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 30th day of November, 1998, by and between Fleming Companies, Inc., an
Oklahoma corporation (the "Company"), and Mark S. Hansen (herein referred to as
the "Participant");
W I T N E S S E T H:
WHEREAS, the Participant has entered into an Employment Agreement with
the Company of even date pursuant to which he will serve the Company as Chairman
and Chief Executive Officer (the "Employment Agreement"); and
WHEREAS, the Company has previously adopted the Fleming Companies,
Inc. 1990 Stock Incentive Plan and certain amendments thereto (the "Plan"); and
WHEREAS, pursuant to Section 5(f) of the Employment Agreement, the
Company has awarded the Participant 32,000 shares of Common Stock under the Plan
subject to the terms and conditions of this Agreement.
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 defined below).
2. GRANT OF AWARD. The Company hereby grants to the Participant
an award (the "Award") of Thirty-two Thousand (32,000) 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) ESCROW OF SHARES. A certificate representing the shares
of Stock subject to the Award (the "Restricted Stock") shall be issued in the
name of the Participant and shall be escrowed with the Secretary of the Company
(the "Escrow Agent") subject to removal of the restrictions placed thereon or
forfeiture pursuant to the terms of this Agreement.
(b) VESTING. One-half of the shares of Restricted Stock will
vest based on the Participant's continuous employment with the Company through
November 30, 1999 and the remaining one-half of the shares of Restricted Stock
will vest based on the Participant's continuous employment with the Company
through November 30, 2000. In the event the Participant's employment with the
Company is terminated by reason of (i) death, (ii) disability, (iii) without
"Cause" (as such term is define din the Employment Agreement), or (iv) by the
Participant for "Good Reason" (as such term is defined in the Employment
Agreement), then all remaining shares of Restricted Stock (including any
"Accrued Dividends," as such term is hereafter defined) which have not yet been
vested shall immediately vest. Once vested pursuant to the terms of this
Agreement, the Restricted Stock shall be deemed Vested Stock.
(c) VOTING RIGHTS AND DIVIDENDS. The Participant shall have
all of the voting rights attributable to the shares of Restricted Stock issued
to him. Regular quarterly cash dividends declared and paid by the Company with
respect to the shares of Restricted Stock shall be paid to the Participant. Any
extraordinary dividends declared and paid by the Company with respect to the
shares of Restricted Stock ("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.
(d) 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.
(e) FORFEITURE. In the event the Participant's employment
with the Company is terminated for any reason other than (i) death, (ii)
disability, (iii) without Cause, or (iv) by the Participant for Good Reason
prior to all shares of Restricted Stock becoming Vested Stock, then, all
remaining shares of Restricted Stock which have not yet been vested (including
any Accrued Dividends) shall be absolutely forfeited and the Participant shall
have no further interest therein of any kind whatsoever.
4. CHANGE OF CONTROL.
(a) In the event of a Change of Control, all Restricted Stock
shall become Vested Stock and the Company shall deliver to the Participant
certificates representing the Vested Stock free and clear of all restrictions
together with any Accrued Dividends attributable to such Vested Stock without
interest thereon.
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(b) The Company shall also pay to the Participant any
Gross-Up Payment determined in accordance with Section 9.2 of the Plan.
5. 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 30TH DAY OF NOVEMBER, 1998. 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."
6. STOCK POWERS AND THE BENEFICIARY. The Participant hereby
agrees to execute and deliver to the Secretary of the Company a stock power
(endorsed in blank) in the form of Exhibit B hereto covering his Award and
authorizes the Secretary to deliver to the Company any and all shares of
Restricted Stock that are forfeited under the provisions of this Agreement. The
Participant further authorizes the Company to hold as a general obligation of
the Company any Accrued Dividends and to pay such dividends to the Participant
at the time the underlying Restricted Stock becomes Vested Stock. Pursuant to
Section 6.2 of the Plan, the Participant designates his Eligible Spouse as the
Beneficiary under this Agreement.
7. NONTRANSFERABILITY OF AWARD. The Participant shall not have
the right to sell, assign, transfer, convey, dispose, pledge, hypothecate,
burden, encumber or charge any shares of Restricted Stock or Accrued Dividends
held by the Escrow Agent 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 address set forth in Section 13 of the Employment
Agreement.
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.
10. WITHHOLDING. The Company and the Participant shall comply with
all federal and state laws and regulations respecting
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the withholding, deposit and payment of any income, employment or other taxes
relating to the Award (including Accrued Dividends).
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 (including
Accrued Dividends) 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/s/ David R. Almond
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David R. Almond, Senior Vice
President, General Counsel
and Secretary
"PARTICIPANT"
/s/ Mark S. Hansen
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Mark S. Hansen, Participant
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EXHIBIT A
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[Copy of 1990 Stock Incentive Plan. Intentionally Omitted.]
EXHIBIT B
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Mark S. Hansen, an individual, hereby irrevocably
assigns and conveys to _______________________________, THIRTY-TWO THOUSAND AND
NO/100 (32,000) shares of the Common Capital Stock of Fleming Companies, Inc.,
an Oklahoma corporation, $2.50 par value.
DATED:
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Mark S. Hansen