<PAGE> 1
As filed with the Securities and Exchange Commission on October 28, 1994
Registration Statement No. 33-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-3
Registration Statement Under The Securities Act of 1933
_________________________
FLEMING COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Oklahoma 48-0222760
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P. O. Box 26647
6301 Waterford Boulevard
Oklahoma City, Oklahoma 73126
(Address of Principal Executive Office) (Zip Code)
__________________________
DAVID R. ALMOND
Senior Vice President -
General Counsel and Secretary Copies to:
Fleming Companies, Inc.
P. O. Box 26647 JOHN M. MEE, Esq.
6301 Waterford Boulevard McAfee & Taft
Oklahoma City, Oklahoma 73126 A Professional Corporation
(405) 840-7200 Tenth Floor
(Address and telephone number Two Leadership Square
of agent for service) Oklahoma City, Oklahoma 73102
__________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement
becomes effective.
_________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. (X)
_________________________
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. ( )
__________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Unit Offering Price Fee
- - ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $2.50 par value 600,000 Shares $23.31(1) $13,987,500(1) $4,823.28(1)
===============================================================================================================
</TABLE>
(1) Fee calculated pursuant to Rule 457(c) using the average of the high and
low sales prices on the New York Stock Exchange on October 27, 1994,
pursuant to the terms of the Fleming Dividend Reinvestment and Stock
Purchase Plan.
<PAGE> 2
PROSPECTUS
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
(FLEMING LOGO)
600,000 SHARES
COMMON STOCK
Fleming Companies, Inc. ("Fleming") hereby offers to holders of its common
stock, par value $2.50, the opportunity to purchase additional shares of common
stock by having their cash dividends automatically reinvested and, if they wish,
by making optional cash payments. This prospectus sets forth the details of the
company's Dividend Reinvestment and Stock Purchase Plan (the "Plan") which
incorporates the following features:
- Shareholders who elect to participate will be able to reinvest their
dividends in shares of Fleming common stock at a 5% discount from market
value, determined as provided in the Plan.
- Optional cash payments of up to $5,000 per calendar quarter also may be
utilized to purchase additional shares. Such shares will be purchased at
market value, as set forth in the Plan.
- No brokerage commissions or service fees will be charged on any shares
purchased through either reinvested dividends or optional cash payments.
Shares purchased under the Plan are expected to be newly issued shares of
previously authorized but unissued common stock. The issued and outstanding
shares of Fleming's common stock are, and the shares sold pursuant to the Plan
will be, listed on the New York Stock Exchange. Shareholders who do not choose
to participate will continue to receive cash dividends, when and as declared by
the board of directors of the company, in the usual manner.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
- - --------------------------------------------------------------------------------
THE DATE OF THIS PROSPECTUS IS OCTOBER 28, 1994.
<PAGE> 3
STATEMENT OF AVAILABLE INFORMATION
Fleming is subject to the informational requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 5th Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices at 7 World Trade Center, 13th Floor, New York,
New York 10048 and Suite 1400, Northwestern Atrium Center, 14th Floor, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission at prescribed rates at the
principal office of the Commission at Judiciary Plaza, 450 5th Street, N.W.,
Washington, D.C. 20549. In addition, such reports, proxy statements and
information concerning the company can be inspected and copied at the New York
Stock Exchange, 20 Broad Street, New York, New York 10005, the Pacific Stock
Exchange, Inc., 301 Pine Street, San Francisco, California 94104 and the Chicago
Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The company's Annual Report on Form 10-K for the year ended December 25,
1993, the company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
April 16, 1994 and July 9, 1994, the company's Current Reports on Form 8-K dated
July 19, 1994 (as amended by Form 8-KA filed September 2, 1994), September 23,
1994 and October 19, 1994, and the description of the company's common stock
contained in the Registration Statement on Form 8-A dated March 23, 1989, filed
under the Securities Exchange Act of 1934 (File No. 1-8140) are hereby
incorporated in this Prospectus by reference, and all documents subsequently
filed by the company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, prior to the termination of the offering
described herein, shall be deemed to be incorporated in this Prospectus and to
be a part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for all purposes to the extent that a statement contained
in this Prospectus or in any other subsequently filed document which is also
incorporated by reference modifies or replaces such statement. The company will
provide without charge to each person to whom this Prospectus is delivered, on
written or oral request of such person, a copy (without exhibits) of any or all
documents incorporated by reference in this Prospectus. Requests for such copies
should be directed to David R. Almond, Senior Vice President -- General Counsel
and Secretary, Fleming Companies, Inc., (i) if by telephone to (405) 840-7200
and (ii) if by mail to P. O. Box 26647, Oklahoma City, Oklahoma 73126.
