Corporate
FLEMING COMPANIES, INC.
2002 STOCK INCENTIVE PLAN
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NON-QUALIFIED STOCK OPTION AGREEMENT
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Name: Grant Date:
Option Price: Exercise Date: 25%
Shares Granted: 50%
Expiration Date: 75%
100%
THIS AGREEMENT WILL BE VOID UNLESS FULLY EXECUTED WITHIN TWENTY-
ONE (21) DAYS OF RECEIPT BY THE PARTICIPANT.
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE FLEMING COMPANIES, INC.
2002 STOCK INCENTIVE PLAN
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Option Agreement"),
made as of this ____ day ______________, _____, at Lewisville, Texas 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 an "Eligible Associate" of the Company, as
such term is defined in the Plan, and it is important to the Company that the
Participant be encouraged to remain in the employ of the Company and given
incentive to perform while in the employ of the Company; and
WHEREAS, as an ancillary part of this Option Agreement, it is also
important to the Company to protect its legitimate business interests if the
Participant leaves the employ of the Company; and
WHEREAS, in recognition of such facts, the Company desires to provide
to the Participant an opportunity to purchase shares of the common stock of the
Company, as hereinafter provided, pursuant to the "Fleming Companies, Inc. 2002
Stock Incentive Plan" (the "Plan"); and
WHEREAS, the Participant is a "Non-Executive Officer Participant" as
such term is defined in the Plan, and the Regular Award Committee has made this
Award as permitted by Section 3 of the Plan.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for good and valuable consideration, the Participant and the
Company hereby agree as follows:
1. GRANT OF STOCK OPTION. The Company hereby grants to the Participant
Nonqualified Stock Options (the "Stock Options") to purchase all or any part of
an aggregate of _______ shares of Common Stock under and subject to the terms
and conditions of this Option Agreement and the Plan, which is incorporated
herein by reference and made a part hereof for all purposes. All capitalized
terms used in this Option Agreement shall have the same meaning ascribed to them
in the Plan unless specifically denoted otherwise. The purchase price per share
for each share of Common 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 8 hereof have been satisfied, the Participant shall be
eligible to exercise that portion of his/her Stock Options pursuant to the
schedule set forth hereinafter. If the Participant's employment with the Company
(or of any one or more of the Subsidiaries of the Company) remains full-time and
continuous at all times prior to any of the "Exercise Dates" set forth in this
Section 2,
then the Participant shall be entitled, subject to the applicable provisions of
the Plan and this Option Agreement having been satisfied, to exercise on or
after the applicable Exercise Date, on a cumulative basis, the number of shares
of Stock determined by multiplying the aggregate number of shares set forth in
Section 1 of this Option Agreement by the designated percentage set forth below.
Percent of Stock
Exercise Dates Option Exercisable
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On or After ______________ 25%
On or After ______________ 50%
On or After ______________ 75%
On or After ______________ 100%
3. TERM OF STOCK OPTION. Except as provided for in Section 4 of this
Option Agreement, none of the Stock Options shall be exercisable more than ten
years from the Date of Grant (the "Option Period").
4. SPECIAL RULES WITH RESPECT TO STOCK OPTIONS. With respect to the
Stock Options, the following special rules shall apply:
(a) Exercise of Exercisable Stock Options on Termination of
Employment. Except as provided to the contrary in the Plan or in this
Option Agreement, if a Participant's employment with the Company, a
Subsidiary or an Affiliated Entity is terminated during the Option
Period for any reason other than death or retirement, he/she may
exercise all or any portion of the Stock Options which are otherwise
exercisable on the date of such termination at any time within three
months from the date of termination; provided, however, that if the
Participant should die during such three month period, the rights of
his/her personal representative shall be as set forth in Section 4(b)
of this Option Agreement.
(b) Exercise of Exercisable Stock Options on Termination of
Employment Due to Death. If a Participant's employment with the
Company, a Subsidiary or an Affiliated Entity is terminated during the
Option Period due to his/her death, the personal representative of the
deceased Participant may exercise all or any portion of the Stock
Options which are otherwise exercisable on the date of death within 12
months from the date of death.
(c) Exercise of Exercisable Stock Options on Termination of
Employment Due to Retirement. If a Participant's employment with the
Company, a Subsidiary or an Affiliated Entity is terminated due to
retirement in accordance with the Company's retirement policies, the
Participant shall have a period of three years following his/her date
of retirement to exercise the Stock Options which are otherwise
exercisable on his/her date of retirement.
