1997 AWARD NO. _
FLEMING COMPANIES, INC.
1990 STOCK INCENTIVE PLAN
_________________________
FORM OF
RESTRICTED STOCK AWARD AGREEMENT
1990 PLAN
Participant
Name: ____________________ Grant Date: _____________
Shares Subject to Restricted
Stock Award: ___________
Expiration Date: _________________
RESTRICTED STOCK AWARD AGREEMENT FOR
THE FLEMING COMPANIES, INC.
1990 STOCK INCENTIVE PLAN
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") entered into
as of the ___ day of ________, ____, by and between Fleming Companies, Inc., an
Oklahoma corporation (the "Company"), and _________________ (herein referred to
as the "Participant");
W I T N E S S E T H:
WHEREAS, the Participant is a key management employee of the Company;
and
WHEREAS, the Company desires to encourage the Participant to remain
in the employ of the Company in the future; and
WHEREAS, the Company has previously adopted the Fleming Companies,
Inc. 1990 Stock Incentive Plan (the "Plan"); and
WHEREAS, in consideration of the premises and the mutual promises and
covenants herein contained, the Company desires to provide the Participant the
opportunity to acquire shares of voting common stock of the Company in exchange
for the Participant's performing future services for the Company; and
WHEREAS, the Company has established a trust entitled "Fleming
Companies, Inc. Executive Deferred Compensation Trust" (the "Trust") as a
device for assisting the Company to meet its obligations under the Plan and
other employee benefit plans sponsored by the Company.
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 herein defined).
2. GRANT OF AWARD. The Company hereby grants to the Participant an
award (the "Award") of One Hundred Thousand (100,000) shares of Company common
stock, par value $2.50 (the "Stock"), on the terms and conditions set forth
herein and in the Plan.
3. TERMS OF AWARD.
(a) VESTING. Certificates representing the shares of Stock
subject to the Award shall be issued in the name of and delivered to Liberty
Bank and Trust Company of Oklahoma City, N.A., the trustee of the Trust (the
"Trustee"). Subject to the terms of the Plan, the Participant shall become
vested in the number of the shares of Stock within the Award in accordance with
the vesting schedule attached hereto as Exhibit "B" and incorporated by
reference, provided that such Participant has at all times remained in the full-
time and continuous employment of the Company through the date of vesting.
Except as provided in the Plan, in the event the Participant
terminates employment for any reason whatsoever prior to the vesting of all
shares of Stock subject to the Award, then, all remaining shares of Stock which
have not yet been vested (including dividends paid and held by the Trustee on
such shares) shall be absolutely forfeited and the Participant shall have no
further interest therein of any kind whatsoever.
(b) CHANGE OF CONTROL. Notwithstanding the provisions of
Section 3(a) hereof, the Company and the Committee have determined that the
Participant shall be deemed vested in all remaining shares of Stock subject to
the Award which have not yet been vested upon a Change of Control of the
Company, as such term is defined in Section 9.1 of the Plan.
4. 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 TRANSFERRABLE ONLY IN ACCORDANCE WITH THAT CERTAIN RESTRICTED
STOCK AWARD AGREEMENT FOR THE FLEMING COMPANIES, INC. 1990 STOCK
INCENTIVE PLAN DATED THE 1ST DAY OF NOVEMBER, 1997. 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."
5. AUTOMATIC DEFERRAL OF VESTED SHARES AND DIVIDENDS. The
Participant agrees that the grant of the Award under this Agreement is subject
to the restrictions herein contained and that all shares of Stock subject to
the Award and dividends thereon, if any, made under this Agreement shall be
automatically and irrevocably delivered directly to the Trustee and shall not
be distributed by the Trustee to the Participant until the Participant
terminates employment with the Company or a Subsidiary and all the following
conditions have been satisfied:
-2-
(a) The Participant completes at least two years of employment
service with the Company or a Subsidiary;
(b) The Participant satisfies the "Rule of 70" where the
Participant's age PLUS completed years of employment service with the Company
or a Subsidiary equals 70 or more; and
(c) The Participant has attained the age of 55 and has earned
at least 10 years of employment service with the Company or a Subsidiary.