2
<PAGE> 4
THE COMPANY
The company is a recognized leader in the food marketing and distribution
industry with both wholesale and retail operations. The company is the largest
food wholesaler in the United States as a result of the acquisition of Haniel
Corporation and its sole direct subsidiary, Scrivner, Inc., and Scrivner, Inc.'s
subsidiaries in July 1994 (the "Acquisition"), based on pro forma 1993 net sales
of approximately $19 billion. The company serves as the principal source of
supply for approximately 10,000 retail food stores, including approximately
3,700 supermarkets (defined as any retail food store with annual sales of at
least $2 million) which represented approximately 13% of all supermarkets in the
United States at year-end 1993 and totaled approximately 97 million square feet
in size. The company serves food stores of various sizes operating in a wide
variety of formats, including conventional full-service stores, supercenters,
prices impact stores (including warehouse stores), combination stores (which
typically carry a higher proportion of non-food items) and convenience stores.
With customers in 43 states, the company services a geographically diverse area.
The company's wholesale operations offer a wide variety of national brand and
private label products, including groceries, meat, dairy and delicatessen
products, frozen foods, fresh produce, bakery goods and a variety of general
merchandise and related items. In addition, the company offers a wide range of
support services to its customers to help them compete more effectively with
other food retailers in their respective markets. Such services include store
development and expansion services, merchandising and marketing assistance,
advertising, consumer education programs, retail electronic services and
employee training.
In addition to its wholesale operations, the company has a significant
presence in food retailing, owning and operating 345 retail food stores,
including 283 supermarkets with an aggregate of approximately 9.5 million square
feet. The company-owned stores operate under a number of names and vary in
format from super warehouse stores and conventional supermarkets to convenience
stores. Pro forma 1993 net sales from retail operations were approximately $3
billion, giving effect to the Acquisition. The company believes it is one of the
20 largest food retailers in the United States based on pro forma net sales.
The mailing address of the company's principal executive office is P.O. Box
26647, Oklahoma City, Oklahoma 73126, and the company's telephone number is
(405) 840-7200.
THE PLAN ADMINISTRATOR
The board of directors of the company has appointed Liberty Bank and Trust
Company of Oklahoma City, Oklahoma, N.A. (the "Bank") as administrator of the
Plan. Please address all correspondence concerning the Plan to:
Liberty Bank and Trust Company
of Oklahoma City, Oklahoma, N.A.
Fleming Dividend Reinvestment Plan
P. O. Box 25848
9th Floor
Oklahoma City, Oklahoma 73125
Attn: Stock Transfer Department
Please mention Fleming Companies, Inc. in your correspondence and, if you
become a participant, give your account number. If you prefer, you may call the
Bank at 1-800-395-2662, Extension 6711.
3
<PAGE> 5
THE PLAN
The company is offering to shareholders the opportunity to purchase shares
of its common stock pursuant to the Plan. The Plan provides that holders of the
company's common stock can reinvest their cash dividends in additional shares of
common stock and, if they do so, they may also make additional cash payments for
the same purpose. As explained below, the cash dividends of a shareholder who
participates are reinvested for him by the administrator of the Plan, along with
any optional cash payments of not less than $25 per payment. Optional cash
payments are limited to a maximum of $5,000 per calendar quarter.
The Plan is described in the following questions and answers:
1. WHAT IS THE PURPOSE OF THE PLAN?
The Plan provides participating shareholders with a convenient and
economical method of investing their cash dividends in additional shares of
common stock and purchasing additional shares of common stock through optional
cash payments
2. WHAT ARE THE PRINCIPAL FEATURES?
A 5% discount from market value (determined as provided in "Determination
of Offering Price") is allowed on shares purchased with reinvested dividends
only. Participants may also purchase shares of common stock at market value by
making optional cash payments as provided in the Plan. Participants do not pay
any brokerage commissions or service charges for purchases made under the Plan.
