Exhibit 10.2
FLEMING COMPANIES, INC.
_________________________________________________________________
NON-QUALIFIED STOCK OPTION AGREEMENT (1990 STOCK OPTION PLAN)
_________________________________________________________________
Name: ______________ Grant Date: _________________
Option Price: $_____________ Exercise Date: _________________ - 25%
Shares Granted: ______________ _________________ - 50%
Expiration Date: ______________ _________________ - 75%
_________________ - 100%
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE FLEMING COMPANIES, INC.
1990 STOCK OPTION PLAN
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Option
Agreement"), made as of this ____ day of ________, 199_, at
Oklahoma City, Oklahoma by and between ______________
(hereinafter referred to as the "Participant," and Fleming
Companies, Inc. (hereinafter referred to as the "Company"):
W I T N E S S E T H:
WHEREAS, the Participant is a key employee of the
Company, its parent or any subsidiary of the Company, and it is
important to the Company that the Participant be encouraged to
remain in the employ of the Company, its parent or any subsidiary
of the Company; and
WHEREAS, in recognition of such facts, the Company
desires to provide to the Participant an opportunity to purchase
shares of the common stock of the Company, as hereinafter
provided, pursuant to the "Fleming Companies, Inc. 1990 Stock
Option Plan" (the "Plan").
NOW, THEREFORE, in consideration of the mutual
covenants hereinafter set forth and for good and valuable
consideration, the Participant and the Company hereby agree as
follows:
1. GRANT OF STOCK OPTION. The Company hereby grants to
the Participant a non-qualified stock option (the "Stock
Options") as described in Sections 83 and 421 of the Code to
purchase all or any part of an aggregate of ____________
________________________________________ (_______) shares of
common stock of the Company, par value $2.50 per share (the
"Stock") under and subject to the terms and conditions of this
Option Agreement and the Plan each of which is incorporated
herein by reference and made a part hereof for all purposes. All
capitalized terms used in this Option Agreement shall have the
same meaning ascribed to them in the Plan unless specifically
denoted otherwise. The purchase price per share for each share
of Stock to be purchased hereunder shall be $__________ (the
"Option Price").
2. TIMES OF EXERCISE OF STOCK OPTION. After, and only
after, the conditions of Section 9 hereof have been satisfied,
the Participant shall be eligible to exercise that portion of his
Stock Options pursuant to the schedule set forth hereinafter. If
the Participant's employment with the Company (or its parent or
of any one or more of the subsidiaries of the Company) remains
full-time and continuous at all times prior to any of the
"Exercise Dates" set forth in this Section 2, then the
Participant shall be entitled, subject to the applicable
provisions of the Plan and this Option Agreement having been
satisfied, to exercise on or after the applicable Exercise Date,
on a cumulative basis, the number of shares of Stock determined
by multiplying the aggregate number of shares set forth in
Section 1 of this Agreement by the designated percentage set
forth below.
Percent of Stock
Exercise Dates Option Exercisable
- --------------------------------------------------------------------
On or After _________________ 25%
On or After _________________ 50%
On or After _________________ 75%
On or After _________________ 100%
3. TERM OF STOCK OPTION. Except as specifically provided
to the contrary in this Option Agreement or in the Plan with
regard to the death of a Participant, no Stock Option shall be
exercisable within six months from nor more than ten years after
the date of grant (the "Option Period"). Stock Options shall be
exercisable only by the Participant while actively employed by
the Company or a subsidiary, except that (i) the Stock Options
which are otherwise exercisable, may be exercised by the personal
representative of a deceased Participant within 12 months after
the death of such Participant and (ii) if a Participant
terminates his employment with the Company or a subsidiary, such
Participant may exercise any of the Stock Options which are
otherwise exercisable at any time within three months of such
date of termination. If a Participant should die during the
applicable three month period following the date of such
Participant's termination, the rights of the personal
representative of such deceased Participant as such relate to the
Stock Options shall be governed in accordance with Section 3(i)
of this Agreement.
