FORM OF
AGREEMENT FOR
FLEMING COMPANIES, INC.
EXECUTIVE PAST SERVICE BENEFIT PLAN
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PARTICIPANT
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DATE
AGREEMENT FOR FLEMING COMPANIES, INC.
EXECUTIVE PAST SERVICE BENEFIT PLAN
THIS AGREEMENT FOR FLEMING COMPANIES, INC. EXECUTIVE PAST SERVICE
BENEFIT 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 Past Service
Benefit Plan" (the "Plan"); and
WHEREAS, the Plan was established by the Company for the purpose of
providing supplemental retirement income under a nonqualified plan of deferred
compensation for a select group of key management Associates of the Company;
and
WHEREAS, the Participant was formerly a participant in the Amended
and Restated Supplemental Retirement Income Plan of Fleming Companies, Inc. and
Its Subsidiaries (the "Prior Plan") which was terminated as to the Participant
effective November 1, 1997; and
WHEREAS, at the time of the termination of the Prior Plan the
Participant had not accrued any benefit nor was he vested in any rights under
the Prior Plan; and
WHEREAS, the Company in recognition of the Participant's past and
future services with the Company has selected the Participant for participation
in the Plan by establishing for him a Past Service Benefit as provided herein
which will be paid following his termination of employment in accordance with
the terms of the Plan; 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. THE PLAN AND THE AMOUNT OF PAST SERVICE BENEFIT. 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. The Participant has
been credited with
$2,364,000 in the form of the Past Service Benefit pursuant to the terms of
the Plan. The Past Service Benefit will be credited to the Account
established for the Participant under the Plan and the Trust related thereto.
2. MANNER OF PAYMENT OF PAST SERVICE BENEFIT. As of the date of this
Agreement, the Participant must elect the form under which his Past Service
Benefit 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 Past Service is to be paid in the box provided below: (Please
Check and Initial One Box Only)
OPTIONAL FORMS OF PAYMENT
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 the form of payment
elected by the Participant. Refer to Exhibit "B" for a complete description of
the Methods of Payment. Payments to which the Participant is entitled pursuant
to the terms of the Plan will commence within 30 days following your
termination of employment and will continue to be paid in accordance with the
terms of the manner 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 Past Service Benefit be paid in any of the optional
forms described above or in a single lump sum payment. See Section 10.1 of the
Plan. Provided, in the event that a Participant has elected to receive his
Past Service Benefit for the Life of Participant Only (Option 1 above) and such
Participant dies prior to the time his benefits commence in accordance with the
terms of the Plan, then, the deceased Participant's Beneficiary shall
automatically receive a benefit based upon the actuarial equivalent of the
Participant's Past Service Benefit, which will be paid as a 50% Joint Annuitant
Survivor Benefit (Option 2 above).
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3. 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 12 below; provided, however, this
Agreement may not be amended, modified or altered or terminated in any manner
which adversely affects the Participant without the consent of the
Participant.
4. EXPENSES. The expenses of administering this Agreement shall
be borne by the Company and shall not be charged against the Participant's
Past Service Benefit.
5. APPLICABLE LAW. The provisions of this Agreement shall be
construed, administered and enforced according to the laws of the State of
Oklahoma.
6. NO ASSIGNABILITY. Neither the Participant, his Beneficiary,
nor any other person shall acquire any right to or interest in any Past
Service Benefit and accruals thereon, otherwise than by actual payment in
accordance with the provisions of the Plan and 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 nonassign able 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.
7. 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.
8. 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 other taxes relating to any
payments or rights to payments under this Agreement.
9. DESIGNATION OF BENEFICIARY.
(a) The Participant, hereby designate the following individual
as his Beneficiary to receive any Past Service Benefit (including any benefit
to be paid to such Beneficiary as the surviving "joint annuitant" pursuant to
Section 2 hereof) payable to the Participant under this Agreement or the Plan
in the event of the Participant's death:
Name Address Relationship
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(b) The Participant understands 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.
10. 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.
11. LIMITATION ON PAYMENT OF BENEFITS. The payment of the Past
Service Benefit 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 his Beneficiary have any right,
claim, or interest of any kind whatsoever in any future payments of such Past
Service Benefit and such payments shall accrue and be payable only on a
monthly basis as provided hereinabove.
12. NOTICES. All notices that are required or may be given
pursuant to this Agreement must be in writing and delivered 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 12:
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
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if to the Participant:
13. 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, he 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 Deferred Compensation Plan, both of which may provide substantial
benefits to the Participant, the Participant hereby releases the Company, its
officer, 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 Partici-
pant would have otherwise been entitled had the Participant continued partici-
pating in the Prior Plan.
14. 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.
15. 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 "B"
DESCRIPTION OF OPTIONAL FORMS OF PAYMENT
OPTION 1 - Life of Participant Only:
A Past Service Benefit will be paid for the Participant's life only. Upon the
Participant's death, all payments of Past Service Benefit shall cease.
OPTION 2 - 50% Joint Annuitant Survivor Benefit:
A reduced amount of Past Service Benefit will be paid to 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 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 Past Service Benefit will be paid to 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 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 Past Service Benefit will be paid to 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 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 Past Service Benefit 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 Participant die, then, no further benefits will be paid under OPTION 5 or
this Agreement.
OPTION 6 - 10 Year Period Certain:
A reduced amount of Past Service Benefit 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 Partic-
ipant'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 Participant die, then, no further benefits will be paid under
OPTION 6 or this Agreement.
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OPTION 7 - 15 Year Period Certain:
A reduced amount of Past Service Benefit 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 Partic-
ipant'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 Participant die, then, no further benefits will be paid under
OPTION 7 or this Agreement.
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