Exhibit 10.71
FLEMING BOARD MEMBER
EMAR.NET, INC.
NOTICE OF GRANT OF STOCK OPTION
Notice is hereby given of the following option grant
(the "Option") to purchase shares of the Common Stock of
eMAR.net, Inc. (the "Corporation"):
Optionee:
Grant Date: January 18, 2000
Vesting Commencement Date: January 18, 2000
Exercise Price: $0.20 per share
Number of Option Shares: 4,000 shares of Common Stock
Expiration Date: January 17, 2010
Type of Incentive Stock Option
Option:
X Non-Statutory Stock Option
Date Exercisable: Immediately Exercisable
Vesting Schedule: The Option Shares shall initially be
unvested and subject to repurchase by the Corporation at the
Exercise Price paid per share. Optionee shall acquire a
vested interest in, and the Corporation's repurchase right
shall accordingly lapse with respect to, (i) twenty-five
percent (25%) of the Option Shares upon Optionee's
completion of one (1) year of Service measured from the
Vesting Commencement Date and (ii) the balance of the Option
Shares in a series of thirty-six (36) successive equal
monthly installments upon Optionee's completion of each
additional month of Service over the thirty-six (36)-month
period measured from the first anniversary of the Vesting
Commencement Date. In no event shall any additional Option
Shares vest after Optionee's cessation of Service.
Optionee understands and agrees that the Option is
granted subject to and in accordance with the terms of the
eMAR.net, Inc. 2000 Stock Option/Stock Issuance Plan (the
"Plan"). Optionee further agrees to be bound by the terms of the
Plan and the terms of the Option as set forth in the Stock Option
Agreement attached hereto as Exhibit A.
Optionee understands that any Option Shares purchased
under the Option will be subject to the terms set forth in the
Stock Purchase Agreement attached hereto as Exhibit B. Optionee
hereby acknowledges receipt of a copy of the Plan in the form
attached hereto as Exhibit C.
REPURCHASE RIGHTS. OPTIONEE HEREBY AGREES THAT ALL
OPTION SHARES ACQUIRED UPON THE EXERCISE OF THE OPTION SHALL BE
SUBJECT TO CERTAIN REPURCHASE RIGHTS AND RIGHTS OF FIRST REFUSAL
EXERCISABLE BY THE CORPORATION AND ITS ASSIGNS. THE TERMS OF
SUCH RIGHTS ARE SPECIFIED IN THE ATTACHED STOCK PURCHASE
AGREEMENT.
At Will Employment. Nothing in this Notice or in the
attached Stock Option Agreement or Plan shall confer upon
Optionee any right to continue in Service for any period of
specific duration or interfere with or otherwise restrict in any
way the rights of the Corporation (or any Parent or Subsidiary
employing or retaining Optionee) or of Optionee, which rights are
hereby expressly reserved by each, to terminate Optionee's
Service at any time for any reason, with or without cause.
No Impairment of Rights. Nothing in this Notice or the
attached Stock Option Agreement or Plan shall interfere with or
otherwise impair the rights of Fleming and the Fleming
stockholders to terminate Optionee's service as a Fleming Board
Member at any time in accordance with the provisions of
applicable law.
Definitions. All capitalized terms in this Notice
shall have the meaning assigned to them in this Notice or in the
attached Stock Option Agreement.
DATED: JANUARY 18, 2000
EMAR.NET, INC.
By:
John M. Thompson
Title: Vice President - Chief
Financial Officer and
Treasurer
OPTIONEE
Address:
Attachments:
Exhibit A - Stock Option Agreement
Exhibit B - Stock Purchase Agreement
Exhibit C - 2000 Stock Option/Stock Issuance Plan
EXHIBIT A
FLEMING NON-EMPLOYEE BOARD MEMBER
EMAR.NET, INC.
STOCK OPTION AGREEMENT
RECITALS
A. The Board has adopted the Plan for the purpose of retaining
the services of selected Employees, non-employee members of the
Board or the board of directors of any Parent or Subsidiary and
consultants and other independent advisors in the service of the
Corporation (or any Parent or Subsidiary).
B. Optionee is to render valuable services to the Corporation
(or a Parent or Subsidiary), and this Agreement is executed
pursuant to, and is intended to carry out the purposes of, the
Plan in connection with the Corporation's grant of an option to
Optionee.
C. All capitalized terms in this Agreement shall have the
meaning assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. The Corporation hereby grants to
Optionee, as of the Grant Date, an option to purchase up to the number
of Option Shares specified in the Grant Notice. The Option Shares
shall be purchasable from time to time during the option term
specified in Paragraph 2 at the Exercise Price.
2. Option Term. This option shall have a term of ten (10)
years measured from the Grant Date and shall accordingly expire
at the close of business on the Expiration Date, unless sooner
terminated in accordance with Paragraph 5 or 6.
3. Limited Transferability.
(a) Except as otherwise provided in Paragraph 3(b),
this option shall be neither transferable nor assignable by Optionee
other than by will or the laws of inheritance following Optionee's
death and may be exercised, during Optionee's lifetime, only by
Optionee. However, Optionee may designate one or more persons
as the beneficiary or beneficiaries of this option, and this
option shall, in accordance with such designation, automatically
be transferred to such beneficiary or beneficiaries upon the
Optionee's death while holding this option. Such beneficiary or
beneficiaries shall take the transferred option subject to all
the terms and conditions of this Agreement, including (without
limitation) the limited time period during which this option may,
pursuant to Paragraph 5, be exercised following Optionee's death.
(b) This option may be assigned in whole or in part
during Optionee's lifetime to one or more members of Optionee's family
or to a trust established for the exclusive benefit of one or
more such family members or to Optionee's former spouse, to the
extent such assignment is in connection with the Optionee's
estate plan or pursuant to a domestic relations order. The
assigned portion shall be exercisable only by the person or
persons who acquire a proprietary interest in the option pursuant
to such assignment. The terms applicable to the assigned portion
shall be the same as those in effect for this option immediately
prior to such assignment.
4. Dates of Exercise. This option shall become exercisable
for the Option Shares in one or more installments as specified in the
Grant Notice. As the option becomes exercisable for such
installments, those installments shall accumulate, and the option
shall remain exercisable for the accumulated installments until
the Expiration Date or sooner termination of the option term
under Paragraph 5 or 6.
5. Cessation of Service. The option term specified in
Paragraph 2 shall terminate (and this option shall cease to be
outstanding) prior to the Expiration Date should any of the
following provisions become applicable:
(a) Should Optionee cease to remain in Service for any
reason (other than death, Disability or Misconduct) while holding this
option, then Optionee shall have a period of three (3) months
(commencing with the date of such cessation of Service) during
which to exercise this option, but in no event shall this option
be exercisable at any time after the Expiration Date.
(b) Should Optionee die while holding this option,
then the personal representative of Optionee's estate or the person or
persons to whom the option is transferred pursuant to Optionee's
will or the laws of inheritance shall have the right to exercise
this option. However, if Optionee has designated one or more
beneficiaries of this option, then those persons shall have the
exclusive right to exercise this option following Optionee's
death. Any such right to exercise this option shall lapse, and
this option shall cease to be outstanding, upon the earlier of
(i) the expiration of the twelve (12)-month period measured from
the date of Optionee's death or (ii) the Expiration Date.
(c) Should Optionee cease Service by reason of Disability
while holding this option, then Optionee shall have a period of twelve
(12) months (commencing with the date of such cessation of
Service) during which to exercise this option. In no event shall
this option be exercisable at any time after the Expiration Date.
(d) During the limited period of post-Service exercis-
ability, this option may not be exercised in the aggregate for more than
the number of Option Shares in which Optionee is, at the time of
Optionee's cessation of Service, vested pursuant to the Vesting
Schedule specified in the Grant Notice or the special vesting
acceleration provisions of Paragraph 6. Upon the expiration of
such limited exercise period or (if earlier) upon the Expiration
Date, this option shall terminate and cease to be outstanding for
any vested Option Shares for which the option has not been
exercised. To the extent Optionee is not vested in one or more
Option Shares at the time of Optionee's cessation of Service,
this option shall immediately terminate and cease to be
outstanding with respect to those shares.
(e) Should Optionee's Service be terminated for Miscon-
duct or should Optionee otherwise engage in Misconduct while this option
is outstanding, then this option shall terminate immediately and
cease to remain outstanding.
6. Parent Level Change in Control. Should a Parent-Level
Change in Control occur at a time when the Optionee is a Fleming
Board Member, then the Option Shares at the time subject to this
option shall automatically vest in full so that this option
shall, immediately prior to the effective date of such Parent-
Level Change in Control, become exercisable for all of the Option
Shares as fully-vested shares and may be exercised for any or all
of those Option Shares as vested shares. The option shall
remain so exercisable until the expiration or sooner termination
of the option term pursuant to the provisions of this Agreement.
7. Corporate Level Change in Control.
(a) Should a Corporate-Level Change in Control occur at
a time when the Optionee is a Fleming Board Member, then the Option
Shares at the time subject to this option but not otherwise
vested shall automatically vest in full so that this option
shall, immediately prior to the effective date of such Corporate-
Level Change in Control, become exercisable for all of the Option
Shares as fully-vested shares and may be exercised for any or all
of those Option Shares as vested shares.
(b) Immediately following the consummation of the Corpo-
rate-Level Change in Control, this option shall terminate and cease to
be outstanding, except to the extent assumed by the successor
corporation (or parent thereof) or otherwise continued in full
force and effect pursuant to the express terms of the Corporate-
Level Change in Control transaction.
8. Additional Change in Control Provisions.
(a) If this option is assumed in connection with a Corpo-
rate-Level Change in Control, then this option shall be appropriately
adjusted, immediately after such transaction, to apply to the
number and class of securities which would have been issuable to
Optionee in consummation of such Corporate-Level Change in
Control, had the option been exercised immediately prior to such
transaction. Appropriate adjustments shall also be made to the
exercise price provided the aggregate exercise price shall remain
the same. To the extent the actual holders of the Corporation's
outstanding Common Stock receive cash consideration for their
Common Stock in consummation of the Corporate-Level Change in
Control, the successor corporation may, in connection with the
assumption of this option, substitute one or more shares of its
own common stock with a fair market value equivalent to the cash
consideration paid per share of Common Stock in such Corporate-
Level Change in Control.
(b) This Agreement shall not in any way affect the right
of the Corporation or Fleming as the Corporation's Parent to adjust,
reclassify, reorganize or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
9. Parent-Level Reduction in Ownership. Should a Parent-
Level Reduction in Ownership occur at a time when the Optionee is a
Fleming Board Member, then the Option Shares at the time subject
to this option but not otherwise vested shall automatically vest
in full so that this option shall, immediately prior to the
effective date of such Parent-Level Reduction in Ownership,
become exercisable for all of the Option Shares as fully-vested
shares and may be exercised for any or all of those Option Shares
as vested shares. The option shall remain so exercisable until
the expiration or sooner termination of the option term pursuant
to the provisions of this Agreement.
10. Approved Termination Event. Should the Optionee's
Service as a Fleming Board Member cease by reason of an Approved
Termination Event, then fifty percent (50%) of any Option Shares
which are not otherwise at that time vested in accordance with
the provisions of this Agreement shall vest so that this option
shall immediately become exercisable for that percentage portion
of the Option Shares as fully-vested shares and may be exercised
for any or all of those vested Option Shares, together with any
other Option Shares which may have vested in accordance with the
provisions of this Agreement. The option shall remain so
exercisable until the expiration or sooner termination of the
option term pursuant to the provisions of this Agreement.
11. Adjustment in Option Shares. Should any change be
made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or
other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the total number and/or class of
securities subject to this option and (ii) the Exercise Price in
order to reflect such change and thereby preclude a dilution or
enlargement of benefits hereunder.
