AMENDED AND RESTATED
SUPPLEMENTAL RETIREMENT INCOME PLAN OF
FLEMING COMPANIES, INC.
AND ITS SUBSIDIARIES
(Amended and Restated Effective January 1, 1995)
(Execution Date: March 2, 1995)
AMENDED AND RESTATED
SUPPLEMENTAL RETIREMENT INCOME PLAN OF
FLEMING COMPANIES, INC.
AND ITS SUBSIDIARIES
TABLE OF CONTENTS
PAGE
ARTICLE I Name and Purpose of Plan. . . . . . . . . . . 1
1.1 Name of Plan . . . . . . . . . . . . . . . . 1
1.2 Purpose of Plan . . . . . . . . . . . . . . . 1
ARTICLE II Definitions and Construction . . . . . . . . 1
2.1 Definitions . . . . . . . . . . . . . . . . . 1
2.2 Construction . . . . . . . . . . . . . . . . 8
ARTICLE III Participation . . . . . . . . . . . . . . . . 8
3.1 Selection for Participation . . . . . . . . . 8
3.2 Participation in Consideration
for Future Services Only . . . . . . . . . . 8
3.3 Other Agreements . . . . . . . . . . . . . . 9
3.4 Continuation of Participation
While on Authorized Leave of
Absence or After Disability . . . . . . . . . 9
ARTICLE IV Contributions . . . . . . . . . . . . . . . . 9
4.1 Payments by the Company and/or
Subsidiary . . . . . . . . . . . . . . . . . 9
ARTICLE V Supplemental Normal Retirement Benefit . . . 9
5.1 Calculation of Supplemental Normal
Retirement Income . . . . . . . . . . . . . . 9
5.2 Postponed Retirement Date . . . . . . . . . . 10
5.3 Payment of Supplemental Normal
Retirement Income . . . . . . . . . . . . . . 10
-i-
ARTICLE VI Death of a Participant. . . . . . . . . . . . 11
6.1 Payment of Death Benefit . . . . . . . . . . 11
6.2 Beneficiary Designation . . . . . . . . . . . 12
ARTICLE VII Early Retirement . . . . . . . . . . . . . . 12
7.1 Supplemental Early Retirement Income . . . . 12
ARTICLE VIII Disability . . . . . . . . . . . . . . . . . 13
8.1 Supplemental Disability Retirement
Income . . . . . . . . . . . . . . . . . . . 13
8.2 Proof of Disability . . . . . . . . . . . . . 13
ARTICLE IX Termination of Employment . . . . . . . . . . 14
9.1 Termination of Employment Prior
to Retirement Date . . . . . . . . . . . . . 14
9.2 Acceleration of Accrual of
Target Benefit Upon Change
in Control . . . . . . . . . . . . . . . . . 14
ARTICLE X Manner of Payment of Benefits . . . . . . . . 18
10.1 Payment at Actual Retirement . . . . . . . . 18
10.2 Participant to Elect Method
of Distribution . . . . . . . . . . . . . . . 18
ARTICLE XI General Benefit Provisions . . . . . . . . . 18
11.1 Reemployed Participants Who Had
Been Receiving Pension Benefits . . . . . . . 18
11.2 Restrictions on Alienation
of Benefits . . . . . . . . . . . . . . . . . 19
11.3 No Trust . . . . . . . . . . . . . . . . . . 19
11.4 Withholding and Other
Employment Taxes . . . . . . . . . . . . . . 19
-ii-
ARTICLE XII Provisions Relating to Participants . . . . . 19
12.1 Information Required of Participants . . . . 19
12.2 Abandonment of Benefits . . . . . . . . . . . 20
12.3 Benefits Payable to Incompetents . . . . . . 20
12.4 Conditions of Employment Not
Affected by Plan . . . . . . . . . . . . . . 20
ARTICLE XIII Administration and Associate Benefits
Committee . . . . . . . . . . . . . . . . . . 21
13.1 Allocation of Responsibility
for Plan Administration . . . . . . . . . . . 21
13.2 Appointment of Committee . . . . . . . . . . 21
13.3 Claims Procedure . . . . . . . . . . . . . . 21
13.4 Review Procedure . . . . . . . . . . . . . . 21
13.5 Records and Reports . . . . . . . . . . . . . 22
13.6 Other Committee Powers and Duties . . . . . . 22
13.7 Rules and Decisions . . . . . . . . . . . . . 23
13.8 Committee Procedures . . . . . . . . . . . . 23
ARTICLE XIV Amendment and Termination . . . . . . . . . . 23
14.1 Right to Amend or Alter Plan . . . . . . . . 23
14.2 Right to Terminate Plan . . . . . . . . . . . 23
14.3 Merger or Termination of Qualified
Retirement Plan . . . . . . . . . . . . . . . 24
14.4 Forfeiture of All Benefits . . . . . . . . . 24
ARTICLE XV Miscellaneous Provisions . . . . . . . . . . 25
15.1 Articles and Section Titles
and Headings . . . . . . . . . . . . . . . . 25
15.2 Laws of Oklahoma to Govern . . . . . . . . . 25
-iii-
AMENDED AND RESTATED
SUPPLEMENTAL RETIREMENT INCOME PLAN OF
FLEMING COMPANIES, INC.
AND ITS SUBSIDIARIES
FLEMING COMPANIES, INC., an Oklahoma corporation, hereby
adopts the Amended and Restated Supplemental Retirement Income Plan
of Fleming Companies, Inc. and Its Subsidiaries upon the following
terms and conditions. This Plan shall serve as an amendment,
restatement and continuation of that certain nonqualified
retirement plan entitled "Supplemental Retirement Income Plan of
Fleming Companies, Inc. and Its Subsidiaries" originally adopted
effective March 1, 1985.
ARTICLE I
NAME AND PURPOSE OF PLAN
1.1 NAME OF PLAN. This Plan shall be hereafter known as
the AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT INCOME PLAN OF
FLEMING COMPANIES, INC. AND ITS SUBSIDIARIES.
