-----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, LxdOVdZR2Ela3iO0moFrYhcYdXm63EaBK5EAvNw1zQIAdZ2Fb7WhsOP1ztMNB+VQ 2I1c/4zuh1KW4aA9Vk0gGw== 0000909334-99-000083.txt : 19990615 0000909334-99-000083.hdr.sgml : 19990615 ACCESSION NUMBER: 0000909334-99-000083 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990611 EFFECTIVENESS DATE: 19990611 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: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-80445 FILM NUMBER: 99644555 BUSINESS ADDRESS: STREET 1: 6301 WATERFORD BLVD STREET 2: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73126 BUSINESS PHONE: 4058407200 MAIL ADDRESS: STREET 1: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73216-0647 S-8 1 As filed with the Securities and Registration No. _____ Exchange Commission on June 11, 1999 FORM S-8 Registration Statement under the Securities Act of 1933 FLEMING COMPANIES, INC. (Exact name of registrant as specified in its charter) Oklahoma 48-0222760 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 6301 Waterford Boulevard P. O. Box 26647 Oklahoma City, Oklahoma 73126-0647 (Address of Principal Executive Office) (Zip Code) FLEMING COMPANIES, INC. 1999 STOCK INCENTIVE PLAN (Full title of the plan) David R. Almond Senior Vice President, General Counsel and Secretary Fleming Companies, Inc. 6301 Waterford Boulevard P. O. Box 26647 Oklahoma City, Oklahoma 73126-0647 (Name and address of agent for service) 405/840-7200 (Telephone number, including area code, of agent for service) Calculation of Registration Fee - ------------------------------------------------------------------ Proposed Proposed Title of maximum maximum securities Amount offering aggregate Amount of to be to be price offering registra- registered registered per unit(1) price(1) tion fee - ------------------------------------------------------------------ Common Stock, 2,700,000 (3) $11.1563 $30,122,010 $8,373.92 $2.50 par value - ------------------------------------------------------------------ (1) Estimated pursuant to Rules 457(c) and (h) of the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee and based upon the average of the high and low prices of Fleming Companies, Inc. Common Stock as reported by the New York Stock Exchange on June 7, 1999. (2) The number of shares of Common Stock stated above is the aggregate number of such shares which may be issued on the exercise of options or the award of restricted stock under the Fleming Companies, Inc. 1999 Stock Incentive Plan (the "Plan") registered under this Registration Statement. The maximum number of shares which may be issued under the Plan cannot presently be determined since adjustments in the number of shares may be made in the event of stock splits, stock dividends, or other changes in the corporate structure or shares as specified in the Plan. Accordingly, this Registration Statement covers, in addition to the number of shares of Common Stock stated above, an indeterminate number of shares, which by reason of any of such event may become subject to issuance under the Plan. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The registrant incorporates herein by reference the following documents filed with the Securities and Exchange Commission (the "Commission"): (a) The registrant's Annual Report on Form 10-K for the fiscal year ended December 26, 1998. (b) The registrant's Quarterly Report on Form 10-Q for the period ended April 17, 1999. (c) The registrant's current reports on Form 8-K dated April 16, 1999 and April 23, 1999. (d) The description of Common Stock contained in the registrant's Registration Statement on Form 8-A, as amended, filed under the Exchange Act (File No. 1-8140). All reports hereafter filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all of the shares of the registrant's Common Stock covered by this registration statement have been sold or which de-registers all such shares then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. Section 1031 of the Oklahoma General Corporation Act, under which act the registrant is incorporated, authorizes the indemnification of officers and directors in certain circumstances. Article Thirteenth of the registrant's Restated Certificate of Incorporation, as well as Article 8 of the registrant's Bylaws, provide indemnification of directors, officers and agents to the extent permitted by the Oklahoma General Corporation Act. These provisions may be sufficiently broad to indemnify such persons for liabilities under the Securities Act of 1933. In addition, Article Thirteenth of the registrant's Restated Certificate of Incorporation permits the exculpation of a director for monetary damages for breach of fiduciary duty as a director. In addition, the registrant maintains insurance policies which insure its officers and directors against certain liabilities. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the registrant's Quarterly Report on Form 10-Q for quarter ended April 17, 1999). 4.2 Bylaws (incorporated by reference to Exhibit 3.2 to the registrant's Quarterly Report on to Form 10-Q for quarter ended April 17, 1999). 5 Opinion of McAfee & Taft A Professional Corporation. 15 Letter from Independent Accountants As to Unaudited Interim Financial Information. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of McAfee & Taft A Professional Corporation (See Exhibit 5 hereto). 24 Power of Attorney. 99.1 Fleming Companies, Inc. 1999 Stock Incentive Plan dated November 30, 1998 (incorporated by reference to Exhibit A to the registrant's Proxy Statement dated April 2, 1999). 99.2 Form of Nonqualified Stock Option Agreement under Fleming Companies, Inc. 1999 Stock Incentive Plan (incorporated by reference to Exhibit 10.39 to the registrant's Annual Report on Form 10-K for the fiscal year ended December 26, 1998). Item 9. Undertakings. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefor, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oklahoma City, State of Oklahoma, on the 11th day of June, 1999. FLEMING COMPANIES, INC. (Registrant) By MARK S. HANSEN Mark S. Hansen Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date --------- ----- ---- MARK S. HANSEN Chairman, Chief ) Mark S. Hansen Executive Officer and ) Director ) ) ) JOHN T. STANDLEY Executive Vice President ) John T. Standley and Chief Financial ) Officer ) ) ) KEVIN J. TWOMEY Senior Vice President ) Kevin J. Twomey and Controller (Principal) Accounting Officer ) ) June 11, 1999 ARCHIE R. DYKES Director ) Archie R. Dykes ) ) CAROL B. HALLETT Director ) Carol B. Hallett ) ) HERBERT M. BAUM Director ) Herbert M. Baum ) ) EDWARD C. JOULLIAN III Director ) Edward C. Joullian III ) ) JACK W. BAKER Director ) Jack W. Baker ) ) ALICE M. PETERSON Director ) Alice M. Peterson ) ) GUY A. OSBORN Director ) Guy A. Osborn ) ) DAVID A. RISMILLER Director ) David A. Rismiller ) INDEX TO EXHIBITS Exhibit No. Method of Filing - ------- ---------------- 4.1 Restated Certificate of Incorporation Incorporated herein by reference 4.2 Bylaws Incorporated herein by reference 5 Opinion of McAfee & Taft A Professional Filed herewith electronically Corporation 15 Letter from Independent Accountants As Filed herewith electronically to Unaudited Interim Financial Information 23.1 Consent of Deloitte & Touche LLP Filed herewith electronically 23.2 Consent of McAfee & Taft A Professional Filed herewith electronically Corporation (See Exhibit 5 hereto) 24 Power of Attorney Filed herewith electronically 99.1 Fleming Companies, Inc. 1999 Stock Incorporated herein by Incentive Plan dated November 30, 1998 reference 99.2 Form of Nonqualified Stock Option Incorporated herein by Agreement for Fleming Companies, reference Inc. 1999 Stock Incentive Plan EX-5 2 Exhibit 5 Law Offices McAfee & Taft A Professional Corporation Tenth Floor, Two Leadership Square 211 North Robinson Oklahoma City, Oklahoma 73102-7101 (405) 235-9621 Fax (405) 235-0439 June 11, 1999 Fleming Companies, Inc. 6301 Waterford Boulevard Post Office Box 26647 Oklahoma City, Oklahoma 73126 Gentlemen: Reference is made to your Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission today with respect to 2,700,000 shares of common stock, $2.50 par value per share (the "Common Stock") to be issued pursuant to the Fleming Companies, Inc. 1999 Stock Incentive Plan (the "Plan"). We have examined your corporate records and made such other investigations as we deemed appropriate for the purpose of this opinion. Based upon the foregoing, we are of the opinion that: 1. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Oklahoma. 2. The issuance of the Common Stock has been duly authorized by appropriate corporate action on behalf of the Company. 3. When issued pursuant to the Plan, the Common Stock will be validly issued, and will be fully paid and non-assessable. We hereby consent to the inclusion of this opinion as an exhibit to the above mentioned Registration Statement. Very truly yours, MCAFEE & TAFT A PROFESSIONAL CORPORATION McAfee & Taft A Professional Corporation EX-15 3 Exhibit 15 Fleming Companies, Inc. 6301 Waterford Boulevard P.O. Box 26647 Oklahoma City, Oklahoma 73126 We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of Fleming Companies, Inc. and subsidiaries for the sixteen weeks ended April 17, 1999 and April 18, 1998, as indicated in our report dated May 5, 1999; because we did not perform an audit, we expressed no opinion on that information. We are aware that our report referred to above, which was included in your Quarterly Report on Form 10-Q for the sixteen weeks ended April 17, 1999, is being used in this Registration Statement. We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. DELOITTE & TOUCHE LLP Oklahoma City, Oklahoma June 11, 1999 EX-23 4 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Fleming Companies, Inc. on Form S-8 of our report dated February 18, 1999 appearing in the Annual Report on Form 10-K of Fleming Companies, Inc. and subsidiaries for the year ended December 26, 1998. DELOITTE & TOUCHE LLP Oklahoma City, Oklahoma June 11, 1999 EX-24 5 Exhibit 24 POWER OF ATTORNEY We, the undersigned officers and directors of Fleming Companies, Inc. (hereinafter the "Company"), hereby severally constitute Mark S. Hansen and David R. Almond, and each of them, severally, our true and lawful attorneys-in-fact with full power to them and each of them to sign for us, and in our names as officers or directors, or both, of the Company, a Registration Statement (and any and all amendments thereto, including post- effective amendments) on Form S-8 to be filed with the Securities and Exchange Commission for the purpose of registering under the Securities Act of 1993 up to 2,700,000 shares of common stock of the Company to be issued pursuant to the Fleming Companies, Inc. 1999 Stock Incentive Plan, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Signature Title Date --------- ----- ---- MARK. S. HANSEN Chairman, Chief ) Mark S. Hansen Executive Officer and ) Director ) ) JOHN T. STANDLEY Executive Vice President ) John T. Standley and Chief Financial ) Officer ) ) KEVIN J. TWOMEY Senior Vice President ) Kevin J. Twomey and Controller (Principal ) Accounting Officer ) ) ARCHIE R. DYKES Director ) June 11, 1999 Archie R. Dykes ) ) CAROL B. HALLETT Director ) Carol B. Hallett ) ) HERBERT M. BAUM Director ) Herbert M. Baum ) ) EDWARD C. JOULLIAN III Director ) Edward C. Joullian III ) ) JACK W. BAKER Director ) Jack W. Baker ) ) ALICE M. PETERSON Director ) Alice M. Peterson ) ) GUY A. OSBORN Director ) Guy A. Osborn ) ) DAVID A. RISMILLER Director ) David A. Rismiller ) -----END PRIVACY-ENHANCED MESSAGE-----