{"id":38614,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-of-control-agreement-fleming-companies-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-agreement-fleming-companies-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-agreement-fleming-companies-inc.html","title":{"rendered":"Change of Control Agreement &#8211; Fleming Companies Inc."},"content":{"rendered":"<pre>                      EMPLOYMENT AGREEMENT\n\n          THIS EMPLOYMENT AGREEMENT (the 'Agreement') entered into\nbetween FLEMING COMPANIES, INC., an Oklahoma corporation (the\n'Company'), and           1           , an individual (the\n                ----------------------\n'Executive'), dated as of the 2nd day of March, 1995.\n\n          The Board of Directors of the Company (the 'Board'), has\ndetermined that it is in the best interests of the Company and its\nshareholders to assure that the Company will have the continued\ndedication of the Executive, notwithstanding the possibility,\nthreat, or occurrence of a 'Change of Control' (as defined in\nSection 2 of this Agreement) of the Company.  The Board believes it\nis important to diminish the inevitable distraction of the\nExecutive by virtue of the personal uncertainties and risks created\nby a pending or threatened Change of Control, and to encourage the\nExecutive's full attention and dedication to the affairs of the\nCompany during the term of this Agreement and upon the occurrence\nof such event.  The Board also believes the Company is best served\nby  providing the Executive with compensation arrangements upon a\nChange of Control which provide the Executive with individual\nfinancial security and which are competitive with those of other\ncorporations.  In order to accomplish these objectives, the Board\nhas caused the Company to enter into this Agreement.\n\n          NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:\n\n          1.   CERTAIN DEFINITIONS.\n\n               (a)  The 'Effective Date' shall be the first date\nduring the 'Change of Control Period' (as defined in Section 1(b)\nof this Agreement) on which a Change of Control (as defined below)\noccurs.  Anything in this Agreement to the contrary\nnotwithstanding, if the Executive's employment with the Company is\nterminated prior to the date on which a Change of Control occurs,\nand it is reasonably demonstrated that such termination (i) was at\nthe request of a third party who has taken steps reasonably\ncalculated to effect a Change of Control or (ii) otherwise arose in\nconnection with or anticipation of a Change of Control, then for\nall purposes of this Agreement the 'Effective Date' shall mean the\ndate immediately prior to the date of such termination.\n\n               (b)  The 'Change of Control Period' is the period\ncommencing on the date hereof and ending on the earlier to occur of\n(i) the third anniversary of such date or (ii) the first day of the\nmonth next following the Executive's attainment of age 65 ('Normal\nRetirement Date'); PROVIDED, HOWEVER, that commencing on the date\none year after the date hereof, and on each annual anniversary of\nsuch date (such date and each annual anniversary thereof is\nhereinafter referred to as the 'Renewal  Date'), the Change of\n\n\n\n\n\nControl Period shall be automatically extended so as to terminate\non the earlier of (i) three years from such Renewal Date or (ii)\nthe first day of the month coinciding with or next following the\nExecutive's Normal Retirement Date, unless at least 60 days prior\nto the Renewal Date, the Company shall give notice that the Change\nof Control Period shall not be so extended in which event this\nAgreement shall continue for the remainder of its then current term\nand terminate as provided herein.\n\n          2.   CHANGE OF CONTROL.  For the purpose of this\nAgreement, a 'Change of Control' shall mean:\n\n               (i)  The acquisition by any individual, entity or\ngroup (within the meaning of Section 13(d)(3) or 14(d)(2) of the\nSecurities Exchange Act of 1934, as amended (the 'Exchange Act'))\n(a 'Person') of beneficial ownership (within the meaning of Rule\n13d-3 promulgated under the Exchange Act) of 20% or more (the\n'Triggering Percentage') of either (i) the then outstanding shares\nof common stock of the Company (the 'Outstanding Company Common\nStock') or (ii) the combined voting power of the then outstanding\nvoting securities of the Company entitled to vote generally in the\nelection of directors (the 'Outstanding Company Voting\nSecurities'); provided, however, in the event the 'Incumbent Board'\n(as such term is hereinafter defined) pursuant to Section 7 of the\nRights Agreement between the Company and The Liberty National Bank\nand Trust Company of Oklahoma City dated as of July 7, 1986\ntogether with any additional amendments thereto (the 'Rights\nAgreement') lowers the threshold amounts set forth in Section 1(a)\nor 3(a) of the Rights Agreement, the Triggering Percentage shall be\nautomatically reduced to equal the threshold set pursuant to\nSection 7 of the Rights Agreement; and provided, further, however,\nthat the following acquisitions shall not constitute a Change of\nControl:  (i) any acquisition directly from the Company, (ii) any\nacquisition by the Company; (iii) any acquisition by any employee\nbenefit plan (or related trust) sponsored or maintained by the\nCompany or any corporation controlled by the Company, (iv) any\nacquisition previously approved by at least a majority of the\nmembers of the Incumbent Board, (v) any acquisition approved by at\nleast a majority of the members of the Incumbent Board within five\n(5) business days after the Company has notice of such acquisition,\nor (vi) any acquisition by any corporation pursuant to a\ntransaction which complies with clauses (x), (y), and (z) of\nsubsection (iii) of this Section 2; or\n\n               (ii) Individuals who, as of the date hereof,\nconstitute the Board (the 'Incumbent Board') cease for any reason\nto constitute at least a majority of the Board; provided, however,\nthat any individual becoming a director subsequent to the date\nhereof whose election, appointment or nomination for election by\nthe Company's shareholders, was approved by a vote of at least a\nmajority of the directors then comprising the Incumbent Board shall\nbe considered as though such individual were a member of the\n\n                             -2-\n\n\n\n\nIncumbent Board, but excluding, for purposes of this definition,\nany such individual whose initial assumption of office occurs as a\nresult of an actual or threatened election contest with respect to\nthe election or removal of directors or other actual or