{"id":40344,"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-and5.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"restricted-stock-award-agreement-fleming-companies-inc-and5","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/restricted-stock-award-agreement-fleming-companies-inc-and5.html","title":{"rendered":"Restricted Stock Award Agreement &#8211; Fleming Companies Inc. and John M. Thompson"},"content":{"rendered":"<pre>              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 21st day of December, 1999, by and between\nFleming Companies, Inc., an Oklahoma corporation (the 'Company'),\nand John M. Thompson (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 and anticipated future duties with eMAR.net, Inc., a\nDelaware corporation and a wholly owned subsidiary of the Company\n(together with its affiliates, successors and assigns hereinafter\nreferred to as 'eMAR'), the Company has awarded the Participant\n15,000 shares of common stock under the Plan subject to the terms\nand conditions of 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 hereto\nas Exhibit A, is hereby incorporated by reference herein and made\na 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 15,000 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 the\nshares 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 the shares of Restricted Stock\nis subject to fulfillment of all of the following conditions: (i)\nsubject to Sections 3(e) and 4, continuous employment by the\nParticipant with the Company or eMAR (whether or not then owned\n50% or more by the Company) through December 20, 2002 and (ii)\nsubject to Section 3(c), occurrence of the 'Valuation Shortfall.'\nThe 'Valuation Shortfall' shall occur if on December 20, 2002,\nthe 'Fair Market Value' of Participant's 'Equity Awards' in eMAR\ndoes not exceed the Fair Market Value of the shares of Restricted\nStock assuming they were then fully vested.\n\n          (c)  Occurrence of the Valuation Shortfall.  In the\nevent the Valuation Shortfall has occurred and the Participant\nhas remained continuously employed by the Company or eMAR through\nDecember 20, 2002, all or a portion of the Restricted Stock shall\nvest such that the Fair Market Value of the Vested Stock (rounded\nto the nearest whole share) shall equal the difference between\n(i) the Fair Market Value of the Restricted Stock assuming the\nshares of Restricted Stock were then fully vested  and (ii) the\nFair Market value of the Participant's Equity Awards in eMAR.\nThe remaining shares of Restricted Stock, if any, shall be\nabsolutely forfeited.\n\n          (d)  Nonoccurrence of the Valuation Shortfall.  In the\nevent the Valuation Shortfall has not occurred and\/or the\nParticipant has not remained continuously employed by the Company\nor eMAR through December 20, 2002, all of the Restricted Stock\nshall be absolutely forfeited and the Participant shall have no\ninterest therein of any kind whatsoever.\n\n          (e)  Termination of Employment.  In the event the\nParticipant's employment with the Company or eMAR is terminated\nprior to December 20, 2002 by reason of (i) death, (ii)\ndisability, (iii) without 'Cause,' or (iv) by the Participant for\n'Good Reason,' then all shares of Restricted Stock (including any\n'Accrued Dividends') shall immediately vest. Once vested pursuant\nto the terms of this Agreement, the Restricted Stock shall be\ndeemed 'Vested Stock.'\n\n          (f)  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, but shall be accrued and paid to\nthe Participant when the Restricted Stock becomes Vested Stock.\nAccrued Dividends shall be held by the Company as a general\nobligation and paid to the Participant at the time the underlying\nRestricted Stock becomes Vested Stock.\n\n          (g)  Forfeiture.  Restricted Stock that does not become\nVested Stock pursuant to the terms of this Agreement shall be\nabsolutely forfeited and the Participant shall have no further\ninterest therein of any kind whatsoever.  In the event the\nParticipant's employment with the Company or eMAR is terminated\nprior to December 20, 2002 for any reason other than (i) death,\n(ii) disability, (iii) without Cause, or (iv) by the Participant\nfor Good Reason, then, all remaining shares of Restricted Stock\nwhich have not yet been vested (including any Accrued Dividends)\nshall be absolutely forfeited and the Participant shall have no\nfurther interest therein of any kind whatsoever.\n\n          (h)  Certain Definitions.\n\n               (i)  Cause.  For purposes of this Agreement, termination \nof the employment for 'Cause' shall mean termination for one of the\nfollowing reasons: (A) the conviction of the Participant of a\nfelony by a federal or state court of competent jurisdiction; (B)\nan act or acts of dishonesty taken by the Participant and\nintended to result in substantial personal enrichment of the\nParticipant at the expense of the Company or eMAR (the\n'Employer'); or (C) the Participant's 'willful' failure to follow\na direct, reasonable and lawful written order from his\nsupervisor, within the reasonable scope of the Participant's\nduties, which failure is not cured within 30 days.  Further, for\npurposes of this Subsection:\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 Employer.