{"id":38626,"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-employment-agreement-fleming-companies-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-employment-agreement-fleming-companies-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-employment-agreement-fleming-companies-inc.html","title":{"rendered":"Change of Control Employment Agreement &#8211; Fleming Companies Inc."},"content":{"rendered":"<pre>\n                       CHANGE OF CONTROL\n                      EMPLOYMENT AGREEMENT\n\n\n          THIS CHANGE OF CONTROL EMPLOYMENT AGREEMENT (the\n'Agreement') entered into between FLEMING COMPANIES, INC., an\nOklahoma corporation (the 'Company'), and __________________, an\nindividual (the 'Executive'), dated as of the ____ day of\n_______, 1999.\n\n          The Board of Directors of the Company (the 'Board'),\nhas determined that it is in the best interests of the Company\nand its shareholders to assure that the Company will have the\ncontinued dedication of the Executive, notwithstanding the\npossibility, threat, or occurrence of a 'Change of Control' (as\ndefined in Section 2 of this Agreement) of the Company.  The\nBoard believes it is important to diminish the inevitable\ndistraction of the Executive by virtue of the personal\nuncertainties and risks created by a pending or threatened Change\nof Control, and to encourage the Executive's full attention and\ndedication to the affairs of the Company during the term of this\nAgreement and upon the occurrence of such event.  The Board also\nbelieves the Company is best served by  providing the Executive\nwith compensation arrangements upon a Change of Control which\nprovide the Executive with individual financial security and\nwhich are competitive with those of other corporations.  In order\nto accomplish these objectives, the Board has caused the Company\nto 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\nbelow) occurs.  Anything in this Agreement to the contrary\nnotwithstanding, if the Executive's employment with the Company\nis terminated prior to the date on which a Change of Control\noccurs, and it is reasonably demonstrated that such termination\n(i) was at the request of a third party who has taken steps\nreasonably calculated to effect a Change of Control or (ii)\notherwise arose in connection with or anticipation of a Change of\nControl, then for all purposes of this Agreement the 'Effective\nDate' shall mean the date immediately prior to the date of such\ntermination.\n\n               (b)  Subject to the provisions of Section 11 of\nthis Agreement, the 'Change of Control Period' is the period\ncommencing on the date hereof and ending on the earlier to occur\nof (i) the third anniversary of such date or (ii) the first day\nof the month next following the Executive's attainment of age 65\n('Normal Retirement Date'); provided, however, that commencing on\nthe date one year after the date hereof, and on each annual\nanniversary of such date (such date and each annual anniversary\nthereof is hereinafter referred to as the 'Renewal  Date'), the\nChange of Control Period shall be automatically extended so as to\nterminate on the earlier of (i) three years from such Renewal\nDate or (ii) the first day of the month coinciding with or next\nfollowing the Executive's Normal Retirement Date, unless at least\n60 days prior to the Renewal Date, the Company shall give notice\nthat the Change of Control Period shall not be so extended in\nwhich event this Agreement shall continue for the remainder of\nits then current term and 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 group\n(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\nshares of common stock of the Company (the 'Outstanding Company\nCommon Stock') or (ii) the combined voting power of the then\noutstanding voting securities of the Company entitled to vote\ngenerally in the election of directors (the 'Outstanding Company\nVoting Securities'); provided, however, in the event the\n'Incumbent Board' (as such term is hereinafter defined) pursuant\nto authority granted in any rights agreement to which the Company\nis a party (the 'Rights Agreement') lowers the acquisition\nthreshold percentages set forth in such Rights Agreement, the\nTriggering Percentage shall be automatically reduced to equal the\nthreshold percentages set pursuant to authority granted to the\nboard in 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, or (iv) any\nacquisition by any corporation pursuant to a transaction which\ncomplies with clauses (x), (y), and (z) of subsection (iii) of\nthis Section 2; or\n\n          (ii) Individuals who, as of the date hereof, constitute\nthe Board (the 'Incumbent Board') cease for any reason to\nconstitute 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\nshall be considered as though such individual were a member of\nthe Incumbent Board, but excluding, for purposes of this\ndefinition, any such individual whose initial assumption of\noffice occurs as a result of an actual or threatened election\ncontest with respect to the election or removal of directors or\nother actual or threatened solicitation of proxies or consents by\nor on behalf of a Person other than the Board; or\n\n          (iii)  Approval by the shareholders of the Company of a\nreorganization, share exchange, merger or consolidation or\nacquisition of assets of another corporation (a 'Business\nCombination'), in each case, unless, following such