12. Stockholder Rights. The holder of this option shall
not have any stockholder rights with respect to the Option Shares
until such person shall have exercised the option, paid the
Exercise Price and become the record holder of the purchased
shares.
13. Manner of Exercising Option.
(a) In order to exercise this option with respect to
all or any part of the Option Shares for which this option is at the
time exercisable, Optionee (or any other person or persons exercising
the option) must take the following actions:
(i) Execute and deliver to the Corporation a Pur-
chase Agreement for the Option Shares for which the option is
exercised.
(ii) Pay the aggregate Exercise Price for the pur-
chased shares in cash or check made payable to the Corporation.
Should the Common Stock be registered under
Section 12 of the 1934 Act at the time the option is
exercised, then the Exercise Price may also be paid as
follows:
(A) in shares of Common Stock held by
Optionee (or any other person or persons exercising the
option) for the requisite period necessary to avoid a
charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on
the Exercise Date; or
(B) to the extent the option is
exercised for vested Option Shares, through a special
sale and remittance procedure pursuant to which
Optionee (or any other person or persons exercising the
option) shall concurrently provide irrevocable
instructions (a) to a Corporation-designated brokerage
firm to effect the immediate sale of the purchased
shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient
funds to cover the aggregate Exercise Price payable for
the purchased shares plus all applicable Federal, state
and local income and employment taxes required to be
withheld by the Corporation by reason of such exercise
and (b) to the Corporation to deliver the certificates
for the purchased shares directly to such brokerage
firm in order to complete the sale.
Except to the extent the sale and remittance
procedure is utilized in connection with the option
exercise, payment of the Exercise Price must accompany
the Purchase Agreement delivered to the Corporation in
connection with the option exercise.
(iii) Furnish to the Corporation appropriate docu-
mentation that the person or persons exercising the option (if
other than Optionee) have the right to exercise this option.
(iv) Execute and deliver to the Corporation such
written representations as may be requested by the Corporation in
order for it to comply with the applicable requirements of Federal
and state securities laws.
(v) Make appropriate arrangements with the Corpora-
tion (or Parent or Subsidiary employing or retaining Optionee) for
the satisfaction of all Federal, state and local income and
employment tax withholding requirements applicable to the option
exercise.
(b) As soon as practical after the Exercise Date, the
Corporation shall issue to or on behalf of Optionee (or any other
person or persons exercising this option) a certificate for the
purchased Option Shares, with the appropriate legends affixed
thereto.
(c) In no event may this option be exercised for any
fractional shares.
14. REPURCHASE RIGHTS. ALL OPTION SHARES ACQUIRED UPON THE
EXERCISE OF THIS OPTION SHALL BE SUBJECT TO CERTAIN RIGHTS OF THE
CORPORATION AND FLEMING AND ITS ASSIGNS TO REPURCHASE THOSE
SHARES IN ACCORDANCE WITH THE TERMS SPECIFIED IN THE PURCHASE
AGREEMENT.
15. Compliance with Laws and Regulations.
(a) The exercise of this option and the issuance of the
Option Shares upon such exercise shall be subject to compliance by the
Corporation and Optionee with all applicable requirements of law
relating thereto and with all applicable regulations of any stock
exchange (or the Nasdaq National Market, if applicable) on which
the Common Stock may be listed for trading at the time of such
exercise and issuance.
(b) The inability of the Corporation to obtain approval
from any regulatory body having authority deemed by the Corporation to
be necessary to the lawful issuance and sale of any Common Stock
pursuant to this option shall relieve the Corporation of any
liability with respect to the non-issuance or sale of the Common
Stock as to which such approval shall not have been obtained.
The Corporation, however, shall use its best efforts to obtain
all such approvals.
16. Successors and Assigns. Except to the extent otherwise
provided in Paragraphs 3 and 6, the provisions of this Agreement
shall inure to the benefit of, and be binding upon, the
Corporation and its successors and assigns and Optionee,
Optionee's assigns and the legal representatives, heirs and
legatees of Optionee's estate.
17. Notices. Any notice required to be given or delivered
to the Corporation under the terms of this Agreement shall be in
writing and addressed to the Corporation at its principal
corporate offices. Any notice required to be given or delivered
to Optionee shall be in writing and addressed to Optionee at the
address indicated below Optionee's signature line on the Grant
Notice. All notices shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and
properly addressed to the party to be notified.
18. Construction. This Agreement and the option evidenced
hereby are made and granted pursuant to the Plan and are in all
respects limited by and subject to the terms of the Plan. All
decisions of the Plan Administrator with respect to any question
or issue arising under the Plan or this Agreement shall be
conclusive and binding on all persons having an interest in this
option.
19. Governing Law. The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of
the State of Texas without resort to that State's conflict-of-
laws rules.
20. Stockholder Approval. If the Option Shares covered by
this Agreement exceed, as of the Grant Date, the number of shares of
Common Stock which may be issued under the Plan as last approved
by the stockholders, then this option shall be void with respect
to such excess shares, unless stockholder approval of an
amendment sufficiently increasing the number of shares of Common
Stock issuable under the Plan is obtained in accordance with the
provisions of the Plan.
APPENDIX
The following definitions shall be in effect under the
Agreement:
A. Agreement shall mean this Stock Option Agreement.
B. Approved Termination Event shall mean the Optionee's
voluntary resignation from the Fleming Board of Directors (i) on
or after his or her attainment of age sixty-five (65) or (ii) in
accordance with the governance policy in effect at the time for
members of the Fleming Board of Directors.
C. Board shall mean the Corporation's Board of Directors.
D. Code shall mean the Internal Revenue Code of 1986, as
amended.
E. Common Stock shall mean the Corporation's common stock.
F. Corporate-Level Change in Control shall mean any of the
following transactions involving a change in control or ownership
of the Corporation:
(i) a stockholder-approved merger or consolidation in which
securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities
are transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction,
or
(ii) a stockholder-approved sale, transfer or other dis-
position of all or substantially all of the Corporation's assets in
complete liquidation or dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or
is under common control with, the Corporation) of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended) of securities possessing more
than fifty percent (50%) of the total combined voting power of
the Corporation's outstanding securities pursuant to a tender or
exchange offer made directly to the Corporation's stockholders.
G. Corporation shall mean eMAR.net, Inc., a Delaware
corporation, and any successor corporation to all or
substantially all of the assets or voting stock of eMAR.net, Inc.
which shall be appropriate action assume this option.
H. Disability shall mean the inability of Optionee to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment and shall be
determined by the Plan Administrator on the basis of such medical
evidence as the Plan Administrator deems warranted under the
circumstances.
I. Employee shall mean an individual who is in the employ of
the Corporation (or any Parent or Subsidiary), subject to the
control and direction of the employer entity as to both the work
to be performed and the manner and method of performance.
J. Exercise Date shall mean the date on which the option
shall have been exercised in accordance with Paragraph 9 of the
Agreement.
K. Exercise Price shall mean the exercise price payable per
Option Share as specified in the Grant Notice.
L. Expiration Date shall mean the date on which the option
expires as specified in the Grant Notice.
M. Fair Market Value per share of Common Stock on any relevant
date shall be determined in accordance with the following
provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question,
as the price is reported by the National Association of
Securities Dealers on the Nasdaq National Market and published in
The Wall Street Journal. If there is no closing selling price
for the Common Stock on the date in question, then the Fair
Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question on
the Stock Exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially
quoted in the composite tape of transactions on such exchange and
published in The Wall Street Journal. If there is no closing
selling price for the Common Stock on the date in question, then
the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time neither listed
on any Stock Exchange nor traded on the Nasdaq National Market,
then the Fair Market Value shall be determined by the Plan
Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate.
N. Fleming shall mean Fleming Companies, Inc., an Oklahoma
corporation, which is currently the Parent of the Corporation.
O. Fleming Board Member shall mean any individual who is at the
time of determination serving as a member of the Fleming Board of
Directors.
P. Grant Date shall mean the date of grant of the option as
specified in the Grant Notice.
Q. Grant Notice shall mean the Notice of Grant of Stock Option
accompanying the Agreement, pursuant to which Optionee has been
informed of the basic terms of the option evidenced hereby.
R. Misconduct shall mean the commission of any act of fraud,
embezzlement or dishonesty by Optionee, any unauthorized use or
disclosure by Optionee of confidential information or trade
secrets of the Corporation (or any Parent or Subsidiary), or any
other intentional misconduct by Optionee adversely affecting the
business or affairs of the Corporation (or any Parent or
Subsidiary) in a material manner. The foregoing definition shall
not be deemed to be inclusive of all the acts or omissions which
the Corporation (or any Parent or Subsidiary) may consider as
grounds for the dismissal or discharge of Optionee or any other
individual in the Service of the Corporation (or any Parent or
Subsidiary).
S. 1934 Act shall mean the Securities Exchange Act of 1934, as
amended.
T. Non-Statutory Option shall mean an option not intended to
satisfy the requirements of Code Section 422.
U. Option Shares shall mean the number of shares of Common
Stock subject to the option.
V. Optionee shall mean the person to whom the option is granted
as specified in the Grant Notice.
W. Parent shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations ending with the
Corporation, provided each corporation in the unbroken chain
(other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
X. Parent-Level Change in Control shall mean any of the
following transactions involving a change in control or ownership
of the Fleming which is effected while, and only while, Fleming
is the Parent of the Corporation:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act (a
"Person") of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the 1933 Act) of 20% or more (the "Triggering
Percentage") of either (i) the then outstanding shares of Fleming
common stock (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding Fleming voting
securities 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 Fleming 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 Parent-Level Change in
Control: (i) any acquisition directly from Fleming, (ii) any
acquisition by Fleming, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by
Fleming or any corporation controlled by Fleming, or (iv) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (x), (y), and (z) of subsection (iii) of
this definition; or
(ii) a change in the composition of the Fleming Board of
Directors such that the individuals who, as of the date of this
Agreement, constitute the Fleming Board of Directors (the
"Incumbent Board") cease for any reason to comprise at least a
majority of the Fleming Board of Directors; provided, however,
that any individual who becomes a member of the Fleming Board of
Directors subsequent to the date of this Agreement and whose
election, appointment or nomination for election by Fleming'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 Fleming Board of Directors; or
(iii) the approval by the Fleming shareholders 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 Fleming 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 Fleming 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 Incumbent
Board, providing for such Business Combination; or
(iv) the approval by the shareholders of Fleming of (x) a
complete liquidation or dissolution of Fleming or, (y) the sale
or other disposition of all or substantially all of the assets of
Fleming, 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 Fleming 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 Fleming.
Y. Parent-Level Reduction in Ownership shall mean any
transaction, including (without limitation) any sale or other
disposition by Fleming of its ownership interest in any
outstanding voting securities of the Corporation or any direct
issuance of voting securities by the Corporation, which effects a
reduction to Fleming's combined direct and indirect (through one
or more majority-owned subsidiaries) ownership of the
Corporation's voting securities to an amount which represents
less than fifty percent (50%) of the total combined voting power
of all outstanding classes of stock of the Corporation.
Z. Plan shall mean the Corporation's 2000 Stock Option/Stock
Issuance Plan.
AA. Plan Administrator shall mean either the Board or a
committee of the Board acting in its capacity as administrator of
the Plan.
BB. Purchase Agreement shall mean the stock purchase agreement
in substantially the form of Exhibit B to the Grant Notice.
CC. Service shall mean the Optionee's performance of services
for the Corporation (or any Parent or Subsidiary) in the capacity
of an Employee, a non-employee member of the board of directors
or an independent consultant. Service shall in all events
include the Optionee's service as a Fleming Board Member.
