{"id":40507,"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.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"severance-agreement-fleming-companies-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/severance-agreement-fleming-companies-inc.html","title":{"rendered":"Severance Agreement &#8211; Fleming Companies Inc."},"content":{"rendered":"<pre>\n            AMENDED AND RESTATED SEVERANCE AGREEMENT\n\n          AMENDED AND RESTATED SEVERANCE AGREEMENT (the\n'Agreement') entered into between Fleming Companies, Inc., an\nOklahoma corporation (the 'Company'), and         1       , an\n                                           ---------------\nindividual (the 'Executive'), dated as of this 2nd day of March,\n1995 (the 'Effective Date').\n\n          WHEREAS, the Company and the Executive are parties to\nthat a Severance Agreement (the 'Old Agreement'); and\n\n          WHEREAS, the Company and the Executive desire to\nterminate the Old Agreement and replace it with this Agreement; and\n\n          WHEREAS, the Company deems the services of the Executive\nto be of great and unique value to the business of the Company and\nthe Company desires to assure both itself of continuity of\nmanagement and the Executive of continued employment; and\n\n          WHEREAS, the Executive is a key management associate of\nthe Company and is presently making and is expected to continue\nmaking substantial contributions to the Company; and\n\n          WHEREAS, it is in the best interests of the Company and\nits shareholders to induce the Executive to remain in the employ of\nthe Company; and\n\n          WHEREAS, the Executive presently is serving in his\/her\ncapacity as a     2     of the Company; and\n              ---------\n\n          WHEREAS, the Company desires to provide an additional\ninducement for the Executive to remain in the employ of the Company\nas hereinafter provided by providing to him\/her additional amounts\nof compensation as provided in this Agreement in the event of\nhis\/her termination of employment for the reasons specified herein.\n\n          NOW, THEREFORE, in consideration of the mutual covenants\nhereinafter set forth and for good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, the\nExecutive and the Company hereby agree as provided below.\n\n          1.   OPERATION OF AGREEMENT.  The purpose of this\nAgreement is to provide to the Executive additional amounts of\ncompensation as provided in this Agreement in the event of his\/her\ntermination of employment for the reasons specified herein.\nAccordingly, the Company and the Executive have entered into this\nAgreement in accordance with the terms and provisions herein to\nprovide for such protection to the Executive.\n\n               (a)  CONTROL DATE.  The 'Control Date' shall be the\ndate during the 'Change of Control Period' (as defined in Section\n1(b)) on which a Change of Control (as defined in Section 1(c))\n\n\n\n\noccurs.  Anything in this Agreement to the contrary\nnotwithstanding, if the Executive's employment with the Company is\nterminated prior to the date on which a Change of Control occurs,\nand it is reasonably demonstrated that such termination (i) was at\nthe request of a third party who has taken steps reasonably\ncalculated to effect a Change of Control or (ii) otherwise arose in\nconnection with or anticipation of a Change of Control, then for\nall purposes of this Agreement the 'Control Date' shall mean the\ndate immediately prior to the date of such termination.\n\n               (b)  CHANGE OF CONTROL PERIOD.  The 'Change of\nControl Period' is the period commencing on the Effective Date and\nending on the first to occur of (i) the second anniversary of such\ndate or (ii) the first day of the month coinciding with or next\nfollowing the Executive's attainment of age 65 ('Normal Retirement\nDate'); provided, however, that commencing on the date one year\nafter the date hereof, and on each annual anniversary of such date\n(the date one year after the date hereof and each annual\nanniversary of such date, is hereinafter referred to as the\n'Renewal Date'), the Change of Control Period shall be\nautomatically extended so as to terminate on the first to occur of:\n(i) two years from such Renewal Date or (ii) the first day of the\nmonth coinciding with or next following the Executive's Normal\nRetirement Date, unless at least 60 days prior to the Renewal Date,\nthe Company shall give notice that the Change of Control Period\nshall not be so extended, in which event this Agreement shall\ncontinue for the remainder of the term of the then current Change\nof Control Period and terminate as provided herein.\n\n               (c)  DEFINITION OF CHANGE OF CONTROL.  