EXHIBIT 10.17
RESTRICTED STOCK AGREEMENT
This AGREEMENT (the "Agreement") is made as of January 4, 2004 (the
"Date of Grant") by and between FLOWERS FOODS, INC., a Georgia corporation (the
"Company"), and George E. Deese (the "Grantee").
1. GRANT OF RESTRICTED STOCK. Subject to and upon the terms,
conditions, and restrictions set forth in this Agreement and in the
Company's 2001 Equity and Performance Incentive Plan (the "Plan"), the
Company hereby grants to the Grantee as of the Date of Grant 50,000
Shares of Restricted Stock. The Restricted Stock shall be fully paid
and nonassessable and shall be represented by a certificate registered
in the name of the Grantee and bearing a legend referring to the
restrictions hereinafter set forth.
2. RESTRICTIONS ON TRANSFER OF RESTRICTED STOCK. The Restricted Stock
may not be transferred, sold, pledged, exchanged, assigned or otherwise
encumbered or disposed of by the Grantee, except to the Company, until
they have become nonforfeitable in accordance with Section 3. Any
purported transfer, encumbrance or other disposition of the Restricted
Stock that is in violation of this Section 2 shall be null and void,
and the other party to any such purported transaction shall not obtain
any rights to or interest in the Restricted Stock.
3. VESTING OF RESTRICTED STOCK. (a) On the fourth anniversary of the
Date of Grant, the Restricted Stock shall become nonforfeitable,
subject to the Grantee's remaining in the continuous employ of the
Company until said date. For purposes of this Agreement, Grantee's
employment with the Company will be deemed to have ceased as of the
last day worked. In the case of a Grantee's receiving short term
disability benefits, employment will be deemed to have cased on the
last day for which such short term benefits are paid.
(b) (i) Notwithstanding the provisions of
Section 3(a), all of the Restricted Stock shall immediately
become nonforfeitable in the event of a Change in Control;
and,
(i) in the event that Grantee's employment
with the Company shall terminate prior to the fourth anniversary of
the Date of Grant because of:
(A) early, normal or delayed retirement in
accordance with the provisions of the
Flowers Foods, Inc. Retirement Plan No.
1 or the Flowers Foods, Inc. 401(k)
Retirement Savings Plan (or any
successor plan);
(B) disability which is determined by the
Committee to be permanent and total with
respect to services rendered by the
Grantee immediately prior to incurring
said disability; or
(C) death.
4. FORFEITURE OF RESTRICTED STOCK. Subject to Section 3(b), any
Restricted Stock that has not theretofore become nonforfeitable shall
be forfeited if the Grantee ceases to be continuously employed by the
Company at any time prior to the applicable vesting date.
5. DIVIDEND, VOTING AND OTHER RIGHTS. Except as otherwise
provided herein, the Grantee shall have all of the rights of a
stockholder with respect to the Restricted Stock, including the right
to vote such Stock and receive any dividends that may be paid thereon;
provided, however, that any additional Stock of Common Stock or other
securities that the Grantee may become entitled to receive pursuant to
a stock dividend, stock split, combination of Stock, recapitalization,
merger, consolidation, separation or reorganization or any other
change in the capital structure of the Company shall be subject to the
same restrictions as the Restricted Stock.
6. RETENTION OF STOCK CERTIFICATE(s) BY THE COMPANY. The
certificate(s) representing the Restricted Stock shall be issued in
book entry form and held in a separate restricted account from all
other shares registered in the name of the Grantee by the Company's
stock transfer agent or shall be held in custody by the Secretary of
the Company, together with a stock power endorsed in blank by the
Grantee with respect thereto, until those Stock have become
nonforfeitable in accordance with Section 3. In order for the Grant
under this Agreement to be effective, the Grantee must sign and return
the attached stock powers to the attention of the Secretary of the
Company.
7. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement
shall confer upon the Grantee any right with respect to continuance of
employment by the Company, nor limit or affect in any manner the right
of the Company to terminate the employment or adjust the compensation
of the Grantee.
8. TAXES AND WITHHOLDING. If the Company shall be required to
withhold any federal, state, local or foreign tax in connection with
the issuance or vesting of any Restricted Stock or other amounts
pursuant to this Agreement, and the amounts available to the Company
for such withholding are insufficient, the Grantee shall pay the tax
or make provisions that are satisfactory to the Company for the
payment thereof. The Grantee may elect to satisfy all or any part of
any such withholding obligation by surrendering to the Company a
portion of the nonforfeitable shares of Common Stock that are issued
or transferred to the Grantee hereunder, and the shares of Common
Stock so surrendered by the Grantee shall be credited against any such
withholding obligation at the Market Value per Share of such shares on
the date of such surrender.
9. COMPLIANCE WITH LAW. The Company shall make reasonable
efforts to comply with all applicable federal and state securities
laws; provided, however, notwithstanding any other provision of this
Agreement, the Company shall not be obligated to issue any restricted
or nonrestricted shares of Common Stock or other securities pursuant
to this Agreement if the issuance thereof would result in a violation
of any such law.
10. RELATION TO OTHER BENEFITS. Any economic or other benefit to
the Grantee under this Agreement shall not be taken into account in
determining any benefits to which the Grantee may be entitled under
any profit-sharing, retirement or other benefit or compensation plan
maintained by the Company and shall not affect the amount of any life
insurance coverage available to any beneficiary under any life
insurance plan covering employees of the Company.
11. AMENDMENTS. Any amendment to the Plan shall be deemed to be
an amendment to this Agreement to the extent that the amendment is
applicable hereto; provided, however, that no amendment shall
adversely affect the rights of the Grantee under this Agreement
without the Grantee's consent.
12. SEVERABILITY. In the event that one or more of the
provisions of this Agreement shall be invalidated for any reason by a
court of competent jurisdiction, any provision so invalidated shall be
deemed to be separable from the other provisions hereof, and the
remaining provisions hereof shall continue to be valid and fully
enforceable.
13. RELATION TO PLAN. This Agreement is subject to the terms and
conditions of the Plan. In the event of any inconsistent provisions
between this Agreement and the Plan, the Plan shall govern.
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Plan. The Compensation Committee
acting pursuant to the Plan, as constituted from time to time, shall,
except as expressly provided otherwise herein, have the right to
determine any questions which arise in connection with this grant.
14. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall inure to the benefit of, and be binding upon, the successors,
administrators, heirs, legal representatives and assigns of the
Grantee, and the successors and assigns of the Company.
15. GOVERNING LAW. The interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia, without giving effect to the principles of conflict
of laws thereof.
16. NOTICES. Any notice to the Company provided for herein shall
be in writing to the Company, marked Attention: Corporate Secretary,
and any notice to the Grantee shall be addressed to said Grantee at
his or her address currently on file with the Company. Except as
otherwise provided herein, any written notice shall be deemed to be
duly given if and when delivered personally or deposited in the United
States mail, first class registered mail, postage and fees prepaid,
and addressed as aforesaid. Any party may change the address to which
notices are to be given hereunder by written notice to the other party
as herein specified (provided that for this purpose any mailed notice
shall be deemed given on the third business day following deposit of
the same in the United States mail).
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Grantee has also
executed this Agreement in duplicate, as of the day and year first above
written.
FLOWERS FOODS, INC.
By: /s/ Stephen R. Avera
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Title: Secretary and General Counsel
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Grantee /s/ George E. Deese
Address: 206 Spring Lake Road
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Thomasville, GA 31792
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