4. NONTRANSFERABILITY OF STOCK OPTIONS. Except as
otherwise herein provided, the Stock Options shall not be
transferable otherwise than by will or the laws of descent and
distribution, and the Stock Options may be exercised, during the
lifetime of the Participant, only by him. More particularly (but
without limiting the generality of the foregoing), the Stock
Options may not be assigned, transferred (except as provided
above), pledged or hypothecated in any way, shall not be
assignable by operation of law and shall not be subject to
execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition
of the Stock Options contrary to the provisions hereof shall be
null and void and without effect.
5. EMPLOYMENT. So long as the Participant shall continue
to be a full-time and continuous employee of the Company, its
parent or one or more of the subsidiaries of the Company, the
Stock Options shall not be affected by any change of duties or
position. Nothing in the Plan or in this Option Agreement shall
confer upon the Participant any right to continue in the employ
of the Company, its parent or any of the subsidiaries of the
Company, or interfere in any way with the right of the Company,
its parent or any of the subsidiaries of the Company to terminate
such Participant's employment at any time.
6. SPECIAL RULES WITH RESPECT TO STOCK OPTIONS. With
respect to Stock Options granted hereunder, the following special
rules shall apply:
(a) Acceleration of Otherwise Unexercisable Stock
Option on Termination of Employment or Death. The Committee, in
its sole discretion, may permit (i) a Participant who terminates
employment with the Company or a subsidiary or (ii) the personal
representative of a deceased Participant, to exercise and
purchase (within three months of such date of termination of
employment or 12 months in the case of a deceased Participant)
all or any part of the shares subject to the Stock Options on the
date of the Participant's death or termination, notwithstanding
that all installments, if any, with respect to the Stock Options,
had not accrued on such date. Provided, such discretionary
authority of the Committee may not be exercised with respect to
any Stock Option (or portion thereof) if the applicable six month
waiting period for exercise had not expired except in the event
of the death of the Participant when the personal representative
of the deceased Participant may, with the consent of the
Committee, exercise such Stock Option notwithstanding the fact
that the applicable six month waiting period had not yet expired.
(b) Right to Exercise Upon Company Ceasing to Exist.
Where dissolution or liquidation of the Company or any merger,
consolidation or combination in which the Company is not the
surviving corporation occurs, the Participant shall have the
right immediately prior to such dissolution, liquidation, merger,
consolidation or combination, as the case may be, to exercise, in
whole or in part, his then remaining Stock Options whether or not
then exercisable. Provided, further, that for the purposes of
this Section 6(c), if any merger, consolidation or combination
occurs in which the Company is not the surviving corporation and
is the result of a mere change in identity, form or place of
organization of the Company accomplished in accordance with
Section 368(a) (1) (F) of the Code, then, such event will not
cause an acceleration of the exercisability of such Stock option
granted hereunder.
(c) Assumption of Outstanding Stock Options. To the
extent permitted by the applicable provisions of the Code, any
successor to the Company succeeding to, or assigned the business
of, the Company as the result of or in connection with a
corporate merger, consolidation, combination, reorganization or
liquidation transaction shall assume the Stock Options
outstanding under this Option Agreement or issue new non-
qualified stock options in place of such outstanding Stock
Options. Provided, such assumption of outstanding Stock Options
is to be made on a fair and equivalent basis in accordance with
the applicable provisions of Section 425(a) of the Code;
provided, further, in no event will such assumption result in a
modification of the Stock Options as defined in Section 425(h) of
the Code.
(d) Payment of Withholding Taxes. Upon the exercise
of any Stock Option as provided herein, no such exercise shall be
permitted, nor shall any Stock be issued to any Participant until
the Company receives full payment for the Stock purchased which
shall include any required state and federal withholding taxes.
Further, upon the exercise of any Stock Option the Participant
may direct the Company to retain from the shares of Stock to be
issued upon exercise of the Stock Option that number of initial
shares of Stock (based on "fair market value" as such term is
defined in Section 1.6 of the Plan) that would satisfy the
requirements for withholding any amounts due upon the exercise.
7. METHOD OF EXERCISING STOCK OPTION.
(a) Procedures for Exercise. The manner of exercising
the Stock Options shall be by written notice to the Company at
least two days before the date the Stock Options, or part
thereof, are to be exercised, and in any event prior to the
expiration of the Option Period. Such notice shall state the
election to exercise the Stock Options and the number of shares
of Stock with respect to that portion of the Stock Options being
exercised, and shall be signed by the person or persons so
exercising the Stock Options. The notice shall be accompanied by
payment of the full purchase price of such shares, in which event
the Company shall deliver a certificate or certificates
representing such shares to the person or persons entitled
thereto as soon as practicable after the notices shall be
received.