(d) Acceleration of Otherwise Unexercisable Stock Options on
Termination of Employment. The Committee, in its sole discretion, may
determine that upon termination of the employment of a Participant any
and all Stock Options shall become automatically fully vested and
immediately exercisable by the Participant or his/her personal
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representative as the case may be for whatever period following such
termination as the Committee shall so decide.
(e) Acceleration of Options Upon Change of Control. Upon the
occurrence of a Change of Control Event, 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.
5. NON-TRANSFERABILITY OF STOCK OPTIONS. Except as provided in Section
9.3 of the Plan regarding certain limited transferability of Stock Options with
the Committee's approval, Stock Options shall be transferable only by will or
the laws of descent and distribution; however, no such transfer of the Stock
Options 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 Option.
6. EMPLOYMENT. So long as the Participant shall continue to be a
full-time and continuous employee of the Company or a Subsidiary, the Stock
Options shall not be affected by any change of duties or position. Nothing in
the Plan or in this Option Agreement shall confer upon the Participant any right
to continue in the employ of the Company, any of the Subsidiaries, or any
Affiliated Entities or interfere in any way with the right of the Company, any
of the Subsidiaries or any Affiliated Entities to terminate such Participant's
employment at any time.
7. METHOD OF EXERCISING STOCK OPTION.
(a) Procedures for Exercise. The manner of exercising the
Stock Options shall be by written notice to the Company at least two
days before the date the Stock 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
Options and the number of shares of Common Stock with respect to that
portion of the Stock Options being exercised, and shall be signed by
the person or persons so exercising the Stock Options. The notice shall
be accompanied by payment of the full purchase price of such shares, in
which event the Company shall provide a book-entry registration or
certificates representing such shares to the person or persons entitled
thereto as soon as practicable after the notices have been received.
(b) Form of Payment. Payment for shares of Common Stock
purchased under this Option Agreement shall be made in full by the
Participant in any manner specified in Section 6.2(b) of the Plan. No
Common Stock shall be issued to the Participant until the Company
receives full payment for the Common Stock purchased under the Stock
Options which shall include any required state and federal withholding
taxes. Withholding taxes may be paid by the Participant in any manner
specified in Section 9.4 of the Plan.
(c) Further Information. In the event the Stock Options are
exercised, pursuant to the foregoing provisions of this Section 7, by
any person or persons other than the Participant in the event of the
death of the Participant, the notice of election to exercise shall
also be
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accompanied by appropriate proof of the right of such person or persons to
exercise the Stock Options.
8. SECURITIES LAW RESTRICTIONS. Stock Options shall be exercised and
Common Stock issued only upon compliance with the Securities Act of 1933, as
amended, and any other applicable securities law, or pursuant to an exemption
therefrom.
9. NOTICES. All notices or other communications relating to the Plan
and this Option Agreement as it relates to the Participant or, in event of the
death of the Participant, his/her personal representative shall be in writing
and shall be mailed (U.S. Mail) by the Company to the Participant or his/her
personal representative, as the case may be, at the then current address as
maintained by the Company or such other address as the Participant or his/her
personal representative may advise the Company in writing. All other notices
shall be given by personal delivery to the Secretary of the Company or by
registered or certified mail at his/her principal office or at such other
address as the Company may hereafter advise the Participant or his/her personal
representative, and it shall be deemed to have been given when they are so
personally delivered or when they are deposited in the United States mail in an
envelope addressed to the Company, properly stamped for delivery as a registered
or certified letter.
10. PROTECTION OF COMPANY BUSINESS AS CONSIDERATION. AS SPECIFIC
CONSIDERATION TO THE COMPANY FOR THE STOCK OPTIONS, THE PARTICIPANT AGREES:
(a) LIMITATIONS ON COMPETITION. SUBJECT TO SUBSECTION (g), THE
PARTICIPANT WILL NOT, WITHOUT THE COMPANY'S WRITTEN CONSENT, DIRECTLY
OR INDIRECTLY, BE A SHAREHOLDER, PRINCIPAL, AGENT, PARTNER, OFFICER,
DIRECTOR, EMPLOYEE OR CONSULTANT OF SUPERVALU, INC., NASH FINCH COMPANY
OR ANY OTHER DIRECT COMPETITOR OF THE COMPANY, A SUBSIDIARY AND/OR
AFFILIATED ENTITY EXCLUDING NATIONAL RETAIL CHAINS, OR ANY OF THEIR
RESPECTIVE SUBSIDIARIES, AFFILIATES OR SUCCESSORS (COLLECTIVELY, THE
"COMPETITORS").
