As filed with the Securities and Exchange Commission on November 30, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FFP MARKETING COMPANY, INC.
(Exact name of registrant as specified in its charter)
Texas 75-2735779
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2801 Glenda Avenue
Fort Worth, Texas 76117
(Address of principal executive offices) (Zip Code)
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FFP MARKETING COMPANY, INC. NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
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Craig T. Scott Copy to:
FFP Marketing Company, Inc. W. Alan Kailer, Esq.
2801 Glenda Avenue Jenkens & Gilchrist,
Fort Worth, Texas 76117 A Professional Corporation
(817) 838-4700 1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Class of to be Offering Price Aggregate Registration Fee(4)
Securities to be Registered Registered(1)(2) per Share(3)(4) Offering Price(3)(4)
====================================== ====================== ===================== ======================= ======================
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 234,333 Shares $2.9687 $695,666.487 $193.40
====================================== ====================== ===================== ======================= ======================
</TABLE>
(1) The securities to be registered consist of 234,333 shares reserved
for issuance under the FFP Marketing Company, Inc. Nonqualified Stock Option
Plan (the "Plan").
(2) Pursuant to Rule 416, this Registration Statement is deemed to
include additional shares of Common Stock issuable under the terms of the Plan
to prevent dilution resulting from any future stock split, stock dividend or
similar transaction.
(3) Estimated solely for the purpose of calculating the registration
fee.
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the Plan is based on
the following shares of Common Stock reserved for issuance under the Plan and
subject to options already granted thereunder at the following prices:
Number of Shares of Common
Stock Reserved for Issuance Exercise Price Per Share
--------------------------- ------------------------
164,333 $2.539
20,000 $2.920
25,000 $4.062
25,000 $4.739
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) The registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 28, 1997.
(2) The registrant's amendment on Form 10-K/A to its Annual
Report on Form 10-K filed with the Commission for the fiscal year ended
December 28, 1997.
(3) The registrant's Quarterly Report on form 10-Q filed with
the Commission for the quarterly period ended March 29, 1998.
(4) The registrant's Quarterly Report on Form 10-Q filed with
the Commission for the quarterly period ended June 28, 1998.
(5) The registrant's quarterly Report on Form 10-Q filed with
the Commission for the quarterly period ended September 27, 1998.
(6) The registrant's Current Report on Form 8-K filed with the
Commission on January 12, 1998.
(7) The description of the Common Stock, par value $.01 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form 8-A filed with the Commission on
December 22, 1997, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
- --------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Registrant provide that the Registrant
shall indemnify officers and directors, and may indemnify its other employees
and agents, to the fullest extent permitted by law. The laws of the State of
Texas permit, and in some cases require, corporations to indemnify officers,
directors, agents and employees who are or have been a party to or are
threatened to be made a party to litigation against judgments, fines,
settlements and reasonable expenses under certain circumstances.
The Registrant has also adopted provisions in its Articles of Incorporation that
limit the liability of its directors and officers to the fullest extent
permitted by the laws of the State of Texas. Under the Registrant's Articles of
Incorporation, and as permitted by the laws of the State of Texas, a director or
officer is not liable to the Registrant or its shareholders for damages for
breach of fiduciary duty. Such limitation of liability does not affect liability
for (i) breach of the director's duty of loyalty to the Registrant or its
shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) any transaction
from which the director derived an improper personal benefit, or (iv) the
payment of any unlawful distribution.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
Registration Statement.
Exhibit Description of Exhibit
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3.1* Articles of Incorporation of the Registrant (Exhibit 3.1)
3.2* Bylaws of the Registrant (Exhibit 3.2)
4.1 FFP Marketing Company, Inc. Nonqualified Stock Option Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included with signature page of this
Registration Statement)
- -----------------------
* Filed as the exhibit shown in parenthesis contained in the registrant's
Registration Statement on Form S-4 (No.333-41709) filed with the
Commission, and incorporated herein by reference.
II-2
<PAGE>
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth, State of Texas, on November 30, 1998:
FFP MARKETING COMPANY, INC.
