AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 2002
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
---------------------
FLEMING COMPANIES, INC.
(Exact name of Registrant as specified in its charter)
<Table>
OKLAHOMA 48-0222760
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
</Table>
1945 LAKEPOINTE DRIVE
LEWISVILLE, TEXAS 75029
(972) 906-8000
(Address and telephone number of Registrant's principal executive offices)
FOR CO-REGISTRANTS, SEE "TABLE OF CO-REGISTRANTS" ON FOLLOWING PAGE.
CARLOS M. HERNANDEZ, ESQ.
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)
COPIES TO:
TRACY K. EDMONSON, ESQ.
LATHAM & WATKINS
505 MONTGOMERY STREET, SUITE 1900
SAN FRANCISCO, CALIFORNIA 94111-2562
(415) 391-0600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
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, 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
<Table>
<Caption>
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE
SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) AMOUNT OF REGISTRATION FEE(2)
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Debt Securities(3).......................
Guarantees of Debt Securities(5)(6)...... (4) (4)
Common Stock, $2.50 par value per
share(7)...............................
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Total.......................... $600,000,000 $55,200
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</Table>
(1) Securities may be issued in U.S. dollars or the equivalent thereof in
foreign currency or currency units.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any debt securities issued at a
discount.
(3) Debt securities may be issued in primary offerings or upon conversion of
another series of debt securities registered hereby.
(4) Omitted pursuant to General Instruction II.D. to Form S-3 under the
Securities Act of 1933, as amended.
(5) Any series of debt securities may be guaranteed by one or more
co-registrants.
(6) Pursuant to Rule 457(n), no separate fee is payable with respect to the
guarantees being registered hereby.
(7) Shares of common stock may be issued in primary offerings or upon conversion
of debt securities registered hereby.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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, AS AMENDED, 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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TABLE OF CO-REGISTRANTS
<Table>
<Caption>
STATE OF IRS EMPLOYER PSICC
NAME JURISDICTION OF FORMATION IDENTIFICATION NUMBER NUMBER
- ---- ------------------------- --------------------- ------
ABCO Food Group, Inc. Nevada 88-044007 5411
ABCO Markets, Inc. Arizona 86-0491500 *
ABCO Realty Corp. Arizona 86-0491499 *
AG, L.L.C Oklahoma ** **
American Logistics Group, Inc. Delaware 13-2656567 5141
Arizona Price Impact, L.L.C. Oklahoma 73-1546576 5411
Baker's Food Group, Inc. Nevada 88-0440078 5411
Cardinal Wholesale, Inc. Minnesota 41-0969178 5194
Dunigan Fuels, Inc. Texas 52-2206478 5172
FAVAR CONCEPTS, LTD Delaware 73-1570430 5411
Fleming Foods Management Co., L.L.C Oklahoma 73-1577381 5141
Fleming Foods of Texas, L.P. Oklahoma 73-1577380 5141
Fleming International Ltd. Oklahoma 73-1414701 5141
Fleming Supermarkets of Florida,
Inc. Florida 65-0418543 5411
Fleming Transportation Service, Inc. Oklahoma 73-1126039 5141
Fleming Wholesale, Inc. Nevada 93-1175982 5141
Food 4 Less Beverage Company, Inc. Texas ** **
FuelServ, Inc. Delaware 75-2894483 5172
Gateway Insurance Agency, Inc. Wisconsin 39-1346803 5141
LAS, Inc. Oklahoma 73-1410261 5411
Minter-Weisman Co. Minnesota 41-0809931 5194
Piggly Wiggly Company Oklahoma 73-1477999 6794
Progressive Realty, Inc. Oklahoma 73-1485750 5141
Rainbow Food Group, Inc. Nevada 88-04400079 5411
Retail Investments, Inc. Nevada 86-0900985 5411
Retail Supermarkets, Inc. Texas 74-0658440 5411
RFS Marketing Services, Inc. Oklahoma 73-1489627 5141
Richmar Foods, Inc. California 68-0095094 5411
Scrivner Transportation, Inc. Oklahoma 73-1288028 *
</Table>
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* Inactive entity.
** No I.R.S. Employer Identification Number or PSICC Number - subsidiary created
solely for liquor license.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE 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 IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 24, 2002
$600,000,000
FLEMING COMPANIES, INC.
DEBT SECURITIES AND COMMON STOCK
---------------------
We may from time to time sell up to $600,000,000 aggregate initial offering
price of our debt securities, our common stock, $2.50 par value per share, or
any combination of our debt securities and our common stock.
These debt securities may consist of notes, debentures or other types of
debt. We will provide specific terms of these debt securities in supplements to
this prospectus. Our payment obligations under any series of debt securities may
be guaranteed by one or more of our subsidiaries which are co-registrants. You
should read this prospectus and any prospectus supplement carefully before you
invest.
This prospectus provides a general description of the securities we may
offer. The specific terms of the securities offered by this prospectus will be
set forth in a supplement to this prospectus and will include:
- in the case of common stock, the number of shares, purchase price and
terms of the offering and sale thereof; and
- in the case of debt securities, the specific designation, aggregate
principal amount, purchase price, maturity, interest rate, time of
payment of interest, terms (if any) for the subordination or redemption
thereof, and any other specific terms of the debt securities.
Our common stock is traded on the New York Stock Exchange under the symbol
"FLM". On April 23, 2002 the last reported sale price for our common stock on
the New York Stock Exchange was $21.56 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAVE THESE
ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The date of this prospectus is , 2002.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. WE HAVE
NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THAT
CONTAINED IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. WE ARE
OFFERING TO SELL THE SECURITIES, AND SEEKING OFFERS TO BUY THE SECURITIES, ONLY
IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED. THE INFORMATION CONTAINED
IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT IS ACCURATE ONLY
AS OF THE DATE OF THIS PROSPECTUS AND THE DATE OF ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT, REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS AND ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT OR ANY SALES OF THE SECURITIES. WHEN WE
DELIVER THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT, WE ARE NOT
IMPLYING THAT THE INFORMATION IS CURRENT AS OF THE DATE OF THE DELIVERY OR SALE.
IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT, UNLESS OTHERWISE
INDICATED, THE "COMPANY", "WE", "US" AND "OUR" REFER TO FLEMING COMPANIES, INC.
AND ITS CONSOLIDATED SUBSIDIARIES.
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
----
About this Prospectus....................................... 1
Where You Can Find More Information......................... 1
Special Note Regarding Forward-Looking Statements........... 2
The Company................................................. 3
Use of Proceeds............................................. 3
Ratio of Earnings to Fixed Charges.......................... 4
Description of Debt Securities.............................. 4
Description of Capital Stock................................ 12
Plan of Distribution........................................ 15
Legal Matters............................................... 16
Experts..................................................... 16
</Table>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Fleming Companies,
Inc. and the co-registrants (together, the "registrants") filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf registration process, the registrants may sell any combination
of the securities described in this prospectus in one or more offerings up to a
total dollar amount of $600,000,000. This prospectus provides you with a general
description of the securities the registrants may offer. Each time the
registrants sell securities, the registrants will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
next heading "Where You Can Find More Information".