DD. Stock Exchange shall mean the American Stock Exchange or the
New York Stock Exchange.
EE. Subsidiary shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with
the Corporation, provided each corporation (other than the last
corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
FF. Vesting Schedule shall mean the vesting schedule specified
in the Grant Notice pursuant to which the Optionee is to vest in
the Option Shares in a series of installments over his or her
period of Service.
EXHIBIT B
EMAR.NET, INC.
STOCK PURCHASE AGREEMENT
AGREEMENT made as of this ____ day of February, 2000 by
and between eMAR.net, Inc., a Delaware corporation, and
________________________________, a Participant in the
Corporation's 2000 Stock Option/Stock Issuance Plan.
All capitalized terms in this Agreement shall have the
meaning assigned to them in this Agreement or in the attached
Appendix.
A. PURCHASE OF SHARES
1. Purchase. Participant hereby purchases Four Thousand
(4,000) shares of Common Stock (the "Purchased Shares") pursuant
to that certain option granted Participant on January 18, 2000 to
purchase up to Four Thousand (4,000) shares of Common Stock under
the Plan at the purchase price of $0.20 per share (the "Purchase
Price").
2. Payment. Concurrently with the delivery of this Agreement
to the Corporation, Participant shall pay the Purchase Price for
the Purchased Shares in cash or cash equivalent and shall deliver
a duly-executed blank Assignment Separate from Certificate (in
the form attached hereto as Exhibit I) with respect to the
Purchased Shares.
3. Stockholder Rights. Until such time as the Corporation
exercises the Repurchase Right or the First Refusal Right,
Participant (or any successor in interest) shall have all
stockholder rights (including voting, dividend and liquidation
rights) with respect to the Purchased Shares, subject, however,
to the transfer restrictions of Articles B and C.
B. SECURITIES LAW COMPLIANCE
1. Restricted Securities. The Purchased Shares have not been
registered under the 1933 Act and are being issued to Participant
in reliance upon one of the following exemptions from such
registration requirements: (i) SEC Rule 701 for stock issuances
under compensatory benefit plans such as the Plan, (ii) SEC Rule
504 for limited offering of One Million Dollars ($1,000,000) or
less or (iii) the private placement exemption provided under
Section 4(2) of the 1933 Act. Participant hereby confirms that
Participant has been informed that the Purchased Shares are
restricted securities under the 1933 Act and may not be resold or
transferred unless the Purchased Shares are first registered
under the Federal securities laws or unless an exemption from
such registration is available. Accordingly, Participant hereby
acknowledges that Participant is prepared to hold the Purchased
Shares for an indefinite period and that Participant is aware
that SEC Rule 144 issued under the 1933 Act which exempts certain
resales of unrestricted securities is not presently available to
exempt the resale of the Purchased Shares from the registration
requirements of the 1933 Act.
2. Disposition of Purchased Shares. Participant shall make no
disposition of the Purchased Shares (other than a Permitted
Transfer) unless and until there is compliance with all of the
following requirements:
(i) Participant shall have provided the Corporation with a
written summary of the terms and conditions of the proposed
disposition.
(ii) Participant shall have complied with all requirements of
this Agreement applicable to the disposition of the Purchased
Shares.
(iii) Participant shall have provided the Corporation with
written assurances, in form and substance satisfactory to the
Corporation, that (a) the proposed disposition does not require
registration of the Purchased Shares under the 1933 Act or
(b) all appropriate action necessary for compliance with the
registration requirements of the 1933 Act or any exemption from
registration available under the 1933 Act (including Rule 144)
has been taken.
The Corporation shall not be required (i) to
transfer on its books any Purchased Shares which have been sold
or transferred in violation of the provisions of this Agreement
or (ii) to treat as the owner of the Purchased Shares, or
otherwise to accord voting, dividend or liquidation rights to,
any transferee to whom the Purchased Shares have been transferred
in contravention of this Agreement.
3. Restrictive Legends. The stock certificates for the
Purchased Shares shall be endorsed with one or more of the
following restrictive legends:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933. The
shares may not be sold or offered for sale in the
absence of (a) an effective registration statement for
the shares under such Act, (b) a "no action" letter of
the Securities and Exchange Commission with respect to
such sale or offer or (c) satisfactory assurances to
the Corporation that registration under such Act is not
required with respect to such sale or offer."
"The shares represented by this certificate are subject
to certain repurchase rights and rights of first
refusal granted to the Corporation and accordingly may
not be sold, assigned, transferred, encumbered, or in
any manner disposed of except in conformity with the
terms of a written agreement dated February ____, 2000
between the Corporation and the registered holder of
the shares (or the predecessor in interest to the
shares). A copy of such agreement is maintained at the
Corporation's principal corporate offices."
C. TRANSFER RESTRICTIONS
1. Restriction on Transfer. Except for any Permitted Transfer,
Participant shall not transfer, assign, encumber or otherwise
dispose of any of the Purchased Shares which are subject to the
Repurchase Right. In addition, Purchased Shares which are
released from the Repurchase Right shall not be transferred,
assigned, encumbered or otherwise disposed of in contravention of
the First Refusal Right or the Market Stand-Off.
2. Transferee Obligations. Each person (other than the
Corporation) to whom the Purchased Shares are transferred by
means of a Permitted Transfer must, as a condition precedent to
the validity of such transfer, acknowledge in writing to the
Corporation that such person is bound by the provisions of this
Agreement and that the transferred shares are subject to (i) the
Repurchase Right, (ii) the First Refusal Right and (iii) the
Market Stand-Off, to the same extent such shares would be so
subject if retained by Participant.
3. Market Stand-Off.
(a) In connection with any underwritten public
offering by the Corporation of its equity securities pursuant to
an effective registration statement filed under the 1933 Act,
including the Corporation's initial public offering, Owner shall
not sell, make any short sale of, loan, hypothecate, pledge,
grant any option for the purchase of, or otherwise dispose or
transfer for value or otherwise agree to engage in any of the
foregoing transactions with respect to, any Purchased Shares
without the prior written consent of the Corporation or its
underwriters. Such restriction (the "Market Stand-Off") shall be
in effect for such period of time from and after the effective
date of the final prospectus for the offering as may be requested
by the Corporation or such underwriters. In no event, however,
shall such period exceed one hundred eighty (180) days, and the
Market Stand-Off shall in no event be applicable to any
underwritten public offering effected more than two (2) years
after the effective date of the Corporation's initial public
offering.
(b) Owner shall be subject to the Market Stand-
Off provided and only if the officers and directors of the
Corporation are also subject to similar restrictions.
(c) Any new, substituted or additional securities
which are by reason of any Recapitalization or Reorganization
distributed with respect to the Purchased Shares shall be
immediately subject to the Market Stand-Off, to the same extent
the Purchased Shares are at such time covered by such provisions.
(d) In order to enforce the Market Stand-Off, the
Corporation may impose stop-transfer instructions with respect to
the Purchased Shares until the end of the applicable stand-off
period.
D. REPURCHASE RIGHT
1. Grant. The Corporation is hereby granted the right (the
"Repurchase Right"), exercisable at any time during the sixty
(60)-day period following the date Participant ceases for any
reason to remain in Service, to repurchase at the Purchase Price
any or all of the Purchased Shares in which Participant is not,
at the time of his or her cessation of Service, vested in
accordance with the provisions of the Vesting Schedule set forth
in Paragraph D.3 or the special vesting acceleration provisions
of Paragraphs D.5 through D.8 (such shares to be hereinafter
referred to as the "Unvested Shares").
2. Exercise of the Repurchase Right. The Repurchase Right
shall be exercisable by written notice delivered to each Owner of
the Unvested Shares prior to the expiration of the sixty (60)-day
exercise period. The notice shall indicate the number of
Unvested Shares to be repurchased and the date on which the
repurchase is to be effected, such date to be not more than
thirty (30) days after the date of such notice. The certificates
representing the Unvested Shares to be repurchased shall be
delivered to the Corporation on the closing date specified for
the repurchase. Concurrently with the receipt of such stock
certificates, the Corporation shall pay to Owner, in cash or cash
equivalents (including the cancellation of any purchase-money
indebtedness), an amount equal to the Purchase Price previously
paid for the Unvested Shares which are to be repurchased from
Owner.
3. Termination of the Repurchase Right. The Repurchase Right
shall terminate with respect to any Unvested Shares for which it
is not timely exercised under Paragraph D.2. In addition, the
Repurchase Right shall terminate and cease to be exercisable with
respect to any and all Purchased Shares in which Participant
vests in accordance with the following Vesting Schedule:
(i) Participant shall vest in twenty-five percent (25%) of
the Purchased Shares, and the Repurchase Right shall concurrently
lapse with respect to those Purchased Shares, upon Participant's
completion of one (1) year of Service measured from January 18,
2000.
(ii) Participant shall vest in the remaining seventy-five
percent (75%) of the Purchased Shares, and the Repurchase Right shall
concurrently lapse with respect to those Purchased Shares, in a
series of thirty-six (36) successive equal monthly installments
upon Participant's completion of each additional month of Service
over the thirty-six (36)-month period measured from the date on
which the first twenty-five percent (25%) of the Purchased Shares
vests hereunder.
All Purchased Shares as to which the Repurchase
Right lapses shall, however, remain subject to (i) the First
Refusal Right and (ii) the Market Stand-Off.
4. Recapitalization. Any new, substituted or additional
securities or other property (including cash paid other than as a
regular cash dividend) which is by reason of any Recapitalization
distributed with respect to the Purchased Shares shall be
immediately subject to the Repurchase Right and any escrow
requirements hereunder, but only to the extent the Purchased
Shares are at the time covered by such right or escrow
requirements. Appropriate adjustments to reflect such
distribution shall be made to the number and/or class of
Purchased Shares subject to this Agreement and to the price per
share to be paid upon the exercise of the Repurchase Right in
order to reflect the effect of any such Recapitalization upon the
Corporation's capital structure; provided, however, that the
aggregate purchase price shall remain the same.
5. Corporate-Level Change in Control. Should a Corporate-Level
Change in Control occur at a time when the Participant is a
Fleming Board Member, then the Repurchase Right shall
automatically terminate in its entirety, and all the Purchased
Shares shall vest in full, immediately prior to the consummation
of that Corporate-Level Change in Control.
6. Parent-Level Change in Control. Should a Parent-Level
Change in Control occur at a time when the Participant is a
Fleming Board Member, then the Repurchase Right shall
automatically terminate in its entirety, and all the Purchased
Shares shall vest in full, immediately prior to the consummation
of that Parent-Level Change in Control.
7. Parent-Level Reduction in Ownership. Should a Parent-Level
Reduction in Ownership occur at a time when the Participant is a
Fleming Board Member, then the Repurchase Right shall
automatically terminate in its entirety, and all the Purchased
Shares shall vest in full, immediately prior to the consummation
of the transaction resulting in such Parent-Level Reduction in
Ownership.
8. Approved Termination Event. Should the Participant's
Service as a Fleming Board Member cease by reason of an Approved
Termination Event, then the Repurchase Right shall immediately
terminate with respect to fifty percent (50%) of any Purchased
Shares which are not otherwise at that time vested in accordance
with the provisions of this Agreement, and that portion of the
Purchased Shares shall accordingly vest at such time.
E. RIGHT OF FIRST REFUSAL
1. Grant. The Corporation is hereby granted the right of
first refusal (the "First Refusal Right"), exercisable in connection
with any proposed transfer of the Purchased Shares in which
Participant has vested in accordance with the provisions of
Article D. For purposes of this Article E, the term "transfer"
shall include any sale, assignment, pledge, encumbrance or other
disposition of the Purchased Shares intended to be made by Owner,
but shall not include any Permitted Transfer.
