FLEMING COMPANIES, INC.
______________________________________________________________________________
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT (1996 STOCK INCENTIVE PLAN)
______________________________________________________________________________
Name: _______________ Grant Date: _________________
Option Price: $_____ Exercise Date: _________________ - 25%
Shares Granted: _____ _________________ - 50%
Expiration Date: _________________ _________________ - 75%
_________________ - 100%
(Amended and Restated as of August 18, 1998)
AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE FLEMING COMPANIES, INC.
1996 STOCK INCENTIVE PLAN
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION
AGREEMENT, made as of this 18th day of August, 1998, at Oklahoma City, Oklahoma
by and between ______________ (hereinafter referred to as the "Participant", and
Fleming Companies, Inc. (hereinafter referred to as the "Company"):
W I T N E S S E T H:
WHEREAS, the Participant is a key employee of the Company, its parent or
any subsidiary of the Company, and it is important to the Company that the Par-
ticipant be encouraged to remain in the employ of the Company, its parent or
any subsidiary of the Company; and
WHEREAS, in recognition of such facts, the Company has provided to the
Participant an opportunity to purchase shares of the common stock of the Com-
pany, as hereinafter provided, pursuant to the "Fleming Companies, Inc. 1996
Stock Incentive Plan" (the "Plan") and the Company and the Participant have
executed that certain Non-Qualified Stock Option Agreement under the Fleming
Companies, Inc. 1996 Stock Incentive Plan dated as of February 24, 1997 (the
"Original Agreement"); and
WHEREAS, the Company and the Participant desire to amend the Original
Agreement by execution of this Amended and Restated Non-Qualified Stock Option
Agreement under the Fleming Companies, Inc. 1996 Stock Incentive Plan (the
"Option Agreement") which shall serve as an amendment, restatement and con-
tinuation of the Original Agreement as amended by this Option Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for good and valuable consideration, the Participant and the Com-
pany hereby agree as follows:
1. GRANT OF STOCK OPTION. The Company hereby grants to the
Participant a non-qualified stock option (the "Stock Option") as described
in Sections 83 and 421 of the Internal Revenue Code of 1986 (the "Code") to
purchase all or any part of an aggregate of _____ shares of its common stock
(the "Stock") of the Company as set forth below, under and subject to the
terms and conditions of this Option Agreement and the Plan, which is incorpo-
rated herein by reference and made a part hereof for all purposes. The pur-
chase price per share for each share of Stock to be purchased hereunder
shall be $_____ (the "Option Price").
2. TIMES OF EXERCISE OF STOCK OPTION. After, and only after, the
conditions of Section 9 hereof have been satisfied, the Participant shall
be eligible to exercise that portion of his Stock Option pursuant to the
schedule set forth hereinafter. If the Participant's employment with the
Company (or its parent or of any one or more of the subsidiaries of the
Company) remains full-time and continuous at all times to any of the
"Exercise Dates" specified hereafter, then the Participant shall be entitled,
subject to the applicable provisions of the Plan and this Option Agreement
having been satisfied, to exercise on or after the applicable Exercise Date,
on a cumulative basis, the number of shares of Stock determined by multiply-
ing the aggregate number of shares set forth in the foregoing Section 1 by
the designated percentage set forth hereafter.
Percent of Stock
Exercise Dates Option Exercisable
After _________________ 25%
After _________________ 50%
After _________________ 75%
After _________________ 100%
3. TERM OF STOCK OPTION. Except as specifically provided to the
contrary in this Option Agreement or in the Plan, with regard to the death of a
Participant, no Stock Option shall be exercisable within six months from nor
more than ten years after the date of grant (the "Option Period"). Stock
Options shall be exercisable only by the Participant while actively employed
by the Company or a subsidiary, except that (i) any such Stock Option granted
and which is otherwise exercisable, may be exercised by the personal repre-
sentative of a deceased Participant within 12 months after the death of such
Participant and (ii) if a Participant terminates his employment with the
Company or a subsidiary, such Participant may exercise any Stock Option
which is otherwise exercisable at any time within three months of such
date of termination. If a Participant should die during the applicable three
month period following the date of such Participant's termination, the rights
of the personal representative of such deceased Participant as such relate to
any Stock Options granted to such deceased Participant shall be governed in
accordance with this Section 3(i).
4. NONTRANSFERABILITY OF STOCK OPTIONS. Except as otherwise
herein provided, any Stock Option granted shall not be transferable other-
wise than by will or the laws of descent and distribution, and the Stock
Option may be exercised, during the lifetime of the Participant, only by him.
More particularly (but without limiting the generality of the foregoing), the
Stock Option may not be assigned, transferred (except as provided above),
pledged or hypothecated in any way, shall not be assignable by operation
of law and shall not be subject to execution, attachment, or similar
process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Stock Option contrary to the provisions hereof shall
be null and void and without effect.