Business\nCombination, (x) all or substantially all of the individuals and\nentities who were the beneficial owners, respectively, of the\nOutstanding Company Common Stock and Outstanding Company Voting\nSecurities immediately prior to such Business Combination will\nbeneficially own, directly or indirectly, more than 50% of,\nrespectively, the then outstanding shares of common stock and the\ncombined voting power of the then outstanding voting securities\nentitled to vote generally in the election of directors, as the\ncase may be, of the corporation resulting from such Business\nCombination (including, without limitation, a corporation which\nas a result of such transaction will own the Company through one\nor more subsidiaries) in substantially the same proportions as\ntheir ownership, immediately prior to such Business Combination\nof the Outstanding Company Common Stock and Outstanding Company\nVoting Securities, as the case may be, (y) no Person (excluding\nany employee benefit plan (or related trust) of the Company or\nsuch corporation resulting from such Business Combination) will\nbeneficially own, directly or indirectly, 20% or more of,\nrespectively, the then outstanding shares of common stock of the\ncorporation resulting from such Business Combination or the\ncombined voting power of the then outstanding voting securities\nof such corporation except to the extent that such ownership\nexisted prior to the Business Combination, and (z) at least a\nmajority of the members of the board of directors of the\ncorporation resulting from such Business Combination will have\nbeen members of the Incumbent Board at the time of the execution\nof the initial agreement, or of the action of the Board,\nproviding for such Business Combination; or\n\n          (iv) Approval by the shareholders of the Company of (x)\na complete liquidation or dissolution of the Company or, (y) the\nsale or other disposition of all or substantially all of the\nassets of the Company, other than to a corporation, with respect\nto which following such sale or other disposition, (A) more than\n50% of, respectively, the then outstanding shares of common stock\nof such corporation and the combined voting power of the then\noutstanding voting securities of such corporation entitled to\nvote generally in the election of directors will be beneficially\nowned, directly 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\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)\nless than 20% of, respectively, the then outstanding shares of\ncommon stock of such corporation and the combined voting power of\nthe then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors will be\nbeneficially owned, directly or indirectly, by any Person\n(excluding any employee benefit plan (or related trust) of the\nCompany or such corporation), except to the extent that such\nPerson owned 20% or more of the Outstanding Company Common Stock\nor Outstanding Company Voting Securities prior to the sale or\ndisposition, and (C) at least a majority of the members of the\nboard of directors of such corporation will have been members of\nthe Incumbent Board at the time of the execution of the initial\nagreement, or of the action of the Board, providing for such sale\nor other disposition of assets of the Company.\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\noccur of (a) the third anniversary of such date or (b) the first\nday of the month coinciding with or next following the\nExecutive's Normal Retirement 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\nof those held, exercised and assigned at any time during the 90-\nday period 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\nor any 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\nand affairs of the Company and, to the extent necessary to\ndischarge the responsibilities assigned to the Executive\nhereunder, to use the Executive's reasonable best efforts to\nperform faithfully and efficiently such responsibilities.  During\nthe Employment Period it shall not be a violation of this\nAgreement for the Executive to (A) serve on corporate, civic or\ncharitable boards or committees, (B) deliver lectures, fulfill\nspeaking engagements or teach at educational institutions and (C)\nmanage personal investments, so long as such activities do not\nsignificantly interfere with the performance of the Executive's\nresponsibilities as an associate of the Company in accordance\nwith this Agreement.  It is expressly understood and agreed that\nto the extent that any such activities have been conducted by the\nExecutive prior to the Effective Date, the continued conduct of\nsuch activities (or the conduct of activities similar in nature\nand scope thereto) subsequent to the Effective Date shall not\nthereafter be deemed to interfere with the performance of the\nExecutive'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\nhighest average annual base salary.  Such Base Salary shall be\npayable monthly in cash.  Base Salary shall be computed prior to\nany reductions for (i) any deferrals of compensation made\npursuant to Sections 125 or 401(c) of the Code and (ii) any\nwithholding, income or employment taxes.  During the Employment\nPeriod, the Base Salary shall be reviewed at least annually and\nshall be increased at any time and from time to time as shall be\nsubstantially consistent with increases in base salary awarded in\nthe ordinary course of business to other key management\nassociates of the Company and its subsidiaries.  