{"id":38676,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/consulting-agreement-fleming-companies-inc-malone-amp-amp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"consulting-agreement-fleming-companies-inc-malone-amp-amp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/consulting-agreement-fleming-companies-inc-malone-amp-amp.html","title":{"rendered":"Consulting Agreement &#8211; Fleming Companies Inc., Malone &#038; Hyde Inc. and Robert F. Harris"},"content":{"rendered":"<pre>                                    AGREEMENT\n                                    ---------\n\n\n     THIS AGREEMENT (the 'Agreement') is entered into by and among FLEMING\nCOMPANIES, INC. ('Fleming'), MALONE &amp; HYDE, INC. ('Malone &amp; Hyde' and collec-\ntively with Fleming the 'Companies') and ROBERT F. HARRIS (the 'Consultant'),\nthis ___ day of __________, 1993.\n\n     In consideration of the mutual covenants set forth and for valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged,\nConsultant and the Companies agree as follows:\n\n                                    ARTICLE I\n\n                              AGREEMENT AND RELEASE\n                              ---------------------\n\n     1.1  AGREEMENT AND COBRA.  The Companies and the Consultant have reached a\nmutual understanding with respect to Consultant's retirement from active\nemployment with the Companies.  Consultant's duties shall cease effective\nJanuary 22, 1994 (the 'Effective Date') at which time he shall assume the duties\nof a consultant as provided in Article II below.  Until the Effective Date\nConsultant shall receive his normal salary and benefits.  Upon the termination\nof Consultant's employment on the Effective Date, Consultant shall be offered\ncontinuation of health care coverage under the Consolidated Omnibus Budget\nReconciliation Act of 1984 ('COBRA').\n\n     1.2  OUTPLACEMENT SERVICES AND COOPERATION.  From January 22, 1994, through\nDecember 31, 1994 (the 'Consulting Period') the Companies shall provide\nConsultant with outplacement services at their expense.  Consultant shall\ncontinue to cooperate with the Companies during the Consulting Period and so\nlong thereafter as requested by the Companies on ongoing business matters and\nlitigation of the Companies, including specifically the LaGatta litigation\npending in federal court in Nashville and the Taylor litigation pending in state\ncourt in Shreveport, Louisiana.\n\n     1.3  AUTOMOBILE.  On January 22, 1994, or as soon thereafter as\npracticable, Malone &amp; Hyde will transfer to Consultant full ownership of and\nclear title to the Buick Park Avenue automobile now being used by Consultant\nwithout charge or cost to Consultant except for income or other taxes arising\nfrom the transfer, which will be Consultant's responsibility.  Thereafter, all\ncosts of ownership, operation, maintenance, and insurance of the car shall be\nthe responsibility of Consultant.  Title papers will be transferred to\nConsultant as soon as practicable.\n\n     1.4  1994 VACATION.  Consultant shall in 1994 take his vacation earned in\n1993 only after June 1, 1994, or in lieu thereof at Consultant's option,\nCompanies shall pay Consultant on June 1, 1994, for such vacation (the 'Vacation\nPay').\n\n                                      -87-\n\n\n\n     1.5  PENSION.  Beginning January 1, 1995, Consultant will receive (i) for\nhis lifetime only, a pension of $25,766 annually (ii) until Consultant is age\n62, a social security bridge for Consultant and his spouse of $17,544 annually.\nBeginning January 22, 1994, Consultant will receive  pre-medicare insurance\nuntil both Consultant and his spouse are eligible for medicare so long as\nConsultant does not elect COBRA coverage or become employed elsewhere.\n\n     1.6  RELEASE.  In consideration of the provisions of this Agreement,\nConsultant hereby releases the Companies, their subsidiaries, affiliates and\nrelated companies, and their employees, officers, directors, and agents from any\nliability, claim or cause of action arising out of or related to his employment\nwith, or the termination of his employment from, the Companies.