(b) CONFIDENTIAL INFORMATION; NO DISPARAGING STATEMENTS. THE
PARTICIPANT ACKNOWLEDGES THAT DURING THE COURSE OF THE PARTICIPANT'S
EMPLOYMENT WITH THE COMPANY, A SUBSIDIARY OR AFFILIATED ENTITY, HE/SHE
WILL HAVE ACCESS TO AND GAIN KNOWLEDGE OF HIGHLY CONFIDENTIAL AND
PROPRIETARY INFORMATION AND TRADE SECRETS. THE PARTICIPANT FURTHER
ACKNOWLEDGES THAT THE MISUSE, MISAPPROPRIATION OR DISCLOSURE OF THIS
INFORMATION COULD CAUSE IRREPARABLE HARM TO THE COMPANY, A SUBSIDIARY
AND/OR AFFILIATED ENTITY, BOTH DURING AND AFTER THE TERM OF THE
PARTICIPANT'S EMPLOYMENT. THEREFORE, THE PARTICIPANT AGREES, DURING
HIS/HER EMPLOYMENT AND AT ALL TIMES THEREAFTER, HE/SHE WILL HOLD IN A
FIDUCIARY CAPACITY FOR THE BENEFIT OF THE COMPANY, A SUBSIDIARY AND/OR
AFFILIATED ENTITY AND WILL NOT DIVULGE OR DISCLOSE, DIRECTLY OR
INDIRECTLY, TO ANY OTHER PERSON, FIRM OR BUSINESS, ALL CONFIDENTIAL OR
PROPRIETARY INFORMATION, KNOWLEDGE AND DATA (INCLUDING, BUT NOT LIMITED
TO, PROCESSES, PROGRAMS, TRADE "KNOW HOW," IDEAS, DETAILS OF CONTRACTS,
MARKETING PLANS, STRATEGIES, BUSINESS DEVELOPMENT TECHNIQUES, BUSINESS
ACQUISITION PLANS, PERSONNEL PLANS, PRICING PRACTICES AND BUSINESS
METHODS AND PRACTICES) RELATING IN ANY WAY TO THE BUSINESS OF THE
COMPANY, A SUBSIDIARY OR AFFILIATED ENTITY, CUSTOMERS, SUPPLIERS, JOINT
VENTURES, LICENSORS, LICENSEES, DISTRIBUTORS AND OTHER PERSONS AND
ENTITIES WITH WHOM THE COMPANY, ITS SUBSIDIARIES OR AFFILIATED ENTITIES
DO BUSINESS ("CONFIDENTIAL DATA"), EXCEPT UPON THE COMPANY'S WRITTEN
CONSENT OR AS REQUIRED BY HIS/HER DUTIES WITH THE COMPANY, ITS
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SUBSIDIARIES OR AFFILIATED ENTITIES, FOR SO LONG AS SUCH CONFIDENTIAL
DATA REMAINS CONFIDENTIAL AND ALL SUCH CONFIDENTIAL DATA, TOGETHER WITH
ALL COPIES THEREOF AND NOTES AND OTHER REFERENCES THERETO, SHALL REMAIN
THE SOLE PROPERTY OF THE COMPANY, A SUBSIDIARY OR AN AFFILIATED ENTITY.
THE PARTICIPANT AGREES, DURING HIS/HER EMPLOYMENT WITH THE COMPANY, ITS
SUBSIDIARIES OR AFFILIATED ENTITIES AND AT ALL TIMES THEREAFTER, NOT TO
MAKE DISPARAGING STATEMENTS ABOUT THE COMPANY, ITS SUBSIDIARIES OR
AFFILIATED ENTITIES OR THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
PRODUCTS OR SERVICES WHICH HE/SHE KNOWS, OR HAS REASON TO KNOW, ARE
FALSE OR MISLEADING.
