EXHIBIT 10.66
RESTRICTED STOCK AWARD AGREEMENT FOR
THE FLEMING COMPANIES, INC.
1996 STOCK INCENTIVE PLAN
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement")
entered into as of the 29th day of February, 2000, by and between
Fleming Companies, Inc., an Oklahoma corporation (the "Company"),
and David R. Almond (herein referred to as the "Participant");
W I T N E S S E T H:
WHEREAS, the Company has previously adopted the Fleming
Companies, Inc. 1996 Stock Incentive Plan and certain amendments
thereto (the "Plan");
WHEREAS, in connection with his employment with the
Company, the Company has awarded the Participant 13,334 shares of
common stock under the Plan subject to the terms and conditions
of this Agreement; and
WHEREAS, the Participant has previously entered into an
Employment Agreement with the Company dated as of March 2, 1995,
as amended dated May 1, 1997, August 18, 1998 and March 2, 1999
(the "Employment Agreement").
NOW, THEREFORE, in consideration of the premises and
the mutual promises and covenants herein contained, the
Participant and the Company agree as follows (all capitalized
terms used herein, unless otherwise defined, have the meaning
ascribed to such terms as set forth in the Plan):
1. The Plan. The Plan, a copy of which is attached hereto as
Exhibit A, is hereby incorporated by reference herein and made a
part hereof for all purposes, and when taken with this Agreement
shall govern the rights of the Participant and the Company with
respect to the Award (as defined below).
2. Grant of Award. The Company hereby grants to the
Participant an award (the "Award") of 13,334 shares of Company
common stock, par value $2.50 per share (the "Stock"), on the
terms and conditions set forth herein and in the Plan.
3. Terms of Award.
(a) Escrow of Shares. A certificate representing the
shares of Stock subject to the Award (the "Restricted Stock") shall be
issued in the name of the Participant and shall be escrowed with
the Secretary of the Company (the "Escrow Agent") subject to
removal of the restrictions placed thereon or forfeiture pursuant
to the terms of this Agreement.
(b) Vesting. The shares of Restricted Stock will vest
based on the Participant's continuous employment with the Company or a
Subsidiary through March 2, 2001. In the event the Participant's
employment with the Company or a Subsidiary is terminated by
reason of (i) death, (ii) disability, (iii) without "Cause" (as
such term is defined in the Employment Agreement), or (iv) by the
Participant for "Good Reason" (as such term is defined in the
Employment Agreement), then all remaining shares of Restricted
Stock (including any "Accrued Dividends," as such term is
hereafter defined) which have not yet been vested shall
immediately vest. Once vested pursuant to the terms of this
Agreement, the Restricted Stock shall be deemed "Vested Stock."
(c) Voting Rights and Dividends. The Participant shall
not have the voting rights attributable to the shares of Restricted Stock
issued to him. Any dividends declared and paid by the Company
with respect to shares of Restricted Stock ("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.
(d) Vested Stock - Removal of Restrictions. Upon Re-
stricted 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 certificates
representing such Vested Stock free and clear of all
restrictions, except for any applicable securities laws
restrictions, together with a check in the amount of all Accrued
Dividends attributed to such Vested Stock without interest
thereon.
(e) Forfeiture. Restricted Stock that does not become
Vested Stock pursuant to the terms of this Agreement shall be absolutely
forfeited and the Participant shall have no future interest
therein of any kind whatsoever. In the event the Participant's
employment with the Company or a Subsidiary is terminated prior
to all shares of Restricted Stock becoming Vested Stock for any
reason other than (i) death, (ii) disability, (iii) without
Cause, or (iv) by the Participant for Good Reason, then all
remaining shares of Restricted Stock which have not yet been
vested (including any Accrued Dividends) shall be absolutely
forfeited and the Participant shall have no further interest
therein of any kind whatsoever.
