grantee until all cash
dividends declared and with a record date prior to Grantee’s
termination of employment have been paid to the Grantee in the form
of additional Performance Units pursuant to Section 4.1. If
the Grantee dies after termination of his employment but before all
of the Performance Shares have been distributed to the Grantee, all
remaining Performance Units shall be settled and the underlying
Performance Shares shall be delivered to the beneficiary designated
pursuant to Section 6.3.
3.
Forfeitures and Effect of Termination of Employment and Effect
of Breach of Non-Competition and Cooperation Agreement .
3.1.
Termination Due to Death or Disability or Termination by the
Company Without Cause . If the Grantee’s employment is
terminated at any time by reason of the Grantee’s death or
Disability (as such term is defined in the Plan) or is terminated
at any time by the Company without Cause (as defined in
Section 3.5 below), the Performance Units granted to the
Grantee shall be settled and the underlying Performance Shares
shall be distributed to the Grantee, without forfeiture, in the
manner described in Section 2.
3.2.
Termination For
Any Reason After the Grantee Has Attained Age 60
. If the
Grantee’s employment is terminated for any reason whatsoever
except for Cause (as defined in Section 3.5 below), after the
Grantee has attained age 60, the Performance Units granted to the
Grantee shall be settled and the underlying Performance Shares
shall be distributed to the Grantee, without forfeiture, in the
manner described in Section 2.
3.3.
Termination For
Any Reason Approved by the Committee . If the Grantee’s employment is
terminated for any reason whatsoever including for Cause (as
defined in Section 3.5 below) and the Committee has either
prior to or after the date of such termination specifically
approved of the reason for such termination for purposes of this
Section 3.3, the Performance Units granted to the Grantee
shall be settled and the underlying Performance Shares shall be
distributed to the Grantee in the manner and at the time or times
determined by the Committee.
3.4.
Termination For
Any Reason Prior to the Grantee’s Attaining Age 60
. Except as otherwise
provided in Section 3.1, 3.2 or 3.3 above, if the
Grantee’s employment is terminated for any reason whatsoever
except for Cause (as defined in Section 3.5) prior to the
Grantee’s attaining age 60, the Grantee shall forfeit 50% of
the Performance Units granted to the Grantee, and the remaining 50%
of the Performance Units shall be settled and the underlying
Performance Shares shall be distributed to the Grantee in the
manner described in Section 2.
3.5.
Termination For Cause Prior to the Grantee’s Attaining Age
65 . Notwithstanding Section 3.2 and except as otherwise
provided in Section 3.3 above, if the Grantee’s
employment is terminated for Cause (as defined below) at any time
prior to the Grantee’s attaining age 65, the Grantee shall
forfeit 100% of the Performance Units granted to the Grantee.
“Cause” means because of evidence of dishonesty or
mistrust in the Grantee’s employment or other service with
the Company or because of his involvement in a crime or misdemeanor
against the Company or any
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Subsidiary, or
any employee thereof, for which the Grantee is convicted or
which he has confessed in writing to the Company or to any law
enforcement agency.
3.6.
Non-Competition
and Cooperation Agreement and Effect of Breach
. The Grantee agrees
that after termination of employment, and if Performance Shares
shall have been distributed to him pursuant to Section 2 as a
result thereof, he will be available for consultation and will
refrain from actively participating or engaging in any business in
competition with the Company or any Subsidiary for a period of one
year following the date of termination of employment (the
“Non-Competition Period”). Notwithstanding Sections
3.1, 3.2, 3.3 and 3.4 above, if the Grantee, at any time prior to
his termination of employment, or during the Non-Competition
Period, without the prior written consent of the Committee,
actively participates or engages in any business in competition
with the Company or any Subsidiary or fails to hold himself
available for consultation, the Committee may in its sole
discretion require the Grantee to forfeit 100% of the Performance
Units granted to the Grantee, including any Performance Shares
previously distributed to the Grantee.
4.
Dividends and Other Distributions .
4.1.
Cash Dividends .
(a)
If during a calendar quarter that ends prior to the date of the
Grantee’s termination of employment, a record date for a cash
dividend declared by the Company’s Board of Directors occurs,
the Grantee will be granted additional Performance Units pursuant
to this Section 4.1(a). At the end of each calendar quarter in
which a record date for a cash dividend declared by the
Company’s Board of Directors occurs, the Grantee will be
granted that number of additional Performance Units equal to the
quotient of (x) the product of (i) the total cash dividends per
share on the Common Stock for which a record date occurs during
such quarter multiplied by (ii) the aggregate number of Performance
Units held by the Grantee as of the beginning of such quarter,
divided by (y) the Fair Market Value (as defined in the Plan) for
the Common Stock on the last day of such calendar quarter or, if
shares of the Common Stock were not then traded, on the most recent
prior date when such shares were traded. The number of Performance
Units so determined shall be computed to four decimal places. Any
additional Performance Units granted under this Section 4.1(a)
shall be settled and the u
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