Exhibit 99.5
FLEMING COMPANIES, INC.
2000 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
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.
<PAGE>
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE FLEMING COMPANIES, INC.
2000 STOCK INCENTIVE PLAN
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Option
Agreement"), made as of this ____ day ______________, _____, 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 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. 2000 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 3.1
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
-----------------------------------------------------------------
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, 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) 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 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 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, 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.
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 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 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 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'S BUSINESS AS CONSIDERATION.
As specific consideration to the Company for the Stock Options,
the Participant agrees:
(a) Limitations on Competition. The Participant and
the Company recognize and agree that the Participant's position
with the Company and his/her duties are related to the Company's
Project Grow. Subject to subsection (g), the Participant will not,
without the Company's written consent, (i) directly or
indirectly, be a shareholder, principal, agent, partner, officer,
director, employee or consultant of any direct competitor, or of
any subsidiary, affiliate or successor of any direct competitor,
of (x) the type of business contemplated by, or developed in
connection with, Project Grow, or (y) any of the limited
assortment stores owned by the Company, its Subsidiaries or
Affiliated Entities or affiliates or targeted to be acquired, or
developed, by the Company, its Subsidiaries or Affiliated
Entities or affiliates or (ii) be employed by any entity to
develop the type of business contemplated by Project Grow
(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,
its Subsidiaries or Affiliated Entities, 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 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 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 Par-
ticipant 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, related to the type of business contemplated
by or developed in connection with Project Grow, or any of the
limited assortment stores owned by the Company, its Subsidiaries
or Affiliated Entities or targeted to be acquired, or developed,
by the Company, its Subsidiaries or Affiliated Entities before or
on his/her date of termination/separation.
(d) Term of the Participant's Promises under this Sec-
tion. 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) with-
in 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, without the Company's written consent, directly
or indirectly, is 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. The Par-
ticipant 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.
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
Scott M. Northcutt
Executive Vice President - Human
Resources
PARTICIPANT:
I acknowledge that I have received this Option Agreement on [insert date
of receipt] and executed it on [insert date of execution.
