Exhibit 10.5
SEVERANCE AGREEMENT
SEVERANCE AGREEMENT (the "Agreement") entered into
between Fleming Companies, Inc., an Oklahoma corporation (the
"Company"), and _________________, an individual (the
"Executive"), dated as of this ___ day of _____________, 1999
(the "Effective Date").
WHEREAS, the Company deems the services of the
Executive to be of great and unique value to the business of the
Company and the Company desires to assure both itself of
continuity of management and the Executive of continued
employment; and
WHEREAS, the Executive is a key management associate of
the Company and is presently making and is expected to continue
making substantial contributions to the Company; and
WHEREAS, it is in the best interests of the Company and
its shareholders to induce the Executive to remain in the employ
of the Company; and
WHEREAS, the Executive presently is serving in his/her
capacity as a ______________ Associate of the Company; and
WHEREAS, the Company desires to provide an additional
inducement for the Executive to remain in the employ of the
Company as hereinafter provided by providing to him/her
additional amounts of compensation as provided in this Agreement
in the event of his/her termination of employment for the reasons
specified herein.
NOW, THEREFORE, in consideration of the mutual
covenants hereinafter set forth and for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Executive and the Company hereby agree as
provided below.
1. Operation of Agreement. The purpose of this
Agreement is to provide to the Executive additional amounts of
compensation as provided in this Agreement in the event of
his/her termination of employment for the reasons specified
herein. Accordingly, the Company and the Executive have entered
into this Agreement in accordance with the terms and provisions
herein to provide for such protection to the Executive.
(a) Control Date. The "Control Date" shall be
the date during the "Change of Control Period" (as defined in
Section 1(b)) on which a Change of Control (as defined in Section
1(c)) occurs. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Company
is terminated prior to the date on which a Change of Control
occurs, and it is reasonably demonstrated that such termination
(i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control or (ii)
otherwise arose in connection with or anticipation of a Change of
Control, then for all purposes of this Agreement the "Control
Date" shall mean the date immediately prior to the date of such
termination.
(b) Change of Control Period. The "Change of
Control Period" is the period commencing on the Effective Date
and ending on the first to occur of (i) the second anniversary of
such date or (ii) the first day of the month coinciding with or
next following the Executive's attainment of age 65 ("Normal
Retirement Date"); provided, however, that commencing on the date
one year after the date hereof, and on each annual anniversary of
such date (the date one year after the date hereof and each
annual anniversary of such date, is hereinafter referred to as
the "Renewal Date"), the Change of Control Period shall be
automatically extended so as to terminate on the first to occur
of: (i) two years from such Renewal Date or (ii) the first day of
the month coinciding with or next following the Executive's
Normal Retirement Date, unless at least 60 days prior to the
Renewal Date, the Company shall give notice that the Change of
Control Period shall not be so extended, in which event this
Agreement shall continue for the remainder of the term of the
then current Change of Control Period and terminate as provided
herein.
(c) Definition of Change of Control. For the
purpose of this Agreement, a "Change of Control" shall mean:
(i) The acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20%
or more (the "Triggering Percentage") of either (x) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (y) the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, in
the event the "Incumbent Board" (as such term is hereinafter
defined) pursuant to authority granted in any rights agreement to
which the Company is a party (the "Rights Agreement") lowers the
acquisition threshold percentages set forth in such Rights
Agreement, the Triggering Percentage shall be automatically
reduced to equal the threshold percentages set pursuant to
authority granted to the board in the Rights Agreement; and
provided, further, however, that the following acquisitions shall
not constitute a change of control: (A) any acquisition directly
from the Company, (B) any acquisition by the Company; (C) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company, (D) any acquisition previously
approved by at least a majority of the members of the Incumbent
Board, (E) any acquisition approved by at least a majority of the
members of the Incumbent Board within five (5) business days
after the Company has notice of such acquisition, or (F) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (x), (y), and (z) of subsection (iii) of
this Section 1(c); or
(ii) Individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, appointment or
nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding,
for purposes of this definition, any such individual whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the
Board; or
(iii) Approval by the shareholders of the
Company of a reorganization, share exchange, merger or
consolidation (a "Business Combination"), in each case, unless,
following such Business Combination, (x) all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly,
more than 70% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction
owns the Company through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (y) no Person (excluding any employee benefit
plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of
the then outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the Business
Combination, and (z) at least a majority of the members of the
board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action
of the Board, providing for such Business Combination or were
elected, appointed or nominated by the Board; or
(iv) Approval by the shareholders of the
Company of (x) a complete liquidation or dissolution of the
Company or, (y) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a
corporation, with respect to which following such sale or other
disposition, (A) more than 70% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such sale or other disposition in
substantially the same proportions as their ownership,
immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) less than 20% of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly
or indirectly, by any Person (excluding any employee benefit plan
(or related trust) of the Company or such corporation), except to
the extent that such Person owned 20% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities
prior to the sale or disposition, and (C) at least a majority of
the members of the board of directors of such corporation were
members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing
for such sale or other disposition of assets of the Company or
were elected, appointed or nominated by the Board.