\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 of directors of\nthe Employer at a meeting called and held for such purpose (after\nreasonable notice to the Participant and an opportunity for the\nParticipant, together with the Participant's counsel, to be heard\nbefore the board of directors), finding that in the good faith\nopinion of the board of directors the Participant was guilty of\nconduct set forth in clauses (A), (B) or (C) above and specifying\nthe particulars thereof in detail.\n\n               (ii) Equity Awards. The term 'Equity Awards' shall mean \nall of the stock options, restricted stock awards, phantom stock units,\nstock appreciation rights or any other award of any kind wherein\nthe value is attributable to, or based on, a 'Security,'\nincluding any and all Securities into which such Equity Awards\nmay have been converted or exchanged together with the proceeds\nfrom any sale, exchange or other disposition thereof.\n               \n               (iii)  Fair Market Value.  The term 'Fair Market Value' \nshall have the following meanings depending upon the type of property\nto which the term is applied:\n\n                    A.  In the case of a share of stock as of\nany date, the following rules shall apply:\n                         \n                         (1)  If the principal market for the stock is\na national securities exchange or the Nasdaq National Market (the \n'National Market'), then the Fair Market Value as of that date shall \nbe the average of the lowest and highest reported sale prices of the\nstock for the preceding fifteen trading days on the principal\nexchange on which the stock is then listed or admitted to trading.\n\n                         \n                         (2)  If sale prices are not available or if \nthe principal market for the stock is not a national securities exchange \nor the National Market, then the Fair Market Value as of that date shall\nbe the average of the highest bid and lowest asked prices for the\nstock for the preceding fifteen trading days as reported on the\nNasdaq market, the Nasdaq OTC Bulletin Board Service or by the\nNational Quotation Bureau, Incorporated or a comparable service.\n\n                         (3)  If paragraphs (1) and (2) next above are \notherwise inapplicable, then the Fair Market Value of the stock shall be\ndetermined in good faith by the Committee.\n\n                    B.  In the case of all other Securities or\nproperty the term Fair Market Value shall mean the value\ndetermined as of a particular date by an independent accounting\nfirm or other outside consultant selected by the Company.\n               \n               (iv) Good Reason.  For purposes of this Agreement, \n'Good Reason' means the assignment to the Participant, without his \nconsent, of any duties 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 Employer 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 Employer promptly after receipt of written notice\nthereof given by the Participant.\n               \n               (v)  Security.  The term 'Security' shall have the \nmeaning ascribed to it in the Securities Act of 1933, as amended.\n               \n               (vi) Valuation Shortfall.  The term 'Valuation Shortfall' \nshall be determined as follows:\n\n                    A.  The Participant shall deliver to the Company \na list of all Equity Awards in eMAR he has received during the period\nbeginning December 21, 1999 and ending December 20, 2002, together \nwith copies of all related plans, agreements or arrangements.\n                    \n                    B.  The list will be referred by the Company to an\nindependent accounting firm or other outside consultant selected\nby the Company to determine the Fair Market Value of the Equity Awards.\n                    \n                    C.  The report of the independent accounting firm or \nother outside consultant shall be delivered to the Committee and the\nParticipant; and the Committee shall make the final determination\nof whether the Valuation Shortfall has occurred.\n          \n          (i)  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 and, to the extent the Accrued Dividends are in the\nform of property instead of cash, the property, without interest\nthereon.\n\n     4.   Change of Control.  Upon the occurrence of a Change of\nControl Event prior to December 20, 2002, all Restricted Stock\nshall become Vested Stock and the Company shall deliver to the\nParticipant certificates representing the Vested Stock free and\nclear of all restrictions, together with any Accrued Dividends\nattributable to such Vested Stock without interest thereon.\n\n     5.   Legends.  The shares of Stock which are the subject of\nthe 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 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 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.\n\n     7.   Nontransferability of Award.  The Participant shall not\nhave the right to sell, assign, transfer, convey, dispose,\npledge, hypothecate, burden, encumber or charge any shares of\nRestricted Stock or any interest therein in any manner\nwhatsoever.\n\n    8.   Notices.  