By: /s/ John H. Harvison
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John H. Harvison,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints John H. Harvison and Craig T. Scott, and
each of them, each with full power to act without the other, as such person's,
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Capacity Date
--------- -------- ----
/s/ John H. Harvison Chairman of the Board and November 30, 1998
- ------------------------- Chief Executive Officer
John H. Harvison (principal executive officer)
/s/ Robert J. Byrnes President, Chief Operating November 30, 1998
- ------------------------- Officer and Director
Robert J. Byrnes (principal operating officer)
/s/ Craig T. Scott Vice President - Finance November 30, 1998
- ------------------------- and General Counsel
Craig T. Scott (principal accounting officer)
/s/ J.D. St. Clair Director November 30, 1998
- -------------------------
J.D. St. Clair
/s/ Michael Triantafellou Director November 30, 1998
- -------------------------
Michael Triantafellou
Director , 1998
- ------------------------- -----------
John W. Hughes
Director , 1998
- ------------------------- -----------
Garland R. McDonald
/s/ John D. Harvison Director November 30, 1998
- -------------------------
John D. Harvison
Director , 1998
- ------------------------- -----------
E. Michael Gregory
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
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3.1* Articles of Incorporation of the Registrant (Exhibit 3.1)
3.2* Bylaws of the Registrant (Exhibit 3.2)
4.1 FFP Marketing Company, Inc. Nonqualified Stock Option Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included with signature page of this
Registration Statement)
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*Filed as the exhibit shown in parenthesis contained in the Registrant's
Registration Statement on Form S-4 (No. 333-41709) filed with the Commission,
and incorporated herein by reference.
Exhibit 4.1
FFP MARKETING COMPANY, INC.
NONQUALIFIED STOCK OPTION PLAN
ADOPTED BY THE BOARD OF DIRECTORS ON
December 26, 1997
<PAGE>
FFP MARKETING COMPANY, INC.
NONQUALIFIED STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
For the purpose of this Plan, the following terms shall have the
meanings set forth in this Article I.
1.01. Affiliate. An Affiliate of any person or entity shall mean any person
or entity that, directly or indirectly, controls, is controlled by, or is under
common control with the person or entity in question.
1.02. Board. The term Board shall mean the Board of Directors of the FFP
Marketing Company, Inc.
1.03. Committee. The term Committee means a committee of not less than
three Disinterested Persons appointed by the Board pursuant to Section 3.04 to
administer the Plan.
1.04. Disinterested Person. The term Disinterested Person shall mean any
person who is not eligible at the time the person's discretion as a member of
the Committee is exercised, and has not at any time within one year prior
thereto been eligible, for selection as a person to whom Options may be granted
pursuant to this Plan or any other Plan of FFP Marketing or any of its
Affiliates entitling the participants thereto to acquire equity interests or
options to acquire equity interests of FFP Marketing or any of its Affiliates.
1.05. Eligible Persons. The term Eligible Persons shall mean any employee,
director, consultant, or independent contractor of any Participating Company.
1.06. Fair Market Value. The term Fair Market Value when used with respect
to the determination of option price shall mean the closing sales price of
Shares on the American Stock Exchange (or such other national securities
exchange on which Shares are then principally traded or on a composite index of
such exchanges or in a national market system for securities) on the date of the
grant of the Option. In the event that an Option is granted on a date on which
there are no sales of Shares on any such exchange or market, the fair market
value of Shares on the date of the grant shall be deemed to be the closing sales
price on the next preceding day on which Shares were sold on any such exchange
or market.
1.07. FFP Marketing. The term FFP Marketing shall mean FFP Marketing
Company, Inc., a Texas corporation, or any successor thereof.
1.08. Option. The term Option shall mean an option to acquire Shares
granted under this Plan.
1.09. Optionee. The term Optionee shall mean an Eligible Person who has
been granted Options.
1.10. Participating Companies. The term Participating Companies shall mean
the FFP Marketing and its subsidiaries or Affiliates.
1
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1.11. Permanent and Total Disability. The term Permanent and Total
Disability shall have the meaning set forth in Section 105(d)(4) of the Internal
Revenue Code of 1954, as amended.
1.12. Plan. The term Plan shall mean this Nonqualified Stock Option Plan.
1.13. Shares. The term Shares shall mean shares of Common Stock of FFP
Marketing Company, Inc.
ARTICLE II
PURPOSE OF PLAN
The purpose of this Plan is to promote the growth and profitability of
FFP Marketing by providing, through the ownership of Shares, incentives to
attract and retain highly talented persons to provide managerial and
administrative services to the company and to motivate such persons to use their
best efforts on behalf of the company.
