EXHIBIT 10.17
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 administering 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
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(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 Participant 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 Section 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
SUBJECT TO THE TERMS AND PROVISIONS OF PHASE III OF THE PLAN
ADOPTED BY THE COMPENSATION AND ORGANIZATION COMMITTEE OF
THE BOARD OF DIRECTORS ON FEBRUARY 16, 1994, AND BEAR THE
RESTRICTIONS 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:
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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 certificates 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 thereon; 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 achievement 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 accordance with Section 5.01
during the year of the death, Disability or Retirement of a Participant may
become Vested Stock and payable 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 provided for
in Section 5.04(ii)(a) above, the Company shall also pay to the Participant any
Gross-Up Payment determined in accordance with Section 9.2 of the Plan.
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Section 6. THE PLAN. The Plan and all of its terms and provisions
attached hereto as Exhibit "A" are herein incorporated 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"
/S/ JAMES G. HARLOW, JR.
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James G. Harlow, Jr., Chairman
/S/ RICHARD D. HARRISON
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Richard D. Harrison
/S/ EDWARD C. JOULLIAN III
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Edward C. Joullian III
/S/ HOWARD H. LEACH
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Howard H. Leach
/S/ JOHN A. MCMILLAN
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John A. McMillan
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