Exhibit 99.1
FLEMING COMPANIES, INC.
2000 STOCK INCENTIVE PLAN
FLEMING COMPANIES, INC.
2000 STOCK INCENTIVE PLAN
Table of Contents
Page
ARTICLE I. PURPOSE 1
Section 1.1 Purpose 1
Section 1.2 Establishment 1
Section 1.3 Shares Subject to the Plan 1
ARTICLE II. DEFINITIONS 1
ARTICLE III. ADMINISTRATION 5
Section 3.1 Administration of the Plan; the
Committee 5
Section 3.2 Committee to Make Rules and
Interpret Plan 6
ARTICLE IV. GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN 6
Section 4.1 Committee to Grant Awards to
Eligible Associates 6
ARTICLE V. ELIGIBILITY 7
ARTICLE VI. STOCK OPTIONS 7
Section 6.1 Grant of Options 7
Section 6.2 Conditions of Options 7
ARTICLE VII. RESTRICTED STOCK AWARDS 9
Section 7.1 Grant of Restricted Stock Awards 9
Section 7.2 Conditions of Restricted Stock
Awards 9
ARTICLE VIII. STOCK ADJUSTMENTS 10
ARTICLE IX. GENERAL 11
Section 9.1 Amendment or Termination of Plan 11
Section 9.2 Termination of Employment;
Termination of Service 11
Section 9.3 Limited Transferability - Options 11
Section 9.4 Withholding Taxes 12
Section 9.5 Dividends and Dividend
Equivalents - Awards 12
Section 9.6 Change of Control 12
Section 9.7 Amendments to Awards 12
Section 9.8 Regulatory Approval and Listings 12
Section 9.9 Right to Continued Employment 13
Section 9.10 Reliance on Reports 13
Section 9.11 Construction 13
Section 9.12 Governing Law 13
ARTICLE I.
PURPOSE
Section 1.1 Purpose. This 2000 Stock Incentive Plan (the
"Plan") is established by Fleming Companies, Inc. (the "Company")
to create incentives which are designed to motivate Participants
to put forth maximum effort toward the success and growth of the
Company and to enable the Company to attract and retain
experienced individuals who by their position, ability and
diligence are able to make important contributions to the
Company's success. Toward these objectives, the Plan provides
for the granting of Options and Restricted Stock Awards to
Eligible Associates subject to the conditions set forth in the
Plan.
Section 1.2 Establishment. The Plan is effective as of
February 29, 2000 and for a period of ten years thereafter. The
Plan shall continue in effect until all matters relating to the
payment of Awards and administration of the Plan have been
settled.
The Plan shall be approved by the holders of a majority
of the outstanding shares of Common Stock, present, or
represented, and entitled to vote at a meeting called for such
purpose, which approval must occur within the period ending
twelve months after the date the Plan is adopted by the Board.
Pending such approval by the shareholders, Awards under the Plan
may be granted to Eligible Associates, but no such Awards may be
exercised prior to receipt of shareholder approval. In the event
shareholder approval is not obtained within such twelve-month
period, all such Awards shall be void.
Section 1.3 Shares Subject to the Plan. Subject to the
limitations set forth in the Plan, Awards may be made under this
Plan for a total of One Million Nine Hundred Thousand (1,900,000)
shares of Common Stock.
ARTICLE II.
DEFINITIONS
Section 2.1 "Affiliated Entity" means any partnership or
limited liability company in which a majority of the partnership
or other similar interest thereof is owned or controlled,
directly or indirectly, by the Company or one or more of its
Subsidiaries or Affiliated Entities or a combination thereof.
For purposes hereof, the Company, a Subsidiary or an Affiliated
Entity shall be deemed to have a majority ownership interest in a
partnership or limited liability company if the Company, such
Subsidiary or Affiliated Entity shall be allocated a majority of
partnership or limited liability company gains or losses or shall
be or control a managing director or a general partner of such
partnership or limited liability company.
Section 2.2 "Award" means, individually or collectively,
any Option or Restricted Stock Award granted under the Plan to an
Eligible Associate by the Committee pursuant to such terms,
conditions, restrictions, and/or limitations, if any, as the
Committee may establish by the Award Agreement or otherwise.
