FLEMING COMPANIES, INC.
AMENDED AND RESTATED
DIRECTORS' COMPENSATION
AND
STOCK EQUIVALENT UNIT PLAN
ADOPTED: FEBRUARY 25, 1997
AMENDED AND RESTATED FLEMING COMPANIES, INC.
DIRECTORS' COMPENSATION AND STOCK EQUIVALENT UNIT PLAN
TABLE OF CONTENTS
Page
----
ARTICLE I Name and Purpose of Plan. . . . . . . . . . . . . . . . . . . . 1
1.1 Name of Plan. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Type of Plan. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II Definitions and Construction. . . . . . . . . . . . . . . . . . 1
2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III Participation and Administration. . . . . . . . . . . . . . . . 3
3.1 Participation . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Participation In Consideration for Services . . . . . . . . . . 3
3.3 Administration. . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV Direct Compensation . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Direct Compensation . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Payment of Direct Compensation. . . . . . . . . . . . . . . . . 4
4.3 Committee and Other Fees. . . . . . . . . . . . . . . . . . . . 4
4.4 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V Award of Stock Equivalent Units . . . . . . . . . . . . . . . . 4
5.1 Number of Stock Equivalent Units. . . . . . . . . . . . . . . . 4
5.2 Special Rules for Stock Equivalent Units. . . . . . . . . . . . 5
5.3 Payment of Stock Equivalent Units . . . . . . . . . . . . . . . 5
5.4 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VI General Benefit Provisions. . . . . . . . . . . . . . . . . . . 6
6.1 Restrictions on Alienation of Benefits. . . . . . . . . . . . . 6
6.2 No Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.3 Withholding For Income and Employment Taxes . . . . . . . . . . 6
6.4 No Interest on Awards . . . . . . . . . . . . . . . . . . . . . 7
6.5 Payments by the Company . . . . . . . . . . . . . . . . . . . . 7
6.6 Adjustment on Recapitalization. . . . . . . . . . . . . . . . . 7
ARTICLE VII Stockholder Approval; Amendment and Termination . . . . . . . . 7
7.1 Right to Amend or Alter Plan. . . . . . . . . . . . . . . . . . 7
7.2 Reliance on Reports . . . . . . . . . . . . . . . . . . . . . . 7
7.3 Right to Terminate Plan . . . . . . . . . . . . . . . . . . . . 7
-i-
ARTICLE VIII Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . 8
8.1 Articles and Section Titles and Headings. . . . . . . . . . . . 8
8.2 Laws of Oklahoma to Govern. . . . . . . . . . . . . . . . . . . 8
8.3 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . 8
EXHIBITS
Exhibit A - Beneficiary Designation Form
-ii-
AMENDED AND RESTATED FLEMING COMPANIES, INC.
DIRECTORS' COMPENSATION AND STOCK EQUIVALENT UNIT PLAN
FLEMING COMPANIES, INC., an Oklahoma corporation, hereby adopts the
Fleming Companies, Inc. Directors' Compensation and Stock Equivalent Unit Plan
upon the following terms and conditions:
ARTICLE I
NAME AND PURPOSE OF PLAN
1.1 NAME OF PLAN. This Plan shall be hereafter known as the
FLEMING COMPANIES, INC. DIRECTORS' COMPENSATION AND STOCK EQUIVALENT UNIT PLAN.
1.2 PURPOSE. The purpose of the Plan is to provide compensation to
Eligible Directors for services rendered and to also provide Eligible Directors
an incentive to motivate and financially reward such Directors who contribute to
the long term growth and profitability of the Company through awards of Stock
Equivalent Units.
1.3 TYPE OF PLAN. This Plan shall be considered as a "compensation
plan" which is to be sponsored by the Company for the purpose of providing a
supplemental income for Eligible Directors who contribute to the continued
growth, development and future business success of the Company.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS. Where the following capitalized words and phrases
appear in this instrument, they shall have the respective meanings set forth
below unless a different context is clearly expressed herein.
(a) AWARD OR AWARDS: The words "Award" or "Awards" shall
mean Cash Awards and/or Stock Equivalent Units granted to an Eligible Director
pursuant to and in accordance with the terms and provisions of this Plan.
