-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TOgRYhAeKUB673tEPmEEqbTFwaQQInB9ezwGEPp1vB0LpJclIQdsNe1VouPjI47z a9X5W4/oZsuWQV49n9MLRA== /in/edgar/work/20000630/0000909334-00-000083/0000909334-00-000083.txt : 20000920 0000909334-00-000083.hdr.sgml : 20000920 ACCESSION NUMBER: 0000909334-00-000083 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20000630 EFFECTIVENESS DATE: 20000630 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FLEMING COMPANIES INC /OK/ CENTRAL INDEX KEY: 0000352949 STANDARD INDUSTRIAL CLASSIFICATION: [5141 ] IRS NUMBER: 480222760 STATE OF INCORPORATION: OK FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-40670 FILM NUMBER: 666731 BUSINESS ADDRESS: STREET 1: 6301 WATERFORD BLVD STREET 2: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73126 BUSINESS PHONE: 4058407200 MAIL ADDRESS: STREET 1: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73216-0647 S-8 1 0001.txt United States Securities and Exchange Commission Washington, D.C. 20549 FORM S-8 Registration Statement under the Securities Act of 1933 FLEMING COMPANIES, INC. (Exact name of registrant as specified in its charter) Oklahoma 48-0222760 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) P.O. Box 299013 75029 1945 Lakepointe Drive (Zip Code) Lewisville, Texas (Address of Principal Executive Office) FLEMING COMPANIES, INC. 2000 STOCK INCENTIVE PLAN (Full title of the plan) Lenore T. Graham Senior Vice President, General Counsel and Secretary Fleming Companies, Inc. P.O. Box 299013 1945 Lakepointe Drive Lewisville, Texas (Name and address of agent for service) 972-906-8000 (Telephone number, including area code, of agent for service) Calculation of Registration Fee Title of Amount to Proposed Proposed Amount of securities be maximum maximum registration to be registered offering aggregate fee (2) registered (1) price per offering unit (2) price (2) - ----------------------------------------------------------------- Common 1,900,000 $12.9688 $24,640,720 $6505.15 Stock, shares $2.50 par value - ----------------------------------------------------------------- - --------------- (1) The number of shares of Common Stock stated above is the aggregate number of such shares which may be issued on the exercise of options or the award of restricted stock under the Fleming Companies, Inc. 2000 Stock Incentive Plan (the "Plan") registered under this Registration Statement. The maximum number of shares which may be issued under the Plan cannot presently be determined as adjustments in the number of shares may be made in the event of stock splits, stock dividends, or other changes in the corporate structure or shares as specified in the Plan. Accordingly, this Registration Statement covers, in addition to the number of shares of Common Stock stated above, an indeterminate number of shares, which by reason of any of such event may become subject to issuance under the Plan. (2) Estimated pursuant to Rules 457(c) and (h) of the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee and based upon the average of the high and low prices of Fleming Companies, Inc. Common Stock as reported by the New York Stock Exchange on June 23, 2000. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information (1) Item 2. Registrant Information and Employee Plan Annual Information (1) (1) Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8 and has been or will be sent or given to participants in the Plan as specified in Rule 428(b)(1). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The registrant incorporates herein by reference the following documents filed with the Securities and Exchange Commission (the "Commission"): (1) The registrant's Annual Report on Form 10-K for the fiscal year ended December 25, 1999 as filed on March 14, 2000. (2) The registrant's Form 10-K/A for the fiscal year ended December 26, 1998 as filed on February 10, 2000, and excluding Item 8; the registrant's Form 10-Q for the period ended April 15, 2000 as filed on May 25, 2000; the registrant's Form 10- Q/A for the periods ended April 17, 1999, July 10, 1999 and October 2, 1999, all as filed on February 9, 2000; and the registrant's current reports on Form 8-K filed February 10, 2000 and April 25, 2000. (3) The description of Common Stock contained in the registrant's Registration Statement on Form 8-A, as amended, filed under the Exchange Act (File No. 1-8140). All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all of the shares of the registrant's Common Stock covered by this registration statement have been sold or which deregisters all such shares then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Section 1031 of the Oklahoma General Corporation Act, under which act the registrant is incorporated, authorizes the indemnification of officers and directors in certain circumstances. Article Thirteen of the registrant's Restated Certificate of Incorporation, as well as Section 8.3 of the registrant's Bylaws, provide indemnification of directors, officers and agents to the extent permitted by Oklahoma General Corporation Act. These provisions may be sufficiently broad to indemnify such persons for liabilities under the Securities Act of 1933. In addition, Article Thirteen of the registrant's Restated Certificate of Incorporation permits the exculpation of a director for monetary damages for breach of fiduciary duty as a director. In addition, the registrant maintains insurance policies that insure its officers and directors against certain liabilities. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the registrant's Quarterly Report on Form 10-Q for quarter ended April 17, 1999). 4.2 Bylaws (incorporated by reference to Exhibit 3.2 registrant's Quarterly Report on Form 10-Q for quarter ended April 17, 1999). 5.1 Opinion of McAfee & Taft A Professional Corporation. 15.1 Deloitte & Touche LLP letter re: unaudited financial information. 23.1 Consent of McAfee & Taft A Professional Corporation (contained in Exhibit 5.1 hereto). 23.2 Consent of Deloitte & Touche LLP. 24.1 Power of Attorney. 99.1 Fleming Companies, Inc. 2000 Stock Incentive Plan. 99.2 Form of Nonqualified Stock Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Corporate). 99.3 Form of Nonqualified Stock Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Retail). 99.4 Form of Nonqualified Stock Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Wholesale). 99.5 Form of Nonqualified Stock Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Project Grow). Item 9. Undertakings. 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: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein. 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. 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. 