Exhibit 10.21
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 Bruce A. Cross
(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 Six Thousand Six Hundred
Eighty-four and 1654/ten thousands (6,684.1654) 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
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any
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 underlying
Performance
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