{"id":40506,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/severance-agreement-fleming-companies-inc-and-william-j-dowd.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"severance-agreement-fleming-companies-inc-and-william-j-dowd","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/severance-agreement-fleming-companies-inc-and-william-j-dowd.html","title":{"rendered":"Severance Agreement &#8211; Fleming Companies Inc. and William J. Dowd"},"content":{"rendered":"<pre>May 20, 1999\n\n\n\nHAND DELIVERY\n \nWilliam J. Dowd\n\n\nDear Bill:\n\nAs we have just discussed, we have decided, with the concurrence of \nthe Board, to request your resignation as an associate and officer \nof the Company.  We appreciate all your efforts since you came to \nFleming, but simply believe a change needs to be made.  Your \nseparation will be effective as of the close of business today.\n\nThis letter outlines the severance package Fleming is offering you \nand, along with the attached General Release, will also reflect our \nagreement if you decide to accept this package.  This is, of \ncourse, an individualized severance package for you.  We think it \nis appropriate and fair under all the circumstances.  We hope you \nwill agree.\n\nThe terms of your severance package are as follows:\n\n1.    Salary Replacement.  The Company will pay you salary \nreplacement in the gross amount of two (2) years' base salary, \npayable in equal installments without regard to whether you have \nobtained new employment.  The first installment will be paid on the \nCompany's first regular payday after you return executed copies of \nthis letter agreement and the General Release referenced hereafter \nor seven (7) days following that return date, whichever is later.  \nThe remaining installments will be paid throughout the two year \nperiod on the Company's regular paydays.\n\n2.    Bonus Potential.  If the Company determines at the conclusion \nof 1999 that you would otherwise have been eligible for a 1999 \nbonus under the Fleming Companies, Inc. Corporate Officer Incentive \nPlan (the 'Bonus Plan'), the Company will pay you a gross amount \nequal to the pro rated portion of the bonus you would have earned \nunder the Bonus Plan between January 1, 1999 through May 20, 1999. \n This payment, if any, will be made in calendar year 2000 \ncontemporaneously with the payment of bonuses under the Bonus Plan, \nif any, to other eligible Fleming corporate officers.\n\n3.    Accrued Vacation.  The Company will pay you for 1999 vacation \naccrued as of January 1, 1999 and not used.  You will receive this \nin a lump sum with the first installment of your salary \nreplacement.\n\n4.    'COBRA Premium' Replacement.  You have the right pursuant to \nCOBRA to continued coverage under the Fleming Companies, Inc. \nHealth Choice Plan (the 'Medical Plan').  The Company will pay you \na 'COBRA premium' replacement in the amount of eighteen (18) times \nthe monthly COBRA premium for your current level of coverage under \nthe Medical Plan, plus a 'gross up' to offset income taxes, FICA \nand any other payroll taxes.  You will receive this payment in a \nlump sum with the first installment of your salary replacement.\n\n5.    Automobile.  The Company will transfer title to you of the \nautomobile which you have been driving in connection with Company \nbusiness seven (7) days after you return executed copies of the \nletter agreement and General Release.\n\n6.    Reimbursement of Relocation Costs.  The Company will \nreimburse you for costs you may incur in the twelve (12) months \nfollowing your separation in connection with relocating your family \nmembers and personal possessions from your current residence to a \nresidence outside a 75 mile radius of Oklahoma City, Oklahoma in \norder to accept new employment, provided that your next employer \ndoes not regularly pay for these types of relocation expenses for \nnew executive-level employees and provided that such relocation \ncosts are reasonable and would be reimbursed to Fleming associates \nunder the Company's reimbursement practices regarding personal \ntravel expenses to the new destination and household goods shipment \nexpenses.  This reimbursement will be paid within thirty (30) days \nafter you submit vouchers representing the payment of these \nrelocation costs to the Company.\n\n7.    Outplacement.  The Company will provide you with a 'Level \nOne' executive outplacement package with James Farris &amp; Associates. \n If you prefer to use a different outplacement firm, the Company \nwill pay that firm a reasonable fee (up to 15% of your annual base \nsalary) for whatever substitute outplacement package you may \nselect.\n\n8.    Taxes.  Unless otherwise noted, any payments and benefits \nwhich are subject to federal and state income tax withholding, FICA \nand other payroll taxes will be reduced by those amounts by the \nCompany.