2. Notice of Intended Disposition. In the event any Owner
of Purchased Shares in which Participant has vested desires to
accept a bona fide third-party offer for the transfer of any or
all of such shares (the Purchased Shares subject to such offer to
be hereinafter referred to as the "Target Shares"), Owner shall
promptly (i) deliver to the Corporation written notice (the
"Disposition Notice") of the terms of the offer, including the
purchase price and the identity of the third-party offeror, and
(ii) provide satisfactory proof that the disposition of the
Target Shares to such third-party offeror would not be in
contravention of the provisions set forth in Articles B and C.
3. Exercise of the First Refusal Right. The Corporation
shall, for a period of twenty-five (25) days following receipt of the
Disposition Notice, have the right to repurchase any or all of
the Target Shares subject to the Disposition Notice upon the same
terms as those specified therein or upon such other terms (not
materially different from those specified in the Disposition
Notice) to which Owner consents. Such right shall be exercisable
by delivery of written notice (the "Exercise Notice") to Owner
prior to the expiration of the twenty-five (25)-day exercise
period. If such right is exercised with respect to all the
Target Shares, then the Corporation shall effect the repurchase
of such shares, including payment of the purchase price, not more
than five (5) business days after delivery of the Exercise
Notice; and at such time the certificates representing the Target
Shares shall be delivered to the Corporation.
Should the purchase price specified in the
Disposition Notice be payable in property other than cash or
evidences of indebtedness, the Corporation shall have the right
to pay the purchase price in the form of cash equal in amount to
the value of such property. If Owner and the Corporation cannot
agree on such cash value within ten (10) days after the
Corporation's receipt of the Disposition Notice, the valuation
shall be made by an appraiser of recognized standing selected by
Owner and the Corporation or, if they cannot agree on an
appraiser within twenty (20) days after the Corporation's receipt
of the Disposition Notice, each shall select an appraiser of
recognized standing and the two (2) appraisers shall designate a
third appraiser of recognized standing, whose appraisal shall be
determinative of such value. The cost of such appraisal shall be
shared equally by Owner and the Corporation. The closing shall
then be held on the later of (i) the fifth (5th) business day
following delivery of the Exercise Notice or (ii) the fifth (5th)
business day after such valuation shall have been made.
4. Non-Exercise of the First Refusal Right. In the event
the Exercise Notice is not given to Owner prior to the expiration of
the twenty-five (25)-day exercise period, Owner shall have a
period of thirty (30) days thereafter in which to sell or
otherwise dispose of the Target Shares to the third-party offeror
identified in the Disposition Notice upon terms (including the
purchase price) no more favorable to such third-party offeror
than those specified in the Disposition Notice; provided,
however, that any such sale or disposition must not be effected
in contravention of the provisions of Articles B and C. The
third-party offeror shall acquire the Target Shares subject to
the First Refusal Right and the provisions and restrictions of
Article B and Paragraph C.3, and any subsequent disposition of
the acquired shares must be effected in compliance with the terms
and conditions of such First Refusal Right and the provisions and
restrictions of Article B and Paragraph C.3. In the event Owner
does not effect such sale or disposition of the Target Shares
within the specified thirty (30)-day period, the First Refusal
Right shall continue to be applicable to any subsequent
disposition of the Target Shares by Owner until such right
lapses.
5. Partial Exercise of the First Refusal Right. In the
event the Corporation makes a timely exercise of the First Refusal
Right with respect to a portion, but not all, of the Target
Shares specified in the Disposition Notice, Owner shall have the
option, exercisable by written notice to the Corporation
delivered within five (5) business days after Owner's receipt of
the Exercise Notice, to effect the sale of the Target Shares
pursuant to either of the following alternatives:
(i) sale or other disposition of all the Target Shares to the
third-party offeror identified in the Disposition Notice, but in
full compliance with the requirements of Paragraph E.4, as if the
Corporation did not exercise the First Refusal Right; or
(ii) sale to the Corporation of the portion of the Target
Shares which the Corporation has elected to purchase, such sale to be
effected in substantial conformity with the provisions of
Paragraph E.3. The First Refusal Right shall continue to be
applicable to any subsequent disposition of the remaining Target
Shares until such right lapses.
Owner's failure to deliver timely notification to
the Corporation shall be deemed to be an election by Owner to
sell the Target Shares pursuant to alternative (i) above.
6. Recapitalization/Reorganization.
(a) Any new, substituted or additional securities
or other property which is by reason of any Recapitalization
distributed with respect to the Purchased Shares shall be
immediately subject to the First Refusal Right, but only to the
extent the Purchased Shares are at the time covered by such
right.
(b) In the event of a Reorganization, the First
Refusal Right shall remain in full force and effect and shall
apply to the new capital stock or other property received in
exchange for the Purchased Shares in consummation of the
Reorganization, but only to the extent the Purchased Shares are
at the time covered by such right.
7. Lapse. The First Refusal Right shall lapse upon the
earliest to occur of (i) the first date on which shares of the
Common Stock are held of record by more than five hundred (500)
persons, (ii) a determination made by the Board that a public
market exists for the outstanding shares of Common Stock or (iii)
a firm commitment underwritten public offering, pursuant to an
effective registration statement under the 1933 Act, covering the
offer and sale of the Common Stock in the aggregate amount of at
least twenty million dollars ($20,000,000). However, the Market
Stand-Off shall continue to remain in full force and effect
following the lapse of the First Refusal Right.
F. SPECIAL TAX ELECTION
1. Section 83(b) Election. Under Code Section 83, the excess
of the Fair Market Value of the Purchased Shares on the date any
forfeiture restrictions applicable to such shares lapse over the
Purchase Price paid for those shares will be reportable as
ordinary income on the lapse date. For this purpose, the term
"forfeiture restrictions" includes the right of the Corporation
to repurchase the Purchased Shares pursuant to the Repurchase
Right. Participant may elect under Code Section 83(b) to be
taxed at the time the Purchased Shares are acquired, rather than
when and as such Purchased Shares cease to be subject to such
forfeiture restrictions. Such election must be filed with the
Internal Revenue Service within thirty (30) days after the date
of this Agreement. Even if the Fair Market Value of the
Purchased Shares on the date of this Agreement equals the
Purchase Price paid (and thus no tax is payable), the election
must be made to avoid adverse tax consequences in the future.
THE FORM FOR MAKING THIS ELECTION IS ATTACHED AS
EXHIBIT II HERETO. PARTICIPANT UNDERSTANDS THAT FAILURE TO MAKE
THIS FILING WITHIN THE APPLICABLE THIRTY (30)-DAY PERIOD WILL
RESULT IN THE RECOGNITION OF ORDINARY INCOME AS THE FORFEITURE
RESTRICTIONS LAPSE.
2. FILING RESPONSIBILITY. PARTICIPANT ACKNOWLEDGES THAT
IT IS PARTICIPANT'S SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S,
TO FILE A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF
PARTICIPANT REQUESTS THE CORPORATION OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON HIS OR HER BEHALF.
G. GENERAL PROVISIONS
1. Assignment. The Corporation may assign the Repurchase
Right and/or the First Refusal Right to any person or entity selected
by the Board, including (without limitation) Fleming while the
Parent of the Corporation.
2. At Will Employment/No Impairment of Rights.
(a) Nothing in this Agreement or in the Plan
shall confer upon Participant any right to continue in Service
for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation (or
any Parent or Subsidiary employing or retaining Participant) or
of Participant, which rights are hereby expressly reserved by
each, to terminate Participant's Service at any time for any
reason, with or without cause.
(b) Nothing in this Agreement or in the Plan
shall interfere with or otherwise impair the rights of Fleming
and the Fleming stockholders to terminate Participant's service
as a Fleming Board Member at any time in accordance with the
provisions of applicable law.
3. Notices. Any notice required to be given under this
Agreement shall be in writing and shall be deemed effective upon
personal delivery or upon deposit in the U.S. mail, registered or
certified, postage prepaid and properly addressed to the party
entitled to such notice at the address indicated below such
party's signature line on this Agreement or at such other address
as such party may designate by ten (10) days advance written
notice under this paragraph to all other parties to this
Agreement.
4. No Waiver. The failure of the Corporation or Fleming in
any instance to exercise the Repurchase Right or the First Refusal
Right shall not constitute a waiver of any other repurchase
rights and/or rights of first refusal that may subsequently arise
under the provisions of this Agreement or any other agreement
between the Corporation and Participant. No waiver of any breach
or condition of this Agreement shall be deemed to be a waiver of
any other or subsequent breach or condition, whether of like or
different nature.
5. Cancellation of Shares. If the Corporation or Fleming
(as assignee) shall make available, at the time and place and in the
amount and form provided in this Agreement, the consideration for
the Purchased Shares to be repurchased in accordance with the
provisions of this Agreement, then from and after such time, the
person from whom such shares are to be repurchased shall no
longer have any rights as a holder of such shares (other than the
right to receive payment of such consideration in accordance with
this Agreement). Such shares shall be deemed purchased in
accordance with the applicable provisions hereof, and the
Corporation or Fleming (as assignee) shall be deemed the owner
and holder of such shares, whether or not the certificates
therefor have been delivered as required by this Agreement.
H. MISCELLANEOUS PROVISIONS
1. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Texas
without resort to that State's conflict-of-laws rules.
2. Participant Undertaking. Participant hereby agrees to
take whatever additional action and execute whatever additional
documents the Corporation may deem necessary or advisable in
order to carry out or effect one or more of the obligations or
restrictions imposed on either Participant or the Purchased
Shares pursuant to the provisions of this Agreement.
3. Agreement is Entire Contract. This Agreement constitutes
the entire contract between the parties hereto with regard to the
subject matter hereof. This Agreement is made pursuant to the
provisions of the Plan and shall in all respects be construed in
conformity with the terms of the Plan.
4. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
5. Successors and Assigns. The provisions of this Agree-
ment shall inure to the benefit of, and be binding upon, the
Corporation and its successors and assigns and upon Participant,
Participant's assigns and the legal representatives, heirs and
legatees of Participant's estate, whether or not any such person
shall have become a party to this Agreement and have agreed in
writing to join herein and be bound by the terms hereof.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the day and year first indicated above.
EMAR.NET, INC.
By:
John M. Thompson
Title: Vice President - Chief
Financial Officer and
Treasurer
Address: P.O. Box 79910
Dallas, Texas 75379
PARTICIPANT
By:
Address:
EXHIBIT I
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED ____________ hereby sell(s),
assign(s) and transfer(s) unto eMAR.net, Inc. (the
"Corporation"), ______________ (_____) shares of the Common Stock
of the Corporation standing in his or her name on the books of
the Corporation represented by Certificate No. _______________
herewith and do(es) hereby irrevocably constitute and appoint
_________________ Attorney to transfer the said stock on the
books of the Corporation with full power of substitution in the
premises.
Dated: ___________
Signature
Instruction: Please do not fill in any blanks other than the
signature line. Please sign exactly as you would like your name
to appear on the issued stock certificate. The purpose of this
assignment is to enable the Corporation to exercise the
Repurchase Right without requiring additional signatures on the
part of Participant.
EXHIBIT II
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal
Revenue Code, pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident. No.:
(2) The property with respect to which the election is being
made is 4,000 shares of the common stock of eMAR.net, Inc.
(3) The property was issued on February ______, 2000.
(4) The taxable year in which the election is being made is the
calendar year 2000.
(5) The property is subject to a repurchase right pursuant to
which the issuer has the right to acquire the property at the
original purchase price if for any reason taxpayer's service with
the issuer terminates. The issuer's repurchase right will lapse
in a series of annual and monthly installments over a four (4)-
year period ending on January 17, 2004.
(6) The fair market value at the time of transfer (determined
without regard to any restriction other than a restriction which
by its terms will never lapse) is $0.20 per share.
