SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
June 16, 1997
Date of Report
(Date of earliest event reported)
FLEMING COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Oklahoma 1-8140 48-0222760
(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification)
6301 Waterford Boulevard, Box 26647
Oklahoma City, Oklahoma 73126
(Address of Principal Executive Offices)
(405)840-7200
Registrant's telephone number,
including area code
<PAGE>
Item 5. Other events.
On June 16, 1997 the company announced that its Board of Directors approved a
$1.35 billion recapitalization program for the company. This comprehensive
program consists of an $850 million Senior Secured Credit Facility, with bank
credit commitments of up to 7 years, and $500 million of privately placed
Senior Subordinated Notes, with maturities of up to 10 years. Proceeds from
the recapitalization program will be used to repay all outstanding bank debt
and retire the company's floating rate Senior Notes due 2001.
The $850 million Senior Secured Credit Facility is comprised of a $600 million
revolving credit facility which matures in 6 years, and a $250 million
amortizing term loan which has a final maturity of 7 years. The new bank
credit facility will be led by The Chase Manhattan Bank as administrative
agent. Bank of America NT&SA has been named syndication agent and Societe
Generale has been named documentation agent. The new bank credit facility will
replace the company's credit agreement which was implemented in July 1994 to
finance the Scrivner acquisition.
The Senior Subordinated Notes will be junior to the company's outstanding
secured and unsecured long-term debt. The Senior Subordinated Notes are
expected to be issued in two tranches; the longest maturity may be up to 10
years.
The full text of the company's press release is included as exhibit 99.
Item 7. Financial statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
(3) Articles of incorporation and by-laws
Filed herewith is a copy of the company's bylaws as amended 4/30/97.
(99) Additional exhibits
Full text of the company's June 16, 1997 press release.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FLEMING COMPANIES, INC.
KEVIN J. TWOMEY
Kevin J. Twomey
Vice President - Controller
Date: June 16, 1997
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Method of Filing
- ------- ----------------
<S> <C> <C>
3 Company's Bylaws as amended 4/30/97 Filed herewith electronically
99 Company's June 16, 1997 press release Filed herewith electronically
</TABLE>
Adopted 04/29/81
Amended 04/26/83
Amended 04/29/87
Amended 11/03/87
Amended 08/22/89
Amended 04/30/97<F1>
BYLAWS
OF
FLEMING COMPANIES, INC.
ARTICLE I
Offices
Section 1.1. Principal Office. The principal office of Fleming Companies,
Inc. (the "Corporation") shall be located at 6301 Waterford Boulevard, Oklahoma
City, Oklahoma.
Section 1.2. Other Offices. The Corporation may also have offices at such
other places both within or without the State of Oklahoma as the Board of
Directors may from time to time determine.
ARTICLE II
Meetings of Shareholders
Section 2.1. Annual Meeting. The annual meeting of the shareholders shall be
held on a date designated by the Board of Directors, which shall be within six
months next following the end of the fiscal year of the Corporation, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting.
Section 2.2. Special Meetings. Except as otherwise prescribed by statute,
special meetings of the shareholders for any purpose, may be called by the
Chairman and shall be called by the Secretary at the request in writing of a
majority of the Board of Directors. Business transacted at any special meeting
shall be limited to the general objects stated in the call.
Section 2.3. Place of Meeting. Each annual meeting of the shareholders for
the election of directors shall be held at the principal office of the
Corporation in Oklahoma City, Oklahoma unless the Board of Directors shall by
resolution, adopted at least 60 days prior to the date of such meeting,
designate any other place, within or without the State of Oklahoma, as the
place of such meeting. Meetings of shareholders for any other purpose may be
held at such place, within or without the State of Oklahoma, and at such time
as shall be determined by the Board of Directors or the Chairman, such time to
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2.4. Notice of Meeting. Written or printed notice stating the place
and time of each annual or special meeting of the shareholders entitled to vote
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given not less than 10 days nor more than 60 days
before the date of the meeting. (See also Article IV).
