-----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, AQWwZ3f3jBM7Sv/tove9sv02Orcof83Vnk4Mpy5M3/l1sGE4KJ5/Nqppx4KqZDU7 1szlL1OiBiDrgHuYjxWISQ== 0000909334-96-000030.txt : 19960401 0000909334-96-000030.hdr.sgml : 19960401 ACCESSION NUMBER: 0000909334-96-000030 CONFORMED SUBMISSION TYPE: NT 10-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 19951230 FILED AS OF DATE: 19960329 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FLEMING COMPANIES INC /OK/ CENTRAL INDEX KEY: 0000352949 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 480222760 STATE OF INCORPORATION: OK FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: NT 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08140 FILM NUMBER: 96541397 BUSINESS ADDRESS: STREET 1: 6301 WATERFORD BLVD STREET 2: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73126 BUSINESS PHONE: 4058407200 NT 10-K 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 12b-25 SEC File Number 1-8140 NOTIFICATION OF LATE FILING (Check one): X Form 10-K Form 20-F Form 11-K Form 10-Q Form N-SAR If the notification relates to a portion of the filing checked above, identify the Item(s) to which the notification relates: Part I. Item 3. Legal Proceedings; Part II. Item 6. Selected Financial Data; Part II. Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations; Part II. Item 8. Financial Statements and Supplementary Data; and Part IV. Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K (with respect to the financial statements, independent auditors' opinion, unaudited quarterly financial information, financial statement schedule and exhibit number 23 - consent of independent auditors). PART I - REGISTRANT INFORMATION FLEMING COMPANIES, INC. (Exact name of registrant as specified in its charter) 6301 Waterford Boulevard, Box 26647 Oklahoma City, Oklahoma 73126 (Address of principal executive office) PART II - RULES 12b-25(b) AND (c) If the subject report could not be filed without unreasonable effort or expense and the registrant seeks relief pursuant to Rule 12b-25(b), the following should be completed. (Check box if appropriate) X (a) The reasons described in reasonable detail in Part III of this form could not be eliminated without unreasonable effort or expense. (b) The subject annual report will be filed on or before the fifteenth calendar day following the prescribed due date; and (c) The accountant's statement or other exhibit required by Rule 12b- 25(c) has been attached if applicable. PART III - NARRATIVE State below in reasonable detail the reasons why the Form 10-K could not be filed within the prescribed time period. On March 15, 1996, a jury in the 18th Judicial District, Johnson County, Texas returned a verdict against the registrant and a former executive in favor of a former customer in the amount of $207.5 million plus 10% interest per annum and other verdicts. Registrant strongly believes the award was unjust and without foundation or legal support and intends to appeal through the Texas court system seeking full and complete reversal. A motion for judgment is set for hearing on April 2, 1996. Once a judgment has been signed the registrant may commence its appeal efforts. In order to appeal the judgment, registrant must post a supersedeas appeals bond in an amount to be determined by the trial judge which will not occur prior to April 2, 1996 and which the registrant believes could be up to the full amount of the judgment plus interest. To obtain collateral for the bond and additional credit, registrant's credit facility with its senior lending institutions must be amended which registrant contemplates will occur on or before April 12, 1996. The disclosures affected by the material matters include: Part I. Item 3. Legal Proceedings; Part II. Item 6. Selected Financial Data; Part II. Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations; Part II. Item 8. Financial Statements and Supplementary Data; and Part IV. Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K (with respect to the financial statements, independent auditors' report, unaudited quarterly financial information and Exhibit number 23 - consent of independent auditors). The aforementioned matters will be known by April 15, 1996, within the 15-day extension afforded by Form 12b-25 and registrant expects to complete its filing on or before that date. Registrant believes that by filing Form 10-K once the above material matters are known, the information contained therein will be more meaningful and not misleading to investors. As described in Exhibit 99, Deloitte & Touche LLP, the company's independent auditors, are not able to provide their opinion to the consolidated financial statements until the material matters are known. Registrant respectfully requests extension of the time prescribed to file the portions of its 1995 annual report on Form 10-K detailed above, pursuant to Form 12b-25. PART IV - OTHER INFORMATION (1) Name and telephone number of person to contact in regard to this notification Kevin J. Twomey (405) 841-8310 Vice President - Controller (Area code) (Telephone Number) (Name) (2) Have all other periodic reports required under Section 13 or 15(d) or the Securities Exchange Act of 1934 been filed? If answer is no, identify report(s). X Yes No (3) Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof? X Yes No If so, attach an explanation of the anticipated change, both narratively and quantitatively, and, if appropriate, state the reasons why a reasonable estimate of the results cannot be made. See below explanation. Explanation of change in results of operations in 1995 from 1994: In 1994, the company embarked upon a plan to restructure its organizational alignment, reengineer its operations and consolidate its distribution facilities. The company's objective is to lower net acquisition cost of product to retail customers while providing the company with a fair and adequate return for its products and services. To achieve this objective, management has made major organizational changes, implemented the Fleming Flexible Marketing Plan ("FFMP") in approximately 40% of its food distribution sales base, or 17 of its 35 operating units, and increased its investment in technology. The actions contemplated by the reengineering plan will affect the company's food and general merchandise wholesaling operations as well as certain retail operations. Although a significant number of reengineering initiatives have been completed, more are planned. The timing of the remaining initiatives has been lengthened while the company refocuses on financial performance and refines FFMP in response to customers and vendors. Accordingly, completion dates are not known. Beginning in the third quarter of 1994, results were materially affected by the acquisition of Scrivner. Sales have increased dramatically and gross margin and selling and administrative expenses as a percent of sales are significantly higher due to the higher percentage of retail food operations in Scrivner. Interest expense increased materially as a result of both increased borrowing levels and higher interest rates due to the acquisition of Scrivner. In addition, expense for the amortization of goodwill also increased significantly. As part of the reengineering plan, the company has closed four distribution centers and plans to close one additional facility. In addition, since the acquisition, the company has closed nine former Scrivner distribution centers. CONSOLIDATED STATEMENTS OF EARNINGS For the years ended December 30, 1995 and December 31, 1994 (In thousands, except per share amounts) 1995 1994 Net sales $17,501,572 $15,723,691 Costs and expenses: Cost of sales 16,091,039 14,601,050 Selling and administrative 1,189,199 932,588 Interest expense 175,390 120,071 Interest income (58,206) (57,148) Equity investment results 27,240 14,793 Facilities consolidation and restructuring (8,982) - Total costs and expenses 17,415,680 15,611,354 Earnings before taxes 85,892 112,337 Taxes on income 43,891 56,168 Net earnings $ 42,001 $ 56,169 Net earnings per share $ 1.12 $ 1.51 Weighted average shares outstanding 37,577 37,254 Exhibits: Exhibit 99 - Independent Auditors' letter accompanying Form 12b-25. SIGNATURES FLEMING COMPANIES INC. has caused this report to be signed on its behalf by the undersigned hereunto duly authorized. KEVIN J. TWOMEY By: Kevin J. Twomey Vice President - Controller Date: March 29, 1996 EX-99 2 Exhibit 99 March 29, 1996 Mr. Kevin Twomey Vice President and Controller Fleming Companies, Inc. P. O. Box 26647 Oklahoma City, Oklahoma 73126 Dear Mr. Twomey: Fleming Companies, Inc. is in the process of evaluating potentially significant developments occurring subsequent to the year ended December 30, 1995 related to a pending litigation matter. Therefore, we are unable to furnish our independent auditors' report covering the consolidated financial statements and financial statement schedule for the year ended December 30, 1995 for the filing of Form 10-K. We expect to issue our report, filed as part of the annual report on Form 10-K, by April 15, 1996. Yours truly, DELOITTE & TOUCHE LLP Deloitte & Touche LLP EX-1 3 THE FOLLOWING ITEMS ARE THE SUBJECT OF A FORM 12B-25 AND ARE EXCLUDED HEREIN: PART I. ITEM 3. LEGAL PROCEEDINGS; PART II. ITEM 6. SELECTED FINANCIAL DATA; PART II. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS; PART II. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA; AND PART IV. ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (WITH RESPECT TO THE FINANCIAL STATEMENTS, INDEPENDENT AUDITORS' OPINION, UNAUDITED QUARTERLY FINANCIAL INFORMATION, FINANCIAL STATEMENT SCHEDULE AND EXHIBIT NUMBER 23 - CONSENT OF INDEPENDENT AUDITORS). UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (Mark One) X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED] For the fiscal year ended December 30, 1995 or TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] For the transition period from to Commission file number 1-8140 FLEMING COMPANIES, INC. (Exact name of registrant as specified in its charter) Oklahoma 48-0222760 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 6301 Waterford Boulevard, Box 26647 Oklahoma City, Oklahoma 73126 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (405) 840-7200 Securities registered pursuant to Section 12(b) of the Act: NAME OF EACH EXCHANGE ON TITLE OF EACH CLASS WHICH REGISTERED Common Stock, $2.50 Par Value and New York Stock Exchange Common Stock Purchase Rights Pacific Stock Exchange Midwest Stock Exchange 9.5% Debentures New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to the Form 10-K. ____ Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No As of February 24, 1996, 37,704,000 common shares were outstanding. The aggregate market value of the common shares (based upon the closing price of these shares on the New York Stock Exchange) of Fleming Companies, Inc. held by nonaffiliates was approximately $740 million. Documents Incorporated by Reference A portion of Part III has been incorporated by reference from the registrant's proxy statement dated March 12, 1996, in connection with its annual meeting of shareholders to be held on May 1, 1996. PART I ITEM 1. BUSINESS Fleming Companies, Inc. (hereinafter referred to as "Fleming," the "registrant" or the "company") was incorporated in Kansas in 1915 and in 1981 was reincorporated as an Oklahoma corporation. Fleming is engaged primarily in the food wholesaling and distribution industry with both wholesale and retail operations. The company currently serves as the principal source of supply for approximately 3,500 supermarkets in 42 states and the District of Columbia. These super- markets have a total area of approximately 100 million square feet. The company also serves several international markets. The company serves food stores of various sizes operating in a wide variety of formats, including conventional full-service stores, superstores, price impact stores (including warehouse stores), combination stores (which typically carry a higher proportion of non- food items) and convenience stores. The company services a geographically diverse area. These are predominantly independent stores, many of which operate and advertise under a common name to promote greater consumer recognition. Fleming's retail customers (hereinafter referred to as "customers") also include national and regional corporate chains. The company's food distribution operations offer a wide variety of national brand and private label products, including groceries, meat, dairy and delica- tessen products, frozen foods, produce, bakery goods and a variety of general merchandise and related items. In addition, Fleming offers a wide range of support services to its customers to help them compete more effectively with other food retailers in their respective market areas. In addition, the company has a significant presence in food retailing, owning and operating approximately 370 retail food stores with an aggregate of approximately 13 million square feet. Company-owned stores operate under a number of names and vary in format from super warehouse stores to conventional supermarkets. The company operates in two segments: food distribution and retail store operations. Food distribution includes food and general merchandise distribution. Segment information as required by Statement of Financial Accounting Standards No. 14 is presented in Item 8. Financial Statements and Supplementary Data. Reengineering The company has determined that its performance during the past several years, along with the performance of a number of its retail customers, has been unfavorably affected by a number of changes within the food marketing and distribution industry, which has become increasingly competitive in an environment of relatively static overall demand. Alternative format food stores (such as warehouse stores and supercenters) have gained retail food market share at the expense of traditional supermarket operators, including independent grocers, many of whom are customers of the company. Vendors, seeking to ensure that more of their promotional dollars are used by retailers to increase sales volume, increasingly direct promotional dollars directly to retailers and to large self-distributing chains. Additionally, the trend toward Every Day Low Costing has reduced margin opportunities. The company believes that these changes have led to reduced margins and lower profitability among many of its customers and at the company itself. Fleming has initiated specific actions to respond to, and help its retail customers respond to, changes in the market- place. The company has embarked upon a plan to restructure its organizational align- ment, reengineer its operations and consolidate its distribution facilities. The company's objective is to lower net acquisition cost of product to retail customers while providing the company with a fair and adequate return for its products and services. To achieve this objective, management has made major organizational changes, implemented the Fleming Flexible Marketing Plan ("FFMP") in approximately 40% of its food distribution sales base, or 17 of its 35 operating units, and increased its investment in technology. The actions contemplated by the reengineering plan will affect the company's food and general merchandise wholesaling operations as well as certain retail opera- tions. Although a significant number of reengineering initiatives have been completed, more are planned. The timing of the remaining initiatives has been lengthened while the company refocuses on financial performance and refines FFMP in response to customers and vendors. Accordingly, completion dates are not known. The company has reorganized itself around four core business units: retail sales and marketing, retail services, category marketing and product supply. Retail sales and marketing, retail services and category marketing represent the marketing functions of the company. Product supply represents the procurement and distribution functions of the company. Through retail sales and marketing, the company markets to customers on FFMP primarily on the basis of customer type instead of on the basis of geography. This enables the company to be more effective in serving its diverse customer base. Through retail services, the company offers services on a fee basis to retailers. In the past, Fleming has offered many services without a direct charge but has indirectly charged all customers for such services. Through category marketing, the company more efficiently manages its relationships with vendors, manufacturers and other suppliers, working to obtain the best possible promotional benefits offered by suppliers and pass through directly to retailers on FFMP 100% of those benefits related to grocery, frozen foods and dairy products. Through product supply, which is comprised of all food distribution centers and operations converted to FFMP, the company will work to lower the net acquisition costs (i.e., the total of cost of product and all related charges plus the company's distribution fee) to retailers. FFMP applies to grocery, frozen foods and dairy products and is based on a new pricing policy whereby retailers, upon conversion to FFMP, will pay the company's actual cost of acquiring goods, receiving 100% of available promo- tional benefits from the vendor arranged by the company, including those derived from forward buying. Customers will pay all costs incurred by the company for transportation (which in the past may have been subsidized by the company). Instead of paying a basic distribution fee, customers pay handling and storage charges, which is higher than the prior distribution fee. Additionally, retail customers pay for all other retail services purchased. As part of the reengineering plan, the company has closed four distribution centers and plans to close one additional facility. Products The company supplies its customers with a full line of national brand products as well as an extensive range of private and controlled label products, perish- ables and non-food items. Controlled labels are those which the company controls and private labels are those which may be offered only in stores operating under specific banners, which may or may not be under the company's control. Among the controlled labels offered by the company with registered trade names are TV, Hyde Park, Marquee, Bonnie Hubbard, Best Yet, Sentry and Rainbow. Among the private labels handled by the company are IGA and Piggly Wiggly. Controlled label and private label products offer both the wholesaler and the retailer opportunities for higher margins as the costs of national advertising campaigns can be eliminated. The controlled label program is augmented with marketing and promotional support programs developed by the company. Certain categories of perishables also offer both the wholesaler and the retailer opportunities for improved margins as consumers are generally willing to pay relatively higher prices for produce and bakery goods and high quality frozen foods. Furthermore, retailers are increasingly competing for business through an emphasis on perishables and private label products. Services to Customers The company offers value-added services to its customers. These services include, among