(c) NO SOLICITATION OF EMPLOYEES OR BUSINESS. THE PARTICIPANT
AGREES THAT HE/SHE WILL NOT, EITHER DIRECTLY OR IN CONCERT WITH OTHERS,
RECRUIT, SOLICIT OR INDUCE, OR ATTEMPT TO INDUCE, ANY EMPLOYEES OF THE
COMPANY, ITS SUBSIDIARIES OR AFFILIATED ENTITIES TO TERMINATE THEIR
EMPLOYMENT WITH THE COMPANY, ITS SUBSIDIARIES OR AFFILIATED ENTITIES
AND/OR BECOME ASSOCIATED WITH ANOTHER EMPLOYER. THE PARTICIPANT FURTHER
AGREES THAT HE/SHE WILL NOT, EITHER DIRECTLY OR IN CONCERT WITH OTHERS,
SOLICIT, DIVERT OR TAKE AWAY, OR ATTEMPT TO DIVERT OR TAKE AWAY, THE
BUSINESS OF ANY OF THE CUSTOMERS OR ACCOUNTS OF THE COMPANY, ITS
SUBSIDIARIES OR AFFILIATED ENTITIES WHICH THE COMPANY, A SUBSIDIARY OR
AFFILIATED ENTITY HAD OR WAS ACTIVELY SOLICITING BEFORE AND/OR ON
HIS/HER DATE OF TERMINATION/SEPARATION.
(d) TERM OF THE PARTICIPANT'S PROMISES UNDER THIS SECTION. THE
PARTICIPANT AGREES THAT EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (b),
HIS/HER PROMISES CONTAINED IN THIS SECTION 10 SHALL CONTINUE IN EFFECT
DURING HIS/HER EMPLOYMENT WITH THE COMPANY, ITS SUBSIDIARIES OR
AFFILIATED ENTITIES AND UNTIL THE FIRST ANNIVERSARY OF HIS/HER
TERMINATION/SEPARATION.
(e) CONSEQUENCES OF BREACH OF LIMITATIONS ON COMPETITION
AND/OR OTHER COMPETING EMPLOYMENT. SUBJECT TO SUBSECTION (g), IF AT ANY
TIME WITHIN (i) THE TERM OF THIS OPTION AGREEMENT OR (ii) WITHIN ONE
(1) YEAR FOLLOWING THE PARTICIPANT'S DATE OF TERMINATION/SEPARATION,
BUT ONLY IF SUCH TERMINATION/SEPARATION OCCURS ON A DATE WHICH IS PRIOR
TO TEN (10) YEARS FROM THE DATE OF THIS OPTION AGREEMENT, OR (iii)
WITHIN ONE (1) YEAR AFTER HE/SHE EXERCISES ANY PORTION OF THE STOCK
OPTIONS, WHICHEVER IS LATEST, THE PARTICIPANT IS, WITHOUT THE COMPANY'S
WRITTEN CONSENT, DIRECTLY OR INDIRECTLY, A SHAREHOLDER, PRINCIPAL,
AGENT, PARTNER, OFFICER, DIRECTOR, EMPLOYEE OR CONSULTANT OF ANY OF THE
COMPETITORS, THEN (iv) THE STOCK OPTIONS SHALL TERMINATE EFFECTIVE THE
DATE THE PARTICIPANT ENTERS INTO SUCH ACTIVITY (UNLESS TERMINATED
SOONER BY OPERATION OF ANOTHER TERM OR CONDITION OF THIS OPTION
AGREEMENT OR THE PLAN), AND (v) ANY GAIN REPRESENTED BY THE FAIR MARKET
VALUE (AS DEFINED IN THE PLAN) ON THE DATE THE PARTICIPANT EXERCISED
ANY OF THE STOCK OPTIONS OVER THE OPTION PRICE, MULTIPLIED BY THE
NUMBER OF SHARES THE PARTICIPANT PURCHASED (THE "OPTION GAIN"), SHALL
BE PAID BY THE PARTICIPANT TO THE COMPANY WITHIN 30 DAYS OF WRITTEN
NOTICE FROM THE COMPANY TO THE PARTICIPANT THAT SUCH PAYMENT IS DUE.
THE OPTION GAIN SHALL BE CALCULATED WITHOUT REGARD TO ANY SUBSEQUENT
MARKET PRICE DECREASE OR INCREASE. THIS SHALL BE IN ADDITION TO ANY
INJUNCTIVE OR OTHER RELIEF TO WHICH THE COMPANY MAY BE ENTITLED UNDER
SUBSECTION (f).
(f) CONSEQUENCES OF OTHER BREACHES OF THIS SECTION. THE
PARTICIPANT ACKNOWLEDGES THAT DAMAGES WHICH MAY ARISE FROM ANY BREACH
OF ANY OF HIS/HER PROMISES CONTAINED IN THIS SECTION 10 MAY BE
IMPOSSIBLE TO ASCERTAIN OR PROVE WITH CERTAINTY.