threatened\nsolicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n\n               (iii)  Approval by the shareholders of the Company\nof a reorganization, share exchange, merger or consolidation (a\n'Business Combination'), in each case, unless, following such\nBusiness Combination, (x) all or substantially all of the\nindividuals and entities who were the beneficial owners,\nrespectively, of the Outstanding Company Common Stock and\nOutstanding Company Voting Securities immediately prior to such\nBusiness Combination beneficially own, directly or indirectly, more\nthan 70% of, respectively, the then outstanding shares of common\nstock and the combined voting power of the then outstanding voting\nsecurities entitled to vote generally in the election of directors,\nas the case may be, of the corporation resulting from such Business\nCombination (including, without limitation, a corporation which as\na result of such transaction owns the Company through one or more\nsubsidiaries) in substantially the same proportions as their\nownership, immediately prior to such Business Combination of the\nOutstanding Company Common Stock and Outstanding Company Voting\nSecurities, as the case may be, (y) no Person (excluding any\nemployee benefit plan (or related trust) of the Company or such\ncorporation resulting from such Business Combination) beneficially\nowns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding shares of common stock of the corporation\nresulting from such Business Combination or the combined voting\npower of the then outstanding voting securities of such corporation\nexcept to the extent that such ownership existed prior to the\nBusiness Combination, and (z) at least a majority of the members of\nthe board of directors of the corporation resulting from such\nBusiness Combination were members of the Incumbent Board at the\ntime of the execution of the initial agreement, or of the action of\nthe Board, providing for such Business Combination or were elected,\nappointed or nominated by the Board; or\n\n               (iv) Approval by the shareholders of the Company of\n(x) a complete liquidation or dissolution of the Company or, (y)\nthe sale or other disposition of all or substantially all of the\nassets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (A) more than 70%\nof, respectively, the then outstanding shares of common stock of\nsuch corporation and the combined voting power of the then\noutstanding voting securities of such corporation entitled to vote\ngenerally in the election of directors is then beneficially owned,\ndirectly or indirectly, by all or substantially all of the\nindividuals and entities who were the beneficial owners,\nrespectively, of the Outstanding Company Common Stock and\nOutstanding Company Voting Securities immediately prior to such\n\n                              -3-\n\n\n\nsale or other disposition in substantially the same proportion as\ntheir ownership, immediately prior to such sale or other\ndisposition, of the Outstanding Company Common Stock and\nOutstanding Company Voting Securities, as the case may be, (B) less\nthan 20% of, respectively, the then outstanding shares of common\nstock of such corporation and the combined voting power of the then\noutstanding voting securities of such corporation entitled to vote\ngenerally in the election of directors is then beneficially owned,\ndirectly or indirectly, by any Person (excluding any employee\nbenefit plan (or related trust) of the Company or such\ncorporation), except to the extent that such Person owned 20% or\nmore of the Outstanding Company Common Stock or Outstanding Company\nVoting Securities prior to the sale or disposition, and (C) at\nleast a majority of the members of the board of directors of such\ncorporation were members of the Incumbent Board at the time of the\nexecution of the initial agreement, or of the action of the Board,\nproviding for such sale or other disposition of assets of the\nCompany or were elected, appointed or nominated by the Board.\n\n          3.   EMPLOYMENT PERIOD.  The Company hereby agrees to\ncontinue the Executive in its employ, and the Executive hereby\nagrees to remain in the employ of the Company, for the period\ncommencing on the Effective Date and ending on the earlier to occur\nof (a) the third anniversary of such date or (b) the first day of\nthe month coinciding with or next following the Executive's Normal\nRetirement Date (the 'Employment Period').\n\n          4.   TERMS OF EMPLOYMENT.\n\n               (a)  POSITION AND DUTIES.\n\n                    (i)  During the Employment Period, (A) the\nExecutive's position (including status, offices, secretarial and\nadministrative support, titles and reporting requirements),\nauthority, duties and responsibilities shall be at least\ncommensurate in all material respects with the most significant of\nthose held, exercised and assigned at any time during the 90-day\nperiod immediately preceding the Effective Date and (B) the\nExecutive's services shall be performed at the location where the\nExecutive was employed immediately preceding the Effective Date or\nany office or location less than 25 miles from such location.\n\n                   (ii)  During the Employment Period, and\nexcluding any periods of vacation and sick leave to which the\nExecutive is entitled, the Executive agrees to devote reasonable\nattention and time during normal business hours to the business and\naffairs of the Company and, to the extent necessary to discharge\nthe responsibilities assigned to the Executive hereunder, to use\nthe Executive's reasonable best efforts to perform faithfully and\nefficiently such responsibilities.  During the Employment Period it\nshall not be a violation of this Agreement for the Executive to (A)\nserve on corporate, civic or charitable boards or committees, (B)\n\n                               -4-\n\n\n\ndeliver lectures, fulfill speaking engagements or teach at\neducational institutions and (C) manage personal investments, so\nlong as such activities do not significantly interfere with the\nperformance of the Executive's responsibilities as an associate of\nthe Company in accordance with this Agreement.  It is expressly\nunderstood and agreed that to the extent that any such activities\nhave been conducted by the Executive prior to the Effective Date,\nthe continued conduct of such activities (or the conduct of\nactivities similar in nature and scope thereto) subsequent to the\nEffective Date shall not thereafter be deemed to interfere with the\nperformance of the Executive's responsibilities to the Company.\n\n               (b)  COMPENSATION.\n\n                    (i)  BASE SALARY.  