FLEMING COMPANIES, INC.
EXECUTIVE PAST SERVICE BENEFIT PLAN
(Adopted Effective November 1, 1997)
FLEMING COMPANIES, INC.
EXECUTIVE PAST SERVICE BENEFIT PLAN
TABLE OF CONTENTS
PAGE
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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 5
ARTICLE III Participation 5
3.1 Participation in Consideration
for Future Services Only 5
3.2 The Agreement 5
ARTICLE IV Contributions 6
4.1 Payments by the Company 6
ARTICLE V Past Service Benefit 6
5.1 Past Service Benefit 6
5.2 Vesting of Past Service Benefit 7
5.3 Payment of Past Service Benefit 7
5.4 Form of Benefit 8
5.5 Postponed Retirement Date 8
ARTICLE VI Death of a Participant 8
6.1 Payment of Death Benefit 8
6.2 Beneficiary Designation 9
ARTICLE VII Early Retirement 9
7.1 Early Retirement 9
ARTICLE VIII Disability 9
8.1 Disability 9
8.2 Proof of Disability 9
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ARTICLE IX Change of Control 10
9.1 Acceleration of Vesting of Past Service
Benefit Upon Change of Control 10
ARTICLE X Manner of Payment of Benefits 12
10.1 Payment at Actual Retirement 12
ARTICLE XI General Benefit Provisions 13
11.1 Restrictions on Alienation of Benefits 13
11.2 Release of Claims 14
11.3 Plan Unfunded - No Assignment 14
11.4 Withholding and Other Employment Taxes 14
11.5 No Trust 14
ARTICLE XII Provisions Relating to Participants 15
12.1 Information Required of Participants 15
12.2 Abandonment of Benefits 15
12.3 Benefits Payable to Incompetents 16
12.4 Conditions of Employment Not
Affected by Plan 16
ARTICLE XIII Administration and Committee 16
13.1 Allocation of Responsibility
for Plan Administration 16
13.2 Appointment of Committee 16
13.3 Claims Procedure 16
13.4 Review Procedure 17
13.5 Records and Reports 17
13.6 Other Committee Powers and Duties 17
13.7 Rules and Decisions 18
13.8 Committee Procedures 18
ARTICLE XIV Amendment and Termination 19
14.1 Right to Amend or Alter Plan 19
14.2 Right to Terminate Plan 19
14.3 Forfeiture of All Benefits 19
14.4 Merger of Company; Successor Must Assume Plan 19
ARTICLE XV Miscellaneous Provisions 20
15.1 Articles and Section Titles and Headings 20
15.2 Laws of Oklahoma to Govern 20
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FLEMING COMPANIES, INC.
EXECUTIVE PAST SERVICE BENEFIT PLAN
FLEMING COMPANIES, INC., an Oklahoma corporation, hereby adopts the
FLEMING COMPANIES, INC. EXECUTIVE PAST SERVICE BENEFIT PLAN upon the
following terms and conditions.
ARTICLE I
NAME AND PURPOSE OF PLAN
1.1 NAME OF PLAN. This Plan shall be hereafter known as the
FLEMING COMPANIES, INC. EXECUTIVE PAST SERVICE BENEFIT PLAN.
1.2 PURPOSE OF PLAN. The Plan is established and maintained by
the Company solely for the purpose of providing benefits for certain
Associates of the Company who (i) were participants in the Amended and
Restated Supplemental Retirement Income Plan of Fleming Companies, Inc. and
Its Subsidiaries which was terminated as to such Associates effective
November 1, 1997, and (ii) have been selected for participation in this Plan
by the Committee. It is intended that this Plan be unfunded for federal
income tax purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974, as amended.
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) ACCOUNT: The word "Account" shall mean the account
established under Section 5.1(b) to which will be credited each
Participant's Past Service Benefit and earnings thereon.
(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 from time to time by the Committee to provide actuarial
services for the Plan who, as of the Effective Date, was Watson, Wyatt
& Company.