For the\npurpose of this Agreement, a 'Change of Control' shall mean:\n\n                    (i)    The acquisition by any individual,\nentity or group (within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Securities Exchange Act of 1934, as amended (the 'Exchange\nAct')) (a 'Person') of beneficial ownership (within the meaning of\nRule 13d-3 promulgated under the Exchange Act) of 20% or more (the\n'Triggering Percentage') of either (x) the then outstanding shares\nof common stock of the Company (the 'Outstanding Company Common\nStock') or (y) the combined voting power of the then outstanding\nvoting securities of the Company entitled to vote generally in the\nelection of directors (the 'Outstanding Company Voting\nSecurities'); provided, however, in the event the 'Incumbent Board'\n(as such term is hereinafter defined) pursuant to Section 7 of the\nRights Agreement between the Company and The Liberty National Bank\nand Trust Company of Oklahoma City dated as of July 7, 1986\ntogether with any additional amendments thereto (the 'Rights\nAgreement') lowers the threshold amounts set forth in Section 1(a)\nor 3(a) of the Rights Agreement, the Triggering Percentage shall be\nautomatically reduced to equal the threshold set pursuant to\nSection 7 of the Rights Agreement; and provided, further, however,\nthat the following acquisitions shall not constitute a change of\n\n                              -2-\n\n\n\ncontrol:  (A) any acquisition directly from the Company, (B) any\nacquisition by the Company; (C) any acquisition by any employee\nbenefit plan (or related trust) sponsored or maintained by the\nCompany or any corporation controlled by the Company, (D) any\nacquisition previously approved by at least a majority of the\nmembers of the Incumbent Board, (E) any acquisition approved by at\nleast a majority of the members of the Incumbent Board within five\n(5) business days after the Company has notice of such acquisition,\nor (F) any acquisition by any corporation pursuant to a transaction\nwhich complies with clauses (x), (y), and (z) of subsection (iii)\nof this Section 1(c); or\n\n                    (ii)   Individuals who, as of the date hereof,\nconstitute the Board (the 'Incumbent Board') cease for any reason\nto constitute at least a majority of the Board; provided, however,\nthat any individual becoming a director subsequent to the date\nhereof whose election, appointment or nomination for election by\nthe Company's shareholders, was approved by a vote of at least a\nmajority of the directors then comprising the Incumbent Board shall\nbe considered as though such individual were a member of the\nIncumbent Board, but excluding, for purposes of this definition,\nany such individual whose initial assumption of office occurs as a\nresult of an actual or threatened election contest with respect to\nthe election or removal of directors or other actual or threatened\nsolicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n\n                    (iii)  Approval by the shareholders of the\nCompany of a reorganization, share exchange, merger or\nconsolidation (a 'Business Combination'), in each case, unless,\nfollowing such Business Combination, (x) all or substantially all\nof the individuals and entities who were the beneficial owners,\nrespectively, of the Outstanding Company Common Stock and\nOutstanding Company Voting Securities immediately prior to such\nBusiness Combination beneficially own, directly or indirectly, more\nthan 70% of, respectively, the then outstanding shares of common\nstock and the combined voting power of the then outstanding voting\nsecurities entitled to vote generally in the election of directors,\nas the case may be, of the corporation resulting from such Business\nCombination (including, without limitation, a corporation which as\na result of such transaction owns the Company through one or more\nsubsidiaries) in substantially the same proportions as their\nownership, immediately prior to such Business Combination of the\nOutstanding Company Common Stock and Outstanding Company Voting\nSecurities, as the case may be, (y) no Person (excluding any\nemployee benefit plan (or related trust) of the Company or such\ncorporation resulting from such Business Combination) beneficially\nowns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding shares of common stock of the corporation\nresulting from such Business Combination or the combined voting\npower of the then outstanding voting securities of such corporation\nexcept to the extent that such ownership existed prior to the\n\n                             -3-\n\n\n\n\nBusiness Combination, and (z) at least a majority of the members of\nthe board of directors of the corporation resulting from such\nBusiness Combination were members of the Incumbent Board at the\ntime of the execution of the initial agreement, or of the action of\nthe Board, providing for such Business Combination or were elected,\nappointed or nominated by the Board; or\n\n                    (iv)  Approval by the shareholders of the\nCompany of (x) a complete liquidation or dissolution of the Company\nor, (y) the sale or other disposition of all or substantially all\nof the assets of the Company, other than to a corporation, with\nrespect to which following such sale or other disposition, (A) more\nthan 70% of, respectively, the then outstanding shares of common\nstock of such corporation and the combined voting power of the then\noutstanding voting securities of such corporation entitled to vote\ngenerally in the election of directors is then