Full investment of funds is possible because the Plan permits fractions of
shares, as well as full shares, to be credited to a participant's account.
3. WHO IS ELIGIBLE TO PARTICIPATE?
All holders of record of Fleming common stock are eligible to participate.
4. WHO ADMINISTERS THE PLAN?
Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. administers
the Plan and makes purchases of shares of common stock from the company as agent
for all participants. The Bank will keep a record of dividends reinvested and
purchases made under the Plan and will send participants a statement of account
following each dividend payment and reinvestment transaction. The Bank will also
act as custodian of shares purchased under the Plan.
5. HOW DO SHAREHOLDERS JOIN THE PLAN?
Any eligible shareholder may join the Plan by completing the authorization
card included with this prospectus for all new shareholders and returning it to
the Bank. If needed, additional authorization cards may be obtained at any time
by writing or calling the Bank or the company. The Bank will provide information
and forms for optional cash payments.
The authorization card directs the company to pay to the Bank the cash
dividends on shares of common stock registered in the participant's name and on
shares of common stock credited to his account under the
4
<PAGE> 6
Plan. The authorization card also directs the Bank to use cash dividends,
together with any optional cash payments made by the participant, to purchase
additional shares of stock.
6. CAN A SHAREHOLDER PARTICIPATE ONLY AS TO SOME OF HIS SHARES?
Yes. A shareholder may participate in the Plan with respect to less than
all shares registered in his name (a specified number of full shares) and
continue to receive cash dividends on the remaining shares.
7. WHEN MAY AN ELIGIBLE SHAREHOLDER JOIN?
An eligible shareholder may join the Plan at any time. If an authorization
card is received by the Bank on or before the record date for the payment of a
cash dividend, reinvestment of the participant's dividends will commence with
that dividend payment. Dividend record and payment dates normally are on or
close to the dates shown below:
<TABLE>
<CAPTION>
RECORD DATE PAYMENT DATE
-------------------------------------------------------------- -------------
<S> <C>
February 20................................................... March 10
May 20........................................................ June 10
August 20..................................................... September 10
November 20................................................... December 10
</TABLE>
If an authorization card is received after the record date for a cash
dividend, the dividend will be paid in cash, and participation in the Plan will
begin with the next cash dividend payment. For example, if an authorization card
is received on or before February 20, the dividend payable on March 10 will be
reinvested under the Plan. If an authorization card is received after February
20, then the first dividend reinvested under the Plan will be the dividend
payable on June 10.
8. WHEN WILL PURCHASES OF STOCK BE MADE?
Purchases will be made on the 10th day of each month (the "Investment
Date"). If the 10th day of the month falls on a Saturday, Sunday or other day on
which the New York Stock Exchange or banking institutions are closed, the
Investment Date will be the next preceding business day on which the New York
Stock Exchange and banking institutions are not closed. The March, June,
September and December Investment Dates correspond with the quarterly dividend
payment dates. The participant's dividends, together with any optional cash
payments received prior to the Investment Date and not previously invested, will
be used to purchase additional shares on the Investment Date.
9. HOW DOES THE CASH PAYMENT FEATURE WORK?
Each participant may invest in additional shares of common stock by making
optional cash payments. Cash payments may not be less than $25 and may be made
by a participant as often as he wishes, provided that the total optional cash
payments may not exceed $5,000 per calendar quarter.
An optional cash payment may be made by enclosing a check or money order
with the authorization card when initially joining the Plan. Thereafter, cash
payments may be forwarded to the Bank along with a special
5
<PAGE> 7
payment form which will be included with each statement of account. Checks and
money orders should be made payable to Liberty Bank and Trust Company of
Oklahoma City, Oklahoma, N.A.
Only shareholders who have submitted a signed authorization card are
eligible to make optional cash payments. Cash received from a participant will
be used to purchase shares on the next Investment Date following receipt. No
interest will be paid by the company or the Bank on optional cash payments. The
same amount of cash need not be sent each month, and there is no obligation to
make any optional cash payments unless you desire to do so.