Section 2.3 "Award Agreement" means any written instrument
that establishes the terms, conditions, restrictions, and/or
limitations applicable to an Award in addition to those
established by this Plan and by the Committee's exercise of its
administrative powers.
Section 2.4 "Board" means the Board of Directors of the
Company.
Section 2.5 "Change of Control Event" means each of the
following:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the Exchange Act) of 20% or more (the
"Triggering Percentage") of either (i) the then outstanding
shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, in the event the
"Incumbent Board" (as such term is hereinafter defined) pursuant
to authority granted in any rights agreement to which the Company
is a party (the "Rights Agreement") lowers the acquisition
threshold percentages set forth in such Rights Agreement, the
Triggering Percentage shall be automatically reduced to equal the
threshold percentages set pursuant to authority granted to the
board in the Rights Agreement; and provided, further, however,
that the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (iv) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (x), (y), and (z) of subsection (c) of this
Section 2.5; or
(b) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof
whose election, appointment or nomination for election by the
Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for purposes of this
definition, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(c) Approval by the shareholders of the Company of a
reorganization, share exchange, merger or consolidation or
acquisition of assets of another corporation (a "Business
Combination"), in each case, unless, following such Business
Combination, (x) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination will
beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which
as a result of such transaction will own the Company through one
or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business Combination
of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (y) no Person (excluding
any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) will
beneficially own, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities
of such corporation except to the extent that such ownership
existed prior to the Business Combination, and (z) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination will have
been members of the Incumbent Board at the time of the execution
of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the shareholders of the Company of (x) a
complete liquidation or dissolution of the Company or, (y) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to a corporation, with respect
to which following such sale or other disposition, (A) more than
50% of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors will be beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B)
less than 20% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors will be
beneficially owned, directly or indirectly, by any Person
(excluding any employee benefit plan (or related trust) of the
Company or such corporation), except to the extent that such
Person owned 20% or more of the Outstanding Company Common Stock
or Outstanding Company Voting Securities prior to the sale or
disposition, and (C) at least a majority of the members of the
board of directors of such corporation will have been members of
the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such sale
or other disposition of assets of the Company.
Section 2.6 "Code" means the Internal Revenue Code of 1986, as
amended. References in the Plan to any section of the Code shall
be deemed to include any amendments or successor provisions to
such section and any regulations under such section.
Section 2.7 "Committee" shall have the meaning set forth in
Section 3.1.
Section 2.8 "Common Stock" means the common stock, par value
$2.50 per share, of the Company, and after substitution, such
other stock as shall be substituted therefor as provided in
Article VIII.
Section 2.9 "Company" means Fleming Companies, Inc., an
Oklahoma corporation.
Section 2.10 "Compensation Committee" means the Compensation
and Organization Committee of the Board.
Section 2.11 "Date of Grant" means the date on which the
granting of an Award to an Eligible Associate is authorized by
the Committee or such later date as may be specified by the
Committee in such authorization.
Section 2.12 "Eligible Associate" means any key associate of
the Company, a Subsidiary, or an Affiliated Entity.
Section 2.13 "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
Section 2.14 "Executive Officer Participants" means
Participants who are subject to the provisions of Section 16 of
the Exchange Act.
Section 2.15 "Fair Market Value" means (A) during such time as
the Common Stock is listed upon the New York Stock Exchange or
other exchanges or the NASDAQ/ National Market System, the
average of the highest and lowest sales prices of the Common
Stock as reported by such stock exchange or exchanges or the
NASDAQ/National Market System on the day for which such value is
to be determined, or if no sale of the Common Stock shall have
been made on any such stock exchange or the NASDAQ/National
Market System that day, on the next preceding day on which there
was a sale of such Common Stock or (B) during any such time as
the Common Stock is not listed upon an established stock exchange
or the NASDAQ/National Market System, the mean between dealer
"bid" and "ask" prices of the Common Stock in the over-the-
counter market on the day for which such value is to be
determined, as reported by the National Association of Securities
Dealers, Inc.
Section 2.16 "Incentive Stock Option" means an Option within
the meaning of Section 422 of the Code.
Section 2.17 "Non-Executive Officer Participants" means
Participants who are not subject to the provisions of Section 16
of the Exchange Act.