4. Change of Control. Upon the occurrence of a Change of
Control Event on or prior to March 2, 2001, all Restricted Stock
shall become Vested Stock and the Company shall deliver to the
Participant certificates representing the Vested Stock free and
clear of all restrictions, except for any applicable securities
law restrictions, together with any Accrued Dividends
attributable to such Vested Stock without interest thereon. For
purposes of this Agreement, the words "Change of Control Event"
shall not have the meaning set forth in Section 2.4 of the Plan,
but shall instead be defined as:
(i) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more (the "Triggering Percentage")
of either (i) the then outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, in the event the "Incumbent
Board" (as such term is hereinafter defined) pursuant to
authority granted in any rights agreement to which the
Company is a party (the "Rights Agreement") lowers the
acquisition threshold percentages set forth in such Rights
Agreement, the Triggering Percentage shall be automatically
reduced to equal the threshold percentages set pursuant to
authority granted to the board in the Rights Agreement; and
provided, further, however, that the following acquisitions
shall not constitute a Change of Control: (i) any
acquisition directly from the Company, (ii) any acquisition
by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company, or
(iv) any acquisition by any corporation pursuant to a
transaction which complies with clauses (x), (y), and (z) of
subsection (iii) of this Section 4(b); or
(ii) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, appointment or
nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board,
but excluding, for purposes of this definition, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(iii) Approval by the shareholders of the
Company of a reorganization, share exchange, merger or
consolidation or acquisition of assets of another
corporation (a "Business Combination"), in each case,
unless, following such Business Combination, (x) all or
substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
will beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation which as a result of such
transaction will own the Company through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (y) no Person
(excluding any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) will beneficially own, directly or indirectly,
20% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or the combined voting power of the then
outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business
Combination, and (z) at least a majority of the members of
the board of directors of the corporation resulting from
such Business Combination will have been members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) Approval by the shareholders of the Company
of (x) a complete liquidation or dissolution of the Company
or, (y) the sale or other disposition of all or
substantially all of the assets of the Company, other than
to a corporation, with respect to which following such sale
or other disposition, (A) more than 50% of, respectively,
the then outstanding shares of common stock of such
corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled
to vote generally in the election of directors will be
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other
disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(B) less than 20% of, respectively, the then outstanding
shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election
of directors will be beneficially owned, directly or
indirectly, by any Person (excluding any employee benefit
plan (or related trust) of the Company or such corporation),
except to the extent that such Person owned 20% or more of
the Outstanding Company Common Stock or Outstanding Company
Voting Securities prior to the sale or disposition, and (C)
at least a majority of the members of the board of directors
of such corporation will have been members of the Incumbent
Board at the time of the execution of the initial agreement,
or of the action of the Board, providing for such sale or
other disposition of assets of the Company.
5. Legends. The shares of Stock which are the subject of
the Award shall be subject to the following legend:
"THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE ARE
SUBJECT TO AND ARE TRANSFERABLE ONLY IN ACCORDANCE WITH THAT
CERTAIN RESTRICTED STOCK AWARD AGREEMENT FOR THE FLEMING
COMPANIES, INC. 1996 STOCK INCENTIVE PLAN DATED THE 29th DAY OF
FEBRUARY, 2000. ANY ATTEMPTED TRANSFER OF THE SHARES OF STOCK
EVIDENCED BY THIS CERTIFICATE IN VIOLATION OF SUCH AGREEMENT
SHALL BE NULL AND VOID AND WITHOUT EFFECT. A COPY OF THE
AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF FLEMING
COMPANIES, INC."
6. Stock Power. The Participant hereby agrees to execute
and deliver to the Secretary of the Company a stock power (endorsed
in blank) in the form of Exhibit B hereto covering his Award and
authorizes the Secretary to deliver to the Company any and all
shares of Restricted Stock that are forfeited under the
provisions of this Agreement. The Participant further authorizes
the Company to hold as a general obligation of the Company any
Accrued Dividends and to pay such dividends to the Participant at
the time the underlying Restricted Stock becomes Vested Stock.
7. Nontransferability of Award. The Participant shall not
have the right to sell, assign, transfer, convey, dispose, pledge,
hypothecate, burden, encumber or charge any shares of Restricted
Stock or any interest therein in any manner whatsoever.
8. Notices. All notices or other communications relating
to the Plan and this Agreement as it relates to the Participant
shall be in writing, shall be deemed to have been made if
personally delivered in return for a receipt, or if mailed, by
regular U.S. mail, postage prepaid, by the Company to the
Participant at his last known address evidenced on the payroll
records of the Company.
9. Binding Effect and Governing Law. This Agreement shall
be (i) binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns except as may
be limited by the Plan and (ii) governed and construed under the
laws of the State of Texas.
10. Withholding. The Company and the Participant shall
comply with all federal and state laws and regulations with respect to
the withholding, deposit and payment of any income, employment or
other taxes relating to the Award (including Accrued Dividends).
11. Award Subject to Claims or Creditors. The Participant
shall not have any interest in any particular assets of the Company,
its parent, if applicable, or any Subsidiary by reason of the
right to earn an Award (including Accrued Dividends) under the
Plan and this Agreement; and the Participant or any other person
shall have only the rights of a general unsecured creditor of the
Company, its parent, if applicable, or a Subsidiary with respect
to any rights under the Plan or this Agreement.