Section 2.5. Shareholder List. A share ledger in which the names of the
shareholders are arranged alphabetically by classes of shares, if any, shall be
maintained and open for inspection at the office of the Corporation in Oklahoma
City if the meeting is to be held in Oklahoma City, or at the place of the
meeting if the meeting is to be held outside of Oklahoma City, during ordinary
business hours, for a period of at least 10 days prior to the meeting. The
list shall also be available at the time and place of the meeting, during the
whole time of the meeting, and may be inspected by any shareholder who is
present. Such access to the shareholder list shall be restricted to those
shareholders whose purpose in viewing the list is germane to the meeting.
Section 2.6. Quorum. The holders of voting stock of the Corporation having a
majority of the voting power thereat, present in person or represented by
proxy, shall be requisite for, and shall constitute, a quorum at all meetings
of the shareholders of the Corporation for the transaction of business, except
as otherwise provided by statute or the Corporation's Certificate of
Incorporation or these Bylaws.
Section 2.7. Proxies. At every meeting of the shareholders, each shareholder
having the right to vote thereat shall be entitled to vote in person or by
proxy. Such proxy shall be appointed by an instrument in writing subscribed by
such shareholder and bearing a date not more than three years prior to such
meeting, unless such proxy provides for a longer period; and it shall be filed
with the Secretary of the Corporation before, or at the time of, the meeting.
Section 2.8. Voting. At every meeting of shareholders, except as otherwise
provided by law, each shareholder shall be entitled to one vote for each share
of stock of the Corporation entitled to vote thereat and registered in the name
of such shareholder on the books of the Corporation on the pertinent record
date. When a quorum is present at any meeting of the shareholders, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, due to a provision of the statutes or
the Corporation's Certificate of Incorporation or these Bylaws, a different
vote is required, in which case such provision shall govern and control the
decision at such question.
Section 2.9. Record Date. (a) In order that the Corporation may determine
the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment or any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action other than shareholder action by
written consent, the Board of Directors may fix a record date, which shall not
precede the date such record date is fixed and shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than 60 days prior
to any such other action. If no record date is fixed, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the day next preceding the
day on which notice is given. The record date for any other purpose other than
shareholder action by written consent shall be at the close of business on the
day on which the Board of Directors adopts the resolution relating thereto. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
(b) In order that the Corporation may determine the shareholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any shareholder of record seeking to have the shareholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. The
Board of Directors shall promptly, but in all events within 10 days after the
date on which such a request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors within 10
days of the date on which such a request is received, the record date for
determining shareholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required
by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Oklahoma, its
principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of meetings of shareholders are
recorded. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable law, the record date for
determining shareholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 2.10. Nominations of Directors. Only persons who are nominated in
accordance with the procedures set forth in the Bylaws shall be eligible to
serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of shareholders (a) by or
at the direction of the Board of Directors or (b) by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this Section 2.10, who shall be entitled to vote for the
election of directors at the meeting and who complies with the notice
procedures set forth in this Section 2.10. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant
to timely notice in writing to the Secretary of the Corporation. To be timely,
a shareholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 70 days' notice or prior public disclosure of the date of the meeting
is given or made to shareholders, notice by the shareholder to be timely must
be so received not later than the close of business on the 10th day following
the day on which such notice of the date of the meeting or such public
disclosure was made. Such shareholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or reelection as
a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); and (b) as to the shareholder giving the notice ( i ) the
name and address, as they appear on the Corporation's books, of such
shareholder and (ii) the class and number of shares of the Corporation which
are beneficially owned by such shareholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a shareholder's notice of nomination which pertains
to the nominee. No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 2.10. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the Bylaws, and if he should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded. Notwithstanding the foregoing provisions of this Section
2.10, a shareholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section.
