-----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, ELhJHji6wrhF0llQP3grqd0fdUCsdNib1TmDUSUqlF3QHYKL8NdOxkEphc0MzkTQ agDs3iLkZr5FvXbZLG8tzQ== 0000950134-02-013813.txt : 20021112 0000950134-02-013813.hdr.sgml : 20021111 20021112122307 ACCESSION NUMBER: 0000950134-02-013813 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20021112 EFFECTIVENESS DATE: 20021112 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: 1933 Act SEC FILE NUMBER: 333-101131 FILM NUMBER: 02816209 BUSINESS ADDRESS: STREET 1: 1945 LAKEPOINTE DRIVE CITY: LEWISVILLE STATE: TX ZIP: 73126 BUSINESS PHONE: 4058407200 MAIL ADDRESS: STREET 1: 1945 LAKEPOINT DRIVE CITY: LEWISVILLE STATE: TX ZIP: 75057 S-8 1 d01062sv8.txt FORM S-8 United States Securities and Exchange Commission Washington, D.C. 20549 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 of incorporation) (I.R.S. Employer Identification No.) P.O. Box 299013 1945 Lakepointe Drive Lewisville, Texas 75029 (Address of Principal Executive Office) FLEMING COMPANIES, INC. KEY EXECUTIVE PERFORMANCE PLAN (Full title of the plan) Carlos M. Hernandez Senior Vice President, General Counsel and Secretary Fleming Companies, Inc. P.O. Box 299013 1945 Lakepointe Drive Lewisville, Texas (Name and address of agent for service) 972-906-8000 (Telephone number, including area code, of agent for service) Calculation of Registration Fee
- ---------------------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Title of securities to Amount to be offering price per aggregate offering Amount of be registered registered unit(1) price registration fee - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Common Stock, $2.50 par 5,000,000 $6.04 $30,200,000 $2,778.40 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 November 8, 2002. EXPLANATORY NOTE This registration statement relates to shares of common stock of Fleming Companies, Inc. (the "Company") that may be acquired under the Fleming Companies, Inc. Key Executive Performance Plan (the "Plan"). Shares of the Company's common stock acquired under the Plan are obtained through open market purchases at prevailing market prices. Such transactions do not involve the original issuance by the Company of any new shares of common stock or result in a change in the number of outstanding shares of common stock of the Company. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information (1) Item 2. Registrant Information and Employee Plan Annual Information (1) - ---------- (1) Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8 and has been or will be sent or given to participants in the Plan as specified in Rule 428(b)(1). PART II INFORMATION REQUIRED IN THE 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"): (1) The registrant's Annual Report on Form 10-K (as amended on Form 10-K/A filed October 16, 2002) for the fiscal year ended December 29, 2001. (2) The registrant's quarterly reports on Form 10-Q for the periods ended April 20, 2002 (as amended on Form 10-Q/A filed October 16, 2002), July 13, 2002 (as amended on Form 10-Q/A filed October 16, 2002) and November 6, 2002. (3) The registrant's current reports on Form 8-K filed April 12, 2002, April 16, 2002, April 24, 2002, May 20, 2002 (as amended on Forms 8-K/A filed May 29, 2002, June 14, 2002, June 18, 2002 and October 16, 2002), August 6, 2002, August 12, 2002, September 25, 2002 and two separate current reports on Form 8-K filed October 23, 2002. (4) The description of Common Stock contained in the registrant's Registration Statement on Form 8-A, as amended, filed under the Exchange Act on April 19, 1983 (File No. 1-8140), including any amendments or reports filed for the purpose of updating such description. All documents 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 deregisters 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. Not applicable. Item 6. Indemnification of Directors and Officers. Section 1031 of the Oklahoma General Corporation Act, under which act the registrant is incorporated, authorizes the indemnification of officers and directors in certain circumstances. Article Thirteen of the registrant's Restated Certificate of Incorporation, as well as Section 8.3 of the registrant's Bylaws, provide II-1 indemnification of directors, officers and agents to the extent permitted by Oklahoma General Corporation Act. These provisions may be sufficiently broad to indemnify such persons for liabilities under the Securities Act of 1933. In addition, Article Thirteen 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 that insure its officers and directors against certain liabilities. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Certificate of Incorporation (incorporated by reference to Exhibit 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 Form 10-Q for quarter ended April 17, 1999). 15 Letter from Independent Accountants as to Unaudited Interim Financial Information. 23 Consent of Deloitte & Touche LLP. 24 Power of Attorney (included on signature page). 99.1 Fleming Companies, Inc. Key Executive Retention Plan effective as of February 27, 2001 (incorporated by reference to Exhibit A to registrant's Proxy Statement filed with the Commission on March 28, 2001). 99.2 2002-1 Amendment to the Fleming Companies, Inc. Key Executive Retention Plan dated February 26, 2002. 99.3 2002-2 Amendment to the Fleming Companies, Inc. Key Executive Performance Plan effective November 11, 2002. 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; II-2 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein. 