10. HOW WILL THE NUMBER OF SHARES TO BE PURCHASED BE DETERMINED?
The number of shares that will be purchased for a participant's account
will depend on the amount of the participant's cash dividend, the amount of any
optional cash payments made by the participant, and the price of the shares
determined as provided in "Determination of Offering Price." A participant's
account will be credited with the number of shares (including fractional shares
computed to four decimal places) that results by dividing the amount of
dividends and/or optional payments by the applicable purchase price (computed to
four decimal places).
11. ARE THERE ANY COSTS TO PARTICIPANTS FOR PURCHASES UNDER THE PLAN?
No. All fees, commissions, expenses and costs of administration of the Plan
will be borne by Fleming.
12. WILL DIVIDENDS BE PAID ON SHARES HELD IN A PARTICIPANT'S ACCOUNT?
Yes. Cash dividends will be paid on all whole and fractional shares held in
a participant's account and will be reinvested in additional shares.
13. WHAT REPORTS WILL BE SENT TO PARTICIPANTS?
Following each dividend payment and reinvestment transaction, the Bank will
mail each participant a statement of his account. The statement will show all
amounts invested, the number of shares purchased and the purchase price, and a
current summary of the participant's total holdings under the Plan. The
statements of account are the participant's record of the cost and date of his
purchases and should be retained for income tax purposes.
Participants will continue to receive from the company its annual report
and quarterly reports to shareholders, notice of annual meeting and proxy
statement. Participants will receive from the Bank information for reporting
dividend income for income tax purposes on shares held under the Plan. The Bank
will also send information for reporting dividend income for income tax purposes
on shares held outside the Plan.
14. WILL A PARTICIPANT RECEIVE CERTIFICATES FOR SHARES PURCHASED?
Normally, certificates for shares purchased under the Plan will not be sent
to participants but will be registered in the name of the Bank or its nominee.
The custodial service will relieve participants of responsibility for the
safekeeping of multiple certificates and protect participants against the risk
of loss, theft or destruction of certificates.
6
<PAGE> 8
Upon written request, the Bank will send to a participant certificates for
the total number of whole shares credited to his account, or for any lesser
number specified. Any remaining shares, or fractional shares, will continue to
be held in the participant's account. Certificates for fractional shares will
not be issued.
15. IN WHOSE NAME WILL CERTIFICATES BE ISSUED?
Certificates sent to a participant by the Bank upon written request will be
registered in the name in which the Plan account is maintained. This generally
will be the name or names in which the participant's original certificates were
registered at the time of joining the Plan.
16. WHAT IS THE SOURCE OF SHARES PURCHASED UNDER THE PLAN?
Shares purchased under the Plan will normally come from the authorized but
unissued shares of the company's common stock. However, the company reserves the
right to issue shares held as treasury shares. The price of shares purchased for
participants will be the same whether the shares are newly issued shares or
treasury shares. See "Determination of Offering Price."
17. HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN?
A participant may withdraw by sending written notification of withdrawal to
the Bank. In the event a participant withdraws, certificates for whole shares
credited to his account will be delivered to him by the Bank. In addition, any
fractional shares will be sold and a cash payment will be made for the sales
price thereof, less brokerage commissions and any transfer taxes.
Alternatively, a participant may withdraw from the Plan and request the
Bank to sell all shares, both whole and fractional, held in his account. The
proceeds from the sale, less any brokerage commissions and transfer taxes, will
be remitted to the withdrawing participant. Sale requests may be accumulated by
the Bank, but sales are expected to occur at least every ten days. The price of
shares sold will be the average of all actual sales under the Plan on the sale
date.
18. WHEN MAY A PARTICIPANT WITHDRAW FROM THE PLAN?
A participant may withdraw from the Plan at any time. If the withdrawal
request is received by the Bank at least five business days prior to a dividend
record date, the amount of the cash dividend and any optional cash payments
which would otherwise have been invested on the next Investment Date, and all
subsequent dividends, will be paid to him in cash. If the withdrawal request is
received by the Bank less than five business days before the dividend record
date, the amount of the cash dividend to be invested on the next Investment
Date, along with any optional cash payments received, will be so invested, but
all subsequent dividends will be paid to the participant in cash.