1.2 PURPOSE OF PLAN. This Plan shall be considered as
a "nonqualified deferred compensation plan" which is to be
sponsored by the Company solely for the purpose of providing a
supplemental retirement income for a select group of management and
highly compensated Associates who contribute materially to the
continued growth, development and future business success of the
Company and its Subsidiaries. It is the intention of the Company
that this Plan and any Agreements entered into pursuant hereto be
administered as unfunded benefit plans established and maintained
for a select group of management and highly compensated Associates.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS. Where the following capitalized words
and phrases appear in this instrument, they shall have the
respective meanings set forth below unless a different context is
clearly expressed herein.
(a) ACTUARIAL EQUIVALENT: The words "Actuarial
Equivalent" shall mean the equivalent of Supplemental
Normal Retirement Income as of the applicable Retirement
Date otherwise payable to a Participant in the mode of a
single life annuity commencing on his Normal Retirement
Date, determined using only mortality and interest
assumptions. The rates of mortality are contained in the
-1-
Qualified Retirement Plan. The rate of interest shall be
the rate determined by the Pension Benefit Guaranty
Corporation for valuing immediate annuities effective for
defined benefit plans that terminate on the December 31
of the calendar year immediately preceding the date of
calculation of actuarial equivalence.
(b) ACT: The word "Act" shall mean Public Law.
No. 93-406, the Employee Retirement Income Security Act
of 1974, as amended from time to time.
(c) ACTUARY: The word "Actuary" shall mean an
enrolled actuary selected by the Committee to provide
actuarial services for the Plan.
(d) AGREEMENT: The word "Agreement" shall mean
that certain "Agreement for Supplemental Retirement
Income" which will be entered into by and between the
Company and the Participant.
(e) ASSOCIATE: The word "Associate" shall mean any
person, employed by the Employer on the basis of an
employer-employee relationship, who receives remuneration
for personal services rendered to the Employer.
(f) AUTHORIZED LEAVE OF ABSENCE: The words
"Authorized Leave of Absence" shall mean any
extraordinary absence authorized by the Committee within
its sole discretion.
(g) ANNUAL FINAL COMPENSATION: The words "Annual
Final Compensation" shall mean the highest annual total
compensation earned by a Participant during any of the
three consecutive calendar years of his employment
immediately preceding his Normal Retirement Date or his
earlier termination of employment, as the case may be,
which shall include the following:
(i) the total of all amounts paid to a
Participant by the Employer as regular salary
or wages including overtime, commissions,
bonuses, jury pay, vacation pay, sick pay and
holiday pay, but excluding other forms of
extraordinary compensation reported on the
Participant's Form W-2 to the Internal Revenue
Service such as final payments of the balance
of the bonus bank under the Economic Value
Added Incentive Bonus Plan for Fleming
Companies, Inc. and Its Subsidiaries,
allowances or reimbursement for moving
expenses, automobiles, income recognized on
the exercise of stock options or upon receipt
-2-
of an award of stock; provided, Annual Final
Compensation shall further be adjusted to
include or be limited by the amounts provided
in the following Subsection (ii); and
(ii) any amount deferred by a Participant
pursuant to (x) Section 401(k) of the Code
with respect to an employee benefit plan
sponsored by the Employer or (y) Section 125
of the Code with respect to a "cafeteria plan"
sponsored by the Employer.
(h) BASIC RETIREMENT INCOME: The words "Basic
Retirement Income" shall mean the retirement benefits
which have been paid, or are otherwise payable on his
Normal Retirement Date to a Participant, or his
dependents, spouse, former spouse pursuant to a
"qualified domestic relations order", or such other
beneficiary as designated under the Qualified Retirement
Plan of the Company.
(i) BENEFICIARY: The words "Beneficiary" shall
mean that person designated by the Participant pursuant
to Section 6.2 hereof who would be entitled to receive
his Supplemental Retirement Income upon the death of the
Participant.
(j) CATEGORY I ASSOCIATES: The words "Category I
Associates" shall mean the Chief Executive Officer,
President, Executive Vice Presidents and Senior Vice
Presidents of the Company.
(k) CATEGORY II ASSOCIATES: The words "Category II
Associates" shall mean Vice Presidents and any other key
management Associates of the Company and its
Subsidiaries.
(l) CAUSE: The word "Cause" when used in
connection with a termination from employment after a
Change of Control shall mean termination for one of the
following reasons:
(i) the conviction of the Participant of a
felony by a federal or state court of competent
jurisdiction; (ii) an act or acts of dishonesty
taken by the Participant and intended to result in
substantial personal enrichment of the Participant
at the expense of the Company; (iii) the
Participant's "willful" failure to follow a direct,
reasonable and lawful written order from his
supervisor, within the reasonable scope of the
Participant's duties, which failure is not cured
-3-
within 30 days; or (iv) the Participant's failure
to perform his specified duties and
responsibilities for a period of 45 days as
determined by his supervisor after a warning in
writing. Further, for purposes of this Section
(b):
(1) No act or failure to act, on the
Participant's part shall be deemed
"willful" unless done, or omitted to be
done, by the Participant not in good
faith and without reasonable belief that
the Participant's action or omission was
in the best interest of the Company.
(2) The Participant shall not be deemed
to have been terminated for Cause unless
and until there shall have been delivered
to the Participant 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 Participant and an opportunity for
the Participant, together with the
Participant's counsel, to be heard before
the Board), finding that in the good
faith opinion of the Board the
Participant was guilty of conduct set
forth in clauses (i), (ii), (iii) or (iv)
above and specifying the particulars
thereof in detail.
(m) CHANGE OF CONTROL: The words "Change of
Control" shall have the meaning set forth in Section 9.2
of this Plan.
(n) CODE: The word "Code" shall mean the Internal
Revenue Code of 1986, as amended from time to time.
(o) COMMITTEE: The word "Committee" shall mean the
Compensation and Organization Committee appointed by the
Board of Directors of the Company under Article XIII
herein to administer the Plan.