\n\n9.    General Release.  You will execute the General Release which \nis attached and return it, along with the executed copy of this \nletter agreement, within twenty-one (21) days of the date you \nreceive this letter.  You will also agree not to attempt to revoke \nor rescind the General Release at any time in the future or \ncommence any action against Fleming in regard to your prior \nemployment relationship.  By signing this letter, you are \nrepresenting to the Company that you fully understand the General \nRelease and will have had an opportunity to seek legal advice \nregarding the General Release and the agreement proposed by this \nletter, if you desire to do so, before signing it.  You are also \nrepresenting to the Company that between the date of this letter \nand the date you sign the General Release, you have not commenced \nany charge, action or complaint with any court or with the Equal \nEmployment Opportunity Commission, the United States or Oklahoma \nDepartments of Labor or with any other judicial or administrative \nagency in regard to your employment relationship or any matters \narising out of that relationship. Finally, you are representing to \nthe Company that you fully understand that any such filing or \ncommencement shall constitute a rejection by you of the Company's \nseverance package offered in this letter.\n\n10.    Continued Litigation Assistance.  You will continue to \ncooperate with and assist the Company and its representatives and \nattorneys as requested with respect to any litigation, arbitrations \nor other dispute resolutions by being available for interviews, \ndepositions and\/or testimony in regard to any matters in which you \nare or have been involved or with respect to which you have \nrelevant information.  The Company will reimburse you for \nreasonable expenses you may incur for travel in connection with \nthis obligation.\n\n11.    Future Employment and Confidentiality of Information.  \nExcept with the prior written consent of the Company, during the \nperiod you are receiving salary replacement installments from the \nCompany under paragraph 1, you will not be employed by or otherwise \nact on behalf of an entity which competes with the Company in the \nfood distribution or marketing business.  Except with the prior \nwritten consent of the Company, you will not at any time in the \nfuture be employed or otherwise act as an expert witness or \nconsultant or in any similar capacity in any litigation, \narbitration, regulatory or agency hearing or other adversarial or \ninvestigatory proceeding involving Fleming.  Also, except with the \nprior written consent of the Company, you will not at any time \nhereafter make any independent use of or disclose to any other \nperson or organization any of the Company's confidential, \nproprietary information or trade secrets.  This shall apply to any \ninformation concerning Fleming which is of a special and unique \nvalue and includes, without limitation, both written and unwritten \ninformation relating to operations; business planning and \nstrategies; litigation strategies; finance; accounting; sales; \npersonnel, salaries and management; customer names, addresses and \ncontracts; customer requirements; costs of providing products and \nservice; operating and maintenance costs; and pricing matters.  \nThis shall also apply to any trade secrets of the Company the \nprotection of which is of critical importance to Fleming and \nincludes, without limitation, techniques, methods, processes, data \nand the like.  This commitment of confidentiality shall also apply \nto the terms of this severance package, except for discussions with \nyour spouse, your personal attorney and\/or accountants, or as \nneeded to enforce our agreement.  Any disclosure by such \nindividuals shall be deemed a disclosure by you and shall have the \nsame consequences as a breach of our agreement directly by you.\n\n12.    Preserving Company Name.  You will not at any time in the \nfuture defame, disparage or make statements which could embarrass \nor cause harm to the Company's name and reputation or the names and \nreputation of any of its officers, directors or representatives, to \nthe Company's current, former or prospective vendors, customers, \nprofessional colleagues, industry organizations, associates or \ncontractors, to any governmental or regulatory agency or to the \npress or media.\n\n13.    Forfeiture.  The continued payment by the Company and \nretention by you of any payments to be made or benefits provided \nunder this letter agreement shall be contingent not only on your \nexecution of the General Release described in paragraph 9, but also \non your on-going compliance with your other obligations under our \nagreement, including your commitments in paragraphs 10, 11 and 12. \n Breach of your obligations at any time in the future shall entitle \nthe Company to cease all payments to be made or benefits provided \nunder this letter agreement and shall entitle the Company to \nimmediate reimbursement from you of any payments you have \npreviously received.