FORM OF
AGREEMENT FOR
FLEMING COMPANIES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
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PARTICIPANT
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DATE
AGREEMENT FOR FLEMING COMPANIES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
THIS AGREEMENT FOR FLEMING COMPANIES, INC. EXECUTIVE DEFERRED
COMPENSATION PLAN (the "Agreement") is made as of the ___ day of __________,
____ by and between _______________, an individual (herein referred to as the
"Participant") and FLEMING COMPANIES, INC. (the "Company") with respect to
the following:
WHEREAS, the Company has adopted that certain non-qualified
deferred compensation plan known as "Fleming Companies, Inc. Executive
Deferred Compensation Plan" (the "Plan") which is an "excess plan" providing
for benefits to the Participants in the Plan in excess of the limitations on
benefits under qualified plans imposed by Sections 415 and/or 401(a)(17) of
the Internal Revenue Code of 1986, as amended; and
WHEREAS, the Company and the Participant desire to enter into this
Agreement to evidence the Participant's participation in the Plan and his
agreement to be bound by the terms and provisions of the Plan and this
Agreement.
NOW, THEREFORE, in consideration of mutual covenants hereinafter
contained, the parties hereto agree as follows. All capitalized words used
in this Agreement shall have the same meaning ascribed to such terms in the
Plan unless specifically denoted otherwise.
1. PURPOSE OF PLAN. The purpose of the Plan and this Agreement is
to provide to the Participant, the opportunity to earn supplemental
retirement income as provided in the Plan in order to retain the Participant,
as a key management Associate, with the Company. Payment of the Supplemental
Normal Retirement Income shall be made to the Participant in consideration of
future services rendered by the Participant and shall be paid to the
Participant or the Participant's Beneficiary as hereinafter provided. A copy
of the Plan is attached hereto as Exhibit "A," and is incorporated by
reference herein and made a part hereof for all purposes and when taken with
this Agreement, shall govern the Participant's rights and those of the
Company with respect to the Participant's benefits under the Plan.
2. CALCULATION AND MANNER OF PAYMENT OF SUPPLEMENTAL NORMAL
RETIREMENT INCOME.
(a) GENERAL. The Participant is also a participant in the
Qualified Plan sponsored by the Company. Further, the Participant have also
earned a benefit in the form of a Normal Retirement Income pursuant to the
terms of the Qualified Plan as of the Effective Date or a date subsequent
thereto. The Participant's Supplemental Normal Retirement Income will equal
the difference
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between the Participant's Qualified Plan Benefit and the benefit which would
otherwise be provided to the Participant under the Qualified Plan without
considering the limitations imposed by Internal Revenue Service under Section
415 and/or 401(a)(17) of the Code which limits the amount of compensation
which may be considered for calculation of benefits under the Qualified Plan.
An example of the calculation of the calculation of a Supplemental Normal
Retirement Income under the Plan is described on Exhibit "B" attached hereto.
(b) MANNER OF PAYMENT OF SUPPLEMENTAL NORMAL RETIREMENT
INCOME. As of the date of this Agreement, the Participant must elect the
form under which his Supplemental Normal Retirement Income will be paid in
the future following the Participant's termination of employment under the
terms of the Plan. Please check the form in which the Participant's
Supplemental Normal Retirement Income will be paid in the box provided below:
(Please Check and Initial One Box Only)
OPTIONAL FORMS OF PAYMENT
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1. [ ] Life of Participant Only
2. [ ] 50% Joint Annuitant Survivor Benefit
3. [ ] 75% Joint Annuitant Survivor Benefit
4. [ ] 100% Joint Annuitant Survivor Benefit
5. [ ] 5 Year Period Certain
6. [ ] 10 Year Period Certain
7. [ ] 15 Year Period Certain
The actual amounts payable at retirement or death will depend upon the
Participant's age and/or the age of his Beneficiary and form of payment
elected by the Participant. With the consent of the Committee, and if
requested by the Participant or his Beneficiary in the case of the
Participant's death, the Participant or his Beneficiary may request that the
Participant's Supplemental Normal Retirement Income be paid in any of the
optional forms described above. See Section 10.1 of the Plan. Further, in
the event that a Participant has elected to receive his Supplemental Normal
Retirement Income for the "Life of Participant Only" (Option 1) and such
Participant dies, before payment of such benefit would otherwise commence in
accordance with the terms of the Plan, then, such deceased Participant's
Beneficiary shall be automatically paid a "survivor benefit" in the form of a
"50% Joint Annuitant Survivor Benefit" (Option 2). Refer to Exhibit "C" for
a complete Description of Payment.
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3. COMMENCEMENT OF SUPPLEMENTAL RETIREMENT INCOME. Subject to the
provisions of Section 9.2 of the Plan with respect to termination following a
Change of Control, based upon the manner of payment elected by the
Participant for payment of the Participant's Supplemental Normal Retirement
Income, payments shall commence as of the Participant's Early Retirement
Date, Normal Retirement Date, Disability Retirement Date, Postponed
Retirement Date, or date of death, as the case may be, and will continue to
be paid in accordance with the form of payment elected by the Participant.