(b) AWARD PERIOD: The words "Award Period" shall mean a
fixed period of time commencing with the date a Stock Equivalent Unit is granted
and ending on the Termination Date.
(c) BENEFICIARY: The words "Beneficiary" shall mean that
person designated by the Eligible Director pursuant to Section 4.4 and Section
5.4 hereof who may be entitled to receive
such Eligible Director's Direct Compensation and/or Stock Award in the event of
the death of the Eligible Director.
(d) BOARD: The word "Board" shall mean the Board of
Directors of the Company.
(e) CASH AWARD: The words "Cash Award" shall mean the annual
Direct Compensation paid to Eligible Directors.
(f) COMMITTEE: The word "Committee" shall mean the
"Compensation and Organization Committee" of the Company.
(g) COMMON STOCK: The words "Common Stock" shall mean the
shares of common stock of the Company, par value $2.50 per share.
(h) COMPANY: The word "Company" shall mean Fleming
Companies, Inc., an Oklahoma corporation, or its successor.
(i) DIRECT COMPENSATION: The words "Direct Compensation"
shall mean the basic annual fee or annual board retainer, if any, as set forth
in Section 4.1 paid or to be paid in cash during a calendar year to an Eligible
Director as compensation for serving as a member of the Board and excluding any
reimbursement payments for travel to or fee for attendance at or for chairing
meetings.
(j) DIRECTOR: The word "Director" shall mean a member of the
Board.
(k) EFFECTIVE DATE: The words "Effective Date" shall mean
January 1, 1997 which is the date that this Plan shall be effective for all
purposes.
(l) ELIGIBLE SPOUSE: The words "Eligible Spouse" shall mean
the spouse to whom the Eligible Director is married on his date of death.
(m) ELIGIBLE DIRECTOR: The words "Eligible Director" shall
mean a Director who is not an employee of the Company or any subsidiary.
(n) MARKET VALUE: The words "Market Value" shall mean (A)
during such time as the Common Stock is listed upon the New York Stock Exchange
or other exchanges or the NASDAQ/National Market System, the average of the
closing prices of the Common Stock on such stock exchange or exchanges or the
NASDAQ/National Market System on the trading day immediately preceding the day
for which the Market Value is to be determined, or if no sale of the Common
Stock shall have been made on any such stock exchange or the NASDAQ/National
Market System on such day, the next preceding day on which there was a sale of
the Common Stock shall be used to
-2-
calculate such average or (B) during any such time as the Common Stock is not
listed upon an established stock exchange or the NASDAQ/National Market System,
the mean between dealer "bid" and "ask" prices of the Common Stock in the
over-the-counter market on the day for which such value is to be determined, as
reported by the National Association of Securities Dealers, Inc.
(o) PLAN: The word "Plan" shall mean the "Fleming Companies,
Inc. Amended and Restated Directors' Compensation and Stock Equivalent Unit
Plan," as set forth in this instrument, and as hereafter amended from time to
time.
(p) STOCK EQUIVALENT UNITS: The words "Stock Equivalent
Units" shall mean those monetary units, which may be granted to an Eligible
Director pursuant to Article V, which represent a like number of shares of
Common Stock.
(q) TERMINATION DATE: The words "Termination Date" shall
mean the date on which an Eligible Director ceases to be a member of the Board
for any reason, including, but not limited to, death, disability or retirement.
2.2 CONSTRUCTION: The masculine gender, wherever appearing in the
Plan, shall be deemed to include the feminine gender, unless the context clearly
indicates to the contrary. Any word appearing herein in the plural shall
include the singular, where appropriate, and likewise the singular shall include
the plural, unless the context clearly indicates to the contrary.
ARTICLE III
PARTICIPATION AND ADMINISTRATION
3.1 PARTICIPATION. All Eligible Directors are automatically
eligible to participate in the Plan.
3.2 PARTICIPATION IN CONSIDERATION FOR SERVICES. Participation in
the Plan will be deemed to be for all purposes in consideration of services
rendered and to be rendered by the Eligible Director to the Company.
3.3 ADMINISTRATION. The Plan shall be administered by the
Committee and the Board shall grant and approve all Awards.