(p) COMPANY: The word "Company" shall mean Fleming
Companies, Inc., or its successor.
(q) DISABILITY: The word "Disability" shall mean
a condition whereby a Participant has become totally and
permanently disabled within the meaning of the Long-Term
-4-
Disability Plan as in effect as of the Effective Date of
this Plan.
(r) DISABILITY RETIREMENT DATE: The words
"Disability Retirement Date" shall mean the first day of
the month after which a Participant terminating
employment has satisfied all conditions specified in the
foregoing Subsection for Disability.
(s) EARLY RETIREMENT DATE: The words "Early
Retirement Date" shall mean the first day of the month
coinciding with or following the date a Participant
terminates employment with the Employer after (i) earning
at least 10 Years of Credited Service and (ii) attaining
at least age 55.
(t) EFFECTIVE DATE: The words "Effective Date"
shall mean the 1st day of January, 1995.
(u) ELIGIBLE SPOUSE: The words "Eligible Spouse"
shall mean the spouse to whom the Participant is married
for the one-year period preceding his date of death or
the date on which payment of his Supplemental Retirement
Income will commence.
(v) EMPLOYER: The word "Employer" shall mean
either the Company or any Subsidiary of the Company.
(w) GOOD REASON: The words "Good Reason" when used
in connection with a termination of employment after a
Change of Control shall mean:
(i) the assignment to the Participant of any
duties inconsistent in any respect with the
Participant's position (including status, offices,
titles and reporting requirements), authority,
duties or responsibilities as in effect during the
90-day period immediately prior to the Change of
Control, or any other action by the Company which
results in a diminution in such position,
compensation, authority, duties or
responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof
given by the Participant;
(ii) the Employer's requiring the Participant
to be based at any office or location more than 25
miles from where the Participant was employed
immediately prior to the Change of Control, except
for periodic travel reasonably required in the
-5-
performance of the Participant's responsibilities;
or
(iii) the failure by the Company to comply
with Section 14.3(a) of this Plan.
(x) LONG-TERM DISABILITY PLAN: The words "Long-
Term Disability Plan" shall mean the "Long-Term
Disability Benefit Plan of Fleming Companies, Inc. and
Its Subsidiaries."
(y) NORMAL RETIREMENT AGE: The words "Normal
Retirement Age" shall mean the 65th birthday of a
Participant.
(z) NORMAL RETIREMENT DATE: The words "Normal
Retirement Date" shall mean the first day of the month
coinciding with or following a Participant's Normal
Retirement Age.
(aa) OFFSET AMOUNTS: The words "Offset Amounts"
shall mean that amount of other benefits which will be
applied by the Committee in determining the amount of
Supplemental Normal Retirement Income for any
Participant. The Offset Amounts shall consist of the (i)
Basic Retirement Income, (ii) any and all amounts which
have been paid, or are due and payable to the Participant
(and his dependents) as applied by and provided under
Social Security to be calculated assuming the Participant
has attained 65 years of age, and (iii) the present value
of the "B" Account under the Consolidated Savings Plus
Plan of Fleming Companies, Inc. and Its Subsidiaries, if
any, attributable or paid to the Participant. The Offset
Amounts shall include any amounts which have been paid or
which are payable to a spouse, former spouse or his
dependents pursuant to a "qualified domestic relations
order" as defined in Section 414(p) of the Code. The
present value of the "B" Account under the Consolidated
Savings Plus Plan of Fleming Companies, Inc. and Its
Subsidiaries will be calculated by the Actuary for the
Plan to determine the Actuarial Equivalent amount of a
single life annuity commencing on the Participant's
Normal Retirement Date. If the Participant has accrued
a benefit in any retirement plan of the Company or any
Subsidiary qualified under Section 401(a) and Section
501(a) of the Code other than the Qualified Retirement
Plan, the Committee may consider and apply such accrued
benefit as an "offset amount" which will be applied
against any Target Benefit which may be provided herein.
Provided, however, no accrued benefits attributable to
contributions made pursuant to Section 401(k) or Section
-6-
401(m) of the Code shall be considered as "Offset
Amounts."
(bb) PARTICIPANT: The word "Participant" shall mean
an Associate who during a Year shall meet the eligibility
requirements of Article III herein for participation or
reparticipation, as the case may be.
(cc) PLAN: The word "Plan" shall mean the Amended
and Restated Supplemental Retirement Income Plan of
Fleming Companies, Inc. and Its Subsidiaries, as set
forth in this instrument, and as hereafter amended from
time to time.
(dd) POSTPONED RETIREMENT DATE: The words
"Postponed Retirement Date" shall mean the first day of
the month coinciding with or next following the date that
a Participant retires under Section 5.3 herein subsequent
to his Normal Retirement Date.
(ee) QUALIFIED RETIREMENT PLAN: The words
"Qualified Retirement Plan" shall mean the employee
pension plan sponsored by the Company which is qualified
under Section 401(a) and Section 501(a) of the Code which
is known as the "Consolidated Retirement Plan of Fleming
Companies, Inc. and Its Subsidiaries."
(ff) RETIREMENT DATE: The words "Retirement Date"
shall mean a Participant's Early Retirement Date,
Disability Retirement Date, Normal Retirement Date, or
Postponed Retirement Date, whichever applies.
(gg) SUBSIDIARY: The word "Subsidiary" shall mean
any corporation with 80% or more of its voting common
stock being owned by the Company.
(hh) SUPPLEMENTAL DEATH BENEFIT: The words
"Supplemental Death Benefit" shall mean that additional
benefit which could be paid to the Eligible Spouse or
Beneficiary of a deceased Participant all as provided by
Article VI hereof.
(ii) SUPPLEMENTAL DISABILITY RETIREMENT INCOME: The
words "Supplemental Disability Retirement Income" shall
mean a monthly pension benefit computed in accordance
with Section 8.1 herein.
(jj) SUPPLEMENTAL EARLY RETIREMENT INCOME: The
words "Supplemental Early Retirement Income" shall mean
a monthly pension benefit computed in accordance with
Section 7.1 herein.