others, merchandising and marketing assistance, in-house advertising, consumer education programs, retail electronic services and employee training. See also "Capital Invested in Customers." In addition, the company may assist its customers in the development and expansion of retail stores, including retail site selection and market surveys; store design, layout, and decor assistance; and equipment and fixture planning. The company also has expertise in developing sales promotions, including employee and customer incentive programs, such as "continuity programs" designed to entice the customer to return regularly to the store. Sale Terms Upon reengineering, customers are converted to FFMP and are charged the company's actual costs of acquiring grocery, frozen food and dairy products pursuant to FFMP while the company passes through to its FFMP customers all promotional fees and allowances received from vendors. In addition, the company charges FFMP customers for the costs of transportation and for handling and storage, which charges are higher than the previous basic distribution fee. Retailers on FFMP are also charged directly for services for which they formerly paid indirectly. As a result, the company believes it will lower the net acqui- sition cost of product to its customers. Payment is made through electronic funds transfer the day following the customer's statement date. Where the company's operating units have not been reengineered, customers are charged for products based generally on an agreed price which includes the company's defined "cost" (which does not give effect to promotional fees and allowances from vendors), to which is added a fee determined by the volume of the customer's purchase. In some geographic areas, product charges are based upon a percentage markup over cost. A delivery charge is usually added based on order size and mileage from the distribution center to the customer's store. Payment may be received upon delivery of the order, or within credit terms that generally are weekly or semi-weekly. Distribution The company currently operates 35 distribution centers which are responsible for the distribution of national brand and private label groceries, meat, dairy and delicatessen products, frozen foods, produce, bakery goods and a variety of related food and non-food items. Six general merchandise distribution centers distribute health and beauty care items and other non-food items. Two distribution centers serve convenience stores. All facilities are equipped with modern material handling equipment for receiving, storing and shipping large quantities of merchandise. As a result of the acquisition of Scrivner in July 1994, the company has closed nine former Scrivner distribution centers. As part of the consolidation, reorganization and reengineering plan, the company has closed four distribution centers and will close one additional distribution center. The company's food and general merchandise distribution facilities comprise more than 20 million square feet of warehouse space. Additionally, the company rents, on a short-term basis, approximately 5 million square feet of off-site temporary storage space. Many distribution divisions operate a truck fleet to deliver products to customers. The company increases the utilization of its truck fleet by backhauling products from many suppliers, thereby reducing the number of empty miles traveled. To further increase its fleet utilization, the company has made its truck fleet available to other firms on a for-hire carriage basis. During 1994 and 1995 the company engaged dedicated contract carriers to deliver its products from certain distribution centers. Retail Stores Served The company serves retail stores ranging in size from small convenience outlets to conventional supermarkets, combination units, price impact stores and large supercenters. Among the stores served are approximately 3,500 supermarkets with an aggregate of approximately 100 million square feet. Fleming's customers are geographically diverse, with operations in 42 states, the District of Columbia and several international markets. The company's principal customers are supermarkets carrying a wide variety of grocery, meat, produce, frozen food and dairy products. Most customers also handle an assortment of non-food items, including health and beauty care products and general merchandise such as housewares, soft goods and stationery. Most supermarkets also operate one or more specialty departments such as in-store bakeries, delicatessens, seafood departments and floral departments. The company believes that its focus on quality service, broad product offerings, competitive prices and value-added services enables the company to maintain long - -term customer relationships while attracting new customers. The company has targeted self-distributing chains and operators of alternative format stores as sources of incremental sales. These operations have gained increasing market share in the retail food industry in recent years. The company currently serves 1,040 chain stores, compared to 980 at year-end 1994. In late 1994, Fleming signed a six-year supply agreement with Kmart to serve new Super Kmart Centers in areas where Fleming has distribution facilities. The company also licenses or grants franchises to retailers to use certain registered trade names such as IGA, Piggly Wiggly, Food 4 Less, Big Star, Big T, Buy-for-Less, Checkers, Festival Foods, Jubilee Foods, Jamboree Foods, MEGA MARKET, Minimax, Sentry, Shop 'n Bag, Shop 'n Kart, Super 1 Foods, Super Save, Super Thrift, Thriftway, United Supers, and Value King. There are approximately 2,000 food stores operating under company franchises or licenses. Company-owned Stores The company owns and operates approximately 370 stores at December 30, 1995, including 330 supermarkets with an aggregate of approximately 12 million square feet. Company-owned stores are located in 23 states and are all served by the company's distribution centers. Formats vary from super warehouse stores to conventional supermarkets. Generally in the industry, an average super warehouse store is 58,000 square feet and a conventional supermarket is 23,000 square feet. All company-owned supermarkets are designed and equipped to offer a broad selection of both national brands as well as private label products at attractive prices while maintaining high levels of service. Most supermarket formats have extensive produce sections and complete meat departments together with one or more specialty departments such as in-store bakeries, delicatessens, seafood departments and floral departments. Specialty departments generally produce higher gross margins per selling square foot than general grocery sections. The company-owned stores provide added purchasing power as they enable the company to commit to certain promotional efforts at the retail level. The company, through its owned stores, is able to retain many of the promotional savings offered by vendors in exchange for volume increases. Technology Fleming has played a leading role in employing technology for internal opera- tions as well as for its independent retail customers. Fleming has implemented radio-frequency terminals in most of its distribution centers to track inventory, further improve customer service levels, reduce out- of-stock conditions and obtain other operational improvements. Most distri- bution centers are managed by computerized inventory control systems, such as the company's standardized computer software system called FOODS (Fleming On- line Distribution System), along with warehouse productivity monitoring and scheduling systems. The company has begun a program to implement FOODS in all former Scrivner facilities. Most of Fleming's truck fleet is equipped with on- board computers to monitor the efficiency of deliveries to its customers. Additionally, the company is marketing an advanced on-line communications product, called Visionet, that links Fleming-served retailers with their product supply centers, category managers and vendors. One of Visionet's features is the Opportunity Wire, which enables Fleming to alert retailers to special purchasing opportunities to buy products at advantageous prices as well as assist in coordinating delivery. Suppliers The company purchases its products from numerous vendors and growers. As the largest single customer of many of its suppliers, the company is able to secure favorable terms and volume discounts on most of its purchases, leading to lower unit costs. The company purchases products from a diverse group of suppliers and believes it has adequate and alternative sources of supply for substantially all of its products. Capital Invested in Customers As part of its services to retailers, the company provides capital to customers in several ways. In making credit and investment decisions, the company considers many factors, including estimated return on capital, risk and the benefits to be derived from sustained or increased product sales. Any equity investment or loan of $250,000 or more must be approved by the company's busi- ness development committee. An equity investment or loan of $10 million to $15 million must also be approved by the Chief Executive Officer, with Board of Directors approval above $15 million. For equity investments, the company has active representation on the customer's board of directors. The company also conducts periodic credit reviews, receives and analyzes customers' financial statements and visits customers' locations regularly. On an ongoing basis, senior management reviews the company's largest investments and credit expo- sures. The company