FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT dated as of
August 18, 1998 (the "Amendment"), is made by and between Fleming
Companies, Inc., an Oklahoma corporation (the "Company"), and _____
__________, an individual (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and the Executive entered into that
certain Employment Agreement dated as of March 2, 1998 (the
"Employment Agreement"); and
WHEREAS, the Company and the Executive mutually desire to
amend the Employment Agreement, and it is to the mutual benefit of
the Company and the Executive to amend the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the Company and
the Executive hereby amend the Employment Agreement as follows:
1. The Amendment. Section 2 of the Employment Agreement is
amended by deleting it in its entirety and replacing it with the
following:
2. For purposes 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
(i) the then outstanding shares of common
stock of the Company (the "Outstanding Company
Common Stock") or (ii) 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: (i) any acquisition directly from
the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company or any corporation
controlled by the Company, or (iv) any
acquisition by any corporation pursuant to a
transaction which complies with clauses (x),
(y), and (z) of subsection (iii) of this
Section 2; 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 or
acquisition of assets of another corporation
(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
will beneficially own, directly or indirectly,
more than 50% 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 will own 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) will beneficially
own, 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 will have been
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
(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
50% 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 will be 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
proportion 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
will be 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 will have been
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.
2. The Agreement. The term "Agreement" as used in the
Employment Agreement and in this Amendment shall hereafter mean the
Employment Agreement as amended by this Amendment. The Employment
Agreement, as amended hereby, shall continue in full force and
effect in accordance with the terms thereof.
3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Oklahoma.
4. Counterparts. This Amendment may be executed in one or
more counterparts, all of which shall be considered one and the
same instrument and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered
to the other parties.
IN WITNESS WHEREOF, the parties have caused this
Amendment to be duly executed on the date first written above.
FLEMING COMPANIES, INC., an
Oklahoma corporation
By
William J. Dowd, President and
Chief Operating Officer
"COMPANY"
_______________, an individual
"EXECUTIVE"