5. EMPLOYMENT. So long as the Participant shall continue to be a full-
time and continuous employee of the Company, its parent or one or more of the
subsidiaries of the Company, any Stock Option granted to him shall not be
affected by any change of duties or position. Nothing in the Plan or in
this Option Agreement shall confer upon the Participant any right to con-
tinue in the employ of the Company, its parent or any of the subsidiaries
of the Company, or interfere in any way with the right of the Company, its
parent or any of the subsidiaries of the Company to terminate such
Participant's employment at any time.
6. SPECIAL RULES WITH RESPECT TO STOCK OPTIONS. With respect to
Stock Options granted hereunder, the following special rules shall apply:
(a) Acceleration of Otherwise Unexercisable Stock Option on
Termination of Employment or Death. The Committee, in its sole discretion, may
permit (i) a Participant who terminates employment with the Company or a sub-
sidiary or (ii) the personal representative of a deceased Participant, to
exercise and purchase (within three months of such date of termination of
employment or 12 months in the case of a deceased Participant) all or any
part of the shares subject to the Stock Option on the date of the Partici-
pant's death or termination, notwithstanding that all installments, if any,
with respect to such Stock Option, had not accrued on such date.
Provided, such discretionary authority of the Committee may not be
exercised with respect to any Stock Option (or portion thereof) if
the applicable six month waiting period for exercise had not expired
except in the event of the death of the Participant when the personal
representative of the deceased Participant may, with the consent
of the Committee, exercise such Stock Option notwithstanding the
fact that the applicable six month waiting period had not yet expired.
(b) Number of Stock Options Granted. Participants may be granted
more than one Stock Option. In making any such determination, the Committee
shall obtain the advice and recommendation of the officers of the Company,
its parent, or a subsidiary of the Company which have supervisory authority
over such Participants. Further, the granting of a Stock Option under this
Option Agreement shall not affect any outstanding Stock Option previously
granted to a Participant under the Plan.
(c) Payment of Withholding Taxes. Upon the exercise of any Stock
Option as provided herein, no such exercise shall be permitted, nor shall any
Stock be issued to any Participant until the Company receives full payment for
the Stock purchased which shall include any required state and federal with-
holding taxes. Further, upon the exercise of any Stock Option the Partici-
pant may direct the Company to retain from the shares of Stock to be issued
upon exercise of the Stock Option that number of initial shares of Stock
(based on fair market value) that would satisfy the requirements for with-
holding any amounts due upon the exercise.
7. METHOD OF EXERCISING STOCK OPTION.
(a) Procedures for Exercise. The manner of exercising the Stock
Option herein granted shall be by written notice to the Company at least two
days before the date the Stock Option, or part thereof, is to be exercised,
and in any event prior to the expiration of the Option Period. Such notice
shall state the election to exercise the Stock Option and the number of
shares of Stock with respect to that portion of the Stock Option being
exercised, and shall be signed by the person or persons so exercising the
Stock Option. The notice shall be accompanied by payment of the full
purchase price of such shares, in which event the Company shall deliver a
certificate or certificates representing such shares to the person or
persons entitled thereto as soon as practicable after the notices shall be
received.
(b) Form of Payment. Payment for shares of Stock purchased under
this Option Agreement shall be made in full and in cash or check made payable
to the Company. Provided, payment for shares of Stock purchased under this
Option Agreement may also be made in common stock of the Company or a
combination of cash and common stock of the Company. In the event that
common stock of the Company is utilized in consideration for the purchase
of Stock upon the exercise of a Stock Option, then, such common stock shall
be valued at the "fair market value" as defined in Section 2.10 of the Plan.
In addition to the foregoing procedure which may be available for the
exercise of any Stock Option, the Participant may deliver to the
Company a notice of exercise including an irrevocable instruction to
the Company to deliver the stock certificate representing the shares
subject to a Stock Option to a broker authorized to trade in the common
stock of the Company. Upon receipt of such notice, the Company will
acknowledge receipt of the executed notice of exercise and forward this
notice to the broker. Upon receipt of the copy of the notice which has
been acknowledged by the Company, and without waiting for issuance of the
actual stock certificate with respect to the exercise of the Stock Option,
the broker may sell the Stock (or that portion of the Stock necessary to
cover the Option Price and any withholding taxes due, if any). Upon receipt
of the stock certificate from the Company, the broker will deliver directly
to the Company that portion of the sales proceeds to cover the Option Price
and any withholding taxes. Further, the broker may also facilitate a
loan to the Participant upon advance receipt of the exercise notice for
issuance of the actual stock certificate as an alternative means of
financing and facilitating the exercise of any Stock Option. For all
purposes of effecting the exercise of a Stock Option, the date on which
the Participant gives the notice of exercise to the Company will be the
date he becomes bound contractually to take and pay for the
shares of Stock underlying the Stock Option. No Stock shall be issued to the
Participant until the Company receives full payment for the Stock purchased
under the Stock Option which shall include any required state and federal
withholding taxes.
