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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FLEMING COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OKLAHOMA 1945 LAKEPOINTE DRIVE 48-0222760
(STATE OR OTHER JURISDICTION OF LEWISVILLE, TEXAS 75057 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) (972) 906-8000 IDENTIFICATION NUMBER)
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CARLOS M. HERNANDEZ
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
FLEMING COMPANIES, INC.
1945 LAKEPOINTE DRIVE
LEWISVILLE, TEXAS 75057
(972) 906-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
JOHN M. NEWELL
LATHAM & WATKINS
505 MONTGOMERY STREET, SUITE 1900
SAN FRANCISCO, CALIFORNIA 94111
(415) 391-0600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this 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. [ ]
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, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ____________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PRICE PER UNIT(1) PRICE(1) FEE
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Common Stock, par value
$2.50 per share......... 3,850,301 $30.075 $115,797,802.58 $28,949.45
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(1) Estimated solely for the purpose of computing the amount of registration
fee, based on the average of the high and low prices for the Common Stock as
reported on the New York Stock Exchange on April 30, 2001, in accordance
with Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS INCOMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND
IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE
THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 3, 2001
PRELIMINARY PROSPECTUS
[FLEMING COMPANIES, INC. LOGO]
3,850,301 SHARES OF COMMON STOCK
This prospectus relates to the public offering, which is not being
underwritten, of 3,850,301 shares of our common stock, par value $2.50 per
share, which may be offered for sale by the selling stockholder named in this
prospectus. The selling stockholder may offer its shares of common stock through
one or more broker-dealers, in one or more transactions on the New York Stock
Exchange in accordance with its rules, in the over-the-counter market, in
negotiated transactions or otherwise, at prices related to the prevailing market
prices or at negotiated prices. We will not receive any of the proceeds from the
sale of the shares of common stock under this prospectus.
Our common stock is traded on the New York Stock Exchange under the symbol
"FLM". On April 30, 2001, the last reported sale price for our common stock on
the New York Stock Exchange was $29.45 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 2.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2001.
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TABLE OF CONTENTS
PAGE
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Disclosure Regarding Forward-Looking Statements............. i
The Company................................................. 1
Risk Factors................................................ 2
Use of Proceeds............................................. 6
The Selling Stockholder..................................... 6
Plan of Distribution........................................ 7
Legal Matters............................................... 8
Independent Auditors........................................ 9
Incorporation by Reference.................................. 9
Where You Can Find More Information......................... 9
We have not authorized any dealer, salesperson or other person to give any
information or to make any representations to you other than the information
contained in this prospectus. You must not rely on any information or
representations not contained in this prospectus as if we had authorized it. The
information contained in this prospectus is current only as of the date on the
cover page of this prospectus, and may change after that date. We do not imply
that there has been no change in the information contained in this prospectus or
in our affairs since that date by delivering this prospectus.
THIS PROSPECTUS INCORPORATES IMPORTANT BUSINESS AND FINANCIAL INFORMATION
ABOUT US THAT IS NOT INCLUDED IN OR DELIVERED WITH THIS PROSPECTUS. THIS
INFORMATION IS AVAILABLE WITHOUT CHARGE TO YOU UPON WRITTEN OR ORAL REQUEST. IF
YOU WOULD LIKE A COPY OF ANY OF THIS INFORMATION, PLEASE SUBMIT YOUR REQUEST TO
1945 LAKEPOINTE DRIVE, BOX 299013, LEWISVILLE, TEXAS 75029, ATTENTION: LEGAL
DEPARTMENT, OR CALL (972) 906-8000 AND ASK TO SPEAK TO SOMEONE IN OUR LEGAL
DEPARTMENT.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
All statements other than statements of historical facts included in this
prospectus and the documents incorporated by reference, including, without
limitation, statements in the section entitled "Risk Factors," regarding our
future financial position, business strategy and our management's plans and
objectives for future operations, are forward-looking statements.
Forward-looking statements generally can be identified by the use of
forward-looking terminology such as "may," "will," "expect," "intend,"
"estimate," "anticipate," "believe" or "continue" or the negative thereof or
variations thereon or similar terminology. Although we believe that the
expectations reflected in these forward-looking statements are reasonable, these
expectations may not prove to be correct. Important factors that could cause
actual results to differ materially from our expectations are disclosed under
the section "Risk Factors" and elsewhere in, or incorporated by reference into,
this prospectus. All subsequent written and oral forward-looking statements
attributable to us, or persons acting on our behalf, are expressly qualified in
their entirety by the cautionary statements.