Section 2.11. Business. At any meeting of the shareholders, only such
business shall be conducted as shall have been brought before the meeting (a)
by or at the direction of the Board of Directors or (b) by any shareholder of
the Corporation who is a shareholder of record at the time of giving of the
notice provided for in this Section 2.11, who shall be entitled to vote at such
meeting and who complies with the notice procedures set forth in this section
2.11. For business to be properly brought before a shareholder meeting by a
shareholder, the shareholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a shareholder's notice must
be delivered to or mailed and received at the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior to the
meeting; provided, however, that in the event that less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be received no later
than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was
made. A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address,
as they appear on the Corporation's books, of the shareholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder and (d) any material interest of the
shareholder in such business. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at a shareholder meeting except in
accordance with the procedures set forth in this Section 2.11. The Chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance
with the provisions of the Bylaws, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted. Notwithstanding the foregoing provisions of
this Section 2.11, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder with respect to the matters set forth in this
Section.
ARTICLE III
Directors
Section 3.1. Number and Election. The property and business of the
Corporation shall be managed by its Board of Directors. The number of
directors which shall constitute the whole Board shall be not more than 20 and
not less than three. The Board of Directors shall from time to time by a vote
of a majority of the directors then in office fix within the maximum and
minimum the number of directors to constitute the Board. Except as provided in
Section 3.2 of these Bylaws, the directors shall be elected at the annual
meeting of shareholders, or at any adjournment thereof, and each director shall
be elected and shall hold office in the manner described in Section 3.12
hereof. Directors need not be shareholders of the Corporation.
Section 3.2. Resignations and Vacancies. Any director may resign at any time
by giving written notice to the Chairman or Secretary of the Corporation. Any
such resignation shall take effect at the date of the receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
If, at any time other than the annual meeting of shareholders, any vacancy
occurs in the Board of Directors caused by resignation, death, retirement,
disqualification or removal from office of any director or otherwise, or any
new directorship is created by an increase in the number of directors pursuant
to Section 3.1 of the Bylaws, a majority of the directors then in office,
though less than a quorum, may choose a successor, or fill the newly created
directorship, and the director so chosen shall hold office until the expiration
of the term of office of the class of directors to which such director is
appointed and until a successor shall be duly elected and qualified, unless
sooner displaced.
Section 3.3. Place of Meetings. Meetings of the Board of Directors may be
held at such place or places, within or without the State of Oklahoma, as may
be designated by the person or persons calling such meetings.
Section 3.4. Annual Meeting. A meeting of the Board of Directors, to be known
as the annual meeting, shall be held following and on the same day as the
meeting of shareholders at which such Board of Directors is elected. This
meeting shall be held for the purpose of electing the officers of the
Corporation and for transacting any other business that may properly come
before the meeting. No notice of this annual meeting other than these Bylaws
shall be necessary in order to legally constitute the meeting, provided a
quorum shall be present.
Section 3.5. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times as the Chairman or the Board of Directors may from
time to time determine.
Section 3.6. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman and shall be called by the Secretary at the request
of any two directors, to be held at such time and place, either within or
without the State of Oklahoma, as shall be designated by the call and specified
in the notice of such meeting; and notice thereof shall be given as provided in
Section 3.7 of these Bylaws.
Section 3.7. Notice. Except as otherwise prescribed by statute, written
notice of the time and place of each regular or special meeting of the Board of
Directors shall be given at least two days prior to the time of holding the
meeting. Any director may waive notice of any meeting. The attendance of a
director at any meeting shall constitute a waiver of notice of such meeting,
except where a director expressly objects to the transaction of any business
because the meeting is not lawfully called or convened and such objection is
made prior to the transaction of such business. Neither the business to be
transacted at, nor the purpose of, any special meeting of the Board of
Directors need be specified in any notice, or waiver of notice, of such special
meeting except that notice shall be given of any proposed amendment by these
Bylaws or with respect to any other matter where notice is required by statute.
(See also Article IV).
Section 3.8. Quorum. At each meeting of the Board of Directors, the presence
of not less than a majority of the whole board shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or the Corporation's Certificate of
Incorporation or these Bylaws. If a quorum shall not be present at any meeting
of directors, the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 3.9. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of two or more directors of the
Corporation, which, to the extent provided in the resolution, shall have and
may exercise the powers of the Board of Directors in the management of the
business or affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Such committee
or committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of any such committee,
who may replace any absent or disqualified member thereof. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required by the Board.