(d) AGREEMENT: The word "Agreement" shall mean that certain
"Agreement for Past Service Benefit" which will be entered into by and
between the Company and the Participant together with any amendments
thereto.
(e) ASSOCIATE: The word "Associate" shall mean any person,
employed by the Company on the basis of an employer-employee
relationship, who receives remuneration for personal services rendered
to the Company and who is either a highly compensated employee or a
select management employee.
(f) BENEFICIARY: The word "Beneficiary" shall mean that person
designated by the Participant pursuant to Section 6.2 hereof who would
be entitled to receive his Past Service Benefit upon the death of the
Participant.
(g) BOARD: The word "Board" shall mean the Board of Directors
of the Company.
(h) CAUSE: The word "Cause" shall mean the termination from
employment with the Company or a Subsidiary 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 Partici-
pant's duties, which failure is not cured 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 Subsection (h):
(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
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opportunity for the Participant, together with the Par-
ticipant'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.
(i) CHANGE OF CONTROL: The words "Change of Control" shall
have the meaning set forth in Section 9.1 of this Plan.
(j) CODE: The word "Code" shall mean the Internal Revenue Code
of 1986, as amended from time to time.
(k) 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.
(l) COMPANY: The word "Company" shall mean Fleming Companies,
Inc., an Oklahoma corporation, or its successor.
(m) DISABILITY: The word "Disability" shall mean a condition
whereby a Participant has become totally and permanently disabled
within the meaning of the Long-Term Disability Plan as in effect as of
the Effective Date of this Plan.
(n) 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.
(o) 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 Company or any
Subsidiary after (i) earning at least 10 Years of Employment Service
and (ii) attaining at least age 55.
(p) EFFECTIVE DATE: The words "Effective Date" shall mean the
1st day of November, 1997.
(q) 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."
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(r) NORMAL RETIREMENT AGE: The words "Normal Retirement Age"
shall mean the 65th birthday of a Participant.
(s) 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.
(t) PARTICIPANT: The word "Participant" shall mean an
Associate who has been selected for participation in the Plan as of
the Effective Date, and whose name is listed on Exhibit "A" attached
hereto.
(u) PAST SERVICE BENEFIT: The words "Past Service Benefit"
shall mean the benefit which has been credited to a Participant and
adjusted pursuant to Section 5.1 hereof.
(v) PLAN: The word "Plan" shall mean the "Fleming Companies,
Inc. Executive Past Service Benefit Plan," as set forth in this
instrument, and as hereafter amended from time to time.
(w) 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 5.5 herein
subsequent to his Normal Retirement Date.
(x) PRIOR PLAN: The words "Prior Plan" shall mean the Amended
and Restated Supplemental Retirement Income Plan of Fleming Companies,
Inc. and Its Subsidiaries" which was terminated as to the Participants
effective November 1, 1997.
(y) 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.
(z) SUBSIDIARY: The word "Subsidiary" shall mean any
corporation with 80% or more of its voting capital stock being owned
by the Company.
(aa) TRUST: The word "Trust" shall mean the Fleming Companies,
Inc. Executive Deferred Compensation Trust which has been established
and may be used by the Company as the device for assisting the Company
to meet its obligations under the Plan.
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(bb) TRUSTEE OR TRUSTEES: The words "Trustee" or "Trustees"
means the entity who has been designated by the Company to serve as
Trustee of the Trust.
(cc) 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.
(dd) YEAR OF EMPLOYMENT SERVICE: The words "Year of Employment
Service" shall mean the 12 month period commencing with the
Participant's initial date of hire (or date of rehire) with the
Company or Subsidiary and 12 month anniversaries of such date during
which time the Participant remained in the continuous full-time employ
of the Company or a Subsidiary. For the purposes of calculating a
Year of Employment Service, service both before and after the
Effective Date of this Plan will be considered. With regard to the
calculation of Years of Employment Service with respect to any
Participant who was hired and then terminated employment and
subsequently was rehired by the Company or a Subsidiary, then, the
Committee shall make the determination and calculation as to the
number of completed Years of Employment Service by disregarding the
break in employment service and considering such periods of employment
service to be cumulative, i.e., counting one or more periods of
employment.