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THE COMPANY
We are an industry leader in the distribution of consumable goods, and also
have a growing presence in operating "price impact" supermarkets. Through our
low-cost, high-volume nationwide network of distribution centers, we distribute
products to customers that operate approximately 3,000 supermarkets, 3,000
convenience stores and nearly 1,000 supercenters, discount stores, limited
assortment stores, drug stores, specialty stores and other stores across the
United States. We expect to substantially increase our distribution volume in
connection with, among other things, our recently announced ten-year $4.5
billion per year strategic alliance with our largest customer, Kmart
Corporation, under which we will supply to Kmart substantially all of the food
and consumable products in all current and future Kmart and Kmart supercenter
stores in the United States and the Caribbean.
As of April 23, 2001, our retail group owned and operated 103 supermarkets,
comprised of 38 price impact supermarkets that offer deep-discount, everyday low
prices in a warehouse-style format under the Food 4 Less banner, an additional
ten supermarkets that we intend to convert to the price impact format, 44
supermarkets that utilize certain elements of the price impact format under our
Rainbow Foods banner, and 11 limited assortment stores that offer a narrow
selection of low-price, private label food and other consumable goods and
general merchandise under our Yes!Less banner.
Our principal executive offices are located at 1945 Lakepointe Drive,
Lewisville, Texas 75057. Our telephone number at that location is (972)
906-8000.
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RISK FACTORS
Purchasing our common stock involves a high degree of risk. You should
consider carefully the risks described below, together with the other
information in this prospectus, before you make a decision to purchase the
common stock. If any of the following risks actually occur, our business,
financial condition, operating results and prospects could be materially
adversely affected, which in turn could adversely affect your investment.
WE NOW DEPEND ON KMART FOR A SUBSTANTIAL PORTION OF OUR BUSINESS. IF WE ARE
UNABLE TO REALIZE ANTICIPATED COST SAVINGS RESULTING FROM THE ADDITIONAL VOLUME
REPRESENTED BY OUR AGREEMENT, IT COULD HARM OUR FINANCIAL CONDITION.
Kmart is our largest customer, accounting for 9.8% of our net sales in
2000. On February 7, 2001, we announced a ten-year agreement with Kmart
Corporation, pursuant to which we agreed to supply substantially all of the food
and consumable products in all current and future Kmart and Kmart supercenter
stores in the U.S. and the Caribbean. As a result of this agreement, we
currently anticipate that Kmart will account for a significantly greater
percentage of our net sales in 2001. Accordingly, we now depend on Kmart for a
substantial portion of our business.
We will be required to commit substantial capital expenditures and
management resources in order to perform our obligations under the Kmart
agreement. If we or Kmart are unable to successfully fulfill our respective
obligations under the agreement, it will harm our financial condition. More
specifically, the bulk of the benefits that we anticipate receiving from the
Kmart agreement depend on Kmart's achievement of certain sales projections. If
Kmart fails to meet these sales projections, the benefits that we will receive
as a result of the agreement will decrease. Kmart can also elect to terminate
the agreement if we materially breach our obligations under the agreement, if we
experience certain types of changes of control or if the volume of Kmart's
purchases under the agreement declines by certain amounts. Finally, if we are
unable to capture anticipated cost savings resulting from our increased
purchasing power due to the Kmart agreement, it could adversely affect our
results of operations and financial condition.
IF THE CUSTOMERS TO WHOM WE LEND MONEY OR FOR WHOM WE GUARANTEE STORE LEASE
OBLIGATIONS FAIL TO REPAY US, IT COULD HARM OUR FINANCIAL CONDITION.
We provide subleases, extend loans to and make investments in many of our
retail store customers, often in conjunction with the establishment of long-term
supply contracts. Our loans to our customers are generally not investment grade
and, along with our equity investments in our customers, are highly illiquid. We
also make investments in our customers through direct financing leases, lease
guarantees, operating leases, credit extensions for inventory purchases and the
recourse portion of notes sold evidencing such loans. We also invest in real
estate to assure market access or to secure supply points. Although we have
strict credit policies and apply cost/benefit analyses to these investment
decisions, we face the risk that credit losses from existing or future
investments or commitments could adversely affect our financial condition.