19. CAN A PARTICIPANT REQUEST THAT A PORTION OF THE SHARES IN HIS ACCOUNT
BE SOLD AND REMAIN IN THE PLAN?
Yes. A participant may request that the Bank sell less than all shares held
in his account, and continue to be a participant with respect to the remaining
shares in his Plan account.
7
<PAGE> 9
20. MAY A SHAREHOLDER REJOIN THE PLAN?
Generally, an eligible shareholder may again become a participant at any
time. However, the company reserves the right to reject the authorization card
from a previous participant on grounds of excessive joining and termination.
Such reservation is intended to minimize administrative expenses and to
encourage use of the Plan as a long-term investment service.
21. WHAT HAPPENS IF A PARTICIPANT SELLS OR TRANSFERS ALL OF THE SHARES
REGISTERED IN HIS NAME?
If a participant disposes of all the shares of common stock registered in
his name, exclusive of the shares credited to his account under the Plan, the
Bank will continue to reinvest the cash dividends on the shares held in his
account under the Plan until the Bank is otherwise notified in writing.
22. WHAT HAPPENS IF THE COMPANY ISSUES A STOCK DIVIDEND, DECLARES A STOCK
SPLIT OR HAS A RIGHTS OFFERING?
Any shares distributed by the company as a stock dividend on shares held in
the participant's Plan account (including fractional shares) and any split of
such shares will be credited to a participant's Plan account. Stock dividends or
splits distributed on all other shares held by a participant will be mailed
directly to a participant in the same manner as to shareholders who are not
participating in the Plan.
In a rights offering, a participant's entitlement will be based upon his
total holdings, including those credited to his account under the Plan. Rights
applicable to shares credited to a participant's Plan account will be sold by
the Bank, and the proceeds will be credited to his account under the Plan and
applied to the purchase of shares on the next Investment Date. Any participant
who wishes to exercise, transfer or sell the rights applicable to shares
credited to his Plan account must request, prior to the record date for the
issuance of any such rights, that the whole shares credited to his account be
transferred from his account and registered in his name.
23. CAN A PARTICIPANT VOTE SHARES HELD UNDER THE PLAN?
Yes. The shares credited to the account of a participant will be voted in
accordance with instructions of the participant given on a proxy which will be
furnished to the participant or, if such participant desires to vote in person
at a meeting, a proxy for shares credited to his account may be obtained upon
written request received by the Bank at least 15 days before the meeting. If a
properly signed proxy card is returned without instructions, the participant's
shares credited to his account will be voted in accordance with the proxy
statement accompanying the proxy card. If the proxy card is not returned, or is
returned unsigned, none of the participant's shares will be voted.
24. WHAT IF A PARTICIPANT ACQUIRES ADDITIONAL SHARES AFTER BECOMING A
PARTICIPANT?
If a participant acquires shares in the market or otherwise after becoming
a participant in the Plan, the dividends paid on such shares will be reinvested
under the Plan unless the new shares are registered in a name which is different
from the name in which the shareholder is registered under the Plan.
8
<PAGE> 10
25. WHAT HAPPENS IF A PARTICIPANT DIES?
On receipt by the Bank of proper notice of the death or incompetency of a
participant, together with any other forms as may be required by the Bank, such
participant's account will be terminated, and shares delivered to the
appropriate person, in the same manner as those of a participant who withdraws
from the Plan. See the answer to Question 17.
26. WHAT ARE THE RESPONSIBILITIES OF THE COMPANY AND THE BANK UNDER THE
PLAN?
Neither the company nor the Bank can assure participating shareholders of a
profit or protect them from a loss in any investment they may make in shares of
the company's common stock under the Plan. In administering the Plan, neither
the company nor the Bank is liable for any act done in good faith or for any
omission to act in good faith, including, without limitation, any claim for
liability arising out of failure to terminate a participant's account upon such
participant's death prior to receipt of notice in writing of such death. The
company reserves the right to interpret and regulate the Plan, and to modify,
suspend or terminate it at any time upon notification to shareholders, although
the shareholder response is expected to justify continuing the Plan
indefinitely.
27. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES?
In general, participants in the Plan have the same federal income tax
obligations with respect to their dividends as do shareholders who are not
participating in the Plan. This means that the cash dividends a participant
reinvests under the Plan will be taxable as having been received even though the
Participant does not actually receive them in cash but, instead, uses them to
purchase additional shares of stock under the Plan.