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 herein shall be deemed to be a new registration statement relating to the securities offered herein, 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. II-3 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 Lewisville, State of Texas, on the 8th day of November, 2002. (Registrant) FLEMING COMPANIES, INC. By: /s/ CARLOS M. HERNANDEZ ------------------------------------------- Carlos M. Hernandez Senior Vice President, General Counsel and Secretary We, the undersigned officers and directors of Fleming Companies, Inc. (hereinafter the "Company"), hereby severally constitute Mark S. Hansen and Carlos M. Hernandez, 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, this registration statement on Form S-8 (and any and all amendments thereto, including post-effective amendments) to be filed with the Securities and Exchange Commission, 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. 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 - --------- ----- ---- /s/ MARK S. HANSEN Chairman of the Board and Chief ) - ---------------------------------------- Executive Officer ) Mark S. Hansen ) ) /s/ NEAL J. RIDER Executive Vice President and Chief ) - ---------------------------------------- Financial Officer (principal ) Neal J. Rider Financial officer) ) ) ) /s/ MARK D. SHAPIRO Senior Vice President, Finance and ) - ---------------------------------------- Operations Control (principal ) November 8, 2002 Mark D. Shapiro accounting officer) ) ) ) ) /s/ HERBERT M. BAUM Director ) - ---------------------------------------- ) Herbert M. Baum ) ) /s/ KENNETH M. DUBERSTEIN Director ) - ---------------------------------------- ) Kenneth M. Duberstein ) ) /s/ ARCHIE R. DYKES Director ) - ---------------------------------------- ) Archie R. Dykes ) ) /s/ CAROL B. HALLETT Director ) - ---------------------------------------- ) Carol B. Hallett ) ) /s/ ROBERT S. HAMADA Director ) - ---------------------------------------- ) Robert S. Hamada ) ) /s/ ALICE M. PETERSON Director ) - ---------------------------------------- ) Alice M. Peterson )
INDEX TO EXHIBITS
Exhibit No. - ----------- 4.1 Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to 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 Form 10-Q for quarter ended April 17, 1999). 15 Letter from Independent Accountants as to Unaudited Interim Financial Information. 23 Consent of Deloitte & Touche LLP. 24 Power of Attorney (included on signature page). 99.1 Fleming Companies, Inc. Key Executive Retention Plan effective as of February 27, 2001 (incorporated by reference to Exhibit A to registrant's Proxy Statement filed with the Commission on March 28, 2001). 99.2 2002-1 Amendment to the Fleming Companies, Inc. Key Executive Retention Plan dated February 26, 2002. 99.3 2002-2 Amendment to the Fleming Companies, Inc. Key Executive Performance Plan effective November 11, 2002.
EX-15 3 d01062exv15.txt LETTER AS TO UNAUDITED INTERIM FINANCIAL INFO. EXHIBIT 15 [DELOITTE & TOUCHE LETTERHEAD] November 12, 2002 Fleming Companies, Inc. 1945 Lakepointe Drive Lewisville, Texas 75057-6424 We have made reviews, in accordance with standards established by the American Institute of Certified Public Accountants, of the following unaudited interim financial information of Fleming Companies, Inc. and subsidiaries as indicated in our reports referenced below; because we did not perform an audit, we expressed no opinion on that information.
Period Ended Review Report Dated ------------ ------------------- April 20, 2002 May 7, 2002 July 13, 2002 July 30, 2002 October 5, 2002 October 23, 2002
We are aware that our reports referred to above, which are included in your Quarterly Reports on Forms 10-Q for the periods mentioned above, are being used in this registration statement. We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the registration statement prepared or certified by an accountant, or reports prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. DELOITTE & TOUCHE LLP EX-23 4 d01062exv23.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23 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 23, 2002 appearing in the Annual Report on Form 10-K of Fleming Companies, Inc. and subsidiaries for the year ended December 29, 2001. DELOITTE & TOUCHE LLP Dallas, Texas November 12, 2002 EX-99.2 5 d01062exv99w2.txt 2002-1 AMENDMENT TO KEY EXECUTIVE RETENTION PLAN EXHIBIT 99.2 2002-1 AMENDMENT TO THE FLEMING COMPANIES, INC. KEY EXECUTIVE RETENTION PLAN The Fleming Companies, Inc. Key Executive Retention Plan (the "Plan") is hereby amended as follows: I. NAME The Plan is hereby amended to change the name of the Plan to the following: "Fleming Companies, Inc. Key Executive Performance Plan." II. DEFINITIONS The Plan is hereby amended by deleting Section 2.1(w) in its entirety and replacing it with the following: "(w) Extraordinary Charge Items: The words "Extraordinary Charge Items" shall mean for the Year of determination of an Award: (i) the expense items and other charges as determined extraordinary in accordance with GAAP, consistently applied, as shall appear on the consolidated earnings statements of the Company for such Year; and (ii) expense items and other charges that are unusual or non-recurring and excluded from earnings reported by external public equity analysts in First Call Research Network." The Plan is hereby amended by deleting Section 2.1(x) in its entirety and replacing it with the following: "(x) Extraordinary Revenue Items: The words "Extraordinary Revenue Items" shall mean for the Year of determination of an Award: (i) the revenue items determined as extraordinary in accordance with GAAP, consistently applied, as shall appear on the consolidated earnings statements of the Company; and (ii) revenue items that are unusual or non-recurring and excluded from earnings reported by external