-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, SbkktBMmjGzhBL9RE9hJbBjcRfVeogfZBW7/SvP2E7msK0LwRk+1Ya76gd7YYEh/ pe+O/OTmJeDeA6pi12tlKg== 0000950134-94-001237.txt : 19941104 0000950134-94-001237.hdr.sgml : 19941104 ACCESSION NUMBER: 0000950134-94-001237 CONFORMED SUBMISSION TYPE: S-3D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19941028 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FLEMING COMPANIES INC /OK/ CENTRAL INDEX KEY: 0000352949 STANDARD INDUSTRIAL CLASSIFICATION: 5140 IRS NUMBER: 480222760 STATE OF INCORPORATION: OK FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-3D SEC ACT: 1933 Act SEC FILE NUMBER: 033-56241 FILM NUMBER: 94555944 BUSINESS ADDRESS: STREET 1: 6301 WATERFORD BLVD STREET 2: P O BOX 26647 CITY: OKLAHOMA CITY STATE: OK ZIP: 73126 BUSINESS PHONE: 4058407200 S-3 1 FORM S-3 1 As filed with the Securities and Exchange Commission on October 28, 1994 Registration Statement No. 33-______ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________________ FORM S-3 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 of (I.R.S. Employer incorporation or organization) Identification No.) P. O. Box 26647 6301 Waterford Boulevard Oklahoma City, Oklahoma 73126 (Address of Principal Executive Office) (Zip Code) __________________________ DAVID R. ALMOND Senior Vice President - General Counsel and Secretary Copies to: Fleming Companies, Inc. P. O. Box 26647 JOHN M. MEE, Esq. 6301 Waterford Boulevard McAfee & Taft Oklahoma City, Oklahoma 73126 A Professional Corporation (405) 840-7200 Tenth Floor (Address and telephone number Two Leadership Square of agent for service) Oklahoma City, Oklahoma 73102 __________________________ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the Registration Statement becomes effective. _________________________ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. (X) _________________________ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ( ) __________________________ CALCULATION OF REGISTRATION FEE
=============================================================================================================== Proposed Proposed Amount Maximum Maximum Amount of to be Offering Price Aggregate Registration Securities to be Registered Registered Per Unit Offering Price Fee - - --------------------------------------------------------------------------------------------------------------- Common Stock, $2.50 par value 600,000 Shares $23.31(1) $13,987,500(1) $4,823.28(1) ===============================================================================================================
(1) Fee calculated pursuant to Rule 457(c) using the average of the high and low sales prices on the New York Stock Exchange on October 27, 1994, pursuant to the terms of the Fleming Dividend Reinvestment and Stock Purchase Plan. 2 PROSPECTUS DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN (FLEMING LOGO) 600,000 SHARES COMMON STOCK Fleming Companies, Inc. ("Fleming") hereby offers to holders of its common stock, par value $2.50, the opportunity to purchase additional shares of common stock by having their cash dividends automatically reinvested and, if they wish, by making optional cash payments. This prospectus sets forth the details of the company's Dividend Reinvestment and Stock Purchase Plan (the "Plan") which incorporates the following features: - Shareholders who elect to participate will be able to reinvest their dividends in shares of Fleming common stock at a 5% discount from market value, determined as provided in the Plan. - Optional cash payments of up to $5,000 per calendar quarter also may be utilized to purchase additional shares. Such shares will be purchased at market value, as set forth in the Plan. - No brokerage commissions or service fees will be charged on any shares purchased through either reinvested dividends or optional cash payments. Shares purchased under the Plan are expected to be newly issued shares of previously authorized but unissued common stock. The issued and outstanding shares of Fleming's common stock are, and the shares sold pursuant to the Plan will be, listed on the New York Stock Exchange. Shareholders who do not choose to participate will continue to receive cash dividends, when and as declared by the board of directors of the company, in the usual manner. ------------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. - - -------------------------------------------------------------------------------- THE DATE OF THIS PROSPECTUS IS OCTOBER 28, 1994. 