Section 2.18 "Nonqualified Stock Option" means an Option which
is not an Incentive Stock Option.
Section 2.19 "Option" means an Award granted under Article VI
of the Plan and includes both Nonqualified Stock Options and
Incentive Stock Options to purchase shares of Common Stock.
Section 2.20 "Participant" means an Eligible Associate of the
Company, a Subsidiary, or an Affiliated Entity to whom an Award
has been granted by the Committee under the Plan.
Section 2.21 "Plan" means Fleming Companies, Inc. 2000 Stock
Incentive Plan.
Section 2.22 "Regular Award Committee" means a committee
comprised of the individual who is the Company's chairman and
chief executive officer.
Section 2.23 "Restricted Stock Award" means an Award granted to
an Eligible Associate under Article VII of the Plan.
Section 2.24 "Subsidiary" shall have the same meaning set forth
in Section 424 of the Code.
ARTICLE III.
ADMINISTRATION
Section 3.1 Administration of the Plan; the Committee. For
purposes of administration, the Plan shall be deemed to consist
of two separate stock incentive plans, a "Non-Executive Officer
Participant Plan" which is limited to Non-Executive Officer
Participants and an "Executive Officer Participant Plan" which is
limited to Executive Officer Participants. Except for
administration and the category of Eligible Associates eligible
to receive Awards, the terms of the Non-Executive Officer
Participant Plan and the Executive Officer Participant Plan are
identical.
The Non-Executive Officer Participant Plan shall be
administered by both the Regular Award Committee and the
Compensation Committee. The Regular Award Committee may only act
within guidelines established by the Compensation Committee. The
Executive Officer Participant Plan shall be administered by the
Compensation Committee. With respect to the Non-Executive Officer
Participant Plan and to decisions relating to Non-Executive
Officer Participants, including the grant of Awards, the term
"Committee" shall mean both the Regular Award Committee and the
Compensation Committee; and with respect to the Executive Officer
Participant Plan and to decisions relating to the Executive
Officer Participants, including the granting of Awards, the term
"Committee" shall mean only the Compensation Committee.
Unless otherwise provided in the by-laws of the Company
or the resolutions adopted from time to time by the Board
establishing the Committee, the Board may from time to time
remove members from, or add members to, the Committee. Vacancies
on the Committee, however caused, shall be filled by the Board.
The Committee shall hold meetings at such times and places as it
may determine. A majority of the members of the Committee shall
constitute a quorum, and the acts of a majority of the members
present at any meeting at which a quorum is present or acts
reduced to or approved in writing by a majority of the members of
the Committee shall be the valid acts of the Committee.
Subject to the provisions of the Plan, the Committee
shall have exclusive power to:
(a) Select the Eligible Associates to participate in the Plan.
(b) Determine the time or times when Awards will be made.
(c) Determine the form of an Award, whether an Option or a
Restricted Stock Award, the number of shares of Common Stock
subject to the Award, all the terms, conditions (including
performance requirements), restrictions and/or limitations, if
any, of an Award, including the time and conditions of exercise
or vesting, and the terms of any Award Agreement, which may
include the waiver or amendment of prior terms and conditions or
acceleration or early vesting or payment of an Award under
certain circumstances determined by the Committee.
(d) Determine whether Awards will be granted singly or in
combination.
(e) Accelerate the vesting, exercise or payment of an Award or
the performance period of an Award.
(f) Take any and all other action it deems necessary or
advisable for the proper operation or administration of the Plan.
Section 3.2 Committee to Make Rules and Interpret Plan. The
Committee in its sole discretion shall have the authority,
subject to the provisions of the Plan, to establish, adopt, or
revise such rules and regulations and to make all such
determinations relating to the Plan as it may deem necessary or
advisable for the administration of the Plan. The Committee's
interpretation of the Plan or any Awards and all decisions and
determinations by the Committee with respect to the Plan shall be
final, binding, and conclusive on all parties.
ARTICLE IV.
GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN
Section 4.1 Committee to Grant Awards to Eligible Associates.
The Committee may, from time to time, grant Awards to one or more
Eligible Associates, provided, however, that:
(a) Subject to Article VIII, the aggregate number of shares of
Common Stock made subject to the Award of Options to any Eligible
Associate in any calendar year may not exceed 300,000.