4. AMENDMENT OR TERMINATION. This Agreement may be amended,
altered or terminated by the Company from time to time upon notice to the
Participant as provided in paragraph 13 below; provided, however, this
Agreement may not be amended, modified, or altered or terminated in any
manner which adversely affects the Participant's Supplemental Normal
Retirement Income earned as of the date of amendment or termination, as the
case may be, without the consent of the Participant. Further, in such event
of termination, the Participant's Supplemental Normal Retirement Income
earned as of such date will be paid pursuant to the Plan.
5. EXPENSES. The expenses of administering this Agreement shall
be borne by the Company and shall not be charged against the Participant's
Supplemental Normal Retirement Income.
6. APPLICABLE LAW. The provisions of this Agreement shall be
construed, administered and enforced according to the laws of the State of
Oklahoma.
7. NO ASSIGNABILITY. Neither the Participant, his Beneficiary,
nor any other person shall acquire any right to or interest in any
Supplemental Normal Retirement Income and accruals thereon, otherwise than by
actual payment in accordance with the provisions of this Agreement, or have
any power to transfer, assign, anticipate, pledge, mortgage or otherwise
encumber or alienate any rights hereunder in advance of any of the payments
to be made pursuant to the Agreement or any portion thereof which is
expressly declared to be nonassignable and nontransferable. No right or
benefit hereunder shall in any manner be liable for or subject to the debts,
contracts, liabilities, or torts of the person entitled to such benefit.
8. AGREEMENT DOES NOT GUARANTEE CONTINUED EMPLOYMENT OF
PARTICIPANT. The execution of this Agreement by the Company and the
Participant, in no way whatsoever guarantees the continuation of employment
of the Participant with the Company.
9. WITHHOLDING. The Company and the Participant shall comply with
all federal and state laws and regulations respecting the withholding,
deposit and payment of any income, employment or
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other taxes relating to any payments or rights to payments under this
Agreement.
10. DESIGNATION OF BENEFICIARY.
(a) The Participant, as the Participant, hereby designate the
following individual as his Beneficiary to receive any Supplemental Death
Benefit (including any benefit to be paid to such Beneficiary as the
surviving "joint annuitant" pursuant to Section 2(b) hereof) payable to the
Participant under this Agreement or the Plan in the event of the
Participant's death:
Name Address Relationship
(b) The Participant understand that during his lifetime, the
Participant may at any time change the Beneficiary designated herein by
delivering to the Committee a new designation of a Beneficiary, executed by
the Participant and the Committee. If the Participant desires to change a
beneficiary designation, please contact the Senior Vice President, Human
Resources for a new beneficiary designation form.
11. RELATIONSHIP BETWEEN AGREEMENT AND PLAN. This Agreement has
been entered into by and between the Company and the Participant in
accordance with and pursuant to authority granted to the Committee pursuant
to the terms and provisions of the Plan. IN THE EVENT THAT THERE DEVELOPS A
CONFLICT BETWEEN THIS AGREEMENT AND THE TERMS AND PROVISIONS OF THE PLAN, THE
TERMS AND PROVISIONS OF THE PLAN, AS INTERPRETED BY THE COMMITTEE IN ITS SOLE
DISCRETION, SHALL CONTROL AND BE FINAL AND CONCLUSIVE.
12. LIMITATION ON PAYMENT OF BENEFITS. The payment of the
Supplemental Normal Retirement Income as provided in this Agreement shall
accrue and be payable to the Participant or his Beneficiary, as the case may
be, only at such times and upon the occurrence of such conditions as
heretofore described. In no event whatsoever shall the Participant or the
Participant's Beneficiary have any right, claim, or interest of any kind
whatsoever in any future payments of such Supplemental Normal Retirement
Income and such payments shall accrue and be payable only on a monthly basis
as provided hereinabove. In no event may the Participant or the
Participant's Beneficiary be entitled to receive a lump sum payment or other
sum approximating the right to receive any future payments of Supplemental
Normal Retirement Income hereunder.
13. NOTICES. All notices that are required or may be given
pursuant to this Agreement must be in writing and delivered
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personally, by a recognized courier service, by a recognized overnight
delivery service, by facsimile or by registered or certified mail, postage
prepaid, to the parties at the following addresses (or to the attention of
such other person or such other address as either party may provide to the
other party by notice in accordance with this paragraph 13:
if to the Company:
Fleming Companies, Inc.
