Exhibit 10.8
FLEMING COMPANIES, INC.
PHASE III OF THE FLEMING COMPANIES, INC.
1990 STOCK INCENTIVE PLAN
WHEREAS, the Board of Directors of Fleming Companies,
Inc. (the "Company") has adopted the "Fleming Companies, Inc.
1990 Stock Incentive Plan" (herein the "Plan"), a copy of which
is attached hereto as Exhibit "A"; and
WHEREAS, the Compensation and Organization Committee
(the "Committee") of the Board of Directors of the Company has
been delegated the responsibility of implementing and adminis
tering the Plan and making Awards to Key Associates of the
Company under the Plan; and
WHEREAS, the Committee has created Phase III of the
Plan to provide for Restricted Stock Awards to certain Key
Associates of the Company.
NOW THEREFORE, BE IT RESOLVED, that the Committee does
hereby create, establish and adopt Phase III of the Plan as
herein described and declare and grant the following awards:
ARTICLE I (PHASE III)
Section 1. Definitions. The following terms as used
herein shall have the following meanings. All other capitalized
terms shall have the meaning ascribed to them in the Plan.
1.01 "Awards Agreement" means the agreement each
of the Participants shall execute as described in Section 2 of
Article II.
1.02 "Participants" means those Key Associates
set forth in Section 3 of this Article I.
1.03 "Phase III Performance Cycle" shall mean a
period of time commencing February 16, 1994, and ending on
February 15, 2004, unless all of the Restricted Stock awarded
under this Phase III shall have become Vested Stock on an earlier
date, in which event the Phase III Performance Cycle shall end on
such date.
1.04 "Restrictions" means as to the Restricted
Stock to be issued to each Participant under this Phase III those
restrictions set forth in Section 7.1 of the Plan.
1.05 "Vested Stock" means Restricted Stock as to
which all Restrictions have been removed in accordance with this
Article I.
Section 2. Objectives. The Committee has determined
the following objectives of Phase III of the Plan:
(i) To reward the creation of shareholder value;
(ii) To emphasize stock ownership by the Key
Associates; and
(iii) To provide strong incentive to the Key
Associates to increase the per share price of the Company's
common stock.
Section 3. Participants. The Participants of Phase
III of the Plan shall be those persons listed on Exhibit "B"
hereto (herein called the "Participant" or "Participants").
Section 4. Phase III Awards. Phase III Awards shall
be made in shares of Restricted Stock to the Participants as
provided in Article II hereof.
4.01 Voting Rights and Dividends. Each Par
ticipant shall have all of the voting rights attributable to the
shares of Restricted Stock issued to him. However, dividends
declared and paid by the Company with respect to the shares of
Restricted Stock (the "Accrued Dividends") shall not be paid to
the participant until such Restricted Stock becomes Vested Stock.
Such Accrued Dividends shall be held by the Company as a general
obligation and paid to the Participant at the time the underlying
Restricted Stock becomes Vested Stock. In accordance with Sec
tion 5.3(b) of the Plan, the right to vote such shares and to
receive the Accrued Dividends shall terminate with respect to
unvested shares of Restricted Stock of any Participants whose
Award has been forfeited as provided in the Plan.
4.02 Escrow. The Restricted Stock issued to each
Participant shall be escrowed with the Secretary of the Company
subject to the removal of the Restrictions placed thereon or
forfeiture pursuant to the terms of this Article I.
4.03 Restrictive Legend. The Restricted Stock
shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE RESTRICTED STOCK, HAVING BEEN ISSUED
PURSUANT TO THE 'FLEMING COMPANIES, INC. 1990
STOCK INCENTIVE PLAN' (THE 'PLAN'), ARE SUB
JECT TO THE TERMS AND PROVISIONS OF PHASE III
OF THE PLAN ADOPTED BY THE COMPENSATION AND
ORGANIZATION COMMITTEE OF THE BOARD OF DIREC
TORS ON FEBRUARY 16, 1994, AND BEAR THE RE
STRICTIONS ON ALIENATION SET FORTH IN SECTION
7.1 OF THE PLAN. COPIES OF THE PLAN AND
PHASE III OF THE PLAN MAY BE OBTAINED FROM
THE OFFICE OF THE SECRETARY OF THE COMPANY."
Violation of the foregoing restrictive legend shall result in
immediate forfeiture of all Restricted Stock.