2. Agreement Not Employment Contract. This Agreement
shall be considered solely as a "severance agreement" obligating
the Company to pay to the Executive certain amounts of
compensation in the event and only in the event of his
termination of employment after the Control Date for the reasons
and at the times specified herein.
3. Termination. Except as provided in Section 5
hereof, this Agreement shall terminate upon the first to occur of
the following events.
(a) Death. The date of death of the Executive.
(b) Cause. The termination of the Executive's
employment by the Company for "Cause." For purposes of this
Agreement, termination of the Executive's employment by the
Company for Cause shall mean termination for one of the following
reasons: (i) the conviction of the Executive of a felony by a
federal or state court of competent jurisdiction; (ii) an act or
acts of dishonesty taken by the Executive and intended to result
in substantial personal enrichment of the Executive at the
expense of the Company; or (iii) the Executive's "willful"
failure to follow a direct, reasonable and lawful written order
from his supervisor, within the reasonable scope of the
Executive's duties, which failure is not cured within 30 days.
Further, for purposes of this Section (b):
(1) No act or failure to act, on the
Executive's part shall be deemed "willful" unless done, or
omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive's action or omission
was in the best interest of the Company.
(2) The Executive shall not be deemed to
have been terminated for Cause unless and until there shall have
been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three-fourths
(3/4ths) of the entire membership of the Board at a meeting of
the Board called and held for such purpose (after reasonable
notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the
Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth in clauses (i), (ii) or
(iii) above and specifying the particulars thereof in detail.
(c) Good Reason. The termination of the
Executive's employment by the Executive for Good Reason. For
purposes of this Agreement, "Good Reason" means:
(i) the assignment to the Executive of any
duties inconsistent in any respect with the Executive's
position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities or any other action by the Company
which results in a diminishment in such position,
compensation, authority, duties or responsibilities,
other than an insubstantial and inadvertent action
which is remedied by the Company promptly after receipt
of written notice thereof given by the Executive
(ii) the Company's requiring the Executive
to be based at any office or location more than 25
miles from where the Executive was employed immediately
prior to the Change of Control, except for periodic
travel reasonably required in the performance of the
Executive's responsibilities; or
(iii) any failure by the Company to comply
with and satisfy Section 10(a) of this agreement.
(d) Failure to Extend Agreement. The Company
gives notice of its intent not to extend the Change of Control
Period as provided in Section 1(b) hereof.
4. Notice of Termination. Any termination of
employment by the Company for Cause or by the Executive for Good
Reason as provided in Section 3, above, shall be communicated by
Notice of Termination to the other party hereto given in
accordance with Section 13 of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated and (iii) if the termination date is other than the
date of receipt of such notice, specifies the termination date
(which date shall be not more than 15 days after the giving of
such notice).