-7-
(kk) SUPPLEMENTAL NORMAL RETIREMENT INCOME: The
words "Supplemental Normal Retirement Income" shall mean
a monthly pension benefit computed in accordance with
Section 5.1 herein.
(ll) TARGET BENEFIT: The words "Target Benefit"
shall mean that aggregate benefit which is "targeted" for
a Participant selected by the Committee. The amount of
Target Benefit of a Participant will (i) consist of that
designated percentage of Annual Final Compensation earned
by the Participant pursuant to the terms and provisions
of this Plan, and (ii) depend on whether the Participant
is a Category I Associate or Category II Associate as of
his applicable Retirement Date or other termination of
employment.
(mm) YEAR: The word "Year" shall mean the annual
period beginning on the first day following the last
Saturday of December, and ending on the last Saturday of
December of the calendar year immediately following.
(nn) YEAR OF CREDITED SERVICE: The words "Year of
Credited Service" shall have the same meaning and be
calculated in the same manner as "Years of Credited
Service" are computed under the Qualified Retirement
Plan.
2.2 CONSTRUCTION. The masculine gender, where appearing
in the Plan, shall be deemed to include the feminine gender, unless
the context clearly indicates to the contrary. Any word appearing
herein in the plural shall include the singular, where appropriate,
and likewise the singular shall include the plural, unless the
context clearly indicates to the contrary.
ARTICLE III
PARTICIPATION
3.1 SELECTION FOR PARTICIPATION. In order to be
eligible for participation in the Plan, an Associate must be
selected by the Committee, which in its sole and absolute
discretion shall determine eligibility for participation in
accordance with the purposes of and to the extent permitted under
the Plan. To this end, the only Associates who will be eligible to
participate in this Plan will be Associates who are members of a
select group of management Associates.
3.2 PARTICIPATION IN CONSIDERATION FOR FUTURE SERVICES
ONLY. Selection of an Associate by the Committee for participation
in the Plan will be limited to those Associates who meet the
qualification requirements heretofore described and will be deemed
to be for all purposes in consideration of future services which
-8-
will be rendered by such Associate to the Company or its
Subsidiaries in order to retain such Associates and to ensure the
continued growth, development and business of the Company and its
Subsidiaries.
3.3 OTHER AGREEMENTS. Any Associate having been
selected by the Committee as a Participant, shall, as a condition
of participation, complete and return to the Committee any and all
other agreements which will relate to the election by the
Participant to participate in the Plan and to agree to the terms
and conditions thereof.
3.4 CONTINUATION OF PARTICIPATION WHILE ON AUTHORIZED
LEAVE OF ABSENCE OR AFTER DISABILITY. In the event that a
Participant is on an Authorized Leave of Absence, such Participant
shall continue to be eligible to be a Participant hereunder during
such period of Authorized Leave of Absence. In the event that a
Participant has incurred a Disability, Article VIII hereof shall
govern such Participant.
ARTICLE IV
CONTRIBUTIONS
4.1 PAYMENTS BY THE COMPANY AND/OR SUBSIDIARY. The
payments required to fund the cost of the benefits provided by the
Plan shall be made solely by the Company and/or any Subsidiary
whose Associates are participating in the Plan.
ARTICLE V
SUPPLEMENTAL NORMAL RETIREMENT INCOME
5.1 CALCULATION OF SUPPLEMENTAL NORMAL RETIREMENT
INCOME.
(a) GENERAL. Each Associate (either as a Category
I Associate or Category II Associate) who has been
selected by the Committee to be a Participant in the
Plan, is also a participant in the Qualified Retirement
Plan sponsored by the Company. Further, each Participant
has also earned a benefit in the form of a Basic
Retirement Income pursuant to the terms and provisions of
the Qualified Retirement Plan as of the Effective Date or
a date subsequent thereto. The Supplemental Normal
Retirement Income will equal the difference, if any,
between (i) the applicable Target Benefit selected for a
Participant by the Committee and (ii) the Offset Amounts
otherwise payable to the Participant as of his applicable
Retirement Date or other termination of employment, as
the case may be.
-9-
(b) GUIDELINES FOR ACCRUAL OF TARGET BENEFIT. Each
Participant will be awarded his Target Benefit by the
Committee. Entitlement to the Target Benefit will be
based upon whether the Participant is a Category I
Associate or a Category II Associate, his Annual Final
Compensation, and the amount of his Offset Amounts.
Further, the applicable amount of Target Benefit to which
a Participant may be entitled at any point in time
between the date he has been selected for participation
in the Plan and his Retirement Date or other termination
of employment, as the case may be, shall be subject to
the following general guidelines for determining the rate
of accrual of such Target Benefit unless otherwise
determined by the Committee:
Guidelines for Rate of
Accrual of Target Benefit
YEARS OF CREDITED SERVICE AT NORMAL RETIREMENT DATE
CATEGORY I CATEGORY II
FIRST, if the Participant has less 0% 0%
than 10 Years of Credited Service
SECOND, after a Participant has earned at least 10 Years of
Credited Service and he has attained the age of at least 55 years,
he shall have accrued a Target Benefit which is not less than 50%
of his Annual Final Compensation (if a Category I Associate) or 40%
of his Annual Final Compensation (if a Category II Associate). For
each Year of Credited Service earned after the initial 10 Years of
Credited Service has been earned by a Participant, such Participant
shall accrue an additional amount of his Target Benefit at the rate
of 1% for each additional Year of Credited Service earned by the
Participant but in no event shall such amount ever exceed the
lesser of (i) the total Target Benefit otherwise payable to the
Participant at his Normal Retirement Date or (ii) 80% of his Annual
Final Compensation. Provided, the foregoing notwithstanding, the
Committee, in its sole discretion, may, subject to the limitation
that no Target Benefit may exceed 80% of a Participant's Annual
Final Compensation, provide for a Participant's Target Benefit in
a manner otherwise than as heretofore provided.