(7) The amount paid for such property is $ 0.20 per share.
(8) A copy of this statement was furnished to eMAR.net, Inc. for
whom taxpayer rendered the services underlying the transfer of
property.
(9) This statement is executed on _______________, 2000.
Spouse (if any) Taxpayer
This election must be filed with the Internal Revenue Service
Center with which taxpayer files his or her Federal income tax
returns and must be made within thirty (30) days after the
execution date of the Stock Issuance Agreement. This filing
should be made by registered or certified mail, return receipt
requested. Participant must retain two (2) copies of the
completed form for filing with his or her Federal and state tax
returns for the current tax year and an additional copy for his
or her records.
EXHIBIT III
2000 STOCK OPTION/STOCK ISSUANCE PLAN
APPENDIX
The following definitions shall be in effect under the
Agreement:
A. Agreement shall mean this Stock Purchase Agreement.
B. Approved Termination Event shall mean the Participant's
voluntary resignation from the Fleming Board of Directors (i) on
or after his or her attainment of age sixty-five (65) or (ii) in
accordance with the governance policy in effect at the time for
members of the Fleming Board of Directors.
C. Board shall mean the Corporation's Board of Directors.
D. Code shall mean the Internal Revenue Code of 1986, as
amended.
E. Common Stock shall mean the Corporation's common stock.
F. Corporate-Level Change in Control shall mean any of the
following transactions involving a change in control or ownership
of the Corporation:
(i) a stockholder-approved merger or
consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power
of the Corporation's outstanding securities are
transferred to a person or persons different from the
persons holding those securities immediately prior to
such transaction, or
(ii) a stockholder-approved sale, transfer or
other disposition of all or substantially all of the
Corporation's assets in complete liquidation or
dissolution of the Corporation, or
(iii) the acquisition, directly or
indirectly, by any person or related group of persons
(other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under
common control with, the Corporation) of beneficial
ownership (within the meaning of Rule 13d-3 of the 1934
Act) of securities possessing more than fifty percent
(50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a
tender or exchange offer made directly to the
Corporation's stockholders.
G. Corporation shall mean eMAR.net, Inc., a Delaware
corporation, and any successor corporation to all or
substantially all of the assets or voting stock of eMAR.net, Inc.
which shall by appropriate action adopt the Plan.
H. Disposition Notice shall have the meaning assigned to such
term in Paragraph E.2.
I. Exercise Notice shall have the meaning assigned to such term
in Paragraph E.3.
J. Fair Market Value of a share of Common Stock on any relevant
date, prior to the initial public offering of the Common Stock,
shall be determined by the Plan Administrator after taking into
account such factors as it shall deem appropriate.
K. First Refusal Right shall have the meaning assigned to such
term in Article E.
L. Fleming shall mean Fleming Companies, Inc., an Oklahoma
corporation, which is currently the Parent of the Corporation.
M. Fleming Board Member shall mean any individual who is at the
time of determination serving as a member of the Fleming Board of
Directors.
N. Market Stand-Off shall mean the market stand-off restriction
specified in Paragraph C.4.
O. 1933 Act shall mean the Securities Act of 1933, as amended.
P. 1934 Act shall mean the Securities Exchange Act of 1934, as
amended.
Q. Owner shall mean Participant and all subsequent holders of
the Purchased Shares who derive their chain of ownership through
a Permitted Transfer from Participant.
R. Parent shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations ending with the
Corporation, provided each corporation in the unbroken chain
(other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
S. Parent-Level Change in Control shall mean any of the
following transactions involving a change in control or ownership
of the Fleming which is effected while, and only while, Fleming
is the Parent of the Corporation:
(i) the acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the 1934 Act (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the 1933 Act) of 20% or more (the "Triggering
Percentage") of either (i) the then outstanding shares
of Fleming common stock (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the
then outstanding Fleming voting securities 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 Fleming 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 Parent-Level Change in Control: (i) any
acquisition directly from Fleming, (ii) any acquisition
by Fleming, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or main-
tained by Fleming or any corporation controlled by
Fleming, or (iv) any acquisition by any corporation
pursuant to a transaction which complies with clauses
(x), (y), and (z) of subsection (iii) of this definition;
or
(ii) a change in the composition of the
Fleming Board of Directors such that the individuals
who, as of the date of this Agreement, constitute the
Fleming Board of Directors (the "Incumbent Board")
cease for any reason to comprise at least a majority of
the Fleming Board of Directors; provided, however, that
any individual who becomes a member of the Fleming
Board of Directors subsequent to the date of this
Agreement and whose election, appointment or nomination
for election by Fleming'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 Fleming Board of Directors; or
(iii) the approval by the Fleming
shareholders 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 Fleming 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 Fleming 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 Incumbent Board, providing for such
Business Combination; or
(iv) the approval by the shareholders of
Fleming of (x) a complete liquidation or dissolution of
Fleming or, (y) the sale or other disposition of all or
substantially all of the assets of Fleming, 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 Fleming 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 Fleming.
T. Parent-Level Reduction in Ownership shall mean any
transaction, including (without limitation) any sale or other
disposition by Fleming of its ownership interest in any
outstanding voting securities of the Corporation or any direct
issuance of voting securities by the Corporation, which effects a
reduction to Fleming's combined direct and indirect (through one
or more majority-owned subsidiaries) ownership of the
Corporation's voting securities to an amount which represents
less than fifty percent (50%) of the total combined voting power
of all outstanding classes of stock of the Corporation.
U. Participant shall mean the person to whom shares are issued
under the Plan.
V. Permitted Transfer shall mean (i) a gratuitous transfer of
the Purchased Shares, provided and only if Participant obtains
the Corporation's prior written consent to such transfer, (ii) a
transfer of title to the Purchased Shares effected pursuant to
Participant's will or the laws of inheritance following
Participant's death or (iii) a transfer to the Corporation in
pledge as security for any purchase-money indebtedness incurred
by Participant in connection with the acquisition of the
Purchased Shares.
W. Plan shall mean the Corporation's 2000 Stock Option/Stock
Issuance Plan attached hereto as Exhibit III.
X. Plan Administrator shall mean either the Board or a
committee of the Board acting in its capacity as administrator of
the Plan.
Y. Purchase Price shall have the meaning assigned to such term
in Paragraph A.1.
Z. Purchased Shares shall have the meaning assigned to such
term in Paragraph A.1.
AA. Recapitalization shall mean any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or
other change affecting the Corporation's outstanding Common Stock
as a class without the Corporation's receipt of consideration.
BB. Reorganization shall mean any of the following transactions:
(i) a merger or consolidation in which the
Corporation is not the surviving entity,
(ii) a sale, transfer or other disposition of
all or substantially all of the Corporation's assets,
(iii) a reverse merger in which the
Corporation is the surviving entity but in which the
Corporation's outstanding voting securities are
transferred in whole or in part to a person or persons
different from the persons holding those securities
immediately prior to the merger, or
(iv) any transaction effected primarily to
change the state in which the Corporation is
incorporated or to create a holding company structure.
CC. Repurchase Right shall mean the right granted to the
Corporation in accordance with Article D.
DD. SEC shall mean the Securities and Exchange Commission.
EE. Service shall mean the Participant's performance of services
for the Corporation (or any Parent or Subsidiary) in the capacity
of an employee, subject to the control and direction of the
employer entity as to both the work to be performed and the
manner and method of performance, a non-employee member of the
board of directors or an independent consultant. Service shall
in all events include the Participant's service as a Fleming
Board Member.
FF. Subsidiary shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with
the Corporation, provided each corporation (other than the last
corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
GG. Target Shares shall have the meaning assigned to such term
in Paragraph E.2.
HH. Vesting Schedule shall mean the vesting schedule specified
in Paragraph D.3 pursuant to which Participant is to vest in the
Purchased Shares in a series of installments over the
Participant's period of Service.
II. Unvested Shares shall have the meaning assigned to such term
in Paragraph D.1.
EXHIBIT C
EMAR.NET, INC.
2000 STOCK OPTION/STOCK ISSUANCE PLAN
ARTICLE ONE
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 2000 Stock Option/Stock Issuance Plan is intended
to promote the interests of eMAR.net, Inc., a Delaware
corporation, by providing eligible persons in the Corporation's
employ or service with the opportunity to acquire a proprietary
interest, or otherwise increase their proprietary interest, in
the Corporation as an incentive for them to continue in such
employ or service.
Capitalized terms herein shall have the meanings
assigned to such terms in the attached Appendix.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into two (2) separate equity
programs:
(i) the Option Grant Program under which eligible persons
may, at the discretion of the Plan Administrator, be granted options
to purchase shares of Common Stock, and
(ii) the Stock Issuance Program under which eligible persons
may, at the discretion of the Plan Administrator, be issued shares of
Common Stock directly, either through the immediate purchase of
such shares or as a bonus for services rendered the Corporation
(or any Parent or Subsidiary).
B. The provisions of Articles One and Four shall apply to both
equity programs under the Plan and shall accordingly govern the
interests of all persons under the Plan.
III. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by the Board. However,
any or all administrative functions otherwise exercisable by the
Board may be delegated to the Committee. Members of the
Committee shall serve for such period of time as the Board may
determine and shall be subject to removal by the Board at any
time. The Board may also at any time terminate the functions of
the Committee and reassume all powers and authority previously
delegated to the Committee.
B. The Plan Administrator shall have full power and authority
(subject to the provisions of the Plan) to establish such rules
and regulations as it may deem appropriate for proper
administration of the Plan and to make such determinations under,
and issue such interpretations of, the Plan and any outstanding
options or stock issuances thereunder as it may deem necessary or
advisable. Decisions of the Plan Administrator shall be final
and binding on all parties who have an interest in the Plan or
any option grant or stock issuance thereunder.
IV. ELIGIBILITY
A. The persons eligible to participate in the Plan are as
follows:
(i) Employees,
(ii) Other Fleming Service Providers,
(iii) non-employee members of the Board or the non-employee
members of the board of directors of any Parent or Subsidiary,
and
(iv) consultants and other independent advisors who provide
services to the Corporation (or any Parent or Subsidiary).
B. The Plan Administrator shall have full authority to
determine, (i) with respect to the grants made under the Option
Grant Program, which eligible persons are to receive such
grants, the time or times when those grants are to be made, the
number of shares to be covered by each such grant, the status of
the granted option as either an Incentive Option or a Non-
Statutory Option, the time or times when each option is to become
exercisable, the vesting schedule (if any) applicable to the
option shares and the maximum term for which the option is to
remain outstanding, and (ii) with respect to stock issuances made
under the Stock Issuance Program, which eligible persons are to
receive such issuances, the time or times when those issuances
are to be made, the number of shares to be issued to each
Participant, the vesting schedule (if any) applicable to the
issued shares and the consideration to be paid by the Participant
for such shares.
C. The Plan Administrator shall have the absolute dis-
cretion either to grant options in accordance with the Option Grant
Program or to effect stock issuances in accordance with the Stock
Issuance Program.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock. The maximum
number of shares of Common Stock which may be issued over the
term of the Plan shall not exceed 2,724,000 shares. However, not
more than 724,000 shares may be issued to Fleming Service
Providers.
B. Shares of Common Stock subject to outstanding options
shall be available for subsequent issuance under the Plan to the
extent (i) the options expire or terminate for any reason prior
to exercise in full or (ii) the options are cancelled in
accordance with the cancellation-regrant provisions of Article
Two. Unvested shares issued under the Plan and subsequently
repurchased by the Corporation, at the option exercise or direct
issue price paid per share, pursuant to the Corporation's
repurchase rights under the Plan shall be added back to the
number of shares of Common Stock reserved for issuance under the
Plan and shall accordingly be available for reissuance through
one or more subsequent option grants or direct stock issuances
under the Plan. Any unvested shares issued under the Plan and
repurchased by Fleming pursuant to repurchase rights assigned to
it by the Corporation will not be available for reissuance.
