EXHIBIT 10.16
FLOWERS FOODS, INC.
2001 EQUITY AND PERFORMANCE
INCENTIVE PLAN
20__ RESTRICTED STOCK AGREEMENT
This AGREEMENT (the "Agreement") is made as of _________, 20__ (the
"Date of Grant") by and between FLOWERS FOODS, INC., a Georgia corporation (the
"Company") and __________________ (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 ____________ 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
the shares 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 second 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, if the criteria listed in section (b) below have been met as
of said date. For the purposes of this Agreement, the continuous
employment of the Grantee with the Company or a Subsidiary will not be
deemed to have been interrupted, and the Grantee will not be deemed to
have ceased to be an employee of the Company or a Subsidiary, by reason
of (i) the termination of his employment and immediate rehire between
the Company and a Subsidiary or (ii) an approved leave of absence.
(b) (i) In order for the Restricted Stock to become nonforfeitable
as of said second anniversary, the following Management
Objective must be achieved as of said date: the Company's
average "return on invested capital" calculated on continuing
operations for its fiscal years 20__ and 20__ must equal or
exceed its weighted average "cost of capital" for said period.
(ii) In the event that the requirements of subparagraph (b)(i)
above are satisfied, the Grant of Restricted Stock will be further
adjusted according to achievement of a management objective based on
the relative performance of the Company's "total return to
shareholders" ("Flowers TSR") determined for its 20__ and 20__ fiscal
years compared to the "total return to shareholders" of the Standard &
Poor's 500 Packaged Food and Meat Index (S&P TSR) for the same, or
approximately same, period as follows:
(A) If the Flowers TSR is equal to the fiftieth
percentile S&P TSR, there shall be no adjustment.
(B) If the Flowers TSR is less than the S&P TSR, the
Grant shall be reduced by 1.3% for each percentile
below the fiftieth by which the Flowers TSR is less
than the S&P TSR at the fiftieth percentile, but in
no event shall the reduction exceed 20% (e.g., if
Flowers TSR equals the fortieth percentile of S&P
TSR, the Grant shall be reduced by 13%, and if equal
to the twenty-fifth percentile, the Grant shall be
reduced by 20%).
(C) If the Flowers TSR exceeds the S&P TSR at the
fiftieth percentile, the Grant shall be increased by
1.3% for each percentile above the fiftieth by which
the
Flowers TSR exceeds the S&P TSR at the fiftieth
percentile, but in no event shall the increase exceed
20% (e.g., if Flowers TSR equals the fifty-seventh
percentile of S&P TSR, the Grant shall be increased
by 9.1%; and if equal to the eighty-fifth percentile,
the Grant shall be increased by 20%). For purposes of
the Plan, any such additional shares which are
awarded will be considered Performance Stock issued
pursuant to Section 8 of the Plan.
(c) Before the Restricted Stock and Performance Stock referred to
in this Section 3 are deemed nonforfeitable or earned, the
Board must certify that the respective Management Objectives
in subsections (b)(i) and (ii) have been satisfied.
(d) Notwithstanding the provisions of Section 3(a), (b), (c) all
of the initial Grant of Restricted Stock shall immediately
become nonforfeitable, but shall not be adjusted according to
subsection (b)(ii) above,
(i) in the event of a Change in Control; and,
(ii) in the event that Grantee's employment with the Company
shall terminate prior to the second anniversary of the Date of Grant because of:
(A) Retirement;
(B) Disability; or
(C) Death.
4. FORFEITURE OF RESTRICTED STOCK. Subject to Section 3(d), 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.
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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
shares 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
shares 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, it shall be a condition to the delivery of the shares to
the Grantee that the Grantee shall pay the tax in cash or make provisions
that are satisfactory to the Company for the payment thereof. The Company
and the Grantee may also make arrangements with respect to the payment in
cash of any taxes with respect to which withholding is not required.
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.
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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:
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Title:
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Grantee
Address:
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