During the Employment\nPeriod, the Executive shall receive an annual base salary ('Base\nSalary') at least equal to the greater of (i) his annual base\nsalary in effect immediately prior to the Effective Date or (ii)\nthe highest average annual base salary paid or payable to the\nExecutive by the Company and its subsidiaries during the five\nfiscal years immediately preceding the fiscal year in which the\nEffective Date occurs; provided, however, that the three (which\nneed not be consecutive) highest annual base salaries paid or\npayable during the past five fiscal years which yield the highest\nannual base salary payable shall be utilized to compute the highest\naverage annual base salary.  Such Base Salary shall be payable\nmonthly in cash.  Base Salary shall be computed prior to any\nreductions for (i) any deferrals of compensation made pursuant to\nSections 125 or 401(c) of the Code and (ii) any withholding, income\nor employment taxes.  During the Employment Period, the Base Salary\nshall be reviewed at least annually and shall be increased at any\ntime and from time to time as shall be substantially consistent\nwith increases in base salary awarded in the ordinary course of\nbusiness to other key management associates of the Company and its\nsubsidiaries.  Any increase in Base Salary shall not serve to limit\nor reduce any other obligation to the Executive under this\nAgreement.  Base Salary shall not be reduced after any such\nincrease.\n\n                   (ii)  ANNUAL BONUS.  In addition to Base Salary,\nthe Executive shall be paid, for each fiscal year during the\nEmployment Period, an annual bonus (an 'Annual Bonus') (either\npursuant to the incentive compensation plan of the Company or\notherwise, including, without limitation, the Economic Value Added\nIncentive Bonus Plan for Fleming Companies, Inc. and Its\nSubsidiaries) in cash at least equal to the highest annual bonus\npaid or payable to the Executive by the Company and its\nsubsidiaries during or for any of the five fiscal years immediately\npreceding the fiscal year in which the Effective Date occurs.\n\n                  (iii)  INCENTIVE, SAVINGS AND RETIREMENT PLANS.\nIn addition to Base Salary and Annual Bonus, the Executive shall be\n\n                               -5-\n\n\n\nentitled to participate during the Employment Period in all\nincentive, savings and retirement plans, practices, supplemental\nretirement plan policies and programs applicable to other key\nmanagement associates of the Company and its subsidiaries, in each\ncase providing benefits which are the economic equivalent to those\nin effect immediately preceding the Effective Date or as\nsubsequently amended.  Such plans, practices, policies and\nprograms, in the aggregate, shall provide the Executive with\ncompensation, benefits and reward opportunities at least as\nfavorable as the most favorable of such compensation, benefits and\nreward opportunities provided by the Company for the Executive\nunder such plans, practices, policies and programs as in effect at\nany time during the 90-day period immediately preceding the\nEffective Date or, if more favorable to the Executive, as provided\nat any time thereafter with respect to other key management\nassociates of the Company and its subsidiaries.\n\n                   (iv)  WELFARE BENEFIT PLANS.  During the\nEmployment Period, the Executive and\/or the Executive's family, as\nthe case may be, shall be eligible for participation in and shall\nreceive all benefits under welfare benefit plans, practices,\npolicies and programs provided by the Company and its subsidiaries\n(including, without limitation, medical, prescription, dental,\ndisability, salary continuance, employee life, group life,\naccidental death and travel accident insurance plans and programs),\nat least as favorable as the most favorable of such plans,\npractices, policies and programs in effect at any time during the\n90-day period immediately preceding the Effective Date or, if more\nfavorable to the Executive and\/or the Executive's family, as in\neffect at any time thereafter with respect to other key management\nassociates of the Company and its subsidiaries.\n\n                    (v)  EXPENSES.  During the Employment Period,\nthe Executive shall be entitled to receive prompt reimbursement for\nall reasonable expenses incurred by the Executive in accordance\nwith the most favorable policies, practices and procedures of the\nCompany and its subsidiaries in effect at any time during the 90-\nday period immediately preceding the Effective Date or, if more\nfavorable to the Executive, as in effect at any time thereafter\nwith respect to other key management associates of the Company and\nits subsidiaries.\n\n                   (vi)  FRINGE BENEFITS.  During the Employment\nPeriod, the Executive shall be entitled to fringe benefits,\nincluding use of an automobile and payment of related expenses, in\naccordance with the most favorable plans, practices, programs and\npolicies of the Company and its subsidiaries in effect at any time\nduring the 90-day period immediately preceding the Effective Date\nor, if more favorable to the Executive, as in effect at any time\nthereafter with respect to other key management associates of the\nCompany and its subsidiaries.\n\n                              -6-\n\n\n\n                  (vii)  OFFICE AND SUPPORT STAFF.  During the\nEmployment Period, the Executive shall be entitled to an office or\noffices of a size and with furnishings and other appointments, and\nto secretarial and other assistance, at least equal to the most\nfavorable of the foregoing provided to the Executive by the Company\nand its subsidiaries at any time during the 90-day period\nimmediately preceding the Effective Date or, if more favorable to\nthe Executive, as provided at any time thereafter with respect to\nother key management associates of the Company and its\nsubsidiaries.\n\n                 (viii)  VACATION.  During the Employment Period,\nthe Executive shall be entitled to paid vacation in accordance with\nthe most favorable plans, policies, programs and practices of the\nCompany and its subsidiaries as in effect at any time during the\n90-day period immediately preceding the Effective Date or, if more\nfavorable to the Executive, as in effect at any time thereafter\nwith respect to other key management associates of the Company and\nits subsidiaries.\n\n                   (ix)  EFFECT OF INCREASES.  Any increase in Base\nSalary, Annual Bonus or any other benefit or perquisite described\nin the foregoing Sections (i)-(viii) shall in no way diminish any\nobligation of the Company under the Agreement.\n\n          5.   TERMINATION.\n\n               (a)  DEATH OR DISABILITY.  