{"id":40694,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/supplemental-retirement-income-agreement-fleming-companies-inc2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"supplemental-retirement-income-agreement-fleming-companies-inc2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/supplemental-retirement-income-agreement-fleming-companies-inc2.html","title":{"rendered":"Supplemental Retirement Income Agreement &#8211; Fleming Companies Inc. and William J. Dowd"},"content":{"rendered":"<pre>SUPPLEMENTAL RETIREMENT INCOME AGREEMENT OF\n\nFLEMING COMPANIES, INC.\n\nAND WILLIAM J. DOWD\n\n(Execution Date:  February 25, 1997)\n\nSUPPLEMENTAL RETIREMENT INCOME AGREEMENT\n\n\n  THIS SUPPLEMENTAL RETIREMENT INCOME AGREEMENT by and between FLEMING\nCOMPANIES, INC., an Oklahoma corporation (the 'Company') and WILLIAM J. DOWD, an\nindividual (the 'Executive') dated this 25th day of February, 1997 (the\n'Agreement').\n\n  WITNESSETH:\n\n  WHEREAS, the Executive has previously executed that certain Offer For\nCompensation dated July 7, 1995 (the 'Offer') which provided the Executive a\n'supplemental retirement income' (the 'Prior Benefit') in addition to other\nbenefits; and\n\n  WHEREAS, subsequent to the Offer, the Company selected the Executive to be a\nparticipant in that certain nonqualified retirement plan entitled 'Supplemental\nRetirement Income Plan of Fleming Companies, Inc. and Its Subsidiaries' (the\n'Prior Plan'); and\n\n  WHEREAS, the Company and the Executive never executed an agreement to evidence\nthe participation of the Executive in the Prior Plan; and\n\n  WHEREAS, the Executive and the Company desire to cancel that portion of the\nOffer which provided for the Prior Benefit upon the execution of this Agreement;\nand\n\n  WHEREAS, the Company desires to provide a 'supplemental retirement income'\npursuant to the terms of this Agreement.\n\n  NOW, THEREFORE, in consideration of the covenants, provisions and other\nvaluable consideration, the receipt of which is hereby acknowledged by the\nExecutive, the parties hereto agree as follows:\n\n1. Supplemental Retirement Income and Cancellation of Prior Benefit.\n\n(a)  Supplemental Retirement Income.  The Executive shall be entitled to receive\nannual supplemental retirement income (the 'Supplemental Retirement Income')\nupon his termination from the employ of the Company or any subsidiary (the\n'Subsidiary') of which the Company owns 80% or more of the outstanding voting\ncommon stock, provided, he remains continuously employed as of the following\n<font size=\"2\">applicable dates:\n\n                                             Vested\n                        Attained Date   Annual Supplemental\n             Year       of Employment   Retirement Income\n\n\n\nAfter year     1          7\/24\/1996               -0-\n               2          7\/24\/1997               -0-\n               3          7\/24\/1998               -0-\n               4          7\/24\/1999               -0-\n               5          7\/24\/2000          $ 81,000\n               6          7\/24\/2001            92,570\n               7          7\/24\/2002           104,140\n               8          7\/24\/2003           115,710\n               9          7\/24\/2004           127,280\n              10          7\/24\/2005           138,850\n              11          7\/24\/2006           150,420\n              12          7\/24\/2007           162,000\n\n<\/font>Further, in the event that the Executive terminates employment between any of\nthe applicable required attained dates of employment, the Executive's\nSupplemental Retirement Income will be interpolated by subtracting the most\nrecent vested amount of Supplemental Retirement Income from the next vested\namount of Supplemental Retirement Income, dividing such difference by 12 and\nmultiplying the quotient by the number of completed whole months of employment\nbetween the last attained date of employment and the date of termination of\nemployment of the Executive.\n\nFor example, if the Executive terminates employment with the Company or a\nSubsidiary on October 15th, 2000, then, the Executive's Supplemental Retirement\n<font size=\"2\">Income would equal  $82,928.32 calculated as follows:\n\nSupplemental Retirement Income at 7\/24\/2001:                $92,570\n                                                       \nSupplemental Retirement Income at 7\/24\/2000 =               $81,000\nDifference                                                   11,570\n                                                       \nDivided by 12 =                                             $964.17\nCompleted months of service from 7\/24\/2000-10\/15\/2000         x   2\nAdditional Supplemental Retirement Income                 $1,928.34\n                                                       \nVested Supplemental Retirement Income @ 7\/24\/2000         81,000.00\nTotal Supplemental Retirement Income                     $82,928.34\n\n<\/font>(b)  Cancellation of Prior Benefit.  In consideration of the Supplemental\nRetirement Income provided in this Agreement, the Prior Benefit is hereby\ncancelled and rescinded in all respects.  Except to the extent that the Offer\nhas been amended to delete the Prior Benefit, the Offer shall continue in\naccordance with its terms.\n\n2.  