{"id":40343,"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-and3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"restricted-stock-award-agreement-fleming-companies-inc-and3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/restricted-stock-award-agreement-fleming-companies-inc-and3.html","title":{"rendered":"Restricted Stock Award Agreement &#8211; Fleming Companies Inc. and William H. Marquard"},"content":{"rendered":"<pre>                                              RESTRICTED STOCK AWARD AGREEMENT FOR\n                   THE FLEMING COMPANIES, INC.\n                    1990 STOCK INCENTIVE PLAN\n\n          THIS RESTRICTED STOCK AWARD AGREEMENT (the 'Agreement')\nentered into as of the 21st day of December, 1999, by and between\nFleming Companies, Inc., an Oklahoma corporation (the 'Company'),\nand William H. Marquard (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. 1990 Stock Incentive Plan  and certain amendments\nthereto (the 'Plan');\n\n          WHEREAS, in recognition of his contribution to the\nCompany, the Company has awarded the Participant 20,000 shares of\ncommon stock under the Plan subject to the terms and conditions\nof this Agreement; and\n\n          WHEREAS, the Participant has previously entered into an\nEmployment Agreement with the Company dated as of June 1, 1999\n(the 'Employment 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 20,000 shares of Company\ncommon stock, par value $2.50 per share (the 'Stock'), on the\nterms and conditions 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.  One-half of the shares of\nRestricted Stock will vest based on the Participant's continuous\nemployment with the Company or a 'Subsidiary' (as such term is\ndefined in Section 14(i) of this Agreement) through December 21,\n2000 and the remaining one-half of the shares of Restricted Stock\nwill vest based on the Participant's continuous employment with\nthe Company or a Subsidiary through December 21, 2001.  In the\nevent the Participant's employment with the Company or a\nSubsidiary is terminated by reason of (i) death, (ii) disability,\n(iii) without 'Cause' (as such term is defined in the Employment\nAgreement), or (iv) by the Participant for 'Good Reason' (as such\nterm is defined in the Employment Agreement), then all remaining\nshares of Restricted Stock (including any 'Accrued Dividends,' as\nsuch term is hereafter defined) which have not yet been vested\nshall immediately vest.  Once vested pursuant to the terms of\nthis Agreement, the Restricted Stock shall be deemed 'Vested\nStock.'\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 or a Subsidiary is\nterminated prior to all shares of Restricted Stock becoming\nVested Stock for any reason other than (i) death, (ii)\ndisability, (iii) without Cause, or (iv) by the Participant for\nGood Reason, then all remaining shares of Restricted Stock which\nhave not yet been vested (including any Accrued Dividends) shall\nbe absolutely forfeited and the Participant shall have no further\ninterest therein of any kind whatsoever.\n\n          4.   Change of Control.\n\n               (a)  In the event of a Change of Control prior to\nDecember 21, 2001, all Restricted Stock shall become Vested Stock\nand the Company shall deliver to the Participant certificates\nrepresenting the Vested Stock free and clear of all restrictions,\nexcept for any applicable securities law restrictions, together\nwith any Accrued Dividends attributable to such Vested Stock\nwithout interest 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. 1990 STOCK INCENTIVE PLAN DATED THE 21st DAY OF\nDECEMBER, 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.  The Participant hereby agrees to\nexecute and deliver to the Secretary of the Company a stock power\n(endorsed in blank) in the form of Exhibit B hereto covering his\nAward and authorizes the Secretary to deliver to the Company any\nand all shares of Restricted Stock that are forfeited under the\nprovisions of this Agreement.  The Participant further authorizes\nthe Company to hold as a general obligation of the Company any\nAccrued Dividends and to pay such dividends to the Participant at\nthe time the underlying Restricted Stock becomes Vested Stock.\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 Texas.\n\n          10.  Withholding.  The Company and the Participant\nshall comply with all federal and state laws and regulations with\nrespect to 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 Company's Business as Consideration.  As\nspecific consideration to the Company for this Award, the\nParticipant agrees:\n\n               (a)  Limitations on Competition.  The Participant and the \nCompany recognize and agree that the in addition to Participant's general\nduties with the Company, the Participant has significant duties\nrelated to the Company's Project Grow.  