3 STATEMENT OF AVAILABLE INFORMATION Fleming is subject to the informational requirements of the Securities Exchange Act of 1934 and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 5th Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at 7 World Trade Center, 13th Floor, New York, New York 10048 and Suite 1400, Northwestern Atrium Center, 14th Floor, 500 West Madison Street, Chicago, Illinois 60661. Copies of such material can be obtained from the Public Reference Section of the Commission at prescribed rates at the principal office of the Commission at Judiciary Plaza, 450 5th Street, N.W., Washington, D.C. 20549. In addition, such reports, proxy statements and information concerning the company can be inspected and copied at the New York Stock Exchange, 20 Broad Street, New York, New York 10005, the Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco, California 94104 and the Chicago Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The company's Annual Report on Form 10-K for the year ended December 25, 1993, the company's Quarterly Reports on Form 10-Q for the fiscal quarters ended April 16, 1994 and July 9, 1994, the company's Current Reports on Form 8-K dated July 19, 1994 (as amended by Form 8-KA filed September 2, 1994), September 23, 1994 and October 19, 1994, and the description of the company's common stock contained in the Registration Statement on Form 8-A dated March 23, 1989, filed under the Securities Exchange Act of 1934 (File No. 1-8140) are hereby incorporated in this Prospectus by reference, and all documents subsequently filed by the company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the termination of the offering described herein, shall be deemed to be incorporated in this Prospectus and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for all purposes to the extent that a statement contained in this Prospectus or in any other subsequently filed document which is also incorporated by reference modifies or replaces such statement. The company will provide without charge to each person to whom this Prospectus is delivered, on written or oral request of such person, a copy (without exhibits) of any or all documents incorporated by reference in this Prospectus. Requests for such copies should be directed to David R. Almond, Senior Vice President -- General Counsel and Secretary, Fleming Companies, Inc., (i) if by telephone to (405) 840-7200 and (ii) if by mail to P. O. Box 26647, Oklahoma City, Oklahoma 73126. 2 4 THE COMPANY The company is a recognized leader in the food marketing and distribution industry with both wholesale and retail operations. The company is the largest food wholesaler in the United States as a result of the acquisition of Haniel Corporation and its sole direct subsidiary, Scrivner, Inc., and Scrivner, Inc.'s subsidiaries in July 1994 (the "Acquisition"), based on pro forma 1993 net sales of approximately $19 billion. The company serves as the principal source of supply for approximately 10,000 retail food stores, including approximately 3,700 supermarkets (defined as any retail food store with annual sales of at least $2 million) which represented approximately 13% of all supermarkets in the United States at year-end 1993 and totaled approximately 97 million square feet in size. The company serves food stores of various sizes operating in a wide variety of formats, including conventional full-service stores, supercenters, prices impact stores (including warehouse stores), combination stores (which typically carry a higher proportion of non-food items) and convenience stores. With customers in 43 states, the company services a geographically diverse area. The company's wholesale operations offer a wide variety of national brand and private label products, including groceries, meat, dairy and delicatessen products, frozen foods, fresh produce, bakery goods and a variety of general merchandise and related items. In addition, the company offers a wide range of support services to its customers to help them compete more effectively with other food retailers in their respective markets. Such services include store development and expansion services, merchandising and marketing assistance, advertising, consumer education programs, retail electronic services and employee training. In addition to its wholesale operations, the company has a significant presence in food retailing, owning and operating 345 retail food stores, including 283 supermarkets with an aggregate of approximately 9.5 million square feet. The company-owned stores operate under a number of names and vary in format from super warehouse stores and conventional supermarkets to convenience stores. Pro forma 1993 net sales from retail operations were approximately $3 billion, giving effect to the Acquisition. The company believes it is one of the 20 largest food retailers in the United States based on pro forma net sales. The mailing address of the company's principal executive office is P.O. Box 26647, Oklahoma City, Oklahoma 73126, and the company's telephone number is (405) 840-7200. THE PLAN ADMINISTRATOR The board of directors of the company has appointed Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. (the "Bank") as administrator of the Plan. Please address all correspondence concerning the Plan to: Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. Fleming Dividend Reinvestment Plan P. O. Box 25848 9th Floor Oklahoma City, Oklahoma 73125 Attn: Stock Transfer Department Please mention Fleming Companies, Inc. in your correspondence and, if you become a participant, give your account number. If you prefer, you may call the Bank at 1-800-395-2662, Extension 6711. 