Any increase in\nBase Salary shall not serve to limit or reduce any other\nobligation to the Executive under this Agreement.  Base Salary\nshall not be reduced after any such increase.\n\n                   (ii)  Annual Bonus.  In addition to Base\nSalary, the Executive shall be paid, for each fiscal year during\nthe Employment Period, an annual bonus in cash at least equal to\nthe greater of (x) the middle target level bonus payable,\nregardless of whether any specified targets are met, under the\nCompany's incentive compensation plan applicable to the Executive\nfor the Executive's position, on the Effective Date (provided,\nhowever, if no middle target level has been set as of the\nEffective Date, the middle target level set for the fiscal year\nimmediately preceding the Effective date shall be utilized, and\n(y) the maximum aggregate bonus paid (under the Company's\nincentive compensation plan applicable to the Executive or\notherwise) during any of the five fiscal years immediately\npreceding the fiscal year in which the Effective Date occurs.\nThe greater of the amounts described in clauses (x) and (y) of\nthis Section 4(b)(ii) shall hereafter be called the 'Annual\nBonus.'\n\n                  (iii)  Incentive, Savings and Retirement Plans.\nIn addition to Base Salary and Annual Bonus, the Executive shall\nbe entitled 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\neach case providing benefits which are the economic equivalent to\nthose in 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\nand reward opportunities provided by the Company for the\nExecutive under such plans, practices, policies and programs as\nin effect at any time during the 90-day period immediately\npreceding the Effective Date or, if more favorable to the\nExecutive, as provided at any time thereafter with respect to\nother key management associates of the Company and its\nsubsidiaries.\n\n                   (iv)  Welfare Benefit Plans.  During the\nEmployment Period, the Executive and\/or the Executive's family,\nas the case may be, shall be eligible for participation in and\nshall receive all benefits under welfare benefit plans,\npractices, policies and programs provided by the Company and its\nsubsidiaries (including, without limitation, medical,\nprescription, dental, disability, salary continuance, employee\nlife, group life, accidental death and travel accident insurance\nplans and programs), at least as favorable as the most favorable\nof such plans, practices, policies and programs in effect at any\ntime during the 90-day period immediately preceding the Effective\nDate or, if more favorable to the Executive and\/or the\nExecutive's family, as in effect at any time thereafter with\nrespect to other key management associates of the Company and its\nsubsidiaries.\n\n                    (v)  Expenses.  During the Employment Period,\nthe Executive shall be entitled to receive prompt reimbursement\nfor all reasonable expenses incurred by the Executive in\naccordance with the most favorable policies, practices and\nprocedures of the Company and its subsidiaries in effect at any\ntime during the 90-day period immediately preceding the Effective\nDate or, if more favorable to the Executive, as in effect at any\ntime thereafter with respect to other key management associates\nof the Company and its 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,\nin accordance with the most favorable plans, practices, programs\nand policies of the Company and its subsidiaries in effect at any\ntime during the 90-day period immediately preceding the Effective\nDate or, if more favorable to the Executive, as in effect at any\ntime thereafter with respect to other key management associates\nof the Company and its subsidiaries.\n\n                  (vii)  Office and Support Staff.  During the\nEmployment Period, the Executive shall be entitled to an office\nor offices of a size and with furnishings and other appointments,\nand to secretarial and other assistance, at least equal to the\nmost favorable of the foregoing provided to the Executive by the\nCompany and 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\nwith the most favorable plans, policies, programs and practices\nof the Company and its subsidiaries as 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                   (ix)  Effect of Increases.  Any increase in\nBase Salary, Annual Bonus or any other benefit or perquisite\ndescribed in the foregoing Sections (i)-(viii) shall in no way\ndiminish any obligation 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\nCompany determines in good faith that the Disability of the\nExecutive has occurred (pursuant to the definition of\n'Disability' set forth below), it may give to the Executive\nwritten notice of its intention to terminate the Executive's\nemployment.  In such event, the Executive's employment with the\nCompany shall terminate effective on the 30th day after the date\nof such notice (the 'Disability Effective Date'), provided that,\nwithin such time period, the Executive shall not have returned to\nfull-time performance of the Executive's duties.  