{"id":39813,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-deferred-compensation-trust-fleming-companies-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-deferred-compensation-trust-fleming-companies-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-deferred-compensation-trust-fleming-companies-inc.html","title":{"rendered":"Executive Deferred Compensation Trust &#8211; Fleming Companies Inc."},"content":{"rendered":"<pre>\n                    FLEMING COMPANIES, INC.\n             EXECUTIVE DEFERRED COMPENSATION TRUST\n\n\n\n                    FLEMING COMPANIES, INC.\n             EXECUTIVE DEFERRED COMPENSATION TRUST\n\n\n                       TABLE OF CONTENTS\n                                                             Page\n                                                             ----\nSection 1      Establishment of Trust                           1\n\nSection 2      Payments to Participants and Their\n               Beneficiaries                                    2\n\nSection 3      Trustee Responsibility Regarding Payments to\n               Trust Beneficiary When Company is Insolvent      3\n\nSection 4      Payments to Company                              4\n\nSection 5      Investment Authority                             5\n\nSection 6      Disposition of Income                            5\n\nSection 7      Accounting by Trustee                            5\n\nSection 8      Responsibility of Trustee                        6\n\nSection 9      Compensation and Expenses of Trustee             7\n\nSection 10     Resignation and Removal of Trustee               7\n\nSection 11     Appointment of Successor                         7\n\nSection 12     Amendment or Termination                         8\n\nSection 13     Miscellaneous                                    8\n\nSection 14     Effective Date                                   8\n\n                                  -i-\n\n\n                       FLEMING COMPANIES, INC.\n                 EXECUTIVE DEFERRED COMPENSATION TRUST\n\n         THIS AGREEMENT FOR THE FLEMING COMPANIES, INC. EXECUTIVE DEFERRED\nCOMPENSATION TRUST (the 'Trust Agreement') made as of this ____ day of\n__________, 1997, by and between Fleming Companies, Inc., an Oklahoma\ncorporation (the 'Company'), and BANK ONE TRUST COMPANY, N.A., a national\nbanking association (formerly the Liberty Bank and Trust Company of Oklahoma\nCity, N.A.) (the 'Trustee').  This Trust Agreement provides for the establish\nment of a trust to be known as the 'Fleming Companies, Inc. Executive Deferred\nCompensation Trust' (the 'Trust') to provide a source for payments required to\nbe made under the plans and related agreements (collectively, the 'Plans')\nsponsored by the Company on behalf of certain of its key management associates\n(the 'Participants').\n\n          WHEREAS, Company has adopted and\/or is a party to the Plans listed on\nExhibit 'A' attached hereto;\n\n          WHEREAS, Company has incurred or expects to incur liability under the\nterms of the Plans with respect to the individuals participating in the Plans;\nand\n\n          WHEREAS, Company wishes to establish the Trust and to contribute to\nthe Trust assets that shall be held therein, subject to the claims of creditors\nin the event of Company's 'Insolvency,' as herein defined, until paid to\nParticipants and their beneficiaries in such manner and at such times as\nspecified in the Plans; and\n\n          WHEREAS, it is the intention of the parties that this Trust shall\nconstitute an unfunded arrangement and shall not affect the status of the Plans\nas unfunded plans maintained for the purpose of providing deferred compensation\nfor a select group of management or highly compensated employees for purposes\nof Title I of the Employee Retirement Income Security Act of 1974, as amended;\nand\n\n          WHEREAS, it is the intention of Company to make contributions to the\nTrust to provide itself with a source of funds to assist it in the meeting of\nits liabilities under the Plans;\n\n          NOW, THEREFORE, the parties do hereby establish the Trust and agree\nthat the Trust shall be comprised, held and disposed of as follows:\n\n          Section 1. ESTABLISHMENT OF TRUST\n\n          (a)  Company hereby deposits with Trustee, in trust, One Hundred\nDollars ($100.00), which constitutes the principal of the Trust to be held,\nadministered and disposed of by Trustee as provided in this Trust Agreement.\n\n\n\n          (b)  The Trust hereby established is revocable by Company; it shall\nbecome irrevocable upon a change of control, as such term is defined in the\nPlans ('Change of Control').\n\n          (c)  The Trust is intended to be a grantor trust, of which Company\nis the grantor, within the meaning of subpart E, part I, subchapter J,\nchapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and\nshall be construed accordingly.