-3-
ARTICLE IV
DIRECT COMPENSATION
4.1 DIRECT COMPENSATION. The amount of annual Direct Compensation
which may be awarded to Eligible Directors under the Plan is subject to the sole
discretion of the Board; provided, however, in no event shall the amount of
Direct Compensation exceed the sum of $16,000 during any one calendar year.
Nothing contained in this Plan, however, shall restrict the Committee from
recommending and the Board from making awards of all Stock Equivalent Units to
Eligible Directors.
4.2 PAYMENT OF DIRECT COMPENSATION. The annual amount of Direct
Compensation determined by the Board shall be divided into quarterly payments
and paid quarterly on or before each March 31, June 30, September 30 and
December 31 during the term of this Plan.
4.3 COMMITTEE AND OTHER FEES. Commencing on the Effective Date,
and until altered, amended or modified by the Board, the annual committee
attendance fees for Eligible Directors shall not exceed the following:
Fees Amount
---- ------
Board Attendance Fee (per meeting) $1,000
Committee Attendance Fee (per meeting) 1,000
Committee Chair Attendance Fee - (per meeting) 250
Fees for attendance at Board and Committee meetings and for acting as chair
shall be paid at the meeting for which the fee is earned.
4.4 BENEFICIARY DESIGNATION. In the event of the death of an
Eligible Director during any year of the Plan, the proportionate part of the
Eligible Directors' Cash Award which has been earned as of the date of such
Eligible Directors' death shall be paid to the then surviving Beneficiary
designated by the Eligible Director on the Beneficiary Designation Form in the
form attached hereto as Exhibit A, and, if there is no Beneficiary so designated
and then surviving, such Cash Award shall automatically be paid to the surviving
Eligible Spouse of such Eligible Director, or otherwise to the estate of such
Eligible Director.
ARTICLE V
AWARD OF STOCK EQUIVALENT UNITS
5.1 NUMBER OF STOCK EQUIVALENT UNITS. Until changed or amended by
the Board, the number of Stock Equivalent Units which may be awarded under the
Plan shall be a minimum of 1,000 Stock
-4-
Equivalent Units for each calendar year of the Plan; provided, however, that
during each year of the Plan, in addition to the 1,000 Stock Equivalent Units,
the Committee may award additional Stock Equivalent Units in lieu of the Cash
Award or any portion thereof by dividing the selected amount of the Cash Award
by the Market Value of the Common Stock. Stock Equivalent Units shall be paid
on or before October 31 of each year of the term of the Plan. The Award granted
to each Eligible Director, expressed as a number of Stock Equivalent Units,
shall be determined solely in the discretion of the Board. Awards of Stock
Equivalent Units shall be paid in cash and shall be payable only on the
Termination Date. Each grant of Stock Equivalent Units shall contain such
terms, restrictions and conditions as the Committee may recommend and the Board
may determine, which terms, restrictions and conditions may or may not be the
same in each case; provided, however, in no event shall Stock Equivalent Units
be payable at any time other than on the Termination Date.
5.2 SPECIAL RULES FOR STOCK EQUIVALENT UNITS. Stock Equivalent
Units are granted in the form of units equivalent to shares of Common Stock. No
stock certificates shall be issued with respect to such units, however, a
certificate representing the number of Stock Equivalent Units shall be issued to
each Eligible Director who receives a grant of Stock Equivalent Units and the
Company shall maintain a bookkeeping account in the name of the Eligible
Director to which such units shall relate and such units shall otherwise be
treated in a comparable manner as if the Eligible Director had been awarded
shares of Common Stock (except that no voting rights or other stock ownership
rights shall apply to such units). Each such unit shall represent the right to
receive on the Termination Date a cash payment equal to the Market Value on the
Termination Date of the same number of shares of Common Stock in the manner and
subject to the restrictions set forth in this Plan. If, during the Award
Period, cash dividends or other cash distributions are paid with respect to
shares of Common Stock, such amounts shall be credited to the Eligible
Director's bookkeeping account and the Eligible Director shall be entitled to
receive on the Termination Date cash in the same manner as the Stock Equivalent
Units. If, during the Award Period, shares of Common Stock or other securities
or property are distributed with respect to the Common Stock, additional units
equivalent to such shares, securities or property shall be added to the Eligible
Director's bookkeeping account as additional units and shall be subject to all
other limitations and restrictions imposed upon the related units. In the event
of the death of a Eligible Director, the Beneficiary shall have the same right
to receive cash payments and other cash distributions with respect to the Stock
Equivalent Units as the Eligible Director would have had if he had survived.