3 5 THE PLAN The company is offering to shareholders the opportunity to purchase shares of its common stock pursuant to the Plan. The Plan provides that holders of the company's common stock can reinvest their cash dividends in additional shares of common stock and, if they do so, they may also make additional cash payments for the same purpose. As explained below, the cash dividends of a shareholder who participates are reinvested for him by the administrator of the Plan, along with any optional cash payments of not less than $25 per payment. Optional cash payments are limited to a maximum of $5,000 per calendar quarter. The Plan is described in the following questions and answers: 1. WHAT IS THE PURPOSE OF THE PLAN? The Plan provides participating shareholders with a convenient and economical method of investing their cash dividends in additional shares of common stock and purchasing additional shares of common stock through optional cash payments 2. WHAT ARE THE PRINCIPAL FEATURES? A 5% discount from market value (determined as provided in "Determination of Offering Price") is allowed on shares purchased with reinvested dividends only. Participants may also purchase shares of common stock at market value by making optional cash payments as provided in the Plan. Participants do not pay any brokerage commissions or service charges for purchases made under the Plan. Full investment of funds is possible because the Plan permits fractions of shares, as well as full shares, to be credited to a participant's account. 3. WHO IS ELIGIBLE TO PARTICIPATE? All holders of record of Fleming common stock are eligible to participate. 4. WHO ADMINISTERS THE PLAN? Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. administers the Plan and makes purchases of shares of common stock from the company as agent for all participants. The Bank will keep a record of dividends reinvested and purchases made under the Plan and will send participants a statement of account following each dividend payment and reinvestment transaction. The Bank will also act as custodian of shares purchased under the Plan. 5. HOW DO SHAREHOLDERS JOIN THE PLAN? Any eligible shareholder may join the Plan by completing the authorization card included with this prospectus for all new shareholders and returning it to the Bank. If needed, additional authorization cards may be obtained at any time by writing or calling the Bank or the company. The Bank will provide information and forms for optional cash payments. The authorization card directs the company to pay to the Bank the cash dividends on shares of common stock registered in the participant's name and on shares of common stock credited to his account under the 4 6 Plan. The authorization card also directs the Bank to use cash dividends, together with any optional cash payments made by the participant, to purchase additional shares of stock. 6. CAN A SHAREHOLDER PARTICIPATE ONLY AS TO SOME OF HIS SHARES? Yes. A shareholder may participate in the Plan with respect to less than all shares registered in his name (a specified number of full shares) and continue to receive cash dividends on the remaining shares. 7. WHEN MAY AN ELIGIBLE SHAREHOLDER JOIN? An eligible shareholder may join the Plan at any time. If an authorization card is received by the Bank on or before the record date for the payment of a cash dividend, reinvestment of the participant's dividends will commence with that dividend payment. Dividend record and payment dates normally are on or close to the dates shown below:
RECORD DATE PAYMENT DATE -------------------------------------------------------------- ------------- February 20................................................... March 10 May 20........................................................ June 10 August 20..................................................... September 10 November 20................................................... December 10
If an authorization card is received after the record date for a cash dividend, the dividend will be paid in cash, and participation in the Plan will begin with the next cash dividend payment. For example, if an authorization card is received on or before February 20, the dividend payable on March 10 will be reinvested under the Plan. If an authorization card is received after February 20, then the first dividend reinvested under the Plan will be the dividend payable on June 10. 