ARTICLE III
ADMINISTRATOR OF PLAN
3.01. Administration by Board. The Plan shall be administered by the
Board. The Board shall have full and absolute power and authority in its sole
discretion to (i) determine which Eligible Persons shall receive Options, (ii)
determine the time when Options shall be granted, (iii) determine the terms and
conditions, not inconsistent with the provisions of this Plan, of any Option
granted hereunder, (iv) determine the number of Shares which may be issued upon
exercise of the Options, and (v) interpret the provisions of this Plan and of
any Option granted under this Plan.
3.02. Rules and Regulations. The Board may adopt such rules and
regulations as the Board may deem necessary or appropriate to carry out the
purposes of the Plan and shall have authority to do everything necessary or
appropriate to administer the Plan.
3.03. Binding Authority. All decisions, determinations,
interpretations, or other actions by the Board shall be final, conclusive, and
binding on all Eligible Persons, Optionees, and Participating Companies.
3.04. Administration by Committee. The Board in its sole discretion may
from time to time appoint a Committee to administer the Plan and exercise all of
the powers, authority, and discretion of the Board granted to the Board under
this Plan. The Board may from time to time remove members from, or add members
to, the Committee, and vacancies on the Committee shall be filled by the Board,
provided that any additional or replacement members shall be Disinterested
Persons. The Board may abolish the Committee at any time and revest in the Board
the administration of the Plan. The Committee shall report to the Board the
names of Eligible Persons granted Options, the number of Shares covered by each
Option, and the terms and conditions of each such Option.
2
<PAGE>
ARTICLE IV
NUMBER OF SHARES AVAILABLE FOR GRANT
The maximum aggregate number of Shares which may be optioned and sold
under this Plan is 241,999. In the event that Options granted under the Plan
shall for any reason terminate, lapse, be forfeited, or expire without being
exercised, the Shares subject to such unexercised Options shall again be
available for granting under this Plan.
ARTICLE V
TERM OF PLAN
The Plan shall be effective as of the date this Plan is adopted by the
Board (as set forth on the last page of this Plan), and shall terminate on the
tenth anniversary of such date, unless terminated earlier by the Board. No
Option may be granted hereunder after this Plan has terminated.
ARTICLE VI
OPTION TERMS
6.01. Form of Option Agreement. Any Option granted under this Plan
shall be evidenced by an agreement ("Option Agreement") in such form as the
Board, in its discretion, may from time to time approve. Any such agreement
shall contain such terms and conditions as the Board may deem necessary or
appropriate and which are not inconsistent with the provisions of this Plan.
6.02. Option Exercise Price. The Option exercise price for Shares to be
issued under this Plan shall be determined by the Board in its sole discretion,
but in no event shall the option exercise price be less than the Fair Market
Value of the Shares on the date on which the Option covering such Shares is
granted.
6.03. Vesting and Exercisability of Option. Subject to the limitations
set forth herein and/or in any applicable Option Agreement entered into
hereunder, Options granted under the Plan shall vest and be exercisable in
accordance with the rules set forth in this Section 6.03:
(a) General. Subject to the other provisions of this Section
6.03, Options shall vest and become exercisable at such times and in such
installments as the Board shall provide in each individual Option Agreement.
Notwithstanding the foregoing, the Board may in its sole discretion accelerate
the time at which an Option or installment thereof may be exercised. For
purposes of this Plan, any vested installment of an Option granted hereunder
shall be referred to as an "Accrued Installment." Accrued Installments may be
exercised only as of the last day of the calendar month preceding the end of the
fiscal quarter of FFP Marketing.
(b) Termination of Options. All installments of an Option
shall expire and terminate on such date as the Board shall determine ("Option
Termination Date"), which in no event shall be later than ten (10) years from
the date such Option was granted. Unless otherwise provided in this Section 6.03
or in the Option Agreement pursuant to which an Option is granted, an Option may
be exercised when Accrued Installments accrue as provided in such Option
Agreement and at any time thereafter until, and including, the day before the
Option Termination Date; provided, however, that exercises may be made only as
of the last day of the calendar month preceding the end of the fiscal quarter
of FFP Marketing.