\n\n14.    Indemnification and Insurance.  The Company shall hereafter \nindemnify you and hold you harmless in the same manner as it would \nany other key management associate of the Company with respect to \nacts or omissions occurring prior to your separation from employment.\nIn addition, for a period of at least five years following your \nseparation from employment, the Company shall cover you under any \nDirectors and Officers liability insurance policy which may be in \neffect covering acts or omissions occurring prior to the \ntermination of your employment to the same extent it provides such \ncoverage for directors and officers of the Company at that time.\n\n15.    Arbitration.  You and the Company agree that your employment \nand this severance package relate to interstate commerce, and that \nany disputes, claims or controversies between you and Fleming which \nmay arise out of or relate to our prior employment relationship or \nthis letter agreement shall be settled by arbitration.  Our \nagreement to arbitrate shall survive the termination or rescission \nof this letter agreement.  Any arbitration shall be in accordance \nwith the Rules of the American Arbitration Association and shall be \nundertaken pursuant to the Federal Arbitration Act.  Arbitration \nwill be held in Oklahoma City, Oklahoma unless we mutually agree on \nanother location.  The decision of the arbitrator(s) will be \nenforceable in any court of competent jurisdiction.  The \narbitrator(s) may award costs and attorneys' fees in connection \nwith the arbitration to the prevailing party; however, in the \narbitrator's(s') discretion, each party may be ordered to bear \nits\/his own costs and attorneys' fees.  We agree that punitive, \nliquidated or indirect damages shall not be awarded by the \narbitrator(s).  Nothing in this agreement to arbitrate, however, \nshall preclude the Company from obtaining injunctive relief from a \ncourt of competent jurisdiction prohibiting any on-going breaches \nby you of your continuing obligations under paragraphs 9, 10, 11 or \n12 of this letter agreement pending arbitration.\n\nThe agreement of you and the Company, in the event you execute this \nletter, will be in consideration of the mutual promises described \nabove.  Also, this letter and the General Release will constitute \nthe entire agreement between you and Fleming with respect to your \nseparation from employment and your severance package.\n\nPlease contact me if you have any questions about the severance \npackage.  I will need to know your decision no later than the close \nof business twenty-one (21) days from the date you receive this \nletter.\n\nVery truly yours,\n\n\nMARK S. HANSEN\nMark S. Hansen\nChairman and Chief Executive Officer\n\nDELIVERED BY:\n\nMARK S. HANSEN\nMark S. Hansen                                                   \nSignature\n\n                                                   \nDate  May 20, 1999\n\n\nACCEPTED AND AGREED TO BY:\n\nWILLIAM J. DOWD                                                   \nWilliam J. Dowd\n\n                                                   \nDate  June 17, 1999\n\n\n    NOTICE.  Various state and federal laws, including Title VII of \nthe Civil Rights Act of 1964, the Age Discrimination in Employment \nAct, the Americans with Disabilities Act, the Employee Retirement \nIncome Security Act and the Veterans Reemployment Rights Act (all \nas amended from time to time), prohibit employment discrimination \nbased on sex, race, color, national origin, religion, age, \ndisability, eligibility for covered employee benefits or veteran \nstatus.  These laws are enforced through the Equal Opportunity \nEmployment Commission (EEOC), United States Department of Labor and \nvarious state or municipal fair employment boards, human rights \ncommissions or similar agencies.\n\n    This General Release is being provided to you in connection \nwith the special, individualized severance package outlined in a \nproposed letter agreement dated May 20, 1999.  The federal Older \nWorker Benefit Protection Act requires that you have at least \ntwenty-one (21) days, if you want it, to consider whether you wish \nto sign a release such as this one in connection with a special, \nindividualized severance package.  You have until the close of \nbusiness twenty-one (21) days from the date you receive the May 20, \n1999 letter and this General Release to make your decision.  You \nmay accept the special, individualized severance package at any \ntime during that period.  