This Agreement shall\nterminate automatically upon the Executive's death.  If the Company\ndetermines in good faith that the Disability of the Executive has\noccurred (pursuant to the definition of 'Disability' set forth\nbelow), it may give to the Executive written notice of its\nintention to terminate the Executive's employment.  In such event,\nthe Executive's employment with the Company shall terminate\neffective on the 30th day after the date of such notice (the\n'Disability Effective Date'), provided that, within such time\nperiod, the Executive shall not have returned to full-time\nperformance of the Executive's duties.  For purposes of this\nAgreement, 'Disability' means disability (either physical or\nmental) which, at least 26 weeks after its commencement, is\ndetermined to be total and permanent by a physician selected by the\nCompany or its insurers and acceptable to the Executive or the\nExecutive's legal representative (such agreement as to\nacceptability not to be withheld unreasonably).\n\n               (b)  CAUSE.  The Company may terminate the\nExecutive's employment for 'Cause.'  For purposes of this\nAgreement, termination of the Executive's employment by the Company\nfor Cause shall mean termination for one of the following reasons:\n(i) the conviction of the Executive of a felony by a federal or\nstate court of competent jurisdiction; (ii) an act or acts of\ndishonesty taken by the Executive and intended to result in\n\n                            -7-\n\n\n\nsubstantial personal enrichment of the Executive at the expense of\nthe Company; or (iii) the Executive's 'willful' failure to follow\na direct, reasonable and lawful written order from his supervisor,\nwithin the reasonable scope of the Executive's duties, which\nfailure is not cured within 30 days.  Further, for purposes of this\nSection (b):\n\n                    (1)  No act or failure to act, on the\nExecutive's part shall be deemed 'willful' unless done, or omitted\nto be done, by the Executive not in good faith and without\nreasonable belief that the Executive's action or omission was in\nthe best interest of the Company.\n\n                    (2)  The Executive shall not be deemed to have\nbeen terminated for Cause unless and until there shall have been\ndelivered to the Executive a copy of a resolution duly adopted by\nthe affirmative vote of not less than three-fourths (3\/4ths) of the\nentire membership of the Board at a meeting of the Board called and\nheld for such purpose (after reasonable notice to the Executive and\nan opportunity for the Executive, together with the Executive's\ncounsel, to be heard before the Board), finding that in the good\nfaith opinion of the Board the Executive was guilty of conduct set\nforth in clauses (i), (ii) or (iii) above and specifying the\nparticulars thereof in detail.\n\n               (c)  GOOD REASON.  The Executive's employment may be\nterminated by the Executive for Good Reason.  For purposes of this\nAgreement, 'Good Reason' means:\n\n                    (i)  the assignment to the Executive of any\nduties inconsistent in any respect with the Executive's position\n(including status, offices, titles and reporting requirements),\nauthority, duties or responsibilities as contemplated by Section\n4(a) of this Agreement, or any other action by the Company which\nresults in a diminution in such position, compensation, authority,\nduties or responsibilities, excluding for this purpose an isolated,\ninsubstantial and inadvertent action not taken in bad faith and\nwhich is remedied by the Company promptly after receipt of notice\nthereof given by the Executive;\n\n                   (ii)  any failure by the Company to comply with\nany of the provisions of Section 4(b) of this Agreement, other than\nan isolated, insubstantial and inadvertent failure not occurring in\nbad faith and which is remedied by the Company promptly after\nreceipt of notice thereof given by the Executive;\n\n                  (iii)  the Company's requiring the Executive to\nbe based at any office or location other than that described in\nSection 4(a)(i)(B) hereof, except for periodic travel reasonably\nrequired in the performance of the Executive's responsibilities;\n\n                               -8-\n\n\n\n                   (iv)  any purported termination by the Company\nof the Executive's employment otherwise than as expressly permitted\nby this Agreement; or\n\n                    (v)  any failure by the Company to comply with\nand satisfy Section 12(c) of this Agreement.\n\n          For purposes of this Section 5(c), any good faith\ndetermination of 'Good Reason' made by the Executive shall be\nconclusive.  Anything in this Agreement to the contrary\nnotwithstanding, a termination by the Executive for any reason\nduring the 30-day period immediately following the first\nanniversary of the Effective Date shall be deemed to be a\ntermination for Good Reason for all purposes of this Agreement.\n\n               (d)  NOTICE OF TERMINATION.  Any termination by the\nCompany for Cause or by the Executive for Good Reason shall be\ncommunicated by Notice of Termination to the other party hereto\ngiven in accordance with Section 14(b) of this Agreement.  For\npurposes of this Agreement, a 'Notice of Termination' means a\nwritten notice which (i) indicates the specific termination\nprovisions in this Agreement relied upon, (ii) sets forth in\nreasonable detail the facts and circumstances claimed to provide a\nbasis for termination of the Executive's employment under the\nprovision so indicated and (iii) if the Date of Termination (as\ndefined below) is other than the date of receipt of such notice,\nspecifies the termination date (which date shall be not more than\n15 days after the giving of such notice).  The failure by the\nExecutive to set forth in the Notice of Termination any fact or\ncircumstance which contributes to a showing of Good Reason shall\nnot waive any right of the Executive hereunder or preclude the\nExecutive from asserting such fact or circumstance in enforcing his\nrights hereunder.\n\n               (e)  DATE OF TERMINATION.  'Date of Termination'\nmeans the date of receipt of the Notice of Termination by either\nthe Company or the Executive as the case may be or any later date\nspecified therein; PROVIDED, HOWEVER, that if the Executive's\nemployment is terminated by reason of death or Disability, the Date\nof Termination shall be the date of death of the Executive or the\nDisability Effective Date, as the case may be.\n\n          6.   OBLIGATIONS OF THE COMPANY UPON TERMINATION.\n\n               (a)  DEATH.  