As filed with the Securities and Registration No. _____
Exchange Commission on June 11, 1999
FORM S-8
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 (I.R.S. Employer
of incorporation or organization) Identification No.)
6301 Waterford Boulevard
P. O. Box 26647
Oklahoma City, Oklahoma 73126-0647
(Address of Principal Executive Office) (Zip Code)
FLEMING COMPANIES, INC.
1999 STOCK INCENTIVE PLAN
(Full title of the plan)
David R. Almond
Senior Vice President, General
Counsel and Secretary
Fleming Companies, Inc.
6301 Waterford Boulevard
P. O. Box 26647
Oklahoma City, Oklahoma 73126-0647
(Name and address of agent
for service)
405/840-7200
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
- ------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registra-
registered registered per unit(1) price(1) tion fee
- ------------------------------------------------------------------
Common Stock, 2,700,000 (3) $11.1563 $30,122,010 $8,373.92
$2.50 par value
- ------------------------------------------------------------------
(1) Estimated pursuant to Rules 457(c) and (h) of the Securities
Act of 1933, as amended, solely for the purpose of
calculating the registration fee and based upon the average
of the high and low prices of Fleming Companies, Inc. Common
Stock as reported by the New York Stock Exchange on June 7,
1999.
(2) The number of shares of Common Stock stated above is the
aggregate number of such shares which may be issued on the
exercise of options or the award of restricted stock under
the Fleming Companies, Inc. 1999 Stock Incentive Plan (the
"Plan") registered under this Registration Statement. The
maximum number of shares which may be issued under the Plan
cannot presently be determined since adjustments in the
number of shares may be made in the event of stock splits,
stock dividends, or other changes in the corporate structure
or shares as specified in the Plan. Accordingly, this
Registration Statement covers, in addition to the number of
shares of Common Stock stated above, an indeterminate number
of shares, which by reason of any of such event may become
subject to issuance under the Plan.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant incorporates herein by reference the
following documents filed with the Securities and Exchange
Commission (the "Commission"):
(a) The registrant's Annual Report on Form 10-K for the
fiscal year ended December 26, 1998.
(b) The registrant's Quarterly Report on Form 10-Q for
the period ended April 17, 1999.
(c) The registrant's current reports on Form 8-K dated
April 16, 1999 and April 23, 1999.
(d) The description of Common Stock contained in the
registrant's Registration Statement on Form 8-A, as amended, filed
under the Exchange Act (File No. 1-8140).
All reports hereafter filed by the registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all of the shares of the registrant's Common
Stock covered by this registration statement have been sold or
which de-registers all such shares then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 1031 of the Oklahoma General Corporation Act,
under which act the registrant is incorporated, authorizes the
indemnification of officers and directors in certain
circumstances. Article Thirteenth of the registrant's Restated
Certificate of Incorporation, as well as Article 8 of the
registrant's Bylaws, provide indemnification of directors,
officers and agents to the extent permitted by the Oklahoma General
Corporation Act. These provisions may be sufficiently broad to
indemnify such persons for liabilities under the Securities Act of
1933. In addition, Article Thirteenth of the registrant's
Restated Certificate of Incorporation permits the exculpation of a
director for monetary damages for breach of fiduciary duty as a
director. In addition, the registrant maintains insurance
policies which insure its officers and directors against certain
liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the registrant's Quarterly
Report on Form 10-Q for quarter ended April 17, 1999).
4.2 Bylaws (incorporated by reference to Exhibit 3.2 to the
registrant's Quarterly Report on to Form 10-Q for
quarter ended April 17, 1999).
5 Opinion of McAfee & Taft A Professional Corporation.
15 Letter from Independent Accountants As to Unaudited
Interim Financial Information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of McAfee & Taft A Professional Corporation (See
Exhibit 5 hereto).
24 Power of Attorney.
99.1 Fleming Companies, Inc. 1999 Stock Incentive Plan dated
November 30, 1998 (incorporated by reference to Exhibit
A to the registrant's Proxy Statement dated April 2,
1999).
99.2 Form of Nonqualified Stock Option Agreement under
Fleming Companies, Inc. 1999 Stock Incentive Plan
(incorporated by reference to Exhibit 10.39 to the
registrant's Annual Report on Form 10-K for the fiscal
year ended December 26, 1998).
Item 9. 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, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the registration statement is on Form S-3 and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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.
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, therefor, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
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 the requirements for filing on Form S-8
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 11th day of June,
1999.
FLEMING COMPANIES, INC.