8. WHEN WILL PURCHASES OF STOCK BE MADE? Purchases will be made on the 10th day of each month (the "Investment Date"). If the 10th day of the month falls on a Saturday, Sunday or other day on which the New York Stock Exchange or banking institutions are closed, the Investment Date will be the next preceding business day on which the New York Stock Exchange and banking institutions are not closed. The March, June, September and December Investment Dates correspond with the quarterly dividend payment dates. The participant's dividends, together with any optional cash payments received prior to the Investment Date and not previously invested, will be used to purchase additional shares on the Investment Date. 9. HOW DOES THE CASH PAYMENT FEATURE WORK? Each participant may invest in additional shares of common stock by making optional cash payments. Cash payments may not be less than $25 and may be made by a participant as often as he wishes, provided that the total optional cash payments may not exceed $5,000 per calendar quarter. An optional cash payment may be made by enclosing a check or money order with the authorization card when initially joining the Plan. Thereafter, cash payments may be forwarded to the Bank along with a special 5 7 payment form which will be included with each statement of account. Checks and money orders should be made payable to Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. Only shareholders who have submitted a signed authorization card are eligible to make optional cash payments. Cash received from a participant will be used to purchase shares on the next Investment Date following receipt. No interest will be paid by the company or the Bank on optional cash payments. The same amount of cash need not be sent each month, and there is no obligation to make any optional cash payments unless you desire to do so. 10. HOW WILL THE NUMBER OF SHARES TO BE PURCHASED BE DETERMINED? The number of shares that will be purchased for a participant's account will depend on the amount of the participant's cash dividend, the amount of any optional cash payments made by the participant, and the price of the shares determined as provided in "Determination of Offering Price." A participant's account will be credited with the number of shares (including fractional shares computed to four decimal places) that results by dividing the amount of dividends and/or optional payments by the applicable purchase price (computed to four decimal places). 11. ARE THERE ANY COSTS TO PARTICIPANTS FOR PURCHASES UNDER THE PLAN? No. All fees, commissions, expenses and costs of administration of the Plan will be borne by Fleming. 12. WILL DIVIDENDS BE PAID ON SHARES HELD IN A PARTICIPANT'S ACCOUNT? Yes. Cash dividends will be paid on all whole and fractional shares held in a participant's account and will be reinvested in additional shares. 13. WHAT REPORTS WILL BE SENT TO PARTICIPANTS? Following each dividend payment and reinvestment transaction, the Bank will mail each participant a statement of his account. The statement will show all amounts invested, the number of shares purchased and the purchase price, and a current summary of the participant's total holdings under the Plan. The statements of account are the participant's record of the cost and date of his purchases and should be retained for income tax purposes. Participants will continue to receive from the company its annual report and quarterly reports to shareholders, notice of annual meeting and proxy statement. Participants will receive from the Bank information for reporting dividend income for income tax purposes on shares held under the Plan. The Bank will also send information for reporting dividend income for income tax purposes on shares held outside the Plan. 14. WILL A PARTICIPANT RECEIVE CERTIFICATES FOR SHARES PURCHASED? Normally, certificates for shares purchased under the Plan will not be sent to participants but will be registered in the name of the Bank or its nominee. The custodial service will relieve participants of responsibility for the safekeeping of multiple certificates and protect participants against the risk of loss, theft or destruction of certificates. 6 8 Upon written request, the Bank will send to a participant certificates for the total number of whole shares credited to his account, or for any lesser number specified. Any remaining shares, or fractional shares, will continue to be held in the participant's account. Certificates for fractional shares will not be issued. 15. IN WHOSE NAME WILL CERTIFICATES BE ISSUED? Certificates sent to a participant by the Bank upon written request will be registered in the name in which the Plan account is maintained. This generally will be the name or names in which the participant's original certificates were registered at the time of joining the Plan. 16. WHAT IS THE SOURCE OF SHARES PURCHASED UNDER THE PLAN? Shares purchased under the Plan will normally come from the authorized but unissued shares of the company's common stock. However, the company reserves the right to issue shares held as treasury shares. The price of shares purchased for participants will be the same whether the shares are newly issued shares or treasury shares. See "Determination of Offering Price." 17. HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN? A participant may withdraw by sending written notification of withdrawal to the Bank. In the event a participant withdraws, certificates for whole shares credited to his account will be delivered to him by the Bank. In addition, any fractional shares will be sold and a cash payment will be made for the sales price thereof, less brokerage commissions and any transfer taxes. Alternatively, a participant may withdraw from the Plan and request the Bank to sell all shares, both whole and fractional, held in his account. The proceeds from the sale, less any brokerage commissions and transfer taxes, will be remitted to the withdrawing participant. Sale requests may be accumulated by the Bank, but sales are expected to occur at least every ten days. The price of shares sold will be the average of all actual sales under the Plan on the sale date. 18. WHEN MAY A PARTICIPANT WITHDRAW FROM THE PLAN? A participant may withdraw from the Plan at any time. If the withdrawal request is received by the Bank at least five business days prior to a dividend record date, the amount of the cash dividend and any optional cash payments which would otherwise have been invested on the next Investment Date, and all subsequent dividends, will be paid to him in cash. If the withdrawal request is received by the Bank less than five business days before the dividend record date, the amount of the cash dividend to be invested on the next Investment Date, along with any optional cash payments received, will be so invested, but all subsequent dividends will be paid to the participant in cash. 19. CAN A PARTICIPANT REQUEST THAT A PORTION OF THE SHARES IN HIS ACCOUNT BE SOLD AND REMAIN IN THE PLAN? Yes. A participant may request that the Bank sell less than all shares held in his account, and continue to be a participant with respect to the remaining shares in his Plan account. 7 9 20. MAY A SHAREHOLDER REJOIN THE PLAN? Generally, an eligible shareholder may again become a participant at any time. However, the company reserves the right to reject the authorization card from a previous participant on grounds of excessive joining and termination. Such reservation is intended to minimize administrative expenses and to encourage use of the Plan as a long-term investment service. 21. WHAT HAPPENS IF A PARTICIPANT SELLS OR TRANSFERS ALL OF THE SHARES REGISTERED IN HIS NAME? If a participant disposes of all the shares of common stock registered in his name, exclusive of the shares credited to his account under the Plan, the Bank will continue to reinvest the cash dividends on the shares held in his account under the Plan until the Bank is otherwise notified in writing. 22. WHAT HAPPENS IF THE COMPANY ISSUES A STOCK DIVIDEND, DECLARES A STOCK SPLIT OR HAS A RIGHTS OFFERING? Any shares distributed by the company as a stock dividend on shares held in the participant's Plan account (including fractional shares) and any split of such shares will be credited to a participant's Plan account. Stock dividends or splits distributed on all other shares held by a participant will be mailed directly to a participant in the same manner as to shareholders who are not participating in the Plan. In a rights offering, a participant's entitlement will be based upon his total holdings, including those credited to his account under the Plan. Rights applicable to shares credited to a participant's Plan account will be sold by the Bank, and the proceeds will be credited to his account under the Plan and applied to the purchase of shares on the next Investment Date. Any participant who wishes to exercise, transfer or sell the rights applicable to shares credited to his Plan account must request, prior to the record date for the issuance of any such rights, that the whole shares credited to his account be transferred from his account and registered in his name. 23. CAN A PARTICIPANT VOTE SHARES HELD UNDER THE PLAN? Yes. The shares credited to the account of a participant will be voted in accordance with instructions of the participant given on a proxy which will be furnished to the participant or, if such participant desires to vote in person at a meeting, a proxy for shares credited to his account may be obtained upon written request received by the Bank at least 15 days before the meeting. If a properly signed proxy card is returned without instructions, the participant's shares credited to his account will be voted in accordance with the proxy statement accompanying the proxy card. If the proxy card is not returned, or is returned unsigned, none of the participant's shares will be voted. 24. WHAT IF A PARTICIPANT ACQUIRES ADDITIONAL SHARES AFTER BECOMING A PARTICIPANT? If a participant acquires shares in the market or otherwise after becoming a participant in the Plan, the dividends paid on such shares will be reinvested under the Plan unless the new shares are registered in a name which is different from the name in which the shareholder is registered under the Plan. 8 10 25. WHAT HAPPENS IF A PARTICIPANT DIES? On receipt by the Bank of proper notice of the death or incompetency of a participant, together with any other forms as may be required by the Bank, such participant's account will be terminated, and shares delivered to the appropriate person, in the same manner as those of a participant who withdraws from the Plan. See the answer to Question 17. 