EXHIBIT 10.6
NON-QUALIFIED PERFORMANCE STOCK OPTION AGREEMENT
UNDER THE FLEMING COMPANIES, INC.
1985 STOCK OPTION PLAN
THIS NON-QUALIFIED PERFORMANCE STOCK OPTION AGREEMENT (the
"Option Agreement"), made as of this 16th day of February, 1994,
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 a key management associate of
the Company or one of its subsidiaries, and it is important to
the Company that the Participant be encouraged to remain in the
employ of the Company or one of its subsidiaries; 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. 1985 Stock Option Plan"
(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 a Non-Qualified Stock Option (the "Stock Option")
as described under Sections 83 and 421 of the Internal Revenue
Code of 1986, as amended, to purchase all or any part of an
aggregate of __________________________ (______) shares of its
common stock (the "Stock") of the Company as set forth below,
under and subject to the terms and conditions of this Option
Agreement and the Plan, each of which is incorporated herein by
reference and made a part hereof for all purposes. The purchase
price per share for each share of Stock to be purchased hereunder
shall be $24.9375.
2. TIMES OF EXERCISE OF STOCK OPTION.
(a) EXERCISE AFTER DETERMINATION DATE. After, and
only after, the conditions of paragraph 8 hereof have been
satisfied, the Participant shall be eligible to exercise that
portion of his Stock Option pursuant to the schedule set forth
hereinafter. If the Participant's employment with the Company
(or its parent or any one or more of its subsidiaries) remains
full-time and continuous at all times prior to any of the
"Determination Dates" as such term is hereinafter defined, 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 Determination
Date, on a cumulative basis, the number of shares of Stock
determined by multiplying the aggregate number of shares set
forth in the foregoing paragraph 1 by the designated percentage
set forth hereafter. For purposes of this Option Agreement, the
term "Determination Date" shall mean the date on which the
Compensation and Organization Committee of the Board of Directors
of the Company (the "Committee") certifies that the average of
the last reported sales price of the
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Stock on the New York Stock Exchange Composite Transactions
report for any twenty (20) consecutive business day period shall
have equaled or exceeded a target stock price set forth below
(the "Target Stock Price"). In order to fulfill the
certification requirement, the Committee shall meet in person or
by telephone or act by unanimous written consent no later than
thirty days after the achievement of a Target Stock Price for the
required period.
Percent of Stock
Target Stock Price Option Exercisable
------------------ ------------------
$28 10%
$31 20%
$34 30%
$37 40%
$40 50%
$43 60%
$47 70%
$50 80%
$53 90%
$56 100%
(b) ADJUSTMENTS TO TARGET STOCK PRICE. In case of a
recapitalization, stock split, merger, stock dividend,
reorganization, combination, liquidation, or other change in the
Stock (an "Adjustment Event"), the Target Stock Prices shall be
automatically adjusted to reflect such Adjustment Event.
3. TERM OF STOCK OPTION. The term of the Stock Option
("Option Period") shall be for a period of 10 years from the date
hereof, but no such option shall be exercisable within six months
from the date of grant; and, the Stock Option may not be
exercised at any time unless the Participant shall have been in
the full-time continuous employ of the Company, the parent or one
or more of its subsidiaries, from the date hereof to the date of
the exercise of the Stock Option. The holder of the Stock Option
shall not have any of the rights of a stockholder with respect to
the shares of Stock covered by the Stock Option except and only
to the extent that one or more certificates for such shares of
Stock shall be delivered to him upon the due exercise of the
Stock Option. No Stock Option may be exercised by the
Participant (or such Participant's personal representative in the
event of his death) after the expiration of the Option Period
applicable to such Stock Option.
4. NONTRANSFERABILITY OF STOCK OPTIONS. Except as
otherwise herein provided, any Stock Option granted shall not be
transferable otherwise than by will or the laws of descent and
distribution, and the Stock Option may be exercised, during the
lifetime of the Participant, only by him. More particularly (but
without limiting the generality of the foregoing), the Stock
Option may not be assigned, transferred (except as provided
above), pledged or hypothecated in any way, shall not be
assignable by operation of law and shall not be subject to
execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition
of the Stock Option contrary to the provisions hereof shall be
null and void and without effect.
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5. EMPLOYMENT. So long as the Participant shall continue
to be a full-time and continuous employee of the Company or one
or more of its subsidiaries, any Stock Option granted to him
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 or any of its subsidiaries, or interfere in any way with
the right of the Company or its parent or of any of its
subsidiaries to terminate such Participant's employment at any
time.
6. EXPIRATION OF OPTION PERIOD UPON TERMINATION OF
EMPLOYMENT. Stock Options shall be exercisable only by the
Participant while actively employed by the Company or a
subsidiary, except that (i) any such Stock Option granted and
which is otherwise exercisable, may be exercised by the personal
representative of a deceased Participant within 12 months after
the death of such Participant (but not beyond the Option Period
of such Stock Option), and (ii) if a Participant terminates his
employment with the Company or a subsidiary on account of
Retirement (as defined in the Plan), or incurring a Disability
(as defined in the Plan), as the case may be, such Participant
may exercise any Stock Option which is otherwise exercisable at
any time within three months after such date of termination. If
a Participant should die during the applicable three month period
following the date of such Participant's Retirement or
termination on account of Disability, the rights of the personal
representative of such deceased Participant as such relate to any
Stock Options granted to such deceased Participant shall be
governed in accordance with subparagraph (i) of this paragraph 6.
7. METHOD OF EXERCISING STOCK OPTION.
(a) Subject to the provisions of paragraph 2 of this
Option Agreement, the manner of exercising the Stock Option
herein granted 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 Option and the number of shares of Stock with respect
to that portion of the Stock Option being exercised and shall be
signed by the person or persons so exercising the Stock Option.
The notice shall be accompanied by payment of the full purchase
price of such shares, including payment of all required state and
federal withholding taxes, 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) Payment for shares of Stock purchased under this
Option Agreement may be made in common stock of the Company or a
combination of cash and common stock of the Company. In the
event that common stock of the Company is utilized in
consideration for the purchase of Stock upon the exercise of a
Stock Option then, such common stock shall be valued at the "fair
market value" as defined in the Plan.
(c) In the event the Stock Option is exercised,
pursuant to the foregoing provisions of this paragraph 7, by any
person or persons other than the Participant in the event of the
death of the Participant, such notice shall also be accompanied
by appropriate proof of the right of such person or persons to
exercise the Stock Option. The notice so required shall be given
by personal delivery to the Secretary of the Company or by
registered or certified mail, addressed to the Company at P. O.
Box 26647, Oklahoma City, Oklahoma 73126 and it shall be deemed
to have been given when it is so personally delivered or when it
is deposited in the United States mail in an envelope addressed
to the Company, as aforesaid, properly stamped for delivery as a
registered or certified letter.
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8. SECURITIES LAW RESTRICTIONS. Stock Options shall be
exercised and Stock issued only upon compliance with the
Securities Act of 1933, as amended (the "Act"), 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 shall be in writing and shall be mailed (U.S. Mail)
by the Company to the Participant at the then current address as
maintained by the Company or such other address as the
Participant may advise the Company in writing.
IN WITNESS WHEREOF, the Company has caused this Option
Agreement to be duly executed by its officers thereunto duly
authorized, and the Participant has hereunto set his hand and
seal, all on the day and year first above written.
COMPANY: FLEMING COMPANIES, INC.
By ________________________________
Larry A. Wagner, Senior Vice
President
Human Resources
PARTICIPANT: ___________________________________
Name ______________________________
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