(c) Further Information. In the event the Stock Option is
exercised, pursuant to the foregoing provisions of this Section 7, by
any person or persons other than the Participant in the event of the
death of the Participant, such notice shall also be accompanied by
appropriate proof of the right of such person or persons to exercise
the Stock Option. The notice so required shall be given by personal
delivery to the Secretary of the Company or by registered or certified
mail, addressed to the Company at 6301 Waterford Boulevard, Oklahoma
City, Oklahoma 73118, and it shall be deemed to have been given when
it is so personally delivered or when it is deposited in the United
States mail in an envelope addressed to the Company, as aforesaid,
properly stamped for delivery as a registered or certified letter.
8. ACCELERATION OF OPTIONS UPON CHANGE OF CONTROL.
Notwithstanding anything to the contrary in the Plan, upon the occurrence
of a "Change of Control Event" (as such term is defined in Section 8 of
this Option Agreement and not in the Plan), any and all Stock Options will
become automatically fully vested and immediately exercisable with such
acceleration to occur without the requirement of any further act by either
the Company or the Participant. For purposes of this Participant and this
Option Agreement, the term "Change of Control Event" shall mean:
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more (the "Triggering
Percentage") of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided,
however, in the event the "Incumbent Board" (as such term
is hereinafter defined) pursuant to authority granted in any
rights agreement to which the Company is a party (the
"Rights Agreement") lowers the acquisition threshold
percentages set forth in such Rights Agreement, the
Triggering Percentage shall be automatically reduced to
equal the threshold percentages set pursuant to authority
granted to the board in the Rights Agreement; and provided,
further, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly
from the Company, (ii) any acquisition by the Company, (iii)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (iv) any
acquisition by any corporation pursuant to a transaction
which complies with clauses (x), (y), and (z) of subsection
(iii) of this Section 8; or
(ii) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, appointment
or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for purposes of this
definition, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
or
(iii) Approval by the shareholders of the Company of
a reorganization, share exchange, merger or consolidation
or acquisition of assets of another corporation (a "Business
Combination"), in each case, unless, following such
Business Combination, (x) all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately
prior to such Business Combination will beneficially own,
directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock and the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting
from such Business Combination (including, without
limitation, a corporation which as a result of such
transaction will own the Company through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination
of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may
be, (y) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting
from such Business Combination) will beneficially own,
directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership
existed prior to the Business Combination, and (z) at least
a majority of the members of the board of directors of the
corporation resulting from such Business Combination will
have been members of the Incumbent Board at the time of
the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(iv) Approval by the shareholders of the Company
of (x) a complete liquidation or dissolution of the Company
or, (y) the sale or other disposition of all or substantially all
of the assets of the Company, other than to a corporation,
with respect to which following such sale or other
disposition, (A) more than 50% of, respectively, the then
outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote
generally in the election of directors will be beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately
prior to such sale or other disposition in substantially the
same proportion as their ownership, immediately prior to
such sale or other disposition, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) less than 20% of,
respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the
then outstanding voting securities of such corporation
entitled to vote generally in the election of directors will be
beneficially owned, directly or indirectly, by any Person
(excluding any employee benefit plan (or related trust) of
the Company or such corporation), except to the extent that
such Person owned 20% or more of the Outstanding
Company Common Stock or Outstanding Company Voting
Securities prior to the sale or disposition, and (C) at least a
majority of the members of the board of directors of such
corporation will have been members of the Incumbent Board
at the time of the execution of the initial agreement, or of
the action of the Board, providing for such sale or other
disposition of assets of the Company.
9. SECURITIES LAW RESTRICTIONS. Stock Options shall be exercised and
Stock issued only upon compliance with the Securities Act of 1933, as amended
(the "Act"), and any other applicable securities law, or pursuant to an
exemption therefrom.
10. NOTICES. All notices or other communications relating to the Plan and
this Option Agreement as it relates to the Participant shall be in writing and
shall be mailed (U.S. Mail) by the Company to the Participant at the then cur-
rent address as maintained by the Company or such other address as the Partici-
pant may advise the Company in writing.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
duly executed by its officers thereunto duly authorized, and the Participant has
hereunto set his hand and seal, all on the day and year first above written.
COMPANY: FLEMING COMPANIES, INC., an
Oklahoma corporation
By: ______________________________________
Craig A. Grant, Senior Vice President -
Organizational Strategies and
Management Development
PARTICIPANT: _________________________________________
_________________________