26. WHAT ARE THE RESPONSIBILITIES OF THE COMPANY AND THE BANK UNDER THE PLAN? Neither the company nor the Bank can assure participating shareholders of a profit or protect them from a loss in any investment they may make in shares of the company's common stock under the Plan. In administering the Plan, neither the company nor the Bank is liable for any act done in good faith or for any omission to act in good faith, including, without limitation, any claim for liability arising out of failure to terminate a participant's account upon such participant's death prior to receipt of notice in writing of such death. The company reserves the right to interpret and regulate the Plan, and to modify, suspend or terminate it at any time upon notification to shareholders, although the shareholder response is expected to justify continuing the Plan indefinitely. 27. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES? In general, participants in the Plan have the same federal income tax obligations with respect to their dividends as do shareholders who are not participating in the Plan. This means that the cash dividends a participant reinvests under the Plan will be taxable as having been received even though the Participant does not actually receive them in cash but, instead, uses them to purchase additional shares of stock under the Plan. The Internal Revenue Service has ruled with respect to a plan similar to the company's plan that the full fair market value of the shares purchased with reinvested dividends is taxable as dividend income to the participant. This means that in addition to the reinvested dividends being taxable, the 5% discount allowed on the purchase of shares with reinvested dividends under the Plan is also taxable as dividend income to the participant in the year the shares are purchased. The tax basis of shares acquired through reinvested dividends is equal to the fair market value of the stock on the cash dividend payment date rather than the discounted amount paid for the shares. Under the Plan, fair market value is determined by averaging the high and low sale prices reported as New York Stock Exchange -- Composite Transactions on the applicable Investment Date or, if no trading occurs on the Investment Date, on the next preceding day on which the common stock was traded on such exchange. The tax basis of shares acquired through optional cash Payments, on which no discount is allowed, is equal to the cost of the stock. The holding period for shares acquired under the Plan begins the day after the applicable Investment Date. 9 11 The following example, using assumed data, illustrates the federal income tax consequences when a participant reinvests dividends under the Plan:
TAXABLE AS DIVIDEND INCOME ---------- Dividends reinvested......................................................... $53.20 Market value (average market price) per share..................... $28.00 Less 5% discount per share........................................ 1.40 ---------- Purchase price per share.......................................... $26.60 Number of shares purchased ($53.20 divided by $26.60)............. 2 shares Total discount taxable (2 shares times $1.40)................................ 2.80 ------ Total taxable as dividend income............................................. $56.00
In the case of participating foreign shareholders whose dividends are subject to the withholding of U.S. income taxes, the tax to be withheld will be deducted from each dividend payment before it is reinvested. The foregoing is a general summary only, and each participant should consult his own tax adviser to determine the tax consequences of his participation. USE OF PROCEEDS The proceeds from the sale of shares by the company to participants in the Plan will be added to the general operating funds of the company, to be used as working capital. DETERMINATION OF OFFERING PRICE The price of shares purchased with reinvested cash dividends will be 5% below the average of the high and low sale prices of Fleming common stock reported as New York Stock Exchange -- Composite Transactions on the Investment Date as of which shares are purchased. These prices are published regularly in The Wall Street Journal and the daily press. The price of shares purchased with optional cash payments will be the average of the high and low sale prices. If the New York Stock Exchange is closed on an Investment Date, or if no trading occurs in the company's common stock on such date, the price will be determined as of the next preceding business day on which the company's common stock is traded on the Exchange. Liberty Bank and Trust Company of Oklahoma City, Oklahoma, N.A. is transfer agent and registrar for the company's common stock. 