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 herein shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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, therefor, 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 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Oklahoma City, State of Oklahoma, on the 30th day of June, 2000. (Registrant) FLEMING COMPANIES, INC. By MARK S. HANSEN Mark S. Hansen Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date MARK S. HANSEN Chairman, Chief ) Mark S. Hansen Executive Officer ) and Director ) ) NEAL J. RIDER Executive Vice ) Neal J. Rider President and Chief ) Financial Officer ) (Principal financial ) officer) ) ) KEVIN J. TWOMEY Senior Vice ) June 30, 2000 Kevin J. Twomey President Finance ) and Controller ) (Principal ) accounting officer) ) ) ARCHIE R. DYKES Director ) Archie R. Dykes ) ) CAROL B. HALLETT Director ) Carol B. Hallett ) ) EDWARD C. JOULLIAN III Director ) Edward C. Joullian III ) ) ALICE M. PETERSON Director ) Alice M. Peterson ) ) GUY A. OSBORN Director ) Guy A. Osborn ) ) DAVID A. RISMILLER Director ) David A. Rismiller ) INDEX TO EXHIBITS Exhibit No. Description Method of Filing - ------- ------------------------ ----------------------------- 4.1 Restated Certificate of Incorporated by reference Incorporation 4.2 Bylaws Incorporated by reference 5.1 Opinion of McAfee & Taft A Filed herewith electronically Professional Corporation 15.1 Deloitte & Touche LLP letter Filed herewith electronically re: unaudited financial information 23.1 Consent of McAfee & Taft A Filed herewith electronically Professional Corporation (contained in Exhibit 5.1 hereto). 23.2 Consent of Deloitte & Touche Filed herewith electronically LLP 24.1 Power of Attorney Filed herewith electronically 99.1 Fleming Companies, Inc. 2000 Filed herewith electronically Stock Incentive Plan 99.2 Form of Nonqualified Stock Filed herewith electronically Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Corporate) 99.3 Form of Nonqualified Stock Filed herewith electronically Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Retail) 99.4 Form of Nonqualified Stock Filed herewith electronically Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Wholesale) 99.5 Form of Nonqualified Stock Filed herewith electronically Option Agreement under Fleming Companies, Inc. 2000 Stock Incentive Plan (Project Grow) EX-5 2 0002.txt Exhibit 5.1 Law Offices McAfee & Taft A Professional Corporation 10th Floor, Two Leadership Square 211 North Robinson Oklahoma City, Oklahoma 73102-7103 (405) 235-9621 Fax (405) 235-0439 http://www.mcafeetaft.com June 30, 2000 Fleming Companies, Inc. 6301 Waterford Boulevard Post Office Box 26647 Oklahoma City, Oklahoma 73126 Re: 2000 Stock Incentive Plan Ladies and Gentlemen: Reference is made to your Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission today with respect to 1,900,000 shares of common stock, $2.50 par value per share (the "Common Stock") to be issued pursuant to the Fleming Companies, Inc. 2000 Stock Incentive Plan (the "Plan"). We have examined your corporate records and made such other investigations as we deemed appropriate for the purpose of this opinion. Based upon the foregoing, we are of the opinion that: 1. Fleming Companies, Inc (the "Company") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Oklahoma. 2. The issuance of the Common Stock has been duly authorized by appropriate corporate action on behalf of the Company. 3. When issued pursuant to the Plan, the Common Stock will be validly issued, and will be fully paid and non-assessable. We hereby consent to the inclusion of this opinion as an exhibit to the above mentioned Registration Statement. Very truly yours, MCAFEE & TAFT A PROFESSIONAL CORPORATION McAfee & Taft A Professional Corporation EX-15 3 0003.txt Exhibit 15.1 Fleming Companies, Inc. 6301 Waterford Boulevard P. O. Box 26647 Oklahoma City, Oklahoma 73126 We have made reviews, in accordance with standards established by the American Institute of Certified Public Accountants, of the following unaudited interim financial information of Fleming Companies, Inc. and subsidiaries as indicated in our reports referenced below; because we did not perform an audit, we expressed no opinion on that information. Period Ended Review Report Dated April 7, 1999 May 5, 1999 July 11, 1999 July 29, 1999 October 2, 1999 October 19, 1999 April 15, 2000 May 3, 2000 We are aware that our reports referred to above, which are included in your Quarterly Reports on Forms 10-Q and 10-Q/A for the periods mentioned above, are being used in this registration statement. We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the registration statement prepared or certified by an accountant, or reports prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. DELOITTE & TOUCHE LLP Oklahoma City, Oklahoma June 30, 2000 EX-23 4 0004.txt Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Fleming Companies, Inc. on Form S- 8 of our report dated February 18, 2000, appearing in the Annual Report on Form 10-K of Fleming Companies, Inc. and subsidiaries for the year ended December 25, 1999. DELOITTE & TOUCHE LLP Oklahoma City, Oklahoma June 30, 2000 EX-24 5 0005.txt Exhibit 24.1 POWER OF ATTORNEY We, the undersigned officers and directors of Fleming Companies, Inc. (hereinafter the "Company"), hereby severally constitute Mark S. Hansen and Lenore T. Graham, and each of them, severally, our true and lawful attorneys-in-fact with full power to them and each of them to sign for us, and in our names as officers or directors, or both, of the Company, a Registration Statement on Form S-8 (and any and all amendments thereto, including post-effective amendments) to be filed with the Securities and Exchange Commission relating to the Fleming Companies, Inc. 2000 Stock Incentive Plan granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Signature Title Date MARK S. HANSEN Chairman, Chief ) Mark S. Hansen Executive Officer and ) Director ) ) NEAL J. RIDER Executive Vice ) Neal J. Rider President and Chief ) Financial Officer ) (Principal financial ) officer) ) ) KEVIN J. TWOMEY Senior Vice President ) June 30, 2000 Kevin J. Twomey Finance and ) Controller (Principal ) accounting officer) ) ) ARCHIE R. DYKES Director ) Archie R. Dykes ) ) CAROL B. HALLETT Director ) Carol B. Hallett ) ) EDWARD C. JOULLIAN III Director ) Edward C. Joullian III ) ) ALICE M. PETERSON Director ) Alice M. Peterson ) ) GUY A. OSBORN Director ) Guy A. Osborn ) ) DAVID S. RISMILLER Director ) David A. Rismiller ) EX-99 6 0006.txt Exhibit 99.1 FLEMING COMPANIES, INC. 2000 STOCK INCENTIVE PLAN FLEMING COMPANIES, INC. 2000 STOCK INCENTIVE PLAN Table of Contents Page ARTICLE I. PURPOSE 1 Section 1.1 Purpose 1 Section 1.2 Establishment 1 Section 1.3 Shares Subject to the Plan 1 ARTICLE II. DEFINITIONS 1 ARTICLE III. ADMINISTRATION 5 Section 3.1 Administration of the Plan; the Committee 5 Section 3.2 Committee to Make Rules and Interpret Plan 6 ARTICLE IV. GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN 6 Section 4.1 Committee to Grant Awards to Eligible Associates 6 ARTICLE V. ELIGIBILITY 7 ARTICLE VI. STOCK OPTIONS 7 Section 6.1 Grant of Options 7 Section 6.2 Conditions of Options 7 ARTICLE VII. RESTRICTED STOCK AWARDS 9 Section 7.1 Grant of