AMENDED AND RESTATED
AGREEMENT FOR FLEMING COMPANIES, INC.
EXECUTIVE PAST SERVICE BENEFIT PLAN
THIS AMENDED AND RESTATED AGREEMENT FOR FLEMING
COMPANIES, INC. EXECUTIVE PAST SERVICE BENEFIT PLAN is made as of
the 18th day of August, 1998 by and between __________, an individ-
ual (herein referred to as the "Participant") and FLEMING
COMPANIES, INC. (the "Company") with respect to the following:
WHEREAS, the Company has adopted that certain non-qualified
deferred compensation plan known as "Fleming Companies,
Inc. Executive Past Service Benefit Plan" (the "Plan"); and
WHEREAS, the Plan was established by the Company for the
purpose of providing supplemental retirement income under a
nonqualified plan of deferred compensation for a select group of
key management Associates of the Company; and
WHEREAS, the Participant was formerly a participant in
the Amended and Restated Supplemental Retirement Income Plan of
Fleming Companies, Inc. and Its Subsidiaries (the "Prior Plan")
which was terminated as to the Participant effective November 1,
1997; and
WHEREAS, at the time of the termination of the Prior Plan
the Participant had not accrued any benefit nor was he vested in
any rights under the Prior Plan; and
WHEREAS, the Company in recognition of the Participant's
past and future services with the Company selected the Participant
for participation in the Plan by establishing for him a Past
Service Benefit as provided in that certain Agreement for Fleming
Companies, Inc. Executive Past Service Benefit Plan (the "Original
Agreement") which will be paid following his termination of
employment in accordance with the terms of the Plan; and
WHEREAS, the Company and the Participant desire to amend
the Original Agreement by execution of this Amended and Restated
Agreement for Fleming Companies, Inc. Executive Past Service
Benefit Plan (the "Agreement") which shall evidence the
Participant's participation in the Plan and his agreement to be
bound by the terms and provisions of the Plan and this Agreement
and shall serve as an amendment, restatement and continuation of
the Original Agreement as amended by this Agreement.
NOW, THEREFORE, in consideration of mutual covenants
hereinafter contained, the parties hereto agree as follows. All
capitalized words used in this Agreement shall have the same
meaning ascribed to such terms in the Plan unless specifically
denoted otherwise.
1. The Plan and the Amount of Past Service Benefit. A
copy of the Plan is attached hereto as Exhibit "A" and is incorpo-
rated by reference herein and made a part hereof for all purposes,
and when taken with this Agreement shall govern the Participant's
rights and those of the Company with respect to the Participant's
benefits under the Plan. The Participant has been credited with
$__________ in the form of the Past Service Benefit pursuant to the
terms of the Plan. The Past Service Benefit will be credited to
the Account established for the Participant under the Plan and the
Trust related thereto.
2. Manner of Payment of Past Service Benefit. As of
the date of this Agreement, the Participant must elect the form
under which his Past Service Benefit will be paid in the future
following the Participant's termination of employment under the
terms of the Plan. Please check the form in which the
Participant's Past Service is to be paid in the box provided below:
(Please Check and Initial One Box Only)
Optional Forms of Payment
1. [ ] Life of Participant Only
2. [ ] 50% Joint Annuitant Survivor Benefit
3. [ ] 75% Joint Annuitant Survivor Benefit
4. [ ] 100% Joint Annuitant Survivor Benefit
5. [ ] 5 Year Period Certain
6. [ ] 10 Year Period Certain
7. [ ] 15 Year Period Certain
The actual amounts payable at retirement or death will depend upon
the Participant's age and/or the age of his Beneficiary and the
form of payment elected by the Participant. Refer to Exhibit "B"
for a complete description of the Methods of Payment. Payments to
which the Participant is entitled pursuant to the terms of the Plan
will commence within 30 days following your termination of
employment and will continue to be paid in accordance with the
terms of the manner of payment elected by the Participant. With
the consent of the Committee, and if requested by the Participant
or his Beneficiary in the case of the Participant's death, the
Participant or his Beneficiary may request that the Participant's
Past Service Benefit be paid in any of the optional forms described
above or in a single lump sum payment. See Section 10.1 of the
Plan. Provided, in the event that a Participant has elected to
receive his Past Service Benefit for the Life of Participant Only
(Option 1 above) and such Participant dies prior to the time his
benefits commence in accordance with the terms of the Plan, then,
the deceased Participant's Beneficiary shall automatically receive
a benefit based upon the actuarial equivalent of the Participant's
Past Service Benefit, which will be paid as a 50% Joint Annuitant
Survivor Benefit (Option 2 above).
3. Amendment or Termination. This Agreement may be
amended, altered or terminated by the Company from time to time
upon notice to the Participant as provided in paragraph 12 below;
provided, however, this Agreement may not be amended, modified or
altered or terminated in any manner which adversely affects the
Participant without the consent of the Participant.
4. Expenses. The expenses of administering this
Agreement shall be borne by the Company and shall not be charged
against the Participant's Past Service Benefit.
5. Applicable Law. The provisions of this Agreement
shall be construed, administered and enforced according to the laws
of the State of Oklahoma.