5.2 POSTPONED RETIREMENT DATE. If a Participant
continues his employment with the Employer to a date after his
Normal Retirement Date ("Postponed Retirement Date"), his
Supplemental Normal Retirement Income shall be deferred until his
Postponed Retirement Date. Benefits to which he shall be entitled
as of his benefit commencement date shall be his Supplemental
Normal Retirement Income earned at his Normal Retirement Date
without adjustment after such date.
5.3 PAYMENT OF SUPPLEMENTAL NORMAL RETIREMENT INCOME.
Notwithstanding any provision contained in this Plan to the
-10-
contrary and except in the case of a Change of Control as specified
in Section 9.2 of this Plan, no portion of Participant's
Supplemental Normal Retirement Income to which he may be entitled
shall be payable (i) prior to the date that he first satisfies the
requirements for retiring on his applicable Retirement Date and
(ii) unless he actually terminates employment with the Employer on
the applicable Retirement Date. Except as provided in Section 9.2
of this Plan, in the event commencement of benefits commence prior
to a Participant's Normal Retirement Date, then, such benefits
shall be adjusted as provided in Article VI in the event of a
payment of a Supplemental Death Benefit, and as provided in Article
VII in the event of a Supplemental Early Retirement Income, and as
provided in Article VIII in the event of a Supplemental Disability
Retirement Income.
ARTICLE VI
DEATH OF A PARTICIPANT
6.1 PAYMENT OF DEATH BENEFIT.
(a) At any point in time to the extent that a
Participant is entitled to receive any portion of his
Basic Retirement Income as determined pursuant to the
terms and provisions of the Qualified Retirement Plan due
to the death of the Participant while employed by the
Company or a Subsidiary, the Eligible Spouse or
Beneficiary of such Participant, as the case may be,
shall be entitled to receive a Supplemental Death Benefit
to be calculated as provided in Article V hereof and will
be based upon the percentage of the Target Benefit earned
by the Participant as of his date of death. Provided,
however, in making such calculation under Article V
hereof, the Participant shall be credited with Years of
Credited Service equal to the greater of his actual Years
of Credited Service or ten (10) Years of Credited
Service. The Supplemental Death Benefit will be paid in
the same manner as he has previously elected in his
Agreement.
(b) The foregoing Subsection (a) notwithstanding,
in the event of the death of Participant who is in the
employ of the Company or a Subsidiary prior to his first
eligible Early Retirement Date, no benefit will be paid
to either the Eligible Spouse or the Beneficiary of
Participant in the form of a Supplemental Death Benefit
until the date such Participant would have otherwise
attained his first eligible Early Retirement Date
assuming he had continued in the employ of the Company.
In the event of the death of the Eligible Spouse or the
Beneficiary, as the case may be, prior to such date, then
-11-
no Supplemental Death Benefit will be paid pursuant to
the terms of this Agreement or the Plan. In the event of
the death of the Participant on or after his first
eligible Early Retirement Date, then his Supplemental
Death Benefit will be paid as hereinabove provided.
Provided further, unless the Participant is in the employ
of the Company as of the date of his death or unless he
has previously terminated employment and commenced
receipt of benefits, then, no Supplemental Death Benefit
shall be paid to the Participant pursuant to the terms of
this Agreement or the Supplemental Plan due to his death.
6.2 BENEFICIARY DESIGNATION. In the event that the
Eligible Spouse is not otherwise designated to receive the
Supplemental Death Benefit otherwise payable to a Participant
hereunder, then, such Supplemental Death Benefit shall be paid to
the Beneficiary designated by the Participant who is then surviving
and if there is no Beneficiary then surviving, such benefits will
automatically be paid to the surviving Eligible Spouse of such
Participant, or otherwise to the estate of such Participant.
ARTICLE VII
EARLY RETIREMENT
7.1 SUPPLEMENTAL EARLY RETIREMENT INCOME. A Participant
who has attained his Early Retirement Date may, with the consent of
the Company, retire early and apply for a Supplemental Early
Retirement Income. A Participant's Supplemental Early Retirement
Income shall commence as of such Participant's Early Retirement
Date. The monthly amount of a Supplemental Early Retirement Income
to which a Participant shall be entitled for life shall be based on
his Supplemental Normal Retirement Income earned by the Participant
as of his Early Retirement Date; provided, that if the payments of
such Supplemental Early Retirement Income commence prior to the
Participant's Normal Retirement Date, such Supplemental Normal
Retirement Income shall be actuarially adjusted as of the date of
actual commencement of payments by multiplying the Participant's
Supplemental Normal Retirement Income by the appropriate "early
retirement adjustment factors" shown below based upon the
Participant's age in years and completed months (calculated
proportionately) at the date of actual commencement of payments;
provided, however, that the Committee may in its sole discretion
waive the application of the Early Retirement Adjustment Factors.
-12-
Early Retirement
Adjustment Factors
-------------------
Percentage of Adjusted
Target Benefit
Age for Participant
--- ----------------------
62-65 100%
61 94%
60 88%
59 82%
58 76%
57 70%
56 64%
55 58%
ARTICLE VIII
DISABILITY
8.1 SUPPLEMENTAL DISABILITY RETIREMENT INCOME. If a
Participant has satisfied all conditions of Disability, he shall be
entitled to his Supplemental Disability Retirement Income. The
monthly amount of a Supplemental Disability Retirement Income to
which a Participant shall be entitled for life shall be based on
his Supplemental Normal Retirement Income earned by the Participant
as of his Disability Retirement Date. Payment of a Supplemental
Disability Retirement Income payments shall not commence (i) prior
to his first eligible Early Retirement Date assuming such
Participant continued in the employ of the Employer, and (ii) until
such Participant is no longer receiving benefits pursuant to the
Long-Term Disability Plan. A Participant's Supplemental Disability
Retirement Income will be adjusted like a Supplemental Early
Retirement Income as provided in Section 7.1 hereof if benefits
commence prior to attainment of the age of 62 years.