Section 3.10. Fees and Compensation of Directors. Directors may receive
stated salary for their services as such; or, by resolution of the Board of
Directors, a fixed fee, with or without expenses of attendance, may be allowed
for attendance at each regular or special meeting of the Board. Members of the
board shall be allowed their reasonable traveling expenses when actually
engaged in the business of the Corporation, to be audited and allowed as in
other cases of demands against the Corporation. Members of standing or special
committees may be allowed like fees and expenses for attending committee
meetings. Nothing herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor.
Section 3.11. Action Without a Meeting. Any action which might be taken at a
meeting of the Board of Directors may be taken without a meeting if a record or
memorandum thereof be made in writing and signed by all the members of the
board, and such writing is filed with the minutes of the proceedings of the
board.
Section 3.12. Classes of Directors, and Terms of Office. The Board of
Directors shall be divided into three classes as nearly as equal in number as
possible with the term of office of one class expiring each year. Directors
shall be chosen by a plurality of votes cast in an election for directors. The
class of directors elected at the annual meeting of shareholders shall be
elected for three-year terms. When the number of directors is changed, any
newly created directorship or any decrease in directorships shall be so
apportioned among the classes as to make all classes as nearly equal in number
as possible. When the number of directors is increased by the Board of
Directors, there shall be no classification of the additional directors until
the next annual meeting of shareholders. Subject to the foregoing, at each
annual meeting of shareholders, the successors to the class of directors whose
terms shall then expire shall be elected to hold office for a term expiring at
the third succeeding annual meeting.
ARTICLE IV
Notices
Section 4.1. Manner of Notice. Whenever under the provisions of the statutes
or the Corporation's Certificate of Incorporation or these Bylaws notice is
required to be given to any director, member of any committee designated by the
Board of Directors pursuant to authority conferred by Section 3.9 of these
Bylaws, or shareholder, it shall be given in writing by depositing it, in a
sealed envelope, in the mails, postage prepaid, addressed (or by delivering it
to a telegraph company, charges prepaid, for transmission) to such director,
member or shareholder either at the address of such director, member or
shareholder as it appears on the books of the Corporation or, in the case of
such a director or member, at his business address; and such notice shall be
deemed to be given at the time when it is thus deposited in the mails (or
delivered to the telegraph company).
Section 4.2. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or the Corporation's Certificate of
Incorporation or these Bylaws, a waiver thereof in writing signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Any shareholder or director who
attends any meeting, annual, regular or special, shall be conclusively presumed
to have waived notice thereof, except where such shareholder or director
expressly objects to the transaction of any business because the meeting is not
lawfully called or convened and such objection is made prior to the transaction
of such business.
ARTICLE V
Officers
Section 5.1. Officers and Official Positions. The Board of Directors may
elect a Chairman of the Board. The office of Chairman of the Board may be
named Chairman if so designated by the Board of Directors. The Board may elect
a President, one or more Vice Presidents, a Secretary, a Treasurer, a
Controller, such Assistant Secretaries, Assistant Treasurers, and Assistant
Controllers and such other officers as the Board of Directors shall determine.
Any two or more offices may be held by the same person. None of the officers
need be a director or a shareholder of the Corporation or a resident of the
State of Oklahoma.
Section 5.2. Election and Term of Office. The officers of the Corporation
shall be elected annually by the Board of Directors at the annual meeting of
the Board. If the election of officers shall not be held at such meeting of
the board, such election shall be held at a regular or special meeting of the
Board of Directors as soon thereafter as may be convenient. Each officer shall
hold office until a successor is chosen and qualified or until death, or until
such officer shall resign, or shall have been removed in the manner hereinafter
provided.
Section 5.3. Removal and Resignation. Any officer may be removed, either with
or without cause, by a majority of the directors at the time in office at any
regular or special meeting of the Board; but such removal shall be without
prejudice to the contract rights, if any, of such person so removed. Any
officer may resign at any time by giving written notice to the Chairman or
Secretary of the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
Section 5.4. Vacancies. A vacancy in any office because of death,
resignation, removal, or any other cause may be filled for the unexpired
portion of the term by the Board of Directors at any regular or special meeting
of the Board.