Manner of Payment of Supplemental Retirement Income.  The Supplemental\nRetirement Income will be paid to the Executive and his designated beneficiary\n(the 'Beneficiary'), if applicable, in the manner elected below:  (Check and\ninitial One Box Only)\n\nMethods of Payment\n\nOption  1.  [  ]  Life of Executive Only (Single Life Basis)\nOption  2.  [  ]  50% Joint Annuitant Survivor Benefit\nOption  3.  [  ]  75% Joint Annuitant Survivor Benefit\nOption  4.  [  ]  100% Joint Annuitant Survivor Benefit\nOption  5.  [  ]  5 Year Period Certain\nOption  6.  [  ]  10 Year Period Certain\nOption  7.  [  ]  15 Year Period Certain\n\n                                     -2-\n\n\nThe actual amounts payable to the Executive will depend upon the date that the\nExecutive terminates employment.  The Supplemental Retirement Income will be\npaid at least quarterly as determined by the Compensation and Organization\nCommittee (the 'Committee') of the Company.  If no election is made, the benefit\nwill automatically be paid on a 'single life basis' under Option 1, above.\nRefer to Exhibit 'A' for a complete description of the Methods of Payment.\n\n3.  Termination of Employment.\n\n(a)  Termination Prior to July 24, 2000.  In the event that the Executive\nterminates employment for any reason prior to July 24, 2000, then, except as\nprovided in Section (b) below, the Executive shall have no rights of any kind\nwhatsoever in the Supplemental Retirement Income (or any other benefit)\notherwise paid pursuant to this Agreement.\n\n(b)  Acceleration of Accrual of Supplemental Retirement Income Upon Change of\nControl.  In the event that there is a 'change of control' ('Change of Control')\nas defined in the Prior Plan (or any successor plan thereto), and within three\nyears following such Change of Control, the Executive's employment is terminated\nfor any reason by either the Company or the Executive, the Executive shall be\nentitled to his Supplemental Retirement Income earned by such Executive as of\nhis date of termination of employment but in no event will the amount be less\nthan the benefit which the Executive would have been entitled to if the\nExecutive remained in the continuous employ of the Company until July 24, 2000\n($81,000 paid annually on a single life basis), with such Supplemental\nRetirement Income to be paid beginning immediately upon the termination of\nemployment.\n\n4.  Restrictions on Alienation of Benefits.  No right or benefit under this\nAgreement shall be subject to anticipation, alienation, sale, assignment,\npledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell,\nassign, pledge, encumber, or charge the same shall be void.  No right or benefit\nhereunder shall in any manner be liable for or subject to the debts, contracts,\nliabilities, or torts of the person entitled to such benefit.  If the Executive\nor Beneficiary under this Agreement should become bankrupt or attempt to\nanticipate, alienate, sell, assign, pledge, encumber, or charge any right to a\nbenefit under this Agreement, then such right or benefit shall, in the\ndiscretion of the Committee, be held or applied for the benefit of the Executive\nor Beneficiary, his spouse, children, or other dependents, or any of them, in\nsuch manner and in such portion as the Committee, in its sole and absolute\ndiscretion, may deem proper.\n\n5.  No Trust.  No action under this Agreement by the Company, its Board of\nDirectors or the Committee shall be construed as creating a trust, escrow or\nother secured or segregated fund in favor of the Executive, his Beneficiary, or\nany other persons otherwise entitled to his Supplemental Retirement Income.  The\nstatus of the Executive and his Beneficiary with respect to any liabilities\nassumed by the Company hereunder shall be solely those of unsecured creditors of\nthe Company and\/or any Subsidiary.  Any asset acquired or held by the Company or\nany Subsidiary in connection with liabilities assumed by it hereunder, shall not\nbe deemed to be held under any trust, escrow or other secured or segregated fund\nfor the benefit of the Executive or his Beneficiaries or to be security for the\nperformance of the obligations of the Company or any Subsidiary, but shall be,\nand remain a general, unpledged, unrestricted asset of the Company or any\nSubsidiary at all times subject to the claims of general creditors of the\nCompany or any Subsidiary.\n\n6.  Withholding and Other Employment Taxes.  The Company shall comply with all\nfederal and state laws and regulations respecting the withholding, deposit and\n\n                                     -3-\n\n\npayment of any income or other taxes relating to any payments made under this\nAgreement.\n\n7.  Claims Procedure.\n\n(a)  The Committee shall make all determinations as to the right of any person\nto benefits.  If any request for a benefit is wholly or partially denied, the\nCommittee shall notify the person requesting the pension benefits, in writing,\nof such denial, including in such notification the following information:\n\n(b)  the specific reason or reasons for such denial;\n\n(c)  the specific references to the pertinent Agreement provisions upon which\nthe denial is based;\n\n(d)  a description of any additional material and information which may be\nneeded to clarify the request, including an explanation of why such information\nis required; and\n\n(e)  an examination of this Agreement's review procedure with respect to denial\nof benefits.