EXHIBIT 10.13
FLOWERS FOODS, INC.
2001 EQUITY AND PERFORMANCE INCENTIVE PLAN
2008 Nonqualified Stock Option Agreement
WHEREAS,
(the “ Optionee ” ) is an employee of Flowers
Foods, Inc. (the " Company ”) or a Subsidiary (as
defined below);
WHEREAS, the grant of a stock option
to the Optionee has been duly authorized by a resolution of the
Committee (as defined below) duly adopted on
(the “ Date of Grant ”); and
WHEREAS, the option granted hereunder
is intended to be a nonqualified stock option and will not be
treated as an “incentive stock option” within the
meaning of that term under Section 422 of the Internal Revenue
Code of 1986, as amended (the “ Code ”).
NOW, THEREFORE, pursuant to the
Flowers Foods, Inc. 2001 Equity and Performance Incentive Plan (the
“ Plan ”), the Company hereby grants to the
Optionee an option (the “ Option ”) pursuant to
this 2008 Nonqualified Stock Option Agreement (this “
Agreement ”) to purchase
shares of the Company’s common stock, par value $.01 per
share (“ Common Stock ”), at the price of
$
per share (the “ Option Price ”), and agrees to
cause certificates for any shares of Common Stock purchased
hereunder to be delivered to the Optionee upon full payment of the
Option Price, subject to the applicable terms and conditions of the
Plan and this Agreement.
1. Exercise of Option;
Vesting .
(a) Unless
and until terminated as hereinafter provided, the Option will
become exercisable in full on the third anniversary of the Date of
Grant so long as the Optionee remains in the continuous employ of
the Company or a Subsidiary until said date. For the purposes of
this Agreement, the continuous employment of the Optionee with the
Company or a Subsidiary will not be deemed to have been
interrupted, and the Optionee will not be deemed to have ceased to
be an employee of the Company or a Subsidiary, by reason of
(i) the termination of his employment and immediate rehire
between the Company and a Subsidiary or (ii) an approved leave
of absence. To the extent that the Option will have so become
exercisable, it may be exercised in whole or in part from time to
time by notice in writing and payment of the Option Price;
provided, however, that any such exercise may occur only once
during each calendar year during the term of the Option as set
forth herein.
(b) In
the event, however, that prior to the Option becoming exercisable
in full the Optionee shall be demoted from the position of
employment held by the Optionee on the Date of Grant, then the
Optionee shall forfeit a fraction of the Common Stock, but shall be
entitled to retain the remaining fraction of the Common Stock
covered by the Option, subject to the provisions of this agreement,
which is equal to the number of the Company’s fiscal quarters
in which the Optionee is employed in the position held by the
Optionee on the Date of Grant (beginning with the Date of Grant and
terminating with the quarter in which or with which
demotion
occurs) divided by twelve. Notwithstanding the foregoing, solely
for purposes of this Agreement, an apparent demotion from the
position of employment held by the Optionee on the Date of Grant
shall nonetheless not be deemed to constitute a demotion if the
Committee so determines.
(c) Notwithstanding
the provisions of Subsection (a) of this Section, the Option
will become immediately exercisable in full upon the occurrence of
a Change in Control (as defined below) of the Company, or death,
Disability (as defined below) or Retirement (as defined below) of
the Optionee prior to the time the Option would otherwise vest
hereunder. The Committee may provide for accelerated vesting of the
Option in other circumstances, in its discretion.
2. Payment of Option
Price . The Option Price is payable in cash or by
certified or cashier’s check or other cash equivalent
acceptable to the Company payable to the order of the Company. The
requirement of payment in cash will be deemed satisfied if the
Optionee has made arrangements satisfactory to the Company with a
bank or broker that is a member of the National Association of
Securities Dealers, Inc. to sell on the date of exercise a
sufficient number of shares of Common Stock being purchased so that
the net proceeds of the sale transaction will at least equal the
aggregate Option Price and pursuant to which the bank or broker
undertakes to deliver the aggregate Option Price to the Company not
later than the date on which the sale transaction will settle in
the ordinary course of business.
3. Term of Option
. An Option which is not, or does not become, exercisable
upon the date of termination of employment with the Company will
terminate as of said date. An Option which is exercisable will
terminate on the earliest of the following dates:
(a) Three
(3) months after the Optionee ceases to be an employee of the
Company or a Subsidiary for any reason other than Retirement,
death, Disability, voluntary termination without the written
consent of the Company, or termination for Cause (as defined
below);
(b) Two
(2) years from the date of termination of employment because
of Disability, death, or from the date of Retirement, if the
Optionee becomes disabled, dies or retires while an employee of the
Company or a Subsidiary;
(c) Seven
(7) years from the Date of Grant; or
(d) The
effective date of the Optionee’s termination of employment
for Cause, or voluntary termination without the Company’s
written consent.
(e) Notwithstanding
the provisions of Section 3(a) and 3(b), if the Optionee dies
within the applicable period for exercise, the Option will expire
two (2) years from the date of death.
The
Optionee shall nonetheless forfeit the entire Option if, during the
applicable period for exercise Optionee enters into competition
with the Company through employment with, rendering of services for
compensation to, or ownership of more than five percent (5%)
interest in any entity which is engaged in a business field in
which the Company or any Subsidiary, is also engaged. The Committee
may waive this noncompetition requirement.
2
4. Restrictions on
Transfer of Option .
(a) Except
as otherwise permitted by the Plan, the Option may not be
transferred except by will or the laws of descent and distribution
and may not be exercised during the lifetime of the Optionee except
by the Optionee or the Optionee’s guardian or legal
representative acting on behalf of the Optionee in a fiduciary
capacity under state law and court supervision.
(b) To
the extent the Option or a portion thereof remains unvested due to
a restriction of future performance of services or any other
restriction, the Optionee shall not have the right to sell,
transfer, assign, convey, pledge, hypothecate, grant any security
interest in or mortgage on, or otherwise dispose of or encumber any
unvested portion of the Option or any interest therein. As a result
of the retention of rights in the Option by the Company, except as
required by any law, neither any unvested portion of the Option nor
any interest therein shall be subject in any manner to any forced
or involuntary sale, transfer, conveyance, pledge, hypothecation,
encumbrance, or other disposition or to any charge, liability,
debt, or any other obligation of the Optionee, whether as a direct
or indirect result of any action of the Optionee or any action
taken in any proceeding, including but not limited to any
proceeding under any divorce, bankruptcy or other creditors’
rights law. Any action attempting to effect a transaction of such
type shall be void.
5. Compliance with
Law . The Company will make reasonable efforts to
comply with all applicable federal and state securities laws;
provided, however, notwithstanding any other provision of this
Agreement, the Company will not be obligated to issue any Common
Stock pursuant to this Agreement if the issuance thereof would
result in a violation of any such law.
6. Adjustments
. The Committee may make any adjustments in the Option Price
and in the number and kind of shares of stock or other securities
covered by this Agreement that the Committee may determine to be
equitably required to prevent dilution or enlargement of the
Optionee’s rights under this Agreement that would otherwise
result from any (a) stock dividend, stock split, combination
of shares, recapitalization or other change in the capital
structure of the Company, (b) merger, consolidation, spin-off,
spin-out, split-off, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of rights or
warrants
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