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 PARTICIPATION IN CONSIDERATION FOR FUTURE SERVICES ONLY. The
only Participants in the Plan are those listed on Exhibit "A" attached
hereto, and no additional Associates will be eligible to participate in the
Plan. The Past Service Benefit will be deemed to be for all purposes in
consideration of future services which will be rendered by such Participant
to the Company.
3.2 THE AGREEMENT. Each Participant shall, as a condition of
participation, complete and return to the Committee the Agreement which
evidences participation in the Plan and the Participant's agreement to the
terms and conditions thereof.
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ARTICLE IV
CONTRIBUTIONS
4.1 PAYMENTS BY THE COMPANY. The payments required to fund the cost
of the benefits provided by the Plan shall be made solely by the Company.
ARTICLE V
PAST SERVICE BENEFIT
5.1 PAST SERVICE BENEFIT.
(a) AMOUNT OF PAST SERVICE BENEFIT. Each of the Participants
have been selected for participation in the Plan and have previously
been a Participant in the Prior Plan. While eligible to participate
in the Prior Plan, no Participant had earned any vested or accrued
benefit in the Prior Plan as of the date of its termination.
Notwithstanding the fact that the Participants have not earned any
benefit under the Prior Plan, the Company desires to provide to each
Participant the opportunity to earn a supplemental retirement benefit
in the form of the Past Service Benefit calculated, in part, by
considering his employment service with the Company earned prior to
November 1, 1997. The Actuary has determined the value of the Past
Service Benefit based upon sound actuarial principles as of November
1, 1997. The amount of Past Service Benefit for each Participant is
the amount which is set forth opposite his name on Exhibit "A"
attached hereto.
(b) ADJUSTMENTS TO PAST SERVICE BENEFIT. With respect to the
Past Service Benefit credited to each Participant, there shall be
established a separate account (the "Account") to which will be
credited the amount of Past Service Benefit. There shall also be
credited to such Account earnings in an amount equal to the greater
of (i) interest at the rate equal to 1% below the prime rate of
interest published in THE WALL STREET JOURNAL (Southwest Edition) in
the Money Rate Section at the beginning of each calendar quarter (the
"Rate of Interest") determined quarterly, or (ii) the actual earnings
of any assets held in the Trust. Earnings of the Trust shall be
credited in the ratio that the balance in each Participant's Account
determined at the end of the previous quarter bears to the balance of
all Accounts of all Participants in the Trust determined at the end
of the previous quarter. The Accounts established pursuant to this
Section 5.1(b) are fictitious and are solely for
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recordkeeping purposes and shall not be considered to be funded with
assets set aside or segregated for any Participant, but such Accounts
are only established for recordkeeping purposes to determine the
amount of earnings which will be credited to the Past Service Benefit
and such earnings shall be credited as provided herein until a
Participant's Past Service Benefit has been fully paid.
5.2 VESTING OF PAST SERVICE BENEFIT.
(a) VESTING. A Participant shall only be vested in his Past
Service Benefit upon completion of all of the following:
(i) Completing two continuous Years of Employment
Service with the Company or any Subsidiary commencing November
1, 1997;
(ii) Attaining his Early Retirement Date; and
(iii) Satisfying the "Rule of 70" which means the
Participant's age and Years of Employment Service must equal or
exceed 70.
Provided, if not sooner vested, a Participant shall be 100%
vested in his Past Service Benefit upon a Change of Control, his
death or Disability.
(b) FORFEITURE. In the event that a Participant terminates
employment prior to having satisfied the requirements for vesting as
described under Section 5.2(a) above, or if any of the provisions of
Section 14.3 are applicable to such Participant, then, the Past
Service Benefit of such Participant shall be forfeited in its
entirety and the Participant or his Beneficiary shall have no right,
claim or interest to any Past Service Benefit under this Plan or the
Agreement.