C. Should any change be made to the Common Stock by
reason of any stock split, stock dividend, recapitalization, combi-
nation of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's
receipt of consideration, appropriate adjustments shall be made
to (i) the maximum number and/or class of securities issuable
under the Plan, (ii) the maximum number and/or class of
securities issuable to Fleming Service Providers and (iii) the
number and/or class of securities and the exercise price per
share in effect under each outstanding option in order to prevent
the dilution or enlargement of benefits thereunder. The
adjustments determined by the Plan Administrator shall be final,
binding and conclusive. In no event shall any such adjustments
be made in connection with the conversion of one or more
outstanding shares of the Corporation's preferred stock into
shares of Common Stock.
ARTICLE TWO
OPTION GRANT PROGRAM
I. OPTION TERMS
Each option shall be evidenced by one or more documents
in the form approved by the Plan Administrator; provided,
however, that each such document shall comply with the terms
specified below. Each document evidencing an Incentive Option
shall, in addition, be subject to the provisions of the Plan
applicable to such options.
A. Exercise Price.
1. The exercise price per share shall be fixed by the
Plan Administrator in accordance with the following provisions:
(i) The exercise price per share shall not be less
than eighty-five percent (85%) of the Fair Market Value per share of
Common Stock on the option grant date.
(ii) If the person to whom the option is granted is a 10%
Stockholder, then the exercise price per share shall not be less
than one hundred ten percent (110%) of the Fair Market Value per
share of Common Stock on the option grant date.
2. The exercise price shall become immediately due upon
exercise of the option and shall, subject to the provisions of
Section I of Article Four and the documents evidencing the
option, be payable in cash or check made payable to the
Corporation. Should the Common Stock be registered under Section
12 of the 1934 Act at the time the option is exercised, then the
exercise price may also be paid as follows:
(i) in shares of Common Stock held for the requisite
period necessary to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market Value on
the Exercise Date, or
(ii) to the extent the option is exercised for vested
shares, through a special sale and remittance procedure pursuant to
which the Optionee shall concurrently provide irrevocable instructions
(A) to a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the
Corporation, out of the sale proceeds available on the settlement
date, sufficient funds to cover the aggregate exercise price
payable for the purchased shares plus all applicable Federal,
state and local income and employment taxes required to be
withheld by the Corporation by reason of such exercise and (B) to
the Corporation to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the
sale.
Except to the extent such sale and remittance procedure
is utilized, payment of the exercise price for the purchased
shares must be made on the Exercise Date.
B. Exercise and Term of Options. Each option shall be
exercisable at such time or times, during such period and for
such number of shares as shall be determined by the Plan
Administrator and set forth in the documents evidencing the
option grant. However, no option shall have a term in excess of
ten (10) years measured from the option grant date.
C. Effect of Termination of Service.
1. The following provisions shall govern the exercise
of any options held by the Optionee at the time of cessation of Service
or death:
(i) Should the Optionee cease to remain in Service
for any reason other than death, Disability or Misconduct, then the
Optionee shall have a period of three (3) months following the
date of such cessation of Service during which to exercise each
outstanding option held by such Optionee.
(ii) Should Optionee's Service terminate by reason
of Disability, then the Optionee shall have a period of twelve (12)
months following the date of such cessation of Service during which to
exercise each outstanding option held by such Optionee.
(iii) If the Optionee dies while holding an outstanding
option, then the personal representative of his or her estate or
the person or persons to whom the option is transferred pursuant
to the Optionee's will or the laws of inheritance or the
Optionee's designated beneficiary or beneficiaries of that option
shall have a twelve (12)-month period following the date of the
Optionee's death to exercise such option.
(iv) Under no circumstances, however, shall any such
option be exercisable after the specified expiration of the option term.
(v) During the applicable post-Service exercise period,
the option may not be exercised in the aggregate for more than the
number of vested shares for which the option is exercisable on
the date of the Optionee's cessation of Service. Upon the
expiration of the applicable exercise period or (if earlier) upon
the expiration of the option term, the option shall terminate and
cease to be outstanding for any vested shares for which the
option has not been exercised. However, the option shall,
immediately upon the Optionee's cessation of Service, terminate
and cease to be outstanding with respect to any and all option
shares for which the option is not otherwise at the time
exercisable or in which the Optionee is not otherwise at that
time vested.
(vi) Should Optionee's Service be terminated for
Misconduct or should Optionee otherwise engage in Misconduct while
holding one or more outstanding options under the Plan, then all
those options shall terminate immediately and cease to remain
outstanding.
2. The Plan Administrator shall have the discretion,
exercisable either at the time an option is granted or at any
time while the option remains outstanding, to:
(i) extend the period of time for which the option is
to remain exercisable following Optionee's cessation of Service or
death from the limited period otherwise in effect for that option to
such greater period of time as the Plan Administrator shall deem
appropriate, but in no event beyond the expiration of the option
term, and/or
(ii) permit the option to be exercised, during the
applicable post-Service exercise period, not only with respect to
the number of vested shares of Common Stock for which such option is
exercisable at the time of the Optionee's cessation of Service
but also with respect to one or more additional installments in
which the Optionee would have vested under the option had the
Optionee continued in Service.
D. Stockholder Rights. The holder of an option shall have no
stockholder rights with respect to the shares subject to the option until
such person shall have exercised the option, paid the exercise price and
become the recordholder of the purchased shares.
E. Unvested Shares. The Plan Administrator shall have the
discretion to grant options which are exercisable for unvested
shares of Common Stock. Should the Optionee cease Service while
holding such unvested shares, the Corporation shall have the
right to repurchase, at the exercise price paid per share, any or
all of those unvested shares. The terms upon which such
repurchase right shall be exercisable (including the period and
procedure for exercise and the appropriate vesting schedule for
the purchased shares) shall be established by the Plan
Administrator and set forth in the document evidencing such
repurchase right. Any such repurchase rights which pertain to
unvested shares held by a Fleming Service Provider shall be
assignable to Fleming. The Plan Administrator may not impose a
vesting schedule upon any option grant or the shares of Common
Stock subject to that option which is more restrictive than
twenty percent (20%) per year vesting, with the initial vesting
to occur not later than one (1) year after the option grant date.
However, such limitation shall not be applicable to any option
grants made to individuals who are officers of the Corporation,
non-employee Board members or independent consultants.
F. First Refusal Rights. Until such time as the Common
Stock is first registered under Section 12 of the 1934 Act, the
Corporation shall have the right of first refusal with respect to
any proposed disposition by the Optionee (or any successor in
interest) of any shares of Common Stock issued under the Plan.
Such right of first refusal shall be exercisable in
accordance with the terms established by the Plan Administrator
and set forth in the document evidencing such right. Any such
first refusal rights which pertain to shares held by a Fleming
Service Provider shall be assignable to Fleming.
G. Limited Transferability of Options. An Incentive Stock
Option shall be exercisable only by the Optionee during his or
her lifetime and shall not be assignable or transferable other
than by will or by the laws of inheritance following the
Optionee's death. A Non-Statutory Option may be assigned in whole
or in part during the Optionee's lifetime to one or more members
of the Optionee's family or to a trust established exclusively
for one or more such family members or to Optionee's former
spouse, to the extent such assignment is in connection with the
Optionee's estate plan or pursuant to a domestic relations order.
The assigned portion may only be exercised by the person or
persons who acquire a proprietary interest in the Non-Statutory
Option pursuant to the assignment. The terms applicable to the
assigned portion shall be the same as those in effect for the
option immediately prior to such assignment and shall be set
forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate. Notwithstanding the
foregoing, the Optionee may also designate one or more persons as
the beneficiary or beneficiaries of his or her outstanding
options under the Plan, and those options shall, in accordance
with such designation, automatically be transferred to such
beneficiary or beneficiaries upon the Optionee's death while
holding those options. Such beneficiary or beneficiaries shall
take the transferred options subject to all the terms and
conditions of the applicable agreement evidencing each such
transferred option, including (without limitation) the limited
time period during which the option may be exercised following
the Optionee's death.
II. INCENTIVE OPTIONS
The terms specified below shall be applicable to all
Incentive Options. Except as modified by the provisions of this
Section II, all the provisions of Articles One, Two and Four
shall be applicable to Incentive Options. Options which are
specifically designated as Non-Statutory Options shall not be
subject to the terms of this Section II.
A. Eligibility. Incentive Options may only be granted to
Employees.
B. Exercise Price. The exercise price per share shall not be
less than one hundred percent (100%) of the Fair Market Value per
share of Common Stock on the option grant date.
C. Dollar Limitation. The aggregate Fair Market Value of
the shares of Common Stock (determined as of the respective date or
dates of grant) for which one or more options granted to any
Employee under the Plan (or any other option plan of the
Corporation or any Parent or Subsidiary) may for the first time
become exercisable as Incentive Options during any one (1)
calendar year shall not exceed the sum of One Hundred Thousand
Dollars ($100,000). To the extent the Employee holds two (2) or
more such options which become exercisable for the first time in
the same calendar year, the foregoing limitation on the
exercisability of such options as Incentive Options shall be
applied on the basis of the order in which such options are
granted.
D. 10% Stockholder. If any Employee to whom an Incentive
Option is granted is a 10% Stockholder, then the option term
shall not exceed five (5) years measured from the option grant
date.
III. PARENT-LEVEL CHANGE IN CONTROL
A. The Plan Administrator shall have the discretion,
exercisable either at the time the option is granted or at any
time while the option remains outstanding, to incorporate the
following special vesting acceleration provision into one or more
options under the Plan:
To the extent such option is (i) outstanding
at the time of a Parent-Level Change in Control and
(ii) held at that time by a Fleming Service Provider,
the shares of Common Stock at the time subject to such
option but not otherwise vested shall automatically
vest in full so that such option shall, immediately
prior to the effective date of such Parent-Level Change
in Control, become exercisable for all of the shares of
Common Stock at the time subject to that option and may
be exercised for any or all of those shares as fully-
vested shares of Common Stock.
B. The Plan Administrator shall have the discretion to
structure one or more of the Corporation's outstanding repurchase
rights under the Plan so that those repurchase rights shall
terminate automatically, and the shares of Common Stock subject
to those terminated rights shall immediately vest in full, to the
extent those shares are unvested at the time of a Parent-Level
Change in Control and are held at that time by a Fleming Service
Provider.
IV. PARENT-LEVEL REDUCTION IN OWNERSHIP
A. The Plan Administrator shall have the discretion,
exercisable either at the time the option is granted or at any
time while the option remains outstanding, to incorporate the
following special vesting acceleration provision into one or more
options under the Plan:
To the extent such option is (i) outstanding
at the time of a Parent-Level Reduction in Ownership
and (ii) held at that time by a Fleming Service
Provider, the shares of Common Stock at the time
subject to such option but not otherwise vested shall
automatically vest in full so that such option shall,
immediately prior to the effective date of such Parent-
Level Reduction in Ownership, become exercisable for
all of the shares of Common Stock at the time subject
to that option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock.
B. The Plan Administrator shall have the discretion to
structure one or more of the Corporation's outstanding repurchase
rights under the Plan so that those repurchase rights shall
terminate automatically, and the shares of Common Stock subject
to those terminated rights shall immediately vest in full, to the
extent those shares are unvested at the time of a Parent-Level
Reduction in Ownership and are held at that time by a Fleming
Service Provider.