WHERE YOU CAN FIND MORE INFORMATION
Fleming Companies, Inc. files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
You can inspect and copy these reports, proxy statements and other information
at the public reference facilities of the Securities and Exchange Commission in
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information on
the public reference room. The Securities and Exchange Commission also maintains
a web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with it
(http://www.sec.gov). Information contained in our web site is not part of this
prospectus. You can inspect reports and other information we file at the office
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The registrants have filed a registration statement and related exhibits
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended. The registration statement contains additional information about us and
the securities. You may inspect the registration statement and exhibits without
charge at the office of the Securities and Exchange Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and you may obtain copies from the
Securities and Exchange Commission at prescribed rates.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information Fleming Companies, Inc. files with it, which means
that we can disclose important information to you by referring to those
documents. The information incorporated by reference is an important part of
this prospectus, and information that Fleming Companies, Inc. files later with
the Securities and Exchange Commission will automatically update and supersede
that information. The registrants incorporate by reference the following
documents Fleming Companies, Inc. filed with the Securities and Exchange
Commission pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (Securities and Exchange Commission file number 001-08140) (other than
information in such documents that is deemed not to be filed):
- Annual Report on Form 10-K for the year ended December 29, 2001
(including information specifically incorporated by reference into our
Form 10-K from our Proxy Statement for our 2002 Annual Meeting of
Shareholders);
- Our Current Reports on Form 8-K filed with the Securities and Exchange
Commission on April 2, 2002, April 16, 2002 and April 24, 2002 (other
than the information furnished pursuant to Item 9 of such report, which
information is deemed not to be filed);
- Description of Fleming Companies, Inc.'s common stock contained in our
registration statement on Form 8-A filed with the Securities and Exchange
Commission on April 19, 1983, including any amendments or reports filed
for the purpose of updating such description; and
- all documents filed by Fleming Companies, Inc. with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus and before we stop
offering the securities (other than those portions of such documents
described in
1
paragraphs (i), (k), and (l) of Item 402 of Regulation S-K promulgated by
the Securities and Exchange Commission and other than information in such
documents that is deemed not to be filed).
You may request a copy of these filings at no cost, by writing us at the
following address or telephoning us at the following number:
Fleming Companies, Inc.
1945 Lakepointe Drive, Box 299013
Lewisville, Texas 75029
Attention: Investor Relations
(972) 906-8000
You should rely only on the information incorporated by reference or
provided in this prospectus and any prospectus supplement. The registrants have
not authorized anyone else to provide you with different information.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
All statements other than statements of historical facts included or
incorporated by reference in this prospectus, including, without limitation,
statements 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. These forward-looking statements and
our business and prospects are subject to a number of factors that could cause
actual results to differ materially, including:
- our ability to obtain capital or obtain it on acceptable terms;
- unanticipated problems with product procurement;
- adverse effects of the changing industry environment and increased and
intense competition;
- sales declines and loss of customers;
- negative effects of Kmart Corporation's bankruptcy reorganization;
- exposure to litigation and other contingent losses;
- failure to achieve the expected results of our growth plans;
- the inability to integrate acquired companies and to achieve operating
improvements at those companies;
- increases in labor costs and disruptions in labor relations with union
bargaining units representing our employees;
- negative effects of our substantial indebtedness and the limitations
imposed by restrictive covenants contained in our debt instruments; and
- goodwill impairment due to changes in markets.
These and other risk factors are described in our Securities and Exchange
Commission reports, including but not limited to the Annual Report on Form 10-K
for the fiscal year ended December 29, 2001. 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. We
undertake no obligation to update forward-looking statements to reflect
developments or information obtained after the date on the cover page of this
prospectus.
2
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
distribution group, we distribute products to customers that operate
approximately 3,000 supermarkets, 6,800 convenience stores and over 2,000
supercenters, discount stores, limited assortment stores, drug stores, specialty
stores and other stores across the United States.
As of April 20, 2002, our retail group operated 119 stores, predominantly
supermarkets that focus on low prices and high quality perishables, comprised of
102 price impact supermarkets that offer everyday low prices that are typically
below the prices of market-leading conventional supermarkets and 17 limited
assortment stores under the yes!LESS(R) banner that offer a narrow selection of
low-price, private label food and other consumable goods and general merchandise
at deep-discount prices.
Our principal executive offices are located at 1945 Lakepointe Drive,
Lewisville, Texas 75057. Our telephone number at that location is (972)
906-8000.
RECENT DEVELOPMENTS
Core-Mark Acquisition. On April 23, 2002, we signed a merger agreement to
acquire Core-Mark International, Inc. ("Core-Mark"), a distributor of consumer
package goods to convenience stores and other retailers in the western United
States. We will pay approximately $295 million in cash to acquire Core-Mark. In
addition, we will assume all of Core-Mark's outstanding debt as of the closing
of the merger, which we estimate to be approximately $95 million. Core-Mark
distributes consumer package goods to nearly 30,000 convenience stores and other
retailers from its network of 19 distribution centers and had fiscal 2001 sales
of approximately $3.4 billion.
Our acquisition of Core-Mark is subject to a number of conditions,
including our receipt of certain regulatory approvals and other customary
closing conditions. Although we cannot assure you that any or all of these
conditions will be satisfied, we believe that we will complete the acquisition
during our second fiscal quarter of 2002.
We intend to finance our acquisition of Core-Mark with a combination of
available cash, borrowings under our credit facility and the net proceeds from
public offerings of debt and/or equity securities.
Head Distributing Acquisition. On April 23, 2002, we acquired Head
Distributing Company ("Head Distributing") for approximately $40 million in
cash, which amount is subject to potential future de minimus adjustment as
provided in an agreement among us and Head Distributing's stockholders. Head
Distributing operates two piece-pick distribution facilities and serves
approximately 3,000 retail locations in six southeastern states and had fiscal
2001 sales of approximately $350 million.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities for general
corporate purposes, which may include, but are not limited to, funding our
obligations in the acquisition of Core-Mark, including repaying the debt we
assumed from Core-Mark in connection with the acquisition, and for working
capital, capital expenditures and other potential acquisitions. We will set
forth in the applicable prospectus supplement our intended use for the net
proceeds received from our sale of any securities.
3
RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for the periods indicated are as
follows:
<Table>
<Caption>
FISCAL YEAR ENDED
------------------------------------------------------------------------
DECEMBER 27, DECEMBER 26, DECEMBER 25, DECEMBER 30, DECEMBER 29,
1997 1998 1999 2000 2001
------------ ------------ ------------ ------------ ------------
Ratio of earnings to
fixed charges(1)..... 1.41x -- -- -- 1.29x
</Table>
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(1) For purposes of computing this ratio, earnings consist of earnings before
income taxes and fixed charges. Fixed charges consist primarily of interest
expense, including amortization of deferred debt issuance costs and
one-third of rental expense (the portion considered representative of the
interest factor). Earnings were insufficient to cover fixed charges by $598
million, $63 million and $202 million for the fiscal years ended December
26, 1998, December 25, 1999 and December 30, 2000, respectively.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of our debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement whether the general terms
and provisions described in this prospectus apply to a particular series of debt
securities.
We may offer under this prospectus up to $600,000,000 aggregate principal
amount of debt securities, or if debt securities are issued at a discount, or in
a foreign currency or composite currency, such principal amount as may be sold
for an initial public offering price of up to $600,000,000. The debt securities
will represent our direct obligations and will rank equally with all of our
other unsubordinated indebtedness, unless otherwise specified in the applicable
prospectus supplement. Any series of debt securities may be guaranteed by one or
more of our subsidiaries which are co-registrants.
The debt securities offered hereby will be issued under an indenture
between us and a trustee. We have summarized select portions of the indenture
below. The summary is not complete. We have filed a copy of the indenture as an
exhibit to the registration statement and you should read the indenture for
provisions that may be important to you. Capitalized terms used in the summary
below have the meanings specified in the indenture.
When we refer to "we", "our", "us" and the "company" in this section, we
mean Fleming Companies, Inc. excluding, unless the context otherwise requires or
as otherwise expressly stated, our subsidiaries.
GENERAL
The terms of each series of debt securities will be established by or
pursuant to a resolution of our board of directors and detailed or determined in
the manner provided in an officers' certificate or by a supplemental indenture.
The particular terms of each series of debt securities will be described in a
prospectus supplement relating to the series, including any pricing supplement.