8.2 PROOF OF DISABILITY. After a Participant's
Disability Retirement Date the Committee may require that the
Participant's continuing Disability be verified by medical
examination at a location convenient to the Participant; provided,
such Participant shall not be required to submit to more than one
examination in a 12 month period. If, at any time prior to the
Participant's Normal Retirement Age, the Committee determines that
he no longer has a Disability, or if the Participant shall refuse
to submit to a physical examination, the Committee shall direct
that in computing such Participant's Supplemental Disability
Retirement Income, only "Years of Credited Service" earned prior to
such determination by the Committee be considered.
-13-
ARTICLE IX
TERMINATION OF EMPLOYMENT
9.1 TERMINATION OF EMPLOYMENT PRIOR TO RETIREMENT DATE.
In the event that a Participant for any reason other than death or
approved retirement by the Employer on or after his applicable
Early Retirement Date terminates his employment with the Employer
prior to his Normal Retirement Date, then, except as provided in
Section 9.2 below, such Participant shall have no rights of any
kind whatsoever in any Supplemental Normal Retirement Income (or
any other benefit) otherwise to be paid pursuant to the terms of
this Plan.
9.2 ACCELERATION OF ACCRUAL OF TARGET BENEFIT UPON
CHANGE OF CONTROL. In the event that there is a "change of
control" as defined below of the Company, and within three years
following such change of control, a Participant is terminated other
than for Cause or death or Disability or terminates his employment
for Good Reason, then, such Participant shall be fully vested and
entitled to his full Supplemental Normal Retirement Income earned
by such Participant as of his date of termination of employment
with such Supplemental Retirement Income to be paid beginning
immediately. Such Supplemental Normal Retirement Income shall not
be reduced by any Early Retirement Adjustment Factors as provided
in Article VII hereof and shall be calculated based upon such
Participant's actual Annual Final Compensation earned by such
Participant as of his termination of employment and the greater of
such Participant's actual Years of Credited Service or ten (10)
Years of Credited Service. In each case, the Participant shall
have been deemed to have reached 65 years of age. Anything in this
Plan to the contrary notwithstanding, if a Participant's employment
with the Employer 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 Plan as to such terminated
Participant, a Change of Control shall mean the date immediately
prior to the date of such termination. For the purposes of this
Plan, the term "change of control" shall mean:
(a) 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
-14-
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 Section 7 of the Rights Agreement between
the Company and The Liberty National Bank and
Trust Company of Oklahoma City dated as of
July 7, 1986 together with any additional
amendments thereto (the "Rights Agreement")
lowers the threshold amounts set forth in
Section 1(a) or 3(a) of the Rights Agreement,
the Triggering Percentage shall be
automatically reduced to equal the threshold
set pursuant to Section 7 of 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, (iv) any acquisition previously
approved by at least a majority of the members
of the Incumbent Board, (v) 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 (vi) any acquisition by
any corporation pursuant to a transaction
which complies with clauses (i), (ii), and
(iii) of subsection (c) of this Section 9.2;
or
(b) Individuals who, as of the date hereof,
constitute the Board of Directors of the
Company (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
-15
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
(c) 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, (i) 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, (ii) 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 (iii) 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
-16-
or were elected, appointed or nominated by the
Board; or
(d) Approval by the shareholders of the Company of
(i) a complete liquidation or dissolution of
the Company or, (ii) 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.
-17-
ARTICLE X
MANNER OF PAYMENT OF BENEFITS
10.1 PAYMENT AT ACTUAL RETIREMENT. Upon the Participant
terminating his employment with the Company on his applicable
Retirement Date, then, such Participant shall be paid a benefit
calculated as provided herein; and, such benefit shall be paid as
Supplemental Early Retirement Income, Supplemental Disability
Retirement Income or Supplemental Normal Retirement Income, as the
case may be. Such Supplemental Normal Retirement income will be
paid monthly on a single life basis for the life of the Participant
unless an optional form of payment is selected by Participant.
Provided, such selections are irrevocable and will be made by the
Participant on the date the Participant becomes a participant in
the Plan. The optional forms of payment permitted under the Plan
are as follows:
OPTIONAL FORM OF PAYMENT
50% spouse survivor benefit
75% spouse survivor benefit
100% spouse survivor benefit
5 year certain
10 year certain
15 year certain
In the event that a Participant elects an optional form of payment
as herein provided, the Actuary for the Plan shall actuarially
adjust the amount of Supplemental Normal Retirement Income
otherwise payable to the Participant if such payment was to be made
on a single life basis to reflect the age of the Participant, his
Beneficiary or his Eligible Spouse, as the case may be.
10.2 PARTICIPANT TO ELECT METHOD OF DISTRIBUTION. On or
about the time a Participant has been selected by the Committee to
participate in the Plan, the Participant shall elect the method of
distribution as described in Subsection 10.1 with respect to the
time and the manner in which his Supplemental Retirement Income
will be distributed. After the death of a Participant, a
Beneficiary may not elect an alternate form of distribution.
ARTICLE XI
GENERAL BENEFIT PROVISIONS
11.1 REEMPLOYED PARTICIPANTS WHO HAD BEEN RECEIVING
PENSION BENEFITS. In the event that a Participant who was
previously receiving any benefits under any provision of this Plan,
and such Participant is reemployed with the Employer and if the
Participant is again selected for participation in the Plan, the
-18-
amount of previous benefits paid shall be taken into account and
shall serve to actuarially reduce the Participant's Supplemental
Normal Retirement Income payable at his subsequent Retirement Date.
11.2 RESTRICTIONS ON ALIENATION OF BENEFITS. No right or
benefit under this Plan shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance, or charge, and
any attempt to anticipate, alienate, sell, assign, pledge,
encumber, or charge the same shall be void. 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. If any Participant or Beneficiary under this Plan
should become bankrupt or attempt to anticipate, alienate, sell,
assign, pledge, encumber, or charge any right to a benefit under
this Plan, then such right or benefit shall, in the discretion of
the Committee, be held or applied for the benefit of such
Participant or Beneficiary, his or her spouse, children, or other
dependents, or any of them, in such manner and in such portion as
the Committee, in its sole and absolute discretion, may deem
proper.
