-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Vt9mRgjmRtjCiLZWT/C03t655yiNP0xjevvQvC6w6f78P0yIoxUEx3AvFTZVvNie 7M+wvhiAZrJ/Sq2uFMALiA== 0000909334-97-000146.txt : 19970603 0000909334-97-000146.hdr.sgml : 19970603 ACCESSION NUMBER: 0000909334-97-000146 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970530 EFFECTIVENESS DATE: 19970530 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FLEMING COMPANIES INC /OK/ CENTRAL INDEX KEY: 0000352949 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 480222760 STATE OF INCORPORATION: OK FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28219 FILM NUMBER: 97617535 BUSINESS ADDRESS: STREET 1: 6301 WATERFORD BLVD STREET 2: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73126 BUSINESS PHONE: 4058407200 S-8 1 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. ASSOCIATE STOCK PURCHASE PLAN (Full title of the plan) Copies to: David R. Almond Lenore T. Graham, Esq. Senior Vice President, General McAfee & Taft Counsel and Secretary A Professional Corporation Fleming Companies, Inc. Tenth Floor 6301 Waterford Boulevard Two Leadership Square P. O. Box 26647 Oklahoma City, Oklahoma 73102 Oklahoma City, Oklahoma 73126-0647 (405) 235-9621 (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 price tion fee - ------------------------------------------------------------------ Common Stock, 1,800,000 $15.99 $28,783,125 $9,499 $2.50 par value - ------------------------------------------------------------------ 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 27, 1997. In accordance with the calculation of the offering price under the Associate Stock Purchase Plan (the "Plan") the average price for the Common Stock is multiplied by a factor of .85 to arrive at the maximum offering price. The number of shares of Common Stock stated above is the aggregate number of such shares which may be issued under 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 31, 1996 filed with the Commission on March 21, 1997. (b) The Company's quarterly report on Form 10-Q for the quarter ended April 19, 1997, filed with the Commission on May 23, 1997. (c) The Registrant's current reports on Form 8-K dated February 28, 1997 and March 21, 1997, respectively, filed with the Commission on March 7, 1997 and March 26, 1997, respectively. (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 circum-stances. Article Thirteenth of the registrant's 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 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 Certificate of Incorporation (incorporated by reference to Exhibit 4.1 to Registration Statement No. 333-11317 on Form S-8). 4.2 Bylaws (incorporated by reference to Exhibit 4.2 to Registration Statement No. 333-11317 on Form S-8). 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of McAfee & Taft A Professional Corporation. 99 Fleming Companies, Inc. Associate Stock Purchase Plan effective as of July 1, 1997 (incorporated by reference to Exhibit A to registrant's Proxy Statement for year ended December 30, 1996). 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 high or low 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 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 purposes 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. SIGNATURES THE REGISTRANT. 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-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 May 30, 1997. FLEMING COMPANIES, INC. By ROBERT E. STAUTH Robert E. Stauth, 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 indicated on May 30, 1997. ROBERT E. STAUTH Robert E. Stauth Chairman, Chief Executive Officer and Director HARRY L. WINN, JR. Harry L. Winn, Jr. Executive Vice President and Chief Financial Officer KEVIN J. TWOMEY Kevin J. Twomey Vice President and Controller ARCHIE R. DYKES Archie R. Dykes Director CAROL B. HALLETT Carol B. Hallett Director LAURENCE M. JONES Laurence M. Jones Director EDWARD C. JOULLIAN III Edward C. Joullian III Director HOWARD H. LEACH Howard H. Leach Director JOHN A. MCMILLIAN John A. McMillian Director GUY A. OSBORN Guy A. Osborn Director JACK W. BAKER Jack W. Baker Director INDEX TO EXHIBITS
Exhibit No. 23.1 Consent of Deloitte & Touche LLP Filed herewith electronically 23.2 Consent of McAfee & Taft A Professional Filed herewith Corporation electronically
EX-23.1 2 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 March 4, 1997 appearing in the Annual Report on Form 10-K of Fleming Companies, Inc. and subsidiaries for the year ended December 28, 1996. DELOITTE & TOUCHE LLP Deloitte & Touche LLP Oklahoma City, Oklahoma May 30, 1997 EX-23.2 3 CONSENT OF MCAFEE & TAFT A PROFESSIONAL CORPORATION May 30, 1997 We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 to the opinions expressed in and the reference to our firm as legal counsel appearing in the Annual Report on Form 10-K of Fleming Companies, Inc. and subsidiaries for the year ended December 28, 1996. McAFEE & TAFT A PROFESSIONAL CORPORATION McAfee & Taft A Professional Corporation -----END PRIVACY-ENHANCED MESSAGE-----