Section 5.5. Chief Executive Officer. If the Board of Directors has elected a
Chairman, it may designate the Chairman as the Chief Executive Officer of the
Corporation. If no Chairman has been elected, or in the Chairman's absence or
inability to act or if no such designation has been made by the Board of
Directors, the President or such other designee as the Board of Directors shall
determine shall act as the Chief Executive Officer of the Corporation. The
Chief Executive Officer shall ( i ) have the overall supervision of the
business of the Corporation and shall direct the affairs and policies of the
Corporation, subject to any directions which may be given by the Board of
Directors, (ii) shall have authority to delegate special powers and duties to
specified officers, so long as such designations shall not be inconsistent with
the statutes or the Corporation's Certificate of Incorporation or these Bylaws
or action of the Board of Directors and (iii) shall in general have all other
powers and shall perform all other duties incident to the chief executive
officer of a corporation and such other powers and duties as may be prescribed
by the Board of Directors from time to time.
The Chairman, if one has been elected, shall preside at all meetings of the
shareholders, and of the Board of Directors. The Chairman may sign with the
Secretary or an Assistant Secretary, certificates for shares of stock of the
Corporation, the issuance of which shall have been duly authorized by the Board
of Directors.
Section 5.6. President. (a) If the Board of Directors has elected a Chairman
and designated such officer as the Chief Executive Officer of the Corporation,
the President shall be subject to the control of the Board of Directors and the
Chairman, and shall have such powers and perform such duties as from time to
time may be assigned by the Board of Directors or the Chairman.
(b) If the Board of Directors has not elected a Chairman, or, if one has
been elected and has not been designated the Chief Executive Officer of the
Corporation, then the President or such other person as may be designated by
the Board of Directors shall be the Chief Executive Officer of the Corporation
with the powers and duties provided in Section 5.5 of these Bylaws.
(c) In any event, the President shall have power to execute, and shall
execute, deeds, mortgages, bonds, contracts or other instruments of the
corporation except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. The President may sign with the Secretary or an Assistant
Secretary, certificates for shares of stock of the Corporation, the issuance of
which shall have been duly authorized by the Board of Directors, and shall
vote, or give a proxy to any other person to vote, all shares of stock of any
other corporation standing in the name of the Corporation.
Section 5.7. Vice Presidents. In the absence of the President, or in the
event of his inability or refusal to act, the Vice President designated by the
Board of Directors or the Chief Executive Officer, shall perform all duties of
the President and, when so acting, shall have all the powers of, and be subject
to all the restrictions upon, the President. The Vice Presidents shall have
such other powers and perform such other duties, not inconsistent with the
statutes or the Corporation's Certificate of Incorporation or these Bylaws or
action of the Board of Directors, as from time to time may be prescribed for
them, respectively, by the Chief Executive Officer. The Board of Directors
may, from time to time, designate certain of the Vice Presidents as Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice
Presidents or such other designation as the Board of Directors deems
appropriate. The duties and areas of responsibility of the various Vice
Presidents shall be determined by the Chairman and the Board of Directors, to
the extent not inconsistent with applicable statutes or these Bylaws.
Section 5.8. Secretary. The Secretary shall: (a) keep the minutes of the
meetings of the shareholders, the Board of Directors and committees of
directors, in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these Bylaws or as
required by law; (c) have charge of the corporate records and of the seal of
the Corporation; (d) affix the seal of the Corporation or a facsimile thereof,
or cause it to be affixed, to all certificates for shares prior to the issuance
thereof and to all documents the execution of which on behalf of the
Corporation under its seal is duly authorized by the Board of Directors or
otherwise in accordance with the provisions of these Bylaws; (e) keep a
register of the post office address of each shareholder, director and committee
member, which shall from time to time be furnished to the Secretary by such
shareholder, director or member; (f) sign with the Chairman or President
certificates for shares of stock of the Corporation, the issuance of which
shall have been duly authorized by resolution of the Board of Directors; (g)
have general charge of the stock transfer books of the Corporation; and (h) in
general, perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned by the Chairman, the President or
by the Board of Directors. The Secretary may delegate such details of the
performance of duties of the office of Secretary as may be appropriate in the
exercise of reasonable care to one or more persons, but shall not thereby be
relieved of responsibility for the performance of such duties.