VARIOUS CHANGES IN THE DISTRIBUTION AND RETAIL MARKETS IN WHICH WE OPERATE HAVE
LED AND MAY CONTINUE TO LEAD TO REDUCED SALES AND MARGINS AND LOWER
PROFITABILITY FOR OUR CUSTOMERS AND, CONSEQUENTLY, FOR US.
The distribution and retail markets in which we operate are undergoing
accelerated change as distributors and retailers seek to lower costs and provide
additional services in an increasingly competitive environment. An example of
this is the growing trend of large self-distributing chains consolidating to
reduce costs and gain efficiencies. Eating away from home and alternative format
food stores, such as warehouse stores and supercenters, have taken market share
from traditional supermarket operators, including independent grocers, many of
whom are our customers. Vendors, seeking to ensure that more of their
promotional fees and allowances are used by retailers to increase sales volume,
increasingly direct promotional dollars to large self-distributing chains. We
believe that these changes have led to reduced sales, reduced margins and lower
profitability among many of our customers and, consequently, for us. If
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the strategies we have developed in response to these changing market conditions
are not successful, it could harm our financial condition and business
prospects.
CONSUMABLE GOODS DISTRIBUTION IS A LOW-MARGIN BUSINESS AND IS SENSITIVE TO
ECONOMIC CONDITIONS.
We derive most of our revenues from the consumable goods distribution
industry. This industry is characterized by a high volume of sales with
relatively low profit margins. A significant portion of our sales are at prices
that are based on product cost plus a percentage markup. Consequently, our
results of operations may be negatively impacted when the price of consumable
goods go down, even though our percentage markup may remain constant. The
consumable goods industry is also sensitive to national and regional economic
conditions, and the demand for our consumable goods has been adversely affected
from time to time by economic downturns. Additionally, our distribution business
is sensitive to increases in fuel and other transportation-related costs.
WE FACE INTENSE COMPETITION IN BOTH OUR DISTRIBUTION AND RETAIL MARKETS, AND IF
WE ARE UNABLE TO COMPETE EFFECTIVELY IN THESE MARKETS, IT COULD HARM OUR
BUSINESS.
Our distribution group operates in a highly competitive market. We face
competition from local, regional and national food distributors on the basis of
price, quality and assortment, schedules and reliability of deliveries and the
range and quality of services provided. We also compete with retail supermarket
chains that self-distribute, purchasing directly from vendors and distributing
products to their supermarkets for sale to the consumer. Consolidation of
self-distributing chains may produce even stronger competition for our
distribution group.
Our retail group competes with other food outlets on the basis of price,
quality and assortment, store location and format, sales promotions,
advertising, availability of parking, hours of operation and store appeal.
Traditional mass merchandisers have gained a growing foothold in food marketing
and distribution with alternative store formats, such as warehouse stores and
supercenters, which depend on concentrated buying power and low-cost
distribution technology. We expect that stores with alternative formats will
continue to increase their market share in the future. Retail consolidations not
only produce stronger competition for our retail group, but may also result in
declining sales in our distribution group if our existing customers are acquired
by self-distributing chains.
Some of our competitors have greater financial and other resources than we
do. In addition, consolidation in the industry, heightened competition among our
vendors, new entrants and trends toward vertical integration could create
additional competitive pressures that reduce our margins and adversely affect
our business. If we fail to successfully respond to these competitive pressures
or to implement our strategies effectively, it could have a material adverse
effect on our financial condition and prospects.
BECAUSE WE OWN AND OPERATE REAL ESTATE, WE FACE THE RISK OF BEING HELD LIABLE
FOR ENVIRONMENTAL DAMAGES THAT MAY OCCUR ON OUR PROPERTIES.
Our facilities and operations are subject to various laws, regulations and
judicial and administrative orders concerning protection of the environment and
human health, including provisions regarding the transportation, storage,
distribution, disposal or discharge of certain materials. In conformity with
these provisions, we have a comprehensive program for testing, removal,
replacement or repair of our underground fuel storage tanks and for site
remediation where necessary. Although we have established reserves that we
believe will be sufficient to satisfy the anticipated costs of all known
remediation requirements, we cannot assure you that these reserves will be
sufficient.