provides capital to certain customers by becoming primarily or secondarily liable for store leases, by extending credit for inventory purchases, and by guaranteeing loans and making secured loans to and equity investments in customers. Store leases. The company leases stores for sublease to certain customers. Sublease rentals are generally higher than the base rental to the company. As of December 30, 1995, the company was the primary lessee of approximately 900 retail store locations subleased to and operated by customers. In certain circumstances, the company also guarantees the lease obligations of certain customers. Extension of credit for inventory purchases. The company has supply agreements with customers in which it invests and, in connection with supplying such customers, will, in certain circumstances, extend credit for inventory pur- chases. Customary trade credit terms are the day following statement date for customers on FFMP and up to seven days for non-FFMP customers; the company has extended credit for additional periods under certain circumstances. Guarantees and secured loans. The company guarantees the obligations of certain of its customers. Loans are also made to customers primarily for store expansions or improvements. These loans are typically secured by inventory and store fixtures, bear interest at rates at or above the prime rate, and are for terms of up to ten years. During fiscal year 1995, the company sold, with limited recourse, $77 million of notes evidencing similar loans. The company believes its loans to customers are illiquid and would not be investment grade if rated. Equity investments. The company has made equity investments in strategic multi- store customers, which it refers to as Business Development Ventures, and in smaller operators, referred to as Equity Stores. Equity Store participants typically retain the right to purchase the company's investment over a five to ten-year period. Many of the customers in which the company has made equity investments are highly leveraged, and the company believes its equity invest- ments are highly illiquid. The following table sets forth the components of Fleming's portfolio of loans to and investments in customers at year-end 1995 and 1994. Amounts are in millions. Business Stores Customers Development Equity Held Sub- With No Equity Ventures Stores For Resale total Investment Total 1995 Loans (a) $27 $34 $ - $ 61 $177 $238 Equity Investments 28 (2) 23 49 - 49 Total $55 $32 $23 $110 $177 $287 1994 Loans (a) $52 $55 $ 1 $108 $267 $375 Equity Investments 45 6 25 76 - 76 Total $97 $61 $26 $184 $267 $451 (a) Includes current portion of loans, which amounts are recorded as receivables on the company's balance sheet. See Notes to Consolidated Financial Statements. The table does not include the company's investments in customers through direct financing leases, lease guarantees, operating leases, loan guarantees or credit extensions for inventory purchases. As of December 30, 1995, the present value of the company's obligations under direct financing leases and lease guarantees were $223 million and $90 million, respectively. The company has implemented tighter credit policies and reduced emphasis on credit extensions to and investments in customers. Additionally, credit associates conduct post-financing reviews more frequently and in more depth. Fleming's credit loss expense, including from receivables as well as from investments in customers, was $31 million in the year ended December 31, 1995 and $61 million and $52 million in 1994 and 1993, respectively. Competition Competition in the food marketing and distribution industry is intense. The company's primary competitors are national chains who perform their own distribution (such as The Kroger Co. and Albertson's, Inc.), national food distributors (such as SUPERVALU Inc.) and regional and local food distributors. The principal competitive factors include price, quality and assortment of product lines, schedules and reliability of delivery, and the range and quality of customer services. The sales volume of wholesale food distributors is dependent on the level of sales achieved by the retail food stores they serve. Retail stores served by the company compete with other retail food outlets in their geographic areas on the basis of price, quality and assortment, store location and format, sales promotions, advertising, availability of parking, hours of operation and store appeal. The primary competitors of the company-owned stores are national, regional and local chains, as well as independent supermarkets and convenience stores. The principal competitive factors include product price, quality and assortment, store location and format, sales promotions, advertising, availability of parking, hours of operation and store appeal. Employees At year-end 1995, the company had approximately 44,000 full-time and part-time associates. Approximately half of the company's associates are covered by collective bargaining agreements with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, the United Food and Commercial Workers, the International Longshoremen's and Warehousemen's Union and the Retail Warehouse and Department Store Union. Most of such agreements expire at various times throughout the next five years. The company believes it has satisfactory relationships with its unions. ITEM 2. PROPERTIES The following table sets forth information with respect to Fleming's major distribution facilities. Size, in Food Thousands of Owned or Distribution (1) Square Feet Leased Altoona, PA 172 Leased Buffalo, NY 417 Leased El Paso, TX (2) 465 Leased Ewa Beach, HI 196 Leased Fresno, CA 380 Owned Garland, TX 1,176 Owned Geneva, AL 345 Leased Houston, TX 663 Leased Huntingdon, PA 246 Leased Johnson City, TN 287 Owned Kansas City, KS 909 Leased La Crosse, WI 913 Owned Lafayette, LA 430 Owned Laurens, IA 368 Owned Lincoln, NE 298 Leased Lubbock, TX (2) 378 Owned Marshfield, WI 157 Owned Massillon, OH 775 Owned Memphis, TN 780 Owned Miami, FL 763 Owned Milwaukee, WI 595 Owned Minneapolis, MN (3) 480 Owned Nashville, TN 734 Leased North East, MD (4) 107 Owned Oklahoma City, OK (5) 669 Owned Oklahoma City, OK (5) 410 Leased Peoria, KS 325 Owned Philadelphia, PA (4) 830 Leased Phoenix, AZ 912 Owned Portland, OR 323 Owned Sacramento, CA 683 Owned Salt Lake City, UT 429 Owned San Antonio, TX 514 Leased Sikeston, MO 481 Owned Superior, WI (3) 371 Owned Warsaw, NC 681 Owned/Leased York, PA 450 Owned 19,112 General Merchandise Dallas, TX 270 Owned/Leased King of Prussia, PA 377 Leased La Crosse, WI 163 Owned Memphis, TN 339 Owned/Leased Sacramento, CA 294 Leased Topeka, KS 179 Leased 1,622 Outside Storage Outside storage facilities - typically rented on a short-term basis. 5,334 Total square feet 26,068 (1) Food distribution includes two convenience store divisions. (2) Comprise the Lubbock distribution operation. (3) Comprise the Minneapolis distribution operation. (4) Comprise the Philadelphia distribution operation. (5) The company operates two distribution operations in Oklahoma City. The administrative functions of these two distribution operations are consolidated. At the end of 1995, Fleming operated a delivery fleet consisting of approxi- mately 1,400 power units and 3,100 trailers. Most of this equipment is owned by the company. Company-owned retail stores are located in 23 states and occupy approximately 13 million square feet which is primarily leased. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS Not applicable. EXECUTIVE OFFICERS OF THE REGISTRANT The following table sets forth certain information concerning the executive officers of the company as of March 12, 1996: Year First Became Name (age) Present Position An Officer Robert E. Stauth (51) Chairman and Chief Executive Officer 1987 William J. Dowd (53) President and Chief Operating Officer 1995 E. Stephen Davis (55) Executive Vice President- Distribution 1981 Harry L. Winn, Jr. (51) Executive Vice President and Chief Financial Officer 1994 David R. Almond (56) Senior Vice President- General Counsel and Secretary 1989 Ronald C. Anderson (53) Senior Vice President-General Merchandise 1993 Mark K. Batenic (47) Senior Vice President-Retail Sales & Marketing 1994 Darreld R. Easter (59) Senior Vice President- Category Marketing 1988 William M. Lawson, Jr. (45) Senior Vice President-Corporate Development/International Operations 1994 Dixon E. Simpson (53) Senior Vice President-Retail Services 1994 Larry A. Wagner (49) Senior Vice President- Associate Support 1989 Thomas L. Zaricki (51) Senior Vice President-Retail Operations 1993 Kevin J. Twomey (45) Vice President-Controller 1995 No family relationship exists among any of the executive officers listed above. Executive officers are elected by the board of directors for a term of one year beginning with the annual meeting of shareholders held in April or May of each year. Each of the executive officers has been employed by the company or its subsidiaries for the preceding five years except for Messrs. Anderson, Dowd, Lawson, Winn and Zaricki. Mr. Anderson joined the company as Vice President-General Merchandise in July 1993. In March 1994, he was named Senior Vice President-General Merchandise. Since 1986, until joining the company, he was vice president of McKesson Corporation, a distributor of pharmaceutical and related products, where he was responsible for its service merchandising division. Mr. Dowd joined the company in his present position in July 1995. From 1994 until joining the company, he was Senior Vice President - Operations at Cott Corporation, a producer of retailer-branded soft drinks. From 1991 to 1994, Mr. Dowd was executive vice president for Kraft General Foods' KGF Service Company. Mr. Lawson joined the company in his present position in June 1994. Prior to that, Mr. Lawson was a practicing attorney in Phoenix for 18 years. Mr. Winn joined the company in his present position in May 1994. He was with UtiliCorp United in Kansas City, an energy company, where he was managing senior vice president and chief financial officer from 1990 to 1993. Mr. Zaricki joined the company in his present position in October 1993. Since 1987, until joining the company, Mr. Zaricki was president of Arizona Supermarkets, Inc., a regional supermarket chain headquartered in Phoenix. PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS Fleming common stock is traded on the New York, Midwest and Pacific stock exchanges. The ticker symbol is FLM. As of December 30, 1995, the 37.7 million outstanding shares were owned by 13,300 shareholders of record and approximately 20,500 beneficial owners whose shares are held in street name by brokerage firms and financial institutions. According to the New York Stock Exchange Composite Transactions tables, the high and low prices of Fleming common stock during each calendar quarter of the past two years are shown below. 