We can issue an unlimited amount of debt securities under the indenture
that may be in one or more series with the same or various maturities, at par,
at a premium, or at a discount. We will set forth in a prospectus supplement
(including any pricing supplement) relating to any series of debt securities
being offered, the initial offering price, the aggregate principal amount and
the following terms of the debt securities, if applicable:
- the title of the debt securities;
- the price or prices (expressed as a percentage of the aggregate principal
amount) at which we will sell the debt securities;
- any limit on the aggregate principal amount of the debt securities;
4
- the date or dates on which we will pay the principal on the debt
securities;
- the rate or rates (which may be fixed or variable) per annum or the
method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the
debt securities will bear interest, the date or dates from which interest
will accrue, the date or dates on which interest will commence and be
payable and any regular record date for the interest payable on any
interest payment date;
- the place or places where principal of, premium, and interest on the debt
securities will be payable;
- whether the debt securities rank as senior subordinated debt securities
or subordinated debt securities;
- the terms of any guarantee of any debt securities;
- the terms and conditions upon which we may redeem the debt securities;
- any obligation we have to redeem or purchase the debt securities pursuant
to any sinking fund or analogous provisions or at the option of a holder
of debt securities;
- the dates on which and the price or prices at which we will repurchase
the debt securities at the option of the holders of debt securities and
other detailed terms and provisions of these repurchase obligations;
- the denominations in which the debt securities will be issued, if other
than denominations of $1,000 and any integral multiple thereof;
- whether the debt securities will be issued in the form of certificated
debt securities or global debt securities;
- the portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount;
- the currency of denomination of the debt securities;
- the designation of the currency, currencies or currency units in which
payment of principal of, premium and interest on the debt securities will
be made;
- if payments of principal of, premium or interest on the debt securities
will be made in one or more currencies or currency units other than that
or those in which the debt securities are denominated, the manner in
which the exchange rate with respect to these payments will be
determined;
- the manner in which the amounts of payment of principal of, premium or
interest on the debt securities will be determined, if these amounts may
be determined by reference to an index based on a currency or currencies
other than that in which the debt securities are denominated or
designated to be payable or by reference to a commodity, commodity index,
stock exchange index or financial index;
- whether, the ratio at which and the terms and conditions upon which, if
any, the debt securities will be convertible into or exchangeable for our
common stock or our other securities or securities of another person;
- any provisions relating to any security provided for the debt securities;
- any addition to or change in the Events of Default described in this
prospectus or in the indenture with respect to the debt securities and
any change in the acceleration provisions described in this prospectus or
in the indenture with respect to the debt securities;
- any addition to or change in the covenants described in this prospectus
or in the indenture with respect to the debt securities;
- any other terms of the debt securities, which may modify or delete any
provision of the indenture as it applies to that series; and
- any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt securities.
5
In addition, the indenture does not limit our ability to issue subordinated
debt securities. Any subordination provisions of a particular series of debt
securities will be set forth in the officers' certificate or supplemental
indenture related to that series of debt securities and will be described in the
relevant prospectus supplement.
We may issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of acceleration
of their maturity pursuant to the terms of the indenture. We will provide you
with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable
prospectus supplement.
If we denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest on any series of debt securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
we will provide you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect to that issue
of debt securities and such foreign currency or currencies or foreign currency
unit or units in the applicable prospectus supplement.
TRANSFER AND EXCHANGE
Each debt security will be represented by either one or more global
securities registered in the name of The Depository Trust Company, as Depositary
(the "Depositary"), or a nominee of the Depositary (we will refer to any debt
security represented by a global debt security as a "book-entry debt security"),
or a certificate issued in definitive registered form (we will refer to any debt
security represented by a certificated security as a "certificated debt
security"), as described in the applicable prospectus supplement. Except as
described under "Global Debt Securities and Book-Entry System" below, book-entry
debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated
debt securities at any office we maintain for this purpose in accordance with
the terms of the indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the
principal of, premium and interest on certificated debt securities only by
surrendering the old certificate representing those certificated debt
securities, and either we or the trustee will reissue the old certificate to the
new holder or we or the trustee will issue a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security
representing book-entry debt securities will be deposited with, or on behalf of,
the Depositary, and registered in the name of the Depositary or a nominee of the
Depositary.
The Depositary has indicated it intends to follow the following procedures
with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will be
limited to persons that have accounts with the Depositary for the related global
debt security ("participants") or persons that may hold interests through
participants. Upon the issuance of a global debt security, the Depositary will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal amounts of the book-entry debt securities
represented by the global debt security beneficially owned by such participants.
The accounts to be credited will be designated by any dealers, underwriters or
agents participating in the distribution of the book-entry debt securities.
Ownership of book-entry debt securities will be shown on, and the transfer of
the ownership interests will be effected only through, records maintained by the
Depositary for the related global debt security (with respect to interests of
participants) and on the records of participants (with respect to interests of
persons holding through participants). The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. These laws may impair the ability to own, transfer or pledge
beneficial interests in book-entry debt securities.
6
So long as the Depositary for a global debt security, or its nominee, is
the registered owner of that global debt security, the Depositary or its
nominee, as the case may be, will be considered the sole owner or holder of the
book-entry debt securities represented by such global debt security for all
purposes under the indenture. Except as described herein, beneficial owners of
book-entry debt securities will not be entitled to have securities registered in
their names, will not receive or be entitled to receive physical delivery of a
certificate in definitive form representing securities and will not be
considered the owners or holders of those securities under the indenture.
Accordingly, to exercise any rights of a holder under the indenture, each person
beneficially owning book-entry debt securities must rely on the procedures of
the Depositary for the related global debt security and, if that person is not a
participant, on the procedures of the participant through which that person owns
its interest.
We understand, however, that under existing industry practice, the
Depositary will authorize the persons on whose behalf it holds a global debt
security to exercise certain rights of holders of debt securities, and the
indenture provides that we, the trustee and our respective agents will treat as
the holder of a debt security the persons specified in a written statement of
the Depositary with respect to that global debt security for purposes of
obtaining any consents or directions required to be given by holders of the debt
securities pursuant to the indenture.
We will make payments of principal of, and premium and interest on
book-entry debt securities to the Depositary or its nominee, as the case may be,
as the registered holder of the related global debt security. We, the trustee
and any other agent of ours or agent of the trustee will not have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a global debt
security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
We expect that the Depositary, upon receipt of any payment of principal of,
premium or interest on a global debt security, will immediately credit
participants' accounts with payments in amounts proportionate to the respective
amounts of book-entry debt securities held by each participant as shown on the
records of the Depositary. We also expect that payments by participants to
owners of beneficial interests in book-entry debt securities held through those
participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of those participants.
We will issue certificated debt securities in exchange for each global debt
security if the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Exchange Act,
and a successor Depositary registered as a clearing agency under the Exchange
Act is not appointed by us within 120 days. In addition, we may at any time and
in our sole discretion determine not to have any of the book-entry debt
securities of any series represented by one or more global debt securities and,
in that event, we will issue certificated debt securities in exchange for the
global debt securities of that series. Any certificated debt securities issued
in exchange for a global debt security will be registered in such name or names
as the Depositary shall instruct the trustee. We expect that such instructions
will be based upon directions received by the Depositary from participants with
respect to ownership of book-entry debt securities relating to such global debt
security.
We have obtained the foregoing information in this section concerning the
Depositary and the Depositary's book-entry system from sources we believe to be
reliable, but we take no responsibility for the accuracy of this information.
NO PROTECTION IN THE EVENT OF A CHANGE OF CONTROL
Unless we state otherwise in the applicable prospectus supplement, the debt
securities will not contain any provisions which may afford holders of the debt
securities protection in the event we have a change in control or in the event
of a highly leveraged transaction (whether or not such transaction results in a
change in control).