11.3 NO TRUST. No action under this Plan by the Company,
its Board of Directors or the Committee shall be construed as
creating a trust, escrow or other secured or segregated fund in
favor of the Participant, his Beneficiary, or any other persons
otherwise entitled to his Supplemental Normal Retirement Income.
The status of the Participant and his Beneficiary with respect to
any liabilities assumed by the Company hereunder shall be solely
those of unsecured creditors of the Employer. Any asset acquired
or held by the Company or any Subsidiary 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 Participant or his Beneficiaries or to be security
for the performance of the obligations of the Company or any
Subsidiary, but shall be, and remain a general, unpledged,
unrestricted asset of the Company or any Subsidiary at all times
subject to the claims of general creditors of the Company or any
Subsidiary.
11.4 WITHHOLDING AND OTHER EMPLOYMENT TAXES. The Company
shall comply with all federal and state laws and regulations
respecting the withholding, deposit and payment of any income or
other taxes relating to any payments made under this Plan.
ARTICLE XII
PROVISIONS RELATING TO PARTICIPANTS
12.1 INFORMATION REQUIRED OF PARTICIPANTS. Payment of
Benefits shall begin as of the payments date(s) provided in this
Plan and no formal claim shall be required therefor; provided, in
the interests of orderly administration of the Plan, the Committee
-19-
may make reasonable requests of Participants and beneficiaries to
furnish information which is reasonably necessary and appropriate
to the orderly administration of the Plan, and, to that limited
extent, payments under the Plan are conditioned upon the
Participants and beneficiaries promptly furnishing true, full and
complete information as the Committee may reasonably request.
12.2 ABANDONMENT OF BENEFITS. Each Participant and
Beneficiary shall file with the Committee, from time to time in
writing, his post office address and each change of post office
address, and any communication addressed to a Participant or
beneficiary at his last post office address filed with the
Committee, or if no such address was filed, then at his last post
office address as shown on the Employer's records, shall be binding
on the Participant or his Beneficiary for all purposes of the Plan,
and the Committee shall not be obliged to search for or ascertain
the whereabouts of any Participant or Beneficiary; provided, that
the Committee shall mail an annual notice of unpaid pension
benefits to such person at such last post office address. If the
Committee furnishes such annual notice to any Participant, or
Beneficiary of a deceased Participant, that he is entitled to a
distribution, and the Participant or Beneficiary fails to claim
such distribution or make his whereabouts known to the Committee
within three years thereafter, such benefits shall be disposed of
as follows:
(a) if the whereabouts of such Beneficiary then is
known to the Committee, payment shall be made to such
beneficiary; or
(b) if the whereabouts of such Participant and his
Beneficiary is unknown to the Committee, the Committee
may direct the distribution of a Participant's pension
benefits on the same basis as though the Participant had
died without designating a Beneficiary as provided in
Subsection 6.2 herein.
12.3 BENEFITS PAYABLE TO INCOMPETENTS. Any benefits
payable hereunder to a minor or other person under legal disability
may be made, at the discretion of the Committee, (i) directly to
the said person, or (ii) to a parent, spouse, relative by blood or
marriage, or the legal representative of the said person. The
Committee shall not be required to see to the application of any
such payment, and the payee's receipt shall be a full and final
discharge of the Committee's responsibility hereunder.
12.4 CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN. The
establishment and maintenance of the Plan shall not be construed as
conferring any legal rights upon any Participant to the
continuation of employment with the Employer, nor shall the Plan
interfere with the rights of the Employer to discharge any
Participant with or without cause.
-20-
ARTICLE XIII
Administration and
ASSOCIATE BENEFITS COMMITTEE
13.1 ALLOCATION OF RESPONSIBILITY FOR PLAN
ADMINISTRATION. The Committee shall have only those specific
powers, duties, responsibilities and obligations as are
specifically given them under the Plan. In general, the Company
shall have the sole responsibility for appointing and removing
Committee members, as provided in Section 13.2 herein. The Company
shall have the sole responsibility for amending or terminating, in
whole or in part, this Plan. The Committee shall have the sole
responsibility for the administration of the Plan which
responsibility is specifically described in this Plan.
13.2 APPOINTMENT OF COMMITTEE. The Plan shall be
administered by the Committee which shall be appointed by and serve
at the pleasure of the Board of Directors of the Company. All
usual and reasonable expenses of the Committee may be paid in whole
or in part by the Company.
13.3 CLAIMS PROCEDURE. The Committee shall make all
determinations as to the right of any person to benefits. If any
request for a benefit is wholly or partially denied, the Committee
shall notify the person requesting the pension benefits, in
writing, of such denial, including in such notification the
following information:
(a) the specific reason or reasons for such denial;
(b) the specific references to the pertinent Plan
provisions upon which the denial is based;
(c) a description of any additional material and
information which may be needed to clarify the request,
including an explanation of why such information is
required; and
(d) an examination of this Plan's review procedure
with respect to denial of benefits.
Provided, that any such notice to be delivered to any Participant
or beneficiary shall be mailed by certified or registered mail and
shall be written to the best of the Committee's ability in a manner
that may be understood without legal counsel.
13.4 REVIEW PROCEDURE. Any Participant or Beneficiary
whose claim has been denied in accordance with Section 13.3 herein
may appeal to the Committee for review of such denial by making a
written request therefor within 60 days of receipt of the
notification of such denial. Such Participant or Beneficiary may
-21-
examine documents pertinent to the review and may submit to the
Committee written issues and comments. Within 60 days after
receipt of the request for review, the Committee shall communicate
to the claimant, in writing, its decision, and the communication
shall set forth the reason or reasons for the decision and specific
reference to those Plan provisions upon which the decision is
based.