We and others have been designated by the U.S. Environmental Protection
Agency and by similar state agencies as potentially responsible parties under
the Comprehensive Environmental Response, Compensation and Liability Act, or
CERCLA, or similar state laws, as applicable, with respect to EPA-designated
Superfund sites. While liability under CERCLA for remediation at these sites is
generally joint and several with other responsible parties, we believe that, to
the extent we are ultimately determined to be liable for the expense of
remediation at any site, such liability will not result in a material adverse
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effect on our consolidated financial position or results of operations. We are
committed to maintaining the environment and protecting natural resources and
human health and to achieving full compliance with all applicable laws,
regulations and orders.
WE ARE CURRENTLY SUBJECT TO A NUMBER OF MATERIAL LITIGATION PROCEEDINGS. IF ANY
OF THESE PROCEEDINGS IS RESOLVED AGAINST US, IT COULD HARM OUR FINANCIAL
CONDITION AND BUSINESS PROSPECTS.
We are currently subject to a number of material litigation proceedings,
the costs and other effects of which are impossible to predict with any
certainty. An unfavorable outcome in any one of these cases could have a
material adverse effect on our financial condition and prospects. From time to
time, we are also party to or threatened with litigation in which claims against
us are made, or are threatened to be made, by present and former customers,
sometimes in situations involving financially troubled or failed customers. We
are a party to various other litigation and contingent loss situations arising
in the ordinary course of our business including:
- disputes with customers and former customers;
- disputes with owners and former owners of financially troubled or failed
customers;
- disputes with employees and former employees regarding labor conditions,
wages, workers' compensation matters and alleged discriminatory
practices;
- disputes with insurance carriers;
- tax assessments; and
- other matters,
some of which are for substantial amounts. The current environment for
litigation involving food distributors may increase the risk of litigation being
commenced against us. We would incur the costs of defending any such litigation
whether or not any claim had merit.
BECAUSE WE SELL FOOD AND OTHER PRODUCTS, WE ARE SUBJECT TO PRODUCT LIABILITY
CLAIMS.
Like any other seller of food and other products, we face the risk of
exposure to product liability claims in the event that people who purchase
products we sell become injured or experience illness as a result. We believe
that we have sufficient primary and excess umbrella liability insurance to
protect us against any product liability claims that may arise. However, this
insurance may not continue to be available at a reasonable cost, or, even if it
is available, it may not be adequate to cover our liabilities. We generally seek
contractual indemnification and insurance coverage from parties supplying our
products, but this indemnification or insurance coverage is limited, as a
practical matter, to the creditworthiness of the indemnifying party and the
policy limits of any insurance provided by suppliers. If we do not have adequate
insurance or contractual indemnification to cover our liabilities, product
liability claims relating to defective food and other products could materially
reduce our earnings.
WE CANNOT ASSURE YOU THAT WE WILL BE SUCCESSFUL IN INTEGRATING NEWLY-ACQUIRED
STORES AND DISTRIBUTION CENTERS. IF WE DO NOT ACHIEVE THE BENEFITS WE EXPECT
FROM ANY OF THESE ACQUISITIONS, IT COULD HARM OUR BUSINESS AND FINANCIAL
CONDITION.
Part of our growth strategy for our retail group involves selective
strategic acquisitions of stores operated by others. In addition, our
distribution group intends to seek strategic acquisitions of other distribution
centers on a limited basis. Achieving the benefits of these acquisitions will
depend in part on our ability to integrate those businesses with our business in
an efficient manner. We cannot assure you that this will happen or that it will
happen in an efficient manner. Our consolidation of operations following these
acquisitions may require substantial attention from our management. The
diversion of management attention and any difficulties encountered in the
transition and integration process could have a material adverse effect on our
ability to achieve expected net sales, operating expenses and operating results
for the acquired business. We cannot assure you that we will realize any of the
anticipated benefits
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of any acquisition, and if we fail to realize these anticipated benefits, our
operating performance could suffer.
WE OPERATE IN A COMPETITIVE LABOR MARKET, AND THE MAJORITY OF OUR EMPLOYEES ARE
COVERED BY COLLECTIVE BARGAINING AGREEMENTS.