7
COVENANTS
Unless we state otherwise in the applicable prospectus supplement and in a
supplement to the indenture, the debt securities will not contain any
restrictive covenants, including covenants restricting us or any of our
subsidiaries from incurring, issuing, assuming or guarantying any indebtedness
secured by a lien on any of our or our subsidiaries' property or capital stock,
or restricting us or any of our subsidiaries from entering into any sale and
leaseback transactions.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not, in a single transaction or a series of related transactions,
consolidate with or merge with or into any other person or sell, assign, convey,
transfer or lease or otherwise dispose of all or substantially all of our
properties and assets to any person or group of affiliated persons if such
transaction or transactions, in the aggregate, would result in a sale,
assignment, conveyance, transfer, lease or disposal of all or substantially all
of our properties and assets on a consolidated basis to any other person or
group of affiliated persons, unless at the time and after giving effect thereto:
- either:
- we are the surviving or continuing corporation; or
- the person (if other than us) formed by such consolidation or into which
we are merged or the person which acquires by sale, assignment,
conveyance, transfer, lease or disposition our properties and assets
substantially as an entirety is a corporation duly organized and validly
existing under the laws of the United States, any state thereof or the
District of Columbia and, in any case, expressly assumes, by a
supplemental indenture, executed and delivered to the trustee, in form
satisfactory to the trustee, all of our obligations under the debt
securities and the indenture, and the indenture remains in full force
and effect;
- immediately before and immediately after giving effect to the transaction
on a pro forma basis (and treating any debt not previously an obligation
of ours which becomes an obligation of ours in connection with or as a
result of the transaction as having been incurred at the time of the
transaction), no Default or Event of Default (as defined below) has
occurred and is continuing; and
- we deliver, or caused to be delivered, to the trustee, in form and
substance satisfactory to the trustee, an officers' certificate and an
opinion of counsel, each to the effect that the consolidation, merger,
sale, assignment, conveyance, transfer, lease or other transaction and
the supplemental indenture in respect thereto, if required, comply with
the provisions set forth in the preceding bullet points and that all
conditions precedent provided for in the indenture relating to the
transaction have been complied with.
EVENTS OF DEFAULT
"Event of Default" means with respect to any series of debt securities, any
of the following:
- default in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of that default
for a period of 30 days;
- default in the payment of principal of or premium on any debt security of
that series when due and payable;
- default in the deposit of any sinking fund payment, when and as due in
respect of any debt security of that series;
- default in the performance, or breach, of any other covenant or agreement
by us in the indenture (other than a default in the performance, or
breach, of a covenant or agreement that is specifically dealt with in the
immediately preceding bullet points or that has been included in the
indenture solely for the benefit of a series of debt securities other
than that series), which default continues uncured for a period of 60
days after we receive written notice from the trustee or we and the
trustee receive written
8
notice from the holders of at least 25% in aggregate principal amount of
the then outstanding debt securities of that series as provided in the
indenture;
- a default in the payment of the principal of any debt of ours (including
a default with respect to debt securities of any series other than that
series) or any of our subsidiaries shall have occurred under any
agreements, indentures or instruments under which we or any of our
subsidiaries then has outstanding debt in excess of $50 million when the
same shall become due and payable in full and such default shall have
continued after any applicable grace period and shall not have been cured
or waived, or an event of default as defined in any of these agreements,
indentures or instruments shall have occurred and the debt thereunder, if
not already matured at its final maturity in accordance with its terms,
shall have been accelerated;
- certain events of bankruptcy, insolvency or reorganization; and
- any other Event of Default provided with respect to debt securities of
that series that is described in the applicable prospectus supplement
accompanying this prospectus.
No Event of Default with respect to a particular series of debt securities
(except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an Event of Default with respect to any other series of
debt securities. An Event of Default may also be an event of default under our
bank credit agreements in existence from time to time and under certain
guaranties by us of any subsidiary indebtedness. In addition, certain Events of
Default or an acceleration under the indenture may also be an event of default
under some of our other indebtedness outstanding from time to time.
If an Event of Default with respect to debt securities of any series at the
time outstanding occurs and is continuing, then the trustee or the holders of
not less than 25% in aggregate principal amount of the then outstanding debt
securities of that series may, by written notice to us (and to the trustee if
given by the holders), declare to be due and payable immediately the principal
(or, if the debt securities of that series are discount securities, that portion
of the principal amount as may be specified in the terms of that series) and
premium of all debt securities of that series. In the case of an Event of
Default resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) and premium of all
outstanding debt securities will become and be immediately due and payable
without any declaration or other act by the trustee or any holder of outstanding
debt securities. At any time after a declaration of acceleration with respect to
debt securities of any series has been made, but before the trustee has obtained
a judgment or decree for payment of the money due, the holders of a majority in
aggregate principal amount of the then outstanding debt securities of that
series may, subject to our having paid or deposited with the trustee a sum
sufficient to pay overdue interest and principal which has become due other than
by acceleration and certain other conditions, rescind and annul such
acceleration if all Events of Default, other than the non-payment of accelerated
principal and premium with respect to debt securities of that series, have been
cured or waived as provided in the indenture. For information as to waiver of
defaults see the discussion under "-- Modification and Waiver" below. We refer
you to the prospectus supplement relating to any series of debt securities that
are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of the discount securities upon the
occurrence of an Event of Default and the continuation of an Event of Default.
The indenture provides that the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
holder of outstanding debt securities, unless the trustee receives indemnity
satisfactory to it against any loss, liability or expense. Subject to certain
rights of the trustee, the holders of a majority in aggregate principal amount
of the then outstanding debt securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
9
No holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the indenture
or for the appointment of a receiver or trustee, or for any remedy under the
indenture, unless:
- that holder has previously given to the trustee written notice of a
continuing Event of Default with respect to debt securities of that
series; and
- the holders of at least 25% in aggregate principal amount of the then
outstanding debt securities of that series have made written request, and
offered reasonable indemnity, to the trustee to institute such proceeding
as trustee, and the trustee shall not have received from the holders of a
majority in aggregate principal amount of the then outstanding debt
securities of that series a direction inconsistent with that request and
has failed to institute the proceeding within 60 days.
Notwithstanding the foregoing, the holder of any debt security will have an
absolute and unconditional right to receive payment of the principal of, premium
and any interest on that debt security on or after the due dates expressed in
that debt security and to institute suit for the enforcement of payment.
The indenture requires us, within 90 days after the end of our fiscal year,
to furnish to the trustee a statement as to compliance with the indenture. The
indenture provides that the trustee may withhold notice to the holders of debt
securities of any series of any Default or Event of Default (except in payment
on any debt securities of that series) with respect to debt securities of that
series if it in good faith determines that withholding notice is in the interest
of the holders of those debt securities.
MODIFICATION AND WAIVER
We and the trustee may modify and amend the indenture with the consent of
the holders of at least a majority in aggregate principal amount of the then
outstanding debt securities of each series affected by the modifications or
amendments. We and the trustee may not make any modification or amendment
without the consent of the holder of each affected debt security then
outstanding if that amendment will:
- change the amount of debt securities whose holders must consent to an
amendment or waiver;
- reduce the rate of or extend the time for payment of interest (including
default interest) on any debt security;
- reduce the principal of or premium on or change the fixed maturity of any
debt security or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation with respect to
any series of debt securities;
- reduce the principal amount of discount securities payable upon
acceleration of maturity;
- waive a default in the payment of the principal of, premium or interest
on any debt security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities of
that series and a waiver of the payment default that resulted from that
acceleration);
- make the principal of or premium or interest on any debt security payable
in currency other than that stated in the debt security;
- make any change to certain provisions of the indenture relating to, among
other things, the right of holders of debt securities to receive payment
of the principal of, premium and interest on those debt securities and to
institute suit for the enforcement of any payment and to waivers or
amendments; or
- waive a redemption payment with respect to any debt security or change
any of the provisions with respect to the redemption of any debt
securities.