\n\n     In agreeing to and signing this release, Consultant recognizes that he is\nwaiving any right he may have to file any lawsuits against the Companies, their\nsubsidiaries, affiliates and related companies, and their employees, officers,\ndirectors, and agents or to collect any financial or other award as the result\nof any claims made with any state or federal agencies, or to make any claims\nwhatsoever against the Companies, their subsidiaries, affiliates and related\ncompanies, and their employees, officers, directors, and agents, including any\nclaim Consultant has that he was discriminated against because of his race, sex,\nnational origin, physical disability, religion or age in violation of the Title\nVII of the Civil Rights Act, or the Age Discrimination in Employment Act\n(enforced by the Equal Employment Opportunity Commission) or the Fair Employment\nStatutes of Tennessee, Tenn. CA SECTION 4-21-101 et seq., CA SECTION 50-2-201 et\nseq. and CA SECTION 8-50-103 et seq. (enforced by the Tennessee Human Rights\nCommission and the Tennessee Commission for Human Development).\n\n     1.7  OLDER WORKERS BENEFIT PROTECTION ACT.  Consultant acknowledges that he\nhas been advised of his rights to seek the services of legal counsel and that\nthe Companies have encouraged him to do so.  Consultant further acknowledges\nthat he has up to twenty-one (21) days from the date of this Agreement and\nreceipt of the Companies' offer as set forth herein, or through December __,\n1993, to accept the offer.  If Consultant accepts the Companies' offer, such\nacceptance shall be manifested by his signing of this Agreement.  Consultant\nalso understands that he has seven (7) days from his signing of this Agreement\nwithin which to change his mind, after which this Agreement becomes final and\nbinding on all parties.\n\n     1.8  RESIGNATION.  As of the Effective Date, Consultant hereby resigns from\neach elected or appointed position he holds with Fleming, Malone &amp; Hyde, and\ntheir subsidiaries.\n\n                                   ARTICLE II\n\n                              CONSULTING ENGAGEMENT\n                              ---------------------\n\n     2.1  CONSULTING ENGAGEMENT.  The Companies hereby engage Consultant as a\nconsultant and advisor and Consultant agrees to accept such engagement for the\nConsulting Period upon the terms and conditions set forth herein.  During the\nConsulting Period, Consultant agrees to act to the best of his ability the\nservice of the Companies; provided, however, nothing contained herein shall\nprevent Consultant from engaging in other endeavors not in conflict with the\nbusiness of the Companies or their subsidiaries or his duties and\nresponsibilities under this Agreement or in violation of Section 2.6 of this\nAgreement.\n\n                                      -88-\n\n\n\n     2.2  CONSULTING DUTIES.  Consultant shall take direction from Jerry Austin\nor Bob Stauth or their designee.  During the Consulting Period, Consultant shall\nrender such service and promote the name and goodwill of the Companies as they\nmay reasonably request so that the Companies may have the benefit of\nConsultant's experience and knowledge of the business and affairs of the\nCompanies and his reputation and contacts in the Companies' businesses.\nConsultant agrees that he will be available for advice and counsel to the\nofficers and directors of the Companies at all reasonable times by telephone,\nletter, or in person during the Consulting Period.\n\n     2.3  STATUS OF CONSULTANT.  Consultant shall be an independent contractor\nand not an 'associate' or 'employee' of the Companies.  Accordingly, the\nCompanies shall not withhold amounts of applicable federal and state income,\nwithholding and employment taxes from the fees to be paid Consultant hereunder\nunless otherwise required by law.  Consultant shall be solely responsible for\nand shall pay all of such taxes.\n\n     2.4  TERM.  The term of the Consulting Period shall commence on January 22,\n1994 and end on December 31, 1994.\n\n     2.5  CONSULTING FEE; EXPENSES.  In recognition of the valuable and\nmeritorious services performed on behalf of the Companies by Consultant\nthroughout the years in which he has served the Companies as an officer and\nassociate, and in consideration of Consultant's agreeing to make himself\nreasonably available to render to the Companies the services provided in Section\n2.2, during the Consulting Period Consultant shall receive a consulting fee (the\n'Consulting Fee') of One Hundred Eighty-Nine Thousand Seven Hundred Eighty-Six\nDollars ($189,786) payable in installments of $36,150 on January 22, 1994, and\nin equal installments of Fifty-One Thousand Two Hundred Twelve Dollars ($51,212)\neach on  April 1, 1994, July 1, 1994 and October 1, 1994.