beneficially owned,\ndirectly or indirectly, by 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 proportions as\ntheir ownership, immediately prior to such sale or other\ndisposition, of the Outstanding Company Common Stock and\nOutstanding Company Voting Securities, as the case may be, (B) less\nthan 20% of, respectively, the then outstanding shares of common\nstock of such corporation and the combined voting power of the then\noutstanding voting securities of such corporation entitled to vote\ngenerally in the election of directors is then beneficially owned,\ndirectly or indirectly, by any Person (excluding any employee\nbenefit plan (or related trust) of the Company or such\ncorporation), except to the extent that such Person owned 20% or\nmore of the Outstanding Company Common Stock or Outstanding Company\nVoting Securities prior to the sale or disposition, and (C) at\nleast a majority of the members of the board of directors of such\ncorporation were members of the Incumbent Board at the time of the\nexecution of the initial agreement, or of the action of the Board,\nproviding for such sale or other disposition of assets of the\nCompany or were elected, appointed or nominated by the Board.\n\n          2.   AGREEMENT NOT EMPLOYMENT CONTRACT.  This Agreement\nshall be considered solely as a 'severance agreement' obligating\nthe Company to pay to the Executive certain amounts of compensation\nin the event and only in the event of his termination of employment\nafter the Control Date for the reasons and at the times specified\nherein.\n\n          3.   TERMINATION.  Except as provided in Section 5\nhereof, this Agreement shall terminate upon the first to occur of\nthe following events.\n\n               (a)  DEATH.  The date of death of the Executive.\n\n                               -4-\n\n\n               (b)  CAUSE.  The termination of the Executive's\nemployment by the Company for 'Cause.'  For purposes of this\nAgreement, termination of the Executive's employment by the Company\nfor Cause shall mean termination for one of the following reasons:\n(i) the conviction of the Executive of a felony by a federal or\nstate court of competent jurisdiction; (ii) an act or acts of\ndishonesty taken by the Executive and intended to result in\nsubstantial personal enrichment of the Executive at the expense of\nthe Company; or (iii) the Executive's 'willful' failure to follow\na direct, reasonable and lawful written order from his supervisor,\nwithin the reasonable scope of the Executive's duties, which\nfailure is not cured within 30 days.  Further, for purposes of this\nSection (b):\n\n                    (1)    No act or failure to act, on the\nExecutive's part shall be deemed 'willful' unless done, or omitted\nto be done, by the Executive not in good faith and without\nreasonable belief that the Executive's action or omission was in\nthe best interest of the Company.\n\n                    (2)    The Executive shall not be deemed to\nhave been terminated for Cause unless and until there shall have\nbeen delivered to the Executive a copy of a resolution duly adopted\nby the affirmative vote of not less than three-fourths (3\/4ths) of\nthe entire membership of the Board at a meeting of the Board called\nand held for such purpose (after reasonable notice to the Executive\nand an opportunity for the Executive, together with the Executive's\ncounsel, to be heard before the Board), finding that in the good\nfaith opinion of the Board the Executive was guilty of conduct set\nforth in clauses (i), (ii) or (iii) above and specifying the\nparticulars thereof in detail.\n\n               (c)  GOOD REASON.  The termination of the\nExecutive's employment by the Executive for Good Reason.  For\npurposes of this Agreement, 'Good Reason' means:\n\n                    (i)   the assignment to the Executive of any\n          duties inconsistent in any respect with the Executive's\n          position (including status, offices, titles and reporting\n          requirements), authority, duties or responsibilities or\n          any other action by the Company which results in a\n          diminishment in such position, compensation, authority,\n          duties or responsibilities, other than an insubstantial\n          and inadvertent action which is remedied by the Company\n          promptly after receipt of written notice thereof given by\n          the Executive\n\n                    (ii)   the Company's requiring the Executive to\n          be based at any office or location more than 25 miles\n          from where the Executive was employed immediately prior\n          to the Change of Control, except for periodic travel\n\n                              -5-\n\n\n\n          reasonably required in the performance of the Executive's\n          responsibilities; or\n\n                    (iii)  any failure by the Company to comply\n          with and satisfy Section 11(a) of this agreement.\n\n               (d)  FAILURE TO EXTEND AGREEMENT.  The Company gives\nnotice of its intent not to extend the Change of Control Period as\nprovided in Section 1(b) hereof.\n\n          4.   NOTICE OF TERMINATION.  