Section 5. Performance Goals. In order for the
Participant to "earn" the Restricted Stock free and clear of the
Restrictions, the following Performance Goals shall have been
attained by the Company.
5.01 Performance Goals - Stock Price Appreciation.
During the Phase III Performance Cycle before any of the
Restricted Stock awarded to the Participants hereunder shall
become Vested Stock, the average of the last reported sales price
of the Common Stock as reported on the New York Stock Exchange
Composite Transactions report for any twenty (20) consecutive
business day period shall have equalled or exceeded the target
stock price set forth below (the "Target Stock Price"). In the
event the Target Stock Price is achieved during the Phase III
Performance Cycle, the Participants will have earned and be
vested with the percentage indicated of the Restricted Stock
awarded to them as set forth in the Performance Vesting Schedule
below:
PERFORMANCE VESTING SCHEDULE
% of Shares Vested Target Stock Prices
20% $43.00
40% $47.00
60% $50.00
80% $53.00
100% $56.00
5.02 Performance Goals - Adjustments. In the case
of a recapitalization, stock split, merger, stock dividend,
reorganization, combination, liquidation or other change in the
Common Stock (an "Adjustment Event"), the Target Stock Prices
shall be automatically adjusted to reflect such Adjustment Event.
The Committee shall promptly notify all Participants of any such
adjustments.
5.03 Vested Stock - Removal of Restrictions. Upon
Restricted Stock becoming Vested Stock, all Restrictions shall be
removed from the certificates representing such stock and the
Secretary of the Company shall deliver to the Participant certifi
cates representing such Vested Stock free and clear of all
Restrictions together with a check in the amount of all Accrued
Dividends attributed to such Vested Stock without interest there
on; provided, however, prior to such delivery, the Committee
shall have certified in writing that a Target Stock Price has
been met. In order to fulfil the certification requirement, the
Committee shall meet in person or by telephone or act by unani
mous written consent no later than thirty days after the achieve
ment of a Target Stock Price for the required period.
5.04 Termination. All Restricted Stock awarded to
a Participant under this Phase III that has not become Vested
Stock shall be forfeited at the end of the Phase III Performance
Cycle, and all Restricted Stock that has not become Vested Stock
shall be forfeited upon the termination from the employ of the
Company of such Participant for any reason except as follows:
(i) Death, Disability or Retirement.
Restricted Stock which achieves the Target Stock Price in accor
dance with Section 5.01 during the year of the death, Disability
or Retirement of a Participant may become Vested Stock and pay
able to the Participant or to his estate, as the case may be, at
the discretion of the Committee. All other Restricted Stock
shall be forfeited.
(ii) Change of Control.
(a) In the event of a Change of
Control all Restricted Stock and Accrued Dividends shall be
forfeited, but the Participant shall have earned and be paid by
the Company a sum of money equal to his then current annual base
salary if such event occurs in the first year of the Phase III
Performance Cycle; two-thirds of his then current annual base
salary if such event occurs in the second year of the Phase III
Performance Cycle; and one-third of his then current annual base
salary if such event occurs in the third year of the Phase III
Performance Cycle.
(b) In addition to the payment pro
vided for in Section 5.04(ii)(a) above, the Company shall also
pay to the Participant any Gross-Up Payment determined in accor
dance with Section 9.2 of the Plan.
Section 6. The Plan. The Plan and all of its terms
and provisions attached hereto as Exhibit "A" are herein in
corporated by reference. In the event there is a conflict
between this Phase III and the Plan, the Plan shall control.
ARTICLE II (THE AWARDS)
Section 1. The Awards. The Committee hereby makes the
Awards to the Participants listed on Exhibit "B" hereto in the
number of restricted shares set forth opposite the names of the
Participants listed on Exhibit "B" hereto.
Section 2. Awards Agreement. Each of the Participants
shall execute and deliver to the Secretary of the Company a copy
of the Awards Agreement in the form attached hereto as Exhibit
"C" upon delivery to the Secretary of the shares of Restricted
Stock set opposite his name in Section 1 above.
Dated this 16th day of February, 1994.
"Committee"
JAMES G. HARLOW, JR.
James G. Harlow, Jr., Chairman
RICHARD D. HARRISON
Richard D. Harrison
EDWARD C. JOULLIAN III
Edward C. Joullian III
HOWARD H. LEACH
Howard H. Leach
JOHN A. MCMILLAN
John A. McMillan