The Internal Revenue Service has ruled with respect to a plan similar to
the company's plan that the full fair market value of the shares purchased with
reinvested dividends is taxable as dividend income to the participant. This
means that in addition to the reinvested dividends being taxable, the 5%
discount allowed on the purchase of shares with reinvested dividends under the
Plan is also taxable as dividend income to the participant in the year the
shares are purchased.
The tax basis of shares acquired through reinvested dividends is equal to
the fair market value of the stock on the cash dividend payment date rather than
the discounted amount paid for the shares. Under the Plan, fair market value is
determined by averaging the high and low sale prices reported as New York Stock
Exchange -- Composite Transactions on the applicable Investment Date or, if no
trading occurs on the Investment Date, on the next preceding day on which the
common stock was traded on such exchange. The tax basis of shares acquired
through optional cash Payments, on which no discount is allowed, is equal to the
cost of the stock. The holding period for shares acquired under the Plan begins
the day after the applicable Investment Date.
9
<PAGE> 11
The following example, using assumed data, illustrates the federal income
tax consequences when a participant reinvests dividends under the Plan:
<TABLE>
<CAPTION>
TAXABLE AS
DIVIDEND
INCOME
----------
<S> <C> <C>
Dividends reinvested......................................................... $53.20
Market value (average market price) per share..................... $28.00
Less 5% discount per share........................................ 1.40
----------
Purchase price per share.......................................... $26.60
Number of shares purchased ($53.20 divided by $26.60)............. 2 shares
Total discount taxable (2 shares times $1.40)................................ 2.80
------
Total taxable as dividend income............................................. $56.00
</TABLE>
In the case of participating foreign shareholders whose dividends are
subject to the withholding of U.S. income taxes, the tax to be withheld will be
deducted from each dividend payment before it is reinvested.
The foregoing is a general summary only, and each participant should
consult his own tax adviser to determine the tax consequences of his
participation.
USE OF PROCEEDS
The proceeds from the sale of shares by the company to participants in the
Plan will be added to the general operating funds of the company, to be used as
working capital.
DETERMINATION OF OFFERING PRICE
The price of shares purchased with reinvested cash dividends will be 5%
below the average of the high and low sale prices of Fleming common stock
reported as New York Stock Exchange -- Composite Transactions on the Investment
Date as of which shares are purchased. These prices are published regularly in
The Wall Street Journal and the daily press.
The price of shares purchased with optional cash payments will be the
average of the high and low sale prices. If the New York Stock Exchange is
closed on an Investment Date, or if no trading occurs in the company's common
stock on such date, the price will be determined as of the next preceding
business day on which the company's common stock is traded on the Exchange.
Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. is transfer
agent and registrar for the company's common stock.
10
<PAGE> 12
LIMITATION ON AMOUNT OF REINVESTED DIVIDENDS
The Plan limits the amount of reinvested dividends which a single
participant can invest in shares of the company's common stock at a 5% discount
from market value ("Discounted Shares"). The Plan provides that the maximum
amount of reinvested dividends a single participant may invest in Discounted
Shares during any calendar quarter is limited to $100,000. The amount of
dividends in excess of $100,000 payable to a participant in any calendar quarter
will be paid to such participant in cash.
LEGAL OPINIONS
The validity of the common stock offered hereby will be passed upon for the
company by McAfee & Taft A Professional Corporation, Tenth Floor, Two Leadership
Square, Oklahoma City, Oklahoma 73102.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the company's Annual
Report on Form 10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Section 1031 of the Oklahoma General Corporation Act, the jurisdiction in
which the company is incorporated, provides, under certain circumstances, for
the indemnification of directors or officers of an Oklahoma corporation for
expenses in connection with the defense of any action, suit or proceeding, in
relation to certain matters, brought against them as such directors and
officers.
In addition, the company maintains insurance policies which insure its
officers and directors against certain liabilities.