Except for certain specified provisions, the holders of at least a majority
in aggregate principal amount of the then outstanding debt securities of any
series may on behalf of the holders of all debt securities of that series waive
our compliance with provisions of the indenture. The holders of a majority in
aggregate principal amount of the then outstanding debt securities of any series
may on behalf of the holders of all the debt
10
securities of that series waive any past default under the indenture with
respect to that series and its consequences, except a default in the payment of
the principal of, premium or any interest on any debt security of that series;
provided, however, that the holders of a majority in aggregate principal amount
of the then outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment default that
resulted from the acceleration.
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
Legal Defeasance. The indenture provides that, unless otherwise provided
by the terms of the applicable series of debt securities, we may be discharged
from any and all obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or exchange of debt
securities of the series, to replace stolen, lost or mutilated debt securities
of the series, and to maintain paying agencies and certain provisions relating
to the treatment of funds held by paying agents). We will be so discharged upon
the deposit with the trustee, in trust, of money and/or U.S. Government
Obligations or, in the case of debt securities denominated in a single currency
other than U.S. dollars, Foreign Government Obligations (as defined below),
that, through the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants to pay and discharge each
installment of principal, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the stated maturity
of such payments in accordance with the terms of the indenture and those debt
securities.
This discharge may occur only if, among other things, we have delivered to
the trustee an officers' certificate and an opinion of counsel stating that we
have received from, or there has been published by, the United States Internal
Revenue Service a ruling or, since the date of execution of the indenture, there
has been a change in the applicable United States federal income tax law, in
either case to the effect that holders of the debt securities of such series
will not recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred.
Defeasance of Certain Covenants. The indenture provides that, unless
otherwise provided by the terms of the applicable series of debt securities,
upon compliance with certain conditions:
- we may omit to comply with the restrictive covenants contained in
Sections 4.2 through 4.6 and Section 5.1 of the indenture, as well as any
additional covenants contained in a supplement to the indenture, a board
resolution or an officers' certificate delivered pursuant to the
indenture; and
- Events of Default under Section 6.1(e) of the indenture will not
constitute a Default or an Event of Default with respect to the debt
securities of that series.
The conditions include:
- depositing with the trustee money and/or U.S. Government Obligations or,
in the case of debt securities denominated in a single currency other
than U.S. dollars, Foreign Government Obligations, that, through the
payment of interest and principal in accordance with their terms, will
provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants to pay principal,
premium and interest on and any mandatory sinking fund payments in
respect of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and those
debt securities; and
- delivering to the trustee an opinion of counsel to the effect that the
holders of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a result of
the deposit and related covenant defeasance and will be subject to United
States federal income tax in the same amount and in the same manner and
at the same times as would have been the case if the deposit and related
covenant defeasance had not occurred.
11
Covenant Defeasance and Events of Default. In the event we exercise our
option not to comply with certain covenants of the indenture with respect to any
series of debt securities and the debt securities of that series are declared
due and payable because of the occurrence of any Event of Default, the amount of
money and/or U.S. Government Obligations or Foreign Government Obligations on
deposit with the trustee will be sufficient to pay amounts due on the debt
securities of that series at the time of their stated maturity but may not be
sufficient to pay amounts due on the debt securities of that series at the time
of the acceleration resulting from the Event of Default. However, we will remain
liable for those payments.
"Foreign Government Obligations" means, with respect to debt securities of
any series that are denominated in a currency other than U.S. dollars:
- direct obligations of the government that issued or caused to be issued
such currency for the payment of which obligations its full faith and
credit is pledged, which are not callable or redeemable at the option of
the issuer thereof; or
- obligations of a person controlled or supervised by or acting as an
agency or instrumentality of that government the timely payment of which
is unconditionally guaranteed as a full faith and credit obligation by
that government, which are not callable or redeemable at the option of
the issuer thereof.
GOVERNING LAW
The indenture and the debt securities will be governed by, and construed in
accordance with, the internal laws of the State of New York.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Our authorized capital stock consists of 100,000,000 shares of common
stock, par value $2.50 per share, and 2,000,000 shares of preferred stock, par
value $10.00 per share. As of February 25, 2002, 44,478,000 shares of our common
stock were issued and outstanding and no shares of our preferred stock were
issued and outstanding.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share held
with respect to all matters as to which the common stock is entitled to vote.
Except as otherwise required by law, the holders of our common stock vote
together with the holders of all shares of our preferred stock that are entitled
to vote, and not as a separate class. Voting rights for the election of
directors are noncumulative. Subject to the preferential and other dividend
rights of holders of our preferred stock, holders of our common stock are
entitled to receive any dividends, payable in cash, stock or otherwise, that our
board of directors may declare at any time or from time to time out of legally
available funds. In the event of our liquidation, dissolution or winding up,
after distribution in full of any preferential or other amounts owed to holders
of our preferred stock, holders of our common stock are entitled to receive all
of our remaining assets, ratably in proportion to the number of shares of common
stock they hold. Holders of our common stock have no conversion, preemptive or
subscription rights, and shares of our common stock are not subject to
redemption. All outstanding shares of our common stock are fully paid and
nonassessable.
PREFERRED STOCK
Our certificate of incorporation authorizes our board of directors, without
further action by our shareholders, to issue up to 2,000,000 shares of preferred
stock in one or more series. The board is authorized to fix the powers, rights,
preferences and limitations of the shares of each series of preferred stock,
including the designation and number of shares of each series, the dividend rate
payable on each series and whether dividends are cumulative or noncumulative,
voting rights, redemption rights, the creation of a sinking fund with respect to
a series, conversion rights, preference rights upon a liquidation or dissolution
and the relative
12
priority of the shares of each series to shares of other classes or series, as
well as any other rights. The issuance of preferred stock could dilute the
voting power of holders of our common stock, and the likelihood that holders of
preferred stock will receive dividend payments and payments upon liquidation may
have the effect of delaying, deferring or preventing a change in control of our
company, which could depress the market price of our common stock. We have no
present plans to issue any shares of preferred stock.
ANTI-TAKEOVER PROVISIONS IN OUR CERTIFICATE OF INCORPORATION AND OKLAHOMA LAW
Limitation on Shareholder Rights Plan -- Bylaws. Our bylaws contain a
provision which limits our ability to "adopt or maintain a poison pill,
shareholder rights plan, rights agreement or any other form of "poison pill"
which is designed to or which has the effect of making acquisitions of large
holdings of the Corporation's shares of stock more difficult or expensive . . .
unless such a plan is first approved by a majority shareholder vote" and
prohibits the amendment, alteration, deletion or modification of such bylaw by
the board of directors without prior shareholder approval.
Business Combination -- Certificate of Incorporation. Our certificate of
incorporation provides that certain business combinations and transactions
involving us and a holder of 10% or more of our outstanding common stock, which
we refer to in our certificate of incorporation as an "interested shareholder,"
must be approved by the holders of at least 80% of the outstanding shares of our
common stock that are not held by interested shareholders, unless:
- three-fourths of our directors who are not affiliated with an interested
shareholder approve the transaction; or
- certain minimum price criteria and procedural safeguards are satisfied.
If the 80% vote requirement does not apply to a given transaction, then the
vote otherwise required by Oklahoma law would apply. Oklahoma law requires,
except as provided in Section 1090.3 of the Oklahoma General Corporation Act
(see below) or the Oklahoma control shares law (see below), the favorable vote
of a majority of the outstanding shares of voting stock of a corporation to
adopt a merger or consolidation, for the sale, lease or exchange of all or
substantially all of the assets of the corporation, or for a reclassification,
recapitalization, reorganization or similar transaction.