Restricted Stock Awards 9 Section 7.2 Conditions of Restricted Stock Awards 9 ARTICLE VIII. STOCK ADJUSTMENTS 10 ARTICLE IX. GENERAL 11 Section 9.1 Amendment or Termination of Plan 11 Section 9.2 Termination of Employment; Termination of Service 11 Section 9.3 Limited Transferability - Options 11 Section 9.4 Withholding Taxes 12 Section 9.5 Dividends and Dividend Equivalents - Awards 12 Section 9.6 Change of Control 12 Section 9.7 Amendments to Awards 12 Section 9.8 Regulatory Approval and Listings 12 Section 9.9 Right to Continued Employment 13 Section 9.10 Reliance on Reports 13 Section 9.11 Construction 13 Section 9.12 Governing Law 13 ARTICLE I. PURPOSE Section 1.1 Purpose. This 2000 Stock Incentive Plan (the "Plan") is established by Fleming Companies, Inc. (the "Company") to create incentives which are designed to motivate Participants to put forth maximum effort toward the success and growth of the Company and to enable the Company to attract and retain experienced individuals who by their position, ability and diligence are able to make important contributions to the Company's success. Toward these objectives, the Plan provides for the granting of Options and Restricted Stock Awards to Eligible Associates subject to the conditions set forth in the Plan. Section 1.2 Establishment. The Plan is effective as of February 29, 2000 and for a period of ten years thereafter. The Plan shall continue in effect until all matters relating to the payment of Awards and administration of the Plan have been settled. The Plan shall be approved by the holders of a majority of the outstanding shares of Common Stock, present, or represented, and entitled to vote at a meeting called for such purpose, which approval must occur within the period ending twelve months after the date the Plan is adopted by the Board. Pending such approval by the shareholders, Awards under the Plan may be granted to Eligible Associates, but no such Awards may be exercised prior to receipt of shareholder approval. In the event shareholder approval is not obtained within such twelve-month period, all such Awards shall be void. Section 1.3 Shares Subject to the Plan. Subject to the limitations set forth in the Plan, Awards may be made under this Plan for a total of One Million Nine Hundred Thousand (1,900,000) shares of Common Stock. ARTICLE II. DEFINITIONS Section 2.1 "Affiliated Entity" means any partnership or limited liability company in which a majority of the partnership or other similar interest thereof is owned or controlled, directly or indirectly, by the Company or one or more of its Subsidiaries or Affiliated Entities or a combination thereof. For purposes hereof, the Company, a Subsidiary or an Affiliated Entity shall be deemed to have a majority ownership interest in a partnership or limited liability company if the Company, such Subsidiary or Affiliated Entity shall be allocated a majority of partnership or limited liability company gains or losses or shall be or control a managing director or a general partner of such partnership or limited liability company. Section 2.2 "Award" means, individually or collectively, any Option or Restricted Stock Award granted under the Plan to an Eligible Associate by the Committee pursuant to such terms, conditions, restrictions, and/or limitations, if any, as the Committee may establish by the Award Agreement or otherwise. Section 2.3 "Award Agreement" means any written instrument that establishes the terms, conditions, restrictions, and/or limitations applicable to an Award in addition to those established by this Plan and by the Committee's exercise of its administrative powers. Section 2.4 "Board" means the Board of Directors of the Company. Section 2.5 "Change of Control Event" means each of the following: (a) 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 (c) of this Section 2.5; or (b) 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 (c) 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 (d) 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. Section 2.6 "Code" means the Internal Revenue Code of 1986, as amended. References in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to such section and any regulations under such section. Section 2.7 "Committee" shall have the meaning set forth in Section 3.1. Section 2.8 "Common Stock" means the common stock, par value $2.50 per share, of the Company, and after substitution, such other stock as shall be substituted therefor as provided in Article VIII. Section 2.9 "Company" means Fleming Companies, Inc., an Oklahoma corporation. Section 2.10 "Compensation Committee" means the Compensation and Organization Committee of the Board. Section 2.11 "Date of Grant" means the date on which the granting of an Award to an Eligible Associate is authorized by the Committee or such later date as may be specified by the Committee in such authorization. Section 2.12 "Eligible Associate" means any key associate of the Company, a Subsidiary, or an Affiliated Entity. Section 2.13 "Exchange Act" means the Securities Exchange Act of 1934, as amended. Section 2.14 "Executive Officer Participants" means Participants who are subject to the provisions of Section 16 of the Exchange Act. Section 2.15 "Fair Market Value" means (A) during such time as the Common Stock is listed upon the New York Stock Exchange or other exchanges or the NASDAQ/ National Market System, the average of the highest and lowest sales prices of the Common Stock as reported by such stock exchange or exchanges or the NASDAQ/National Market System on the day for which such value is to be determined, or if no sale of the Common Stock shall have been made on any such stock exchange or the NASDAQ/National Market System that day, on the next preceding day on which there was a sale of such Common Stock or (B) during any such time as the Common Stock is not listed upon an established stock exchange or the NASDAQ/National Market System, the mean between dealer "bid" and "ask" prices of the Common Stock in the over-the- counter market on the day for which such value is to be determined, as reported by the National Association of Securities Dealers, Inc. Section 2.16 "Incentive Stock Option" means an Option within the meaning of Section 422 of the Code. Section 2.17 "Non-Executive Officer Participants" means Participants who are not subject to the provisions of Section 16 of the Exchange Act. Section 2.18 "Nonqualified Stock Option" means an Option which is not an Incentive Stock Option. Section 2.19 "Option" means an Award granted under Article VI of the Plan and includes both Nonqualified Stock Options and Incentive Stock Options to purchase shares of Common Stock. Section 2.20 "Participant" means an Eligible Associate of the Company, a Subsidiary, or an Affiliated Entity to whom an Award has been granted by the Committee under the Plan. Section 2.21 "Plan" means Fleming Companies, Inc. 2000 Stock Incentive Plan. Section 2.22 "Regular Award Committee" means a committee comprised of the