3
<PAGE>
(c) Termination of Employment Other Than by Death or
Disability. In the event that the employment of an Optionee with a Participating
Company is terminated for any reason (other than death or Permanent and Total
Disability), any installments under the Option which have not accrued as of the
employment termination date shall expire and become unexercisable as of the
employment termination date. All Accrued Installments as of the employment
termination date shall remain exercisable only within such period of time as the
Board may determine, but in no event shall any Accrued Installments remain
exercisable for a period in excess of three (3) months following the employment
termination date or for a period in excess of the original Option Termination
Date, whichever is earlier.
(d) Leave of Absence. In the case of any employee on an
approved leave of absence, the Committee may make such provision respecting
continuance of the Option as the Board deems appropriate, except in no event
shall an Option be exercisable after the original Option Termination Date.
(e) Death or Permanent and Total Disability of Optionee While
Employed. In the event that the employment of an Optionee with a Participating
Company is terminated by reason of death or Permanent and Total Disability, any
unexercised Accrued Installments of Options granted hereunder to such Optionee
shall expire and become unexercisable as of the earlier of:
(i) The applicable Option Termination Date; or
(ii) The first anniversary of the date of termination of employment of
such Optionee by reason of his death or Permanent and Total
Disability. Any such Accrued Installments of a deceased Optionee
may be exercised prior to their expiration only by the person or
persons to whom the Optionee's Option rights pass by will or by
laws of descent and distribution. Any Option installments under
such a deceased or disabled Optionee's Option that have not
accrued as of the date of the employee's termination of
employment due to death or Permanent and Total Disability shall
expire and become unexercisable as of said employment termination
date.
6.04. Method of Exercise. An Option may be exercised in accordance with
this Section 6.04 as to all or any portion of the Shares covered by an Accrued
Installment of the Option from time to time during the applicable option period,
except that an Option shall not be exercisable with respect to fractions of a
Share. Options may be exercised, in whole or in part, by giving written notice
of exercise to the Secretary of the Corporation, which notice shall specify the
number of Shares to be purchased. Such notice shall be accompanied by payment in
full of the purchase price in accordance with Section 6.05. No Shares shall be
issued until full payment has been made and the Optionee has satisfied such
other conditions as may be required by this Plan; as may be required by
applicable law, rules, or regulations; or as may be adopted by the Committee.
4
<PAGE>
6.05. Payment of Option Exercise Price.
(a) Except as otherwise provided in Section 6.05(b), the entire option
exercise price shall be paid in full at the time the Option is exercised.
(b) In the discretion of the Board, an Optionee may elect to pay for
all or some of the Optionee's Shares with Shares previously acquired and
owned at the time of exercise by the Optionee, subject to all restrictions
and limitations of applicable law, rules, and regulations. Such payment
shall be made by delivery of certificates representing Shares, duly
endorsed or with duly signed stock power attached, such Shares to be valued
at the last reported sale price of the Shares on the American Stock
Exchange on the day immediately preceding the day of exercise or, if the
Shares are not then listed on such stock exchange, on such basis as the
Board shall determine.
6.06. Options Not Transferable. Options granted under this Plan may not
be sold, pledged, hypothecated, assigned, encumbered, gifted, or otherwise
transferred or alienated in any manner, either voluntarily or involuntarily by
operation of law, other than by will or the laws of descent or distribution, and
may be exercised during the lifetime of an Optionee only by such Optionee.
6.07. Restrictions on Issuance of Shares.
(a) No Shares shall be issued and delivered upon exercise unless and
until there shall have been full compliance with all applicable listing
requirements of the Securities Act of 1933, all applicable listing
requirements of any national securities exchange on which Shares are then
listed, and any other requirement of law or of any regulatory body having
jurisdiction over such issuance and delivery. The inability of FFP
Marketing to obtain any required permits, authorizations, or approvals
necessary for the lawful issuance and sale of any Shares hereunder on terms
deemed reasonable by the Board shall relieve FFP Marketing, the Board, and
any Committee of any liability in respect of the nonissuance or sale of
such Shares as to which such requisite permits, authorizations, or
approvals shall not have been obtained.
(b) As a condition to the granting and the exercise of any Option, the
Board may require the person receiving or exercising such Option to make
any representation and/or warranty to FFP Marketing as may be required
under any applicable law or regulation, including but not limited to, a
representation and warranty that the Option and/or Shares are being
acquired only for investment and without any present intention to sell or
distribute such Shares if such a representation is required under the
Securities Act of 1933 or any other applicable law, rule, or regulation.