\n\nProvided, that any such notice to be delivered to any Executive or Beneficiary\nshall be mailed by certified or registered mail and shall be written to the best\nof the Committee's ability in a manner that may be understood without legal\ncounsel.\n\n8.  Review Procedure.  The Executive or Beneficiary whose claim has been denied\nin accordance with Section 7 herein may appeal to the Committee for review of\nsuch denial by making a written request therefor within 60 days of receipt of\nthe notification of such denial.  The Executive or Beneficiary may examine\ndocuments pertinent to the review and may submit to the Committee written issues\nand comments.  Within 60 days after receipt of the request for review, the\nCommittee shall communicate to the claimant, in writing, its decision, and the\ncommunication shall set forth the reason or reasons for the decision and\nspecific reference to those Agreement provisions upon which the decision is\nbased.\n\n9.  Records and Reports.  The Committee shall exercise such authority and\nresponsibility as it deems appropriate in order to comply with governmental\nregulations relating to records of the Executive's accounts and benefits which\nmay be paid under the Agreement; and to notify the Executive and Beneficiaries\nas required.\n\n10.  Other Committee Powers and Duties.  The Committee shall have such duties\nand powers as may be necessary to discharge its duties hereunder, including, but\nnot by way of limitation, the following:\n\n(a)  to construe and interpret the Agreement in its sole and absolute\ndiscretion, decide all questions of eligibility and determine the amount, manner\nand time of payment of any benefits hereunder;\n\n(b)  to prescribe procedures to be followed by the Executive or Beneficiary\nfiling applications for benefits;\n\n(c)  to prepare and distribute, in such manner as the Committee determines to be\nappropriate, information explaining the Agreement;\n\n(d)  to receive from the Company and from the Executive and Beneficiaries such\ninformation as shall be necessary for the proper administration of the\nAgreement;\n\n                                     -4-\n\n\n(e)  to furnish the Company, upon request, such reports with respect to the\nadministration of the Agreement as are reasonable and appropriate;\n\n(f)  to appoint and employ individuals and any other agents it deems advisable,\nincluding legal counsel, to assist in the administration of the Agreement and to\nrender advice with respect to any responsibility of the Committee, or any of its\nindividual members, under the Agreement;\n\n(g)  to allocate among themselves who shall be responsible for specific duties\nand to designate fiduciaries (other than Committee members) to carry out\nresponsibilities under the Agreement; provided that any such allocations shall\nbe reduced to writing, signed by all Committee members, and filed in a permanent\nCommittee minute book; and\n\n(h)  to maintain continuing review of applicable laws, implementing regulations\nthereto and suggest changes and modifications to the Company in connection with\ndelegations of responsibility, as appropriate, and amendments to the Agreement.\n\n11.  Rules and Decisions.  The Committee may adopt such rules as it deems\nnecessary, desirable, or appropriate.  When making a determination or\ncalculation, the Committee shall be entitled to rely upon information furnished\nby a Executive or Beneficiary, the Company or the legal counsel of the Company.\n\n12.  Committee Procedures.  The Committee may act at a meeting or in writing\nwithout a meeting.  The Committee shall have a chairman, and appoint a\nsecretary, who may or may not be a Committee member.  The secretary shall keep a\nrecord of all meetings in a permanent Committee minute book and forward all\nnecessary communications to the Company.  The Committee may adopt such bylaws\nand regulations as it deems desirable for the conduct of its affairs.  All\ndecisions of the Committee shall be made by the vote of the majority including\nactions in writing taken without a meeting.  A dissenting Committee member who,\nwithin a reasonable time after he has knowledge of any action or failure to act\nby the majority, registers his dissent in writing delivered to the other\nCommittee members, to the extent permitted by law, shall not be responsible for\nany such action or failure to act.\n\n13.  Assumption of Agreement.  The Company will require any successor (whether\ndirect or indirect, by purchase, merger, consolidation or otherwise) to all or\nsubstantially all of the business and\/or assets of the Company to expressly\nassume and agree to perform the Company's and any Subsidiary's obligations under\nthis Agreement in the same manner and to the same extent that the Company or\nsuch Subsidiary would be required to perform if no such succession had taken\nplace.  Failure of the Company to obtain such assumption and agreement prior to\nthe effectiveness of any succession shall be a breach by the Company of its\nobligations under this Agreement and shall entitle the Executive to payment from\nthe Company in the same amount and on the same terms as the Executive would be\nentitled to hereunder if the Executive's employment was terminated immediately\nfollowing a Change of Control, except that for purposes of implementing the\nforegoing, the date on which any such succession becomes effective shall be\ndeemed the date of termination of employment.