\n\n          (d)  The principal of the Trust, and any earnings thereon shall be\nheld separate and apart from other funds of Company and shall be used\nexclusively for the uses and purposes of Participants and their beneficiaries\nand the general creditors of Company, its Subsidiaries and its parent, if\napplicable, as (as defined in the Plan ) herein set forth.  The Participants\nand their beneficiaries shall have no preferred claim on, or any beneficial\nownership interest in, any assets of the Trust.  Any rights created under the\nPlans and this Trust Agreement shall be mere unsecured contractual rights of\nthe Participants and their beneficiaries against Company, its Subsidiaries or\nits parent, if applicable.  Any assets held by the Trust will be subject to\nthe claims of general creditors of the Company, its Subsidiaries and its\nparent, if applicable, or its subsidiaries under federal and state law in the\nevent of Insolvency, as defined in Section 3(a) herein.\n\n          (e)  Company, in its sole discretion, may at any time, or from time to\ntime, make additional deposits of cash or other property in trust with Trustee\nto augment the principal to be held, administered and disposed of by Trustee\n(which may include securities issued by Company) as provided in this Trust\nAgreement.  In addition, Company may designate the Participants to be entitled\nto receive any payments from the amounts so deposited, provided, such payments\nshall only be made in accordance with the terms and provisions of the Plans.\nNeither Trustee nor any Participant or beneficiary shall have any right to\ncompel such additional deposits.\n\n          (f)  Upon a Change of Control, Company shall, as soon as possible,\nbut in no event longer than sixty (60) days following the Change of Control,\nmake an irrevocable contribution to the Trust in an amount that is sufficient\nto pay the Participants or their beneficiaries the benefits to which the\nParticipants or their beneficiaries would be entitled pursuant to the terms\nof the Plans as of the date on which the Change of Control occurred.\n\nSection 2.  PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES.\n\n          (a)  Company shall deliver to Trustee a schedule (the 'Payment\nSchedule') that indicates the amounts payable in respect of each Participant\n(and his or her beneficiaries) and provides a formula or other instructions\nacceptable to Trustee for determining the amounts so payable, the form in which\nsuch amount is to be paid\n\n                                     -2-\n\n\n(as provided for or available under the Plans), and the time of commencement\nfor payment of such amounts.  Except as otherwise provided herein, Trustee\nshall make payments to the Participants and their beneficiaries in accordance\nwith such Payment Schedule.  The Trustee shall make provision for the\nreporting and withholding of any federal, state or local taxes that may be\nrequired to be withheld with respect to the payment of benefits pursuant to\nthe terms of the Plans and shall pay amounts withheld to the appropriate\ntaxing authorities or determine that such amounts have been reported,\nwithheld and paid by Company.\n\n          (b)  The entitlement of a Participant or his or her beneficiaries to\nbenefits under the Plans shall be determined in accordance with the terms of\nthe Plans by Company or such party as it shall designate under the Plans, and\nany claim for such benefits shall be considered and reviewed under the\nprocedures set out in the Plans.\n\n          (c)  Company may make payment of benefits directly to the\nParticipants or their beneficiaries as they become due under the terms of the\nPlans.  Company shall notify Trustee of its decision to make payment of\nbenefits directly prior to the time amounts are payable to Participants or\ntheir beneficiaries.  In addition, if the principal of the Trust, and any\nearnings thereon, are not sufficient to make payments of benefits in accordance\nwith the terms of the Plans, Company shall make the balance of each such\npayment as it falls due. Trustee shall notify Company where principal and\nearnings are not sufficient.\n\nSection 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN\nCOMPANY IS INSOLVENT.\n\n          (a)  Trustee shall cease payment of benefits to Participants and\ntheir beneficiaries if Company is Insolvent. Company shall be considered\n'Insolvent' for purposes of this Trust Agreement if (i) Company is unable to\npay its debts as they become due, or (ii) Company is subject to a pending\nproceeding as a debtor under the United States Bankruptcy Code.\n\n          (b)  At all times during the continuance of this Trust, as provided\nin Section 1(d) hereof, the principal and income of the Trust shall be subject\nto claims of general creditors of Company, its Subsidiaries and its parent, if\napplicable, under federal and state law as set forth below.