(Registrant)
By MARK S. HANSEN
Mark S. Hansen
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
MARK S. HANSEN Chairman, Chief )
Mark S. Hansen Executive Officer and )
Director )
)
)
JOHN T. STANDLEY Executive Vice President )
John T. Standley and Chief Financial )
Officer )
)
)
KEVIN J. TWOMEY Senior Vice President )
Kevin J. Twomey and Controller (Principal)
Accounting Officer )
) June 11, 1999
ARCHIE R. DYKES Director )
Archie R. Dykes )
)
CAROL B. HALLETT Director )
Carol B. Hallett )
)
HERBERT M. BAUM Director )
Herbert M. Baum )
)
EDWARD C. JOULLIAN III Director )
Edward C. Joullian III )
)
JACK W. BAKER Director )
Jack W. Baker )
)
ALICE M. PETERSON Director )
Alice M. Peterson )
)
GUY A. OSBORN Director )
Guy A. Osborn )
)
DAVID A. RISMILLER Director )
David A. Rismiller )
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Method of Filing
- ------- ----------------
4.1 Restated Certificate of Incorporation Incorporated herein by
reference
4.2 Bylaws Incorporated herein by
reference
5 Opinion of McAfee & Taft A Professional Filed herewith electronically
Corporation
15 Letter from Independent Accountants As Filed herewith electronically
to Unaudited Interim Financial
Information
23.1 Consent of Deloitte & Touche LLP Filed herewith electronically
23.2 Consent of McAfee & Taft A Professional Filed herewith electronically
Corporation (See Exhibit 5 hereto)
24 Power of Attorney Filed herewith electronically
99.1 Fleming Companies, Inc. 1999 Stock Incorporated herein by
Incentive Plan dated November 30, 1998 reference
99.2 Form of Nonqualified Stock Option Incorporated herein by
Agreement for Fleming Companies, reference
Inc. 1999 Stock Incentive Plan
Exhibit 5
Law Offices
McAfee & Taft
A Professional Corporation
Tenth Floor, Two Leadership Square
211 North Robinson
Oklahoma City, Oklahoma 73102-7101
(405) 235-9621
Fax (405) 235-0439
June 11, 1999
Fleming Companies, Inc.
6301 Waterford Boulevard
Post Office Box 26647
Oklahoma City, Oklahoma 73126
Gentlemen:
Reference is made to your Registration Statement on
Form S-8 to be filed with the Securities and Exchange Commission
today with respect to 2,700,000 shares of common stock, $2.50 par
value per share (the "Common Stock") to be issued pursuant to the
Fleming Companies, Inc. 1999 Stock Incentive Plan (the "Plan").
We have examined your corporate records and made such
other investigations as we deemed appropriate for the purpose of
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Oklahoma.
2. The issuance of the Common Stock has been duly
authorized by appropriate corporate action on behalf of the Company.
3. When issued pursuant to the Plan, the Common Stock
will be validly issued, and will be fully paid and non-assessable.
We hereby consent to the inclusion of this opinion as
an exhibit to the above mentioned Registration Statement.
Very truly yours,
MCAFEE & TAFT A PROFESSIONAL CORPORATION
McAfee & Taft A Professional Corporation
Exhibit 15
Fleming Companies, Inc.
6301 Waterford Boulevard
P.O. Box 26647
Oklahoma City, Oklahoma 73126
We have made a review, in accordance with standards established
by the American Institute of Certified Public Accountants, of the
unaudited interim financial information of Fleming Companies,
Inc. and subsidiaries for the sixteen weeks ended April 17, 1999
and April 18, 1998, as indicated in our report dated May 5, 1999;
because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our report referred to above, which was
included in your Quarterly Report on Form 10-Q for the sixteen
weeks ended April 17, 1999, is being used in this Registration
Statement.
We also are aware that the aforementioned report, pursuant to
Rule 436(c) under the Securities Act of 1933, is not considered a
part of the Registration Statement prepared or certified by an
accountant or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Oklahoma City, Oklahoma
June 11, 1999
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Fleming Companies, Inc. on Form S-8 of our report
dated February 18, 1999 appearing in the Annual Report on Form
10-K of Fleming Companies, Inc. and subsidiaries for the year
ended December 26, 1998.
DELOITTE & TOUCHE LLP
Oklahoma City, Oklahoma
June 11, 1999
Exhibit 24
POWER OF ATTORNEY
We, the undersigned officers and directors of Fleming
Companies, Inc. (hereinafter the "Company"), hereby severally
constitute Mark S. Hansen and David R. Almond, and each of them,
severally, our true and lawful attorneys-in-fact 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, a Registration
Statement (and any and all amendments thereto, including post-
effective amendments) on Form S-8 to be filed with the Securities
and Exchange Commission for the purpose of registering under the
Securities Act of 1993 up to 2,700,000 shares of common stock of
the Company to be issued pursuant to the Fleming Companies, Inc.
1999 Stock Incentive Plan, 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 any of
them, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
MARK. S. HANSEN Chairman, Chief )
Mark S. Hansen Executive Officer and )
Director )
)
JOHN T. STANDLEY Executive Vice President )
John T. Standley and Chief Financial )
Officer )
)
KEVIN J. TWOMEY Senior Vice President )
Kevin J. Twomey and Controller (Principal )
Accounting Officer )
)
ARCHIE R. DYKES Director ) June 11, 1999
Archie R. Dykes )
)
CAROL B. HALLETT Director )
Carol B. Hallett )
)
HERBERT M. BAUM Director )
Herbert M. Baum )
)
EDWARD C. JOULLIAN III Director )
Edward C. Joullian III )
)
JACK W. BAKER Director )
Jack W. Baker )
)
ALICE M. PETERSON Director )
Alice M. Peterson )
)
GUY A. OSBORN Director )
Guy A. Osborn )
)
DAVID A. RISMILLER Director )
David A. Rismiller )