1995 1994 Quarter High Low High Low First $24.88 $19.13 $26.13 $24.25 Second 27.13 22.75 29.25 23.50 Third 29.88 22.63 30.00 22.88 Fourth 25.75 20.00 24.50 22.63 Cash dividends on Fleming common stock have been paid for 79 consecutive years. Dividends are generally declared on a quarterly basis with holders as of the record date being entitled to receive the cash dividend on the payment date. Record and payment dates are normally as shown below: Record Dates: Payment Dates: February 20 March 8 May 20 June 10 August 20 September 10 November 20 December 10 Cash dividends of $.30 per share were paid on or near each of the above four payment dates in 1994 and 1995. The company paid a cash dividend of $.30 per share for the first quarter of 1996. On March 28, 1996, the Board of Directors of the company declared a cash divi- dend of $.02 per share for the second quarter of 1996 payable on June 10, 1996, to shareholders of record on May 20, 1996. This dividend is lower than the previous quarterly dividend to allow the company to meet its banks' requirements to support the posting of an appeal bond in the David's Supermarkets lawsuit. See Item 3. Legal Proceedings, Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations and Item 8. Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements - Litigation and Contingencies and Subsequent Events. ITEM 9. CHANGES IN AND DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE None. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT Incorporated herein by reference to pages 3 through 6 of the company's proxy statement dated March 12, 1996, in connection with its annual meeting of shareholders to be held on May 1, 1996. Information concerning Executive Officers of the company is included in Part I herein which is incorporated in this Part III by reference. ITEM 11. EXECUTIVE COMPENSATION Incorporated herein by reference to pages 12 through 20 of the company's proxy statement dated March 12, 1996, in connection with its annual meeting of shareholders to be held on May 1, 1996. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT Incorporated herein by reference to page 9 through 11 of the company's proxy statement dated March 12, 1996, in connection with its annual meeting of shareholders to be held on May 1, 1996. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Not applicable. PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a)3., (c) Exhibits: Page Number or Exhibit Incorporation by Number Reference to 3.1 Certificate of Incorporation Exhibit 3.1 to Form 10-K for year ended December 28, 1991 3.2 By-Laws Exhibit 28.2 to Form 8-K dated August 22, 1989 4.0 Credit Agreement, dated as of Exhibit 4.0 to July 19, 1994, among Fleming Form 8-K dated Companies, Inc., the Banks July 19, 1994 listed therein and Morgan Guaranty Trust Company of New York, as Managing Agent 4.1 Pledge Agreement, dated as of Exhibit 4.1 to July 19, 1994, among Fleming Form 8-K dated Companies, Inc. and Morgan July 19, 1994 Guaranty Trust Company of New York, as Collateral Agent 4.2 Security Agreement dated as of Exhibit 4.2 to July 19, 1994, between Fleming Form 8-K dated Companies, Inc. in favor of July 19, 1994 Morgan Guaranty Trust Company of New York, as Collateral Agent 4.3 Amendment No. 1 to Credit Exhibit 4.3 to Agreement, dated as of Form 8-K dated July 21, 1994 July 19, 1994 4.4 Amendment No. 2 to Credit Exhibit 4.4 to Agreement dated as of Form 10-K for year November 14, 1994 ended December 31, 1994 4.5 Amendment No. 3 to Credit Agreement dated as of June 30, 1995 4.6 Amendment No. 4 to Credit Agreement dated as of February 15, 1996 4.7 Agreement to furnish copies of other long-term debt instruments 4.8 Rights Agreement dated as of Exhibit 28 to July 7, 1986, between the Form 8-K dated Registrant and Morgan June 24, 1986 Guaranty Trust Company of New York 4.9 Amendment to Rights Agreement Exhibit 28.1 to dated as of August 22, 1989, Form 8-K dated between the Registrant August 22, 1989 and First Chicago Trust Company of New York, as Rights Agent 4.10 Rights Agreement dated as of Exhibit 4.0 to Form February 27, 1996 between 8-K dated February Fleming Companies, Inc. and 27, 1996 Liberty Bank and Trust Company of Oklahoma City, N. A. Effective as of the close of business on July 6, 1996 4.11 Indenture dated as of December Exhibit 4 to 1, 1989, between the Registrant Registration and Morgan Guaranty Trust Statement No. Company of New York, as trustee 33-29633 4.12 Indenture dated as of Exhibit 4.9 to December 15, 1994, between the Form 10-K for year Registrant, Subsidiary Guaran- ended December 31, 1994 tors and Texas Commerce Bank National Association, as Trustee, regarding $300 million of 10 5/8% Senior Notes 4.13 Indenture dated as of December Exhibit 4.10 to 15, 1994, between the Regis- Form 10-K for trant, Subsidiary Guarantors year ended and the Texas Commerce Bank December 31, 1994 National Association, as Trustee, regarding $200 million of Floating Rate Senior Notes 10.0 Stock Purchase Agreement by and Exhibit 2.0 to among Fleming Companies, Inc. Form 8-K dated and Franz Haniel & Cie. GmbH July 19, 1994 dated as of July 15, 1994 10.1 Investment Advisor Agreement Exhibit 10.17 to between the Registrant and The Form 10-K for year First Boston Corporation dated ended December 30, November 27, 1989 1989 10.2 Investment Advisor Agreement Exhibit 10.18 to between the Registrant and Form 10-K for year Merrill Lynch, Pierce, Fenner ended December 30, & Smith Incorporated dated 1989 December 5, 1989 10.3 Dividend Reinvestment and Exhibit 28.1 to Stock Purchase Plan, as Registration amended Statement No. 33-26648 and Exhibit 28.3 to Registration Statement No. 33-45190 10.4* 1985 Stock Option Plan Exhibit 28(a) to Registration Statement No. 2-98602 10.5* Form of Award Agreement for Exhibit 10.6 to 1985 Stock Option Plan (1994) Form 10-K for year ended December 25, 1993 10.6* 1990 Stock Option Plan Exhibit 28.2 to Registration Statement No. 33-36586 10.7* Form of Award Agreement for Exhibit 10.8 to 1990 Stock Option Plan (1994) Form 10-K for year ended December 25, 1993 10.8* Fleming Management Incentive Exhibit 10.4 to Compensation Plan Registration Statement No. 33-51312 10.9* Directors' Deferred Exhibit 10.5 to Compensation Plan Registration Statement No. 33-51312 10.10* Amended and Restated Supple- Exhibit 10.10 to mental Retirement Plan Form 10-K for year ended December 31, 1994 10.11* Form of Amended and Restated Exhibit 10.11 to Supplemental Retirement Form 10-K for year Income Agreement ended December 31, 1994 10.12* Godfrey Company 1984 Non- Appendix II to qualified Stock Option Plan Registration Statement No. 33-18867 10.13* Form of Amended and Restated Exhibit 10.13 to Severance Agreement between the Form 10-K for year Registrant and certain of its ended December 31, 1994 officers 10.14* Fleming Companies, Inc. 1990 Exhibit B to Stock Incentive Plan dated Proxy Statement February 20, 1990 for year ended December 30, 1989 10.15* Fleming Companies, Inc. 1996 Exhibit A to Stock Incentive Plan dated Proxy Statement February 27, 1996 for year ended December 30, 1995 10.16* Phase I of Fleming Companies, Exhibit 10.16 to Inc. Stock Incentive Plan and Form 10-K for year Form of Awards Agreement ended December 30, 1989 10.17* Phase II of Fleming Companies, Exhibit 10.12 to Inc. Stock Incentive Plan Form 10-K for year ended December 26, 1992 10.18* Phase III of Fleming Companies, Exhibit 10.17 to Inc. Stock Incentive Plan Form 10-K for year ended December 25, 1993 10.19* Fleming Companies, Inc. Exhibit 10.14 to Directors' Stock Form 10-K for year Equivalent Plan ended December 28, 1991 10.20* Agreement between the Exhibit 10.19 to Registrant and Form 10-K for year E. Dean Werries ended December 25, 1993 10.21* Supplemental Income Trust Exhibit 10.20 to Form 10-K for year ended December 31, 1994 10.22* Form of Employment Agreement Exhibit 10.20 to between Registrant and certain Form 10-K for year of the employees ended December 31, 1994 10.23* Economic Value Added Incentive Exhibit A to Proxy Bonus Plan Statement for year ended December 31, 1994 10.24* Agreement between the Registrant and William J. Dowd 12 Computation of ratio of earnings to fixed charges 21 Subsidiaries of the Registrant 24 Power of attorney instruments signed by certain directors and officers of the Registrant appointing Harry L. Winn, Jr., Executive Vice President and Chief Financial Officer, as attorney-in-fact and agent to sign the Annual Report on Form 10-K on behalf of said directors and officers 27 Financial Data Schedule 99.1 Company Undertaking * Management contract, compensatory plan or arrangement. (b) Reports on Form 8-K: On January 16, 1996, registrant filed under Item 5. disclosing the completion of the foreclosure of its security interest in the assets of ABCO Holding, Inc., and its subsidiary, ABCO Markets, Inc. On March 20, 1996, registrant filed under Item 5. disclosing its announcement that the verdict received in the David's Supermarkets, Inc. lawsuit will be appealed. On March 21, 1996, registrant filed under Item 5. disclosing the adoption of a new rights plan. On March 28, 1996, registrant filed under Item 5. disclosing a quarterly dividend declared at a rate lower than its previous quarterly dividend. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, Fleming has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on the 29th day of March 1996. FLEMING COMPANIES, INC. ROBERT E. STAUTH By: Robert E. Stauth Chairman and Chief Executive Officer (Principal executive officer) HARRY L. WINN, JR. By: Harry L. Winn, Jr. Executive Vice President and Chief Financial Officer (Principal financial officer) KEVIN J. TWOMEY By: Kevin J. Twomey Vice President - Controller (Principal accounting officer) Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on the 29th day of March 1996. ROBERT E. STAUTH Robert E. Stauth Archie R. Dykes* Carol B. Hallett* (Chairman of the Board) (Director) (Director) James G. Harlow, Jr.* Lawrence M. Jones* Edward C. Joullian III* (Director) (Director) (Director) Howard H. Leach* Guy O. Osborn* (Director) (Director) HARRY L. WINN, JR. Harry L. Winn, Jr. (Attorney-in-fact) *A Power of Attorney authorizing Harry L. Winn, Jr. to sign the Annual Report on Form 10-K on behalf of each of the indicated directors of Fleming Companies, Inc. has been filed herein as Exhibit 24. EX-4.5 4 EXHIBIT 4.5 AMENDMENT NO. 3 TO CREDIT AGREEMENT AMENDMENT dated as of June 30, 1995, to the $2,200,000,000 Credit Agreement dated as of July 19, 1994 (as heretofore amended, the "Credit Agreement") among FLEMING COMPANIES, INC., the BANKS party thereto, the AGENTS party thereto and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Managing Agent. W I T N E S S E T H: WHEREAS, the Borrower desires to amend the Credit Agreement to effect the amendments reflected herein, and the Banks party hereto are willing to agree to such amendments; NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. Definitions; References. Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement. Each reference to "hereof," "hereunder," "herein" and "hereby" and each other similar reference and each reference to "this Agreement" and each other similar reference contained in the Credit Agreement shall from and after the date hereof refer to the Credit Agreement as amended hereby. SECTION 2. Amendment of Section 1.01 of the Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended by changing the dollar amount set forth in the definition of "Letter of Credit Commitment" from "$160,000,000" to "$200,000,000". SECTION 3. Amendment of Section 2.05 of the Credit Agreement. (a) The table set out in Section 2.05(a) is hereby amended to read in its entirety as follows: Rating Level Base Rate Margin Additional Margin I 0% 0.1000% II, III, IV 0% 0.1250% V 0% 0.1875% VI 0% 0.2500% VII 0.1250% 0.3750% During Credit Watch Period 0% 0.2500% (b) The table set out in Section 2.05(b) is hereby amended to read in its entirety as follows: Rating Level CD Margin Additional Margin I 0.3250% 0.1000% II 0.3750% 0.1250% III 0.4500% 0.1250% IV 0.5750% 0.1250% V 0.8125% 0.1875% VI 1.1250% 0.2500% VII 1.2500% 0.3750% During Credit Watch Period 1.1250% 0.2500% (c) The table set out in Section 2.05(c) is amended to read in its entirety as follows: Euro-Dollar Rating Level Margin Additional Margin I 0.2000% 0.1000% II 0.2500% 0.1250% III 0.3250% 0.1250% IV 0.4500% 0.1250% V 0.6875% 0.1875% VI 1.0000% 0.2500% VII 1.1250% 0.3750% During Credit Watch Period 1.0000% 0.2500% SECTION 4. Amendment of Section 2.07 of the Credit Agreement. The table set out in Section 2.07(a)(i) is hereby amended to read in its entirety as follows: Rating Level Commitment Fee Rate I or II 0.0000% III 0.0250% IV 0.0625% V 0.0875% VI or VII 0.1250% During Credit Watch Period 0.1250% (b) The table set out in Section 2.07(b) is hereby amended to read in its entirety as follows: Rating Level Facility Fee Rate I 0.1000% II, III or IV 0.1250% V 0.1875% VI 0.2500% VII 0.3750% During Credit Watch Period 0.2500% (c) The table set out in Section 2.07(c) is hereby amended to read in its entirety as follows: Rating Level Letter of Credit Fee Rate I 0.2000% II 0.2500% III 0.3250% IV 0.4500% V 0.6875% VI 1.0000% VII 1.1250% During Credit Watch Period 1.0000% SECTION 5. Amendment of Section 5.09 of the Credit Agreement. (a) Section 5.09 of the Credit Agreement is hereby amended by inserting immediately before the colon appearing before the table set forth therein the phrase "opposite the period in which such day occurs". (b) Section 5.09 of the Credit Agreement is hereby further amended by changing the table found therein to read in its entirety as follows: Period Ratio Effective Date through April 22, 1995 1.40 to 1 April 23, 1995 through December 30, 1995 1.25 to 1 December 31, 1995 through December 30, 1996 1.30 to 1 December 31, 1996 through April 20, 1997 1.40 to 1 April 21, 1997 through December 30, 1997 1.55 to 1 December 31, 1997 through December 30, 1998 1.66 to 1 December 31, 1998 through December 30, 1999 1.77 to 1 Thereafter 1.90 to 1 SECTION 6. Amendment to Section 5.13 of the Credit Agreement. (a) Section 5.13(a) of the Credit Agreement is hereby amended by deleting the word "and" after the semicolon at the end of clause (xiv) thereof, renumbering clause (xv) thereof as clause (xvi), and inserting the following new clause (xv): (xv) Debt of the Borrower, payable on demand or maturing less than one year after the date of its incurrence, in an aggregate principal amount outstanding at any time not exceeding $100,000,000; and (b) Clause (vi) of Section 5.13(b) of the Credit Agreement is hereby amended by changing the phrase "(xiv) and (xv)" to read "(xiv), (xv) and (xvi)" where such words appear in such clause. SECTION 7. Amendments to Security Documents and Guarantee Agreements. Each Bank party hereto hereby unconditionally and irrevocably authorizes and directs the Collateral Agent to execute and deliver amendments to each Security Document and Guarantee Agreement substantially in the forms attached hereto as Exhibits A through E. SECTION 8. Counterparts; Effectiveness. (a) This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Amendment shall become effective as of the date hereof when the Managing Agent shall have received duly executed counterparts hereof signed by the Borrower and (i) except in the case of the amendments contained in Sections 3 and 4 hereof, the Required Banks and (ii) in the case of the amendments contained in Sections 3 and 4 hereof, all the Banks (or, in the case of any Bank as to which an executed counterpart shall not have been received, the Managing Agent shall have received telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such Bank). When the amendments contained in Section 3 become effective, interest on Fixed Rate Loans outstanding on the date of effectiveness shall accrue for each day during the applicable Interest Period on or after such date with a CD Margin or Euro-Dollar Margin giving effect to such amendments. SECTION 9. Reduction of Commitments. When the amendments contained in Sections 3 and 4 become effective, the Tranche A Commitments shall automatically be reduced by $250,000,000, without any requirement that the Borrower give any notice to the Managing Agent pursuant to Section 2.08 of the Credit Agreement. SECTION 10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written. FLEMING COMPANIES, INC. JOHN M. THOMPSON By John M. Thompson Title: Vice President and Treasurer BANKS MORGAN GUARANTY TRUST COMPANY OF NEW YORK STEPHEN B. KING By Stephen B. King Title: Vice President BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION J. STEPHEN MERNICK By J. Stephen Mernick Title: Senior Vice President THE BANK OF NOVA SCOTIA F.C.H. ASHBY By F.C.H. Ashby Title: Senior Manager Loan Operations CANADIAN IMPERIAL BANK OF COMMERCE GARY C. GASKILL By Gary C. Gaskill Title: Authorized Signatory CREDIT SUISSE DAVID J. WORTHINGTON By David J. Worthington Title: Member of Senior Management MARILOU PALENZUELA By Marilou Palenzuela Title: Member of Senior Management DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH JEAN M. HANNIGAN By Jean M. Hannigan Title: Assistant Vice President JOHN AUGSBURGER By John Augsburger Title: Vice President THE FUJI BANK, LIMITED DAVID KELLEY By David Kelley Title: Vice President and Senior Manager NATIONSBANK OF TEXAS, N.A. BIANCA HEMMEN By Bianca Hemmen Title: Senior Vice President SOCIETE GENERALE, SOUTHWEST AGENCY RICHARD M. LEWIS By Richard M. Lewis Title: Vice President THE SUMITOMO BANK LTD. HOUSTON AGENCY HARUMITSU SEKI By Harumitsu Seki Title: General Manager TEXAS COMMERCE BANK NATIONAL ASSOCIATION MATTHEW H. HILDRETH By Matthew H. Hildreth Title: Vice President THE TORONTO-DOMINION BANK F.B. HAWLEY By F.B. Hawley Title: Manager Credit Administration UNION BANK OF SWITZERLAND, HOUSTON AGENCY JAN BUETTGEN By Jan Buettgen Title: Vice President - Corporate Banking GEORGE KUBORE By George Kubore Title: Assistant Vice President FIRST INTERSTATE BANK OF CALIFORNIA WILLIAM J. BAIRD By William J. Baird Title: Senior Vice President