individual who is the Company's chairman and chief executive officer. Section 2.23 "Restricted Stock Award" means an Award granted to an Eligible Associate under Article VII of the Plan. Section 2.24 "Subsidiary" shall have the same meaning set forth in Section 424 of the Code. ARTICLE III. ADMINISTRATION Section 3.1 Administration of the Plan; the Committee. For purposes of administration, the Plan shall be deemed to consist of two separate stock incentive plans, a "Non-Executive Officer Participant Plan" which is limited to Non-Executive Officer Participants and an "Executive Officer Participant Plan" which is limited to Executive Officer Participants. Except for administration and the category of Eligible Associates eligible to receive Awards, the terms of the Non-Executive Officer Participant Plan and the Executive Officer Participant Plan are identical. The Non-Executive Officer Participant Plan shall be administered by both the Regular Award Committee and the Compensation Committee. The Regular Award Committee may only act within guidelines established by the Compensation Committee. The Executive Officer Participant Plan shall be administered by the Compensation Committee. With respect to the Non-Executive Officer Participant Plan and to decisions relating to Non-Executive Officer Participants, including the grant of Awards, the term "Committee" shall mean both the Regular Award Committee and the Compensation Committee; and with respect to the Executive Officer Participant Plan and to decisions relating to the Executive Officer Participants, including the granting of Awards, the term "Committee" shall mean only the Compensation Committee. Unless otherwise provided in the by-laws of the Company or the resolutions adopted from time to time by the Board establishing the Committee, the Board may from time to time remove members from, or add members to, the Committee. Vacancies on the Committee, however caused, shall be filled by the Board. The Committee shall hold meetings at such times and places as it may determine. A majority of the members of the Committee shall constitute a quorum, and the acts of a majority of the members present at any meeting at which a quorum is present or acts reduced to or approved in writing by a majority of the members of the Committee shall be the valid acts of the Committee. Subject to the provisions of the Plan, the Committee shall have exclusive power to: (a) Select the Eligible Associates to participate in the Plan. (b) Determine the time or times when Awards will be made. (c) Determine the form of an Award, whether an Option or a Restricted Stock Award, the number of shares of Common Stock subject to the Award, all the terms, conditions (including performance requirements), restrictions and/or limitations, if any, of an Award, including the time and conditions of exercise or vesting, and the terms of any Award Agreement, which may include the waiver or amendment of prior terms and conditions or acceleration or early vesting or payment of an Award under certain circumstances determined by the Committee. (d) Determine whether Awards will be granted singly or in combination. (e) Accelerate the vesting, exercise or payment of an Award or the performance period of an Award. (f) Take any and all other action it deems necessary or advisable for the proper operation or administration of the Plan. Section 3.2 Committee to Make Rules and Interpret Plan. The Committee in its sole discretion shall have the authority, subject to the provisions of the Plan, to establish, adopt, or revise such rules and regulations and to make all such determinations relating to the Plan as it may deem necessary or advisable for the administration of the Plan. The Committee's interpretation of the Plan or any Awards and all decisions and determinations by the Committee with respect to the Plan shall be final, binding, and conclusive on all parties. ARTICLE IV. GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN Section 4.1 Committee to Grant Awards to Eligible Associates. The Committee may, from time to time, grant Awards to one or more Eligible Associates, provided, however, that: (a) Subject to Article VIII, the aggregate number of shares of Common Stock made subject to the Award of Options to any Eligible Associate in any calendar year may not exceed 300,000. (b) Subject to Article VIII, in no event shall more than 200,000 shares of Common Stock subject to the Plan be awarded to Eligible Associates as Restricted Stock Awards (the "Restricted Stock Award Limit"). (c) Any shares of Common Stock related to Awards which terminate by expiration, forfeiture, cancellation or otherwise without the issuance of shares of Common Stock or are exchanged in the Committee's discretion for Awards not involving Common Stock, shall be available again for grant under the Plan and shall not be counted against the Restricted Stock Award Limit so long as the holder of any such Restricted Stock Award received no benefits of Common Stock ownership (including, but not limited to, dividends) from the shares of Common Stock related to such Award. (d) Common Stock delivered by the Company in payment of any Award under the Plan may be authorized and unissued Common Stock or Common Stock held in the treasury of the Company. (e) The Committee shall, in its sole discretion, determine the manner in which fractional shares arising under this Plan shall be treated. (f) The Compensation Committee shall from time to time establish guidelines for the Regular Award Committee regarding the grant of Awards to Eligible Associates. (g) Separate certificates representing Common Stock to be delivered to an Eligible Associate Participant upon the exercise of any Option will be issued to such Participant. (h) Awards granted which vest based upon the Participant's continued employment shall be limited in such a way that (i) no portion of the Award will vest until one year after the Date of Grant, (ii) no more than one-third of the shares subject to the Award is eligible to vest until one year after Date of Grant; and (iii) no more than two-thirds of the shares subject to the Award is eligible to vest until at least two years after Date of Grant and (iv) the entire Award cannot vest until at least three years after Date of Grant. (i) Awards granted which vest based upon performance standards shall require the holder to remain in the employment of the Company, a Subsidiary, or an Affiliated Entity for at least one year from Date of Grant. (j) The Committee shall be prohibited from canceling, reissuing or modifying Awards if such action will have the effect of repricing the Participant's Award. ARTICLE V. ELIGIBILITY Subject to the provisions of the Plan, the Committee shall, from time to time, select from the Eligible Associates those to whom Awards shall be granted and shall determine the type or types of Awards to be made and shall establish in the related Award Agreements the terms, conditions, restrictions and/or limitations, if any, applicable