If the Executive's employment is\nterminated by reason of the Executive's death, this Agreement shall\nterminate without further obligations to the Executive's legal\nrepresentatives under this Agreement, other than those obligations\naccrued or earned and vested (if applicable) by the Executive as of\nthe Date of Termination, including, for this purpose (i) the\nExecutive's annual full Base Salary through the Date of Termination\nat the rate in effect on the Date of Termination or, if higher, at\n\n                               -9-\n\n\n\nthe highest annual rate in effect at any time from the thirty-six\nmonth period preceding the Effective Date through the Date of\nTermination (the 'Highest Base Salary'), (ii) the product of the\nAnnual Bonus (defined in Section 4(b)(ii)) paid to the Executive\nfor the last full fiscal year and a fraction, the numerator of\nwhich is the number of days in the current fiscal year through the\nDate of Termination, and the denominator of which is 365 and (iii)\nany compensation previously deferred by the Executive (together\nwith any accrued interest thereon) and not yet paid by the Company\nand any accrued vacation pay not yet paid by the Company (such\namounts specified in clauses (i), (ii) and (iii) are hereinafter\nreferred to as 'Accrued Obligations').  All such Accrued\nObligations shall be paid to the Executive's estate or beneficiary,\nas applicable, in a lump sum in cash within 30 days of the Date of\nTermination.  Anything in this Agreement to the contrary\nnotwithstanding, the Executive's family shall be entitled to\nreceive benefits at least equal to the most favorable benefits\nprovided by the Company and any of its subsidiaries to surviving\nfamilies of other key management associates of the Company and such\nsubsidiaries under such plans, programs, practices and policies\nrelating to family death benefits, if any, in accordance with the\nmost favorable plans, programs, practices and policies of the\nCompany and its subsidiaries in effect at any time during the 90-\nday period immediately preceding the Effective Date or, if more\nfavorable to the Executive and\/or the Executive's family, as in\neffect on the date of the Executive's death with respect to other\nkey management associates of the Company and its subsidiaries and\ntheir families.\n\n               (b)  DISABILITY.  If the Executive's employment is\nterminated by reason of the Executive's Disability, this Agreement\nshall terminate without further obligations to the Executive, other\nthan those obligations accrued or earned and vested (if applicable)\nby the Executive as of the Date of Termination, including for this\npurpose, all Accrued Obligations.  All such Accrued Obligations\nshall be paid to the Executive in a lump sum in cash within 30 days\nof the Date of Termination.  Anything in this Agreement to the\ncontrary notwithstanding, the Executive shall be entitled after the\nDisability Effective Date to receive disability and other benefits\nat least equal to the most favorable of those provided by the\nCompany and its subsidiaries to disabled key management associates\nand\/or their families in accordance with such plans, programs,\npractices and policies relating to disability, if any, in\naccordance with the most favorable plans, programs, practices and\npolicies of the Company and its subsidiaries in effect at any time\nduring the 90-day period immediately preceding the Effective Date\nor, if more favorable to the Executive and\/or the Executive's\nfamily, as in effect at any time thereafter with respect to other\nkey management associates of the Company and its subsidiaries and\ntheir families.\n\n                              -10-\n\n\n               (c)  CAUSE; OTHER THAN FOR GOOD REASON.  If the\nExecutive's employment shall be terminated for Cause, this\nAgreement shall terminate without further obligations to the\nExecutive other than the obligation to pay to the Executive the\nHighest Base Salary through the Date of Termination plus the amount\nof any compensation previously deferred by the Executive (together\nwith accrued interest thereon).  If the Executive terminates\nemployment other than for Good Reason, this Agreement shall\nterminate without further obligations to the Executive, other than\nthose obligations accrued or earned and vested (if applicable) by\nthe Executive through the Date of Termination, including for this\npurpose, all Accrued Obligations.  All such Accrued Obligations\nshall be paid to the Executive in a lump sum in cash within 30 days\nof the Date of Termination.\n\n               (d)  GOOD REASON; TERMINATION OTHER THAN FOR CAUSE\nOR DISABILITY.  If, during the Employment Period, the Company shall\nterminate the Executive's employment other than for Cause,\nDisability, or death or if the Executive shall terminate his\nemployment for Good Reason:\n\n                    (i)  the Company shall pay to the Executive in\na lump sum in cash within 30 days after the Date of Termination the\naggregate of the following amounts:\n\n                         A.   to the extent not theretofore paid,\nthe Executive's Highest Base Salary through the Date of\nTermination; and\n\n                         B.   the product of (i) the Annual Bonus\npaid to the Executive for the last full fiscal year (if any) ending\nduring the Employment Period or, if higher, the Annual Bonus paid\nto the Executive for the last full fiscal year prior to the\nEffective Date (as applicable, the 'Recent Bonus') and (ii) a\nfraction, the numerator of which is the number of days in the\ncurrent fiscal year through the Date of Termination and the\ndenominator of which is 365; and\n\n                         C.   the product obtained by multiplying\n2.99 times the sum of (i) the Highest Base Salary and (ii) the\nRecent Bonus; and\n\n                         D.   in the case of compensation\npreviously deferred by the Executive, all amounts previously\ndeferred (together with any accrued interest thereon) and not yet\npaid by the Company, and any accrued vacation pay not yet paid by\nthe Company; and\n\n                   (ii)  for the remainder of the Employment\nPeriod, or such longer period as any plan, program, practice or\npolicy may provide, the Company shall continue benefits to the\nExecutive and\/or the Executive's family at least equal to those\n\n                            -11-\n\n\n\nwhich would have been provided to them in accordance with the\nplans, programs, practices and policies described in Section\n4(b)(iv) of this Agreement if the Executive's employment had not\nbeen terminated, including health insurance and life insurance, in\naccordance with the most favorable plans, practices, programs or\npolicies of the Company and its subsidiaries during the 90-day\nperiod immediately preceding the Effective Date or, if more\nfavorable to the Executive, as in effect at any time thereafter\nwith respect to other key management associates and their families\nand for purposes of eligibility for retiree benefits pursuant to\nsuch plans, practices, programs and policies, the Executive shall\nbe considered to have remained employed until the end of the\nEmployment Period and to have retired on the last day of such\nperiod.