EXHIBIT 10.66
September 13, 2002
HAND DELIVERY
William H. Marquard
853 Grove Street
Glencoe, Illinois 60022
Dear Bill:
In keeping with your conversations with Scott Northcutt, the Company is
agreeable to amending your separation agreement. The letter will supercede my
letter of September 6, 2002. We have previously discussed your resignation as an
officer of Fleming Companies, Inc. effective September 6, 2002, and your
separation from employment in the near future. This letter outlines an
arrangement that we think will make this transition as smooth as possible for
both you and the Company. The letter, along with the attached General Release,
will reflect our agreement in that regard. This package incorporates both the
provisions of your Employment Agreement related to termination of employment and
additional benefits and opportunities beyond what is contractually required. It
will supercede all prior agreements regarding your compensation and benefits and
all those agreements will terminate effective today unless specifically
indicated in this letter. The arrangement is as follows:
1. Transition Duties and Consulting Agreement. We have agreed to begin
transition of your responsibilities effective today and that your separation as
an associate of Fleming will be effective three months from now on December 6,
2002. Effective September 6, 2002, your principal office for Fleming will be in
Chicago and you will be considered an Illinois resident for tax purposes. During
that transition period, your base compensation will remain unchanged, although,
as previously indicated, you will not be an officer of the Company. Also, you
will be able to exercise vested stock options during this three months and for
90 days after your separation date; no other stock options, restricted stock or
other benefits, however, will vest during the remainder of your employment.
Thereafter, you will provide services to the Company as an independent
contractor for up to nine additional months. The Company will pay you a monthly
consulting fee in the same amount as your current monthly gross base salary.
Your responsibilities will be to further assist in the transition and to provide
special assistance and expertise with other projects on which you and I will
agree. Continuation of the consulting arrangement will be contingent upon
meeting performance objectives, which I will establish. The consulting
arrangement will cease as of September 6, 2003 or when you accept employment
with another company, whichever occurs earlier. You will be reimbursed for
reasonable business expenses, which are consistent with Fleming's expense
reimbursement policies, including travel from your office in Chicago to any
Fleming location, through the term of your consulting agreement. Also, to the
extent that Fleming attributes personal use of the Company plane for commuting
purposes during 2002 as taxable income to you, the Company agrees to gross-up
such taxable income. Assuming you accept this
package, we will ask legal counsel to prepare a separate consulting contract
which is mutually agreeable to you and Fleming to reflect that your services
after December 6 will be provided as an independent contractor/external
consultant.
2. Special Payment in Lieu of Performance Award. Under the Key Executive
Performance Plan, the Company will pay you any vested deferrals within thirty
days of the effective date of your separation. As of your separation date, you
will of course no longer be eligible to participate in that program. If, based
on year end results, you would be eligible for an Award under the Performance
Plan for 2002, the Company will make a special payment to you equal to $425,000
at the time Awards, if any, are paid to the other Performance Plan participants.
If earned based on the Targets, this payment would be the same amount as you
would have received for 2002 under the Performance Plan because, as you know,
the other one half of the Award is deferred and unvested under the Plan's terms.
3. Executive Financial/Estate Planning: The Company will continue to pay for
normal AYCO benefits for 2003. After that you will be eligible to transition to
an individual plan.
4. Vacation and Salary Continuation Payments. This separation is "without Cause"
as defined in your Employment Agreement. Therefore, the Company will pay you
accrued, unused vacation pay for 2002 and salary continuation for a period of
twenty-four (24) months, as provided in Section 10(b)(i) of the Employment
Agreement.
5. Executive Health Insurance Continuation Plan. Your Employment Agreement also
provides for continuation of medical and dental coverage and participation in
other welfare benefit programs for a period of twenty-four (24) months, subject
to certain modifications if you become reemployed and are eligible to receive
medical or other welfare benefits under another employer-provided plan. The best
way to provide this continued coverage is through the Executive Health Insurance
Continuation Plan. This program gives participants continued access to health
insurance coverage mirroring the Company's current active medical/dental plan
until they reach age 65, become eligible for Medicare or become eligible for
coverage under another employer's group plan, whichever is earlier. To be
eligible under this Plan, you must have five (5) or more years of credited
service prior to leaving Fleming. We will, however, interpret the "three years
of credit for one year of service" provision in the Plan as giving you more than
five years of credited service as of your separation date.