Subject to subsection\n(g), the Participant will not, without the Company's written\nconsent, (i) directly or indirectly, in association with or as a\nshareholder, principal, agent, partner, officer, director,\nemployee or consultant of any direct competitor, or of any\nsubsidiary, affiliate or successor of any direct competitor, of\n(x) the Company, any Subsidiary or of the type of business\ncontemplated by, or developed in connection with, Project Grow,\nor (y) any of the limited assortment stores owned by the Company\nor any of its Subsidiaries or affiliates or targeted to be\nacquired, or developed, by the Company or any of its Subsidiaries\nor affiliates or (ii) be employed by any entity to develop the\ntype of business contemplated by Project Grow (collectively, the\n'Competitors').\n\n               (b)  Confidential Information; No Disparaging Statements.\nThe Participant acknowledges that during the course of  Participant's\nemployment with the Company or any Subsidiary, he will have\naccess to and gain knowledge of highly confidential and\nproprietary information and trade secrets.  The Participant\nfurther acknowledges that the misuse, misappropriation or\ndisclosure of this information could cause irreparable harm to\nthe Company and\/or a Subsidiary, both during and after the term\nof the Participant's employment.  Therefore, the Participant\nagrees that during his employment and at all times thereafter he\nwill hold in a fiduciary capacity for the benefit of the Company\nand\/or a Subsidiary and will not divulge or disclose, directly or\nindirectly, to any other person, firm or business, all\nconfidential or proprietary information, knowledge and data\n(including, but not limited to, processes, programs, trade 'know\nhow,' ideas, details of contracts, marketing plans, strategies,\nbusiness development techniques, business acquisition plans,\npersonnel plans, pricing practices and business methods and\npractices) relating in any way to the business of the Company or\nany of its Subsidiaries, customers, suppliers, joint ventures,\nlicensors, licensees, distributors and other persons and entities\nwith whom the Company or any of its Subsidiaries do business\n('Confidential Data'), except upon the Company's written consent\nor as required by his duties with the Company or any of its\nSubsidiaries, for so long as such Confidential Data remains\nconfidential and all such Confidential Data, together with all\ncopies thereof and notes and other references thereto, shall\nremain the sole property of the Company or a Subsidiary.   The\nParticipant agrees, during his employment with the Company or any\nof its Subsidiaries and at all times thereafter, not to make\ndisparaging statements about the Company or any of its\nSubsidiaries or their officers, directors, agents, employees,\nproducts or services which he knows, or has reason to know, are\nfalse or misleading.\n\n               (c)  No Solicitation of Employees or Business.  The \nParticipant agrees that he will not either directly, or in concert with\nothers, recruit, solicit or induce, or attempt to induce, any\nemployee or employees of the Company or any of its Subsidiaries\nto terminate their employment with the Company or any of its\nSubsidiaries and\/or become associated with another employer.  The\nParticipant further agrees that he will not either directly, or\nin concert with others, solicit, divert or take away or attempt\nto divert or take away, the business of any of the customers or\naccounts of the Company or any its Subsidiaries or related to the\ntype of business contemplated by or developed in connection with\nProject Grow, or any of the limited assortment stores owned by\nthe Company or any of its Subsidiaries or targeted to be\nacquired, or developed by the Company or any of its Subsidiaries\nbefore or on his date of termination\/separation.\n\n               (d)  Term of the Participant's Promises Under This \nSection. The Participant agrees that except as otherwise provided in\nsubsection (b), his promises contained in this Section 14 shall\ncontinue in effect during his employment with the Company or any\nof its Subsidiaries and until the first anniversary of his\ntermination\/separation.\n\n               (e)  Consequences of Breach of Limitations.  