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 1st day of June, 1999, by and between
Fleming Companies, Inc., an Oklahoma corporation (the 'Company'),
and William H. Marquard (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 Executive Vice President, Business Development
(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 the Employment Agreement, the Company has
awarded the Participant 20,000 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 twenty thousand (20,000)
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 June 1, 2000 and the remaining one-half of
the shares of Restricted Stock will vest based on the Participant's
continuous employment with the Company through June 1, 2001. 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 defined in 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 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
(b) The Company shall also pay to the Participant any
Gross-Up Payment determined in accordance with Section 9.2 of the
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 1ST
DAY OF JUNE, 1999. 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
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 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 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
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
By SCOTT M. NORTHCUTT
Scott M. Northcutt, Senior Vice
President - Human Resources
WILLIAM H. MARQUARD
William H. Marquard, Participant
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, __________________, an individual,
hereby irrevocably assigns and conveys to ________________________,
______________ AND NO/100 (_____) shares of the Common Capital
Stock of Fleming Companies, Inc., an Oklahoma corporation, $2.50