V. CORPORATE-LEVEL CHANGE IN CONTROL
A. The shares subject to each option outstanding under
the Plan at the time of a Corporate-Level Change in Control shall
automatically vest in full so that each such option shall,
immediately prior to the effective date of such Corporate-Level
Change in Control, become exercisable for all of the shares of
Common Stock at the time subject to that option and may be
exercised for any or all of those shares as fully-vested shares
of Common Stock. However, the shares subject to an outstanding
option under the Plan shall not vest on such an accelerated basis
if and to the extent: (i) such option is assumed by the
successor corporation (or parent thereof) in the Corporate-Level
Change in Control or otherwise continued in full force and effect
and any repurchase rights of the Corporation with respect to the
unvested option shares are concurrently assigned to such
successor corporation (or parent thereof) or otherwise continued
in full force and effect or (ii) such option is to be replaced
with a cash incentive program which preserves the spread existing
on the unvested option shares at the time of the Corporate-Level
Change in Control and provides for subsequent payout in
accordance with the same vesting schedule applicable to those
unvested option shares.
B. All outstanding repurchase rights shall also terminate
automatically, and the shares of Common Stock subject to those
terminated rights shall immediately vest in full, in the event of
any Corporate-Level Change in Control, except to the extent those
repurchase rights are assigned to any successor corporation (or
parent thereof) in connection with such Corporate- Level Change
in Control or are otherwise continued in full and effect.
C. Immediately following the consummation of the Corporate-
Level Change in Control, all outstanding options shall terminate
and cease to be outstanding, except to the extent assumed by the
successor corporation (or parent thereof) or otherwise continued
in full force and effect pursuant to the express terms of the
Corporate-Level Change in Control transaction.
D. The Plan Administrator shall have the discretion,
exercisable either at the time the option is granted or at any
time while the option remains outstanding, to structure one or
more options under the Plan so that those options shall
automatically accelerate and vest in full (and any repurchase
rights of the Corporation with respect to the unvested shares
subject to those options shall immediately terminate) upon the
occurrence of a Corporate-Level Change in Control, whether or not
those options are to be assumed in such transaction or otherwise
continued in full force and effect.
E. The Plan Administrator shall also have full power and
authority, exercisable either at the time the option is granted
or at any time while the option remains outstanding, to structure
such option so that the shares subject to that option shall
automatically vest on an accelerated basis should the Optionee's
Service terminate by reason of an Involuntary Termination within
a designated period (not to exceed eighteen (18) months)
following the effective date of any Corporate-Level Change in
Control in which the option is assumed or continued in effect and
the repurchase rights applicable to those shares do not otherwise
terminate. Any option so accelerated shall remain exercisable
for the fully-vested option shares until the expiration or sooner
termination of the option term. In addition, the Plan
Administrator may structure or more of the Corporation's
repurchase rights so that those rights shall immediately
terminate on an accelerated basis with respect to the unvested
shares held by the Optionee at the time of such an Involuntary
Termination, and the shares subject to those terminated rights
shall accordingly vest at that time.
VI. ADDITIONAL CHANGE IN CONTROL PROVISIONS
A. Each option which is assumed in connection with a Corporate-
Level Change in Control or otherwise continued in full force and
effect shall be appropriately adjusted, immediately after such
transaction, to apply to the number and class of securities which
would have been issuable to the Optionee in consummation of such
Corporate-Level Change in Control, had the option been exercised
immediately prior to such transaction. Appropriate adjustments
shall also be made to (i) the number and class of securities
available for issuance under the Plan following the consummation
of such Corporate-Level Change in Control and (ii) the exercise
price payable per share under each outstanding option, provided
the aggregate exercise price payable for such securities shall
remain the same. To the extent the actual holders of the
Corporation's outstanding Common Stock receive cash consideration
for their Common Stock in consummation of the Corporate-Level
Change in Control, the successor corporation may, in connection
with the assumption of the outstanding options under this Plan,
substitute one or more shares of its own common stock with a fair
market value equivalent to the cash consideration paid per share
of Common Stock in such Corporate-Level Change in Control.
B. The portion of any Incentive Option accelerated in
connection with a Parent-Level or Corporate-Level Change in
Control shall remain exercisable as an Incentive Option only to
the extent the applicable One Hundred Thousand Dollar limitation
is not exceeded. To the extent such dollar limitation is
exceeded, the accelerated portion of such option shall be
exercisable as a Non-Statutory Option under the Federal tax laws.
C. The grant of options under the Plan shall in no way
affect the right of the Corporation or Fleming to adjust, reclassify,
reorganize or otherwise change its capital or business structure
or to merge, consolidate, dissolve, liquidate or sell or transfer
all or any part of its business or assets.
VII. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to
effect, at any time and from time to time, with the consent of
the affected option holders, the cancellation of any or all
outstanding options under the Plan and to grant in substitution
therefor new options covering the same or different number of
shares of Common Stock but with an exercise price per share based
on the Fair Market Value per share of Common Stock on the new
option grant date.
ARTICLE THREE
STOCK ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock
Issuance Program through direct and immediate issuances without
any intervening option grants. Each such stock issuance shall be
evidenced by a Stock Issuance Agreement which complies with the
terms specified below.
A. Purchase Price.
1. The purchase price per share shall be fixed by
the Plan Administrator but shall not be less than eighty-five percent
(85%) of the Fair Market Value per share of Common Stock on the
issue date. However, the purchase price per share of Common
Stock issued to a 10% Stockholder shall not be less than one
hundred and ten percent (110%) of such Fair Market Value.
2. Subject to the provisions of Section I of Article
Four, shares of Common Stock may be issued under the Stock Issuance
Program for any of the following items of consideration which the
Plan Administrator may deem appropriate in each individual instance:
(i) cash or check made payable to the Corporation, or
(ii) past services rendered to the Corporation (or any
Parent or Subsidiary).
B. Vesting Provisions.
1. Shares of Common Stock issued under the Stock
Issuance Program may, in the discretion of the Plan Administrator, be
fully and immediately vested upon issuance or may vest in one or
more installments over the Participant's period of Service or
upon attainment of specified performance objectives. However,
the Plan Administrator may not impose a vesting schedule upon any
stock issuance effected under the Stock Issuance Program which is
more restrictive than twenty percent (20%) per year vesting, with
initial vesting to occur not later than one (1) year after the
issuance date. Such limitation shall not apply to any Common
Stock issuances made to the officers of the Corporation, non-
employee Board members or independent consultants.
2. Any new, substituted or additional securities or
other property (including money paid other than as a regular cash
dividend) which the Participant may have the right to receive
with respect to the Participant's unvested shares of Common Stock
by reason of any stock dividend, stock split, recapitalization,
combination of shares, exchange of shares or other change affecting
the outstanding Common Stock as a class without the Corporation's
receipt of consideration shall be issued subject to (i) the same
vesting requirements applicable to the Participant's unvested shares
of Common Stock and (ii) such escrow arrangements as the Plan
Administrator shall deem appropriate.
3. The Participant shall have full stockholder rights
with respect to any shares of Common Stock issued to the Participant
under the Stock Issuance Program, whether or not the Participant's
interest in those shares is vested. Accordingly, the Participant
shall have the right to vote such shares and to receive any regular
cash dividends paid on such shares.
4. Should the Participant cease to remain in Service
while holding one or more unvested shares of Common Stock issued under
the Stock Issuance Program or should the performance objectives
not be attained with respect to one or more such unvested shares
of Common Stock, then those shares shall be immediately
surrendered to the Corporation for cancellation, and the
Participant shall have no further stockholder rights with respect
to those shares. To the extent the surrendered shares were
previously issued to the Participant for consideration paid in
cash or cash equivalent (including the Participant's purchase-
money indebtedness), the Corporation shall repay to the
Participant the cash consideration paid for the surrendered
shares and shall cancel the unpaid principal balance of any
outstanding purchase-money note of the Participant attributable
to such surrendered shares.
5. The Plan Administrator may in its discretion waive
the surrender and cancellation of one or more unvested shares of
Common Stock (or other assets attributable thereto) which would
otherwise occur upon the non-completion of the vesting schedule
applicable to those shares. Such waiver shall result in the
immediate vesting of the Participant's interest in the shares of
Common Stock as to which the waiver applies. Such waiver may be
effected at any time, whether before or after the Participant's
cessation of Service or the attainment or non-attainment of the
applicable performance objectives.
C. First Refusal Rights. Until such time as the
Common Stock is first registered under Section 12 of the 1934
Act, the Corporation shall have the right of first refusal with
respect to any proposed disposition by the Participant (or any
successor in interest) of any shares of Common Stock issued
under the Stock Issuance Program. Such right of first refusal
shall be exercisable in accordance with the terms established by
the Plan Administrator and set forth in the document evidencing
such right. Any such first refusal rights which pertain to
shares held by a Fleming Service Provider shall be assignable to
Fleming.
II. PARENT-LEVEL CHANGE IN CONTROL
The Plan Administrator shall have the discretion to
structure one or more of the Corporation's outstanding repurchase
rights under the Stock Issuance Program so that those repurchase
rights shall terminate automatically, and the shares of Common
Stock subject to those terminated rights shall immediately vest in
full, to the extent those shares are unvested at the time of a Parent-
Level Change in Control and are held at that time by a Fleming
Service Provider.
III. PARENT-LEVEL REDUCTION IN OWNERSHIP
The Plan Administrator shall have the discretion to
structure one or more of the Corporation's outstanding repurchase
rights under the Stock Issuance Program so that those repurchase
rights shall terminate automatically, and the shares of Common
Stock subject to those terminated rights shall immediately vest
in full, to the extent those shares are unvested at the time of a
Parent-Level Reduction in Ownership and are held at that time by
a Fleming Service Provider.
IV. CORPORATE-LEVEL CHANGE IN CONTROL
A. Upon the occurrence of a Corporate-Level Change in
Control, all outstanding repurchase rights under the Stock Issuance
Program shall terminate automatically, and the shares of Common
Stock subject to those terminated rights shall immediately vest
in full, except to the extent those repurchase rights are
assigned to the successor corporation (or parent thereof) in
connection with such Corporate-Level Change in Control or
otherwise continued in full force and effect.
B. The Plan Administrator shall have the discretionary
authority, exercisable either at the time the unvested shares are
issued or any time while the Corporation's repurchase rights with
respect to those shares remain outstanding, to provide that those
rights shall automatically terminate on an accelerated basis, and
the shares of Common Stock subject to those terminated rights
shall immediately vest, in the event the Participant's Service
should subsequently terminate by reason of an Involuntary
Termination within a designated period (not to exceed eighteen
(18) months) following the effective date of any Corporate-Level
Change in Control in which those repurchase rights are assigned
to the successor corporation (or parent thereof) or are otherwise
continued in full force and effect.
C. The Plan Administrator shall have the discretion to
structure one or more of the Corporation's outstanding repurchase
rights under the Stock Issuance Program so that those repurchase
rights shall terminate automatically, and the shares of Common
Stock subject to those terminated rights shall immediately vest
in full, upon the occurrence of a Corporate-Level Change in
Control.
V. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's
discretion, be held in escrow by the Corporation until the
Participant's interest in such shares vests or may be issued
directly to the Participant with restrictive legends on the
certificates evidencing those unvested shares.
ARTICLE FOUR
MISCELLANEOUS
I. FINANCING
The Plan Administrator may permit any Optionee or
Participant to pay the option exercise price under the Option
Grant Program or the purchase price for shares issued under the
Stock Issuance Program by delivering a full-recourse, interest
bearing promissory note payable in one or more installments and
secured by the purchased shares. In no event, however, may the
maximum credit available to the Optionee or Participant exceed
the sum of (i) the aggregate option exercise price or purchase
price payable for the purchased shares (less the par value of
those shares) plus (ii) any Federal, state and local income and
employment tax liability incurred by the Optionee or the
Participant in connection with the option exercise or share
purchase.