10 12 LIMITATION ON AMOUNT OF REINVESTED DIVIDENDS The Plan limits the amount of reinvested dividends which a single participant can invest in shares of the company's common stock at a 5% discount from market value ("Discounted Shares"). The Plan provides that the maximum amount of reinvested dividends a single participant may invest in Discounted Shares during any calendar quarter is limited to $100,000. The amount of dividends in excess of $100,000 payable to a participant in any calendar quarter will be paid to such participant in cash. LEGAL OPINIONS The validity of the common stock offered hereby will be passed upon for the company by McAfee & Taft A Professional Corporation, Tenth Floor, Two Leadership Square, Oklahoma City, Oklahoma 73102. EXPERTS The consolidated financial statements and the related financial statement schedules incorporated in this prospectus by reference from the company's Annual Report on Form 10-K have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES Section 1031 of the Oklahoma General Corporation Act, the jurisdiction in which the company is incorporated, provides, under certain circumstances, for the indemnification of directors or officers of an Oklahoma corporation for expenses in connection with the defense of any action, suit or proceeding, in relation to certain matters, brought against them as such directors and officers. In addition, the company maintains insurance policies which insure its officers and directors against certain liabilities. Section 8.3 of Article VIII of the By-Laws of the company, which are filed as Exhibit 4.1 to this Registration Statement and incorporated herein by reference, provides indemnification of directors, officers and agents under certain circumstances. These provisions may be sufficiently broad to indemnify such persons for liabilities arising under the Securities Act of 1933, as amended. 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. 11 13 - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE ---- Statement of Available Information....... 2 Incorporation of Certain Documents by Reference.............................. 2 The Company.............................. 3 The Plan Administrator................... 3 The Plan................................. 4 Use of Proceeds.......................... 12 Determination of Offering Price.......... 12 Limitation on Amount of Reinvested Dividends.............................. 11 Legal Opinions........................... 11 Experts.................................. 11 Commission Position on Indemnification for Securities Act Liabilities......... 11
------------------------ NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- 600,000 SHARES (FLEMING LOGO) 600,000 SHARES OF COMMON STOCK, $2.50 PAR VALUE, OFFERED PURSUANT TO THE DIVIDEND REINVESTMENT AND PURCHASE PLAN OF FLEMING COMPANIES, INC. PROSPECTUS OCTOBER 28, 1994 - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- 14 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following is an itemized statement of expenses (all but the registration fee and the stock exchange listing fee are estimates) of the company in connection with the issuance and sale of the shares of Common Stock being registered. Registration Fee ...................... $ 4,823.00 Stock Exchange Listing Fees ........... 6,000.00 Printing .............................. 4,900.00 Transfer Agent and Registrar Fees and Expenses ........................ 0.00 Legal Fees and Expenses ............... 10,000.00 Accounting Fees and Expenses .......... 3,000.00 Miscellaneous ......................... 1,277.00 ---------- Total ............................ $30,000.00 ==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS (a) Section 1031 of the Oklahoma General Corporation Act, the jurisdiction in which the company is incorporated, provides, under certain circumstances, for the indemnification of directors or officers of an Oklahoma corporation for expenses in connection with the defense of any action, suit or proceeding, in relation to certain matters, brought against them as such directors and officers. In addition, the company maintains insurance policies which insure its officers and directors against certain liabilities. (b) Section 8.3 of Article VIII of the By-Laws of the company provides indemnification of directors, officers and agents under certain circumstances. These provisions may be sufficiently broad to indemnify such persons for liabilities arising under the Securities Act of 1933, as amended. ITEM 16. EXHIBITS The following exhibits have been filed as part of this Registration Statement, and are incorporated herein by reference: II-1 15 5 - Opinion of McAfee & Taft A Professional Corporation as to the legality of the securities being registered. 24.1 - Consent of Deloitte & Touche LLP 24.2 - Consent of McAfee & Taft A Professional Corporation. (Contained in its opinion filed as Exhibit 5 hereto.) 25 - Power of Attorney. (Contained on the Signature Pages appearing at page II-4 and II-5 of this Registration Statement.) 28.1 - The Dividend Reinvestment and Stock Purchase Plan of Fleming Companies, Inc., as amended (Incorporated by reference to Exhibit 28.1 to Registration Statement No. 33-26648). 28.2 - The Dividend Reinvestment and Stock Purchase Plan Authorization Card (Incorporated by reference to Exhibit 28.2 to Registration Statement No. 33-22648). 28.3 - Amendment No. Three to Dividend Reinvestment and Stock Purchase Plan, effective January 24, 1992 (incorporated by reference to Exhibit 28.3 to Registration Statement No. 33-45190). ITEM 17. 