to the Awards in addition to those set forth in the Plan and the administrative rules and regulations issued by the Committee. ARTICLE VI. STOCK OPTIONS Section 6.1 Grant of Options. The Committee may, from time to time, subject to the provisions of the Plan and such other terms and conditions as it may determine, grant Options to Eligible Associates. These Options may be Incentive Stock Options or Nonqualified Stock Options, or a combination of both. Each grant of an Option shall be evidenced by an Award Agreement executed by the Company and the Eligible Associate, and shall contain such terms and conditions and be in such form as the Committee may from time to time approve, subject to the requirements of Section 6.2. Section 6.2 Conditions of Options. Each Option so granted shall be subject to the following conditions: (a) Exercise Price. As limited by Section 6.2(e) below, each Option shall state the exercise price which shall be set by the Committee at the Date of Grant; provided, however, no Option shall be granted at an exercise price which is less than the Fair Market Value of the Common Stock on the Date of Grant. (b) Form of Payment. The exercise price of an Option may be paid (i) in cash or by check, bank draft or money order payable to the order of the Company; (ii) by delivering shares of Common Stock having a Fair Market Value on the date of payment equal to the amount of the exercise price, but only to the extent such exercise of an Option would not result in an accounting compensation charge with respect to the shares used to pay the exercise price unless otherwise determined by the Committee; or (iii) a combination of the foregoing. In addition to the foregoing, any Option granted under the Plan may be exercised by a broker-dealer acting on behalf of an Eligible Associate Participant if (A) the broker-dealer has received from the Participant or the Company a notice evidencing the exercise of such Option and instructions signed by the Participant requesting the Company to deliver the shares of Common Stock subject to such Option to the broker-dealer on behalf of the Participant and specifying the account into which such shares should be deposited, (B) adequate provision has been made with respect to the payment of any withholding taxes due upon such exercise or, in the case of an Incentive Stock Option, upon the disposition of such shares and (C) the broker-dealer and the Participant have otherwise complied with Section 220.3(e)(4) of Regulation T, 12 CFR, Part 220 and any successor rules and regulations applicable to such exercise. (c) Exercise of Options. Options granted under the Plan shall be exercisable, in whole or in such installments and at such times, and shall expire at such time, as shall be provided by the Committee in the Award Agreement. Exercise of an Option shall be by written notice to the Secretary at least two business days in advance of such exercise stating the election to exercise in the form and manner determined by the Committee. Every share of Common Stock acquired through the exercise of an Option shall be deemed to be fully paid at the time of exercise and payment of the exercise price. (d) Other Terms and Conditions. Among other conditions that may be imposed by the Committee, if deemed appropriate, are those relating to (i) the period or periods and the conditions of exercisability of any Option; (ii) the minimum periods during which Participants must be employed by the Company, its Subsidiaries, or an Affiliated Entity, or must hold Options before they may be exercised; (iii) the minimum periods during which shares acquired upon exercise must be held before sale or transfer shall be permitted; (iv) conditions under which such Options or shares may be subject to forfeiture; (v) the frequency of exercise or the minimum or maximum number of shares that may be acquired at any one time; (vi) the achievement by the Company of specified performance criteria; and (vii) non-compete and protection of business matters. (e) Special Restrictions Relating to Incentive Stock Options. Options issued in the form of Incentive Stock Options shall only be granted to Eligible Associates of the Company or a Subsidiary, and not to Eligible Associates of an Affiliated Entity. Furthermore, Incentive Stock Options shall, in addition to being subject to all applicable terms, conditions, restrictions and/or limitations established by the Committee, comply with the requirements of Section 422 of the Code, including, without limitation, the requirement that the exercise price of an Incentive Stock Option not be less than 100% of the Fair Market Value of the Common Stock on the Date of Grant, the requirement that each Incentive Stock Option, unless sooner exercised, terminated or cancelled, expire no later than 10 years from its Date of Grant, and the requirement that the aggregate Fair Market Value (determined on the Date of Grant) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time by a Participant during any calendar year (under this Plan or any other plan of the Company or any Subsidiary) not exceed $100,000. (f) Application of Funds. The proceeds received by the Company from the sale of Common Stock pursuant to Options will be used for general corporate purposes. (g) Shareholder Rights. No Participant shall have a right as a shareholder with respect to any share of Common Stock subject to an Option prior to purchase of such shares of Common Stock by exercise of the Option. ARTICLE VII. RESTRICTED STOCK AWARDS Section 7.1 Grant of Restricted Stock Awards. The Committee may, from time to time, subject to the provisions of the Plan and such other terms and conditions as it may determine, grant a Restricted Stock Award to any Eligible Associate. Restricted Stock Awards shall be awarded in such number and at such times during the term of the Plan as the Committee shall determine. Each Restricted Stock Award may be evidenced in such manner as the Committee deems appropriate, including, without limitation, a book-entry registration or issuance of a stock certificate or certificates, and by an Award Agreement setting forth the terms of such Restricted Stock Award. Section 7.2 Conditions of Restricted Stock Awards. The grant of a Restricted Stock Award shall be subject to the following: (a) Restriction Period. In addition to any vesting conditions determined by the Committee, including, but not by way of limitation, the achievement by the Company of specified performance criteria, vesting of each Restricted Stock Award shall require the holder to remain in the employment of the Company, a Subsidiary, or an Affiliated Entity for a prescribed period (a "Restriction Period"). Subject to Sections 4.1(h) and (i) the Committee shall determine the Restriction Period or Periods which shall apply to the shares of Common Stock covered by each Restricted Stock Award or portion thereof. At the end of the Restriction Period, assuming the fulfillment of any other specified vesting conditions, the