Any termination of\nemployment by the Company for Cause or by the Executive for Good\nReason as provided in Section 3, above, shall be communicated by\nNotice of Termination to the other party hereto given in accordance\nwith Section 13 of this Agreement.  For purposes of this Agreement,\na 'Notice of Termination' means a written notice which (i)\nindicates the specific termination provision in this Agreement\nrelied upon, (ii) sets forth in reasonable detail the facts and\ncircumstances claimed to provide a basis for termination of the\nExecutive's employment under the provision so indicated and (iii)\nif the termination date is other than the date of receipt of such\nnotice, specifies the termination date (which date shall be not\nmore than 15 days after the giving of such notice).\n\n          5.   OBLIGATIONS OF THE COMPANY UPON TERMINATION\nFOLLOWING CHANGE OF CONTROL.  If (i) within 24 months of the\nControl Date the Company shall terminate the Executive's employment\nfor any reason other than for Cause or death, or (ii) within 24\nmonths of the Control Date the employment of the Executive shall be\nterminated by the Executive for Good Reason, then, upon the\noccurrence of either event as described in clauses (i) and (ii),\nthe Company shall pay to the Executive in a lump sum, in cash,\nwithin 30 days after the date of termination of employment an\namount equal to 24 times the Base Compensation Rate (defined below)\non the Control Date.  'Base Compensation Rate' shall mean the\nmonthly rate of compensation of the Executive (before any salary\nreductions on account of contributions made pursuant to either\nSections 401(k) or 125 of the Code, if applicable) in effect as of\nthe Effective Date or such rate as increased but not reduced) from\nthe Effective Date until the Control Date.  The Executive's Base\nCompensation Rate as of the Effective Date is the monthly rate of\nsalary, payable bi-weekly.  Provided, in the event the Executive\nhas not attained his Normal Retirement Date as of the Control Date,\nand if his Normal Retirement Date would occur within 24 months of\nhis Control Date assuming the Executive continued in the employ of\nthe Company until his Normal Retirement Date and then retired,\nthen, in such event, the aforesaid factor '24' shall be reduced to\nequal the number of months (partial months shall be considered as\na whole month) remaining between the Control Date and the\nExecutive's Normal Retirement Date.  Provided further, if the\nExecutive has attained his Normal Retirement Date on the Control\nDate, then, the factor '24' as used in this Section 5 shall be\n\n                              -6-\n\n\n\nreduced to zero, and such Executive shall be entitled to no payment\nunder this Agreement.\n\n          6.   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 the\nExecutive, whether paid or payable or distributed or distributable\npursuant to the terms of this Agreement or otherwise, including, by\nexample and not by way of limitation, acceleration by the Company\nof the date of vesting or payment or rate of payment under any\nplan, program or arrangement of the Company (a 'Payment'), would be\nsubject to the excise tax imposed by Section 4999 of the Internal\nRevenue Code of 1986, as amended (the  'Code') or any interest or\npenalties with respect to such excise tax (such excise tax,\ntogether with any such interest and penalties, are hereinafter\ncollectively referred to as the 'Excise Tax'), then the Executive\nshall be entitled to receive an additional payment (a 'Gross-Up\nPayment') in an amount such that after payment by the Executive of\nall taxes (including any interest or penalties imposed with respect\nto such taxes), including any Excise Tax, imposed upon the Gross-Up\nPayment, the Executive retains an amount of the Gross-Up Payment\nequal to the Excise Tax imposed upon the Payments.\n\n               (b)  Subject to the provisions of Section 6(c), all\ndeterminations required to be made under this Section 6, including\nwhether a Gross-Up Payment is required and the amount of such\nGross-Up Payment, shall be made by Deloitte &amp; Touche LLP (the\n'Accounting Firm') which shall provide detailed supporting\ncalculations both to the Company and the Executive within 15\nbusiness days of the receipt of notice from the Executive that\nthere has been a Payment which would be subject to the Excise Tax,\nor such earlier time as is requested by the Company.  The initial\nGross-Up Payment, if any, as determined pursuant to this Section\n6(b), shall be paid to the Executive within five days of the\nreceipt of the Accounting Firm's determination.  If the Accounting\nFirm determines that no Excise Tax is payable by the Executive, it\nshall furnish the Executive with an opinion that he has substantial\nauthority not to report any Excise Tax on his federal income tax\nreturn.  Any determination by the Accounting Firm shall be binding\nupon the Company and the Executive.  As a result of the uncertainty\nin the application of Section 4999 of the Code at the time of the\ninitial determination by the Accounting Firm hereunder, it is\npossible that Gross-Up Payments which will not have been made by\nthe Company should have been made ('Underpayment'), consistent with\nthe calculations required to be made hereunder.  