(b) Subject to Article VIII, in no event shall more than 200,000
shares of Common Stock subject to the Plan be awarded to Eligible
Associates as Restricted Stock Awards (the "Restricted Stock
Award Limit").
(c) Any shares of Common Stock related to Awards which terminate
by expiration, forfeiture, cancellation or otherwise without the
issuance of shares of Common Stock or are exchanged in the
Committee's discretion for Awards not involving Common Stock,
shall be available again for grant under the Plan and shall not
be counted against the Restricted Stock Award Limit so long as
the holder of any such Restricted Stock Award received no
benefits of Common Stock ownership (including, but not limited
to, dividends) from the shares of Common Stock related to such
Award.
(d) Common Stock delivered by the Company in payment of any
Award under the Plan may be authorized and unissued Common Stock
or Common Stock held in the treasury of the Company.
(e) The Committee shall, in its sole discretion, determine the
manner in which fractional shares arising under this Plan shall
be treated.
(f) The Compensation Committee shall from time to time establish
guidelines for the Regular Award Committee regarding the grant of
Awards to Eligible Associates.
(g) Separate certificates representing Common Stock to be
delivered to an Eligible Associate Participant upon the exercise
of any Option will be issued to such Participant.
(h) Awards granted which vest based upon the Participant's
continued employment shall be limited in such a way that (i) no
portion of the Award will vest until one year after the Date of
Grant, (ii) no more than one-third of the shares subject to the
Award is eligible to vest until one year after Date of Grant; and
(iii) no more than two-thirds of the shares subject to the Award
is eligible to vest until at least two years after Date of Grant
and (iv) the entire Award cannot vest until at least three years
after Date of Grant.
(i) Awards granted which vest based upon performance standards
shall require the holder to remain in the employment of the
Company, a Subsidiary, or an Affiliated Entity for at least one
year from Date of Grant.
(j) The Committee shall be prohibited from canceling, reissuing
or modifying Awards if such action will have the effect of
repricing the Participant's Award.
ARTICLE V.
ELIGIBILITY
Subject to the provisions of the Plan, the Committee
shall, from time to time, select from the Eligible Associates
those to whom Awards shall be granted and shall determine the
type or types of Awards to be made and shall establish in the
related Award Agreements the terms, conditions, restrictions
and/or limitations, if any, applicable to the Awards in addition
to those set forth in the Plan and the administrative rules and
regulations issued by the Committee.
ARTICLE VI.
STOCK OPTIONS
Section 6.1 Grant of Options. The Committee may, from time to
time, subject to the provisions of the Plan and such other terms
and conditions as it may determine, grant Options to Eligible
Associates. These Options may be Incentive Stock Options or
Nonqualified Stock Options, or a combination of both. Each grant
of an Option shall be evidenced by an Award Agreement executed by
the Company and the Eligible Associate, and shall contain such
terms and conditions and be in such form as the Committee may
from time to time approve, subject to the requirements of Section
6.2.
Section 6.2 Conditions of Options. Each Option so granted
shall be subject to the following conditions:
(a) Exercise Price. As limited by Section 6.2(e) below, each
Option shall state the exercise price which shall be set by the
Committee at the Date of Grant; provided, however, no Option
shall be granted at an exercise price which is less than the Fair
Market Value of the Common Stock on the Date of Grant.
(b) Form of Payment. The exercise price of an Option may be
paid (i) in cash or by check, bank draft or money order payable
to the order of the Company; (ii) by delivering shares of Common
Stock having a Fair Market Value on the date of payment equal to
the amount of the exercise price, but only to the extent such
exercise of an Option would not result in an accounting
compensation charge with respect to the shares used to pay the
exercise price unless otherwise determined by the Committee; or
(iii) a combination of the foregoing. In addition to the
foregoing, any Option granted under the Plan may be exercised by
a broker-dealer acting on behalf of an Eligible Associate
Participant if (A) the broker-dealer has received from the
Participant or the Company a notice evidencing the exercise of
such Option and instructions signed by the Participant requesting
the Company to deliver the shares of Common Stock subject to such
Option to the broker-dealer on behalf of the Participant and
specifying the account into which such shares should be
deposited, (B) adequate provision has been made with respect to
the payment of any withholding taxes due upon such exercise or,
in the case of an Incentive Stock Option, upon the disposition of
such shares and (C) the broker-dealer and the Participant have
otherwise complied with Section 220.3(e)(4) of Regulation T, 12
CFR, Part 220 and any successor rules and regulations applicable
to such exercise.