Our continued success will depend on our ability to attract and retain
qualified personnel in both our distribution and retail groups. We compete with
other businesses in our markets with respect to attracting and retaining
qualified employees. The labor market is currently tight and we expect the tight
labor market to continue. A shortage of qualified employees would require us to
enhance our wage and benefits packages in order to compete effectively in the
hiring and retention of qualified employees or to hire more expensive temporary
employees. In addition, about half of our employees are covered by collective
bargaining agreements, most of which expire at various times over the course of
the next five years. We cannot assure you that we will be able to renew our
collective bargaining agreements, that our labor costs will not increase, that
we will be able to recover any increases through increased prices charged to
customers or that we will not suffer business interruptions as a result of
strikes or other work stoppages. If we fail to attract and retain qualified
employees, to control our labor costs, or to recover any increased labor costs
through increased prices charged to our customers, it could harm our business.
OUR STOCK PRICE HAS BEEN AND IS LIKELY TO CONTINUE TO BE VOLATILE, WHICH MAY
MAKE IT DIFFICULT FOR YOU TO RESELL THE COMMON STOCK WHEN YOU WANT AT PRICES YOU
FIND ATTRACTIVE.
The trading price of our common stock has been and is likely to be highly
volatile. Our stock price could be subject to wide fluctuations in response to a
variety of factors, including the following:
- actual or anticipated variations in quarterly operating results;
- announcements of technological innovations;
- new products or services offered by us or our competitors;
- changes in financial estimates by securities analysts;
- conditions or trends in the distribution and retail industries;
- our announcement of significant acquisitions, strategic partnerships,
joint ventures or capital commitments;
- adverse or unfavorable publicity regarding us or our services;
- additions or departures of key personnel; and
- sales of common stock.
In addition, the stock markets in general have experienced extreme price
and volume volatility and a cumulative decline in recent months. Such volatility
and decline have affected many companies irrespective of or disproportionately
to the operating performance of these companies. These broad market and industry
factors may materially and adversely further affect the market price of our
common stock, regardless of our actual operating performance.
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USE OF PROCEEDS
The selling stockholder will receive all of the proceeds from the sales of
the common stock under this prospectus. We will not receive any proceeds from
these sales.
THE SELLING STOCKHOLDER
The 3,850,301 shares of our common stock which may be offered under this
prospectus are owned by U.S. Transportation, LLC, a Delaware limited liability
company and an affiliate of The Yucaipa Companies LLC. Pursuant to a Stock and
Warrant Purchase Agreement dated as of February 6, 2001, U.S. Transportation,
LLC paid an aggregate of $50 million as consideration for the 3,850,301 shares
and a warrant to purchase additional shares of our common stock. The warrant
represents the right to purchase up to $50 million worth of additional shares of
our common stock, based on a per share exercise price equal to the average
closing price of our common stock on the New York Stock Exchange for the 30
consecutive trading days immediately preceding the applicable exercise date. The
warrant is exercisable for a period of one year, subject to certain extensions
in the event that the exercise of any portion of the warrant would accelerate
indebtedness of Fleming or any of our subsidiaries, obligate Fleming or any of
our subsidiaries to make any payment or to incur any additional obligation, or
require the approval of the shareholders of Fleming pursuant to the rules of the
New York Stock Exchange.
The selling stockholder has informed us that while it currently has no
intention to sell any of the shares covered by this prospectus, it will take
such actions with respect to such shares as it deems appropriate in light of the
circumstances existing from time to time. According to the selling stockholder's
Schedule 13D filed on March 26, 2001 with the Securities and Exchange
Commission, in determining appropriate actions with respect to such shares, the
selling stockholder will evaluate various factors, including, without
limitation, (a) the investment potential of our common stock, (b) our business
prospects and financial position, (c) subsequent developments affecting us, (d)
the price level and availability of our common stock, (e) other investment and
business opportunities available to it, (f) general stock market and economic or
industry conditions, (g) reinvestment opportunities, (h) tax considerations, and
(i) other factors deemed relevant by it. Because the selling stockholder may
sell all, some portion or none of the shares covered by this prospectus, we
cannot estimate the number of shares, and the percentage of outstanding shares
of common stock, that will be held by the selling stockholder after completion
of this offering. This prospectus also covers any additional shares of common
stock which become issuable in connection with shares sold by the prospectus by
reason of a stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results in an
increase in the number of our outstanding shares of common stock.