6. Confidentiality of Information; Future Employment and Solicitation of Fleming
Associates. During the course of your employment, the Company has provided you
access to its confidential and proprietary information and trade secrets, and it
will continue do so during the remainder of your employment and, potentially
during the time you are acting as a consultant. Therefore, except with the prior
written consent of the Company, you will agree not to make any independent use
of or disclose to any other person or organization any of the Company's or its
subsidiaries' and affiliated entities' confidential, proprietary information or
trade secrets. This shall apply to any information concerning Fleming which is
of a special and unique value and includes, without limitation, both written and
unwritten information relating to operations; business planning and strategies;
litigation strategies; finance; accounting; sales; personnel, salaries and
management; customer names, addresses and contracts; customer requirements;
costs of providing products and service; operating and maintenance costs; and
pricing matters. This shall also apply to any trade
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secrets of the Company the protection of which is of critical importance to
Fleming and includes, without limitation, techniques, methods, processes, data
and the like. You and the Company agree that due to your knowledge of its
confidential and proprietary information and trade secrets, you would inherently
use and/or disclose that information, in breach of your confidentiality
commitment, if you worked in certain capacities or engaged in certain
activities. Therefore, during the remainder of your employment with Fleming and
for twenty-four (24) months after the effective date of your separation, except
with the written consent of the Company, you will not be employed by or consult
or work in any capacity for or on behalf of SUPERVALU, Inc., Nash Finch Company
or any other direct competitor (excluding national retail chains) of the Company
or any of its subsidiaries or affiliated entities. During that same time period,
you will not solicit or attempt to hire any current associate of the Company on
your own behalf or on the behalf of any other employer. Except with the prior
written consent of the Company, you will not at any time in the future be
employed or otherwise act as an expert witness or consultant or in any similar
capacity in any litigation, arbitration, regulatory or agency hearing or other
adversarial or investigatory proceeding involving Fleming or one of its
subsidiaries or affiliated entities. These commitments are for the reasonable
protection of the Company's business interests and are ancillary to and
necessary to accomplish the objective of the Company's prior and current
agreement to allow you access to confidential and proprietary information and
trade secrets and your agreement to maintain the confidentiality of that
knowledge and those materials.
7. Mutual Preservation of Good Name and Reputation. You will agree not to
defame, disparage or make statements which could embarrass or cause harm to the
Company's name and reputation or the names and reputation of any of its
officers, directors or representatives to the Company's current, former or
prospective vendors, customers, professional colleagues, industry organizations,
associates or contractors, to any governmental or regulatory agency or to the
press or media at any time in the future. The Company will likewise preserve
your good name and reputation.
8. Litigation Assistance. You will agree to cooperate with the Company and its
attorneys and representatives in connection with any pending or future
litigation regarding matters in which you have been involved or have personal
knowledge. This shall include making yourself reasonably available for
interviews, depositions and/or as a witness at any trial, arbitration or other
proceeding. The Company will reimburse you for all reasonable travel expenses
you incur in connection with this obligation.
9. General Release. You will sign this letter agreement within twenty-one (21)
days and agree to execute and return the attached General Release on your
effective separation date or as soon thereafter as is practicable. You will also
agree not to attempt to revoke or rescind the General Release at any time in the
future after the seven (7) day revocation period required by law. You will agree
not to commence any action against Fleming in regard to your employment
relationship. By signing this letter, you are representing to the Company that
you fully understand the General Release and will have had an opportunity to
seek legal advice regarding the General Release and the agreement proposed by
this letter, if you desire to do so, before signing it. You are also
representing to the Company that between the date of this letter and the date
you sign the General Release, you have not commenced and will not commence any
charge, action or complaint with any court or with the Equal Employment
Opportunity Commission, the United States Department of Labor or with
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any other federal or state judicial or administrative agency in regard to your
employment relationship or any matters arising out of that relationship.
10. Consideration and Forfeiture of Certain Benefits. Your commitments under
paragraphs 6, 7, 8 and 9 of this letter agreement will be in consideration of
the payments and benefits beyond those provided in your Employment Agreement,
including the consulting arrangement and consulting fee and the potential
payment in lieu of an Award under the Key Executive Performance Plan. The
receipt and retention by you of any of those payments and benefits will be
contingent on your on-going compliance with your obligations under this letter
agreement, and a breach of your obligations will entitle the Company to cease
those payments and benefits and entitle the Company to immediate reimbursement
from you of any such payments you have previously received.