restrictions imposed by the Committee shall lapse with respect to the shares of Common Stock covered by the Restricted Stock Award or portion thereof. In addition to acceleration of vesting upon the occurrence of a Change of Control Event as provided in Section 9.6, the Committee may, in its sole discretion, modify or accelerate the vesting of a Restricted Stock Award (i) in the case of the death or disability of the Participant, (ii) in the case the Participant's employment is terminated by the Company without "cause" as such term shall be defined by the Committee in the Award Agreement, or (iii) in the case the Participant terminates his employment for "good reason" as such term shall be defined by the Committee in the Award Agreement. In addition, with respect to Restricted Stock Awards representing an aggregate of 20,000 shares under the Plan (10% of the Restricted Stock Award Limit), the Committee may in its sole discretion modify or accelerate the vesting of such Restricted Stock Awards under such circumstances as it deems appropriate. (b) Restrictions. The holder of a Restricted Stock Award may not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of the shares of Common Stock represented by the Restricted Stock Award during the applicable Restriction Period. The Committee shall impose such other restrictions and conditions on any shares of Common Stock covered by a Restricted Stock Award as it may deem advisable including, without limitation, restrictions under applicable Federal or state securities laws, and may legend the certificates representing Restricted Stock to give appropriate notice of such restrictions. (c) Rights as Shareholders. During any Restriction Period, the Committee may, in its discretion, grant to the holder of a Restricted Stock Award all or any of the rights of a shareholder with respect to the shares, including, but not by way of limitation, the right to vote such shares and to receive dividends. If any dividends or other distributions are paid in shares of Common Stock, all such shares shall be subject to the same restrictions on transferability as the shares of Restricted Stock with respect to which they were paid. ARTICLE VIII. STOCK ADJUSTMENTS In the event that the shares of Common Stock, as presently constituted, shall be changed into or exchanged for a different number or kind of shares of stock or other securities of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, stock split, combination of shares or otherwise), or if the number of such shares of Common Stock shall be increased through the payment of a stock dividend, or a dividend on the shares of Common Stock or rights or warrants to purchase securities of the Company shall be issued to holders of all outstanding Common Stock, then there shall be substituted for or added to each share available under and subject to the Plan, and each share theretofore appropriated under the Plan, the number and kind of shares of stock or other securities into which each outstanding share of Common Stock shall be so changed or for which each such share shall be exchanged or to which each such share shall be entitled, as the case may be, on a fair and equivalent basis in accordance with the applicable provisions of Section 424 of the Code; provided, however, with respect to Options, in no such event will such adjustment result in a modification of any Option as defined in Section 424(h) of the Code. In the event there shall be any other change in the number or kind of the outstanding shares of Common Stock, or any stock or other securities into which the Common Stock shall have been changed or for which it shall have been exchanged, then if the Committee shall, in its sole discretion, determine that such change equitably requires an adjustment in the shares available under and subject to the Plan, or in any Award, theretofore granted, such adjustments shall be made in accordance with such determination, except that no adjustment of the number of shares of Common Stock available under the Plan or to which any Award relates that would otherwise be required shall be made unless and until such adjustment either by itself or with other adjustments not previously made would require an increase or decrease of at least 1% in the number of shares of Common Stock available under the Plan or to which any Award relates immediately prior to the making of such adjustment (the "Minimum Adjustment"). Any adjustment representing a change of less than such minimum amount shall be carried forward and made as soon as such adjustment together with other adjustments required by this Article VIII and not previously made would result in a Minimum Adjustment. Notwithstanding the foregoing, any adjustment required by this Article VIII which otherwise would not result in a Minimum Adjustment shall be made with respect to shares of Common Stock relating to any Award immediately prior to exercise, payment or settlement of such Award. No fractional shares of Common Stock or units of other securities shall be issued pursuant to any such adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case by rounding downward to the nearest whole share. ARTICLE IX. GENERAL Section 9.1 Amendment or Termination of Plan. The Board may alter, suspend or terminate the Plan at any time. In addition, the Board may, from time to time, amend the Plan in any manner, but may not without shareholder approval adopt any amendment which would (i) increase the aggregate number of shares of Common Stock available under the Plan (except by operation of Article VIII), (ii) materially modify the requirements as to eligibility of Eligible Associates for participation in the Plan, or (iii) materially increase the benefits to Participants provided by the Plan. Section 9.2 Termination of Employment; Termination of Service. If an Eligible Associate's employment with the Company, a Subsidiary, or an Affiliated Entity terminates for a reason other than death, disability, retirement, or any approved reason, all unexercised, unearned, and/or unpaid Awards, including, but not by way of limitation, Awards earned, but not yet paid, all unpaid dividends and dividend equivalents, and all interest, if any, accrued on the foregoing shall be cancelled or forfeited, as the case may be, unless the Eligible Associate's Award Agreement provides otherwise. The Committee shall (i) determine what events constitute disability, retirement, or termination for an approved reason for purposes of the Plan, and (ii) determine the treatment of a Participant under the Plan in the event of his or her death, disability, retirement, or termination for an approved reason. The Committee shall also determine the method, if any, for accelerating the vesting or exercisability of any Options, or providing for the exercise of any unexercised Options in the event of an Eligible Associate's death, disability, retirement, or termination for an approved reason. In the event an Eligible Associate's employment is terminated due to