{"id":40342,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/restricted-stock-award-agreement-fleming-companies-inc-and-e.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"restricted-stock-award-agreement-fleming-companies-inc-and-e","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/restricted-stock-award-agreement-fleming-companies-inc-and-e.html","title":{"rendered":"Restricted Stock Award Agreement &#8211; Fleming Companies Inc. and E. Stephen Davis"},"content":{"rendered":"<pre>\n                  RESTRICTED STOCK AWARD AGREEMENT FOR\n                      THE FLEMING COMPANIES, INC.\n                       1996 STOCK INCENTIVE PLAN\n\n     THIS RESTRICTED STOCK AWARD AGREEMENT (the 'Agreement') \nentered into as of the 20th day of July, 1999, by and between \nFleming Companies, Inc., an Oklahoma corporation (the 'Company'), \nand E. Stephen Davis (herein referred to as the 'Participant');\n\n                          W I T N E S S E T H:\n\n     WHEREAS, the Company has previously adopted the Fleming \nCompanies, Inc. 1996 Stock Incentive Plan  and certain amendments \nthereto (the 'Plan'); and\n\n     WHEREAS, in connection with his employment with the \nCompany, the Company has awarded the Participant 60,000 shares of \ncommon stock under the Plan subject to the terms and conditions \nof this Agreement.\n\n     NOW, THEREFORE, in consideration of the premises and \nthe mutual promises and covenants herein contained, the \nParticipant and the Company agree as follows (all capitalized \nterms used herein, unless otherwise defined, have the meaning \nascribed to such terms as set forth in the Plan):\n\n     1.   The Plan.  The Plan, a copy of which is attached \nhereto as Exhibit A, is hereby incorporated by reference herein \nand made a part hereof for all purposes, and when taken with this \nAgreement shall govern the rights of the Participant and the \nCompany with respect to the Award (as defined below).\n\n     2.   Grant of Award.  The Company hereby grants to the \nParticipant an award (the 'Award') of 60,000 shares of Company \ncommon stock, par value $2.50 (the 'Stock'), on the terms and \nconditions set forth herein and in the Plan.\n\n     3.   Terms of Award.\n\n          (a)   Escrow of Shares.  A certificate representing \nthe shares of Stock subject to the Award (the 'Restricted Stock') \nshall be issued in the name of the Participant and shall be \nescrowed with the Secretary of the Company (the 'Escrow Agent') \nsubject to removal of the restrictions placed thereon or \nforfeiture pursuant to the terms of this Agreement.  \n\n          (b)   Vesting. Vesting of all of the shares of \nRestricted Stock is subject to fulfillment of both of the \nfollowing conditions:  (i) continuous employment by the \nParticipant with the Company through July 20, 2001 and (ii) \nachievement by the Company of the 'Target' as such term is \ndefined in that certain Letter Agreement effective as of June 1, \n1999, between the Company and Ernst &amp; Young LLP covering Phase \nII of the Low Cost Pursuit Program (the 'Performance Vesting \nObjective').  Any questions regarding satisfaction of the \nPerformance Vesting Objective shall be resolved by the Chairman \nand Chief Executive Officer of the Company in his sole and \nabsolute discretion.  In the event the Participant's employment \nwith the Company is terminated by reason of (i) death, (ii) \ndisability, (iii) without 'Cause' (as such term is defined in \nSection 3(f)(i) of this Agreement), or (iv) by the Participant \nfor 'Good Reason' (as such term is defined in Section 3(f)(ii) of \nthis Agreement), then all remaining shares of Restricted Stock \n(including any 'Accrued Dividends,' as such term is hereafter \ndefined) which have not yet been vested shall immediately vest.  \nOnce vested pursuant to the terms of this Agreement, the \nRestricted Stock shall be deemed 'Vested Stock.'  \n\n          (c)   Voting Rights and Dividends.  The Participant \nshall have all of the voting rights attributable to the shares of \nRestricted Stock issued to him.  Regular quarterly cash dividends \ndeclared and paid by the Company with respect to the shares of \nRestricted Stock shall be paid to the Participant.  Any \nextraordinary dividends declared and paid by the Company with \nrespect to shares of Restricted Stock ('Accrued Dividends') shall \nnot be paid to the Participant until such Restricted Stock \nbecomes Vested Stock.  Such Accrued Dividends shall be held by \nthe Company as a general obligation and paid to the Participant \nat the time the underlying Restricted Stock becomes Vested Stock. \n \n          (d)   Vested Stock - Removal of Restrictions.  Upon \nRestricted Stock becoming Vested Stock, all restrictions shall be \nremoved from the certificates representing such Stock and the \nSecretary of the Company shall deliver to the Participant \ncertificates representing such Vested Stock free and clear of all \nrestrictions, except for any applicable securities laws \nrestrictions, together with a check in the amount of all Accrued \nDividends attributed to such Vested Stock without interest \nthereon.\n\n          (e)   Forfeiture.  