The following table sets forth information to our knowledge as of the date
of this prospectus with respect to the number of shares of common stock held by
the selling stockholder prior to the offering and the number of shares of common
stock which may be offered under this prospectus from time to time by the
selling stockholder. Percentage ownership is based on the 43,641,772 shares of
our common stock that were outstanding on March 22, 2001.
NUMBER OF
NUMBER OF SHARES PERCENT OF SHARES
BENEFICIALLY OUTSTANDING REGISTERED
SELLING STOCKHOLDER OWNED SHARES HEREBY
------------------- ---------------- ----------- ----------
U.S. Transportation, LLC............................. 5,911,307* 12.93% 3,850,301
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* Assuming the selling stockholder's warrant is exercisable into 2,061,006
shares of common stock, based upon an exercise price of $24.26, which is the
average closing price of the common stock on the New York Stock Exchange for
the 30 consecutive trading days immediately preceding March 22, 2001.
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PLAN OF DISTRIBUTION
The selling stockholder and its successors, which term includes their
transferees, pledgees or donees or their successors, may sell the common stock
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling stockholder or the purchasers. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
The common stock may be sold in one or more transactions at:
- fixed prices,
- prevailing market prices at the time of sale,
- prices related to the prevailing market prices,
- varying prices determined at the time of sale, or
- negotiated prices.
These sales may be effected in transactions:
- on any national securities exchange or quotation service on which our
common stock may be listed or quoted at the time of sale, including the
New York Stock Exchange,
- in the over-the-counter market,
- otherwise than on such exchanges or services or in the over-the-counter
market,
- through the writing of options, whether the options are listed on an
options exchange or otherwise, or
- through the settlement of short sales.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as agent on both sides of the trade.
In connection with the sale of the common stock, the selling stockholder
may enter into hedging transactions with broker-dealers or other financial
institutions. These broker-dealers or financial institutions may in turn engage
in short sales of the common stock in the course of hedging the positions they
assume with selling stockholder. The selling stockholder may also sell the
common stock short and deliver these securities to close out such short
positions, or loan or pledge the common stock to broker-dealers that in turn may
sell these securities.
The aggregate proceeds to the selling stockholder from the sale of the
common stock offered hereby will be the purchase price of the common stock less
discounts and commissions, if any. The selling stockholder reserves the right to
accept and, together with its agents from time to time, to reject, in whole or
in part, any proposed purchase of common stock to be made directly or through
agents. We will not receive any of the proceeds from this offering.
In order to comply with the securities laws of some states, if applicable,
the common stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers.
The selling stockholder and any broker-dealers or agents that participate
in the sale of the common stock may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act. Profits on the sale of the
common stock by the selling stockholder and any discounts, commissions or
concessions received by any broker-dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. If the selling
stockholder is deemed to be an "underwriter" within the meaning of Section 2(11)
of the Securities Act, it will be subject to the prospectus delivery
requirements of the Securities Act. To the extent the selling stockholder may be
deemed to be an
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"underwriter," it may be subject to statutory liabilities, including, but not
limited to, Sections 11, 12 and 17 of the Securities Act.
The selling stockholder and any other person participating in a
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder. Regulation M of the Exchange Act may limit
the timing of purchases and sales of the common stock by the selling stockholder
and any other person. In addition, Regulation M may restrict the ability of any
person engaged in the distribution of the common stock to engage in
market-making activities with respect to the common stock being distributed for
a period of up to five business days before the distribution. The selling
stockholder has acknowledged that it understands its obligations to comply with
the provisions of the Exchange Act and the rules thereunder relating to stock
manipulation, particularly Regulation M, and has agreed that it will not engage
in any transaction in violation of such provisions.
The selling stockholder has informed us that there are currently no
agreements, arrangements or understandings between the selling stockholder and
any underwriter, broker-dealer or agent regarding the sale of the common stock.
The selling stockholder may decide not to sell the underlying common stock
described in this prospectus. We cannot assure you that the selling stockholder
will use this prospectus to sell any or all of the common stock. Any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 or Rule
144A of the Securities Act may be sold under Rule 144 or Rule 144A rather than
pursuant to this prospectus. In addition, the selling stockholder may transfer,
devise or gift the common stock by other means not described in this prospectus.