(b) Form of Payment. Payment for shares of Stock
purchased under this Option Agreement shall be made in full and
in cash or check made payable to the Company. Provided, payment
for shares of Stock purchased under this Option Agreement may
also be made in common stock of the Company or a combination of
cash and common stock of the Company. In the event that common
stock of the Company is utilized in consideration for the
purchase of Stock upon the exercise of the Stock Options, then,
such common stock shall be valued at the "fair market value" as
defined in Section 1.6 of the Plan. In addition to the foregoing
procedure which may be available for the exercise of the Stock
Options, the Participant may deliver to the Company a notice of
exercise including an irrevocable instruction to the Company to
deliver the stock certificate representing the shares subject to
the Stock Options to a broker authorized to trade in the common
stock of the Company. Upon receipt of such notice, the Company
will acknowledge receipt of the executed notice of exercise and
forward this notice to the broker. Upon receipt of the copy of
the notice which has been acknowledged by the Company, and
without waiting for issuance of the actual stock certificate with
respect to the exercise of the Stock Options, the broker may sell
the Stock (or that portion of the Stock necessary to cover the
Option Price and any withholding taxes due, if any). Upon
receipt of the stock certificate from the Company, the broker
will deliver directly to the Company that portion of the sales
proceeds to cover the Option Price and any withholding taxes.
Further, the broker may also facilitate a loan to the Participant
upon advance receipt of the exercise notice for issuance of the
actual stock certificate as an alternative means of financing and
facilitating the exercise of any Stock Option. For all purposes
of effecting the exercise of the Stock Options, the date on which
the Participant gives the notice of exercise to the Company will
be the date he becomes bound contractually to take and pay for
the shares of Stock underlying the Stock Options. No Stock shall
be issued to the Participant until the Company receives full
payment for the Stock purchased under the Stock Options which
shall include any required state and federal withholding taxes.
(c) Further Information. In the event the Stock
Options are exercised, pursuant to the foregoing provisions of
this Section 7, by any person or persons other than the
Participant in the event of the death of the Participant, such
notice shall also be accompanied by appropriate proof of the
right of such person or persons to exercise the Stock Options.
The notice so required shall be given by personal delivery to the
Secretary of the Company or by registered or certified mail,
addressed to the Company at 6301 Waterford Boulevard, Oklahoma
City, Oklahoma 73118, and it shall be deemed to have been given
when it is so personally delivered or when it is deposited in the
United States mail in an envelope addressed to the Company, as
aforesaid, properly stamped for delivery as a registered or
certified letter.
8. ACCELERATION OF OPTIONS UPON CHANGE OF CONTROL.
Notwithstanding anything to the contrary in the Plan, in the
event of a "Change of Control" (as such term is defined in
Section 8 of this Option Agreement and not in the Plan), any and
all Stock Options will become automatically fully vested and
immediately exercisable with such acceleration to occur without
the requirement of any further act by either the Company or the
Participant. For purposes of this Participant and this Option
Agreement, the term "Change of Control" shall mean:
(i) The acquisition by any
individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange
Act) of 20% or more (the "Triggering
Percentage") of either (i) the then
outstanding shares of common stock of the
Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of
the then outstanding voting securities of the
Company entitled to vote generally in the
election of directors (the "Outstanding
Company Voting Securities"); provided,
however, in the event the "Incumbent Board"
(as such term is hereinafter defined)
pursuant to authority granted in any rights
agreement to which the Company is a party
(the "Rights Agreement") lowers the
acquisition threshold percentages set forth
in such Rights Agreement, the Triggering
Percentage shall be automatically reduced to
equal the threshold percentages set pursuant
to authority granted to the board in the
Rights Agreement; and provided, further,
however, that the following acquisitions
shall not constitute a Change of Control:
(i) any acquisition directly from the
Company, (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit
plan (or related trust) sponsored or
maintained by the Company or any corporation
controlled by the Company, or (iv) any
acquisition by any corporation pursuant to a
transaction which complies with clauses (x),
(y), and (z) of subsection (iii) of this
Section 8; or
(ii) Individuals who, as of the
date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to
constitute at least a majority of the Board;
provided, however, that any individual
becoming a director subsequent to the date