JUDY MAAHS By Judy Maahs Title: Assistant Vice President WACHOVIA BANK OF GEORGIA, NATIONAL ASSOCIATION DAVID L. GAINES By David L. Gaines Title: Senior Vice President CREDIT LYONNAIS NEW YORK BRANCH ROBERT IVOSEVICH By Robert Ivosevich Title: Senior Vice President COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH J. SCOTT TAYLOR By J. Scott Taylor Title: Vice President W. JEFFREY VOLLACK By W. Jeffrey Vollack Title: Vice President, Manager THE SANWA BANK LIMITED, DALLAS AGENCY BLAKE WRIGHT By Blake Wright Title: Vice President BANQUE NATIONALE DE PARIS HENRY F. SETINA By Henry F. Setina Title: Vice President BOATMEN'S FIRST NATIONAL BANK OF OKLAHOMA K. RANDY ROPER By K. Randy Roper Title: Senior Vice President CITIBANK N.A. W. P. STENGEL By W. P. Stengel Title: Vice President COMMERZBANK AG, ATLANTA AGENCY ANDREAS K. BREMER By Andreas K. Bremer Title: Senior Vice President & Manager CLAUDIA ROST By Claudia Rost Title: Assistant Treasurer DAI-ICHI KANGYO BANK, LTD. NEW YORK BRANCH ANDREAS PANTELI By Andreas Panteli Title: Vice President THE INDUSTRIAL BANK OF JAPAN, LTD. ROBERT W. RAMAGE, JR. By Robert W. Ramage, Jr. Title: Senior Vice President LTCB TRUST COMPANY SATORU OTSUBO By Satoru Otsubo Title: Executive Vice President THE MITSUBISHI BANK, LIMITED HOUSTON AGENCY TAKESHI YOKOKAWA By Takeshi Yokokawa Title: Joint General Manager NATIONAL WESTMINSTER BANK Plc NASSAU BRANCH ERNEST V. HODGE By Ernest V. Hodge Title: Vice President NATIONAL WESTMINSTER BANK Plc NEW YORK BRANCH ERNEST V. HODGE By Ernest V. Hodge Title: Vice President UNITED STATES NATIONAL BANK OF OREGON BLAKE R. HOWELLS By Blake R. Howells Title: Vice President BANK OF AMERICA ILLINOIS J. STEPHEN MERNICK By J. Stephen Mernick Title: Senior Vice President PNC BANK, NATIONAL ASSOCIATION GREGORY T. GASCHLER By Gregory T. Gaschler Title: Vice President BANK OF HAWAII JOSEPH T. DONALSON By Joseph T. Donalson Title: Vice President THE BANK OF TOKYO, LTD., DALLAS AGENCY JOHN M. MEARNS By John M. Mearns Title: Vice President & Manager BANQUE PARIBAS PIERRE-JEAN DE FILIPPIS By Pierre-Jean de Filippis Title: General Manager ROBERT G. SHAW By Robert G. Shaw Title: Vice President BANQUE FRANCAISE DU COMMERCE EXTERIEUR IAIN A. WHYTE By Iain A. Whyte Title: Assistant Vice President KENNETH C. COULTER By Kenneth C. Coulter Title: Vice President BAYERISCHE VEREINSBANK AG, LOS ANGELES AGENCY JOHN CARLSON By John Carlson Title: Vice President SYLVIA K. CHENG By Sylvia K. Cheng Title: Vice President BHF-BANK, NEW YORK BRANCH PAUL TRAVERS By Paul Travers Title: Vice President PERRY FORMAN By Perry Forman Title: Assistant Vice President DAIWA BANK TRUST COMPANY JOEL LIMJAP By Joel Limjap Title: Vice President MASAFUMI ASAI By Masafumi Asai Title: Vice President & Manager DG BANK DEUTSCHE GENOSSENSCHAFTSBANK NORAH MCCANN By Norah McCann Title: Senior Vice President KAREN A. BRINKMAN By Karen A. Brinkman Title: Vice President FIRST HAWAIIAN BANK ROBERT M. WHEELER III By Robert M. Wheeler III Title: Vice President FIRST UNION NATIONAL BANK OF NORTH CAROLINA MARK M. HARDEN By Mark M. Harden Title: Vice President LIBERTY BANK AND TRUST COMPANY OF OKLAHOMA CITY, N.A. LAURA CHRISTOFFERSON By Laura Christofferson Title: Vice President MANUFACTURERS AND TRADERS TRUST COMPANY GEOFFREY R. FENN By Geoffrey R. Fenn Title: Vice President THE MITSUBISHI TRUST AND BANKING CORPORATION MASAAKI YAMAGISHI By Masaaki Yamagishi Title: Chief Manager THE MITSUI TRUST AND BANKING COMPANY, LIMITED GERARD MACHADO By Gerard Machado Title: Vice President NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION PERRY G. PELOS By Perry G. Pelos Title: Vice President WESTDEUTSCHE LANDESBANK GIROZENTRALE, New York Branch RICHARD R. NEWMAN By Richard R. Newman Title: Vice President S. BATINELLI By S. Batinelli Title: Vice President WESTDEUTSCHE LANDESBANK GIROZENTRALE, Cayman Islands Branch L. GUERNSEY By L. Guernsey Title: Vice President S. BATINELLI By S. Batinelli Title: Vice President THE YASUDA TRUST AND BANKING COMPANY, LTD. NEIL T. CHAU By Neil T. Chau Title: First Vice President THE FIRST NATIONAL BANK OF CHICAGO LYNN M. HICKEY By Lynn M. Hickey Title: Corporate Banking Officer BANK HAPOALIM B.M., Los Angeles Branch SHMUEL SHAKKED By Shmuel Shakked Title: Senior Vice President LORI LAKE By Lori Lake Title: Assistant Vice President THE CHASE MANHATTAN BANK, N.A. DAHLIA C. MUNROE By Dahlia C. Munroe Title: Second Vice President KREDIETBANK N.V. ROBERT SNAUFFER By Robert Snauffer Title: Vice President THOMAS R. LALLI By Thomas R. Lalli Title: Vice President MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION JOHN BILLINGS By John Billings Title: Vice President THE SUMITOMO BANK OF CALIFORNIA SEISHI JIROMARU By Seishi Jiromaru Title: Senior Vice President & Division Manager EX-4.6 5 EXHIBIT 4.6 AMENDMENT NO. 4 TO CREDIT AGREEMENT AMENDMENT dated as of February 15, 1996, to the $2,200,000,000 Credit Agreement dated as of July 19, 1994 (as heretofore amended, the "Credit Agreement") among FLEMING COMPANIES, INC., the BANKS party thereto, the AGENTS party thereto and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Managing Agent. W I T N E S S E T H: WHEREAS, the Borrower desires to amend the Credit Agreement to effect the amendments reflected herein, and the Banks party hereto are willing to agree to such amendments; NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. Definitions; References. Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement. Each reference to "hereof," "hereunder," "herein" and "hereby" and each other similar reference and each reference to "this Agreement" and each other similar reference contained in the Credit Agreement shall from and after the date hereof refer to the Credit Agreement as amended hereby. SECTION 2. Amendment of Section 1.01 of the Credit Agreement. (a) The definition of "Interest Period" in Section 1.01 of the Credit Agreement is hereby amended by inserting the phrase "one week or" immediately after the word "ending" in the fifth line of clause (1) thereof. (b) The definition of "Interest Period" in Section 1.01 of the Credit Agreement is hereby further amended by inserting the phrase "(other than an Interest Period of one week)" immediately after the phrase "any Interest Period" in the first line of subparagraph (a) thereof. (c) The definition of "Interest Period" in Section 1.01 of the Credit Agreement is hereby further amended by inserting the phrase "(other than an Interest Period of one week)" immediately after the phrase "any Interest Period" in the first line of subparagraph (b) thereof. SECTION 3. Amendment of Section 5.09 of the Credit Agreement. Section 5.09 of the Credit Agreement is hereby amended by changing the table found therein to read in its entirety as follows: Period Ratio Effective Date through April 22, 1995 1.40 to 1 April 23, 1995 through December 30, 1995 1.25 to 1 December 31, 1995 through December 25, 1998 1.10 to 1 December 26, 1998 through December 24, 1999 1.30 to 1 Thereafter 1.60 to 1 SECTION 4. Calculation of Fixed Charge Coverage Covenant. The Banks hereby agree that for purposes of calculating compliance with the covenant contained in Section 5.09 of the Credit Agreement, Consolidated Net Income for any period shall be calculated on a pro-forma basis excluding any non-cash charges taken after October 7, 1995 for (i) amounts with respect to the bankruptcy of Megafoods Stores, Inc. and (ii) losses incurred by the Borrower with respect to the sale or disposition of LAS, Inc., its subsidiaries or any of their assets. SECTION 5. Amendment of Section 9.05 of the Credit Agreement. Subsection (c) of Section 9.05 of the Credit Agreement is amended by changing that portion of the first sentence appearing prior to the proviso therein, to read in its entirety as follows: Any Bank may at any time assign to one or more banks or other institutions (each, an "Assignee"): (x) all of its rights and obligations under this Agreement and the Notes with respect to any Tranche, or (y) any part of its rights and obligations under this Agreement and the Notes (equivalent to combined unused Commitments and outstanding Loans of at least $10,000,000 (except where the Assignee is already a Bank)), provided that if the unused Commitment and outstanding Loans of such transferor Bank for any Tranche are less than $10,000,000, and such transferor Bank wishes to assign any part of its Commitment and Loans for such Tranche (other than to an Assignee that is already a Bank), it must assign all of its Commitment and Loans for such Tranche, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in substantially the form of Exhibit D hereto executed by such Assignee and such transferor Bank with (and subject to) the subscribed consent of the Borrower, the Managing Agent and the Issuing Banks, which consent shall not be unreasonably withheld; SECTION 6. Amendment to Exhibit E. Exhibit E to the Credit Agreement is hereby amended by changing footnote *** on page 2 thereof to read in its entirety as follows: ***For CD Borrowings: 30, 60, 90, 180 or 360 days. For Euro-Dollar Borrowings: one week or 1, 2, 3, 6, or 12 months. SECTION 7. Representations and Warranties. The Borrower hereby represents and warrants that each of the representations and warranties contained in the Credit Agreement shall be true as of the effective date of this Amendment. SECTION 8. Counterparts; Effectiveness. (a) This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. (b) This Amendment shall become effective as of the date hereof when the Managing Agent shall have received duly executed counterparts hereof signed by the Borrower and the Required Banks (or, in the case of any Bank