\n\n               (1)  The Board of Directors and the Chief Executive Officer of\nCompany shall have the duty to inform Trustee in writing of the Insolvency of\nthe Company, its Subsidiaries or its parent, if applicable.  If a person\nclaiming to be a creditor of Company alleges in writing to Trustee that\nCompany, its Subsidiaries or its parent, if applicable, has become Insolvent,\nTrustee shall determine whether Company, its Subsidiaries or its parent, if\n\n                                     -3-\n\n\napplicable, is Insolvent and, pending such determination, Trustee shall \ndiscontinue payment of benefits to the Participants or their beneficiaries.\n\n               (2)  Unless Trustee has actual knowledge of the Insolvency of\nthe Company, its Subsidiaries or its parent, if applicable, or has received\nnotice from Company or a person claiming to be a creditor alleging that\nCompany, its Subsidiaries or its parent, if applicable, is Insolvent, Trustee\nshall have no duty to inquire whether Company is Insolvent.  Trustee may in all\nevents rely on such evidence concerning the solvency of the Company, its\nSubsidiaries or its parent, if applicable, as may be furnished to Trustee and\nthat provides Trustee with a reasonable basis for making a determination\nconcerning the solvency of the Company, its Subsidiaries and its parent, if\napplicable.\n\n               (3)  If at any time Trustee has determined that Company, its\nSubsidiaries and its parent, if applicable, is Insolvent, Trustee shall\ndiscontinue payments to the Participants or their beneficiaries and shall hold\nthe assets of the Trust for the benefit of the general creditors of the\nCompany, its Subsidiaries or its parent, if applicable, including the Partici-\npants.  Nothing in this Trust Agreement shall in any way diminish any rights of\nParticipants or their beneficiaries to pursue their rights as general creditors\nof Company, its Subsidiaries or its parent, if applicable, with respect to\nbenefits due under the Plans or otherwise.\n\n               (4)  Trustee shall resume the payment of benefits to\nParticipants or their beneficiaries in accordance with Section 2 of this Trust\nAgreement only after Trustee has determined that Company is not Insolvent (or\nis no longer Insolvent).\n\n          (c)  Provided that there are sufficient assets, if Trustee\ndiscontinues the payment of benefits from the Trust pursuant to Section 3(b)\nhereof and subsequently resumes such payments, the first payment following such\ndiscontinuance shall include the aggregate amount of all payments due to\nParticipants or their beneficiaries under the terms of the Plans for the period\nof such discontinuance, less the aggregate amount of any payments made to\nParticipants or their beneficiaries by Company in lieu of the payments provided\nfor hereunder during any such period of discontinuance.\n\nSection 4.  PAYMENTS TO COMPANY.\n\n          (a)  Except as provided in Section 3 hereof and Section 4(b) below,\nafter the Trust has become irrevocable, Company shall have no right or power to\ndirect Trustee to return to Company or to divert to others any of the Trust\nassets before all payments of benefits have been made to Participants and their\nbeneficiaries\n\n                                     -4-\n\n\npursuant to the terms of the Plans, and such determination shall be made by\nthe Company.\n\n          (b)  In the event that the Trust incurs realized earnings which are\ntaxable to the Company, the Trustee will reimburse the Company in an amount\nnecessary to meet all of the Company's income tax obligations (federal, state\nand local).  The determination of the amount to be reimbursed to the Company\nshall be determined by the Company and the Company shall provide a worksheet of\nthe calculations of such tax liability to the Trustee.\n\nSection 5.  INVESTMENT AUTHORITY.\n\n          (a)  Trustee may invest in or hold securities issued by Company.  All\nrights associated with assets of the Trust shall be exercised by Trustee or the\nperson designated by Trustee, and shall in no event be exercisable by or rest\nwith Participants.  Dividend rights with respect to Trust assets will rest with\nthe Trust and voting rights shall be exercised by the Trustee.  All investment\ndecisions with regard to the investment and reinvestment of the Trust assets\nwill be made by Trustee.\n\n          (b)  Company shall have the right at anytime, and from time to time\nin its sole discretion, to substitute assets of equal fair market value for any\nasset held by the Trust, provided the asset or assets substituted is acceptable\nto Trustee.  This right is exercisable by Company in a nonfiduciary capacity\nwithout the approval or consent of any person in a fiduciary capacity.\n\n          (c)  In the event the Trust holds any life insurance policies, the\nTrustee may surrender, cash in, and\/or borrow against such policies in order to\nprovide benefits in accordance with the Payment Schedules.\n\nSection 6.  DISPOSITION OF INCOME.