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THE PARTICIPANT AGREES IF THE PARTICIPANT BREACHES ANY OF HIS/HER
PROMISES CONTAINED IN THIS SECTION 10, IN ADDITION TO THE REMEDIES
PROVIDED UNDER SUBSECTION (e), IF APPLICABLE, AND ANY OTHER LEGAL
REMEDIES WHICH MAY BE AVAILABLE, THE COMPANY, ITS SUBSIDIARIES OR
AFFILIATED ENTITIES (AS APPLICABLE) SHALL BE ENTITLED TO IMMEDIATE
INJUNCTIVE RELIEF FROM A COURT OF COMPETENT JURISDICTION, PENDING
ARBITRATION UNDER SECTION 11 OR OTHERWISE, TO END SUCH BREACH, WITHOUT
FURTHER PROOF OF DAMAGE.
(g) PERMITTED OWNERSHIP. NOTHING IN THIS SECTION 10 SHALL
PROHIBIT THE PARTICIPANT FROM OWNING LESS THAN ONE PERCENT (1%) OF ANY
COMPANY THAT IS PUBLICLY TRADED ON ANY NATIONAL SECURITIES EXCHANGE.
(h) SEVERABILITY AND REASONABLENESS. IF, AT ANY TIME, THE
PROVISIONS OF THIS SECTION 10 SHALL BE DETERMINED TO BE INVALID OR
UNENFORCEABLE, BY REASON OF BEING VAGUE OR UNREASONABLE AS TO
GEOGRAPHIC AREA, DURATION OR SCOPE OF ACTIVITY OR DUE TO ANY OTHER
RESTRICTION OR LIMITATION, THIS SECTION 10 SHALL BE CONSIDERED
DIVISIBLE AND SHALL BECOME AND BE IMMEDIATELY AMENDED TO ONLY SUCH
GEOGRAPHIC AREA, DURATION AND SCOPE OF ACTIVITY AND/OR RESTRICTIONS OR
LIMITATIONS AS SHALL BE DETERMINED TO BE REASONABLE AND ENFORCEABLE BY
AN ARBITRATOR OR A COURT HAVING JURISDICTION OVER THE MATTER; AND THE
PARTICIPANT AGREES THAT THIS SECTION 10 AS SO AMENDED SHALL BE VALID
AND BINDING AS THOUGH ANY INVALID OR UNENFORCEABLE PORTION HAD NOT BEEN
INCLUDED HEREIN. THE PARTIES AGREE THAT THE GEOGRAPHIC AREA, DURATION
AND SCOPE OF THE LIMITATIONS AND THE RESTRICTIONS DESCRIBED IN
SUBSECTIONS (a) THROUGH (e) ARE REASONABLE.
11. ARBITRATION OF DISPUTES. Any disputes, claims or controversies
between the Participant and the Company, its Subsidiaries or Affiliated Entities
which may arise out of or relate to this Option Agreement shall be settled by
arbitration. This agreement to arbitrate shall survive the termination of this
Option Agreement. Any arbitration shall be in accordance with the Rules of the
American Arbitration Association and shall be undertaken pursuant to the Federal
Arbitration Act. Arbitration will be held in Dallas, Texas unless the parties
mutually agree on another location. The decision of the arbitrator(s) will be
enforceable in any court of competent jurisdiction. The arbitrator(s) may, but
will not be required, to award such damages or other monetary relief as either
party might be entitled to receive from a court of competent jurisdiction.
Nothing in this agreement to arbitrate shall preclude the Company from obtaining
injunctive relief under Section 10(f) from a court of competent jurisdiction
prohibiting any on-going breaches of the Option Agreement by the Participant
pending arbitration. The arbitrator(s) may also award costs and attorneys' fees
in connection with the arbitration to the prevailing party; however, in the
arbitrator's(s') discretion, each party may be ordered to bear its/his/her own
costs and attorneys' fees.
12. CHOICE OF LAW. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, excluding any
conflicts or choice of law rule or principle that might otherwise refer
construction or interpretation of the Option Agreement to the substantive law of
another jurisdiction, except as superseded by applicable federal law and/or as
provided in Section 11 hereof.
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IN WITNESS WHEREOF, the Company, through a duly authorized officer, and
the Participant have executed this Option Agreement as of the day and year first
above written.
COMPANY: FLEMING COMPANIES, INC., an Oklahoma corporation
By
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Scott M. Northcutt
Executive Vice President - Human Resources
PARTICIPANT:
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I acknowledge that I received this Option Agreement on ___________________
[INSERT DATE OF RECEIPT] and executed it on ___________________ [INSERT DATE OF
EXECUTION].
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