11. Arbitration. You and Fleming acknowledge that your employment, your
Employment Agreement and the arrangement described in this letter agreement
relate to interstate commerce. In accordance with your Employment Agreement and
the amendment to the Employment Agreement in March of 2000, any disputes, claims
or controversies between you and Fleming that may arise out of or relate to our
prior employment relationship, your Employment Agreement or this letter
agreement shall be settled by arbitration. Our agreement to arbitrate shall
survive the Employment Agreement and the termination or rescission of this
letter agreement. Any arbitration shall be in accordance with the Rules of the
American Arbitration Association and shall be undertaken pursuant to the Federal
Arbitration Act. Arbitration will be held in Dallas, Texas unless we mutually
agree on another location. The decision of the arbitrator(s) will be enforceable
in any court of competent jurisdiction. In any arbitration under this provision,
the Company shall reimburse you for all legal fees and expenses you reasonably
incur if (and only if) you are successful in the arbitration with regard to one
or more material claims or defenses that is brought or raised in the
arbitration. Any reimbursement will be made as soon as practicable following the
resolution of the arbitration to the extent the Company receives reasonable
written evidence of the fees and expenses. We agree that the arbitrator(s) shall
not award punitive, liquidated or indirect damages. Nothing in this agreement to
arbitrate shall preclude either you or the Company from obtaining injunctive
relief from a court of competent jurisdiction prohibiting any on-going breaches
of this letter agreement by the other pending arbitration.
In the event you execute this letter, it will supercede your Employment
Agreement and all other agreements regarding your employment and compensation,
including stock options, performance plans and executive incentives. This will
constitute the entire agreement between you and Fleming with respect to your
employment and separation. Please let me know if you have any questions.
Very truly yours,
/s/ MARK S. HANSEN
Mark S. Hansen
Chairman and Chief Executive Officer
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ACCEPTED AND AGREED TO BY:
/s/ WILLIAM H. MARQUARD
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William H. Marquard
September 30, 2002
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Date
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NOTICE. VARIOUS LAWS, INCLUDING TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE
CIVIL RIGHTS ACT OF 1866, THE PREGNANCY DISCRIMINATION ACT OF 1978, THE EQUAL
PAY ACT, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT,
THE REHABILITATION ACT OF 1973, THE AMERICANS WITH DISABILITIES ACT, THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT AND THE VETERANS REEMPLOYMENT RIGHTS ACT
(ALL AS AMENDED FROM TIME TO TIME), PROHIBIT EMPLOYMENT DISCRIMINATION BASED ON
SEX, RACE, COLOR, NATIONAL ORIGIN, RELIGION, AGE, DISABILITY, ELIGIBILITY FOR
COVERED EMPLOYEE BENEFITS AND VETERAN STATUS. YOU MAY ALSO HAVE RIGHTS UNDER
LAWS SUCH AS THE OLDER WORKER BENEFIT PROTECTION ACT OF 1990, THE WORKER
ADJUSTMENT AND RETRAINING ACT OF 1988, THE FAIR LABOR STANDARDS ACT, THE FAMILY
AND MEDICAL LEAVE ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT AND OTHER FEDERAL,
STATE AND/OR MUNICIPAL STATUTES, ORDERS OR REGULATIONS PERTAINING TO LABOR,
EMPLOYMENT AND/OR EMPLOYEE BENEFITS. THESE LAWS ARE ENFORCED THROUGH THE UNITED
STATES DEPARTMENT OF LABOR, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC),
AND VARIOUS OTHER FEDERAL, STATE AND MUNICIPAL DEPARTMENTS, BOARDS, COMMISSIONS
AND AGENCIES.
THE FOLLOWING GENERAL RELEASE IS BEING PROVIDED TO YOU IN CONNECTION WITH THE
SPECIAL, ARRANGEMENT OUTLINED IN A PROPOSED LETTER AGREEMENT DATED SEPTEMBER 6,
2002. THE FEDERAL OLDER WORKER BENEFIT PROTECTION ACT REQUIRES THAT YOU HAVE HAD
AT LEAST TWENTY-ONE (21) DAYS, IF YOU WANTED IT, TO CONSIDER WHETHER YOU WISH TO
AGREE TO SIGN A RELEASE SUCH AS THIS ONE. YOU HAVE UNTIL THE CLOSE OF BUSINESS
TWENTY-ONE (21) DAYS FROM THE DATE YOU RECEIVE THE SEPTEMBER 6, 2002 LETTER AND
THIS GENERAL RELEASE TO MAKE YOUR DECISION. YOU MAY ACCEPT THE SPECIAL,
ARRANGEMENT DESCRIBED IN THE SEPTEMBER 6, 2002 LETTER AGREEMENT BY SIGNING AND
RETURNING IT AT ANY TIME DURING THAT PERIOD. BY DOING SO, YOU ARE AGREEING TO
SIGN THIS GENERAL RELEASE ON YOUR OFFICIAL DATE OF SEPARATION FROM EMPLOYMENT OR
AS SOON THEREAFTER AS PRACTICABLE.
