Exhibit 10.39
FLEMING COMPANIES, INC.
1999 STOCK INCENTIVE PLAN
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NON-QUALIFIED STOCK OPTION AGREEMENT
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Name: ______________ Grant Date: _______, ____
Option Price: $_____________ Exercise Date: _______, ____ - __%
Shares Granted: ______________ _______, ____ - __%
Expiration Date: ______________ _______, ____ - __%
_______, ____ - __%
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE FLEMING COMPANIES, INC.
1999 STOCK INCENTIVE PLAN
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Option Agreement"),
made as of this ___ day of _________, ____, 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 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
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. 1999
Stock Incentive Plan" (the "Plan"), which is incorporated herein.
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 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 Section 4(d) of this Option
Agreement, if a Participant's employment with the Company or a Subsidiary is
terminated during the Option Period for any reason other than death, he 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 personal representative shall be as set
forth in Section 4(b) of this Stock Option Agreement.
(b) EXERCISE OF EXERCISABLE STOCK OPTIONS ON TERMINATION OF
EMPLOYMENT DUE TO DEATH. If a Participant's employment with the Company or a
Subsidiary is terminated during the Option Period due to his 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) 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 personal representative as the case may be for whatever
period following such termination as the Committee shall so decide.
(d) ACCELERATION OF OPTIONS UPON CHANGE OF CONTROL. Upon the
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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.
(e) EXERCISE OF EXERCISABLE STOCK OPTIONS ON TERMINATION OF
EMPLOYMENT DUE TO RETIREMENT. If a Participant's employment with the Company
or a Subsidiary is terminated due to retirement in accordance with the
Company's retirement policies, the Participant shall have a period of three
years following his date of retirement to exercise the Stock Options which are
otherwise exercisable on his date of retirement.
5. NON-TRANSFERABILITY OF STOCK OPTIONS. Except as provided in Section
11.3 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, or any of the Subsidiaries, or
interfere in any way with the right of the Company or any of the Subsidiaries 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 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 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 Participant in any
manner specified in Section 11.4 the Plan.
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(c) FURTHER INFORMATION. In the event the Stock Options are
exercised, pursuant to the foregoing provisions of this Section 7, by any person
or persons other than the Participant in the event of the death of the
Participant, such notice shall also be accompanied by appropriate proof of the
right of such person or persons to exercise the Stock Options. The notice so
required shall be given by personal delivery to the Secretary of the Company or
by registered or certified mail, addressed to the Company at 6301 Waterford
Boulevard, Oklahoma City, Oklahoma 73118, and it shall be deemed to have been
given when it is so personally delivered or when it is deposited in the United
States mail in an envelope addressed to the Company, as aforesaid, properly
stamped for delivery as a registered or certified letter.
8. SECURITIES LAW RESTRICTIONS; SHAREHOLDER APPROVAL OF THE PLAN. Stock
Options shall be exercised and Common Stock issued only upon (i) compliance with
the Securities Act of 1933, as amended (the "Act"), and any other applicable
securities law, or pursuant to an exemption therefrom and (ii) approval by the
shareholders of the Company of the Plan at the 1999 Annual Meeting of
Shareholders.
9. NOTICES. All notices or other communications relating to the Plan and
this Option Agreement as it relates to the Participant shall be in writing and
shall be mailed (U.S. Mail) by the Company to the Participant at the then
current address as maintained by the Company or such other address as the
Participant may advise the Company in writing.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
duly executed by its officers thereunto duly authorized, and the Participant has
hereunto set his hand and seal, all on the day and year first above written.
COMPANY: FLEMING COMPANIES, INC., an
Oklahoma corporation
By
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Scott M. Northcutt, Senior Vice President -
Human Resources
PARTICIPANT:
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