(c) POWER TO ACCELERATE VESTING. Notwithstanding any other
provisions of this Plan to the contrary, the Committee may, in its
sole and absolute discretion, waive, modify or amend any of the terms
and provisions of this Section 5.2 with respect to any Participant
with regard to the acceleration of the time during which a
Participant's Past Service Benefit may be vested or otherwise payable
pursuant to Section 5.3 below.
5.3 PAYMENT OF PAST SERVICE BENEFIT. Except in the case of
termination of employment due to death, Disability, or termination upon or
after a Change of Control, no portion of Participant's Past Service Benefit
to which he may be entitled shall be payable
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prior to the date that (i) he satisfies all of the requirements for vesting
in his Past Service Benefit under Section 5.2(a) above, and (ii) the
Participant terminates employment with the Company or a Subsidiary. Payment
of the vested Past Service Benefit to a Participant shall commence no later
than 30 days following the Participant's termination of employment or date of
death, as the case may be.
5.4 FORM OF BENEFIT. A Participant shall be entitled to receive
and be paid his vested Past Service Benefit as provided in Article X hereof,
and such payment will be made in cash.
5.5 POSTPONED RETIREMENT DATE. If a Participant continues his
employment with the Company or Subsidiary to a date after his Normal
Retirement Date, referred to as his Postponed Retirement Date, his Past
Service Benefit shall be deferred until his Postponed Retirement Date.
Benefits to which he shall be entitled as of his Postponed Retirement Date
shall be his Past Service Benefit as of his Normal Retirement Date with
adjustment after such date in accordance with Section 5.1(b) hereof.
ARTICLE VI
DEATH OF A PARTICIPANT
6.1 PAYMENT OF DEATH BENEFIT.
(a) BEFORE TERMINATION OF EMPLOYMENT. In the event that a
Participant dies while employed by the Company or any Subsidiary,
then, such Participant's Past Service Benefit shall be paid to the
Participant's designated Beneficiary in the same manner as he has
previously elected in his Agreement unless the Committee approves an
optional form of payment under Section 10.1 hereof.
(b) AFTER TERMINATION OF EMPLOYMENT. In the event that a
Participant dies after he has terminated employment with the Company
or any Subsidiary and he has not yet received all the Past Service
Benefit to which he is otherwise entitled under this Plan, then, the
remaining portion of the Past Service Benefit which would otherwise
have been paid to the Participant had he survived would then be paid
to the Participant's Beneficiary in the same form elected by the
Participant pursuant to Article X hereof.
(c) SPECIAL DEATH BENEFIT. 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 prior
to the time that benefits actually commence pursuant to the terms of
this Plan, then, the Beneficiary of such
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deceased Participant shall receive the actuarial equivalent of such
Participant's Supplemental Normal Retirement Income paid as a "50%
Joint Annuitant Survivor Benefit" (Option 2) as described in Section
10.1 hereof.
6.2 BENEFICIARY DESIGNATION. The Participant shall designate a
Beneficiary in his Agreement who will receive the deceased Participant's Past
Service Benefit. Such Beneficiary may be changed by the Participant upon
notice to the Company pursuant to the terms of the Agreement. In the event
that the Beneficiary designated to receive the Past Service Benefit otherwise
payable to a Participant hereunder is not then surviving at the date of the
Participant's death, then, such Past Service 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 estate of such Participant.
ARTICLE VII
EARLY RETIREMENT
7.1 EARLY RETIREMENT. A Participant who has attained his Early
Retirement Date and who is vested in his Past Service Benefit as provided in
Section 5.2(a) hereof may retire early from the Company or any Subsidiary and
commence payment of his Past Service Benefit in the form elected by the
Participant under Article X hereof.