12. Captions. The captions of specific provisions of this
Agreement are for convenience and reference only, and in no way
define, describe, extend or limit the scope of this Agreement or
the intent of any provision hereof.
13. Counterparts. This Agreement may be executed in any
number of identical counterparts, each of which shall be deemed an
original for all purposes, but all of which taken together shall
form but one agreement.
14. Protection of Company's Business as Consideration.
As specific consideration to the Company for this Award, the
Participant agrees:
(a) Limitations on Competition. Subject to sub-
section (g), the Participant will not, without the Company's written
consent, as a businessperson, directly or indirectly, be a share-
holder, principal, agent, partner, officer, director, employee or
consultant of SUPERVALU, Inc., Nash Finch Company, Richfood
Holdings, Inc. or any other direct competitor of the Company,
excluding national retail chains, or of any subsidiary, affiliate
or successor of any direct competitor of the Company
(collectively, the "Competitors"); provided, however, that
nothing in this subsection (a) is intended to preclude the
Participant from being employed or otherwise acting in the
capacity of a lawyer on behalf of any of the Competitors unless
such employment or activity would result in a breach of his
conflict of interest and/or confidentiality obligations as an
attorney or former attorney and an officer or former officer of
the Company or any of its Subsidiaries or based on the
confidentiality requirements contained in subsection (b).
(b) Confidential Information; No Disparaging State-
ments. The Participant acknowledges that during the course of the
Participant's employment with the Company or any Subsidiary, he
will have access to and gain knowledge of highly confidential and
proprietary information and trade secrets. The Participant
further acknowledges that the misuse, misappropriation or
disclosure of this information could cause irreparable harm to
the Company and/or a Subsidiary, both during and after the term
of the Participant's employment. Therefore, the Participant
agrees, during his employment and at all times thereafter, he
will hold in a fiduciary capacity for the benefit of the Company
and/or a Subsidiary 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 or
any Subsidiary, customers, suppliers, joint ventures, licensors,
licensees, distributors and other persons and entities with whom
the Company or any of its Subsidiaries do business ("Confidential
Data"), except upon the Company's written consent or as required
by his duties with the Company or any of its Subsidiaries, 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 or a Subsidiary. The Participant agrees, during his
employment with the Company or any of its Subsidiaries and at all
times thereafter, not to make disparaging statements about the
Company or any of its Subsidiaries or their officers, directors,
agents, employees, products or services which he knows, or has
reason to know, are false or misleading.
(c) No Solicitation of Employees or Business. The Par-
ticipant agrees that he will not, either directly or in concert with
others, recruit, solicit or induce, or attempt to induce, any
employees of the Company or any of its Subsidiaries to terminate
their employment with the Company or any of its Subsidiaries
and/or become associated with another employer. The Participant
further agrees that he will not, either directly or in concert
with others, solicit, divert or take away or attempt to divert or
take away, the business of any of the customers or accounts of
the Company or any its Subsidiaries which the Company or a
Subsidiary had or was actively soliciting before and/or on his
date of termination/separation.
(d) Term of the Participant's Promises Under This Section.
The Participant agrees that except as otherwise provided in
subsection (b), his promises contained in this Section 14 shall
continue in effect during his employment with the Company or any
of its Subsidiaries and until the first anniversary of his
termination/separation.
(e) Consequences of Breach of Limitations on Competition
and/or Other Competing Employment. Subject to subsection (g), if at any
time within (i) the term of this Agreement or (ii) within one (1)
year following the Participant's date of termination/separation,
but only if such termination/separation occurs on a date which is
prior to March 2, 2001, or (iii) within one (1) year after
vesting of any portion of the Restricted Stock, whichever is
latest, the Participant, without the Company's written consent,
as a businessperson, directly or indirectly, is a shareholder,
principal, agent, partner, officer, director, employee or
consultant of any of the Competitors, then (x) with respect to
any shares of Restricted Stock, effective the date the
Participant enters into such activity, all such Restricted Stock
(including any Accrued Dividends) shall be absolutely forfeited
and the Participant shall have no further interest therein of any
kind whatsoever (unless forfeited sooner by operation of another
term or condition of this Agreement or the Plan), and (y) with
respect to any shares of Vested Stock, the Participant shall be
required to return to the Company all of the actual shares of
Vested Stock, or other equivalent shares of Company common stock,
within thirty (30) days after the date of written notice from the
Company that pursuant to the provisions of this subsection
delivery of such shares is due and the Participant shall forfeit
all rights to such shares of Vested Stock. This shall be in
addition to any injunctive or other relief to which the Company
may be entitle under subsection (f). This subsection (e) shall
not apply however, if the Participant's employment by or other
activity in connection with the applicable Competitor is in the
capacity of a lawyer unless such employment or activity would
result in a breach of the Participant's conflict of interest
and/or confidentiality obligations as an attorney or former
attorney for and an officer or former officer of the Company or
any of its Subsidiaries or a breach of the confidentiality
requirements contained in subsection (b).