For purposes of\nthis Agreement, '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\nthe Company or its insurers and acceptable to the Executive or\nthe Executive'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\nCompany for Cause shall mean termination for one of the following\nreasons: (i) the conviction of the Executive of a felony by a\nfederal or state court of competent jurisdiction; (ii) an act or\nacts of dishonesty taken by the Executive and intended to result\nin substantial personal enrichment of the Executive at the\nexpense of the Company; or (iii) the Executive's 'willful'\nfailure to follow a direct, reasonable and lawful written order\nfrom his supervisor, within the reasonable scope of the\nExecutive's duties, which failure is not cured within 30 days.\nFurther, for purposes of this Section (b):\n\n                    (1)  No act or failure to act, on the\nExecutive's part shall be deemed 'willful' unless done, or\nomitted to be done, by the Executive not in good faith and\nwithout reasonable belief that the Executive's action or omission\nwas in the best interest of the Company.\n\n                    (2)  The Executive shall not be deemed to\nhave been terminated for Cause unless and until there shall have\nbeen delivered to the Executive a copy of a resolution duly\nadopted by the affirmative vote of not less than three-fourths\n(3\/4ths) of the entire membership of the Board at a meeting of\nthe Board called and held for such purpose (after reasonable\nnotice to the Executive and an opportunity for the Executive,\ntogether with the Executive's counsel, to be heard before the\nBoard), finding that in the good faith opinion of the Board the\nExecutive was guilty of conduct set forth in clauses (i), (ii) or\n(iii) above and specifying the particulars thereof in detail.\n\n               (c)  Good Reason.  The Executive's employment may\nbe terminated by the Executive for Good Reason.  For purposes of\nthis Agreement, '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,\nauthority, duties or responsibilities, excluding for this purpose\nan isolated, insubstantial and inadvertent action not taken in\nbad faith and which is remedied by the Company promptly after\nreceipt of notice thereof given by the Executive;\n\n                   (ii)  any failure by the Company to comply\nwith any of the provisions of Section 4(b) of this Agreement,\nother than an isolated, insubstantial and inadvertent failure not\noccurring in bad faith and which is remedied by the Company\npromptly after receipt 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                   (iv)  any purported termination by the Company\nof the Executive's employment otherwise than as expressly\npermitted by this Agreement; or\n\n                    (v)  any failure by the Company to comply\nwith and 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\nthe Company for Cause or by the Executive for Good Reason shall\nbe communicated by Notice of Termination to the other party\nhereto given in accordance with Section 14(b) of this Agreement.\nFor purposes 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\na basis 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\nhis rights 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\nDate of Termination shall be the date of death of the Executive\nor the Disability 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\nshall terminate without further obligations to the Executive's\nlegal representatives under this Agreement, other than those\nobligations accrued or earned and vested (if applicable) by the\nExecutive as of the Date of Termination, including, for this\npurpose (i) the  Executive's annual full Base Salary through the\nDate of Termination at the rate in effect on the Date of\nTermination or, if higher, at the highest annual rate in effect\nat any time from the thirty-six month period preceding the\nEffective Date through the Date of Termination (the 'Highest Base\nSalary'), (ii) the product of the Annual Bonus (defined in\nSection 4(b)(ii)) paid to the Executive for the last full fiscal\nyear and a fraction, the numerator of which is the number of days\nin the current fiscal year through the Date of Termination, and\nthe denominator of which is 365 and (iii) any compensation\npreviously deferred by the Executive (together with any accrued\ninterest thereon) and not yet paid by the Company and any accrued\nvacation pay not yet paid by the Company (such amounts specified\nin clauses (i), (ii) and (iii) are hereinafter referred to as\n'Accrued Obligations').  All such Accrued Obligations shall be\npaid to the Executive's estate or beneficiary, as applicable, in\na lump sum in cash within 30 days of the Date of Termination.\nAnything in this Agreement to the contrary notwithstanding, the\nExecutive's family shall be entitled to receive benefits at least\nequal to the most favorable benefits provided by the Company and\nany of its subsidiaries to surviving families of other key\nmanagement associates of the Company and such subsidiaries under\nsuch plans, programs, practices and policies relating to family\ndeath benefits, if any, in accordance with the most favorable\nplans, programs, practices and policies of the Company and its\nsubsidiaries in effect at any time during the 90-day period\nimmediately preceding the Effective Date or, if more favorable to\nthe Executive and\/or the Executive's family, as in effect on the\ndate of the Executive's death with respect to other key\nmanagement 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\nAgreement shall terminate without further obligations to the\nExecutive, other than those obligations accrued or earned and\nvested (if applicable) by the Executive as of the Date of\nTermination, including for this purpose, all Accrued Obligations.