Section 8.3 of Article VIII of the By-Laws of the company, which are filed
as Exhibit 4.1 to this Registration Statement and incorporated herein by
reference, provides indemnification of directors, officers and agents under
certain circumstances. These provisions may be sufficiently broad to indemnify
such persons for liabilities arising under the Securities Act of 1933, as
amended.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
11
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- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Statement of Available Information....... 2
Incorporation of Certain Documents by
Reference.............................. 2
The Company.............................. 3
The Plan Administrator................... 3
The Plan................................. 4
Use of Proceeds.......................... 12
Determination of Offering Price.......... 12
Limitation on Amount of Reinvested
Dividends.............................. 11
Legal Opinions........................... 11
Experts.................................. 11
Commission Position on Indemnification
for Securities Act Liabilities......... 11
</TABLE>
------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS. IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED
HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
600,000 SHARES
(FLEMING LOGO)
600,000 SHARES OF COMMON STOCK,
$2.50 PAR VALUE, OFFERED PURSUANT
TO THE DIVIDEND REINVESTMENT
AND PURCHASE PLAN OF
FLEMING COMPANIES, INC.
PROSPECTUS
OCTOBER 28, 1994
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of expenses (all but the
registration fee and the stock exchange listing fee are estimates) of the
company in connection with the issuance and sale of the shares of Common Stock
being registered.
<TABLE>
<S> <C>
Registration Fee ...................... $ 4,823.00
Stock Exchange Listing Fees ........... 6,000.00
Printing .............................. 4,900.00
Transfer Agent and Registrar Fees
and Expenses ........................ 0.00
Legal Fees and Expenses ............... 10,000.00
Accounting Fees and Expenses .......... 3,000.00
Miscellaneous ......................... 1,277.00
----------
Total ............................
$30,000.00
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Section 1031 of the Oklahoma General Corporation Act, the
jurisdiction in which the company is incorporated, provides, under certain
circumstances, for the indemnification of directors or officers of an Oklahoma
corporation for expenses in connection with the defense of any action, suit or
proceeding, in relation to certain matters, brought against them as such
directors and officers.
In addition, the company maintains insurance policies which insure its
officers and directors against certain liabilities.
(b) Section 8.3 of Article VIII of the By-Laws of the company provides
indemnification of directors, officers and agents under certain circumstances.
These provisions may be sufficiently broad to indemnify such persons for
liabilities arising under the Securities Act of 1933, as amended.
ITEM 16. EXHIBITS
The following exhibits have been filed as part of this Registration
Statement, and are incorporated herein by reference:
II-1
<PAGE> 15
5 - Opinion of McAfee & Taft A Professional Corporation
as to the legality of the securities being
registered.
24.1 - Consent of Deloitte & Touche LLP
24.2 - Consent of McAfee & Taft A Professional Corporation.
(Contained in its opinion filed as Exhibit 5 hereto.)
25 - Power of Attorney. (Contained on the Signature Pages
appearing at page II-4 and II-5 of this Registration
Statement.)
28.1 - The Dividend Reinvestment and Stock Purchase Plan of
Fleming Companies, Inc., as amended (Incorporated by
reference to Exhibit 28.1 to Registration Statement
No. 33-26648).
28.2 - The Dividend Reinvestment and Stock Purchase Plan
Authorization Card (Incorporated by reference to
Exhibit 28.2 to Registration Statement No. 33-22648).
28.3 - Amendment No. Three to Dividend Reinvestment and
Stock Purchase Plan, effective January 24, 1992
(incorporated by reference to Exhibit 28.3 to
Registration Statement No. 33-45190).
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represents a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
II-2
<PAGE> 16
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 17
POWER OF ATTORNEY
We, the undersigned officers and directors of Fleming Companies, Inc.
(hereinafter the "Company") hereby severally constitute Robert E. Stauth, Harry
L. Winn, Jr., David R. Almond and John M. Mee, and each of them, severally, our
true and lawful attorneys with full power to them and each of them to sign for
us, and in our names as officers or directors, or both, of the Company, any and
all amendments to this Registration Statement (including post-effective
amendments) for the purpose of registering under the Securities Act of 1933 up
to a maximum of 600,000 shares of the Company's common stock, par value $2.50
per share, for the account of the Company, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, may lawfully do or cause to be done by virtue
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Oklahoma City, State of Oklahoma, on the 28th
day of October, 1994.
FLEMING COMPANIES, INC.