13.5 RECORDS AND REPORTS. The Committee shall exercise
such authority and responsibility as it deems appropriate in order
to comply with the Act and governmental regulations issued
thereunder relating to records of the Participant's accounts and
benefits which may be paid under the Plan; and to notify
Participants and Beneficiaries as required.
13.6 OTHER COMMITTEE POWERS AND DUTIES. The Committee
shall have such duties and powers as may be necessary to discharge
its duties hereunder, including, but not by way of limitation, the
following:
(a) to construe and interpret the Plan in its sole
and absolute discretion, decide all questions of
eligibility and determine the amount, manner and time of
payment of any benefits hereunder;
(b) to prescribe procedures to be followed by
Participants or Beneficiaries filing applications for
benefits;
(c) to prepare and distribute, in such manner as
the Committee determines to be appropriate, information
explaining the Plan;
(d) to receive from the Employer and from
Participants and Beneficiaries such information as shall
be necessary for the proper administration of the Plan;
(e) to furnish the Employer, upon request, such
reports with respect to the administration of the Plan as
are reasonable and appropriate;
(f) to appoint and employ individuals and any other
agents it deems advisable, including legal counsel, to
assist in the administration of the Plan and to render
advice with respect to any responsibility of the
Committee, or any of its individual members, under the
Plan;
(g) to allocate among themselves who shall be
responsible for specific duties and to designate
fiduciaries (other than Committee members) to carry out
responsibilities under the Plan; provided that any such
-22-
allocations shall be reduced to writing, signed by all
Committee members, and filed in a permanent Committee
minute book; and
(h) to maintain continuing review of the Act and
the Code, implementing regulations thereto and suggest
changes and modifications to the Employer in connection
with delegations of responsibility, as appropriate, and
amendments to the Plan.
13.7 RULES AND DECISIONS. The Committee may adopt such
rules as it deems necessary, desirable, or appropriate. All rules
and decisions of the Committee shall be uniformly and consistently
applied to all Participants and beneficiaries in similar
circumstances. When making a determination or calculation, the
Committee shall be entitled to rely upon information furnished by
a Participant or Beneficiary, the Employer, the legal counsel of
the Company.
13.8 COMMITTEE PROCEDURES. The Committee may act at a
meeting or in writing without a meeting. The Committee shall have
a chairman, and appoint a secretary, who may or may not be a
Committee member. The secretary shall keep a record of all
meetings in a permanent Committee minute book and forward all
necessary communications to the Employer. The Committee may adopt
such bylaws and regulations as it deems desirable for the conduct
of its affairs. All decisions of the Committee shall be made by
the vote of the majority including actions in writing taken without
a meeting. A dissenting Committee member who, within a reasonable
time after he has knowledge of any action or failure to act by the
majority, registers his dissent in writing delivered to the other
Committee members, to the extent permitted by law, shall not be
responsible for any such action or failure to act.
ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 RIGHT TO AMEND OR ALTER PLAN. The Plan may be
amended by the Company from time to time in any respect whatever by
resolution of the Company specifying such amendment; provided,
however, this Plan may not be amended after a Change of Control in
any manner which adversely affects any Participant without the
consent of the affected Participant.
14.2 RIGHT TO TERMINATE PLAN. The Company expressly
reserves the right to terminate this Plan in whole or in part at
any time; provided, however, this Plan may not be terminated in the
event of a Change of Control without the consent of all of the
Participants.
-23-
14.3 MERGER OR TERMINATION OF QUALIFIED RETIREMENT PLAN.
(a) MERGER OF COMPANY; SUCCESSOR MUST ASSUME PLAN.
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 the Company's and any Subsidiary's
obligations under this Plan in the same manner and to the
same extent that the Company or such Subsidiary would be
required to perform if no such succession had taken
place. Failure of the Company to obtain such assumption
and agreement prior to the effectiveness of any
succession shall be a breach by the Company of its
obligations under this Plan and shall entitle the
Participant to compensation from the Company in the same
amount and on the same terms as the Participant would be
entitled to hereunder if the Participant 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.
(b) TERMINATION OF QUALIFIED RETIREMENT PLAN. In
the event of the termination of the Company's Qualified
Retirement Plan, then, in calculating any Supplemental
Normal Retirement Income which would otherwise be paid to
Participant under this Plan, the Basic Retirement Income
earned by Participant under the Qualified Retirement Plan
will be calculated as of such termination date and will
be applied at such time to determine the amount of Target
Benefit to which Participant would be entitled under this
Plan; and the Target Benefit will be paid as otherwise
provided under the Agreement and the Plan.
14.4 FORFEITURE OF ALL BENEFITS. In the event that (i)
the Participant is discharged from employment service with the
Company for acts of dishonesty, fraud, theft, embezzlement, (ii)
upon the conviction by a court of competent jurisdiction of a crime
that is deemed to be a felony under the laws of the State of
Oklahoma (or any other state) or laws of the United States, or
(iii) in the event the Participant commits any other act or acts
which are injurious and adversely impacts the Company in any manner
whatsoever, then, in such events, the Committee, in its sole
discretion, may determine that any benefit which would otherwise be
provided to the Participant, his Beneficiary or his Eligible Spouse
under the Agreement or the Plan shall be forfeited in its entirety,
and it shall thereafter be deemed as if the Participant never was
selected for participation in the Plan. Provided, however, that
the provisions of this Section 14.4 shall not be applicable in the
event a Change of Control has occurred.
-24
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 ARTICLES AND SECTION TITLES AND HEADINGS. The
titles and headings at the beginning of each Article and Section
shall not be considered in construing the meaning of any provisions
in this Plan.
15.2 LAWS OF OKLAHOMA TO GOVERN. The provisions of this
Plan shall be construed, administered and enforced according to the
laws of the State of Oklahoma. All Contributions to the Trust
shall be deemed to take place in the State of Oklahoma.
EXECUTED as of the 2nd day of March, 1995.
FLEMING COMPANIES, INC., a
corporation
By: /s/ ROBERT E. STAUTH
-----------------------------------
Robert E. Stauth, Chairman,
President and Chief Executive
Officer
"COMPANY"
-25-