(f) Consequences of Other Breaches of this Section.
The Participant acknowledges that damages which may arise from any
breach of any of his promises contained in this Section 14 may be
impossible to ascertain or prove with certainty. The Participant
agrees if the Participant breaches any of his promises contained
in this Section 14, in addition to the remedies provided under
subsection (e), if applicable, and any other legal remedies which
may be available, the Company shall be entitled to immediate
injunctive relief from a court of competent jurisdiction, pending
arbitration under Section 15 or otherwise, to end such breach,
without further proof of damage.
(g) Permitted Ownership. Nothing in this Section 14 shall
prohibit the Participant from owning less than one percent (1%)
of any company that is publicly traded on any national securities
exchange.
(h) Severability and Reasonableness. If, at any time,
the provisions of this Section 14 shall be determined to be invalid
or unenforceable, by reason of being vague or unreasonable as to
geographic area, duration or scope of activity or due to any
other restriction or limitation, this Section 14 shall be
considered divisible and shall become and be immediately amended
to only such geographic area, duration and scope of activity
and/or restrictions or limitations as shall be determined to be
reasonable and enforceable by an arbitrator or a court having
jurisdiction over the matter; and the Participant agrees that
this Section 14 as so amended shall be valid and binding as
though any invalid or unenforceable portion had not been included
herein. The parties agree that the geographic area, duration and
scope of the limitations and the restrictions described in
subsections (a) through (e) are reasonable.
15. Arbitration of Disputes. Any disputes, claims or
controversies between the Participant and the Company which may
arise out of or relate to this Agreement shall be settled by
arbitration. This agreement to arbitrate shall survive the
termination of this Agreement. Any arbitration shall be in
accordance with the Rules of the American Arbitration Association
and shall be undertaken pursuant to the Federal Arbitration Act.
Arbitration will be held in Dallas, Texas unless the parties
mutually agree on another location. The decision of the
arbitrator(s) will be enforceable in any court of competent
jurisdiction. The arbitrator(s) may, but will not be required,
to award such damages or other monetary relief as either party
might be entitled to receive from a court of competent
jurisdiction. Nothing in this agreement to arbitrate shall
preclude the Company from obtaining injunctive relief from a
court of competent jurisdiction prohibiting any on-going breaches
of the Agreement by the Participant pending arbitration. The
arbitrator(s) may also award costs and attorneys' fees in
connection with the arbitration to the prevailing party; however,
in the arbitrator's(s') discretion, each party may be ordered to
bear its/her own costs and attorneys' fees.
16. Reimbursement of Taxes. In the event that the Partici-
pant makes a timely election to include in gross income the value of
the Restricted Stock on the date of grant pursuant to Section
83(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), and gives notice of such election to the Company, the
Company shall pay to the Participant an amount necessary to cause
the net amount of such payment that is retained by the
Participant after the calculation and deduction of any and all
federal, state and local income taxes and employment taxes on
such payment to be equal to the Participant's income taxes
attributable to the Restricted Stock and the Participant's
election under Section 83(b) of the Code in connection with the
Restricted Stock.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above written.
"COMPANY" FLEMING COMPANIES, INC., an
Oklahoma corporation
SCOTT M. NORTHCUTT
Scott M. Northcutt
Senior Vice President - Human
Resources
"PARTICIPANT"
DAVID R. ALMOND
David R. Almond
Exhibit A
(Fleming Companies, Inc. 1996 Stock Incentive Plan)
Exhibit B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, David R. Almond, an individual, hereby
irrevocably assigns and conveys to ________________________,
THIRTEEN THOUSAND, THREE HUNDRED THIRTY-FOUR AND NO/100 (13,334)
shares of the Common Capital Stock of Fleming Companies, Inc., an
Oklahoma corporation, $2.50 par value.
DATED:
David R. Almond