FLEMING COMPANIES, INC.
SUPPLEMENTAL INCOME TRUST
THIS AGREEMENT FOR THE FLEMING COMPANIES, INC.
SUPPLEMENTAL INCOME TRUST (the "Trust Agreement") made as of this
16th day of March, 1995, by and between Fleming Companies, Inc., an
Oklahoma corporation (the "Company"), and BANCOKLAHOMA TRUST
COMPANY, an Oklahoma corporation (the "Trustee"). This Trust
Agreement provides for the establishment of a trust to be known as
the "Fleming Companies, Inc. Supplemental Income Trust"
(hereinafter called the "Trust") to provide a source for payments
required to be made under the contracts, agreements and plans
listed on Exhibit "A" as amended from time to time (the "Plans")
entered into between the Company and certain of its key management
associates (the "Participants").
WHEREAS, Company has adopted the Plans listed on Exhibit
A;
WHEREAS, Company has incurred or expects to incur
liability under the terms of the Plans; and
WHEREAS, Company wishes to establish a trust (hereinafter
called "Trust") and to contribute to the Trust assets that shall be
held therein, subject to the claims of creditors in the event of
Company's Insolvency, as herein defined, until paid to Participants
and their beneficiaries in such manner and at such times as
specified in the Plans; and
WHEREAS, it is the intention of the parties that this
Trust shall constitute an unfunded arrangement and shall not affect
the status of the Plans as unfunded plans maintained for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees for purposes of Title I
of the Employee Retirement Income Security Act of 1974; and
WHEREAS, it is the intention of Company to make
contributions to the Trust to provide itself with a source of funds
to assist it in the meeting of its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust
and agree that the Trust shall be comprised, held and disposed of
as follows:
Section 1. ESTABLISHMENT OF TRUST
(a) Company hereby deposits with Trustee, in trust, One
Hundred Dollars ($100.00), which constitutes the principal of the
Trust to be held, administered and disposed of by Trustee as
provided in this Trust Agreement.
(b) The Trust hereby established is revocable by
Company; it shall become irrevocable upon a change of control, as
such term is defined in the Plans ("Change of Control").
(c) The Trust is intended to be a grantor trust, of
which Company is the grantor, within the meaning of subpart E, part
I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code
of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon
shall be held separate and apart from other funds of Company and
shall be used exclusively for the uses and purposes of Participants
and their beneficiaries and the general creditors of Company and
its subsidiaries as herein set forth. The Participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of the Participants and their beneficiaries
against Company or its subsidiaries whichever is the actual
employer of the Participants. Any assets held by the Trust will be
subject to the claims of general creditors of the Company or its
subsidiaries under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or
from time to time, make additional deposits of cash or other
property in trust with Trustee to augment the principal to be held,
administered and disposed of by Trustee (which may not include
securities issued by Company or its subsidiaries) as provided in
this Trust Agreement. In addition, Company may designate such
Plans and Participants to be entitled to receive any payments from
the amounts so deposited, provided, such payments shall only be
made in accordance with the terms and provisions of the designated
Plans. Neither Trustee nor any Participant or beneficiary shall
have any right to compel such additional deposits.
(f) Upon a Change of Control, Company shall, as soon as
possible, but in no event longer than sixty (60) days following the
Change of Control, make an irrevocable contribution to the Trust in
an amount that is sufficient to pay the Participants or their
beneficiaries the benefits to which the Participants or their
beneficiaries would be entitled pursuant to the terms of the
Amended and Restated Supplemental Retirement Income Plan of Fleming
Companies, Inc. and Its subsidiaries (the "Supplemental Plan") as
of the date on which the Change of Control occurred assuming the
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Participants have each been terminated other than for "cause" (as
such term is defined in the Supplemental Plan ), death or
disability or the Participants terminate their employment for "good
reason" as such term is defined in the Supplemental Plan.
Section 2. PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Company shall deliver to Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect
of each Participant (and his or her beneficiaries) and provides a
formula or other instructions acceptable to Trustee for determining
the amounts so payable, the form in which such amount is to be paid
(as provided for or available under the Plans), and the time of
commencement for payment of such amounts. Except as otherwise
provided herein, Trustee shall make payments to the Participants
and their beneficiaries in accordance with such Payment Schedule.
The Trustee shall make provision for the reporting and withholding
of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to the
terms of the Plans and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have
been reported, withheld and paid by Company.
(b) The entitlement of a Participant or his or her
beneficiaries to benefits under the Plans shall be determined in
accordance with the terms of the Plans by Company or such party as
it shall designate under the Plans, and any claim for such benefits
shall be considered and reviewed under the procedures set out in
the Plans.
(c) Company may make payment of benefits directly to the
Participants or their beneficiaries as they become due under the
terms of the Plans. Company shall notify Trustee of its decision
to make payment of benefits directly prior to the time amounts are
payable to Participants or their beneficiaries. In addition, if
the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the
terms of the Plans, Company shall make the balance of each such
payment as it falls due. Trustee shall notify Company where
principal and earnings are not sufficient. Trustee shall not be
responsible for the reporting and withholding of any federal, state
or local taxes that may be required to be withheld with respect to
the payment of benefits directly to Participants or their
beneficiaries by Company.