\n\n          7.   NON-EXCLUSIVITY OF RIGHTS.  Nothing in this\nAgreement shall prevent or limit the Executive's continuing or\nfuture participation in any benefit, bonus, incentive or other\nplans, programs, policies or practices, provided by the Company or\nany of its subsidiaries and for which the Executive may qualify,\nnor shall anything herein limit or otherwise affect such rights as\nthe Executive may have under any stock option or other agreements\nwith the Company or any of its subsidiaries.  Amounts which are\nvested benefits or which the Executive is otherwise entitled to\nreceive under any plan, policy, practice or program of the Company\nor any of its subsidiaries at or subsequent to the Date of\nTermination shall be payable in accordance with such plan, policy,\npractice or program.\n\n          8.   FULL SETTLEMENT.  The Company's obligation to make\nthe payments provided for in this Agreement and otherwise to\nperform its obligations hereunder shall not be affected by any set-\noff, counterclaim, recoupment, defense or other claim, right or\naction which the Company may have against the Executive or others.\nIn no event shall the Executive be obligated to seek other\nemployment or take any other action by way of mitigation of the\namounts payable to the Executive under any of the provisions of\nthis Agreement.  The Company agrees to pay, to the full extent\npermitted by law, all legal fees and expenses which the Executive\nmay reasonably incur as a result of any contest (regardless of the\noutcome thereof) by the Company or others of the validity or\nenforceability of, or liability under, any provision of this\nAgreement or any guarantee of performance thereof (including as a\nresult of any contest by the Executive about the month of any\npayment pursuant to Section 9 of this Agreement), plus in each case\ninterest at the applicable Federal rate provided for in Section\n7872(f)(2) of the Code.\n\n          9.   CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.\n\n               (a)  Anything in this Agreement to the contrary\nnotwithstanding, in the event it shall be determined that any\n\n                            -12-\n\n\npayment or distribution by the Company to or for the benefit of the\nExecutive, whether paid or payable or distributed or distributable\npursuant to the terms of this Agreement or otherwise, including, by\nexample and not by way of limitation, acceleration by the Company\nof the date of vesting or payment or rate of payment under any\nplan, program or arrangement of the Company (a 'Payment'), would be\nsubject to the excise tax imposed by Section 4999 of the Internal\nRevenue Code of 1986, as amended (the  'Code') or any interest or\npenalties with respect to such excise tax (such excise tax,\ntogether with any such interest and penalties, are hereinafter\ncollectively referred to as the 'Excise Tax'), then the Executive\nshall be entitled to receive an additional payment (a 'Gross-Up\nPayment') in an amount such that after payment by the Executive of\nall taxes (including any interest or penalties imposed with respect\nto such taxes), including any Excise Tax, imposed upon the Gross-Up\nPayment, the Executive retains an amount of the Gross-Up Payment\nequal to the Excise Tax imposed upon the Payments.\n\n               (b)  Subject to the provisions of Section 9(c), all\ndeterminations required to be made under this Section 9, including\nwhether a Gross-Up Payment is required and the amount of such\nGross-Up Payment, shall be made by Deloitte &amp; Touche LLP (the\n'Accounting Firm') which shall provide detailed supporting\ncalculations both to the Company and the Executive within 15\nbusiness days of the receipt of notice from the Executive that\nthere has been a Payment which would be subject to the Excise Tax,\nor such earlier time as is requested by the Company.  The initial\nGross-Up Payment, if any, as determined pursuant to this Section\n9(b), shall be paid to the Executive within five days of the\nreceipt of the Accounting Firm's determination.  If the Accounting\nFirm determines that no Excise Tax is payable by the Executive, it\nshall furnish the Executive with an opinion that he has substantial\nauthority not to report any Excise Tax on his federal income tax\nreturn.  Any determination by the Accounting Firm shall be binding\nupon the Company and the Executive.  As a result of the uncertainty\nin the application of Section 4999 of the Code at the time of the\ninitial determination by the Accounting Firm hereunder, it is\npossible that Gross-Up Payments which will not have been made by\nthe Company should have been made ('Underpayment'), consistent with\nthe calculations required to be made hereunder.  In the event that\nthe Company exhausts its remedies pursuant to Section 9(c) and the\nExecutive thereafter is required to make a payment of any Excise\nTax, the Accounting Firm shall determine the amount of the\nUnderpayment that has occurred and any such Underpayment shall be\npromptly paid by the Company to or for the benefit of the\nExecutive.\n\n               (c)  The Executive shall notify the Company in\nwriting of any claim by the Internal Revenue Service that, if\nsuccessful, would require the payment by the Company of the Gross-\nUp Payment.  Such notification shall be given as soon as\npracticable but no later than ten business days after the Executive\n\n                                -13-\n\n\n\nknows of such claim and shall apprise the Company of the nature of\nsuch claim and the date on which such claim is requested to be\npaid.  The Executive shall not pay such claim prior to the\nexpiration of the 30-day period following the date on which he\ngives such notice to the Company (or such shorter period ending on\nthe date that any payment of taxes with respect to such claim is\ndue).  