(c) Exercise of Options. Options granted under the Plan shall
be exercisable, in whole or in such installments and at such
times, and shall expire at such time, as shall be provided by the
Committee in the Award Agreement. Exercise of an Option shall be
by written notice to the Secretary at least two business days in
advance of such exercise stating the election to exercise in the
form and manner determined by the Committee. Every share of
Common Stock acquired through the exercise of an Option shall be
deemed to be fully paid at the time of exercise and payment of
the exercise price.
(d) Other Terms and Conditions. Among other conditions that may
be imposed by the Committee, if deemed appropriate, are those
relating to (i) the period or periods and the conditions of
exercisability of any Option; (ii) the minimum periods during
which Participants must be employed by the Company, its
Subsidiaries, or an Affiliated Entity, or must hold Options
before they may be exercised; (iii) the minimum periods during
which shares acquired upon exercise must be held before sale or
transfer shall be permitted; (iv) conditions under which such
Options or shares may be subject to forfeiture; (v) the frequency
of exercise or the minimum or maximum number of shares that may
be acquired at any one time; (vi) the achievement by the Company
of specified performance criteria; and (vii) non-compete and
protection of business matters.
(e) Special Restrictions Relating to Incentive Stock Options.
Options issued in the form of Incentive Stock Options shall only
be granted to Eligible Associates of the Company or a Subsidiary,
and not to Eligible Associates of an Affiliated Entity.
Furthermore, Incentive Stock Options shall, in addition to being
subject to all applicable terms, conditions, restrictions and/or
limitations established by the Committee, comply with the
requirements of Section 422 of the Code, including, without
limitation, the requirement that the exercise price of an
Incentive Stock Option not be less than 100% of the Fair Market
Value of the Common Stock on the Date of Grant, the requirement
that each Incentive Stock Option, unless sooner exercised,
terminated or cancelled, expire no later than 10 years from its
Date of Grant, and the requirement that the aggregate Fair Market
Value (determined on the Date of Grant) of the Common Stock with
respect to which Incentive Stock Options are exercisable for the
first time by a Participant during any calendar year (under this
Plan or any other plan of the Company or any Subsidiary) not
exceed $100,000.
(f) Application of Funds. The proceeds received by the Company
from the sale of Common Stock pursuant to Options will be used
for general corporate purposes.
(g) Shareholder Rights. No Participant shall have a right as a
shareholder with respect to any share of Common Stock subject to
an Option prior to purchase of such shares of Common Stock by
exercise of the Option.
ARTICLE VII.
RESTRICTED STOCK AWARDS
Section 7.1 Grant of Restricted Stock Awards. The Committee
may, from time to time, subject to the provisions of the Plan and
such other terms and conditions as it may determine, grant a
Restricted Stock Award to any Eligible Associate. Restricted
Stock Awards shall be awarded in such number and at such times
during the term of the Plan as the Committee shall determine.
Each Restricted Stock Award may be evidenced in such manner as
the Committee deems appropriate, including, without limitation, a
book-entry registration or issuance of a stock certificate or
certificates, and by an Award Agreement setting forth the terms
of such Restricted Stock Award.