\n\n          During the term of this Trust, all income received by the Trust, net\nof expenses, payments to Participants and taxes, shall be accumulated and\nreinvested by Trustee.\n\nSection 7.  ACCOUNTING BY TRUSTEE.\n\n          Trustee shall keep accurate and detailed records of all investments,\nreceipts, disbursements, and all other transactions required to be made,\nincluding such specific records as shall be agreed upon in writing between\nCompany and Trustee. Within sixty (60) days following the close of each\ncalendar year and within sixty (60) days after the removal or resignation of\nTrustee, Trustee shall deliver to Company a written account of its adminis-\ntration of the Trust during such year or during the period from the close of\nthe last preceding year to the date of such removal or resignation, setting\nforth all investments, receipts, disbursements\n\n                                     -5-\n\n\nand other transactions effected by it, including a description of all\nsecurities and investments purchased and sold with the cost or net proceeds\nof such purchases or sales (accrued interest paid or receivable being shown\nseparately), and showing all cash, securities and other property held in the\nTrust at the end of such year or as of the date of such removal or\nresignation, as the case may be.\n\nSection 8.  RESPONSIBILITY OF TRUSTEE.\n\n          (a)  Trustee shall act with the care, skill, prudence and diligence\nunder the circumstances then prevailing that a prudent person acting in like\ncapacity and familiar with such matters would use in the conduct of an\nenterprise of a like character and with like aims, provided, however, that\nTrustee shall incur no liability to any person for any action taken pursuant to\na direction, request or approval given by Company which is contemplated by, and\nin conformity with, the terms of the Plans or this Trust and is given in\nwriting by Company.  In the event of a dispute between Company and a party,\nTrustee may apply to a court of competent jurisdiction to resolve the dispute.\n\n          (b)  If Trustee undertakes or defends any litigation arising in\nconnection with this Trust, Company agrees to indemnify Trustee against\nTrustee's costs, expenses and liabilities (including, without limitation,\nattorneys' fees and expenses) relating thereto and to be primarily liable for\nsuch payments.\n\n          (c)  Trustee may consult with legal counsel (who may also be counsel\nfor Company generally) with respect to any of its duties or obligations\nhereunder.\n\n          (d)  Trustee may hire agents, accountants, actuaries, investment\nadvisors, financial consultants or other professionals to assist it in\nperforming any of its duties or obligations hereunder.\n\n          (e)  Trustee shall have, without exclusion, all powers conferred on\nTrustee by applicable law, unless expressly provided otherwise herein,\nprovided, however, that if an insurance policy is held as an asset of the\nTrust, Trustee shall have no power to name a beneficiary of the policy other\nthan the Trust, to assign the policy (as distinct from conversion of the policy\nto a different form) other than to a successor Trustee, or to loan to any\nperson the proceeds of any borrowing against such policy.\n\n          (f)  However, notwithstanding the provisions of Section 8(e) above,\nTrustee may loan to Company the proceeds of any borrowing against an insurance\npolicy held as an asset of the Trust.\n\n                                     -6-\n\n\n          (g)  Notwithstanding any powers granted to Trustee pursuant to this\nTrust Agreement or to applicable law, Trustee shall not have any power that\ncould give this Trust the objective of carrying on a business and dividing the\ngains therefrom, within the meaning of section 301.7701-2 of the Procedure and\nAdministrative Regulations promulgated pursuant to the Internal Revenue Code.\n\nSection 9.  COMPENSATION AND EXPENSES OF TRUSTEE.\n\n          Company shall pay all of Trustee's fees and expenses as well as\nadministrative expenses attributable to the Trust.  If not so paid, the fees\nand expenses shall be paid from the Trust.\n\nSection 10.  RESIGNATION AND REMOVAL OF TRUSTEE.\n\n          (a)  Trustee may resign at any time by written notice to Company,\nwhich shall be effective sixty (60) days after receipt of such notice unless\nCompany and Trustee agree otherwise.\n\n          (b)  Trustee may be removed by Company on thirty (30) days notice or\nupon shorter notice accepted by Trustee.\n\n          (c)  Upon a Change of Control, Trustee may not be removed by Company\nor its successor for five (5) years.\n\n          (d)  If Trustee resigns within five (5) years of a Change of Control,\nCompany shall apply to a court of competent jurisdiction for the appointment of\na successor Trustee or for instructions.