In the event that\nthe Company exhausts its remedies pursuant to Section 6(c) and the\nExecutive thereafter is required to make a payment of any Excise\nTax, the Accounting Firm shall determine the amount of the\nUnderpayment that has occurred and any such Underpayment shall be\n\n                                -7-\n\n\n\npromptly paid by the Company to or for the benefit of the\nExecutive.\n\n               (c)  The Executive shall notify the Company in\nwriting of any claim by the Internal Revenue Service that, if\nsuccessful, would require the payment by the Company of the Gross-\nUp Payment.  Such notification shall be given as soon as\npracticable but no later than ten business days after the Executive\nknows of such claim and shall apprise the Company of the nature of\nsuch claim and the date on which such claim is requested to be\npaid.  The Executive shall not pay such claim prior to the\nexpiration of the 30-day period following the date on which it\ngives such notice to the Company (or such shorter period ending on\nthe date that any payment of taxes with respect to such claim is\ndue).  If the Company notifies the Executive in writing prior to\nthe expiration of such period that it desires to contest such\nclaim, the Executive shall:\n\n                    (i)    give the Company any information\nreasonably requested by the Company relating to such claim,\n\n                   (ii)    take such action in connection with\ncontesting such claim as the Company shall reasonably request in\nwriting from time to time, including, without limitation, accepting\nlegal representation with respect to such claim by an attorney\nreasonably selected by the Company,\n\n                  (iii)    cooperate with the Company in good faith\nin order effectively to contest such claim, and\n\n                   (iv)    permit the Company to participate in any\nproceedings relating to such claim;\n\nprovided, however, that the Company shall bear and pay directly all\ncosts and expenses (including additional interest and penalties)\nincurred in connection with such contest and shall indemnify and\nhold the Executive harmless, on an after-tax basis, for any Excise\nTax or income tax, including interest and penalties with respect\nthereto, imposed as a result of such representation and payment of\ncosts and expenses.  Without limitation on the foregoing provisions\nof this Section 6(c), the Company shall control all proceedings\ntaken in connection with such contest and, at its sole option, may\npursue or forgo any and all administrative appeals, proceedings,\nhearings and conferences with the taxing authority in respect of\nsuch claim and may, at its sole option, either direct the Executive\nto pay the tax claimed and sue for a refund or contest the claim in\nany permissible manner, and the Executive agrees to prosecute such\ncontest to a determination before any administrative tribunal, in\na court of initial jurisdiction and in one or more appellate\ncourts, as the Company shall determine; provided, however, that if\nthe Company directs the Executive to pay such claim and sue for a\nrefund, the Company shall advance the amount of such payment to the\n\n                                -8-\n\n\n\nExecutive, on an interest-free basis and shall indemnify and hold\nthe Executive harmless, on an after-tax basis, from any Excise Tax\nor income tax, including interest or penalties with respect\nthereto, imposed with respect to such advance or with respect to\nany imputed income with respect to such advance; and further\nprovided that any extension of the statute of limitations relating\nto payment of taxes for the taxable year of the Executive with\nrespect to which such contested amount is claimed to be due is\nlimited solely to such contested amount.  Furthermore, the\nCompany's control of the contest shall be limited to issues with\nrespect to which a Gross-Up Payment would be payable hereunder and\nthe Executive shall be entitled to settle or contest, as the case\nmay be, any other issue raised by the Internal Revenue Service or\nany other taxing authority.\n\n               (d)  If, after the receipt by the Executive of an\namount advanced by the Company pursuant to Section 6(c), the\nExecutive becomes entitled to receive any refund with respect to\nsuch claim, the Executive shall (subject to the Company's complying\nwith the requirements of Section 6(c)) promptly pay to the Company\nthe amount of such refund (together with any interest paid or\ncredited thereon after taxes applicable thereto).  If, after the\nreceipt by the Executive of an amount advanced by the Company\npursuant to Section 6(c), a determination is made that the\nExecutive shall not be entitled to any refund with respect to such\nclaim and the Company does not notify the Executive in writing of\nits intent to contest such denial of refund prior to the expiration\nof thirty days after such determination, then such advance shall be\nforgiven and shall not be required to be repaid and the amount of\nsuch advance shall offset, to the extent thereof, the amount of\nGross-Up Payment required to be paid.