\nAll such Accrued Obligations shall be paid to the Executive in a\nlump sum in cash within 30 days of the Date of Termination.\nAnything in this Agreement to the contrary notwithstanding, the\nExecutive shall be entitled after the Disability Effective Date\nto receive disability and other benefits at least equal to the\nmost favorable of those provided by the Company and its\nsubsidiaries to disabled key management associates and\/or their\nfamilies in accordance with such plans, programs, practices and\npolicies relating to disability, 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 at any time thereafter with respect to other key\nmanagement associates of the Company and its subsidiaries and\ntheir families.\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\namount of any compensation previously deferred by the Executive\n(together with accrued interest thereon).  If the Executive\nterminates employment other than for Good Reason, this Agreement\nshall terminate without further obligations to the Executive,\nother than those obligations accrued or earned and vested (if\napplicable) by the Executive through the Date of Termination,\nincluding for this purpose, all Accrued Obligations.  All such\nAccrued Obligations shall be paid to the Executive in a lump sum\nin cash within 30 days of the Date of Termination.\n\n               (d)  Good Reason; Termination Other Than for Cause\nor Disability.  If, during the Employment Period, the Company\nshall terminate 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\nin a lump sum in cash within 30 days after the Date of\nTermination the aggregate 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\nor, if higher, an amount equal to the middle target level bonus\npayable, regardless of whether specified targets are met, under\nthe Company's incentive compensation plan applicable to the\nExecutive for his position on the Date of Termination (as\napplicable, the 'Highest Bonus') and (ii) a fraction, the\nnumerator of which is the number of days in the current fiscal\nyear through the Date of Termination and the denominator of which\nis 365; and\n\n                         C.   the product obtained by multiplying\n2.99 times the sum of (i) the Highest Base Salary and (ii) the\nHighest 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\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,\nin accordance with the most favorable plans, practices, programs\nor policies 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\nfamilies and for purposes of eligibility for retiree benefits\npursuant to such plans, practices, programs and policies, the\nExecutive shall be considered to have remained employed until the\nend of the Employment Period and to have retired on the last day\nof such period.\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\nor any of its subsidiaries and for which the Executive may\nqualify, nor shall anything herein limit or otherwise affect such\nrights as the Executive may have under any stock option or other\nagreements with the Company or any of its subsidiaries.  Amounts\nwhich are vested benefits or which the Executive is otherwise\nentitled to receive under any plan, policy, practice or program\nof the Company or any of its subsidiaries at or subsequent to the\nDate of Termination shall be payable in accordance with such\nplan, policy, practice 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\nset-off, counterclaim, recoupment, defense or other claim, right\nor action which the Company may have against the Executive or\nothers.  In no event shall the Executive be obligated to seek\nother employment or take any other action by way of mitigation of\nthe amounts payable to the Executive under any of the provisions\nof this 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\nthe outcome 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\ncase interest at the applicable Federal rate provided for in\nSection 7872(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\npayment or distribution by the Company to or for the benefit of\nthe Executive, whether paid or payable or distributed or\ndistributable pursuant to the terms of this Agreement or\notherwise, including, by example and not by way of limitation,\nacceleration by the Company of the date of vesting or payment or\nrate of payment under any plan, program or arrangement of the\nCompany (a 'Payment'), would be subject to the excise tax imposed\nby Section 4999 of the Internal Revenue Code of 1986, as amended\n(the  'Code') or any interest or penalties with respect to such\nexcise tax (such excise tax, together with any such interest and\npenalties, are hereinafter collectively referred to as the\n'Excise Tax'), then the Executive shall be entitled to receive an\nadditional payment (a 'Gross-Up Payment') in an amount such that\nafter payment by the Executive of all taxes (including any\ninterest or penalties imposed with respect to such taxes),\nincluding any Excise Tax, imposed upon the Gross-Up Payment, the\nExecutive retains an amount of the Gross-Up Payment equal to the\nExcise Tax imposed upon the Payments.\n\n               (b)  Subject to the provisions of Section 9(c),\nall determinations required to be made under this Section 9,\nincluding whether a Gross-Up Payment is required and the amount\nof such Gross-Up Payment, shall be made by Deloitte &amp; Touche LLP\n(the '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\nTax, or such earlier time as is requested by the Company.  