\n\n          (e)  Upon resignation or removal of Trustee and appointment of a\nsuccessor Trustee, all assets shall subsequently be transferred to the\nsuccessor Trustee. The transfer shall be completed within ninety (90) days\nafter receipt of notice of resignation, removal or transfer, unless Company\nextends the time limit.\n\n          (f)  If Trustee resigns or is removed, a successor shall be\nappointed, in accordance with section 11 hereof, as of the effective date of\nresignation or removal under paragraphs (a) or (b) of this section.  If no such\nappointment has been made, Trustee may apply to a court of competent\njurisdiction for appointment of a successor or for instructions.\n\nSection 11.  APPOINTMENT OF SUCCESSOR.\n\n          If Trustee resigns or is removed in accordance with Section 10(a) or\n(b) hereof, Company may appoint any third party, such as a bank trust\ndepartment or other party that may be granted corporate trustee powers under\nstate law, as a successor to replace Trustee upon resignation or removal.  The\nappointment shall be effective when accepted in writing by the new Trustee, who\nshall\n\n                                     -7-\n\n\nhave all the rights and powers of the former Trustee, including ownership\nrights in Trust assets.  The former Trustee shall execute any instrument\nnecessary or reasonably requested by Company or the successor Trustee to\nevidence the transfer.\n\nSection 12.  AMENDMENT OR TERMINATION.\n\n          (a)  This Trust Agreement may be amended by a written instrument\nexecuted by Trustee and Company.  Notwithstanding the foregoing, no such\namendment shall conflict with the terms of the Plans or shall make the Trust\nrevocable after it has become irrevocable in accordance with Section 1(b)\nhereof.\n\n          (b)  The Trust shall not terminate until the date on which\nParticipants and their beneficiaries are no longer entitled to benefits\npursuant to the terms of the Plans unless sooner revoked in accordance with\nSection 1(b) hereof.  Upon termination of the Trust any assets remaining in the\nTrust shall be returned to Company.\n\n          (c)  Upon written approval of all Participants or beneficiaries\nentitled to payment of benefits pursuant to the terms of the Plans, Company may\nterminate this Trust prior to the time all benefit payments under the Plans\nhave been made.  All assets in the Trust at termination shall be returned to\nCompany.\n\n          (d)  This Trust Agreement may not be amended by Company for five (5)\nyears following a Change of Control without the consent of all Participants.\n\nSection 13.  MISCELLANEOUS.\n\n          (a)  Any provision of this Trust Agreement prohibited by law shall be\nineffective to the extent of any such prohibition, without invalidating the\nremaining provisions hereof.\n\n          (b)  Benefits payable to Participants and their beneficiaries under\nthis Trust Agreement may not be anticipated, assigned (either at law or in\nequity), alienated, pledged, encumbered or subjected to attachment,\ngarnishment, levy, execution or other legal or equitable process.\n\n          (c)  This Trust Agreement shall be governed by and construed in\naccordance with the laws of Oklahoma.\n\nSection 14. EFFECTIVE DATE.\n\n          The effective date of this Trust Agreement shall be as of the date\nhereof.\n\n                                     -8-\n\n\n                                FLEMING COMPANIES, INC., an\n                                Oklahoma corporation\n\n\n                                By:\n                                   ---------------------------------\n                                   Larry A. Wagner, Senior Vice\n                                   President-Human Resources\n\n                                             'COMPANY'\n\n\n                                BANK ONE TRUST COMPANY, N.A.\n                                (formerly the Liberty Bank and Trust\n                                Company of Oklahoma City, N.A.)\n\n\n                                By:\n                                   ---------------------------------\n                                   Name:\n                                         ---------------------------\n                                   Title: Senior Vice President\n                                          &amp; Senior Trust Officer\n\n                                              'TRUSTEE'\n\n\n                                     -9-\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":[9539,9542],"class_list":["post-39813","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleming-companies-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__deferred"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39813","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=39813"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39813"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39813"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39813"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}