public equity analysts in First Call Research Network." III. VESTING Section 4.1(c) of the Plan is hereby amended to insert the following additional language after the vesting chart for 2001 Awards: "The chart provided above applies only to Awards granted with an Award Period that begins in 2001. Participants selected by the Committee with an Award Period beginning after 2002 shall be subject to vesting schedules established in the sole discretion of the Committee." Except as otherwise provided in this 2002-1 Amendment to The Fleming Companies, Inc. Key Executive Retention Plan (the "Amendment"), the Plan is hereby ratified and confirmed in all respects. This Amendment is adopted this 26th day of February, 2002 and shall be effective as of the Effective Date of the Plan. FLEMING COMPANIES, INC., an Oklahoma corporation By: /s/ SCOTT M. NORTHCUTT ------------------------------------------ Scott M. Northcutt, Executive Vice President - Human Resources ATTEST: /s/ CARLOS M. HERNANDEZ - ------------------------------------------- Carlos M. Hernandez, Senior Vice President, General Counsel and Secretary 2 EX-99.3 6 d01062exv99w3.txt 2002-2 AMENDMENT TO KEY EXECUTIVE PERFORMANCE PLAN EXHIBIT 99.3 2002-2 AMENDMENT TO THE FLEMING COMPANIES, INC. KEY EXECUTIVE PERFORMANCE PLAN The Fleming Companies, Inc. Key Executive Performance Plan, formerly known as the Fleming Companies, Inc. Key Executive Retention Plan (the "Plan"), is hereby amended as follows: The Plan is hereby amended by deleting Section 4.3 in its entirety and replacing it with the following: "4.3 Account Investment Alternatives. (a) Company Deferred Awards. The amounts held in Participant's Account attributable to the unvested portion of the Company Deferred Award shall be credited as of the last day of each calendar quarter with interest calculated at a rate equal to the prime rate of interest plus 1% as published in the WALL STREET JOURNAL (Southwest Edition) in the Money Rate Section as of the beginning of each calendar quarter, and interest will continue to be allocated until the applicable Account has been paid in full. (b) Participant Deferred Awards and Vested Company Deferred Awards. The Participant may make an election at any time to have the amounts held in his Account that are attributable to the Participant's Deferred Award or the vested Company Deferred Award deemed invested in either (i) an interest investment (as provided in (i) below) or (ii) a Company stock investment (as provided in (ii) below). Once a Participant makes an election to have all or a portion of his Deferred Award or vested Company Deferred Award invested in the Company Stock Alternative, the Participant cannot elect to transfer such amounts to the Interest Alternative described below. (i) Interest Alternative. If a Participant makes an interest investment election, the Participant's Account shall be credited as of the last day of each calendar quarter with interest calculated at a rate equal to the prime rate of interest plus 1% as published in the WALL STREET JOURNAL (Southwest Edition) in the Money Rate Section as of the beginning of each calendar quarter, and such interest earnings will continue to be allocated until the applicable Account has been paid in full. (ii) Company Stock Alternative. If a Participant makes a Company stock investment election, the Company shall transfer to a trustee of a grantor trust established by the Company (the "Trust") cash equal to the amount of such election. The trustee of the Trust shall have the right to purchase shares of Company common stock on the open market at the discretion of the trustee. In the event the trustee declines to purchase Company common stock, Participant's deferrals shall be deemed automatically invested in the Interest Alternative. A separate recordkeeping account will be established in the Trust for the benefit of the Participant. During the period that these shares are held by the trustee, any cash dividends paid with respect to such shares shall be credited to the Participant's Account. Such shares shall continue to be held by the trustee until the applicable payment date as provided in Article V of this Plan, and any future appreciation or depreciation with respect to the shares as well as any distributions that are made with respect to such shares shall be allocated on a reasonable and consistent basis to such Account. The value of the Company stock held in the Account shall be determined on a quarterly basis. Distributions from the Trust will only be made in accordance with Article V of this Plan. It is intended by the Company that distributions from the Trust will be made in shares of Company stock represented by the Participant's beneficial interest in the Trust equal to his Account. While shares of the Participant's Company stock are held in the Trust, the Participant shall neither have the right to vote such shares (but such shares will be voted by the trustee), nor will the Participant have any other incidence of ownership or rights as a shareholder with respect to such shares held in the Trust." Except as otherwise provided in this 2002-2 Amendment to The Fleming Companies, Inc. Key Executive Performance Plan (the "Amendment"), the Plan is hereby ratified and confirmed in all respects. This Amendment is adopted and effective this 11th day of November, 2002. FLEMING COMPANIES, INC., an Oklahoma corporation By: /s/ SCOTT M. NORTHCUTT --------------------------------- Scott M. Northcutt, Executive Vice President - Human Resources ATTEST: /s/ CARLOS M. HERNANDEZ - ------------------------------------------ Carlos M. Hernandez, Senior Vice President, General Counsel and Secretary 2 -----END PRIVACY-ENHANCED MESSAGE-----