Section 5.9. Chief Financial Officer. The Chief Financial Officer shall be a
Vice President, elected and designated as Chief Financial Officer, who shall:
(a) be responsible to the Board of Directors for the receipt, custody and
disbursement of all funds and securities of the Corporation; (b) receive and
give receipts for moneys due and payable to the Corporation from any source
whatsoever and deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall from time to time be
selected in accordance with the provisions of Section 6.4 of these Bylaws; (c)
disburse the funds of the Corporation as ordered by the Board of Directors or
the Chief Executive Officer or as required in the ordinary conduct of the
business of the Corporation; (d) render to the Chief Executive Officer or the
Board of Directors, upon request, an account of all transactions as Chief
Financial Officer and on the financial condition of the Corporation; and (e) in
general, perform all the duties incident to the office of Chief Financial
Officer and such other duties as from time to time may be assigned by the
Chairman, the President, the Board of Directors or these Bylaws. In the event
there be no Chief Financial Officer, the Board of Directors may designate any
officer to perform the duties of the Chief Financial Officer.
Section 5.10. Treasurer. The Treasurer shall have such duties and
responsibilities as may, from time to time, be designated by the Board of
Directors, the Chairman and the Chief Financial Officer.
Section 5.11. Controller. The Controller shall be the chief accounting
officer of the Corporation, and shall be responsible to the Board of Directors
and the Chief Financial Officer for internal accounting and control of the
books and records of the Corporation. Such responsibility includes preparation
of all financial reports, tax returns and such other duties as may be assigned
by the Board of Directors or the Chief Financial Officer.
ARTICLE VI
Contracts, Borrowings, Checks and Deposits
Section 6.1. Contracts and Other Instruments. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
Section 6.2. Borrowings. No borrowings shall be contracted on behalf of the
corporation, or any division thereof, and no evidence of indebtedness shall be
issued in the name of the Corporation, unless authorized by a resolution of the
Board of Directors. Such authority may be general or confined to specific
instances.
Section 6.3. Checks, Drafts, etc. All checks, demands, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the Corporation, shall be signed by such officer or officers, agent
or agents of the Corporation, and in such manner, as shall from time to time be
determined by the Board of Directors.
Section 6.4. Deposits. All funds of the Corporation, not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Chief Financial Officer or
Treasurer may select.
Section 6.5. Investments. The Board of Directors may authorize any officer or
officers, agent or agents of the Corporation, to invest the funds of the
Corporation in obligations of the Federal government or any agency thereof or
of any state government or any agency thereof, commercial paper, real estate,
equity securities or debt obligations of any other corporation and such other
investments as the Board of Directors may approve, and such authority may be
general or confined to specific instances.
ARTICLE VII
Certificates of Stock and Their Transfer
Section 7.1. Certificates of Stock. The certificates of stock of the
Corporation shall be in such form as may be determined by the Board of
Directors, shall be numbered and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the name of the
Corporation, the state of incorporation, the name of the registered holder, the
number of shares and the par value thereof and shall be signed by the Chairman
or President and by the Secretary or an Assistant Secretary. The signature of
any such officer may be facsimile. In case any such officer who shall have
signed or whose facsimile signature has thus been used on any such certificate
shall cease to be such officer, whether because of death, resignation or
otherwise, before such certificate has been delivered by the Corporation, such
certificate may nevertheless be delivered by the Corporation, as though the
person whose facsimile signature has been used thereon had not ceased to be
such officer. All certificates properly surrendered to the Corporation for
transfer shall be cancelled and no new certificate shall be issued to evidence
transferred shares until the former certificate for at least a like number of
shares shall have been surrendered and cancelled and the Corporation reimbursed
for any applicable taxes on the transfer, except that in the case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms, and with such indemnity (if any) to the Corporation, as the Board of
Directors may prescribe specifically or in general terms or by delegation to a
transfer agent for the Corporation. (See Section 7.2.)