6. No Assignability. Neither the Participant, his
Beneficiary, nor any other person shall acquire any right to or
interest in any Past Service Benefit and accruals thereon,
otherwise than by actual payment in accordance with the provisions
of the Plan and this Agreement, or have any power to transfer,
assign, anticipate, pledge, mortgage or otherwise encumber or
alienate any rights hereunder in advance of any of the payments to
be made pursuant to the 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.
7. Agreement Does Not Guarantee Continued Employment of
Participant. The execution of this Agreement by the Company and
the Participant, in no way whatsoever guarantees the continuation
of employment of the Participant with the Company.
8. Withholding. The Company and the Participant shall
comply with all federal and state laws and regulations respecting
the withholding, deposit and payment of any income, employment or
other taxes relating to any payments or rights to payments under
this Agreement.
9. Designation of Beneficiary.
(a) The Participant, hereby designate the following
individual as his Beneficiary to receive any Past Service Benefit
(including any benefit to be paid to such Beneficiary as the
surviving "joint annuitant" pursuant to Section 2 hereof) payable
to the Participant under this Agreement or the Plan in the event of
the Participant's death:
Name Address Relationship
______ ________________________________ _____________
(b) The Participant understands that during his
lifetime, the Participant may at any time change the Beneficiary
designated herein by delivering to the Committee a new designation
of a Beneficiary executed by the Participant and the Committee.
10. Relationship Between Agreement and Plan. This
Agreement has been entered into by and between the Company and the
Participant in accordance with and pursuant to authority granted to
the Committee pursuant to the terms and provisions of the Plan.
Except for the definition of the term "Change of Control" which
shall be governed by Section 16 of this Agreement and not by
Section 9.1 of the Plan, in the event that there develops a
conflict between this Agreement and the terms and provisions of the
Plan, the terms and provisions of the Plan, as interpreted by the
Committee in its sole discretion, shall control and be final and
conclusive.
11. Limitation on Payment of Benefits. The payment of
the Past Service Benefit as provided in this Agreement shall accrue
and be payable to the Participant or his Beneficiary, as the case
may be, only at such times and upon the occurrence of such
conditions as heretofore described. In no event whatsoever shall
the Participant or his Beneficiary have any right, claim, or
interest of any kind whatsoever in any future payments of such Past
Service Benefit and such payments shall accrue and be payable only
on a monthly basis as provided hereinabove.
12. Notices. All notices that are required or may be
given pursuant to this Agreement must be in writing and delivered
personally, by a recognized courier service, by a recognized
overnight delivery service, by facsimile or by registered or
certified mail, postage prepaid, to the parties at the following
addresses (or to the attention of such other person or such other
address as either party may provide to the other party by notice in
accordance with this paragraph 12:
if to the Company:
Fleming Companies, Inc.
6301 Waterford Blvd.
Oklahoma City, OK 73126
Attn: Craig A. Grant
Senior Vice President -
Organizational Strategies
and Management Development
Facsimile: (405) 840-7226
if to the Participant:
______________________________
______________________________
______________________________
13. Agreement Supersedes All Other Benefits and Release
of Claims. Effective as of the date of the execution and delivery
of this Agreement, this Agreement shall supersede and replace any
and all other agreements entered into by and between the Company or
any Subsidiary and the Participant with respect to the providing of
supplemental retirement benefits on a nonqualified basis pursuant
to the Prior Plan which was terminated by the Company effective
November 1, 1997. The Participant agrees that as of the date of
termination of the Prior Plan, he was not entitled to any benefit
under the Prior Plan and any rights or interest in the Prior Plan
were subject to total forfeiture as of November 1, 1997. Further,
recognizing that the Participant has been selected by the Committee
to participate in this Plan and the Fleming Companies, Inc.
Executive Deferred Compensation Plan, both of which may provide
substantial benefits to the Participant, the Participant hereby
releases the Company, its officer, directors, agents and assigns
from any and all obligations under the Prior Plan and agrees that
the Participant will not bring any action, claim or demand of any
kind whatsoever with respect to any benefits to which the Partici-
pant would have otherwise been entitled had the Participant con-
tinued participating in the Prior Plan.
14. Benefit Subject to Claims of Creditors. The
Participant and his Beneficiary shall not have any interest in any
particular assets of the Company, its parent, if applicable, or any
Subsidiary by reason of the right to receive a benefit under the
Plan or this Agreement, and the Participant and his Beneficiary or
any other person shall have only the rights of a general unsecured
creditor of the Company, its parent, if applicable, or a Subsidiary
with respect to any rights under the Plan or this Agreement.
15. Effective Date. This Agreement shall be effective
from and after the day and year first above written.
16. Change of Control. Notwithstanding the language of
Section 9.1 of the Plan, for purposes of this Agreement and this
Participant, the term "Change of Control" shall have the meaning
set forth in this Section 16 and not in Section 9.1 of the Plan.