Section 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN COMPANY IS INSOLVENT.
(a) Trustee shall cease payment of benefits to
Participants and their beneficiaries if Company is Insolvent.
Company shall be considered "Insolvent" for purposes of this Trust
Agreement if (i) Company is unable to pay its debts as they become
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due, or (ii) Company is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust,
as provided in Section 1(d) hereof, the principal and income of the
Trust shall be subject to claims of general creditors of Company
under federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive
Officer of Company shall have the duty to inform trustee in writing
of Company's Insolvency. If a person claiming to be a creditor of
Company alleges in writing to Trustee that Company has become
Insolvent, Trustee shall determine whether Company is Insolvent
and, pending such determination, Trustee shall discontinue payment
of benefits to the Participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of
Company's Insolvency, or has received notice from Company or a
person claiming to be a creditor alleging that Company is
Insolvent, Trustee shall have no duty to inquire whether Company is
Insolvent. Trustee may in all events rely on such evidence
concerning Company's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a
determination concerning Company's solvency.
(3) If at any time Trustee has determined that
Company is Insolvent, Trustee shall discontinue payments to the
Participants or their beneficiaries and shall hold the assets of
the Trust for the benefit of Company's general creditors, including
the Participants. Nothing in this Trust Agreement shall in any way
diminish any rights of Participants or their beneficiaries to
pursue their rights as general creditors of Company with respect to
benefits due under the Plans or otherwise.
(4) Trustee shall resume the payment of benefits to
Participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after Trustee has determined that Company
is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if
Trustee discontinues the payment of benefits from the Trust
pursuant to Section 3(b) hereof and subsequently resumes such
payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Participants or
their beneficiaries under the terms of the Plans for the period of
such discontinuance, less the aggregate amount of any payments made
to Participants or their beneficiaries by Company in lieu of the
payments provided for hereunder during any such period of
discontinuance.
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Section 4. PAYMENTS TO COMPANY.
Except as provided in Section 3 hereof, after the Trust
has become irrevocable, Company shall have no right or power to
direct Trustee to return to Company or to divert to others any of
the Trust assets before all payments of benefits have been made to
Participants and their beneficiaries pursuant to the terms of the
Plans.
Section 5. INVESTMENT AUTHORITY.
(a) Trustee may not invest in or hold securities issued
by Company or its subsidiaries. All rights associated with assets
of the Trust shall be exercised by Trustee or the person designated
by Trustee, and shall in no event be exercisable by or rest with
Participants. Dividend rights with respect to Trust assets will
rest with the Trust. All investment decisions with regard to the
investment and reinvestment of the Trust assets will be made by
Trustee.
(b) Company shall have the right at anytime, and from
time to time in its sole discretion, to substitute assets of equal
fair market value for any asset held by the Trust, provided the
asset or assets substituted is acceptable to Trustee. This right
is exercisable by Company in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
(c) Trustee, at its own discretion where Trustee has
discretion with respect to investments under this Trust Agreement
or applicable law or upon the direction of any person authorized to
direct investments under this Trust Agreement, including but not
limited to, an investment manager or Company, may invest in the
securities of any open-end or closed-end investment management
trust or company registered under the Investment Company Act of
1940, as amended from time to time, to the maximum extent permitted
by the laws of the State of Oklahoma. Such securities include but
are not limited to securities for which Trustee or any of its
subsidiaries or affiliated companies serves as an investment
advisor, sponsor, distributor, custodian, transfer agent,
administrator, registrar, or otherwise.
Section 6. - DISPOSITION OF INCOME.
During the term of this Trust, all income received by the
Trust, net of expenses, payments to Participants and taxes, shall
be accumulated and reinvested by Trustee.
Section 7. ACCOUNTING BY TRUSTEE.
Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
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required to be made, including such specific records as shall be
agreed upon in writing between Company and Trustee. Within sixty
(60) days following the close of each calendar year and within
sixty (60) days after the removal or resignation of Trustee,
Trustee shall deliver to Company a written account of its
administration of the Trust during such year or during the period
from the close of the last preceding year to the date of such
removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued
interest paid or receivable being shown separately), and showing
all cash, securities and other property held in the Trust at the
end of such year or as of the date of such removal or resignation,
as the case may be.
Section 8. RESPONSIBILITY OF TRUSTEE.
(a) Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with
like aims, provided, however, that Trustee shall incur no liability
to any person for any action taken pursuant to a direction, request
or approval given by Company which is contemplated by, and in
conformity with, the terms of the Plans or this Trust and is given
in writing by Company. In the event of a dispute between Company
and a party, Trustee may apply to a court of competent jurisdiction
to resolve the dispute.
(b) If Trustee undertakes or defends any litigation
arising in connection with this Trust, Company agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses)
relating thereto and to be primarily liable for such payments.