Subject \nto subsection (g), if at any time within (i) the term of this\nAgreement or (ii) within one (1) year following the Participant's\ndate of termination\/separation, but only if such\ntermination\/separation occurs on a date prior to December 21,\n2001, or (iii) within one (1) year after vesting any portion of\nthe Restricted Stock, whichever is latest, the Participant,\nwithout the Company's written consent, directly or indirectly, is\na shareholder, principal, agent, partner, officer, director,\nemployee or consultant of any of the Competitors, then (x) with\nrespect to any shares of Restricted Stock, effective the date the\nParticipant enters into such activity, all such Restricted Stock\n(including any Accrued Dividends) shall be absolutely forfeited\nand the Participant shall have no further interest therein of any\nkind whatsoever (unless forfeited sooner by operation of another\nterm or condition of this Agreement or the Plan), and (y) with\nrespect to any shares of Vested Stock, the Participant shall be\nrequired to return to the Company all of the actual shares of\nVested Stock, or other equivalent shares of Company common stock,\nwithin thirty (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.  This shall be in\naddition to any injunctive or other relief to which the Company\nmay be entitle under subsection (f)\n\n               (f)  Consequences of Other Breaches of this Section.   \nThe Participant acknowledges that damages which may arise from any\nbreach of any of his promises contained in this Section 14 may be\nimpossible to ascertain or prove with certainty. The Participant\nagrees if Participant breaches any of his promises contained in\nthis Section 14, in addition to the remedies provided under\nsubsection (e), if applicable, and any other legal remedies which\nmay be available, the Company shall be entitled to immediate\ninjunctive relief from a court of competent jurisdiction, pending\narbitration under Section 15 or otherwise, to end such breach,\nwithout further proof of damage.\n\n               (g)  Permitted Ownership.  Nothing in this Section 14 \nshall prohibit the Participant from owning less than one percent (1%)\nof any company that is publicly traded on any national securities\nexchange.\n\n               (h)  Severability and Reasonableness. If, at any time, \nthe provisions of this Section 14 shall be determined to be invalid\nor unenforceable, by reason of being vague or unreasonable as to\ngeographic area, duration or scope of activity or due to any\nother restriction or limitation, this Section 14 shall be\nconsidered divisible and shall become and be immediately amended\nto only such geographic area, duration and scope of activity\nand\/or restrictions or limitations as shall be determined to be\nreasonable and enforceable by an arbitrator or a court having\njurisdiction over the matter; and the Participant agrees that\nthis Section 14 as so amended shall be valid and binding as\nthough any invalid or unenforceable portion had not been included\nherein.  The parties agree that the geographic area, duration and\nscope of the limitations and the restrictions described in\nsubsections (a) through (e) are reasonable.\n\n               (i)  Definition of term 'Subsidiary'.  For purposes of \nthis Agreement, the term 'Subsidiary' shall mean any entity with 50%\nor more of its voting power being owned, directly or indirectly,\nby the Company.\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 Dallas, Texas unless the parties\nmutually 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,\nto award such damages or other monetary relief as either party\nmight be entitled to receive from a court of competent\njurisdiction.  Nothing in this agreement to arbitrate shall\npreclude the Company from obtaining injunctive relief from a\ncourt of competent jurisdiction prohibiting any on-going breaches\nof the Agreement by the Participant pending arbitration.  The\narbitrator(s) may also award costs and attorneys' fees in\nconnection with the arbitration to the prevailing party; however,\nin the arbitrator's(s') discretion, each party may be ordered to\nbear its\/his own costs and 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\n                                   Oklahoma corporation\n\n\n                                 By SCOTT M. NORTHCUTT\n                                    Scott  M.  Northcutt,  Senior\n                                    Vice    President   -   Human\n                                    Resources\n                                    \n                                    \n'PARTICIPANT'                      WILLIAM H. MARQUARD\n                                   William H. Marquard\n\n\n                            Exhibit A\n                                \n                                \n[Copy of 1990 Stock Incentive Plan]\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-40343","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\/40343","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=40343"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40343"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40343"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40343"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}