BEFORE EXECUTING THE PROPOSED LETTER AGREEMENT AND AGREEING TO SIGN THIS GENERAL
RELEASE YOU SHOULD REVIEW THESE DOCUMENTS CAREFULLY AND CONSULT WITH YOUR
ATTORNEY.
YOU MAY REVOKE THIS GENERAL RELEASE WITHIN SEVEN (7) DAYS AFTER YOU SIGN IT AND
IT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THAT REVOCATION PERIOD HAS
EXPIRED. IF YOU DO NOT SIGN AND RETURN THE SEPTEMBER 6, 2002 LETTER AGREEMENT
WITHIN TWENTY-ONE (21) DAYS, OR IF YOU DO NOT SIGN AND RETURN THIS GENERAL
RELEASE ON YOUR LAST OFFICIAL DATE OF EMPLOYMENT OR AS SOON THEREAFTER AS
PRACTICABLE, OR IF YOU EXERCISE YOUR RIGHT TO REVOKE THE GENERAL RELEASE AFTER
SIGNING IT, THE SPECIAL ARRANGEMENT AND BENEFITS YOU RECEIVE UNDER THE LETTER
AGREEMENT WILL BE FORFEITED. ANY REVOCATION MUST BE IN WRITING AND MUST BE
RECEIVED BY FLEMING COMPANIES, INC., ATTENTION: DEE JEROME, 6525 N. MERIDIAN,
6TH FLOOR, OKLAHOMA CITY OK 73126-0647, WITHIN THE SEVEN-DAY PERIOD FOLLOWING
YOUR EXECUTION OF THIS GENERAL RELEASE.
- --------------------------------------------------------------------------------
GENERAL RELEASE
In consideration of the special arrangement offered to me by Fleming Companies,
Inc. and the benefits I have received and will receive as reflected in a letter
dated September 6, 2002 (the "Letter Agreement"), I hereby release and discharge
Fleming Companies Inc. and its
predecessors, successors, affiliates, parent, subsidiaries and partners and each
of those entities' employees, officers, directors and agents (hereafter
collectively referred to as the "Company") from all claims, liabilities,
demands, and causes of action, known or unknown, fixed or contingent, which I
may have or claim to have against the Company either as a result of my past
employment with the Company and/or the severance of that relationship and/or
otherwise, and hereby waive any and all rights I may have with respect to and
promise not to file a lawsuit to assert any such claims.
This General Release includes, but is not limited to, claims arising under Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Pregnancy
Discrimination Act of 1978, the Equal Pay Act, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the
Americans With Disabilities Act, the Employee Retirement Income Security Act or
1974 and the Veterans Reemployment Rights Act (all as amended from time to
time). This General Release also includes, but is not limited to, any rights I
may have under the Older Workers Benefit Protection Act of 1990, the Worker
Adjustment and Retraining Act of 1988, the Fair Labor Standards Act, the Family
and Medical Leave Act, the Occupational Health and Safety Act and any other
federal, state and/or municipal statutes, orders or regulations pertaining to
labor, employment and/or employee benefits. This General Release also applies to
any claims or rights I may have growing out of any legal or equitable
restrictions on the Company's rights not to continue an employment relationship
with its employees, including any express or implied employment contracts, and
to any claims I may have against the Company for fraudulent inducement or
misrepresentation, defamation, wrongful termination or other retaliation claims
in connection with workers' compensation or alleged "whistleblower" status or on
any other basis whatsoever.
It is specifically agreed, however, that this General Release does not have any
effect on any rights or claims I may have against the Company which arise after
the date I execute this General Release.
I have carefully reviewed and fully understand all the provisions of the Letter
Agreement and General Release, including the foregoing Notice. I have not relied
on any representation or statement, oral or written, by the Company or any of
its representatives, which is not set forth in those documents.
The Letter Agreement and this General Release, including the foregoing Notice,
set forth the entire agreement between me and the Company with respect to this
subject. I understand that my receipt and retention of the benefits covered by
the Letter Agreement are contingent not only on my execution of this General
Release, but also on my continued compliance with my other obligations under the
Letter Agreement. I acknowledge that the Company gave me twenty-one (21) days to
consider whether I wish to accept or reject the benefits I have received and
will receive under the Letter Agreement. I also acknowledge that the Company
advised me to seek independent legal advice as to these matters, if I chose to
do so before signing the Letter Agreement and agreeing to sign this General
Release. I hereby represent and state that I have taken such actions and
obtained such information and independent legal or other advice, if any, that I
believed were necessary for me to fully understand the effects and consequences
of the Letter Agreement and General Release prior to signing those documents.
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Dated this 30th day of September, 2002.
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/s/ WILLIAM H. MARQUARD
-----------------------------------
William H. Marquard
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