Section 7.2 Conditions of Restricted Stock Awards. The grant
of a Restricted Stock Award shall be subject to the following:
(a) Restriction Period. In addition to any vesting conditions
determined by the Committee, including, but not by way of
limitation, the achievement by the Company of specified
performance criteria, vesting of each Restricted Stock Award
shall require the holder to remain in the employment of the
Company, a Subsidiary, or an Affiliated Entity for a prescribed
period (a "Restriction Period"). Subject to Sections 4.1(h) and
(i) the Committee shall determine the Restriction Period or
Periods which shall apply to the shares of Common Stock covered
by each Restricted Stock Award or portion thereof. At the end of
the Restriction Period, assuming the fulfillment of any other
specified vesting conditions, the restrictions imposed by the
Committee shall lapse with respect to the shares of Common Stock
covered by the Restricted Stock Award or portion thereof. In
addition to acceleration of vesting upon the occurrence of a
Change of Control Event as provided in Section 9.6, the Committee
may, in its sole discretion, modify or accelerate the vesting of
a Restricted Stock Award (i) in the case of the death or
disability of the Participant, (ii) in the case the Participant's
employment is terminated by the Company without "cause" as such
term shall be defined by the Committee in the Award Agreement, or
(iii) in the case the Participant terminates his employment for
"good reason" as such term shall be defined by the Committee in
the Award Agreement. In addition, with respect to Restricted
Stock Awards representing an aggregate of 20,000 shares under the
Plan (10% of the Restricted Stock Award Limit), the Committee may
in its sole discretion modify or accelerate the vesting of such
Restricted Stock Awards under such circumstances as it deems
appropriate.
(b) Restrictions. The holder of a Restricted Stock Award may
not sell, transfer, pledge, exchange, hypothecate, or otherwise
dispose of the shares of Common Stock represented by the
Restricted Stock Award during the applicable Restriction Period.
The Committee shall impose such other restrictions and conditions
on any shares of Common Stock covered by a Restricted Stock Award
as it may deem advisable including, without limitation,
restrictions under applicable Federal or state securities laws,
and may legend the certificates representing Restricted Stock to
give appropriate notice of such restrictions.
(c) Rights as Shareholders. During any Restriction Period, the
Committee may, in its discretion, grant to the holder of a
Restricted Stock Award all or any of the rights of a shareholder
with respect to the shares, including, but not by way of
limitation, the right to vote such shares and to receive
dividends. If any dividends or other distributions are paid in
shares of Common Stock, all such shares shall be subject to the
same restrictions on transferability as the shares of Restricted
Stock with respect to which they were paid.
ARTICLE VIII.
STOCK ADJUSTMENTS
In the event that the shares of Common Stock, as
presently constituted, shall be changed into or exchanged for a
different number or kind of shares of stock or other securities
of the Company or of another corporation (whether by reason of
merger, consolidation, recapitalization, reclassification, stock
split, combination of shares or otherwise), or if the number of
such shares of Common Stock shall be increased through the
payment of a stock dividend, or a dividend on the shares of
Common Stock or rights or warrants to purchase securities of the
Company shall be issued to holders of all outstanding Common
Stock, then there shall be substituted for or added to each share
available under and subject to the Plan, and each share
theretofore appropriated under the Plan, the number and kind of
shares of stock or other securities into which each outstanding
share of Common Stock shall be so changed or for which each such
share shall be exchanged or to which each such share shall be
entitled, as the case may be, on a fair and equivalent basis in
accordance with the applicable provisions of Section 424 of the
Code; provided, however, with respect to Options, in no such
event will such adjustment result in a modification of any Option
as defined in Section 424(h) of the Code. In the event there
shall be any other change in the number or kind of the
outstanding shares of Common Stock, or any stock or other
securities into which the Common Stock shall have been changed or
for which it shall have been exchanged, then if the Committee
shall, in its sole discretion, determine that such change
equitably requires an adjustment in the shares available under
and subject to the Plan, or in any Award, theretofore granted,
such adjustments shall be made in accordance with such
determination, except that no adjustment of the number of shares
of Common Stock available under the Plan or to which any Award
relates that would otherwise be required shall be made unless and
until such adjustment either by itself or with other adjustments
not previously made would require an increase or decrease of at
least 1% in the number of shares of Common Stock available under
the Plan or to which any Award relates immediately prior to the
making of such adjustment (the "Minimum Adjustment"). Any
adjustment representing a change of less than such minimum amount
shall be carried forward and made as soon as such adjustment
together with other adjustments required by this Article VIII and
not previously made would result in a Minimum Adjustment.
Notwithstanding the foregoing, any adjustment required by this
Article VIII which otherwise would not result in a Minimum
Adjustment shall be made with respect to shares of Common Stock
relating to any Award immediately prior to exercise, payment or
settlement of such Award.