\n\n14.  Forfeiture of All Benefits.  In the event that (i) the Executive is\ndischarged from employment service with the Company for acts of dishonesty,\nfraud, theft, embezzlement, (ii) upon the conviction by a court of competent\njurisdiction of a crime that is deemed to be a felony under the laws of the\nState of Oklahoma (or any other state) or laws of the United States, or (iii) in\nthe event the Executive commits any other act or acts which are injurious and\nadversely impacts the Company in any manner whatsoever, then, in such events,\nthe Committee, in its sole discretion, may determine that any benefit\n\n                                     -5-\n\n\nwhich would otherwise be provided to the Executive under the Agreement or the\nAgreement shall be forfeited in its entirety, and it shall thereafter be\ndeemed as if the Executive never was selected for participation in the\nAgreement.\n\n15.  Minimum Benefit.  Notwithstanding any provision of this Agreement to the\ncontrary, in the event that the Company selects and the Executive agrees to be a\nparticipant in the Prior Plan or any successor thereto, then, the Supplemental\nRetirement Income accrued under this Agreement shall be the minimum benefits to\nbe provided to the Executive under such Prior Plan.\n\n16.  Miscellaneous.\n\n16.1  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\n16.2  Headings.  The captions of this Agreement are not part of the provisions\nhereof and shall have no force and effect.\n\n16.3  Taxes.  The Executive acknowledges that the payments and benefits to which\nhe is entitled to under this Agreement will be includable in his taxable income.\nAccordingly, Executive agrees (i) to pay all required income, employment and\nother taxes attributable to such payments and benefits and (ii) that the Company\nmay be required to withhold all applicable taxes from such payments and\nbenefits.\n\n16.4  Amendment.  This Agreement may not be amended or modified otherwise than\nby a written agreement executed by the parties hereto or their respective heirs,\nsuccessors, assigns or the legal representatives, as the case may be.\n\n16.5  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\nIf to Executive:\n\nWilliam J. Dowd\n18701 Woody Creek Drive\nOklahoma City, Oklahoma  73003\n\nIf to the Company:\n\nFleming Companies, Inc.\n6301 Waterford Boulevard\nP.O. Box 26647\nOklahoma City, Oklahoma 73126\n\nAttention: Robert E. Stauth\nChairman and Chief Executive Officer\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\n16.6  Severability.  The invalidity or enforceability of any provision of this\nAgreement shall not affect the validity or enforceability of any other provision\nof this Agreement.\n\n                                     -6-\n\n\n16.7  No Waiver.  The Company's or the Executive's failure to insist upon strict\ncompliance with any provision hereof shall not be deemed to be a waiver of such\nprovision or any other provision hereof.\n\n16.8  Entire Agreement.  This Agreement contains the entire understanding of the\nCompany and Executive with respect to the subject matter hereof.\n\n16.9  Binding Effect.  This Agreement shall inure to the benefit of and be\nbinding upon the Company, Executive, their respective heirs, successors, assigns\nor legal representatives, as the case may be.\n\n  IN WITNESS WHEREOF, Executive has hereunto set his hand and, pursuant to the\nauthorization from its Board of Directors, the Company has caused these presents\nto be executed in its name on its behalf, all as of the day and year first above\nwritten.\n\n  EXECUTED the date and year first above written.\n\nFLEMING COMPANIES, INC., a corporation\n\n\nBy: \/s\/ Robert E. Stauth       \n        Robert E. Stauth, \n        Chairman and\n        Chief Executive Officer\n\n    'COMPANY'\n\n\n    \/s\/ William J. Dowd\n        William J. Dowd\n\n    'EXECUTIVE'\n\n\n                                     -7-\n\n\nEXHIBIT 'A'\n\nDescription of Methods of Payment\n\n\n\n\nMETHOD 1 - Life of              A Supplemental Retirement Income will be\nParticipant Only:               paid for the Executive's life only.  Upon the\n                                Executive's death, all payments of Supplemental\n                                Normal Retirement Income shall cease.\n\n\n\nMETHOD 2 - 50%                  A reduced amount of Supplemental Retirement\nJoint Annuitant                 Income will be paid to the Executive for his\nSurvivor Benefit:               life, then, at the Executive's death 50% of such\n                                amount shall be paid to the Executive's\n                                surviving Beneficiary.  In the event that the\n                                Executive's surviving Beneficiary has prede-\n                                ceased him, or should otherwise die after the\n                                Executive's death, then no further payments will\n                                be paid under Method 2 or this Agreement.