With respect to a particular offering of the common stock, to the extent
required, an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement of which this prospectus
is a part will be prepared and will set forth the following information:
- the specific common stock to be offered and sold,
- the name of the selling stockholder,
- the respective purchase prices and public offering prices and other
material terms of the offering,
- the names of any participating agents, broker-dealers or underwriters,
and
- any applicable commissions, discounts, concessions and other items
constituting, compensation from the selling stockholder.
We entered into a registration rights agreement for the benefit of the
selling stockholder to register the common stock under applicable federal and
state securities laws under certain circumstances and at certain times. The
registration rights agreement provides that the selling stockholder and Fleming
will indemnify each other and their respective directors, officers and
controlling persons against specific liabilities in connection with the offer
and sale of the common stock, including liabilities under the Securities Act, or
will be entitled to contribution in connection with those liabilities. We will
pay all of our expenses and specified expenses incurred by the selling
stockholder incidental to the registration, offering and sale of the common
stock to the public, but the selling stockholder will be responsible for payment
of commissions, concessions, fees and discounts of underwriters, broker-dealers
and agents.
LEGAL MATTERS
Certain legal matters in connection with the common stock offered hereby
will be passed upon for us by McAfee & Taft, Oklahoma City, Oklahoma.
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INDEPENDENT AUDITORS
The consolidated financial statements incorporated in this prospectus by
reference from Fleming's Annual Report on Form 10-K for the year ended December
30, 2000 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference.
INCORPORATION BY REFERENCE
We have elected to "incorporate by reference" certain information into this
prospectus, which means we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus.
We incorporate by reference:
- Our Annual Report on Form 10-K for the fiscal year ended December 30,
2000 filed with the SEC on March 23, 2001, as amended by our Amended
Annual Report on Form 10-K/A, filed with the SEC on March 23, 2001,
including the information specifically incorporated by reference into our
Form 10-K from our Proxy Statement for our 2001 Annual Meeting of
Shareholders, filed with the SEC on March 28, 2001;
- Our Current Report on Form 8-K filed with the SEC on March 16, 2001;
- Our Current Report on Form 8-K filed with the SEC on March 13, 2001;
- The description of our common stock contained in our registration
statement on Form 8-A filed with the SEC on April 19, 1983, including any
amendments or reports filed for the purpose of updating such description.
We are also incorporating by reference all other reports that we file with
the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
between the date of this prospectus and the date of the completion of this
offering.
You may obtain copies of these documents from us without charge by writing
to us at Fleming Companies, Inc., 1945 Lakepointe Drive, Box 299013, Lewisville,
Texas 75029, or calling us at (972) 906-8000.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Securities Exchange
Act of 1934, as amended (File No. 001-08140). Accordingly, we file annual,
quarterly and periodic reports, proxy statements and other information with the
SEC relating to our business, financial statements and other matters. You may
read and copy any documents we have filed with the SEC at prescribed rates at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. You can obtain copies of these materials at prescribed rates
by writing to the SEC's Public Reference Section at 450 Fifth Street, N.W.,
Washington, D.C. 20549, or by calling (800) SEC-0330. Our SEC filings are also
available to you free of charge at the SEC's web site at http://www.sec.gov.
Information contained in our web site is not part of this prospectus.
9
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[FLEMING COMPANIES, INC. LOGO]
FLEMING COMPANIES, INC.
3,850,301 SHARES OF COMMON STOCK
-------------------------
PROSPECTUS
-------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE OF THIS PROSPECTUS. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES
IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
--------------------------------------------------------------------------------
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14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses payable by the
registrant in connection with the sale of the 3,850,301 shares of common stock
being registered. All of the amounts shown are estimates except the Securities
and Exchange Commission (the "Commission") registration fee.