All notices or other communications relating\nto the Plan and this Agreement as it relates to the Participant\nshall be in writing, shall be deemed to have been made if\npersonally delivered in return for a receipt, or if mailed, by\nregular U.S. mail, postage prepaid, by the Company to the\nParticipant at his last known address evidenced on the payroll\nrecords of the Company.\n\n     9.   Binding Effect and Governing Law.  This Agreement shall\nbe (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 shall\ncomply with all federal and state laws and regulations respecting\nthe withholding, deposit and payment of any income, employment or\nother taxes relating to the Award (including Accrued Dividends).\n\n    11.  Award Subject to Claims or Creditors.  The Participant\nshall not have any interest in any particular assets of the\nCompany, its parent, if applicable, or any Subsidiary by reason\nof the right to earn an Award (including Accrued Dividends) under\nthe Plan and this Agreement, and the Participant or any other\nperson shall have only the rights of a general unsecured creditor\nof the Company, its parent, if applicable, or a Subsidiary with\nrespect to any rights under the Plan or this Agreement.\n\n     12.  Captions.  The captions of specific provisions of this\nAgreement are for convenience and reference only, and in no way\ndefine, describe, extend or limit the scope of this Agreement or\nthe intent of any provision hereof.\n\n     13.  Counterparts.  This Agreement may be executed in any\nnumber of identical counterparts, each of which shall be deemed\nan original for all purposes, but all of which taken together\nshall form but one agreement.\n\n     14.  Protection of Business as Consideration.  As specific\nconsideration to the Company for the Restricted Stock Award:\n\n          (a)  Confidential Information.  The Participant\nacknowledges that during the course of his employment with the\nCompany and\/or eMAR, he will have access to and gain knowledge of\nhighly confidential and proprietary information and trade\nsecrets.  He further acknowledges that the misuse,\nmisappropriation or disclosure of this information could cause\nirreparable harm to the Company and\/or eMAR, both during and\nafter the term of his employment.  Therefore, he agrees that\nduring his employment and at all times thereafter he will hold in\na fiduciary capacity for the benefit of the Company and\/or eMAR\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 and\/or eMAR, customers, joint\nventures, licensors, licensees, distributors and other persons\nand entities with whom the and\/or eMAR does business\n('Confidential Data'), except upon the written consent  of the\nCompany or as required by the Participant's duties with the\nCompany and\/or eMAR, for so long as such Confidential Data\nremains confidential and all such Confidential Data, together\nwith all copies thereof and notes and other references thereto,\nshall remain the sole property of the Company and\/or eMAR.\n\n          (b)  No Solicitation of Employees or Business.  The\nParticipant agrees that he will not either directly, or in\nconcert with others, recruit, solicit or induce, or attempt to\ninduce, any employees of the Company or eMAR to terminate their\nemployment with the Company or eMAR and\/or become associated with\nanother employer.  The Participant further agrees that he will\nnot either directly, or in concert with others, solicit, divert\nor take away or attempt to divert or take away, the business of\nany of the customers or accounts of the Company or eMAR.  The\nParticipant agrees that his promises contained in this Section\n14(b) shall continue in effect until the first anniversary of his\ntermination\/separation of employment.\n\n          (c)  Consequences of Breach of Limitations.  The\nParticipant acknowledges that damages which may arise from a\nbreach of Section 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 the Company shall be\nentitled to an immediate injunction from a court of competent\njurisdiction to end such breach without further proof of damages.\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'PARTICIPANT'                      JOHN M. THOMPSON\n                                   John M. Thompson\n\n                            Exhibit A\n                                \n                                \n               [Copy of 1996 Stock Incentive Plan]\n\n\n\n                            Exhibit B\n                                \n              ASSIGNMENT SEPARATE FROM CERTIFICATE\n\n\n          FOR  VALUE RECEIVED, __________________, an individual,\nhereby      irrevocably     assigns      and      conveys      to\n________________________,  ______________  AND   NO\/100   (_____)\nshares of the Common Capital Stock of Fleming Companies, Inc., an\nOklahoma corporation, $2.50 par value.\n\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-40344","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\/40344","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=40344"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40344"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40344"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40344"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}