5. Obligations of the Company Upon Termination
Following Change of Control. If (i) within 24 months of the
Control Date the Company shall terminate the Executive's
employment for any reason other than for Cause or death, or (ii)
within 24 months of the Control Date the employment of the
Executive shall be terminated by the Executive for Good Reason,
then, upon the occurrence of either event as described in clauses
(i) and (ii), the Company shall pay to the Executive in a lump
sum, in cash, within 30 days after the date of termination of
employment an amount equal to 24 times the Base Compensation Rate
(defined below) on the Control Date. "Base Compensation Rate"
shall mean the monthly rate of compensation of the Executive
(before any salary reductions on account of contributions made
pursuant to either Sections 401(k) or 125 of the Code, if
applicable) in effect as of the Effective Date or such rate as
increased but not reduced) from the Effective Date until the
Control Date. The Executive's Base Compensation Rate as of the
Effective Date is the monthly rate of salary, payable bi-weekly.
Provided, in the event the Executive has not attained his Normal
Retirement Date as of the Control Date, and if his Normal
Retirement Date would occur within 24 months of his Control Date
assuming the Executive continued in the employ of the Company
until his Normal Retirement Date and then retired, then, in such
event, the aforesaid factor "24" shall be reduced to equal the
number of months (partial months shall be considered as a whole
month) remaining between the Control Date and the Executive's
Normal Retirement Date. Provided further, if the Executive has
attained his Normal Retirement Date on the Control Date, then,
the factor "24" as used in this Section 5 shall be reduced to
zero, and such Executive shall be entitled to no payment under
this Agreement.
6. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of
the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise, including, by example and not by way of limitation,
acceleration by the Company of the date of vesting or payment or
rate of payment under any plan, program or arrangement of the
Company (a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code") or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 6(c),
all determinations required to be made under this Section 6,
including whether a Gross-Up Payment is required and the amount
of such Gross-Up Payment, shall be made by Deloitte & Touche LLP
(the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that
there has been a Payment which would be subject to the Excise
Tax, or such earlier time as is requested by the Company. The
initial Gross-Up Payment, if any, as determined pursuant to this
Section 6(b), shall be paid to the Executive within five days of
the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive with an opinion that he
has substantial authority not to report any Excise Tax on his
federal income tax return. Any determination by the Accounting
Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments
which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required
to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 6(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company
to or for the benefit of the Executive.
(c) The Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Gross-
Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the
Executive knows of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim
prior to the expiration of the 30-day period following the date
on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect
to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) give the Company any information
reasonably requested by the Company relating to such claim,
(ii) take such action in connection with
contesting such claim as the Company shall reasonably request in
writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an
attorney reasonably selected by the Company,
(iii) cooperate with the Company in good
faith in order effectively to contest such claim, and
(iv) permit the Company to participate in
any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis,
for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 6(c), the
Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and
all administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax
claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that
if the Company directs the Executive to pay such claim and sue
for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such
advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the
statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-
Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 6(c), the
Executive becomes entitled to receive any refund with respect to
such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 6(c)) promptly pay to
the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 6(c), a determination is made that
the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to
the expiration of thirty days after such determination, then such
advance shall be forgiven and shall not be required to be repaid
and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
7. Non-exclusivity of Rights. Nothing in this
Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the
Executive may have under any stock option or other agreements
with the Company or any of its affiliated companies. Amounts
which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company or
any of its affiliated companies at or subsequent to the date of
termination of employment shall be payable in accordance with
such plan or program.
8. Full Settlement. The Company's obligation to make
the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the
Company may have against the Executive or others. In no event
shall the Executive be obligated to seek other employment by way
of mitigation of the amounts payable to the Executive under any
of the provisions of this Agreement.
9. Confidential Information.
(a) Requirement of Executive. The Executive
shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and
their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or
any of its affiliated companies and which shall not be public
knowledge (other than by acts by the Executive or his
representatives in violation of this Agreement). After
termination of the Executive's employment with the Company, the
Executive shall not, without the prior written consent of the
Company, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by
it. In no event shall an asserted violation of the provisions of
this Section 9 constitute a basis for deferring or withholding
any amounts otherwise payable to the Executive under this
Agreement.
(b) Additional Remedies. The Executive agrees
that the remedy at law for any breach or threatened breach of any
covenant contained in this Section 9 will be inadequate, and that
the Company, in addition to such other remedies as may be
available to it, in law or in equity, shall be entitled to
injunctive relief without bond or other security.