6.08. Adjustments Upon Changes In Capitalization. If the outstanding
Shares are increased, decreased, changed into, or exchanged for a different
number or kind of interests in FFP Marketing through reorganization,
recapitalization, reclassification, stock dividend, stock split, or reverse
stock split, upon proper authorization of the Board an appropriate and
proportionate adjustment shall be made in the number or kind of Shares, and the
per-Share option price thereof, which may be issued in the aggregate and to
individual Optionees under this Plan upon exercise of Options granted under the
Plan; provided, however, that no such adjustment need be made if, upon the
advice of counsel, the Board determines that such adjustment may result in the
receipt of federally taxable income to holders of Options granted hereunder or
the holders of Shares or other classes of FFP Marketing's securities.
5
<PAGE>
6.09. Taxes. The Options granted hereunder are intended to be nonstatutory
options not qualifying for special tax treatment under Sections 421 through 423
of the Internal Revenue Code of 1954. The Board shall make such provisions and
take such steps as it deems necessary or appropriate for the withholding of any
federal, state, local, and other tax required by law to be withheld with respect
to the grant or exercise of an Option under the Plan, including, but without
limitation, the deduction of the amount of any such withholding tax from any
amount payable to an Optionee by any of the Participating Companies, or
requiring an Optionee (or the Optionee's beneficiary or legal representative) as
a condition of granting an Option to pay to any of the Participating Companies
any amount required to be withheld, or to execute such other documents as the
Board deems necessary or desirable in connection with the satisfaction of any
applicable withholding obligation.
ARTICLE VII
EMPLOYMENT MATTERS
7.01. No Employment Rights. Nothing in this Plan or in any Option Agreement
shall be construed to create any contract of employment between any of the
Participating Companies and any Eligible Person or confer upon any Eligible
Person any right to continue in the employ of any of the Participating
Companies. The Participating Companies shall have the right to deal with their
respective employees in the same manner as if the Plan or any Option Agreement
did not exist (including without limitation, the hiring, discharge,
compensation, and conditions of employment of employees). Unless otherwise
expressly set forth in a separate employment agreement between a Participating
Company and an Eligible Person, the employment of an Eligible Person by such
Participating Company is at-will, and the Participating Company may terminate
such Eligible Person's employment by such Participating Company at any time for
any reason, with or without cause.
7.02. Determination of Employment Status. Any disputes as to whether and
when there has been a termination of an Eligible Person's employment, and the
reason for any such termination, shall be determined by the Board in its sole
discretion, and the Board's determination shall be final and binding.
7.03. No Rights as a Shareholder. No Optionee shall have the rights of a
shareholder with respect to Shares subject to Option until the Optionee has
exercised, in whole or in part, of an Option granted hereunder in accordance
with the terms of this Plan.
ARTICLE VIII
AMENDMENT OR TERMINATION OF PLAN
8.01. Board Authority. The Board may amend, alter, and/or terminate the
Plan at any time; provided, however, that the Board shall not amend the Plan in
the following respects without the approval of shareholders holding a majority
of the Shares of FFP Marketing outstanding and entitled to vote:
(i) To increase the maximum number of Shares available for grant
under the Plan;
(ii) To provide for the administration of the Plan other than by the
Board or a Committee;
6
<PAGE>
(iii)To change the manner of determining the option exercise price;
(iv) To change the classes of Eligible Persons or Participating
Companies; or
(v) To extend the maximum Option period or the term of the Plan.
8.02. Limitation on Board Authority. The Board may amend the terms of
any Option previously granted, prospectively or retroactively, and amend the
Plan in accordance with the provisions of Section 8.01; provided, however, that
no amendment of the Plan or of any Option Agreement shall affect in a material
and adverse manner Options granted prior to the date of any such amendment
without the consent of any Optionee holding any such affected Options.
ARTICLE IX
GENERAL PROVISIONS
9.01. Notice. Any notice or other communication required or permitted
to be given pursuant to the Plan must be in writing and may be given by
registered or certified mail, and if given by registered or certified mail,
shall be deemed to have been given and received on the earlier of (i) three
business days following the deposit of such registered or certified letter
containing such notice, properly addressed with postage prepaid, in the United
States mails, or (ii) when delivered to and received by the party to whom
addressed. Notice shall be given to Eligible Persons at their most recent
addresses shown in FFP Marketing's records. Notice to FFP Marketing shall be
sent to its principal executive offices, to the attention of the Secretary.