The\ninitial Gross-Up Payment, if any, as determined pursuant to this\nSection 9(b), shall be paid to the Executive within five days of\nthe receipt of the Accounting Firm's determination.  If the\nAccounting Firm determines that no Excise Tax is payable by the\nExecutive, it shall furnish the Executive with an opinion that he\nhas substantial authority not to report any Excise Tax on his\nfederal income tax return.  Any determination by the Accounting\nFirm shall be binding upon the Company and the Executive.  As a\nresult of the uncertainty in the application of Section 4999 of\nthe Code at the time of the initial determination by the\nAccounting Firm hereunder, it is possible that Gross-Up Payments\nwhich will not have been made by the Company should have been\nmade ('Underpayment'), consistent with the calculations required\nto be made hereunder.  In the event that the Company exhausts its\nremedies pursuant to Section 9(c) and the Executive thereafter is\nrequired to make a payment of any Excise Tax, the Accounting Firm\nshall determine the amount of the Underpayment that has occurred\nand any such Underpayment shall be promptly paid by the Company\nto or for the benefit of the Executive.\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\nExecutive knows of such claim and shall apprise the Company of\nthe nature of such claim and the date on which such claim is\nrequested to be paid.  The Executive shall not pay such claim\nprior to the expiration of the 30-day period following the date\non which he gives such notice to the Company (or such shorter\nperiod ending on the date that any payment of taxes with respect\nto such claim is due).  If the Company notifies the Executive in\nwriting prior to the expiration of such period that it desires to\ncontest such claim, 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,\naccepting legal representation with respect to such claim by an\nattorney reasonably 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\nall costs and expenses (including additional interest and\npenalties) incurred in connection with such contest and shall\nindemnify and hold the Executive harmless, on an after-tax basis,\nfor any Excise Tax or income tax, including interest and\npenalties with respect thereto, imposed as a result of such\nrepresentation and payment of costs and expenses.  Without\nlimitation on the foregoing provisions of this Section 9(c), the\nCompany shall control all proceedings taken in connection with\nsuch contest and, at its sole option, may pursue or forgo any and\nall administrative appeals, proceedings, hearings and conferences\nwith the taxing authority in respect of such claim and may, at\nits sole option, either direct the Executive to pay the tax\nclaimed and sue for a refund or contest the claim in any\npermissible 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\nif the Company directs the Executive to pay such claim and sue\nfor a refund, the Company shall advance the amount of such\npayment to the Executive, on an interest-free basis and shall\nindemnify and hold the Executive harmless, on an after-tax basis,\nfrom any Excise Tax or income tax, including interest or\npenalties with respect thereto, imposed with respect to such\nadvance or with respect to any imputed income with respect to\nsuch advance; and further provided that any extension of the\nstatute of limitations relating to payment of taxes for the\ntaxable year of the Executive with respect to which such\ncontested amount is claimed to be due is limited solely to such\ncontested amount.  Furthermore, the Company's control of the\ncontest shall be limited to issues with respect to which a Gross-\nUp Payment would be payable hereunder and the Executive shall be\nentitled to settle or contest, as the case may be, any other\nissue raised by the Internal Revenue Service or any other taxing\nauthority.\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\ncomplying with the requirements of Section 9(c)) promptly pay to\nthe Company the amount of such refund (together with any interest\npaid or credited thereon after taxes applicable thereto).  If,\nafter the receipt by the Executive of an amount advanced by the\nCompany pursuant to Section 9(c), a determination is made that\nthe Executive shall not be entitled to any refund with respect to\nsuch claim and the Company does not notify the Executive in\nwriting of its intent to contest such denial of refund prior to\nthe expiration of thirty days after such determination, then such\nadvance shall be forgiven and shall not be required to be repaid\nand the amount of such advance shall offset, to the extent\nthereof, the amount of Gross-Up Payment required to be paid.\n\n          10.  Confidential Information.  The Executive shall\nhold in a fiduciary capacity for the benefit of the Company all\nsecret or confidential information, knowledge or data relating to\nthe Company or any of its subsidiaries, and their respective\nbusinesses, which shall have been obtained by the Executive\nduring the 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\nExecutive's employment with the Company, the Executive shall not,\nwithout the prior written consent of the Company, communicate or\ndivulge any such information, knowledge or data to anyone other\nthan the Company and those designated by it.  