\n\n          In addition, Consultant shall be reimbursed for all reasonable\nbusiness and travel expenses incurred by Consultant for the benefit of the\nCompanies, in accordance with the policies of the Companies with respect to key\nmanagement associates, as approved by the Chief Financial Officer of Fleming.\n\n     2.6  NONCOMPETITION COVENANT.  During the Consulting Period, Consultant\nshall not directly or indirectly, own, manage, operate, join, advise, control or\notherwise engage or participate in or be connected as an employee, partner,\ninvestor, stockholder, creditor, guarantor, advisor or consultant in, the busi-\nness of selling or distributing food and related products, groceries, frozen\nfoods, dairy, health and beauty care and general merchandise products, or\nassociated items at retail or wholesale (the 'Food Business'), to any person or\nany entity; provided, however, Consultant may hold stock representing up to five\npercent of the equity of a company engaged in the Food Business.  In the event\nthat Consultant violates this paragraph, Consultant shall forfeit all of the\nunpaid portion of the Consulting Fee and shall be required to reimburse the\nCompanies for any portion of the Consulting Fee paid to Consultant prior to such\nbreach.\n\n\n\n                                      -89-\n\n\n\n                                   ARTICLE III\n\n                                   TERMINATION\n                                   -----------\n\n     3.1  TYPES OF TERMINATION.  This Agreement may be terminated prior to\nDecember 31, 1994 as follows:\n\n          3.1.1     DEATH OR DISABILITY.  By the Companies upon the death or\nDisability of Consultant.  Disability means Consultant has been totally\nincapacitated by bodily injury or physical or mental disease so as to be\nprevented from engaging in any comparable occupation or employment for\nremuneration or profit, and such total incapacity will, in the opinion of a\nqualified physician who has been approved by Consultant (or if applicable, the\nperson legally empowered to make such decisions on behalf of the Consultant) and\nFleming, be permanent and continuous during the remainder of the Consultant's\nlife.\n\n          3.1.2     CAUSE.  By the Companies for Cause.  Cause means (i) the\nconviction of the Consultant of a felony under federal, state or local criminal\nlaw, or (ii) willful and gross misconduct by the Consultant that is materially\ndetrimental to the Companies or their subsidiaries, or (iii) a violation by the\nConsultant of Sections 2.6 and 4.1 hereof, each as determined in good faith by a\nwritten resolution adopted by the affirmative vote of at least two-thirds of all\nFleming directors.\n\n          3.1.3     INVOLUNTARY TERMINATION.  An Involuntary Termination by the\nCompanies, meaning for reasons other than Cause, the Consultant's death or\nDisability.\n\n          3.1.4     VOLUNTARY TERMINATION.  A Voluntary Termination, meaning by\nConsultant for reasons other than Cause, the Consultant's death or Disability.\n\n     3.2  NOTICE OF TERMINATION.  Any termination by one party shall be\ncommunicated by a written notice to the other party in accordance with the terms\nof this Agreement.  The notice must (a) indicate the specific termination\nprovision in this Agreement relied upon, (b) set forth the facts claimed as the\nbasis for the termination, (c) if applicable, include a copy of the resolution\nof the Fleming Board of Directors, and (d) specify a date of termination, which\ndate shall be the last day of the month of such notice.\n\n     3.3  OBLIGATIONS OF THE COMPANIES UPON TERMINATION.\n\n          3.3.1     DEATH OR DISABILITY.  In the event of the death of the\nConsultant, the Companies shall continue to pay (a) the Consulting Fee during\nthe Consulting Period and (b) to the extent not already taken or paid, the\nVacation Pay, to the Consultant's legal representative.  In the event of the\nDisability of the Consultant, the Companies shall continue to pay (a) the\nConsulting Fee during the Consulting Period and (b) to the extent not already\ntaken or paid, the Vacation Pay, to the Consultant or his legal representative.\nIn either event, any approved expenses due under Subsection 2.5 not reimbursed\nby the Companies shall be paid to the Consultant or his legal representative.