as to which an executed counterpart shall not have been received, the Managing Agent shall have received telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such Bank). (c) Promptly after this Amendment has become effective, the Borrower shall pay to the Managing Agent for the account of each Bank in immediately available funds, an amendment fee in an amount equal to .10% of the sum (as at the opening of business on the date hereof) of (A) the Tranche A Commitment of such Bank and (B) the aggregate outstanding principal amount of the Tranche C Loans of such Bank. SECTION 9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written. FLEMING COMPANIES, INC. By Title: BANKS MORGAN GUARANTY TRUST COMPANY OF NEW YORK By Title: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION By Title: THE BANK OF NOVA SCOTIA By Title: CANADIAN IMPERIAL BANK OF COMMERCE By Title: CREDIT SUISSE By Title: By Title: DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH By Title: By Title: THE FUJI BANK, LIMITED By Title: NATIONSBANK OF TEXAS, N.A. By Title: SOCIETE GENERALE, SOUTHWEST AGENCY By Title: THE SUMITOMO BANK LTD. HOUSTON AGENCY By Title: TEXAS COMMERCE BANK NATIONAL ASSOCIATION By Title: THE TORONTO-DOMINION BANK By Title: UNION BANK OF SWITZERLAND, HOUSTON AGENCY By Title: By Title: FIRST INTERSTATE BANK OF CALIFORNIA By Title: By Title: WACHOVIA BANK OF GEORGIA, NATIONAL ASSOCIATION By Title: CREDIT LYONNAIS NEW YORK BRANCH By Title: COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH By Title: By Title: THE SANWA BANK LIMITED, DALLAS AGENCY By Title: BANQUE NATIONALE DE PARIS By Title: BOATMEN'S FIRST NATIONAL BANK OF OKLAHOMA By Title: CITIBANK N.A. By Title: DAI-ICHI KANGYO BANK, LTD. NEW YORK BRANCH By Title: THE INDUSTRIAL BANK OF JAPAN, LTD. By Title: LTCB TRUST COMPANY By Title: THE MITSUBISHI BANK, LIMITED HOUSTON AGENCY By Title: NATIONAL WESTMINSTER BANK Plc NASSAU BRANCH By Title: NATIONAL WESTMINSTER BANK Plc NEW YORK BRANCH By Title: UNITED STATES NATIONAL BANK OF OREGON By Title: BANK OF AMERICA ILLINOIS By Title: PNC BANK, NATIONAL ASSOCIATION By Title: BANK OF HAWAII By Title: THE BANK OF TOKYO, LTD., DALLAS AGENCY By Title: BANQUE PARIBAS By Title: By Title: BANQUE FRANCAISE DU COMMERCE EXTERIEUR By Title: By Title: BAYERISCHE VEREINSBANK AG, LOS ANGELES AGENCY By Title: By Title: BHF-BANK, NEW YORK BRANCH By Title: By Title: DG BANK DEUTSCHE GENOSSENSCHAFTSBANK By Title: By Title: FIRST HAWAIIAN BANK By Title: FIRST UNION NATIONAL BANK OF NORTH CAROLINA By Title: LIBERTY BANK AND TRUST COMPANY OF OKLAHOMA CITY, N.A. By Title: MANUFACTURERS AND TRADERS TRUST COMPANY By Title: THE MITSUBISHI TRUST AND BANKING CORPORATION By Title: THE MITSUI TRUST AND BANKING COMPANY, LIMITED By Title: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION By Title: WESTDEUTSCHE LANDESBANK GIROZENTRALE, New York Branch By Title: By Title: WESTDEUTSCHE LANDESBANK GIROZENTRALE, Cayman Islands Branch By Title: By Title: THE YASUDA TRUST AND BANKING COMPANY, LTD. By Title: THE FIRST NATIONAL BANK OF CHICAGO By Title: BANK HAPOALIM B.M., Los Angeles Branch By Title: By Title: THE CHASE MANHATTAN BANK, N.A. By Title: KREDIETBANK N.V. By Title: By Title: MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION By Title: THE SUMITOMO BANK OF CALIFORNIA By Title: EX-4.7 6 Exhibit 4.7 INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES The Registrant has various long-term debt agreements which define the rights of the holders of the related debt securities of the Registrant. No agreement with respect to the Registrant's long-term debt exceeds 10% of total assets, except the $1.25 billion Credit Agreement dated as of February 15, 1996 (as amended) (incorporated by reference) and the Indentures dated as of December 15, 1995 (incorporated by reference). Debt agreements that do not exceed 10% of total assets have not been filed. The Registrant agrees to furnish copies of any unfiled debt agreements to the Commission upon request. FLEMING COMPANIES, INC. (Registrant) KEVIN J. TWOMEY Date March 29, 1996 By Kevin J. Twomey Vice President-Controller (Chief Accounting Officer) EX-10.24 7 Exhibit 10.24 OFFER FOR COMPENSATION BILL DOWD PRESIDENT & CHIEF OPERATING OFFICER FLEMING COMPANIES, INC. 1. Salary: $475,000 2. Bonus Potential: $356,250 (Same formula calculations as other executive officers.) 3. 1995 Bonus: Will receive proportionate amount that other executive officers would receive based on EVA calculations for year end results 1995, payable following board meeting in February, 1996. 4. Stock Options: 20,000 time vested shares, 40,000 performance shares, 16,000 restricted shares. 5. Deluxe Cadillac - grade up from vehicles given to executive vice presidents. 6. Country Club membership - social membership only. 7. Relocation: Fleming will reimburse Cott for an equal amount to what they paid to cover the sale and closing on his house. Pay moving costs. Up to 2% of Oklahoma City home value for closing. Temporary living in a company provided apartment. 8. Employment Agreement which takes effect in the event of a change in control. 9. Severance Agreement - if terminated for any reason other than cause, pay one year's salary. 10. Health coverage - company to pay COBRA premium for two months. 11. Retirement/SERP (see attached) Age: 53 Est. Soc. Sec. $15,310 Years to retire: 12 Qualified Annual Pension at age 65 $26,938 Target Total Pension $260,000 Fleming Pension (26,938) Primary & Spousal Soc. Sec. (22,965) Kraft Retirement (50,000) $160,097 Round to: $162,000 Payable as Follows: Year Age at Retirement Annual SERP Payments After year 1 54 0 2 55 0 3 56 0 4 57 0 5 58 0 6 59 $81,000 7 60 94,500 8 61 108,000 9 62 121,500 10 63 135,000 11 64 148,500 12 65 162,000 Agreed to and accepted this 7th day of July, 1995 Fleming Companies, Inc. ROBERT E. STAUTH BILL DOWD By: Robert E. Stauth Bill Dowd Chairman and CEO EX-12 8 Exhibit 12 FLEMING COMPANIES, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES FISCAL YEAR ENDED THE LAST SATURDAY IN DECEMBER
1991 1992 1993 1994 1995 (IN THOUSANDS OF DOLLARS) Earnings: Pretax income $104,329 $194,941 $ 72,078 $112,337 $ 85,892 Fixed charges, net 117,855 105,724 102,311 148,125 212,173 Total earnings $222,184 $300,665 $174,389 $260,462 $298,065 Fixed charges: Interest expense $ 93,353 $ 81,102 $ 78,029 $120,071 $175,390 Portion of rental charges deemed to be interest 22,907 23,027 22,969 27,746 36,456 Capitalized interest and debt issuance cost amortization 1,464 1,287 1,005 364 708 Total fixed charges $117,724 $105,416 $102,003 $148,181 $212,554 Ratio of earnings to fixed charges 1.89 2.85 1.71 1.76 1.40
"Earnings" consist of income from continuing operations before income taxes and fixed charges excluding capitalized interest. Capitalized interest amortized during the respective periods is added back to earnings. "Fixed charges, net" consist of interest expense, an estimated amount of rental expense which is deemed to be representative of the interest factor and amortization of capitalized interest and debt issuance cost. The pro forma ratio of earnings to fixed charges is omitted as it is not applicable. EX-21 9 Exhibit 21 FLEMING COMPANIES, INC. AND CONSOLIDATED SUBSIDIARIES SUBSIDIARIES OF THE REGISTRANT The following table sets forth Fleming's active wholly owned subsidiaries: Name Jurisdiction of Organization Gateway Foods, Inc. Wisconsin Not included above are 3 retail equity store corporations in which Fleming owns more than 50% of the voting securities as described under "Capital Invested in Retailers" in Item 1 hereto. The company has other subsidiaries that are not reflected herein. In the aggregate, these are not significant. EX-24 10 Exhibit 24 POWER OF ATTORNEY We, the undersigned officers and directors of Fleming Companies, Inc. (hereinafter the "Company"), hereby severally constitute Robert E. Stauth, Harry L. Winn, Jr. and David R. Almond, and each of them severally, our true and lawful attorneys with full power to them and each of them to sign for us, and in our names as officers or directors, or both, of the Company, the Annual Report on Form 10-K for the fiscal year ended December 31, 1995, and any and all amendments thereto, 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 or she 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. Dated this 27th day of February, 1996. Signature Title ROBERT E. STAUTH Robert E. Stauth Chairman and Chief Executive Officer HARRY L. WINN, JR. Harry L. Winn, Jr. Executive Vice President and Chief Financial Officer (principal financial officer) KEVIN J. TWOMEY Kevin J. Twomey Vice President - Controller (principal accounting officer) ARCHIE R. DYKES Archie R. Dykes Director CAROL B. HALLETT Carol B. Hallett Director JAMES G. HARLOW, JR. James G. Harlow, Jr. Director LAWRENCE M. JONES Lawrence M. Jones Director EDWARD C. JOULLIAN III Edward C. Joullian III Director HOWARD H. LEACH Howard H. Leach Director GUY A. OSBORN Guy A. Osborn Director EX-27 11
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-K FOR THE YEAR DECEMBER 30, 1995 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 12-MOS DEC-30-1995 DEC-30-1995 4,426 0 375,351 35,136 1,207,329 1,650,771 1,527,526 532,364 4,296,685 1,286,355 1,347,987 0 0 94,291 989,031 4,296,685 17,501,572 17,501,572 16,091,039 17,209,777 0 30,513 175,390 85,892 43,891 42,001 0 0 0 42,001 1.12 1.12
EX-99.1 12 Exhibit 99.1 FORM S-8 UNDERTAKING The following is incorporated by reference in Item 21 of Part II of the registrant's registration statements on Form S-8: Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. 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. -----END PRIVACY-ENHANCED MESSAGE-----