ARTICLE VIII
DISABILITY
8.1 DISABILITY. In the event that a Participant incurs a
Disability and he terminates employment with the Company or any Subsidiary
(the "Disability Retirement Date"), then, in such event, the Participant
shall be entitled to receive his Past Service Benefit in the form as elected
by the Participant in accordance with Article X hereof.
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 a Participant fails to
allow such verification to occur, or if it does occur and the Participant is
no longer suffering a Disability as determined by the Committee, then, the
Committee may cease further payments of such Past Service Benefit.
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ARTICLE IX
CHANGE OF CONTROL
9.1 ACCELERATION OF VESTING OF PAST SERVICE BENEFIT UPON CHANGE OF
CONTROL. In the event that there is a "Change of Control," as defined below,
then, subject to Section 14.3 hereof, each Participant shall be fully vested
in his Past Service Benefit with payment of such Past Service Benefit to be
paid in the form as elected by the Participant as provided in Section 10.1
hereof immediately following his termination of employment. Anything in this
Plan to the contrary notwithstanding, if a Participant's employment with the
Company or a Subsidiary is terminated on or 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 be determined to have occurred as of 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 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 "Out-
standing Company Voting Securities"); provided, however, in the event
the "Incumbent Board" (as such term is hereinafter defined) in
accordance with any share rights agreement to which the Company is a
party that may be in effect (the "Rights Agreement") lowers the
threshold amounts set forth in the Rights Agreement, the Triggering
Percentage shall be automatically reduced to equal the reduced
threshold amount set by the Incumbent Board pursuant to the Rights
Agreement; and provided, further, however, that the following acquisi-
tions 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
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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 9.1; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a 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 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 Out-
standing 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 enti-
tled 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
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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 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.
ARTICLE X
MANNER OF PAYMENT OF BENEFITS
10.1 PAYMENT AT ACTUAL RETIREMENT. Except as provided in Section
9.1 herein, with respect to termination upon or following a Change of
Control, each Participant shall be paid his Past
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Service Benefit upon terminating his employment with the Company or any
Subsidiary on his applicable Retirement Date. The Past Service Benefit will
be paid in one of the optional forms described below and elected by the
Participant in his Agreement. Except as pro vided in Section 10.2 below,
such elections are irrevocable. The optional forms of payment permitted
under the Plan are as follows:
OPTIONAL FORMS OF PAYMENT
Life of Participant Only
50% Joint Annuitant Survivor Benefit
75% Joint Annuitant Survivor Benefit
100% Joint Annuitant Survivor Benefit
5 Year Period Certain
10 Year Period Certain
15 Year Period Certain
A description of the optional forms of payment is contained in Exhibit "B"
attached hereto. The Actuary for the Plan shall actuarially adjust the
amount of Past Service Benefit otherwise payable to the Participant as if
such payment was to be made on a single life basis to reflect the age of the
Participant or his Beneficiary, as the case may be, and the optional form of
benefit elected by the Participant. Provided, notwithstanding that the
Participant has elected the optional form of benefit as provided in this
Section 10.1, at any time prior to the date the payment of the Participant's
Past Service Benefit commences, the Participant (or his Beneficiary in the
case of death) may make a written request to the Committee that his Past
Service Benefit be paid in any of the optional forms of payment described
above or in the form of a single lump sum payment, and, if the Committee
approves such request considering all relevant facts and circumstances,
payment may be made in one of such optional forms of payment or in a lump
sum. The decision to make payment in one of the optional forms of payment or
in a lump sum shall be made in the Committee's sole discretion; and, if
payment is made in one of such optional forms of payment or in a lump sum for
one Participant, this in no way requires the Committee to make payment in the
same manner for any other Participant.
ARTICLE XI
GENERAL BENEFIT PROVISIONS
11.1 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
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should become bankrupt or attempt to anticipate, alienate, sell, assign,
pledge, encumber, or charge any right or 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 Partici pant 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.
11.2 RELEASE OF CLAIMS. The Participant was previously eligible
to participate in the Prior Plan. The Prior Plan was terminated effective as
of November 1, 1997. At the time of termination of the Prior Plan, the
Participant did not have any vested or accrued benefit in the Prior Plan.