10. Successors and Binding Effect.
(a) Successor Must Assume Agreement. The Company
will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. Failure of
the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from
the Company in the same amount and on the same terms as the
Executive would be entitled to hereunder if the Executive
terminated employment for Good Reason following a Change of
Control, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be
deemed the date of termination of employment. As used in this
Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law
or otherwise.
(b) Binding Effect. This Agreement shall inure to
the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Executive
should die while any amount would still be payable to the
Executive hereunder if the Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's
devisee, legatee or other designee or, if there is no such
designee, to the Executive's estate.
11. Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Oklahoma, without reference to principles of conflict of laws.
12. Notices. All notices and other communications
hereunder shall be in writing and shall be given by hand delivery
to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At his last known address evidenced on the Company's
payroll records
If to the Company:
Fleming Companies, Inc.
6301 Waterford Boulevard
P. O. Box 26647
Oklahoma City, Oklahoma 73126
Attn: Senior Vice President - Human Resources
with a copy to:
Fleming Companies, Inc.
6301 Waterford Boulevard
P.O. Box 26647
Oklahoma City, Oklahoma 73126
Attn: General Counsel
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
13. Taxes to be Withheld. The Company may withhold
from any amounts payable under this Agreement such Federal, state
or local taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
14. Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject
matter hereof and supersedes any and all prior or contemporaneous
oral and prior written agreements and understandings. There are
no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements
to the execution hereof or in effect among the parties.
15. Amendment. This Agreement may not be amended, and
no provision hereof shall be waived, except by a writing signed
by all parties to this Agreement, or, in the case of a waiver, by
the party waiving compliance therewith, which states that it is
intended to amend or waive a provision of this Agreement. Any
waiver of any rights or failure to act in a specific instance
shall relate only to such instance and shall not be construed as
an agreement to waive any rights or failure to act in any other
instance, whether or not similar.
16. Enforceability. Should any provision of this
Agreement be unenforceable or prohibited by an applicable law,
this Agreement shall be considered divisible as to such provision
which shall be inoperative, and the remainder of this Agreement
shall be valid and binding as though such provision were not
included herein. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
17. Counterparts. This Agreement may be executed in
two or more counterparts with the same effect as if the
signatures to all such counterparts were upon the same
instrument, and all such counterparts shall constitute but one
instrument.
18. Headings. All headings in this Agreement are for
convenience only and are not intended to affect the meaning of
any provision hereof.
19. No Trust. No action under this Agreement by the
Company or its Board of Directors shall be construed as creating
a trust, escrow or other secured or segregated fund, in favor of
the Executive or his beneficiary. The status of the Executive
and his beneficiary with respect to any liabilities assumed by
the Company hereunder shall be solely those of unsecured
creditors of the Company. Any asset acquired or held by the
Company in connection with liabilities assumed by it hereunder,
shall not be deemed to be held under any trust, escrow or other
secured or segregated fund for the benefit of the Executive or
his beneficiary or to be security for the performance of the
obligations of the Company, but shall be, and remain a general,
unpledged, unrestricted asset of the Company at all times subject
to the claims of general creditors of the Company.
20. No Assignability. Neither the Executive nor his
beneficiary, nor any other person shall acquire any right to or
interest in any payments payable under this Agreement, otherwise
than by actual payment in accordance with the provisions of this
Agreement, or have any power to transfer, assign, anticipate,
pledge, mortgage or otherwise encumber, alienate or transfer any
rights hereunder in advance of any of the payments to be made
pursuant to this Agreement or any portion thereof which is
expressly declared to be nonassignable and nontransferable. No
right or benefit hereunder shall in any manner be liable for or
subject to the debts, contracts, liabilities, or torts of the
person entitled to such benefit.
IN WITNESS WHEREOF, the Executive has hereunto set
his/her hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed
in its name on its behalf all as of the day and year first above
written.
"EXECUTIVE"
FLEMING COMPANIES, INC., an
Oklahoma corporation
By
Scott M. Northcutt
Senior Vice President,
Human Resources
"COMPANY"