Business Combinations -- Oklahoma Statutes. In addition, we are subject to
Section 1090.3 of the Oklahoma General Corporation Act. In general, this statute
prohibits a publicly-held Oklahoma corporation from engaging in any business
combination with any interested shareholder for a period of three years
following the date that the shareholder became an interested shareholder,
unless:
- prior to the date the shareholder became an interested shareholder, the
board of directors of the corporation approved either the business
combination or the transaction that resulted in the shareholder becoming
an interested shareholder;
- upon consummation of the transaction that resulted in the shareholder
becoming an interested shareholder, the interested shareholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding those shares owned by persons who
are directors and also officers, and employee stock plans in which
employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer; or
- subsequent to the date that the shareholder became an interested
shareholder, the business combination is approved by the board of
directors and authorized at an annual or special meeting of shareholders,
and not by written consent, by the affirmative vote of at least
two-thirds of the outstanding voting stock not held by the interested
shareholder.
13
Section 1090.3 of the Oklahoma General Corporation Act defines "business
combination" to include:
- any merger or consolidation involving the corporation and the interested
shareholder;
- sale, pledge, transfer or other disposition of 10% or more of the assets
of the corporation involving the interested shareholder;
- subject to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested shareholder; or
- receipt by the interested shareholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In general, Section 1090.3 of the Oklahoma General Corporation Act defines
an "interested shareholder" as any person that owns 15% or more of the
outstanding voting stock of the corporation or any person affiliated with or
controlling or controlled by such person.
Oklahoma Control Shares Law. The Oklahoma control shares law, if
applicable, eliminates voting rights with respect to control shares after a
control share acquisition unless the right to vote is approved by the
affirmative vote of a majority of all voting power excluding interested shares,
i.e., shares held by the acquiring person, officers of the company and any
employee of the company who is also a director of the company. "Control shares"
means issued and outstanding shares having 20% or more of all voting power.
Certain acquisitions of control shares are excluded from the elimination of
voting power provisions, e.g., shares acquired pursuant to a merger or
acquisition to which the company is a party to the agreement of merger or
acquisition.
Certificate of Incorporation -- Greenmail. Our certificate of
incorporation requires a majority of the voting power of the company to approve
the purchase by us of shares from a shareholder who owns 5% or more of our
outstanding shares within two years after the person acquired such shares.
Annual Election of Directors. Our bylaws provide that candidates for our
board of directors may be nominated only by our board of directors or by a
shareholder who gives written notice to us not less than 60 nor more than 90
days prior to the meeting of shareholders at which the directors are to be
elected. However, directors may be elected without a meeting by unanimous
written consent of the shareholders.
Our board of directors may consist of not less than three nor more than 20
members to be determined from time to time by our board. We amended our
certificate of incorporation in 1999 to phase out our classified board. The
effect of this was that five of the then seven members were up for election at
our annual meeting of shareholders in 2001. After our annual meeting of
shareholders in 2002, all of our directors will be of one class and serve for a
term ending at the annual meeting following the annual meeting at which each
director was elected. Between shareholder meetings, our board may appoint new
directors to fill vacancies or newly created directorships.
Shareholder Action by Written Consent. Our shareholders may act by written
consent without a meeting if the consent or consents are signed by the holders
of all of the outstanding stock entitled to vote on the matter.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Oklahoma law permits, and our certificate of incorporation contains, a
provision eliminating our directors' liability to us or our shareholders for
monetary damages for breach of fiduciary duty, except for liability:
- for any breach of the director's duty of loyalty to us or our
shareholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or which the director knows to be a violation of law;
14
- under Section 1053 of the Oklahoma General Corporation Act (generally,
liability for unlawful dividends or stock repurchases); or
- for any transaction from which the director derived an improper personal
benefit.
In addition, our bylaws contain provisions indemnifying our directors and
officers to the fullest extent permitted by the Oklahoma General Corporation
Act, but such provisions are not exclusive of other rights to indemnification
pursuant to agreement, vote of shareholders or disinterested directors or
otherwise. We believe that these provisions will assist us in attracting and
retaining qualified individuals to serve as our directors and officers.
TRANSFER AGENT
The transfer agent and registrar for our common stock is First Chicago
Trust Company, a division of Equiserve. First Chicago Trust Company's telephone
number is (800) 317-4445.
PLAN OF DISTRIBUTION
We may sell securities to or through underwriters and also may sell
securities directly to purchasers or through agents. We will name any
underwriter or agent involved in the offer and sale of securities in the
applicable prospectus supplement.
We may distribute the securities from time to time in one or more
transactions:
- at a fixed price or prices, which may be changed;
- at market prices prevailing at the time of sale;
- at prices related to such prevailing market prices; or
- at negotiated prices.
We may also, from time to time, authorize dealers, acting as our agents, to
offer and sell securities upon the terms and conditions set forth in the
applicable prospectus supplement. In connection with the sale of securities, we,
or the purchasers of securities for whom the underwriters may act as agents, may
compensate underwriters in the form of discounts, concessions or commissions.
Underwriters may sell the securities to or through dealers, and those dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent. Underwriters, dealers and agents participating in the distribution
of securities may be deemed to be underwriters under the Securities Act, and any
discounts or commissions they receive from us and any profit they realize on
resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act. We will describe in the applicable
prospectus supplement any compensation we pay to underwriters or agents in
connection with the offering of securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers.
We may enter into agreements to indemnify underwriters, dealers and agents
who participate in the distribution of securities against certain liabilities,
including liabilities under the Securities Act.
To facilitate the offering of securities, certain persons participating in
the offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. This may include over-allotments or short
sales of the securities, which involve the sale by persons participating in the
offering of more securities than we sold to them. In these circumstances, these
persons would cover such over-allotments or short positions by making purchases
in the open market or by exercising their over-allotment option, if any. In
addition, these persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in the
offering may be reclaimed if securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of
15
the securities at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for us in the ordinary course
of our business.
LEGAL MATTERS
Latham & Watkins of San Francisco, California, and McAfee & Taft of
Oklahoma City, Oklahoma, each will issue an opinion about certain legal matters
with respect to the securities for us. Any underwriters will be advised about
the other issues relating to any offering by their own legal counsel.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the fiscal year ended December
29, 2001 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is also incorporated in this prospectus by
reference, and have been so incorporated in reliance upon such report given upon
the authority of said firm as experts in auditing and accounting.
16
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$600,000,000
FLEMING COMPANIES, INC.
DEBT SECURITIES AND COMMON STOCK
----------
PROSPECTUS
----------
, 2002
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid by us in connection with the distribution of the
securities being registered are as set forth in the following table:
<Table>
Securities and Exchange Commission Fee...................... $ 55,200
*Rating Agency Fees......................................... 25,000
*Legal Fees and Expenses.................................... 250,000
*Accounting Fees and Expenses............................... 25,000
*Printing Expenses.......................................... 35,000
*Blue Sky Fees.............................................. 7,500
*Trustee/Issuing & Paying Agent Fees and Expenses........... 5,000
*Transfer Agent Fees & Expenses............................. 5,000
*Miscellaneous.............................................. 42,300
--------
*Total................................................. $450,000
========
</Table>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Thirteen of our Restated Certificate of Incorporation 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 our Restated Certificate of
Incorporation provide that such provision does not eliminate or limit liability,
(1) for any breach of the director's duty of loyalty to the company or our
shareholders, (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 company 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
our right, such indemnification is not permitted if such person has been
adjudged liable to us 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 us to purchase and maintain insurance on behalf
of our directors and officers against any liability which may be asserted
against, or incurred by, such persons in their capacities as our directors or
officers whether or not we 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 shareholders 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 our bylaws contains provisions regarding indemnification which
parallel those described above. We maintain insurance policies that insure our
officers and directors against certain liabilities.
II-1
ITEM 16. EXHIBITS.
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
*1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of Fleming Companies,
Inc., filed as Exhibit 3.1 to Fleming's Quarterly Report on
Form 10-Q for the quarter ended April 17, 1999 and
incorporated herein by reference.
4.2 Bylaws of Fleming Companies, Inc., filed as Exhibit 3.2 to
Fleming's Quarterly Report on Form 10-Q for the quarter
ended April 17, 1999 and incorporated herein by reference.
4.3 Form of Indenture.
*4.4 Form of Debt Security.