retirement in accordance with the Company's regular retirement policies, unless the Eligible Associate's Award Agreement provides otherwise, the Eligible Associate shall have a period of three years following his date of retirement to exercise any Nonqualified Stock Options which are otherwise exercisable on his date of retirement. Section 9.3 Limited Transferability - Options. The Committee may, in its discretion, authorize all or a portion of the Nonqualified Stock Options to be granted under this Plan to be on terms which permit transfer by the Participant to (i) the ex- spouse of the Participant pursuant to the terms of a domestic relations order, (ii) the spouse, children or grandchildren of the Participant ("Immediate Family Members"), (iii) a trust or trusts for the exclusive benefit of such immediate Family Members, or (iv) a partnership in which such Immediate Family Members are the only partners. In addition (x) there may be no consideration for any such transfer, (y) the Award Agreement pursuant to which such Nonqualified Stock Options are granted must be approved by the Committee, and must expressly provide for transferability in a manner consistent with this paragraph, and (z) subsequent transfers of transferred Nonqualified Stock Options shall be prohibited except as set forth below in this Section 9.3. Following transfer, any such Nonqualified Stock Options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of Section 9.2 hereof the term "Participant" shall be deemed to refer to the transferee. The events of termination of employment of Section 9.2 hereof shall continue to be applied with respect to the original Participant, following which the Nonqualified Stock Options shall be exercisable by the transferee only to the extent, and for the periods specified in Section 9.2 hereof. No transfer pursuant to this Section 9.3 shall be effective to bind the Company unless the Company shall have been furnished with written notice of such transfer together with such other documents regarding the transfer as the Committee shall request. In addition, subject to the foregoing provisions of this Section 9.3, Awards shall be transferable only by will or the laws of descent and distribution; however, no such transfer of an Award 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 Award. Section 9.4 Withholding Taxes. Unless otherwise paid by the Participant, the Company shall be entitled to deduct from any payment under the Plan, regardless of the form of such payment, the amount of all applicable income and employment taxes required by law to be withheld with respect to such payment or may require the Participant to pay to it such tax prior to and as a condition of the making of such payment. In accordance with any applicable administrative guidelines it establishes, the Committee may allow a Participant to pay the amount of taxes required by law to be withheld from an Award by (i) directing the Company to withhold from any payment of the Award a number of shares of Common Stock having a Fair Market Value of the date of payment equal to the amount of the required withholding taxes or (ii) delivering to the Company previously owned shares of Common Stock having a Fair Market Value on the date of payment equal to the amount of the required withholding taxes; provided, the foregoing notwithstanding, any payment made by the Participant pursuant to either of the foregoing clauses (i) or (ii) shall not be permitted if it would result in an accounting charge with respect to such shares used to pay such taxes unless otherwise approved by the Committee. Section 9.5 Dividends and Dividend Equivalents - Awards. The Committee may choose, at the time of the grant of any Award or any time thereafter up to the time of payment of such Award, to include as part of such Award an entitlement to receive dividends or dividend equivalents subject to such terms, conditions, restrictions, and/or limitations, if any, as the Committee may establish. Dividends and dividend equivalents granted hereunder shall be paid in such form and manner (i.e., lump sum or installments), and at such time as the Committee shall determine. All dividends or dividend equivalents which are not paid currently may, at the Committee's discretion, accrue interest. Section 9.6 Change of Control. Awards granted under the Plan to any Eligible Associate may, in the discretion of the Committee, provide that such Awards shall be immediately vested, fully earned and exercisable upon the occurrence of a Change of Control Event. Section 9.7 Amendments to Awards. The Committee may at any time unilaterally amend the terms of any Award Agreement, whether or not presently exercisable or vested, to the extent it deems appropriate; provided, however, that any such amendment which is adverse to the Participant shall require the Participant's consent. Section 9.8 Regulatory Approval and Listings. The Company shall use its best efforts to file with the Securities and Exchange Commission as soon as practicable following approval by the shareholders of the Company of the Plan as provided in Section 1.2 of the Plan, and keep continuously effectively, a Registration Statement on Form S-8 with respect to shares of Common Stock subject to Awards hereunder. Notwithstanding anything contained in this Plan to the contrary, the Company shall have no obligation to issue shares of Common Stock under this Plan prior to: (a) the obtaining of any approval from, or satisfaction of any waiting period or other condition imposed by, any governmental agency which the Committee shall, in its sole discretion, determine to be necessary or advisable; (b) the admission of such shares to listing on the stock exchange on which the Common Stock may be listed; and (c) the completion of any registration or other qualification of such shares under any state or Federal law or ruling of any governmental body which the Committee shall, in its sole discretion, determine to be necessary or advisable. Section 9.9 Right to Continued Employment. Participation in the Plan shall not give any Eligible Associate any right to remain in the employ of the Company, any Subsidiary, or any Affiliated Entity. The Company or, in the case of employment with a Subsidiary or an Affiliated Entity, the Subsidiary or Affiliated Entity reserves the right to terminate any Eligible Associate at any time. Further, the adoption of this Plan shall not be deemed to give any Eligible Associate or any other individual any right to be selected as a Participant or to be granted an Award. Section 9.10 Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in relying or acting in good faith upon any report made by the independent public accountants of the Company and its Subsidiaries and upon any other information furnished in connection with the Plan by any person or persons other than himself or herself. In no event shall any person who is or shall have been a member of the Committee or of the Board be liable for any determination made or other action taken or any omission to act in reliance upon any such report or information or for any action taken, including the furnishing of information, or failure to act, if in good faith. Section 9.11 Construction. Masculine pronouns and other words of masculine gender shall refer to both men and women. The titles and headings of the sections in the Plan are for the convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. Section 9.12 Governing Law. The Plan shall be governed by and construed in accordance with the laws of the State of Oklahoma except as superseded by applicable Federal law. EX-99 7 0007.txt Exhibit 99.2 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. 