AMOUNT
--------
Commission Registration Fee................................. $ 28,949
*Costs of Printing.......................................... 10,000
*Legal Fees and Expenses.................................... 100,000
*Accounting Fees and Expenses............................... 20,000
*Miscellaneous Expenses..................................... 16,051
--------
*Total.................................................... $175,000
========
-------------------------
* Estimated
ITEM 15. LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Thirteen of the Restated Certificate of Incorporation of the
Registrant contains a provision, permitted by Section 1006B.7 of the Oklahoma
General Corporation Act (the "OGCA"), limiting the personal monetary liability
of directors for breach of fiduciary duty as a director. The OGCA and the
Restated Certificate of Incorporation of the Registrant provide that such
provision does not eliminate or limit liability, (1) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) for unlawful payments of dividends or unlawful
stock repurchases or redemptions, as provided in Section 1053 of the OGCA, or
(4) for any transaction from which the director derived an improper personal
benefit.
Section 1031 of the OGCA permits indemnification against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with actions, suits or
proceedings in which a director, officer, employee or agent is a party by reason
of the fact that he or she is or was such a director, officer, employee or
agent, if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Registrant and
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. However, in connection with actions by
or in the right of the Registrant, such indemnification is not permitted if such
person has been adjudged liable to the Registrant unless the court determines
that, under all of the circumstances, such person is nonetheless fairly and
reasonably entitled to indemnity for such expenses as the court deems proper.
Section 1031 also permits the Registrant to purchase and maintain insurance
on behalf of its directors and officers against any liability which may be
asserted against, or incurred by, such persons in their capacities as directors
or officers of the Registrant whether or not the Registrant would have the power
to indemnify such persons against such liabilities under the provisions of such
section.
Section 1031 further provides that the statutory provision is not exclusive
of any other right to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
independent directors, or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office.
Article 8 of the bylaws of the Registrant contains provisions regarding
indemnification which parallel those described above. The Registrant maintains
insurance policies that insure its officers and directors against certain
liabilities.
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ITEM 16. INDEX TO EXHIBITS.
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
4.1 Stock and Warrant Purchase Agreement by and between the
Registrant and U.S. Transportation, LLC dated February 6,
2001.
4.2 Registration Rights Agreement by and between the Registrant
and U.S. Transportation, LLC dated March 22, 2001.
5.1 Opinion of McAfee & Taft.
23.1 Consent of McAfee & Taft (included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (included on signature page hereto).
ITEM 17. UNDERTAKINGS.
A. 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;
(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
increase or decrease in volume of securities offered would not exceed
that which was registered) and any deviation from the low or high of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent 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 clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act 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.
B. 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 15(d)
II-2
16
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 bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described above, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. If a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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
Securities Act and will be governed by the final adjudication of such issue.
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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 Lewisville, state of Texas, on the 3rd day of May,
2001.
FLEMING COMPANIES, INC.
By /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Carlos M. Hernandez his true and lawful
attorney-in-fact and agent, with full power of substitutions and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement on Form S-3 and to file
the same, with all exhibits thereto, and other documents in connection therewith
with the Securities and Exchange Commission, granting under said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, 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 below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MARK S. HANSEN Chairman and Chief Executive Officer May 3, 2001
--------------------------------------------------- (Principal Executive Officer)
Mark S. Hansen
/s/ NEAL J. RIDER Executive Vice President and Chief May 3, 2001
--------------------------------------------------- Financial Officer (Principal
Neal J. Rider Financial
and Accounting Officer)
Director
---------------------------------------------------
Herbert M. Baum
/s/ ARCHIE R. DYKES Director May 3, 2001
---------------------------------------------------
Archie R. Dykes
Director
---------------------------------------------------
Carol B. Hallett
/s/ ROBERT S. HAMADA Director May 3, 2001
---------------------------------------------------
Robert S. Hamada
/s/ EDWARD C. JOULLIAN III Director May 3, 2001
---------------------------------------------------
Edward C. Joullian III
/s/ GUY A. OSBORN Director May 3, 2001
---------------------------------------------------
Guy A. Osborn
/s/ ALICE M. PETERSON Director May 3, 2001
---------------------------------------------------
Alice M. Peterson
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
4.1 Stock and Warrant Purchase Agreement by and between the
Registrant and U.S. Transportation, LLC dated February 6,
2001.
4.2 Registration Rights Agreement by and between the Registrant
and U.S. Transportation, LLC dated March 22, 2001.
5.1 Opinion of McAfee & Taft.
23.1 Consent of McAfee & Taft (included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (included on signature page hereto).