\n\nMETHOD 3 - 75%                  A reduced amount of Supplemental Retirement\nJoint Annuitant                 Income will be paid to the Executive for his\nSurvivor Benefit:               life, then, at the Executive's death 75% of\n                                such amount shall be paid to the Executive's\n                                surviving Beneficiary.  In the event that the\n                                Executive's surviving Beneficiary has\n                                predeceased him, or should otherwise die after\n                                the Executive's death, then no further\n                                payments will be due under Method 3 or this\n                                Agreement.\n\nMETHOD 4 - 100%                 A reduced amount of Supplemental Retirement\nJoint Annuitant                 Income will be paid to the Executive for his\nSurvivor Benefit:               life, then, at the Executive's death 100% of\n                                such amount shall be paid to the Executive's\n                                surviving Beneficiary.  In the event that the\n                                Executive's surviving Beneficiary has\n                                predeceased him, or should otherwise die after\n                                the Executive's death, then no further\n                                payments will be due under Method 4 or this\n                                Agreement.\n\n                                     -1-\n\n\nMETHOD 5 - 5 Year               A reduced amount of Supplemental Retirement\nPeriod Certain:                 Income will be paid for a period of 5 years\n                                certain.  After the expiration of such 5 year\n                                period, payments shall then continue for the\n                                Executive's life in the same amount.  In the\n                                event of the Executive's death during the 5\n                                year period certain, then, the balance of such\n                                payments due only during such 5 year period\n                                will be paid to the Executive's surviving\n                                Beneficiary. After the expiration of such 5\n                                year period, then all payments shall cease.\n                                In the event of the expiration of such 5 year\n                                period, and the Executive dies, then, no\n                                further benefits will be paid under METHOD 5\n                                or this Agreement.\n\nMETHOD 6 - 10 Year              A reduced amount of Supplemental Retirement\nPeriod Certain:                 Income shall be paid for a period of 10 years\n                                certain.  After the expiration of such 10 year\n                                period, payments shall then continue for the\n                                Executive's life in the same amount.  In the\n                                event of the Executive's death during the 10\n                                year period certain, then, the balance of such\n                                payments due only during such 10 year period\n                                will be paid to the Executive's surviving\n                                Beneficiary.  After the expiration of such 10\n                                year period, then all payments shall cease. \n                                In the event of the expiration of such 10 year\n                                period, and the Executive dies, then, no\n                                further benefits will be paid under METHOD 6\n                                or this Agreement.\n\nMETHOD 7 - 15 Year              A reduced amount of Supplemental Retirement\nPeriod Certain:                 Income shall be paid for a period of 15 years\n                                certain.  After the expiration of such 15 year\n                                period, payments shall then continue for the\n                                Executive's life in the same amount.  In the\n                                event of the Executive's death during the 15\n                                year period certain, then, the balance of such\n                                payments due only during such 15 year period\n                                will be paid to the Executive's surviving\n                                Beneficiary.  After the expiration of such 15\n                                year period, then all payments shall cease. \n                                In the event of the expiration of such 15 year\n                                period, and the Executive dies, then, no\n                                further benefits will be paid under METHOD 7\n                                or this Agreement.\n\n                                     -2-\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":[9539,9544],"class_list":["post-40694","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleming-companies-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40694","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=40694"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40694"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40694"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40694"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}