Except for the definition of the term Change of Control, all other
provisions of Section 9.1 of the Plan shall be applicable to this
Participant. For purposes of this Agreement and this Participant,
the term 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 Ex-
change 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, how-
ever, 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 Agree-
ment, 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 acqui-
sition by any corporation pursuant to a trans-
action which complies with clauses (x), (y),
and (z) of subsection (iii) of this Section
16; 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 direc-
tor subsequent to the date hereof whose elec-
tion, 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 ex-
change, merger or consolidation or acquisition
of assets of another corporation (a "Business
Combination"), in each case, unless, following
such Business Combination, (x) all or substan-
tially all of the individuals and entities who
were the beneficial owners, respectively, of
the Outstanding Company Common Stock and
Outstanding Company Voting Securities immedi-
ately prior to such Business Combination will
beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstand-
ing 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 transac-
tion will own the Company through one or more
subsidiaries) in substantially the same pro-
portions as their ownership, immediately prior
to such Business Combination of the Outstand-
ing 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 Combi-
nation, 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 Combi-
nation; 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 out-
standing 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 Out-
standing Company Common Stock and Outstanding
Company Voting Securities immediately prior to
such sale or other disposition in substantial-
ly the same proportion as their ownership,
immediately prior to such sale or other dispo-
sition, of the Outstanding Company Common
Stock and Outstanding Company Voting Securi-
ties, 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 indi-
rectly, 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 Outstand-
ing Company Voting Securities prior to the
sale or disposition, and (C) at least a major-
ity of the members of the board of directors
of such corporation will have been members of
the Incumbent Board at the time of the execu-
tion of the initial agreement, or of the
action of the Board, providing for such sale
or other disposition of assets of the Company.
DATED the day and year first above written.
FLEMING COMPANIES, INC., an Oklahoma
corporation
By
Craig A. Grant
Senior Vice President -
Organizational Strategies and
Management Development
"COMPANY"
___________________________
"PARTICIPANT"
EXHIBIT "B"
Description of Optional Forms of Payment
OPTION 1 - Life of
Participant Only: A Past Service Benefit will be paid
for the Participant's life only.
Upon the Participant's death, all
payments of Past Service Benefit
shall cease.
OPTION 2 - 50%
Joint Annuitant
Survivor Benefit: A reduced amount of Past Service
Benefit will be paid to Participant
for the Participant's life, then, at
the Participant's death 50% of such
amount shall be paid to the Partici-
pant's surviving Beneficiary. In
the event that the Participant's
surviving Beneficiary has predeceas-
ed Participant, or should otherwise
die after the Participant's death,
then no further payments will be
paid under OPTION 2 or this Agree-
ment.
OPTION 3 - 75%
Joint Annuitant
Survivor Benefit: A reduced amount of Past Service
Benefit will be paid to Participant
for the Participant's life, then, at
the Participant's death 75% of such
amount shall be paid to the Partici-
pant's surviving Beneficiary. In
the event that the Participant's
surviving Beneficiary has predeceased
Participant, or should other-
wise die after the Participant's
death, then no further payments will
be due under OPTION 3 or this
Agreement.
OPTION 4 - 100%
Joint Annuitant
Survivor Benefit: A reduced amount of Past Service
Benefit will be paid to Participant
for the Participant's life, then, at
the Participant's death 100% of such
amount shall be paid to the Parti-
cipant's surviving Beneficiary. In
the event that the Participant's
surviving Beneficiary has predecea-
sed Participant, or should otherwise
die after the Participant's death,
then no further payments will be due
under OPTION 4 or this Agreement.
OPTION 5 - 5 Year
Period Certain: A reduced amount of Past Service
Benefit will be paid for a period of
5 years certain. After the expira-
tion of such 5 year period, payments
shall then continue for the
Participant's life in the same
amount. In the event of the Partic-
ipant's death during the 5 year
period certain, then, the balance of
such payments due only during such 5
year period will be paid to the
Participant's surviving Beneficiary.
After the expiration of such 5 year
period, then all payments shall
cease. In the event of the
expiration of such 5 year period,
and Participant die, then, no fur-
ther benefits will be paid under
OPTION 5 or this Agreement.
OPTION 6 - 10 Year
Period Certain: A reduced amount of Past Service
Benefit shall be paid for a period
of 10 years certain. After the
expiration of such 10 year period,
payments shall then continue for the
Participant's life in the same
amount. In the event of the Partic-
ipant's death during the 10 year
period certain, then, the balance of
such payments due only during such
10 year period will be paid to the
Participant's surviving Beneficiary.
After the expiration of such 10 year
period, then all payments shall
cease. In the event of the
expiration of such 10 year period,
and Participant die, then, no fur-
ther benefits will be paid under
OPTION 6 or this Agreement.
OPTION 7 - 15 Year
Period Certain: A reduced amount of Past Service
Benefit shall be paid for a period
of 15 years certain. After the
expiration of such 15 year period,
payments shall then continue for the
Participant's life in the same
amount. In the event of the Partic-
ipant's death during the 15 year
period certain, then, the balance of
such payments due only during such
15 year period will be paid to the
Participant's surviving Beneficiary.
After the expiration of such 15 year
period, then all payments shall
cease. In the event of the
expiration of such 15 year period,
and Participant die, then, no fur-
ther benefits will be paid under
OPTION 7 or this Agreement.