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 BUSINESS AS CONSIDERATION. As specific consideration to the Company for the Stock Options, the Participant agrees: (a) Limitations on Competition. Subject to sub- section (g), the Participant will not, without the Company's writ- ten 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, excluding national retail chains, or any of their respective subsidiaries, affiliates or successors (collectively, the "Competitors"). (b) Confidential Information; No Disparaging State- ments. 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 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 Competi- tion 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. 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 enforce- able 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 received this Option Agreement on [insert date of receipt] and executed it on [insert date of execution]. EX-99 8 0008.txt Exhibit 99.3 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. 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. Subject to subsection (g), the Participant will not, without the Company's written con- sent, directly or indirectly, in association with or as a share- holder, principal, agent, partner, officer, director, employee or consultant of any other retail chain or any subsidiary or affiliate of any such retail chain, engage in the business of the retail sale of food and related products within the Standard Metropolitan Statistical Areas (the "SMSA's") in which the Participant is, and/or on his/her date of termination/separation was, employed by the Company, its Subsidiaries or Affiliated Entities, or in which the Company, its Subsidiaries or Affiliated Entities during his/her employment is, and/or on his/her date of termination/ separation was, actively soliciting business. (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 con- cert 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 within the SMSA's in which the Participant is, and/or on his/her date of termination/separation was, employed by the Company or one of its Subsidiaries or Affiliated Entities, or in which the Company, its Subsidiaries or Affiliated Entities during his/her employment is, and/or on his/her date of termination/separation was, actively soliciting such business. (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, without the Company's written consent, directly or indirectly, in association with or as a shareholder, principal, agent, partner, officer, director, employee or consultant of any other retail chain or any subsidiary or affiliate of any such retail chain, engages in the business of the retail sale of food and related products within the SMSA's in which the Participant is, or on his/her date of termination/separation was, employed by the Company or one of its Subsidiaries or Affiliated Entities, or in which the Company, its Subsidiaries or Affiliated Entities during the Participant's employment is, and/or on his/her date of termination/separation was, actively soliciting business, 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 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 in- valid 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 sub- sections (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 received this Option Agreement on [insert date of receipt] and executed it on [insert date of execution]. EX-99 9 0009.txt Exhibit 99.4 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. 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. Subject to subsection (g), the Participant will not, without the Company's written consent, directly or indirectly, in association with or as a share- holder, principal, agent, partner, officer, director, employee or consultant of SUPERVALU, Inc., Nash Finch Company or any other direct competitor of the Company, excluding national retail chains, or any of their respective subsidiaries, affiliates or successors (the "Competitors"), engage in the business of the wholesale of food and related products within the Standard Metropolitan Statistical Areas (the "SMSA's") in which the Participant is, and/or on his/her date of termination/separation was, employed by the Company or one of its Subsidiaries or Affiliated Entities, or in which the Company, its Subsidiaries or Affiliated Entities during his/her employment is, and/or on his/her date of termination/ separation was, actively soliciting business. (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 con- cert with others, recruit, solicit or induce, or attempt to induce, any employees of the Company, its Subsidiaries or Affiliated Enti- ties to terminate their employment with the Company, its Subsid- iaries or Affiliated Entities and/or become associated with an- other 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 within the SMSA's in which the Participant is, and/or on his/her date of termination/separation was, employed by the Company, or one of its Subsidiaries or Affiliated Entities, or in which the Company, its Subsidiaries or Affiliated Entities during his/her employment is, and/or on his/her date of termination/separation was, actively soliciting such business. (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 termina- tion/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, in association with or as a shareholder, principal, agent, partner, officer, director, employee or consultant of the Competitors, engages in the business of the wholesale of food and related products within the SMSA's in which the Participant is, or on his/her date of termination/separation was, employed by the Company, or one of its Subsidiaries or Affiliated Entities, or in which the Company, its Subsidiaries or Affiliated Entities during the Participant's employment is, and/or on his/her date of termination/separation was, actively soliciting business, 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 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. 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 received this Option Agreement on [insert date of receipt] and executed it on [insert date of execution]. EX-99 10 0010.txt 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. 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. -----END PRIVACY-ENHANCED MESSAGE-----