Restricted Stock that does not \nbecome Vested Stock pursuant to the terms of this Agreement shall \nbe absolutely forfeited and the Participant shall have no future \ninterest therein of any kind whatsoever.  In the event the \nParticipant's employment with the Company is terminated for any \nreason other than (i) death, (ii) disability, (iii) without \nCause, or (iv) by the Participant for Good Reason prior to all \nshares of Restricted Stock becoming Vested Stock, then, all \nremaining shares of Restricted Stock which have not yet been \nvested (including any Accrued Dividends) shall be absolutely \nforfeited and the Participant shall have no further interest \ntherein of any kind whatsoever.\n\n         (f)   Certain Definitions.\n\n               (i)  Cause.  For purposes of this Agreement, \ntermination of the employment by the Company for Cause shall mean \ntermination for one of the following reasons: (A) the conviction \nof the Participant of a felony by a federal or state court of \ncompetent jurisdiction; (B) an act or acts of dishonesty taken by \nthe Participant and intended to result in substantial personal \nenrichment of the Participant at the expense of the Company; or \n(C) the Participant's 'willful' failure to follow a direct, \nreasonable and lawful written order from his supervisor, within \nthe reasonable scope of the Participant's duties, which failure \nis not cured within 30 days.  Further, for purposes of this \nSection 3(f)(i):\n\n                   (1)   No act, or failure to act, on the \nParticipant's part shall be deemed 'willful' unless done, or \nomitted to be done, by the Participant not in good faith and \nwithout reasonable belief that the Participant's action or \nomission was in the best interest of the Company.\n\n                   (2)   The Participant shall not be deemed to \nhave been terminated for Cause unless and until there shall have \nbeen delivered to the Participant a copy of a resolution duly \nadopted by the affirmative vote of not less than three-fourths \n(3\/4ths) of the entire membership of the Board at a meeting of \nthe Board called and held for such purpose (after reasonable \nnotice to the Participant and an opportunity for the Participant, \ntogether with the Participant's counsel, to be heard before the \nBoard), finding that in the good faith opinion of the Board the \nParticipant was guilty of conduct set forth in clauses (A), (B) \nor (C) above and specifying the particulars thereof in detail.\n\n              (ii)   Good Reason.  For purposes of this \nAgreement, 'Good Reason' means: \n\n                   (A)   the assignment to the Participant of any \nduties inconsistent in any respect with the Participant's \nposition (including status, offices, titles and reporting \nrequirements), authority, duties or responsibilities or any other \naction by the Company which results in a diminishment in such \nposition, compensation, authority, duties or responsibilities, \nother than an insubstantial and inadvertent action which is \nremedied by the Company promptly after receipt of written notice \nthereof given by the Participant, or\n\n                   (B)   the Company's requiring the Participant \nto be based at any office or location more than 25 miles from \nwhere the Participant was employed immediately prior to a Change \nof Control, except for periodic travel reasonably required in the \nperformance of the Participant's responsibilities.\n\n     4.   Change of Control.  \n\n          (a)   In the event of a Change of Control, all \nRestricted Stock shall become Vested Stock and the Company shall \ndeliver to the Participant certificates representing the Vested \nStock free and clear of all restrictions, together with any \nAccrued Dividends attributable to such Vested Stock without \ninterest thereon.\n\n          (b)   The Company shall also pay to the Participant \nany Gross-Up Payment determined in accordance with Section 9.2 of \nthe Plan.\n\n     5.   Legends.  The shares of Stock which are the \nsubject of the Award shall be subject to the following legend:\n\n     'THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE ARE \nSUBJECT TO AND ARE TRANSFERRABLE ONLY IN ACCORDANCE WITH THAT \nCERTAIN RESTRICTED STOCK AWARD AGREEMENT FOR THE FLEMING \nCOMPANIES, INC. 1996 STOCK INCENTIVE PLAN DATED THE 2OTH DAY OF \nJUNE, 1999.  ANY ATTEMPTED TRANSFER OF THE SHARES OF STOCK \nEVIDENCED BY THIS CERTIFICATE IN VIOLATION OF SUCH AGREEMENT \nSHALL BE NULL AND VOID AND WITHOUT EFFECT.  A COPY OF THE \nAGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF FLEMING \nCOMPANIES, INC.'\n\n     6.   Stock Powers and the Beneficiary.  The Participant \nhereby agrees to execute and deliver to the Secretary of the \nCompany a stock power (endorsed in blank) in the form of Exhibit \nB hereto covering his Award and authorizes the Secretary to \ndeliver to the Company any and all shares of Restricted Stock \nthat are forfeited under the provisions of this Agreement.  The \nParticipant further authorizes the Company to hold as a general \nobligation of the Company any Accrued Dividends and to pay such \ndividends to the Participant at the time the underlying \nRestricted Stock becomes Vested Stock. Pursuant to Section 6.2 of \nthe Plan, the Participant designates his Eligible Spouse as the \nBeneficiary under this Agreement.