As filed with the Securities and Registration No. _____
Exchange Commission on October 20, 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 Identification No.)
of incorporation or organization)
6301 Waterford Boulevard
P. O. Box 26647
Oklahoma City, Oklahoma 73126-0647
(Address of Principal Executive Office)
FLEMING COMPANIES, INC.
CONSOLIDATED SAVINGS PLUS AND STOCK OWNERSHIP 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
(405) 840-7200
(Name, address and telephone number of agent for service)
<TABLE>
Calculation of Registration Fee
- --------------------------------------------------------------------------------
<CAPTION>
Title of Proposed
Securities Proposed maximum Amount of
to be Amount to be maximum offering aggregate registration
registered<F1> registered<F1> price per unit<F2> offering price<F2> fee<F2>
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($2.50 par
value) 300,000 shares $9.375 $2,812,500 $781.88
- ------------------
FN
<F1>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Fleming Companies, Inc. Consolidated Savings
Plus and Stock Ownership Plan.
<F2>
Estimated solely for the purpose of calculating the amount of the registration
fee in accordance with Rule 457(c) and (h), based upon the average of the high
and low prices of Fleming Companies, Inc. common stock as reported on the New
York Stock Exchange on October 15, 1999.
</FN>
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information. (1)
Item 2. Registrant Information and Employee Annual Information. (1)
(1) Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration
statement in accordance with the Note to Part I of Form S-8
and has been or will be sent or given to participants in
the Plan as specified in Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K for the fiscal year
ended December 26, 1998.
(b) The registrant's Quarterly Reports on Form 10-Q for the periods
ended April 17, 1999 and July 10, 1999.
(c) The registrant's current reports on Form 8-K dated April 16, 1999
and April 23, 1999 and October 1, 1999.
(d) The description of the registrant's Common Stock contained in the
registrant's Registration Statement on Form 8-A, as amended (File No. 1-8140),
filed pursuant to Section 12 of the Exchange Act of 1934 (the "Exchange Act").
In addition, all documents filed by the registrant or the Consolidated
Savings Plus and Stock Ownership Plan pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing
of a post-effective amendment which indicates that all of the securities
offered hereby have been sold or which de-registers all such securities
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.
Not applicable.
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 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 registrant's
Quarterly Report on to Form 10-Q for quarter ended April 17,
1999).
5.1 Determination Letter from the Internal Revenue Service with
respect to qualification of the Consolidated Savings Plus and
Stock Ownership Plan under Section 401(k) of the Internal
Revenue Code.
23.1 Consent of Deloitte & Touche LLP
24.1 Power of Attorney
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 20th
day of October, 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C> <C>
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 ) October 20, 1999
Accounting Officer) )
)
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 ) October 20, 1999
Alice M. Peterson )
)
GUY A. OSBORN Director )
Guy A. Osborn )
)
DAVID A. RISMILLER Director )
David A. Rismiller )
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have caused this
registration statement to be signed on its behalf, thereunto duly authorized
in the City of Oklahoma City, State of Oklahoma, on October 20, 1999.
FLEMING COMPANIES, INC.
CONSOLIDATED SAVINGS PLUS AND
STOCK OWNERSHIP PLAN
By DAVID R. ALMOND
David R. Almond, member of Fleming
Companies, Inc. Retirement Committee,
the Plan Administrator
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description Method of Filing
- ------- ----------- ----------------
<S> <C> <C>
4.1 Restated Certificate of Incorporation Incorporated herein by reference
4.2 Bylaws Incorporated herein by reference
5.1 Determination Letter from the Filed herewith electronically
Internal Revenue Service with respect
to qualification of the Consolidated
Savings Plus and Stock Ownership Plan
under Section 401(k) of the Internal
Revenue Code.
23.1 Consent of Deloitte & Touche LLP Filed herewith electronically
24.1 Power of Attorney Filed herewith electronically
</TABLE>
Exhibit 5.1
INTERAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS, TX 75241
Employer Identification Number:
Date: Dec. 11, 1995 48-0222760
File Folder Number:
FLEMING COMPANIES INC 730000154
C/O JAMES DUDLEY HYDE ESQ. Person to Contact:
MCAFEE & TAFT A PROF. CORP. JILL RUTHERFORD
10TH FL TWO LEADERSHIP SQUARE Contact Telephone Number:
OKLAHOMA CITY, OK 73102 (214)767-6023
Plan Name:
CONSOLIDATED SAVINGS PLUS &
STOCK OWNERSHIP PLAN & ITS
SUBSIDIARIES
Plan Number: 005
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated October 4, 1995. The proposed amendments
should be adopted on or before the date prescribed by the regulations under
Code section 401(b).
This determination letter is applicable for the amendment(s) adopted on
December 14, 1994.
This plan satisfies the requirements of Code section 4975(e)(7).
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in
this letter.
Letter 835 (DO/CG)
<PAGE>
-2-
FLEMING COMPANIES INC
This plan satisfies the nondiscriminatory current availability requirements
of section 1.401(a)(4)-4(b) of the regulations with respect to those
benefits, rights, and features that are currently available to all employees in
the plan's coverage group. For this purpose, the plan's coverage group consists
of those employees treated as currently benefiting for purposes of demonstrating
that the plan satisfies the minimum coverage requirements of section 410(b) of
the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
BOBBY E. SCOTT
Bobby E. Scott
District Director
Enclosures:
Publication 794
Addendum
Letter 835 (DO/CG)
<PAGE>
-3-
FLEMING COMPANIES INC
This letter of determination also applies to the members of the controlled
group who have adopted the plan as detailed in your application.
Based on the information provided in your letter dated December 28, 1994,
and the language contained in section 10.2 of the plan, we have determined
that the distributions to the separated participants previously employed
by the "Royal Food Distributors New Jersey Division" meet the exception under
section 401(k)(10)(A)(ii) of the Internal Revenue Code (relating to the sale
of assets by a corporation of substantially all the assets involved in a
trade or business. This is not a ruling under the "same desk rule" under
section 402 of the Code, and Rev. Ruling 80-129.
Letter 835 (DO/CG)
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
October 19, 1999
Exhibit 24.1
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 relating to the Fleming Companies, Inc. Consolidated Savings Plus
and Stock Ownership 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C> <C>
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 ) October 20, 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 ) October 20, 1999
Alice M. Peterson )
)
GUY A. OSBORN Director )
Guy A. Osborn )
)
DAVID A. RISMILLER Director )
David A. Rismiller )
</TABLE>