9.02. Governing Law. This Plan shall be governed by, interpreted under,
construed, and enforced in accordance with the internal laws, and not the laws
pertaining to conflicts or choice of laws, of the State of Texas applicable to
agreements made and to be performed wholly within the State of Texas.
7
<PAGE>
IN WITNESS WHEREOF, pursuant to the due authorization and adoption of
this Plan by the Board on December 26, 1997, FFP Marketing has caused this Plan
to be adopted, effective as of the date of such Board action.
FFP MARKETING COMPANY, INC.
By: /s/ John H. Harvison
----------------------------
John H. Harvison, President
By: /s/ Steven B. Hawkins
----------------------------
Steven B. Hawkins, Secretary
8
FFP Marketing Company, Inc.
November 30, 1998
Page 2
Exhibit 5.1
Jenkens & Gilchrist
A PROFESSIONAL CORPORATION
FOUNTAIN PLACE
1445 ROSS AVENUE, SUITE 3200 AUSTIN, TEXAS
DALLAS, TX 75202 (512) 499-3800
(214) 855-4500 HOUSTON, TEXAS
TELECOPIER (214) 855-4300 (713) 951-3300
SAN ANTONIO, TEXAS
(210) 246-5000
WASHINGTON, D.C.
WRITER'S DIRECT DIAL NUMBER (202) 326-1500
(214) 855-4361
November 30, 1998
FFP Marketing Company, Inc.
2801 Glenda Avenue
Fort Worth, Texas 76117
Re: FFP Marketing Company, Inc. Registration Statement
Gentlemen:
We have acted as counsel to FFP Marketing Company, Inc., a Texas
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about November 30, 1998, under
the Securities Act of 1933, as amended (the "Securities Act"), relating to
234,333 shares (the "Shares") of the $.01 par value common stock (the "Common
Stock") of the Company that have been or may be issued by the Company under the
FFP Marketing Company, Inc. Nonqualified Stock Option Plan (the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Articles of Incorporation and the Bylaws of the Company; (2) minutes
and records of the corporate proceedings of the Company with respect to the
establishment of the Plan, the reservation and issuance of 234,333 shares of
Common Stock pursuant to the Plan and related matters; (3) the Registration
Statement and exhibits thereto, including the Plan; and (4) such other documents
and instruments as we have deemed necessary for the expression of opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, and as to the content and form of the Articles of
Incorporation, the Bylaws, minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independent check or verification of their accuracy.
Based upon the firm's examination, consideration of, and reliance on
the documents and other matters described above, and assuming that
(1) the outstanding shares are duly granted, and the shares to be
granted in the future will be duly granted in accordance with the terms of the
Plan;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons granted
shares of Common Stock under the Plan; and
<PAGE>
FFP Marketing Company, Inc.
November 30, 1998
Page 2
(3) the consideration for Common Stock issued pursuant to the Plan is
actually received by the Company as provided in the Plan (and/or the agreements
executed in connection with the Plan), and exceeds the par value of such shares;
this firm is of the opinion that the Company presently has available at least
234,333 shares of authorized but unissued and/or treasury shares of Common Stock
from which may be issued the 234,333 shares of Common Stock issued or proposed
to be issued pursuant to the exercise of options granted under the Plan and the
234,333 shares of Common Stock that may be issued in accordance with the terms
of the Plan will be, when and if issued, duly and validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ W. Alan Kailer
---------------------
W. Alan Kailer, Esq.
cc: E. Leigh Gillett, Esq.
Heather L. Radliff, Esq.
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
FFP Marketing Company, Inc.:
We consent to the incorporation by reference in this registration statement on
Form S-8 of FFP Marketing Company, Inc. of our report dated March 17, 1998, with
respect to the consolidated balance sheets as of December 28, 1997 and December
29, 1996, and the related consolidated statements of operations, stockholders'
equity/partners' capital, and cash flows for each of the years in the three year
period ended December 28, 1997, and the related schedule, which appears in the
December 28, 1997 Annual Report on Form 10-K of FFP Marketing Company, Inc.
/s/ KPMG Peat Marwick LLP
-------------------------
KPMG PEAT MARWICK LLP
Fort Worth, Texas
November 30, 1998