6301 Waterford Blvd.
Oklahoma City, OK 73126
Attn: Larry A. Wagner
Senior Vice President -
Human Resources
Facsimile: (405) 840-7226
if to the Participant:
14. AGREEMENT SUPERSEDES ALL OTHER BENEFITS AND RELEASE OF CLAIMS.
Effective as of the date of the execution and delivery of this Agreement,
this Agreement shall supersede and replace any and all other agreements
entered into by and between the Company or any Subsidiary and the Participant
with respect to the providing of supplemental retirement benefits on a
nonqualified basis pursuant to the Prior Plan which was terminated by the
Company effective November 1, 1997. The Participant agrees that as of the
date of termination of the Prior Plan, the Participant was not entitled to
any benefit under the Prior Plan and any rights or interest in the Prior Plan
were subject to total forfeiture as of November 1, 1997. Further,
recognizing that the Participant has been selected by the Committee to
participate in this Plan and the Fleming Companies, Inc. Executive Past
Service Benefit Plan, both of which may provide substantial benefits to the
Participant, the Participant hereby releases the Company, its officers,
directors, agents and assigns from any and all obligations under the Prior
Plan and agrees that the Participant will not bring any action, claim or
demand of any kind whatsoever with respect to any benefits to which the
Participant would have otherwise been entitled had the Participant continued
participating in the Prior Plan.
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15. BENEFIT SUBJECT TO CLAIMS OF CREDITORS. The Participant and
his Beneficiary shall not have any interest in any particular assets of the
Company, its parent, if applicable, or any Subsidiary by reason of the right
to receive a benefit under the Plan or this Agreement, and the Participant
and his Beneficiary or any other person shall have only the rights of a
general unsecured creditor of the Company, its parent, if applicable, or a
Subsidiary with respect to any rights under the Plan or this Agreement.
16. EFFECTIVE DATE. This Agreement shall be effective from and
after the day and year first above written.
DATED the day and year first above written.
FLEMING COMPANIES, INC., an Oklahoma
corporation
By
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Larry A. Wagner, Senior Vice
President-Human Resources
"COMPANY"
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"PARTICIPANT"
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EXHIBIT "C"
DESCRIPTION OF OPTIONAL FORMS OF PAYMENT
OPTION 1 - Life of Participant Only:
A Supplemental Normal Retirement Income will be paid for the Participant's
life only. Upon the Participant's death, all payments of Supplemental Normal
Retirement Income shall cease.
OPTION 2 - 50% Joint Annuitant Survivor Benefit:
A reduced amount of Supplemental Normal Retirement Income will be paid to the
Participant for the Participant's life, then, at the Participant's death 50%
of such amount shall be paid to the Participant's surviving Beneficiary. In
the event that the Participant's surviving Beneficiary has predeceased the
Participant, or should otherwise die after the Participant's death, then no
further payments will be paid under OPTION 2 or this Agreement.
OPTION 3 - 75% Joint Annuitant Survivor Benefit:
A reduced amount of Supplemental Normal Retirement Income will be paid to the
Participant for the Participant's life, then, at the Participant's death 75%
of such amount shall be paid to the Participant's surviving Beneficiary. In
the event that the Participant's surviving Beneficiary has predeceased the
Participant, or should otherwise die after the Participant's death, then no
further payments will be due under OPTION 3 or this Agreement.
OPTION 4 - 100% Joint Annuitant Survivor Benefit:
A reduced amount of Supplemental Normal Retirement Income will be paid to the
Participant for the Participant's life, then, at the Participant's death 100%
of such amount shall be paid to the Participant's surviving Beneficiary. In
the event that the Participant's surviving Beneficiary has predeceased the
Participant, or should otherwise die after the Participant's death, then no
further payments will be due under OPTION 4 or this Agreement.
OPTION 5 - 5 Year Period Certain:
A reduced amount of Supplemental Normal Retirement Income will be paid for a
period of 5 years certain. After the expiration of such 5 year period,
payments shall then continue for the Participant's life in the same amount.
In the event of the Participant's death during the 5 year period certain,
then, the balance of such payments due only during such 5 year period will be
paid to the Participant's surviving Beneficiary. After the expiration of
such 5 year period, then all payments shall cease. In the event of the
expiration of such 5 year period, and the Participant dies, then, no further
benefits will be paid under OPTION 5 or this Agreement.
OPTION 6 - 10 Year Period Certain:
A reduced amount of Supplemental Normal Retirement Income shall be paid for a
period of 10 years certain. After the expiration of such 10 year period,
payments shall then continue for the Participant's life in the same amount.
In the event of the Participant's death during the 10 year period certain,
then, the balance of such payments due only during such 10 year period will
be paid to the Participant's surviving Beneficiary. After the expiration of
such 10 year period, then all payments shall cease. In the event of the
expiration of such 10 year period, and the Participant dies, then, no further
benefits will be paid under OPTION 6 or this Agreement.
OPTION 7 - 15 Year Period Certain:
A reduced amount of Supplemental Normal Retirement Income shall be paid for a
period of 15 years certain. After the expiration of such 15 year period,
payments shall then continue for the Participant's life in the same amount.
In the event of the Participant's death during the 15 year period certain,
then, the balance of such payments due only during such 15 year period will
be paid to the Participant's surviving Beneficiary. After the expiration of
such 15 year period, then all payments shall cease. In the event of the
expiration of such 15 year period, and the Participant dies, then, no further
benefits will be paid under OPTION 7 or this Agreement.
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