-5-
5.3 PAYMENT OF STOCK EQUIVALENT UNITS. Payment of Stock Equivalent
Units shall be made in a single cash payment as soon as practicable following
the Termination Date of the Eligible Director. All Stock Equivalent Units
issued prior to the Effective Date of this Plan shall be subject to and shall be
governed by the terms and provisions hereof.
5.4 BENEFICIARY DESIGNATION. In the event of the death of an
Eligible Director during an Award Period, then, the Eligible Director's Stock
Equivalent Units shall be paid to the then surviving Beneficiary designated by
the Eligible Director on the Beneficiary Designation Form in the form attached
hereto as Exhibit A, and, if there is no Beneficiary then surviving, such
benefits will automatically be paid to the surviving Eligible Spouse of such
Eligible Director, otherwise to the estate of such Eligible Director.
ARTICLE VI
GENERAL BENEFIT PROVISIONS
6.1 RESTRICTIONS ON ALIENATION OF BENEFITS. No right or benefit
pursuant to a Stock Equivalent Unit under this Plan shall be subject in any
manner to garnishment, attachment, anticipation, alienation, sale, transfer,
assignment, gift, pledge, encumbrance, disposition, hypothecation, levy,
execution or the claims of creditors, either voluntarily or involuntarily, and
any attempt to so garnish, attach, anticipate, alienate, sell, transfer, assign,
gift, pledge, encumber, dispose, hypothecate, levy or execute on the same shall
be null and void, and neither shall such benefits or beneficial interests be
liable for or subject to the debts, contracts, liabilities, engagements or torts
of any person to whom such benefits or funds are payable.
6.2 NO TRUST. Other than as specifically provided in this Plan, no
action under this Plan by the Company, the Board or the Committee shall be
construed as creating a trust, escrow or other secured or segregated fund in
favor of the Eligible Director, his Beneficiary, or any other persons otherwise
entitled to his Stock Equivalent Units. The status of the Eligible Director and
his Beneficiary with respect to any liabilities assumed by the Company hereunder
shall be solely those of unsecured creditors of the Company. Any asset acquired
or held by the Company in connection with liabilities assumed by it hereunder,
shall not be deemed to be held under any trust, escrow or other secured or
segregated fund for the benefit of the Eligible Director or his Beneficiaries or
to be security for the performance of the obligations of the Company or any
subsidiary, but shall be, and remain a general, unpledged, unrestricted asset of
the Company at all times subject to the claims of general creditors of the
Company.
-6-
6.3 WITHHOLDING FOR INCOME AND EMPLOYMENT TAXES. Since all amounts
to be paid under the Plan to an Eligible Director are to be considered as
supplemental compensation paid for services rendered by the Eligible Director,
the Company 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 any payments made under this Plan, if any, and
accordingly, all amounts of Awards and any other payments made hereunder shall
be subject to and reduced by the amount of such taxes, if any.
6.4 NO INTEREST ON AWARDS. All Awards and any other payments made
hereunder will be paid without interest or investment earnings of any kind
whatsoever except as otherwise specifically provided in the Plan.
6.5 PAYMENTS BY THE COMPANY. The payments required to meet the
cost of the Awards provided by the Plan shall be made solely by the Company.
6.6 ADJUSTMENT ON RECAPITALIZATION. In case of a recapitalization,
stock split, merger, stock dividend, reorganization, combination, liquidation,
or other change in the Common Stock of the Company, the Board shall make such
adjustment to the number of Stock Equivalent Units and in the number of shares
of Common Stock available for award under the Plan which represent shares of
Common Stock to reflect such change in organization.
ARTICLE VII
STOCKHOLDER APPROVAL; AMENDMENT AND TERMINATION
7.1 RIGHT TO AMEND OR ALTER PLAN. The Plan may be amended by the
Company from time to time in any respect whatever by resolution of the Board
adopting such amendment. Amendments may be made, which in the judgment of the
Board are necessary or advisable, provided that such amendments do not deprive
an Eligible Director, without his consent, of a right to receive Awards
hereunder which have been previously granted to the Eligible Director at the
applicable point in time. Provided further, the amendment of the Plan shall not
cause a termination of any previously granted Award.