No fractional shares of Common Stock or units of other
securities shall be issued pursuant to any such adjustment, and
any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole
share.
ARTICLE IX.
GENERAL
Section 9.1 Amendment or Termination of Plan. The Board may
alter, suspend or terminate the Plan at any time. In addition,
the Board may, from time to time, amend the Plan in any manner,
but may not without shareholder approval adopt any amendment
which would (i) increase the aggregate number of shares of Common
Stock available under the Plan (except by operation of Article
VIII), (ii) materially modify the requirements as to eligibility
of Eligible Associates for participation in the Plan, or (iii)
materially increase the benefits to Participants provided by the
Plan.
Section 9.2 Termination of Employment; Termination of Service.
If an Eligible Associate's employment with the Company, a
Subsidiary, or an Affiliated Entity terminates for a reason other
than death, disability, retirement, or any approved reason, all
unexercised, unearned, and/or unpaid Awards, including, but not
by way of limitation, Awards earned, but not yet paid, all unpaid
dividends and dividend equivalents, and all interest, if any,
accrued on the foregoing shall be cancelled or forfeited, as the
case may be, unless the Eligible Associate's Award Agreement
provides otherwise. The Committee shall (i) determine what events
constitute disability, retirement, or termination for an approved
reason for purposes of the Plan, and (ii) determine the treatment
of a Participant under the Plan in the event of his or her death,
disability, retirement, or termination for an approved reason.
The Committee shall also determine the method, if any, for
accelerating the vesting or exercisability of any Options, or
providing for the exercise of any unexercised Options in the
event of an Eligible Associate's death, disability, retirement,
or termination for an approved reason. In the event an Eligible
Associate's employment is terminated due to retirement in
accordance with the Company's regular retirement policies, unless
the Eligible Associate's Award Agreement provides otherwise, the
Eligible Associate shall have a period of three years following
his date of retirement to exercise any Nonqualified Stock Options
which are otherwise exercisable on his date of retirement.
Section 9.3 Limited Transferability - Options. The Committee
may, in its discretion, authorize all or a portion of the
Nonqualified Stock Options to be granted under this Plan to be on
terms which permit transfer by the Participant to (i) the ex-
spouse of the Participant pursuant to the terms of a domestic
relations order, (ii) the spouse, children or grandchildren of
the Participant ("Immediate Family Members"), (iii) a trust or
trusts for the exclusive benefit of such immediate Family
Members, or (iv) a partnership in which such Immediate Family
Members are the only partners. In addition (x) there may be no
consideration for any such transfer, (y) the Award Agreement
pursuant to which such Nonqualified Stock Options are granted
must be approved by the Committee, and must expressly provide for
transferability in a manner consistent with this paragraph, and
(z) subsequent transfers of transferred Nonqualified Stock
Options shall be prohibited except as set forth below in this
Section 9.3. Following transfer, any such Nonqualified Stock
Options shall continue to be subject to the same terms and
conditions as were applicable immediately prior to transfer,
provided that for purposes of Section 9.2 hereof the term
"Participant" shall be deemed to refer to the transferee. The
events of termination of employment of Section 9.2 hereof shall
continue to be applied with respect to the original Participant,
following which the Nonqualified Stock Options shall be
exercisable by the transferee only to the extent, and for the
periods specified in Section 9.2 hereof. No transfer pursuant to
this Section 9.3 shall be effective to bind the Company unless
the Company shall have been furnished with written notice of such
transfer together with such other documents regarding the
transfer as the Committee shall request. In addition, subject to
the foregoing provisions of this Section 9.3, Awards shall be
transferable only by will or the laws of descent and
distribution; however, no such transfer of an Award by the
Participant shall be effective to bind the Company unless the
Company shall have been furnished with written notice of such
transfer and an authenticated copy of the will and/or such other
evidence as the Committee may deem necessary to establish the
validity of the transfer and the acceptance by the transferee of
the terms and conditions of such Award.
