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EXHIBIT 10.17
FLOWERS FOODS, INC.
2001 EQUITY AND PERFORMANCE INCENTIVE PLAN
20[ ] 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 ___________, 20__, to be effective __________, 20__ (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 20__
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.
(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.
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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.
4.
TRANSFERABILITY.
(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.
2
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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, cons