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, represents a fundamental change in the information set forth in the 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; II-2 16 Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed 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. II-3 17 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., David R. Almond and John M. Mee, 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, any and all amendments to this Registration Statement (including post-effective amendments) for the purpose of registering under the Securities Act of 1933 up to a maximum of 600,000 shares of the Company's common stock, par value $2.50 per share, for the account of the Company, 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 either of them, may lawfully do or cause to be done by virtue thereof. 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 of the requirements for filing on Form S-3 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 28th day of October, 1994. FLEMING COMPANIES, INC. By /s/ Robert E. Stauth Robert E. Stauth, Chairman, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date - - --------- ----- ---- /s/ Robert E. Stauth Chairman, President and ) Robert E. Stauth Chief Executive Officer ) October 28, and Director (principal ) 1994 executive officer ) ) ) )
II-4 18 ) ) /s/ Harry L. Winn, Jr. Executive Vice President ) Harry L. Winn, Jr. and Chief Financial ) Officer (principal ) financial officer) ) ) ) /s/ Donald N. Eyler Senior Vice President - ) Donald N. Eyler Controller (principal ) accounting officer) ) ) ) /s/ Archie R. Dykes Director ) Archie R. Dykes ) ) ) /s/ Carol B. Hallett Director ) Carol B. Hallett ) ) October 28, ) 1994 /s/ James G. Harlow, Jr. Director ) James G. Harlow, Jr. ) ) ) /s/ Lawrence M. Jones Director ) Lawrence M. Jones ) ) ) /s/ Edward C. Joullian III Director ) Edward C. Joullian III ) ) ) /s/ Howard H. Leach Director ) Howard H. Leach ) ) ) _______________________ Director ) John A. McMillan ) ) ) /s/ Guy A. Osborne Director ) Guy A. Osborne ) ) ) _______________________ Director ) E. Dean Werries )
II-5 19 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ------- ----------- 5 - Opinion of McAfee & Taft A Professional Corporation as to the legality of the securities being registered. 24.1 - Consent of Deloitte & Touche LLP 24.2 - Consent of McAfee & Taft A Professional Corporation. (Contained in its opinion filed as Exhibit 5 hereto.) 25 - Power of Attorney. (Contained on the Signature Pages appearing at page II-4 and II-5 of this Registration Statement.) 28.1 - The Dividend Reinvestment and Stock Purchase Plan of Fleming Companies, Inc., as amended (Incorporated by reference to Exhibit 28.1 to Registration Statement No. 33-26648). 28.2 - The Dividend Reinvestment and Stock Purchase Plan Authorization Card (Incorporated by reference to Exhibit 28.2 to Registration Statement No. 33-22648). 28.3 - Amendment No. Three to Dividend Reinvestment and Stock Purchase Plan, effective January 24, 1992 (incorporated by reference to Exhibit 28.3 to Registration Statement No. 33-45190). EX-5 2 OPINION OF MCAFEE & TAFT 1 Law Offices McAFEE & TAFT A PROFESSIONAL CORPORATION Tenth Floor Two Leadership Square Oklahoma City, Oklahoma 73102 (405) 235-9621 Fax (405) 235-0439 October 28, 1994 Fleming Companies, Inc. P.O. Box 26647 6301 Waterford Boulevard Oklahoma City, Oklahoma 73126 Gentlemen: Reference is made to your Registration Statement on Form S-3 to be filed with the Securities and Exchange Commission on October 28, 1994, with respect to the proposed offering of 600,000 shares of common stock, par value $2.50 per share, of Fleming Companies, Inc. (the "Company") pursuant to the terms of the Fleming Dividend Reinvestment and Stock Purchase Plan (the "Plan"). We have examined the corporate records of the Company and have made such other investigation as we deemed appropriate to express the opinions set forth herein. We are of the opinion that: 1. The company is validly incorporated under the laws of the State of Oklahoma; and 2. The 600,000 shares of common stock which are proposed to be issued by the Company pursuant to the Registration Statement, when issued to the participants in the Plan pursuant to the terms of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the inclusion of this opinion as an Exhibit to the above mentioned Registration Statement and to the reference to our firm under the caption "Legal Opinions" in the Prospectus comprising a part of the Registration Statement. Very truly yours, /s/ McAfee & Taft A Professional Corporation EX-24.1 3 CONSENT OF DELOITTE & TOUCHE 1 EXHIBIT 24.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Fleming Companies, Inc. on Form S-3 of the report of Deloitte & Touche dated February 10, 1994, appearing in the Annual Report on Form 10-K of Fleming Companies, Inc. for the year ended December 25, 1993 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. Deloitte & Touche LLP Oklahoma City, Oklahoma October 25, 1994 -----END PRIVACY-ENHANCED MESSAGE-----