Section 9.4 Withholding Taxes. Unless otherwise paid by the
Participant, the Company shall be entitled to deduct from any
payment under the Plan, regardless of the form of such payment,
the amount of all applicable income and employment taxes required
by law to be withheld with respect to such payment or may require
the Participant to pay to it such tax prior to and as a condition
of the making of such payment. In accordance with any applicable
administrative guidelines it establishes, the Committee may allow
a Participant to pay the amount of taxes required by law to be
withheld from an Award by (i) directing the Company to withhold
from any payment of the Award a number of shares of Common Stock
having a Fair Market Value of the date of payment equal to the
amount of the required withholding taxes or (ii) delivering to
the Company previously owned shares of Common Stock having a Fair
Market Value on the date of payment equal to the amount of the
required withholding taxes; provided, the foregoing
notwithstanding, any payment made by the Participant pursuant to
either of the foregoing clauses (i) or (ii) shall not be
permitted if it would result in an accounting charge with respect
to such shares used to pay such taxes unless otherwise approved
by the Committee.
Section 9.5 Dividends and Dividend Equivalents - Awards. The
Committee may choose, at the time of the grant of any Award or
any time thereafter up to the time of payment of such Award, to
include as part of such Award an entitlement to receive dividends
or dividend equivalents subject to such terms, conditions,
restrictions, and/or limitations, if any, as the Committee may
establish. Dividends and dividend equivalents granted hereunder
shall be paid in such form and manner (i.e., lump sum or
installments), and at such time as the Committee shall determine.
All dividends or dividend equivalents which are not paid
currently may, at the Committee's discretion, accrue interest.
Section 9.6 Change of Control. Awards granted under the Plan
to any Eligible Associate may, in the discretion of the
Committee, provide that such Awards shall be immediately vested,
fully earned and exercisable upon the occurrence of a Change of
Control Event.
Section 9.7 Amendments to Awards. The Committee may at any
time unilaterally amend the terms of any Award Agreement, whether
or not presently exercisable or vested, to the extent it deems
appropriate; provided, however, that any such amendment which is
adverse to the Participant shall require the Participant's
consent.
Section 9.8 Regulatory Approval and Listings. The Company
shall use its best efforts to file with the Securities and
Exchange Commission as soon as practicable following approval by
the shareholders of the Company of the Plan as provided in
Section 1.2 of the Plan, and keep continuously effectively, a
Registration Statement on Form S-8 with respect to shares of
Common Stock subject to Awards hereunder. Notwithstanding
anything contained in this Plan to the contrary, the Company
shall have no obligation to issue shares of Common Stock under
this Plan prior to:
(a) the obtaining of any approval from, or satisfaction of any
waiting period or other condition imposed by, any governmental
agency which the Committee shall, in its sole discretion,
determine to be necessary or advisable;
(b) the admission of such shares to listing on the stock
exchange on which the Common Stock may be listed; and
(c) the completion of any registration or other qualification
of such shares under any state or Federal law or ruling of any
governmental body which the Committee shall, in its sole
discretion, determine to be necessary or advisable.
Section 9.9 Right to Continued Employment. Participation in
the Plan shall not give any Eligible Associate any right to
remain in the employ of the Company, any Subsidiary, or any
Affiliated Entity. The Company or, in the case of employment with
a Subsidiary or an Affiliated Entity, the Subsidiary or
Affiliated Entity reserves the right to terminate any Eligible
Associate at any time. Further, the adoption of this Plan shall
not be deemed to give any Eligible Associate or any other
individual any right to be selected as a Participant or to be
granted an Award.
Section 9.10 Reliance on Reports. Each member of the Committee
and each member of the Board shall be fully justified in relying
or acting in good faith upon any report made by the independent
public accountants of the Company and its Subsidiaries and upon
any other information furnished in connection with the Plan by
any person or persons other than himself or herself. In no event
shall any person who is or shall have been a member of the
Committee or of the Board be liable for any determination made or
other action taken or any omission to act in reliance upon any
such report or information or for any action taken, including the
furnishing of information, or failure to act, if in good faith.
Section 9.11 Construction. Masculine pronouns and other words
of masculine gender shall refer to both men and women. The titles
and headings of the sections in the Plan are for the convenience
of reference only, and in the event of any conflict, the text of
the Plan, rather than such titles or headings, shall control.
Section 9.12 Governing Law. The Plan shall be governed by and
construed in accordance with the laws of the State of Oklahoma
except as superseded by applicable Federal law.