If the Company notifies the Executive in writing prior to\nthe expiration of such period that it desires to contest such\nclaim, the Executive shall:\n\n                    (i)  give the Company any information\nreasonably requested by the Company relating to such claim,\n\n                   (ii)  take such action in connection with\ncontesting such claim as the Company shall reasonably request in\nwriting from time to time, including, without limitation, accepting\nlegal representation with respect to such claim by an attorney\nreasonably selected by the Company,\n\n                  (iii)  cooperate with the Company in good faith\nin order effectively to contest such claim, and\n\n                   (iv)  permit the Company to participate in any\nproceedings relating to such claim;\n\nprovided, however, that the Company shall bear and pay directly all\ncosts and expenses (including additional interest and penalties)\nincurred in connection with such contest and shall indemnify and\nhold the Executive harmless, on an after-tax basis, for any Excise\nTax or income tax, including interest and penalties with respect\nthereto, imposed as a result of such representation and payment of\ncosts and expenses.  Without limitation on the foregoing provisions\nof this Section 9(c), the Company shall control all proceedings\ntaken in connection with such contest and, at its sole option, may\npursue or forgo any and all administrative appeals, proceedings,\nhearings and conferences with the taxing authority in respect of\nsuch claim and may, at its sole option, either direct the Executive\nto pay the tax claimed and sue for a refund or contest the claim in\nany permissible manner, and the Executive agrees to prosecute such\ncontest to a determination before any administrative tribunal, in\na court of initial jurisdiction and in one or more appellate\ncourts, as the Company shall determine; provided, however, that if\nthe Company directs the Executive to pay such claim and sue for a\nrefund, the Company shall advance the amount of such payment to the\nExecutive, on an interest-free basis and shall indemnify and hold\nthe Executive harmless, on an after-tax basis, from any Excise Tax\nor income tax, including interest or penalties with respect\nthereto, imposed with respect to such advance or with respect to\nany imputed income with respect to such advance; and further\nprovided that any extension of the statute of limitations relating\nto payment of taxes for the taxable year of the Executive with\nrespect to which such contested amount is claimed to be due is\n\n                            -14-\n\n\n\n\nlimited solely to such contested amount.  Furthermore, the\nCompany's control of the contest shall be limited to issues with\nrespect to which a Gross-Up Payment would be payable hereunder and\nthe Executive shall be entitled to settle or contest, as the case\nmay be, any other issue raised by the Internal Revenue Service or\nany other taxing authority.\n\n               (d)  If, after the receipt by the Executive of an\namount advanced by the Company pursuant to Section 9(c), the\nExecutive becomes entitled to receive any refund with respect to\nsuch claim, the Executive shall (subject to the Company's complying\nwith the requirements of Section 9(c)) promptly pay to the Company\nthe amount of such refund (together with any interest paid or\ncredited thereon after taxes applicable thereto).  If, after the\nreceipt by the Executive of an amount advanced by the Company\npursuant to Section 9(c), a determination is made that the\nExecutive shall not be entitled to any refund with respect to such\nclaim and the Company does not notify the Executive in writing of\nits intent to contest such denial of refund prior to the expiration\nof thirty days after such determination, then such advance shall be\nforgiven and shall not be required to be repaid and the amount of\nsuch advance shall offset, to the extent thereof, the amount of\nGross-Up Payment required to be paid.\n\n          10.  CONFIDENTIAL INFORMATION.  The Executive shall hold\nin a fiduciary capacity for the benefit of the Company all secret\nor confidential information, knowledge or data relating to the\nCompany or any of its subsidiaries, and their respective\nbusinesses, which shall have been obtained by the Executive during\nthe Executive's employment by the Company or any of its\nsubsidiaries and which shall not be or become public knowledge\n(other than by acts by the Executive or his representatives in\nviolation of this Agreement).  After termination of the Executive's\nemployment with the Company, the Executive shall not, without the\nprior written consent of the Company, communicate or divulge any\nsuch information, knowledge or data to anyone other than the\nCompany and those designated by it.  In no event shall an asserted\nviolation of the provisions of this Section 10 constitute a basis\nfor deferring or withholding any amounts otherwise payable to the\nExecutive under this Agreement.\n\n          11.  TERMINATION OF SEVERANCE AGREEMENT.  The Executive\nand the Company are Parties to a Severance Agreement (the\n'Severance Agreement').  Effective as of the date of execution and\ndelivery of this Agreement, the Severance Agreement shall be\nterminated and of no further force and effect.\n\n          12.  SUCCESSORS.\n\n               (a)  This Agreement is personal to the Executive and\nwithout the prior written consent of the Company shall not be\nassignable by the Executive otherwise than by will or the laws of\n\n                               -15-\n\n\n\ndescent and distribution.  This Agreement shall inure to the\nbenefit of and be enforceable by the Executive's legal\nrepresentatives.\n\n               (b)  This Agreement shall inure to the benefit of\nand be binding upon the Company and its successors and assigns.\n\n               (c)  The Company will require any successor (whether\ndirect or indirect, by purchase, merger, consolidation or\notherwise) to all or substantially all of the business and\/or\nassets of the Company to assume expressly and agree to perform this\nAgreement in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had\ntaken place.  As used in this Agreement, 'Company' shall mean the\nCompany as hereinbefore defined and any successor to its business\nand\/or assets which assumes and agrees to perform this Agreement by\noperation of law, or otherwise.\n\n          13.  INDEMNIFICATION AND INSURANCE.  The Executive shall\nbe indemnified and held harmless by the Company during the term of\nthis Agreement and following any termination of this Agreement for\nany reason whatsoever in the same manner as would any other key\nmanagement associate of the Company with respect to acts or\nomissions occurring prior to (a) the termination of this Agreement\nor (b) the termination of employment of the Executive.  In\naddition, during the term of this Agreement and for a period of\nfive years following the termination of this Agreement for any\nreason whatsoever, the Executive shall be covered by a Company held\nDirectors and Officers liability insurance policy covering acts or\nomissions occurring prior to (a) the termination of this Agreement\nor (b) the termination of employment of the Executive.  