7.2 RELIANCE ON REPORTS. Each member of the Committee and each
member of the Board shall be fully justified in relying or acting in good faith
upon any report made by the independent public accountants of the Company and
upon any other information furnished in connection with the Plan by any person
or persons other than himself. In no event shall any person who is or shall
have been a member of the Committee or of the Board be liable for any
determination made or other action taken or any omission to act in
-7-
reliance upon any such report or information or for any action taken, including
the furnishing of information, or failure to act, if in good faith.
7.3 RIGHT TO TERMINATE PLAN. This Plan shall continue until
terminated as provided in this Section 8.5. The Board expressly reserves the
right to terminate this Plan in whole or in part at any time. Unless sooner
terminated, this Plan shall terminate on December 31, 2007. Provided, if the
Board elects to terminate the Plan, the Board shall determine a proposed date of
termination, and shall notify the Eligible Directors. Provided, further, the
termination of the Plan shall not cause a termination of any previously granted
Award.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 ARTICLES AND SECTION TITLES AND HEADINGS. The titles and
headings at the beginning of each Article and Section shall not be considered in
construing the meaning of any provisions in this Plan.
8.2 LAWS OF OKLAHOMA TO GOVERN. The provisions of this Plan shall
be construed, administered and enforced according to the laws of the State of
Oklahoma.
8.3 BINDING EFFECT. This Plan shall be binding upon the Company
and the Eligible Directors and their respective heirs, successors and assigns.
-8-
EXHIBIT A
- --------------------------------------------------------------------------------
BENEFICIARY DESIGNATION FORM
AMENDED AND RESTATED FLEMING COMPANIES, INC.
DIRECTORS' COMPENSATION AND STOCK EQUIVALENT UNIT PLAN
- --------------------------------------------------------------------------------
Name:
-------------------------------
The Amended and Restated Fleming Companies, Inc. Directors' Compensation and
Stock Equivalent Unit Plan (the "Plan") provides that if you die while you are a
participant in the Plan:
Each of your Cash Awards and Stock Equivalent Units will be paid to the Primary
or Secondary Beneficiary(ies) that you designate below, and, if there is no
Beneficiary (either Primary or Secondary) surviving at your death, such benefits
will automatically be paid to your then surviving spouse, otherwise to your
estate.
You should designate Secondary Beneficiary(ies) in case your Primary
Beneficiary(ies) are not living at the time of your death.
I choose the following person or persons as Beneficiary(ies) to receive, in the
event of my death, all of my accounts in the percentages designated below. I
understand that this designation automatically cancels any previous designations
which I have made and that I may change this designation at any time by signing
another form.
- --------------------------------------------------------------------------------
PRIMARY BENEFICIARY(IES)
- --------------------------------------------------------------------------------
% SHARE
NAME RELATIONSHIP %
------------------------------- ------------------ ----
ADDRESS
-------------------------------------------------------------
STREET CITY STATE ZIP
% SHARE
NAME RELATIONSHIP %
------------------------------- ------------------ ----
ADDRESS
-------------------------------------------------------------
STREET CITY STATE ZIP
If more than one Primary Beneficiary is designated, the share of any Primary
Beneficiary who predeceases you will proportionately increase the share of the
surviving Primary Beneficiary(ies).
- --------------------------------------------------------------------------------
SECONDARY BENEFICIARY(IES)
- --------------------------------------------------------------------------------
% SHARE
NAME RELATIONSHIP %
------------------------------- ------------------ ----
ADDRESS
-------------------------------------------------------------
STREET CITY STATE ZIP
% SHARE
NAME RELATIONSHIP %
------------------------------- ------------------ ----
ADDRESS
-------------------------------------------------------------
STREET CITY STATE ZIP
If more than one Secondary Beneficiary is designated, the share of any Secondary
Beneficiary who predeceases you will proportionately increase the share of the
surviving Secondary Beneficiary(ies).
SIGNATURE DATE
------------------------------------------- -----------
WITNESS DATE
--------------------------------------------- -----------
-2-