(c) Trustee may consult with legal counsel (who may also
be counsel for Company generally) with respect to any of its duties
or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals
to assist it in performing any of its duties or obligations
hereunder.
(e) Trustee shall have, without exclusion, all powers
conferred on Trustee by applicable law, unless expressly provided
otherwise herein, provided, however, that if an insurance policy is
held as an asset of the Trust, Trustee shall have no power to name
a beneficiary of the policy other than the Trust, to assign the
policy (as distinct from conversion of the policy to a different
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form) other than to a successor Trustee, or to loan to any person
the proceeds of any borrowing against such policy.
(f) However, notwithstanding the provisions of Section
8(e) above, Trustee may loan to Company the proceeds of any
borrowing against an insurance policy held as an asset of the
Trust.
(g) Notwithstanding any powers granted to Trustee
pursuant to this Trust Agreement or to applicable law, Trustee
shall not have any power that could give this Trust the objective
of carrying on a business and dividing the gains therefrom, within
the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal
Revenue Code.
(h) Trustee shall not be responsible for tax return
preparation or filing, nor any reporting to any governmental agency
of income earned, but not distributed.
Section 9. COMPENSATION AND EXPENSES OF TRUSTEE.
Company shall pay all of Trustee's fees and expenses as
well as administrative expenses attributable to the Trust. If not
so paid, the fees and expenses shall be paid from the Trust.
Section 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to
Company, which shall be effective sixty (60) days after receipt of
such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on thirty (30)
days notice or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, Trustee may not be removed
by Company for five (5) years.
(d) If Trustee resigns or is removed within five (5)
years of a Change of Control, Company shall apply to a court of
competent jurisdiction for the appointment of a successor Trustee
or for instructions.
(e) Upon resignation or removal of Trustee and
appointment of a successor Trustee, all assets shall subsequently
be transferred to the successor Trustee. The transfer shall be
completed within ninety (90) days after receipt of notice of
resignation, removal or transfer, unless Company extends the time
limit.
(f) If Trustee resigns or is removed, a successor shall
be appointed, in accordance with section 11 hereof, as of the
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effective date of resignation or removal under paragraphs (a) or
(b) of this section. If no such appointment has been made, Trustee
may apply to a court of competent jurisdiction for appointment of
a successor or for instructions.
Section 11. APPOINTMENT OF SUCCESSOR.
If Trustee resigns or is removed in accordance with
Section 10(a) or (b) hereof, Company may appoint any third party,
such as a bank trust department or other party that may be granted
corporate trustee powers under state law, as a successor to replace
Trustee upon resignation or removal. The appointment shall be
effective when accepted in writing by the new Trustee, who shall
have all the rights and powers of the former Trustee, including
ownership rights in Trust assets. The former Trustee shall execute
any instrument necessary or reasonably requested by Company or the
successor Trustee to evidence the transfer.
Section 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written
instrument executed by Trustee and Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the
Plans or shall make the Trust revocable after it has become
irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on
which Participants and their beneficiaries are no longer entitled
to benefits pursuant to the terms of the Plans unless sooner
revoked in accordance with Section 1(b) hereof. Upon termination
of the Trust any assets remaining in the Trust shall be returned to
Company.
(c) Upon written approval of all Participants or
beneficiaries entitled to payment of benefits pursuant to the terms
of the Plans, Company may terminate this Trust prior to the time
all benefit payments under the Plans have been made. All assets in
the Trust at termination shall be returned to Company.
(d) This Trust Agreement may not be amended by Company
for five (5) years following a Change of Control without the
consent of all Participants.
Section 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by
law shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
(b) Benefits payable to Participants and their
beneficiaries under this Trust Agreement may not be anticipated,
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assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy, execution
or other legal or equitable process.
(c) This Trust Agreement shall be governed by and
construed in accordance with the laws of Oklahoma.
Section 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be as of
the date hereof.
FLEMING COMPANIES, INC., an
Oklahoma corporation
By: /s/ Larry A. Wagner
--------------------------------------
Larry A. Wagner, Senior Vice
President-Associate Support
"COMPANY"
BANCOKLAHOMA TRUST COMPANY
By: /S/ Ellen D. Fleming
------------------------------------
Name: Ellen D. Fleming
Title: Senior Vice President
& Senior Trust Officer
"TRUSTEE"
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EXHIBIT "A"
TO
FLEMING COMPANIES, INC.
AMENDED AND RESTATED SUPPLEMENTAL INCOME TRUST
1. Amended and Restated Supplemental Retirement Income Plan
of Fleming Companies, Inc. and Its subsidiaries.
2. Agreements for Supplemental Retirement Income together
with all amendments thereto entered into by the Company
under the Amended and Restated Supplemental Retirement
Income Plan of Fleming Companies, Inc. and Its
subsidiaries.
3. Severance Agreements containing provisions requiring
payments upon a change of control together with all
amendments thereto entered into by the Company and
certain key associates.
4. Employment Agreements containing provisions requiring
payments upon a change of control together with all
amendments thereto entered into by the Company and
certain key executives.
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