Provided,\nin no event will the obligation of the Company to indemnify the\nExecutive or provide Directors and Officers insurance to the\nExecutive under this Section 13 be less than the obligation and\ninsurance coverage which the Company had to the Executive\nimmediately prior to the occurrence of a Change of Control.\n\n          14.  MISCELLANEOUS.\n\n               (a)  This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of Oklahoma,\nwithout reference to principles of conflict of laws.  The captions\nof this Agreement are not part of the provisions hereof and shall\nhave no force or effect.  This Agreement may not be amended or\nmodified otherwise than by a written agreement executed by the\nparties hereto or their respective successors and legal\nrepresentatives.\n\n               (b)  All notices and other communications hereunder\nshall be in writing and shall be given by hand delivery to the\nother party or by registered or certified mail, return receipt\nrequested, postage prepaid, addressed as follows:\n\n                               -16-\n\n\n\n\nIF TO THE EXECUTIVE:\n\n                    At his last known address evidenced on the\n                    Company's payroll records\n\nIF TO THE COMPANY:  Fleming Companies, Inc.\n                    6301 Waterford Boulevard\n                    P. O. Box 26647\n                    Oklahoma City, Oklahoma 73126-0647\n\n                    Attention:  Mr. Robert E. Stauth, Chairman,\n                         President and Chief Executive Officer\n\nWITH A COPY TO:     David R. Almond, Esq., Senior Vice President\n                    and General Counsel\n                    Fleming Companies, Inc.\n                    6301 Waterford Boulevard\n                    P. O. Box 26647\n                    Oklahoma City, Oklahoma 73126-0647\n\nWITH A COPY TO:     McAfee &amp; Taft A Professional Corporation\n                    10th Floor, Two Leadership Square\n                    Oklahoma City, Oklahoma  73102\n\n                    Attention:  John M. Mee, Esq.\n\nor to such other address as either party shall have furnished to\nthe other in writing in accordance herewith.  Notice and\ncommunications shall be effective when actually received by the\naddressee.\n\n               (c)  The invalidity or unenforceability of any\nprovision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement.\n\n               (d)  The Company may withhold from any amounts\npayable under this Agreement such federal, state or local taxes as\nshall be required to be withheld pursuant to any applicable law or\nregulation.\n\n               (e)  The Executive's failure to insist upon strict\ncompliance with any provision hereof shall not be deemed to be a\nwaiver of such provision or any other provision thereof.\n\n               (f)  This Agreement contains the entire\nunderstanding of the Company and the Executive with respect to the\nsubject matter hereof.\n\n               (g)  The Executive and the Company acknowledge that\nthe employment of the Executive by the Company is 'at will,' and,\nprior to the Effective Date, may be terminated by either the\nExecutive or the Company at any time.  Upon a termination of the\nExecutive's employment or upon the Executive's ceasing to be an\n\n                              -17-\n\n\n\nofficer of the Company, in each case, prior to the Effective Date,\nthere shall be no further rights under this Agreement.\n\n          15.  NO TRUST.  No action under this Agreement by the\nCompany or its Board of Directors shall be construed as creating a\ntrust, escrow or other secured or segregated fund, in favor of the\nExecutive or his beneficiary.  The status of the Executive and his\nbeneficiary with respect to any liabilities assumed by the Company\nhereunder shall be solely those of unsecured creditors of the\nCompany.  Any asset acquired or held by the Company in connection\nwith liabilities assumed by it hereunder, shall not be deemed to be\nheld under any trust, escrow or other secured or segregated fund\nfor the benefit of the Executive or his beneficiary or to be\nsecurity for the performance of the obligations of the Company, but\nshall be, and remain a general, unpledged, unrestricted asset of\nthe Company at all times subject to the claims of general creditors\nof the Company.\n\n          16.  NO ASSIGNABILITY.  Neither the Executive nor his\nbeneficiary, nor any other person shall acquire any right to or\ninterest in any payments payable under this Agreement, otherwise\nthan by actual payment in accordance with the provisions of this\nAgreement, or have any power to transfer, assign, anticipate,\npledge, mortgage or otherwise encumber, alienate or transfer any\nrights hereunder in advance of any of the payments to be made\npursuant to this Agreement or any portion thereof which is\nexpressly declared to be nonassignable and nontransferable.  No\nright or benefit hereunder shall in any manner be liable for or\nsubject to the debts, contracts, liabilities, or torts of the\nperson entitled to such benefit.\n\n          IN WITNESS WHEREOF, the Executive has hereunto set his\nhand and, pursuant to the authorization from its Board of\nDirectors, the Company has caused these presents to be executed in\nits name on its behalf, all as of the day and year first above\nwritten.\n\n\n\n                                ----------------------------------------\n                                           2\n\n                                         'EXECUTIVE'\n\n                                 -18-\n\n\n\n                                FLEMING COMPANIES, INC., an\n                                Oklahoma corporation\n\n\n\n                                By\n                                   ---------------------------------------\n                                   Robert E. Stauth, Chairman,\n                                   President and Chief Executive\n                                   Officer\n\n                                          'COMPANY'\n\n\n\n\n\n                                -19-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7547],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9551],"class_list":["post-38614","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleming-companies-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38614","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38614"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38614"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38614"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38614"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}