\n\n          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 plan\nor program provided by the Company or any of its affiliated\ncompanies and for which the Executive may qualify, nor shall\nanything herein limit or otherwise affect such rights as the\nExecutive may have under any stock option or other agreements with\nthe Company or any of its affiliated companies.  Amounts which are\nvested benefits or which the Executive is otherwise entitled to\nreceive under any plan or program of the Company or any of its\naffiliated companies at or subsequent to the date of termination of\nemployment shall be payable in accordance with such plan or\nprogram.\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\ncircumstances, including, without limitation, any set-off,\ncounterclaim, recoupment, defense or other right which the Company\nmay have against the Executive or others.  In no event shall the\n\n                               -9-\n\n\n\nExecutive be obligated to seek other employment by way of\nmitigation of the amounts payable to the Executive under any of the\nprovisions of this Agreement.\n\n          9.   CONFIDENTIAL INFORMATION.\n\n               (a)  REQUIREMENT OF EXECUTIVE.  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 affiliated companies, and their\nrespective businesses, which shall have been obtained by the\nExecutive during the Executive's employment by the Company or any\nof its affiliated companies and which shall not be public knowledge\n(other than by acts by the Executive or his representatives in\nviolation of this Agreement).  After termination of the Executive's\nemployment with the Company, the Executive shall not, without the\nprior written consent of the Company, communicate or divulge any\nsuch information, knowledge or data to anyone other than the\nCompany and those designated by it.  In no event shall an asserted\nviolation of the provisions of this Section 9 constitute a basis\nfor deferring or withholding any amounts otherwise payable to the\nExecutive under this Agreement.\n\n               (b)  ADDITIONAL REMEDIES.  The Executive agrees that\nthe remedy at law for any breach or threatened breach of any\ncovenant contained in this Section 9 will be inadequate, and that\nthe Company, in addition to such other remedies as may be available\nto it, in law or in equity, shall be entitled to injunctive relief\nwithout bond or other security.\n\n          10.  TERMINATION OF OLD AGREEMENT.  Effective as of March\n2, 1995, the date of the execution and delivery of this Agreement,\nthe Old Agreement shall be terminated and of no further force and\neffect.\n\n          11.  SUCCESSORS AND BINDING EFFECT.\n\n               (a)  SUCCESSOR MUST ASSUME AGREEMENT.  The Company\nwill require any successor (whether direct or indirect, by\npurchase, merger, consolidation or otherwise) to all or\nsubstantially all of the business and\/or assets of the Company to\nexpressly assume and agree to perform this Agreement in the same\nmanner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.  Failure of the\nCompany to obtain such assumption and agreement prior to the\neffectiveness of any such succession shall be a breach of this\nAgreement and shall entitle the Executive to compensation from the\nCompany in the same amount and on the same terms as the Executive\nwould be entitled to hereunder if the Executive terminated\nemployment for Good Reason following a Change of Control, except\nthat for purposes of implementing the foregoing, the date on which\nany such succession becomes effective shall be deemed the date of\n\n                               -10-\n\n\n\ntermination of employment. As used in this Agreement, 'Company'\nshall mean the Company as hereinbefore defined and any successor to\nits business and\/or assets which assumes and agrees to perform this\nAgreement by operation of law or otherwise.\n\n               (b)  BINDING EFFECT. This Agreement shall inure to\nthe benefit of and be enforceable by the Executive's personal or\nlegal representatives, executors, administrators, successors,\nheirs, distributees, devisees and legatees.  If the Executive\nshould die while any amount would still be payable to the Executive\nhereunder if the Executive had continued to live, all such amounts,\nunless otherwise provided herein, shall be paid in accordance with\nthe terms of this Agreement to the Executive's devisee, legatee or\nother designee or, if there is no such designee, to the Executive's\nestate.\n\n          12.  APPLICABLE LAW.  This Agreement shall be governed\nby and construed in accordance with the laws of the State of\nOklahoma, without reference to principles of conflict of laws.\n\n          13.  NOTICES.    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\n          IF TO THE EXECUTIVE:\n\n          At his last known address evidenced on the Company's\n          payroll records\n\n          IF TO THE COMPANY:\n\n          Fleming Companies, Inc.