\n\n     7.   Nontransferability of Award.  The Participant \nshall not have the right to sell, assign, transfer, convey, \ndispose, pledge, hypothecate, burden, encumber or charge any \nshares of Restricted Stock or any interest therein in any manner \nwhatsoever.\n\n     8.   Notices.  All notices or other communications \nrelating to the Plan and this Agreement as it relates to the \nParticipant shall be in writing, shall be deemed to have been \nmade if personally delivered in return for a receipt, or if \nmailed, by regular U.S. mail, postage prepaid, by the Company to \nthe Participant at his last known address evidenced on the \npayroll records of the Company.\n\n     9.   Binding Effect and Governing Law.  This Agreement \nshall be (i) binding upon and inure to the benefit of the parties \nhereto and their respective heirs, successors and assigns except \nas may be limited by the Plan and (ii) governed and construed \nunder the laws of the State of Oklahoma.\n\n    10.   Withholding.  The Company and the Participant \nshall comply with all federal and state laws and regulations \nrespecting the withholding, deposit and payment of any income, \nemployment or other taxes relating to the Award (including \nAccrued Dividends).\n\n    11.   Award Subject to Claims or Creditors.  The \nParticipant shall not have any interest in any particular assets \nof the Company, its parent, if applicable, or any Subsidiary by \nreason of the right to earn an Award (including Accrued \nDividends) under the Plan and this Agreement, and the Participant \nor any other person shall have only the rights of a general \nunsecured creditor of the Company, its parent, if applicable, or \na Subsidiary with respect to any rights under the Plan or this \nAgreement.\n\n    12.   Captions.  The captions of specific provisions of \nthis Agreement are for convenience and reference only, and in no \nway define, describe, extend or limit the scope of this Agreement \nor the intent of any provision hereof.\n\n    13.   Counterparts.  This Agreement may be executed in \nany number of identical counterparts, each of which shall be \ndeemed an original for all purposes, but all of which taken \ntogether shall form but one agreement.\n\n    14.   Protection of Business as Consideration.  As \nspecific consideration to the Company for the Restricted Stock \nAward:\n\n          (a)   Limitations on Competition.  Subject to \nsubsection (d), the Participant will not, during his employment \nwith the Company and until the first anniversary of his date of \ntermination\/separation from employment with the Company, without \nthe Company's written consent, directly or indirectly, be a \nshareholder, principal, agent, partner, officer, director, \nemployee or consultant of SUPERVALU, Inc., Nash Finch Company, \nAssociated Wholesale Grocers, Inc., Richfood Holdings, Inc. or \nany other direct competitor of the Company, excluding national \nretail chains, or any of their respective subsidiaries, \naffiliates or successors (the 'Competitors').\n\n          (b)   Confidential Information.  The Participant \nacknowledges that during the course of his employment, he will \nhave access to and gain knowledge of highly confidential and \nproprietary information and trade secrets.  He further \nacknowledges that the misuse, misappropriation or disclosure of \nthis information could cause irreparable harm to the Company, \nboth during and after the term of his employment.  Therefore, he \nagrees that during his employment and at all times thereafter he \nwill hold in a fiduciary capacity for the benefit of the Company \nand will not divulge or disclose, directly or indirectly, to any \nother person, firm or business, all confidential or proprietary \ninformation, knowledge and data (including, but not limited to, \nprocesses, programs, trade 'know how,' ideas, details of \ncontracts, marketing plans, strategies, business development \ntechniques, business acquisition plans, personnel plans, pricing \npractices and business methods and practices) relating in any way \nto the business of the Company, customers, joint ventures, \nlicensors, licensees, distributors and other persons and entities \nwith whom the Company does business ('Confidential Data'), except \nupon the Company's written consent or as required by the \nParticipant's duties with the Company, for so long as such \nConfidential Data remains confidential and all such Confidential \nData, together with all copies thereof and notes and other \nreferences thereto, shall remain the sole property of the \nCompany.\n\n          (c)   Consequences of Breach of Limitations.  \nSubject to subsection (d), if at any time within (i) the term of \nthis Agreement or (ii) within one (1) year following the \nParticipant's date of termination\/separation, but only if such \ntermination\/separation occurs on a date prior to July 20, 2001, \nor (iii) within one (1) year after vesting any portion of the \nRestricted Stock, whichever is latest, the Participant, without \nthe Company's written consent, directly or indirectly, is a \nshareholder, principal, agent, partner, officer, director, \nemployee or consultant of any of the Competitors or breaches the \nprovisions of subsection (b) regarding Confidential Information, \nthen (iv) with respect to any shares of Restricted Stock, \neffective the date the Participant enters into such activity all \nsuch Restricted Stock shall be absolutely forfeited and the \nParticipant shall have no further interest therein of any kind \nwhatsoever (unless forfeited sooner by operation of another term \nor condition of this Agreement or the Plan), and (v) with respect \nto any shares of Vested Stock, the Participant shall be required \nto return to the Company all of the actual shares of Vested \nStock, or other equivalent shares of Company common stock, within \nthirty (30) days after the date of written notice from the \nCompany that pursuant to the provisions of this subsection \ndelivery of such shares is due and the Participant shall forfeit \nall rights to such shares of Vested Stock.  The Participant \nacknowledges that damages which may arise from a breach of this \nSection 14 may be impossible to ascertain or prove with \ncertainty.  In addition to the other legal or equitable remedies \nwhich may be available, the parties agree to specific performance \nof the provisions of this subsection (c), and the Company shall \nbe entitled to an immediate injunction from a court of competent \njurisdiction to end such breach, without further proof of \ndamages.\n\n          (d)   Permitted Ownership.  Nothing in this \nSection 14 shall prohibit the Participant from owning less than \none percent (1%) of any company whose securities are publicly \ntraded on a national securities exchange.\n\n          (e)   Severability and Reasonableness.  If, at any \ntime, the provisions of this Section 14 shall be determined to be \ninvalid or unenforceable, by reason of being vague or \nunreasonable as to duration or scope of activity, this Section 14 \nshall be considered divisible and shall become and be immediately \namended to only such duration and scope of activity as shall be \ndetermined to be reasonable and enforceable by a court or other \nbody having jurisdiction over the matter; and the Participant \nagrees that this Section 14 as so amended shall be valid and \nbinding as though any invalid or unenforceable portion had not \nbeen included herein.  The parties agree that the duration and \nscope of the limitations on competition and disclosure of \ninformation described in subsections (a) and (b) are reasonable.\n\n    15.   Arbitration of Disputes.  Any disputes, claims or \ncontroversies between the Participant and the Company which may \narise out of or relate to this Agreement shall be settled by \narbitration.  This agreement to arbitrate shall survive the \ntermination of this Agreement.  Any arbitration shall be in \naccordance with the Rules of the American Arbitration Association \nand shall be undertaken pursuant to the Federal Arbitration Act.  \nArbitration will be held in Oklahoma City, Oklahoma unless the \nparties mutually agree on another location.  The decision of the \narbitrator(s) will be enforceable in any court of competent \njurisdiction.  The arbitrator(s) may, but will not be required, to \naward such damages or other monetary relief as either party might \nbe entitled to receive from a court of competent jurisdiction.  \nNothing in this agreement to arbitrate shall preclude the Company \nfrom obtaining injunctive relief from a court of competent \njurisdiction prohibiting any on-going breaches of the Agreement by \nthe Participant pending arbitration.  The arbitrator(s) may also \naward costs and attorneys' fees in connection with the arbitration \nto the prevailing party; however, in the arbitrator's(s') \ndiscretion, each party may be ordered to bear its\/his\/her own costs \nand attorneys' fees.\n\n     IN WITNESS WHEREOF, the parties hereto have executed \nthis Agreement on the day and year first above written.\n\n'COMPANY'                  FLEMING COMPANIES, INC., an Oklahoma corporation\n\n\n                           By SCOTT M. NORTHCUTT\n                              Scott M. Northcutt, Senior Vice President \n                              - Human Resources\n\n\n'PARTICIPANT'              E. STEPHEN DAVIS\n                           E. Stephen Davis\n\n                       \n\n                               Exhibit A\n\n\n[Copy of 1999 Stock Incentive Plan]\n\n\n\n                               Exhibit B\n\n                  ASSIGNMENT SEPARATE FROM CERTIFICATE\n\nFOR VALUE RECEIVED, __________________, an individual, hereby \nirrevocably assigns and conveys to ________________________, \n______________ AND NO\/100 (_____) shares of the Common Capital \nStock of Fleming Companies, Inc., an Oklahoma corporation, $2.50 \npar value.\n\nDATED:\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7547],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9544],"class_list":["post-40342","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleming-companies-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40342","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40342"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40342"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40342"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40342"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}