In no event shall\nan asserted violation of the provisions of this Section 10\nconstitute a basis for deferring or withholding any amounts\notherwise payable to the Executive under this Agreement.\n\n          11.  Termination of Employment Agreement.  The\nExecutive and the Company are parties to that certain Employment\nAgreement dated as of __________, 1999 (the 'Employment\nAgreement').  Effective as of the Effective Date of this\nAgreement, the Employment Agreement shall be terminated and of no\nfurther force and effect.  In the event the Effective Date is\nprior to _______ __, 2001, the term of this Agreement shall be\nextended by the number of days between the Effective Date and\n__________, 2001.\n\n          12.  Successors.\n\n               (a)  This Agreement is personal to the Executive\nand without the prior written consent of the Company shall not be\nassignable by the Executive otherwise than by will or the laws of\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\n(whether direct or indirect, by purchase, merger, consolidation\nor otherwise) to all or substantially all of the business and\/or\nassets of the Company to assume expressly and agree to perform\nthis Agreement 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\nby operation of law, or otherwise.\n\n          13.  Indemnification and Insurance.  The Executive\nshall be indemnified and held harmless by the Company during the\nterm of this Agreement and following any termination of this\nAgreement for any reason whatsoever in the same manner as would\nany other key management associate of the Company with respect to\nacts or omissions occurring prior to (a) the termination of this\nAgreement or (b) the termination of employment of the Executive.\nIn addition, during the term of this Agreement and for a period\nof five years following the termination of this Agreement for any\nreason whatsoever, the Executive shall be covered by a Company\nheld Directors and Officers liability insurance policy covering\nacts or omissions occurring prior to (a) the termination of this\nAgreement or (b) the termination of employment of the Executive.\nProvided, in no event will the obligation of the Company to\nindemnify the Executive or provide Directors and Officers\ninsurance to the Executive under this Section 13 be less than the\nobligation and insurance coverage which the Company had to the\nExecutive immediately prior to the occurrence of a Change of\nControl.\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\ncaptions of this Agreement are not part of the provisions hereof\nand shall have no force or effect.  This Agreement may not be\namended or modified otherwise than by a written agreement\nexecuted by the parties hereto or their respective successors and\nlegal representatives.\n\n               (b)  All notices and other communications\nhereunder shall be in writing and shall be given by hand delivery\nto the other party or by registered or certified mail, return\nreceipt requested, postage prepaid, addressed as follows:\n\nIf to the Executive:\n\n                    At his last known address evidenced\n                    on the 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:  General Counsel\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\nas shall be required to be withheld pursuant to any applicable\nlaw or regulation.\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\nthe subject matter hereof.\n\n               (g)  The Executive and the Company acknowledge\nthat the employment of the Executive by the Company is 'at will,'\nand, prior 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\nofficer of the Company, in each case, prior to the Effective\nDate, there 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\na trust, escrow or other secured or segregated fund, in favor of\nthe Executive or his beneficiary.  The status of the Executive\nand his beneficiary with respect to any liabilities assumed by\nthe Company hereunder shall be solely those of unsecured\ncreditors of the Company.  Any asset acquired or held by the\nCompany in connection with liabilities assumed by it hereunder,\nshall not be deemed to be held under any trust, escrow or other\nsecured or segregated fund for the benefit of the Executive or\nhis beneficiary or to be security for the performance of the\nobligations of the Company, but shall be, and remain a general,\nunpledged, unrestricted asset of the Company at all times subject\nto the claims of general creditors of 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\nin its name on its behalf, all as of the day and year first above\nwritten.\n\n                                   _______________________________\n\n                                       'EXECUTIVE'\n\n                                   FLEMING  COMPANIES,  INC.,  an\n                                   Oklahoma corporation\n\n                                   By\n                                      Scott M. Northcutt, Senior Vice\n                                      President - Human Resources\n\n\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-38626","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\/38626","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=38626"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38626"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38626"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38626"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}