Section 7.2. Lost or Destroyed Certificates. The Board of Directors in
individual cases, or by general resolution or by delegation to a transfer
agent, may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 7.3. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and upon payment of applicable taxes with respect to such transfer,
it shall be the duty of the Corporation, subject to such rules and regulations
as the Board of Directors may from time to time deem advisable concerning the
transfer and registration of certificates for shares of stock of the
Corporation, to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Transfers of
shares shall be made only on the books of the Corporation on behalf of the
registered holder thereof or by his attorney or successor duly authorized as
evidenced by documents filed with the Secretary or transfer agent of the
Corporation.
Section 7.4. Stockholders of Record. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares notwithstanding any express
or other notice thereof, except as otherwise provided by the laws of Oklahoma.
ARTICLE VIII
General Provisions
Section 8.1. Fiscal Year. The fiscal year of the Corporation shall be the 52
or 53 week period ending on the last Saturday in December in each year and
beginning on the following Sunday.
Section 8.2. Seal. The corporate seal shall have inscribed thereon the name
of the Corporation, and the words "Corporate Seal" and "Oklahoma" or an
abbreviation thereof; and it shall otherwise be in the form approved by the
Board of Directors. Such seal may be used by causing it, or a facsimile
thereof, to be impressed or affixed or otherwise reproduced.
Section 8.3. Indemnification. (a) The Corporation shall indemnify any
director or officer of the Corporation who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that
such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture or other enterprise against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the director or officer acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interest of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent shall not of itself create a
presumption that the person did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interest of the
Corporation and with respect to any criminal action or proceeding have
reasonable cause to believe that such conduct was unlawful.
(b) The Corporation shall indemnify any director or officer of the
Corporation who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorney's fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit if the
director or officer acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interest of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in performance of duty to the Corporation unless and only to the
extent that the court in which such action or suit was brought shall determine,
upon application, that despite the adjudication of liability, but in the view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
(c) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Corporation as authorized herein.
(d) The Corporation may purchase (upon resolution duly adopted by the Board
of Directors) and maintain insurance on behalf of any person who is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred in any such capacity, or arising out of the status as
such, whether or not the Corporation would have the power to indemnify the
director or officer against such liability.
(e) To the extent that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to herein or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith.
(f) Every director or officer shall be entitled, without demand upon the
Corporation or any action by the Corporation, to enforce such person's right to
such indemnity in an action at law against the Corporation. The right of
indemnification hereinabove provided shall not be deemed exclusive of any
rights to which any such person may now or hereafter be otherwise entitled and
specifically, without limiting the generality of the foregoing, shall not be
deemed exclusive of any rights pursuant to statute or otherwise, of any such
person in any such action, suit or proceeding to have assessed or allowed
against the Corporation or otherwise, costs and expenses incurred therein or in
connection therewith or any part thereof.
(g) Any indemnification hereinabove provided, unless ordered by a court,
shall be made by the Corporation only as authorized in a specific case because
the Corporation has determined that the indemnitee has met the requisite
standards of conduct as set forth in sub-sections (a) and (b) above. Such
determination is to be made by the Board of Directors by majority vote of a
quorum consisting of directors who are not parties to such action, suit or
proceeding; or if such a quorum is not obtainable, or even if obtainable should
a quorum of disinterested directors so direct, by independent legal counsel in
a written opinion; or by the shareholders.
ARTICLE IX
Amendments
Section 9.1. In General. Any provision of these Bylaws may be altered,
amended or repealed from time to time by the affirmative vote of a majority of
the stock having voting power present in person or by proxy at any annual or
special meeting of shareholders at which a quorum is present, if notice of the
proposed alteration, amendment or repeal is contained in the notice of such
meeting, or by the affirmative vote of a majority of the directors then
qualified and acting at any meeting of the Board at which a quorum is present,
if notice of the proposed alteration, amendment or repeal has been given to
each director.