5.1 Opinion of Latham & Watkins.
5.2 Opinion of McAfee & Taft.
12 Statement Regarding Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
23.3 Consent of McAfee & Taft (included in Exhibit 5.2).
24 Powers of Attorney (included on the signature pages hereto).
*25 Statement of Eligibility of Trustee on Form T-1.
</Table>
- ---------------
* To be filed by amendment or by a report on Form 8-K Pursuant to Regulation
S-K, Item 601(b).
ITEM 17. UNDERTAKINGS.
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may
be contained in periodic reports filed by us pursuant to Section 13 or
Section 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 of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
II-2
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.
(b) We hereby undertake that, for purposes of determining any liability
under the Securities Act, each filing of our annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 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.
(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 in this registration statement
above, or otherwise, we have been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by us of expenses incurred or paid by a director, officer or controlling
person of us in the successful defense of any action, suit or proceeding) is
asserted against us by such director, officer or controlling person in
connection with the securities being registered, we 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.
(d) We further undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance under Rule 430A and contained in
a form of prospectus filed by us pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(e) We hereby undertake to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 April 22, 2002.
FLEMING COMPANIES, INC.
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Mark S. Hansen, Neal J. Rider
and Carlos M. Hernandez, with full power of substitution and full power to act
without the other, his or her true and lawful attorney-in-fact and agent to act
for him or her in his or her name, place and stead, in any and all capacities,
to sign a registration statement on Form S-3 and any or all amendments thereto
(including without limitation any post-effective amendments thereto), and any
registration statement for the same offering that is to be effective under Rule
462(b) of the Securities Act, and to file each of the same, with all exhibits
thereto, and any other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent, each
acting alone, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ MARK S. HANSEN Chairman of the Board and Chief Executive
- ----------------------------------------------------- Officer
Mark S. Hansen (Principal Executive Officer)
/s/ NEAL J. RIDER Executive Vice President and Chief Financial
- ----------------------------------------------------- Officer
Neal J. Rider (Principal Financial Officer)
/s/ MARK D. SHAPIRO Senior Vice President, Finance and Operations
- ----------------------------------------------------- Control (Principal Accounting Officer)
Mark D. Shapiro
/s/ HERBERT M. BAUM Director
- -----------------------------------------------------
Herbert M. Baum
/s/ KENNETH M. DUBERSTEIN Director
- -----------------------------------------------------
Kenneth M. Duberstein
/s/ ARCHIE R. DYKES Director
- -----------------------------------------------------
Archie R. Dykes
</Table>
II-4
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ CAROL B. HALLETT Director
- -----------------------------------------------------
Carol B. Hallett
/s/ ROBERT S. HAMADA Director
- -----------------------------------------------------
Robert S. Hamada
/s/ EDWARD C. JOULLIAN III Director
- -----------------------------------------------------
Edward C. Joullian III
/s/ ALICE M. PETERSON Director
- -----------------------------------------------------
Alice M. Peterson
</Table>
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants certifies that it 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 April 22, 2002.
ABCO FOOD GROUP, INC., a Nevada
corporation
BAKER'S FOOD GROUP, INC., a Nevada
corporation
By: /s/ JOHN D. SIMRELL
------------------------------------
John D. Simrell
Vice President, Secretary and
Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint John D. Simrell and Carlos M.
Hernandez, with full power of substitution and full power to act without the
other, his true and lawful attorney-in-fact and agent to act for him in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and any or all amendments thereto (including without
limitation any post-effective amendments thereto), and any registration
statement for the same offering that is to be effective under Rule 462(b) of the
Securities Act, and to file each of the same, with all exhibits thereto, and any
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, each acting alone, or
his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ JAMES R. VAUGHAN President and Director
- --------------------------------------------- (Principal Executive Officer)
James R. Vaughan
/s/ JOHN D. SIMRELL Vice President, Secretary, Treasurer and
- --------------------------------------------- Director (Principal Financial and Accounting
John D. Simrell Officer)
</Table>
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants certifies that it 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 April 22, 2002.
ABCO MARKETS, INC., an Arizona
corporation
ABCO REALTY CORP., an Arizona
corporation
RETAIL SUPERMARKETS, INC., a Texas
corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ THOMAS G. DAHLEN President and Director
- --------------------------------------------- (Principal Executive Officer)
Thomas G. Dahlen
/s/ NEAL J. RIDER Vice President, Treasurer and Director
- --------------------------------------------- (Principal Financial and Accounting Officer)
Neal J. Rider
/s/ CARLOS M. HERNANDEZ Director
- ---------------------------------------------
Carlos M. Hernandez
</Table>
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
AG, L.L.C., an Oklahoma limited
liability company
By: Fleming Companies, Inc., its sole
member
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Senior Vice President,
General Counsel and Secretary
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
AMERICAN LOGISTICS GROUP, INC.,
a Delaware corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ WILLIAM A. MERRIGAN President and Director
------------------------------------------------ (Principal Executive Officer)
William A. Merrigan
/s/ NEAL J. RIDER Vice President, Treasurer, Assistant Secretary and
------------------------------------------------ Director (Principal Financial and Accounting
Neal J. Rider Officer)
/s/ CARLOS M. HERNANDEZ Director
------------------------------------------------
Carlos M. Hernandez
</Table>
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
ARIZONA PRICE IMPACT, L.L.C.,
an Oklahoma limited liability company
By: Fleming Companies, Inc., its sole
member
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ JAMES R. VAUGHAN President and Manager
------------------------------------------------ (Principal Executive Officer)
James R. Vaughan
/s/ NEAL J. RIDER Vice President and Treasurer
------------------------------------------------ (Principal Financial and Accounting Officer)
Neal J. Rider
/s/ CARLOS M. HERNANDEZ Manager
------------------------------------------------
Carlos M. Hernandez
/s/ THOMAS G. DAHLEN Manager
------------------------------------------------
Thomas G. Dahlen
</Table>
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants certifies that it 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 April 22, 2002.
CARDINAL WHOLESALE, INC., a Minnesota
corporation
MINTER-WEISMAN CO., a Minnesota
corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ E. STEPHEN DAVIS Chief Executive Officer, President and Director
------------------------------------------------ (Principal Executive Officer)
E. Stephen Davis
/s/ NEAL J. RIDER Vice President, Treasurer and Director
------------------------------------------------ (Principal Financial and Accounting Officer)
Neal J. Rider
/s/ CARLOS M. HERNANDEZ Director
------------------------------------------------
Carlos M. Hernandez
</Table>
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
DUNIGAN FUELS, INC., a Texas
corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ THOMAS G. DAHLEN Chief Executive Officer, President and Director
------------------------------------------------ (Principal Executive Officer)
Thomas G. Dahlen
/s/ NEAL J. RIDER Vice President and Treasurer
------------------------------------------------ (Principal Financial and Accounting Officer)
Neal J. Rider
/s/ CARLOS M. HERNANDEZ Director
------------------------------------------------
Carlos M. Hernandez
/s/ G. CRAIG BIRCHETTE Director
------------------------------------------------
G. Craig Birchette
/s/ CHARLES MOONEY Director
------------------------------------------------
Charles Mooney
/s/ KIRSTEN E. RICHESSON Director
------------------------------------------------
Kirsten E. Richesson
</Table>
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FAVAR CONCEPTS, LTD., a Delaware
corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ SCOTT M. NORTHCUTT President and Director
- -------------------------------------------------------- (Principal Executive Officer)
Scott M. Northcutt
/s/ NEAL J. RIDER Vice President, Treasurer and Director
- -------------------------------------------------------- (Principal Financial and Accounting
Neal J. Rider Officer)
/s/ CARLOS M. HERNANDEZ Director
- --------------------------------------------------------
Carlos M. Hernandez
</Table>
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FLEMING FOODS MANAGEMENT CO., L.L.C.,
an Oklahoma limited liability company
By: Fleming Companies, Inc., its sole
member
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ E. STEPHEN DAVIS Chairman, President, Chief Executive
- -------------------------------------------------------- Officer
E. Stephen Davis and Manager
(Principal Executive Officer)
/s/ MARK D. SHAPIRO Vice President and Treasurer
- -------------------------------------------------------- (Principal Financial and Accounting
Mark D. Shapiro Officer)
/s/ CARLOS M. HERNANDEZ Manager
- --------------------------------------------------------
Carlos M. Hernandez
</Table>
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FLEMING FOODS OF TEXAS, L.P., an
Oklahoma limited partnership
By: Fleming Companies, Inc., its
general partner
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ E. STEPHEN DAVIS President and Chief Executive Officer
- -------------------------------------------------------- (Principal Executive Officer)
E. Stephen Davis
/s/ MARK D. SHAPIRO Vice President and Treasurer
- -------------------------------------------------------- (Principal Financial and Accounting
Mark D. Shapiro Officer)
</Table>
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants certifies that it 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 April 22, 2002.