II. EFFECTIVE DATE AND TERM OF PLAN
A. The Plan shall become effective when adopted by the
Board, but no option granted under the Plan may be exercised, and no
shares shall be issued under the Plan, until the Plan is approved
by the Corporation's stockholders. If such stockholder approval
is not obtained within twelve (12) months after the date of the
Board's adoption of the Plan, then all options previously granted
under the Plan shall terminate and cease to be outstanding, and
no further options shall be granted and no shares shall be issued
under the Plan. Subject to such limitation, the Plan
Administrator may grant options and issue shares under the Plan
at any time after the effective date of the Plan and before the
date fixed herein for termination of the Plan.
B. The Plan shall terminate upon the earliest of (i) the
expiration of the ten (10)-year period measured from the date the
Plan is adopted by the Board, (ii) the date on which all shares
available for issuance under the Plan shall have been issued as
vested shares or (iii) the termination of all outstanding options
in connection with a Corporate Transaction. All options and
unvested stock issuances outstanding at the time of a clause (i)
termination event shall continue to have full force and effect in
accordance with the provisions of the documents evidencing those
options or issuances.
III. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects.
However, no such amendment or modification shall adversely affect
the rights and obligations with respect to options or unvested
stock issuances at the time outstanding under the Plan unless the
Optionee or the Participant consents to such amendment or
modification. In addition, certain amendments may require
stockholder approval pursuant to applicable laws and regulations.
B. Options may be granted under the Option Grant Program
and shares may be issued under the Stock Issuance Program which are in
each instance in excess of the number of shares of Common Stock then
available for issuance under the Plan, provided any excess shares
actually issued under those programs shall be held in escrow
until there is obtained stockholder approval of an amendment
sufficiently increasing the number of shares of Common Stock
available for issuance under the Plan. If such stockholder
approval is not obtained within twelve (12) months after the date
the first such excess grants or issuances are made, then (i) any
unexercised options granted on the basis of such excess shares
shall terminate and cease to be outstanding and (ii) the
Corporation shall promptly refund to the Optionees and the
Participants the exercise or purchase price paid for any excess
shares issued under the Plan and held in escrow, together with
interest (at the applicable Short Term Federal Rate) for the
period the shares were held in escrow, and such shares shall
thereupon be automatically cancelled and cease to be outstanding.
IV. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the
sale of shares of Common Stock under the Plan shall be used for
general corporate purposes.
V. WITHHOLDING
The Corporation's obligation to deliver shares of
Common Stock upon the exercise of any options granted under the
Plan or upon the issuance or vesting of any shares issued under
the Plan shall be subject to the satisfaction of all applicable
Federal, state and local income and employment tax withholding
requirements.
VI. REGULATORY APPROVALS
The implementation of the Plan, the granting of any
options under the Plan and the issuance of any shares of Common
Stock (i) upon the exercise of any option or (ii) under the Stock
Issuance Program shall be subject to the Corporation's
procurement of all approvals and permits required by regulatory
authorities having jurisdiction over the Plan, the options
granted under it and the shares of Common Stock issued pursuant
to it.
VII. NO EMPLOYMENT OR SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or
the Participant any right to continue in Service for any period
of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Parent or
Subsidiary employing or retaining such person) or of the Optionee
or the Participant, which rights are hereby expressly reserved by
each, to terminate such person's Service at any time for any
reason, with or without cause.
VIII. FINANCIAL REPORTS
The Corporation shall deliver a balance sheet and an
income statement at least annually to each individual holding an
outstanding option under the Plan, unless such individual is a
key Employee whose duties in connection with the Corporation (or
any Parent or Subsidiary) assure such individual access to
equivalent information.
APPENDIX
The following definitions shall be in effect under the
Plan:
A. Board shall mean the Corporation's Board of Directors.
B. Code shall mean the Internal Revenue Code of 1986, as
amended.
C. Committee shall mean a committee of one (1) or more
Board members appointed by the Board to exercise one or more
administrative functions under the Plan.
D. Common Stock shall mean the Corporation's common stock.
E. Corporate-Level Change in Control shall mean any of the
following transactions involving a change in control or ownership
of the Corporation:
(i) a stockholder-approved merger or consolidation in which
securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities
are transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction,
or
(ii) a stockholder-approved sale, transfer or other
disposition of all or substantially all of the Corporation's assets
in complete liquidation or dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or
is under common control with, the Corporation) of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended) of securities possessing more
than fifty percent (50%) of the total combined voting power of
the Corporation's outstanding securities pursuant to a tender or
exchange offer made directly to the Corporation's stockholders.
F. Corporation shall mean eMAR.net, Inc., a Delaware
corporation, and any successor corporation to all or
substantially all of the assets or voting stock of eMAR.net, Inc.
which shall by appropriate action adopt the Plan.
G. Disability shall mean the inability of the Optionee or
the Participant to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment and shall be determined by the Plan Administrator on
the basis of such medical evidence as the Plan Administrator
deems warranted under the circumstances.
H. Employee shall mean an individual who is in the employ
of the Corporation (or any Parent or Subsidiary of the Corporation),
subject to the control and direction of the employer entity as to
both the work to be performed and the manner and method of
performance.
I. Exercise Date shall mean the date on which the Corporation
shall have received written notice of the option exercise.
J. Fair Market Value per share of Common Stock on any relevant
date shall be determined in accordance with the following
provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question,
as such price is reported by the National Association of
Securities Dealers on the Nasdaq National Market and published in
The Wall Street Journal. If there is no closing selling price
for the Common Stock on the date in question, then the Fair
Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the
Stock Exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially
quoted in the composite tape of transactions on such exchange and
published in The Wall Street Journal. If there is no closing
selling price for the Common Stock on the date in question, then
the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time neither listed on
any Stock Exchange nor traded on the Nasdaq National Market, then
the Fair Market Value shall be determined by the Plan Administrator
after taking into account such factors as the Plan Administrator
shall deem appropriate.
K. Fleming shall mean Fleming Companies, Inc., an Oklahoma
corporation, which is currently the Parent of the Corporation.
L. Fleming Service Provider shall mean any individual who
is in a direct service relationship with Fleming or any Fleming
Subsidiary (and not with the Corporation or any other Parent or
Subsidiary of the Corporation), whether as an employee, associate,
board member or independent contractor, at a time when
Fleming is the Parent of the Corporation.
M. Fleming Subsidiary shall mean any corporation (other
than Fleming) in an unbroken chain of corporations beginning with
Fleming, provided each corporation (other than the last
corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain. In no event, however,
shall a Fleming Subsidiary include the Corporation or any Parent
or Subsidiary of the Corporation.
N. Incentive Option shall mean an option which satisfies the
requirements of Code Section 422.
O. Involuntary Termination shall mean the termination of the
Service of any individual which occurs by reason of:
(i) such individual's involuntary dismissal or discharge
by the Corporation for reasons other than Misconduct, or
(ii) such individual's voluntary resignation following
(A) a change in his or her position with the Corporation which
materially reduces his or her duties and responsibilities or the
level of management to which he or she reports, (B) a reduction
in his or her level of compensation (including base salary,
fringe benefits and target bonus under any corporate-performance
based bonus or incentive programs) by more than fifteen percent
(15%) or (C) a relocation of such individual's place of
employment by more than fifty (50) miles, provided and only if
such change, reduction or relocation is effected without the
individual's consent.
P. Misconduct shall mean the commission of any act of
fraud, embezzlement or dishonesty by the Optionee or Participant, any
unauthorized use or disclosure by such person of confidential
information or trade secrets of the Corporation (or any Parent or
Subsidiary), or any other intentional misconduct by such person
adversely affecting the business or affairs of the Corporation
(or any Parent or Subsidiary) in a material manner. The
foregoing definition shall not be deemed to be inclusive of all
the acts or omissions which the Corporation (or any Parent or
Subsidiary) may consider as grounds for the dismissal or
discharge of any Optionee, Participant or other person in the
Service of the Corporation (or any Parent or Subsidiary).
Q. 1934 Act shall mean the Securities Exchange Act of 1934,
as amended.
R. Non-Statutory Option shall mean an option not intended to
satisfy the requirements of Code Section 422.
S. Option Grant Program shall mean the option grant program in
effect under the Plan.
T. Optionee shall mean any person to whom an option is granted
under the Plan.
U. Parent shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations ending with the
Corporation, provided each corporation in the unbroken chain
(other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
V. Parent-Level Change in Control shall mean any of the
following transactions involving a change in control or ownership
of Fleming which is effected while, and only while, Fleming is
the Parent of the Corporation:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act
(a "Person") of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the 1933 Act) of 20% or more (the "Triggering
Percentage") of either (i) the then outstanding shares of Fleming
common stock (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding Fleming voting
securities 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 Fleming 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 Parent-Level Change in
Control: (i) any acquisition directly from Fleming, (ii) any
acquisition by Fleming, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by
Fleming or any corporation controlled by Fleming, or (iv) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (x), (y), and (z) of subsection (iii) of
this definition; or
(ii) a change in the composition of the Fleming Board of
Directors such that the individuals who, as of the effective date
of the Plan, constitute the Fleming Board of Directors (the
"Incumbent Board") cease for any reason to comprise at least a
majority of the Fleming Board of Directors; provided, however,
that any individual who becomes a member of the Fleming Board of
Directors subsequent to the effective date of the Plan and whose
election, appointment or nomination for election by Fleming'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 Fleming Board of Directors; or
(iii) the approval by the Fleming shareholders 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 Fleming 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 Fleming 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 Incumbent
Board, providing for such Business Combination; or
(iv) the approval by the shareholders of Fleming of (x) a
complete liquidation or dissolution of Fleming or, (y) the sale
or other disposition of all or substantially all of the assets of
Fleming, 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 Fleming 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 Fleming.
W. Parent-Level Reduction in Ownership shall mean any
transaction, including (without limitation) any sale or other
disposition by Fleming of its ownership interest in any
outstanding voting securities of the Corporation or any direct
issuance of voting securities by the Corporation, which effects a
reduction to Fleming's combined direct and indirect (through one
or more majority-owned subsidiaries) ownership of the
Corporation's voting securities to an amount which represents
less than fifty percent (50%) of the total combined voting power
of all outstanding classes of stock of the Corporation.
X. Participant shall mean any person who is issued shares
of Common Stock under the Stock Issuance Program.
Y. Plan shall mean the Corporation's 2000 Stock Option/Stock
Issuance Plan, as set forth in this document.
Z. Plan Administrator shall mean either the Board or the
Committee acting in its capacity as administrator of the Plan.
AA. Service shall mean (i) the provision of services to the
Corporation (or any Parent or Subsidiary of the Corporation) in
the capacity of an Employee, a non-employee member of the board
of directors or a consultant or independent advisor, except to
the extent otherwise specifically provided in the documents
evidencing the option grant, or (ii) the provision of services to
Fleming or any Fleming Subsidiary in the capacity of an employee
or associate of that entity, a non-employee member of the board
of directors or a consultant or independent advisor, but only to
the extent such clause (ii) services are performed while Fleming
remains the Parent of the Corporation.
BB. Stock Exchange shall mean either the American Stock Exchange
or the New York Stock Exchange.
CC. Stock Issuance Agreement shall mean the agreement entered
into by the Corporation and the Participant at the time of issuance of
shares of Common Stock under the Stock Issuance Program.
DD. Stock Issuance Program shall mean the stock issuance program
in effect under the Plan.
EE. Subsidiary shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with
the Corporation, provided each corporation (other than the last
corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of
the other corporations in such chain.
FF. 10% Stockholder shall mean the owner of stock (as determined
under Code Section 424(d)) possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Corporation
(or any Parent or Subsidiary).