\n          6301 Waterford Boulevard\n          P. O. Box 26647\n          Oklahoma City, Oklahoma 73126\n\n          Attn:  Larry A. Wagner\n                 Senior Vice President - Human Resources\n\n          with a copy to:\n\n          David R. Almond, Esq.\n          Senior Vice President and General Counsel\n          Fleming Companies, Inc.\n          6301 Waterford Boulevard\n          P.O. Box 26647\n          Oklahoma City, Oklahoma  73126\n\n                             -11-\n\n\n\n          with a copy to:\n\n          McAfee &amp; Taft\n          A Professional Corporation\n          Tenth Floor Two Leadership Square\n          Oklahoma City, Oklahoma 73102\n\n          Attn:  John M. Mee, Esq.\n\nor to such other address as either party shall have furnished to\nthe other in writing in accordance herewith.  Notice and\ncommunications shall be effective when actually received by the\naddressee.\n\n          14.  TAXES TO BE WITHHELD.  The Company may withhold from\nany amounts payable under this Agreement such Federal, state or\nlocal taxes as shall be required to be withheld pursuant to any\napplicable law or regulation.\n\n          15.  ENTIRE AGREEMENT.  This Agreement constitutes the\nentire agreement among the parties with respect to the subject\nmatter hereof and supersedes any and all prior or contemporaneous\noral and prior written agreements and understandings.  There are no\noral promises, conditions, representations, understandings,\ninterpretations or terms of any kind as conditions or inducements\nto the execution hereof or in effect among the parties.\n\n          16.  AMENDMENT.  This Agreement may not be amended, and\nno provision hereof shall be waived, except by a writing signed by\nall parties to this Agreement, or, in the case of a waiver, by the\nparty waiving compliance therewith, which states that it is\nintended to amend or waive a provision of this Agreement.  Any\nwaiver of any rights or failure to act in a specific instance shall\nrelate only to such instance and shall not be construed as an\nagreement to waive any rights or failure to act in any other\ninstance, whether or not similar.\n\n          17.  ENFORCEABILITY.  Should any provision of this\nAgreement be unenforceable or prohibited by an applicable law, this\nAgreement shall be considered divisible as to such provision which\nshall be inoperative, and the remainder of this Agreement shall be\nvalid and binding as though such provision were not included\nherein.  The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement.\n\n          18.  COUNTERPARTS.  This Agreement may be executed in two\nor more counterparts with the same effect as if the signatures to\nall such counterparts were upon the same instrument, and all such\ncounterparts shall constitute but one instrument.\n\n          19.  HEADINGS.  All headings in this Agreement are for\nconvenience only and are not intended to affect the meaning of any\nprovision hereof.\n\n                              -12-\n\n\n          20.  NO TRUST.  No action under this Agreement by the\nCompany or its Board of Directors shall be construed as creating a\ntrust, escrow or other secured or segregated fund, in favor of the\nExecutive or his beneficiary.  The status of the Executive and his\nbeneficiary with respect to any liabilities assumed by the Company\nhereunder shall be solely those of unsecured creditors of the\nCompany.  Any asset acquired or held by the Company in connection\nwith liabilities assumed by it hereunder, shall not be deemed to be\nheld under any trust, escrow or other secured or segregated fund\nfor the benefit of the Executive or his beneficiary or to be\nsecurity for the performance of the obligations of the Company, but\nshall be, and remain a general, unpledged, unrestricted asset of\nthe Company at all times subject to the claims of general creditors\nof the Company.\n\n          21.  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\nhis\/her hand and, pursuant to the authorization from its Board of\nDirectors, the Company has caused these presents to be executed in\nits name on its behalf all as of the day and year first above\nwritten.\n\n                           ------------------------------------------\n                                   3\n\n                                  'EXECUTIVE'\n\n\n                           FLEMING COMPANIES, INC., an Oklahoma\n                               corporation\n\n                            By\n                               --------------------------------------\n                               Robert E. Stauth\n                               Chairman, President &amp; Chief\n                               Executive Officer\n\n                                   'COMPANY'\n\n                             -13-\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-40507","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\/40507","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=40507"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40507"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40507"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40507"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}