\nIn either event, with the exception of the Consulting Fee and the Vacation Pay,\nthe Companies shall have no further obligation to Consultant or his legal\nrepresentative pursuant to this Agreement.\n\n                                      -90-\n\n\n\n          3.3.2     CAUSE.  If this Agreement is terminated for Cause, the\nCompanies shall have no further obligation to the Consultant from the date of\nFleming's determination that Cause exists except for Vacation Pay to the extent\nnot already taken or paid.\n\n          3.3.3     VOLUNTARY TERMINATION.  If this Agreement is terminated\nvoluntarily by the Consultant, the Companies shall have no further obligation to\nthe Consultant from the date of such Voluntary Termination except for Vacation\nPay to the extent not already taken or paid.\n\n          3.3.4     INVOLUNTARY TERMINATION.  If this Agreement is terminated\nbecause of Involuntary Termination, the Companies shall continue to pay (a) the\nConsulting Fee during the Consulting Period and (b) to the extent not already\ntaken or paid, the Vacation Pay, to the Consultant notwithstanding such\ntermination.\n\n                                   ARTICLE IV\n\n                                 GENERAL MATTERS\n                                 ---------------\n\n     4.1  CONFIDENTIAL INFORMATION.  Consultant shall hold in a fiduciary\ncapacity for the benefit of the Companies all secret or confidential\ninformation, knowledge or data relating to the Companies or any of their\nsubsidiaries, and their respective businesses, which is known to Consultant and\nwhich shall not be or become public knowledge.  After termination of this\nAgreement, Consultant shall not, without the prior written consent of the\nCompanies, communicate or divulge any such information, knowledge or data to\nanyone other than the Companies and those designated by it unless required by\nlaw.\n\n     4.2  ASSIGNMENT.  This Agreement is personal to Consultant and without the\nprior written consent of the Companies shall not be assignable by Consultant.\n\n     4.3  GOVERNING LAW.  This Agreement shall be governed by and construed in\naccordance with the laws of the State of Oklahoma, without reference to\nprinciples of conflict of laws.\n\n     4.4  NOTICES.  All notices and other communications hereunder shall be in\nwriting and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as\nfollows:\n\n          IF TO CONSULTANT:\n          ----------------\n\n          Robert F. Harris\n          775 Pleasant Grove Road\n          Route 1, Box 188\n          Moscow, Tennessee 38057\n\n          IF TO THE COMPANIES:\n          ___________________\n\n          Fleming Companies, Inc.\n          6301 Waterford Boulevard\n          P.O. Box 26647\n          Oklahoma City, Oklahoma 73126\n\n          Attention: Robert E. Stauth\n                     President and Chief Executive Officer\n                                      -91-\n\n\nor such other address as either party shall have furnished to the other in\nwriting in accordance herewith.  Notices and communications shall be effective\nwhen actually received by the addressee.\n\n     IN WITNESS WHEREOF, Consultant has hereunto set his hand and the Companies\nhave caused these presents to be executed in their names on their behalf, all as\nof the day and year first above written.\nConsultant:\n\n                         _________________________________\n                         Robert F. Harris\n\n\nCompanies:     FLEMING COMPANIES, INC.\n\n\n                         By______________________________\n                           Robert E. Stauth, President\n                           and Chief Executive Officer\n\n\n          MALONE &amp; HYDE, INC.\n\n\n                         By______________________________\n                           David R. Almond\n                           Vice President-Secretary\n\n\n\n\n\n\n\n\n\n\n\n\n                                      -92-\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":[9539,9541],"class_list":["post-38676","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleming-companies-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__consulting"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38676","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=38676"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38676"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38676"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38676"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}