BEFORE EXECUTING THIS GENERAL RELEASE YOU \nSHOULD REVIEW IT AND THE PROPOSED LETTER AGREEMENT CAREFULLY AND \nCONSULT WITH YOUR ATTORNEY.\n\n    You may revoke this General Release within seven (7) days after \nyou sign it and it shall not become effective or enforceable until \nthat revocation period has expired.  If you do not accept the \nseverance package and sign and return this General Release within \ntwenty-one (21) days, or if you exercise your right to revoke the \nGeneral Release after signing it, you will not be eligible for the \nspecial, individualized severance package.  Any revocation must be \nin writing and must be received by Fleming Companies, Inc., \nAttention: Dee Jerome, 6301 Waterford Blvd., Oklahoma City, OK \n73126, within the seven-day period following your execution of this \nGeneral Release.\n\n                                                                   \n                              GENERAL RELEASE\n\n    In consideration of the special, individualized severance \npackage offered to me by Fleming Companies, Inc. and the separation \nbenefits I will receive as reflected in a letter dated May 20, 1999 \n(the 'Letter Agreement'), I release and discharge Fleming \nCompanies, Inc. and its successors, affiliates, parent, \nsubsidiaries, partners, employees, officers, directors and agents \n(hereinafter referred to collectively as the 'Company') from all \nclaims, liabilities, demands and causes of action, known or \nunknown, fixed or contingent, which I may have or claim to have \nagainst the Company, including any claims arising out of or \nrelating to my past employment with the Company and the severance \nof that relationship, as well as my decision to accept the \nseparation benefits described in the Letter Agreement, and do \nhereby covenant not to file a lawsuit or commence any other legal \naction to assert such claims.  This includes but is not limited to \nclaims arising under federal, state, or local laws prohibiting \nemployment discrimination (including the Age Discrimination in \nEmployment Act), relating to any prior written, oral or implied \ncontracts pertaining to employment, severance or retirement or \ngrowing out of any legal or equitable restrictions on the Company's \nrights not to continue an employment relationship with its \nemployees, but not to include any claims under the Employee \nRetirement Income Security Act with regard to vested rights in any \nof the Company's qualified retirement plans.\n\n    I have carefully reviewed and fully understand all the \nprovisions of the Letter Agreement, the foregoing Notice and this \nGeneral Release, which set forth the entire agreement between me \nand the Company.\n\n    I understand that my receipt of the separation benefits under \nthe Letter Agreement is dependent on my execution of this General \nRelease, upon my return to the Company of any Company property \nwithin my possession or control and upon my continued cooperation \nin providing information necessary for transition and maintenance \nof the Company's ongoing business.  I also understand that my \nreceipt and retention of the separation benefits are also \ncontingent on my continued nondisclosure of the Company's \nconfidential information, including the terms of my severance \npackage, and that prohibited disclosure of information or any \nfuture defamation, disparaging remarks or statements by me to any \nthird parties, other associates or the media which could embarrass \nor cause harm to the Company's name and reputation or to the name \nand reputation of its officers, directors or representatives shall \nentitle the Company to reimbursement or retention of any separation \nbenefits I have received or may receive.\n\n    I acknowledge that the Company has given me a 21-day period to \nconsider this General Release and whether to accept the special, \nindividualized severance package, and that the Company has advised \nme to seek independent legal advice as to these matters if I chose \nto do so.  I further acknowledge that I have not relied upon any \nrepresentation or statement, oral or written, by the Company not \nset forth in those materials and documents.\n\n    DATED this 17th day of June, 1999.\n\n                                             WILLIAM J. DOWD           \n(Print Name)                                 William J. Dowd\n\n                       \n(Print Name)                                 Witness\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-40506","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\/40506","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=40506"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40506"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40506"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40506"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}