However, because the Participant will be provided the opportunity to earn the
Past Service Benefit under this Plan, the Company will require in the
Agreement that the Participant release any and all claims, rights or benefits
which he may have otherwise had with respect to any benefits which would have
otherwise been paid pursuant to the terms of the Prior Plan.
11.3 PLAN UNFUNDED - NO ASSIGNMENT. The Plan at all times shall
be entirely unfunded as provided under Title I of the Act and no provision
shall at any time be made with respect to segregating from claims of
creditors any assets of the Company, its parent, if applicable, a Subsidiary
for payment of any benefits hereunder. No Participant, Beneficiary or any
other person shall 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 and any such Participant, Beneficiary or
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. No right or benefit under this Plan shall in any
manner be subject to anticipa tion, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, garnishment or charge by creditors of any
Participant or Beneficiary, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber, attach, garnish 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.
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.
11.5 NO TRUST. No action under this Plan by the Company, its
Board 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 Past Service
Benefit. The status of the Participant and his Beneficiary with respect to
any liabilities assumed by
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the Company hereunder shall be solely those of unsecured creditors of the
Company, its parent, if applicable, or any Subsidiary. Any asset acquired or
held by the Company, its parent, if applicable, 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, its parent, if applicable, 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. However, the Company may
contribute assets to the Trust to pay benefits under the 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 interest of orderly
administration of the Plan, the Committee 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 Partici-
pants 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 Company'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 benefits to such person at such last post office
address. If the Committee furnishes such annual notice to any Participant,
or Beneficiary, 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 Participant or Beneficiary are
known to the Committee, payment shall be made to such Participant or
Beneficiary; or
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(b) if the whereabouts of such Participant and his Beneficiary
are unknown to the Committee, the Committee may direct the
distribution of a Participant's benefits on the same basis as though
the Participant had died without designating a Beneficiary as
provided in Subsection 6.2 hereof.
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 such person, or (ii) to a
parent, spouse, relative by blood or marriage, or the legal representative of
such 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 Company.
ARTICLE XIII
ADMINISTRATION AND 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. 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 benefits, in writing, of such denial, including in such
notification the following information:
(a) the specific reason or reasons for such denial;
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(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 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;
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(d) to receive from the Company and from Participants and
Beneficiaries such information as shall be necessary for the proper
administration of the Plan;
(e) to furnish the Company, 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 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, the Code and the
implementing regulations thereto and suggest changes and
modifications to the Company 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 Company, or 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 Company. 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.
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ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 RIGHT TO AMEND OR ALTER PLAN. The Plan may be amended by the
Committee from time to time in any respect whatever by resolution of the
Committee specifying such amendment; provided, however, this Plan may not be
amended, modified or altered in any manner which adversely affects any
Participant without the written consent of the affected Participant.
14.2 RIGHT TO TERMINATE PLAN. The Committee expressly reserves
the right to terminate this Plan in whole or in part at any time; provided,
however, this Plan may not be terminated without the written consent of the
affected Participant.
14.3 FORFEITURE OF ALL BENEFITS. In the event that the
Participant (i) is discharged from employment service with the Company or a
Subsidiary for Cause, or (ii) commits any other act or acts which are
injurious and adversely impacts the Company or any Subsidiary in any manner
whatsoever and would be expected to substantially enrich the Participant,
then, in such events, the Committee, in its sole discretion, may determine
that any benefit which would otherwise be provided to the Participant or his
Beneficiary 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 14.3 shall not be applicable in the event a Change
of Control has occurred.
14.4 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 a 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 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.
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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, if any, shall be deemed
to take place in the State of Oklahoma.
EXECUTED as of the 1st day of November, 1997.
FLEMING COMPANIES, INC., a corporation
By:
----------------------------------------
Robert E. Stauth, Chairman and
Chief Executive Officer
"COMPANY"
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EXHIBIT "B"
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
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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
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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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