Provided, for purposes of determining a Participant's years of employment
service with the Company or a Subsidiary, such service shall be based upon the
12 month period commencing with the Participant's initial date of hire (or date
of rehire) with the Company or a Subsidiary and 12 month anniversaries of such
date during which time the Participant remains in the continuous full-time
employ of the Company or a Subsidiary. For purposes of calculating the years
of employment service with the Company or a Subsidiary under Subsections 5(b)
and 5(c) above, service will be considered both before and after the date of
the Award. For purposes of calculating the years of employment service with
the Company or a Subsidiary under Section 5(a) above, service will be
considered as commencing on November 1, 1997. With regard to the calculation
of years of employment service with respect to any Participant who is hired and
then terminated employment and was subsequently rehired by the Company or a
Subsidiary, then, the Committee shall make the determination and calculation as
to number of completed years of employment service by disregarding the break in
employment service considering such periods of employment service to be
cumulative, i.e., counting one or more periods of employment.
Provided further, notwithstanding the fact that the Participant has not
satisfied the foregoing requirements of this Section 5, in the event that the
Participant dies, incurs a Disability, or a Change of Control of the Company
occurs as defined in Section 9.1 of the Plan, then (i) the Award (all shares of
Stock) will be automatically vested and nonforfeitable and (ii) such vested
shares of Stock and dividends attributable to the Award (all shares of Stock)
will be distributed by the Trustee to the Participant (or his Beneficiary in
the event of his death) within thirty (30) days following the occurrence of the
event which would cause distribution of such vested shares of Stock.
Provided further, the Committee will make all decisions, in its sole
discretion, with regard to whether the requirements for distribution of any
Award have been satisfied, and may, in its sole discretion, waive all or any
restrictions with respect to any shares of Stock.
-3-
6. NO RIGHTS IN STOCK. The Participant agrees that until such
vested shares of Stock are distributed to him, he has no rights or interest in
such shares as a shareholder of the Company or otherwise, and that such shares
shall be held by the Trustee in accordance with the terms of the Trust and
shall be voted by the Trustee. Specifically, the Participant hereby waives the
right to require the certificate representing the shares of Stock granted under
the Award to be in his name and any right to vote such shares of Stock as
provided in Section 5.3 of the Plan. Further, the Participant has no interest
in the Trust of any kind whatsoever. As a condition precedent to issuing a
certificate representing the shares of Stock granted under the Award, the
Company require the Participant to deliver to the Trustee a duly executed
irrevocable stock power (in blank) covering such shares representing the
certificate which will be utilized by the Trustee in the event the Participant
terminates employment with the Company or a Subsidiary prior to the time he
becomes vested in such shares of Stock, and will be executed by the Trustee
transferring such shares of Stock to the Company.
7. NONTRANSFERABILITY OF AWARD. With respect to all shares of
Stock held by the Trust which are subject to this Award, and dividends on such
Stock held by the Trust, the Participant shall not have the right to sell,
assign, transfer, convey, dispose, pledge, hypothecate, burden, encumber or
charge shares of Stock held by the Trustee and dividends 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 the following address:
or such other address as the Participant may advise the Company in writing.
The date of personal delivery shall be the date of giving notice, or if made by
mail in the manner prescribed above, notice shall be deemed to have been given
three (3) business days after the date of mailing.
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 Oklahoma.
-4-
10. WITHHOLDING. The Company and the Participant shall comply with
all federal and state laws and regulations respecting the withholding, deposit
and payment of any income, employment or other taxes relating to the Award.
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 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.
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
By
---------------------------------
President
"PARTICIPANT"
-----------------------------------
, Participant
--------------
-5-
1990 PLAN
---------
EXHIBIT "B"
VESTING OF RESTRICTED STOCK
Restricted Stock shall vest in accordance with the following terms during
the "Award Period" which shall commence November 1, 1997 and shall terminate
December 31, 2000 if not sooner vested. Shares not fully vested during the
Award Period shall be forfeited by the Participant at the end of the Award
Period.
A. One-half of the number of shares of Stock in the Award will be subject to
vesting based upon the Participant's continuous employment with the Company
and/or any of its Subsidiaries through the vesting dates set forth on the
following table:
VESTING DATE NUMBER OF SHARES VESTED
------------ -----------------------
B. One-half of the number of shares of Stock in the Award will be subject to
vesting based upon the Stock of the Company achieving and maintaining for 20
consecutive trading days from and after October 31, 1997, the following Current
Market Values:
CURRENT MARKET VALUE NUMBER OF SHARES VESTED
-------------------- -----------------------
For purposes of this Agreement, "Current Market Value" shall mean the
closing price for shares of Stock as reported on the New York Stock Exchange as
reflected in the WALL STREET JOURNAL Southwest Edition.