hereof whose election, appointment or
nomination for election by the Company's
shareholders, was approved by a vote of at
least a majority of the directors then
comprising the Incumbent Board shall be
considered as though such individual were a
member of the Incumbent Board, but excluding,
for purposes of this definition, any such
individual whose initial assumption of office
occurs as a result of an actual or threatened
election contest with respect to the election
or removal of directors or other actual or
threatened solicitation of proxies or
consents by or on behalf of a Person other
than the Board; or
(iii) Approval by the shareholders
of the Company of a reorganization, share
exchange, merger or consolidation or
acquisition of assets of another corporation
(a "Business Combination"), in each case,
unless, following such Business Combination,
(x) all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities
immediately prior to such Business
Combination will beneficially own, directly
or indirectly, more than 50% of,
respectively, the then outstanding shares of
common stock and the combined voting power of
the then outstanding voting securities
entitled to vote generally in the election of
directors, as the case may be, of the
corporation resulting from such Business
Combination (including, without limitation, a
corporation which as a result of such
transaction will own the Company through one
or more subsidiaries) in substantially the
same proportions as their ownership,
immediately prior to such Business
Combination of the Outstanding Company Common
Stock and Outstanding Company Voting
Securities, as the case may be, (y) no Person
(excluding any employee benefit plan (or
related trust) of the Company or such
corporation resulting from such Business
Combination) will beneficially own, directly
or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock
of the corporation resulting from such
Business Combination or the combined voting
power of the then outstanding voting
securities of such corporation except to the
extent that such ownership existed prior to
the Business Combination, and (z) at least a
majority of the members of the board of
directors of the corporation resulting from
such Business Combination will have been
members of the Incumbent Board at the time of
the execution of the initial agreement, or of
the action of the Board, providing for such
Business Combination; or
(iv) Approval by the shareholders
of the Company of (x) a complete liquidation
or dissolution of the Company or, (y) the
sale or other disposition of all or
substantially all of the assets of the
Company, other than to a corporation, with
respect to which following such sale or other
disposition, (A) more than 50% of,
respectively, the then outstanding shares of
common stock of such corporation and the
combined voting power of the then outstanding
voting securities of such corporation
entitled to vote generally in the election of
directors will be beneficially owned,
directly or indirectly, by all or
substantially all of the individuals and
entities who were the beneficial owners,
respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or
other disposition in substantially the same
proportion as their ownership, immediately
prior to such sale or other disposition, of
the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the
case may be, (B) less than 20% of,
respectively, the then outstanding shares of
common stock of such corporation and the
combined voting power of the then outstanding
voting securities of such corporation
entitled to vote generally in the election of
directors will be beneficially owned,
directly or indirectly, by any Person
(excluding any employee benefit plan (or
related trust) of the Company or such
corporation), except to the extent that such
Person owned 20% or more of the Outstanding
Company Common Stock or Outstanding Company
Voting Securities prior to the sale or
disposition, and (C) at least a majority of
the members of the board of directors of such
corporation will have been members of the
Incumbent Board at the time of the execution
of the initial agreement, or of the action of
the Board, providing for such sale or other
disposition of assets of the Company.
9. SECURITIES LAW RESTRICTIONS. Stock Options shall be
exercised and Stock issued only upon compliance with the
Securities Act of 1933, as amended (the "Act"), and any other
applicable securities law, or pursuant to an exemption therefrom.
10. NOTICES. All notices or other communications relating
to the Plan and this Option Agreement as it relates to the
Participant shall be in writing and shall be mailed (U.S. Mail)
by the Company to the Participant at the then current address as
maintained by the Company or such other address as the
Participant may advise the Company in writing.
IN WITNESS WHEREOF, the Company has caused this Option
Agreement to be duly executed by its officers thereunto duly
authorized, and the Participant has hereunto set his hand and
seal, all on the day and year first above written.
COMPANY: FLEMING COMPANIES, INC., an
Oklahoma corporation
By:________________________________
Scott M. Northcutt, Senior Vice President
- Human Resources
PARTICIPANT: ___________________________________