By /s/ Robert E. Stauth
Robert E. Stauth, Chairman,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- - --------- ----- ----
<S> <C> <C>
/s/ Robert E. Stauth Chairman, President and )
Robert E. Stauth Chief Executive Officer ) October 28,
and Director (principal ) 1994
executive officer )
)
)
)
</TABLE>
II-4
<PAGE> 18
<TABLE>
<S> <C> <C>
)
)
/s/ Harry L. Winn, Jr. Executive Vice President )
Harry L. Winn, Jr. and Chief Financial )
Officer (principal )
financial officer) )
)
)
/s/ Donald N. Eyler Senior Vice President - )
Donald N. Eyler Controller (principal )
accounting officer) )
)
)
/s/ Archie R. Dykes Director )
Archie R. Dykes )
)
)
/s/ Carol B. Hallett Director )
Carol B. Hallett )
) October 28,
) 1994
/s/ James G. Harlow, Jr. Director )
James G. Harlow, Jr. )
)
)
/s/ Lawrence M. Jones Director )
Lawrence M. Jones )
)
)
/s/ Edward C. Joullian III Director )
Edward C. Joullian III )
)
)
/s/ Howard H. Leach Director )
Howard H. Leach )
)
)
_______________________ Director )
John A. McMillan )
)
)
/s/ Guy A. Osborne Director )
Guy A. Osborne )
)
)
_______________________ Director )
E. Dean Werries )
</TABLE>
II-5
<PAGE> 19
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
5 - Opinion of McAfee & Taft A Professional Corporation
as to the legality of the securities being
registered.
24.1 - Consent of Deloitte & Touche LLP
24.2 - Consent of McAfee & Taft A Professional Corporation.
(Contained in its opinion filed as Exhibit 5 hereto.)
25 - Power of Attorney. (Contained on the Signature Pages
appearing at page II-4 and II-5 of this Registration
Statement.)
28.1 - The Dividend Reinvestment and Stock Purchase Plan of
Fleming Companies, Inc., as amended (Incorporated by
reference to Exhibit 28.1 to Registration Statement
No. 33-26648).
28.2 - The Dividend Reinvestment and Stock Purchase Plan
Authorization Card (Incorporated by reference to
Exhibit 28.2 to Registration Statement No. 33-22648).
28.3 - Amendment No. Three to Dividend Reinvestment and
Stock Purchase Plan, effective January 24, 1992
(incorporated by reference to Exhibit 28.3 to
Registration Statement No. 33-45190).
<PAGE> 1
Law Offices
McAFEE & TAFT A PROFESSIONAL CORPORATION
Tenth Floor
Two Leadership Square
Oklahoma City, Oklahoma 73102
(405) 235-9621
Fax (405) 235-0439
October 28, 1994
Fleming Companies, Inc.
P.O. Box 26647
6301 Waterford Boulevard
Oklahoma City, Oklahoma 73126
Gentlemen:
Reference is made to your Registration Statement on Form S-3 to be
filed with the Securities and Exchange Commission on October 28, 1994, with
respect to the proposed offering of 600,000 shares of common stock, par value
$2.50 per share, of Fleming Companies, Inc. (the "Company") pursuant to the
terms of the Fleming Dividend Reinvestment and Stock Purchase Plan (the "Plan").
We have examined the corporate records of the Company and have made such other
investigation as we deemed appropriate to express the opinions set forth herein.
We are of the opinion that:
1. The company is validly incorporated under the laws of the
State of Oklahoma; and
2. The 600,000 shares of common stock which are proposed to be
issued by the Company pursuant to the Registration Statement, when issued to
the participants in the Plan pursuant to the terms of the Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as an Exhibit to
the above mentioned Registration Statement and to the reference to our firm
under the caption "Legal Opinions" in the Prospectus comprising a part of the
Registration Statement.
Very truly yours,
/s/ McAfee & Taft A Professional
Corporation
<PAGE> 1
EXHIBIT 24.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Fleming Companies, Inc. on Form S-3 of the report of Deloitte & Touche dated
February 10, 1994, appearing in the Annual Report on Form 10-K of Fleming
Companies, Inc. for the year ended December 25, 1993 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
Deloitte & Touche LLP
Oklahoma City, Oklahoma
October 25, 1994