ARTICLE X
Shareholders' Rights Plan<F1>
Section 10.1 Minimum Requirements. The Corporation shall not adopt or maintain
a poison pill, shareholder rights plan, rights agreement or any other form of
"poison pill" which is designed to or has the effect of making acquisition of
large holdings of the Corporations's shares of stock more difficult or
expensive (such as the 1986 "Rights Agreement"), unless such a plan is first
approved by A MAJORITY shareholder vote. The company shall redeem any such
rights now in effect. The affirmative vote of a majority of shares voted shall
suffice to approve such a plan.
Section 10.2 Effective Immediately. The article shall be effective immediately
and automatically as of the date it is approved by the affirmative vote of the
holders of a majority of the shares, present in person or by proxy at a regular
or special meeting of the shareholders.
Section 10.3 Amendment. Notwithstanding any other provision of these bylaws,
this Article may not be amended, altered, deleted or modified in any way by the
Board of Directors without prior shareholder approval.
- ----------------------
<F1> Article X, adopted by stockholders on April 30, 1997, is subject to repeal
if the Corporation's appeal to the United States Court of Appeals for the Tenth
Circuit in the case of Fleming Companies, Appellant, v. International
Brotherhood of Teamsters, Appellee, is successful.
FLEMING ANNOUNCES $1.35 BILLION RECAPITALIZATION PROGRAM
Oklahoma City, June 16, 1997 -- Fleming Companies, Inc. (FLM) announced
today that its Board of Directors approved a $1.35 billion recapitalization
program for the company. This comprehensive program consists of an $850
million Senior Secured Credit Facility, with bank credit commitments of up
to 7 years, and $500 million of privately placed Senior Subordinated Notes,
with maturities of up to 10 years. Proceeds from the recapitalization
program will be used to repay all outstanding bank debt and retire the
company's floating rate Senior Notes due 2001.
Chairman and CEO Robert Stauth said, "Gaining a new, longer-term bank
credit facility is a key objective of our recapitalization program. This
strengthened capital structure will provide Fleming with increased
flexibility to pursue new business investments and redeploy assets."
The $850 million Senior Secured Credit Facility is comprised of a $600
million revolving credit facility which matures in 6 years, and a $250
million amortizing term loan which has a final maturity of 7 years. The
new bank credit facility will be led by The Chase Manhattan Bank as
administrative agent. Bank of America NT&SA has been named syndication
agent and Societe Generale has been named documentation agent. The new
bank credit facility will replace the company's credit agreement which was
implemented in July 1994 to finance the Scrivner acquisition.
- -more-
Fleming Announces Recapitalization, pg. 2
The Senior Subordinated Notes will be junior to the company's outstanding
secured and unsecured long-term debt. The Senior Subordinated Notes are
expected to be issued in two tranches; the longest maturity may be up to 10
years. The Senior Subordinated Notes have not been and will not be
registered under the Securities Act of 1933, nor under any state's
securities act, and may not be offered or sold in the United States absent
registration or an applicable exemption from registration requirements.
This press release shall not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of, the Senior
Subordinated Notes referred to herein in any jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
Executive Vice President and CFO Harry Winn said, "This recapitalization
program will improve Fleming's capital structure and enable us to achieve a
number of other important benefits for the company and our shareholders.
The recapitalization program will diversify Fleming's capital structure,
reduce our bank debt and Senior Notes due 2001, reduce our annual scheduled
debt maturities, and extend the average life of our debt portfolio."
Winn added, "We believe that current market conditions are favorable for
Fleming to pursue this recapitalization."
The recapitalization program is expected to result in an extraordinary
charge of approximately $13 million, or an impact of $0.35 on earnings per
share on an after-tax basis, in the company's second quarter ending July
12, 1997. Most of the charge represents a non-cash write-off of unamortized
financing costs related to the debt to be repaid.
As one of the nation's leading food marketing and distribution companies,
Fleming serves more than 3,100 supermarkets, including approximately 270
company-owned stores, in 42 states.
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