FLEMING INTERNATIONAL LTD., an
Oklahoma corporation
FLEMING WHOLESALE, INC., a Nevada
corporation
LAS, INC., an Oklahoma corporation
RFS MARKETING SERVICES, INC., an
Oklahoma corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ NEAL J. RIDER President and Director
- -------------------------------------------------------- (Principal Executive Officer)
Neal J. Rider
/s/ MARK D. SHAPIRO Vice President, Treasurer, Assistant
- -------------------------------------------------------- Secretary and Director
Mark D. Shapiro (Principal Financial and Accounting
Officer)
/s/ CARLOS M. HERNANDEZ Director
- --------------------------------------------------------
Carlos M. Hernandez
</Table>
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FLEMING SUPERMARKETS OF FLORIDA, INC.,
a Florida corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ SCOTT NICHOLSON President
- -------------------------------------------------------- (Principal Executive Officer)
Scott Nicholson
/s/ MARK D. SHAPIRO Vice President, Treasurer, Assistant
- -------------------------------------------------------- Secretary and Director
Mark D. Shapiro (Principal Financial and Accounting
Officer)
/s/ NEAL J. RIDER Director
- --------------------------------------------------------
Neal J. Rider
/s/ CARLOS M. HERNANDEZ Director
- --------------------------------------------------------
Carlos M. Hernandez
</Table>
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FLEMING TRANSPORTATION SERVICE, INC.,
an Oklahoma corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ E. STEPHEN DAVIS President and Director
------------------------------------------------ (Principal Executive Officer)
E. Stephen Davis
/s/ NEAL J. RIDER Vice President, Treasurer and Assistant Secretary
------------------------------------------------ (Principal Financial and Accounting Officer)
Neal J. Rider
/s/ CARLOS M. HERNANDEZ Director
------------------------------------------------
Carlos M. Hernandez
/s/ WILLIAM A. MERRIGAN Director
------------------------------------------------
William A. Merrigan
</Table>
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FOOD 4 LESS BEVERAGE COMPANY, INC.,
a Texas corporation
By: /s/ CHARLES L. HALL
------------------------------------
Charles L. Hall
President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ CHARLES L. HALL President, Secretary and Director
------------------------------------------------ (Principal Executive Officer)
Charles L. Hall
</Table>
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
FUELSERV, INC., a Delaware corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ THOMAS G. DAHLEN Chief Executive Officer, President and Director
------------------------------------------------ (Principal Executive Officer)
Thomas G. Dahlen
/s/ MATTHEW H. HILDRETH Vice President and Treasurer
------------------------------------------------ (Principal Financial and Accounting Officer)
Matthew H. Hildreth
/s/ CARLOS M. HERNANDEZ Director
------------------------------------------------
Carlos M. Hernandez
/s/ MARK D. SHAPIRO Director
------------------------------------------------
Mark D. Shapiro
</Table>
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
GATEWAY INSURANCE AGENCY, INC.,
a Wisconsin corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ NEAL J. RIDER President and Director
------------------------------------------------ (Principal Executive Officer)
Neal J. Rider
/s/ MATTHEW H. HILDRETH Vice President, Treasurer and Assistant Secretary
------------------------------------------------ (Principal Financial and Accounting Officer)
Matthew H. Hildreth
/s/ CARLOS M. HERNANDEZ Director
------------------------------------------------
Carlos M. Hernandez
/s/ WILLIAM H. MARQUARD Director
------------------------------------------------
William H. Marquard
</Table>
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
PIGGLY WIGGLY COMPANY, an Oklahoma
corporation,
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ JIMMY D. GARRISON President
- --------------------------------------------------- (Principal Executive Officer)
Jimmy D. Garrison
/s/ NEAL J. RIDER Vice President, Treasurer,
- --------------------------------------------------- Assistant Secretary and Director
Neal J. Rider (Principal Financial and Accounting Officer)
/s/ CARLOS M. HERNANDEZ Director
- ---------------------------------------------------
Carlos M. Hernandez
/s/ THOMAS G. DAHLEN Director
- ---------------------------------------------------
Thomas G. Dahlen
</Table>
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
PROGRESSIVE REALTY, INC., an Oklahoma
corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ CHARLES L. HALL President and Director
- --------------------------------------------------- (Principal Executive Officer)
Charles L. Hall
/s/ NEAL J. RIDER Vice President, Treasurer,
- --------------------------------------------------- Assistant Secretary and Director
Neal J. Rider (Principal Financial and Accounting Officer)
/s/ CARLOS M. HERNANDEZ Director
- ---------------------------------------------------
Carlos M. Hernandez
</Table>
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants certifies that it 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 April 22, 2002.
RAINBOW FOOD GROUP, INC., a Nevada
corporation
RETAIL INVESTMENTS, INC., a Nevada
corporation
By: /s/ JOHN D. SIMRELL
------------------------------------
John D. Simrell
Vice President, Secretary and
Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint John D. Simrell and Carlos M.
Hernandez, with full power of substitution and full power to act without the
other, his true and lawful attorney-in-fact and agent to act for him in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and any or all amendments thereto (including without
limitation any post-effective amendments thereto), and any registration
statement for the same offering that is to be effective under Rule 462(b) of the
Securities Act, and to file each of the same, with all exhibits thereto, and any
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, each acting alone, or
his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ JAMES R. VAUGHAN President and Director
- --------------------------------------------------- (Principal Executive Officer)
James R. Vaughan
/s/ JOHN D. SIMRELL Vice President, Secretary, Treasurer and
- --------------------------------------------------- Director
John D. Simrell (Principal Financial and Accounting Officer)
/s/ MONTE L. MILLER Director
- ---------------------------------------------------
Monte L. Miller
</Table>
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
RICHMAR FOODS, INC., a California
corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ THOMAS G. DAHLEN President and Director
- --------------------------------------------------- (Principal Executive Officer)
Thomas G. Dahlen
/s/ MARK D. SHAPIRO Vice President, Treasurer and Assistant
- --------------------------------------------------- Secretary
Mark D. Shapiro (Principal Financial and Accounting Officer)
/s/ NEAL J. RIDER Director
- ---------------------------------------------------
Neal J. Rider
/s/ WILLIAM H. MARQUARD Director
- ---------------------------------------------------
William H. Marquard
</Table>
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it 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 April 22, 2002.
SCRIVNER TRANSPORTATION, INC., an
Oklahoma corporation
By: /s/ CARLOS M. HERNANDEZ
------------------------------------
Carlos M. Hernandez
Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Carlos M. Hernandez, with full
power of substitution and full power to act as his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign a registration statement on Form S-3 and any or all
amendments thereto (including without limitation any post-effective amendments
thereto), and any registration statement for the same offering that is to be
effective under Rule 462(b) of the Securities Act, and to file each of the same,
with all exhibits thereto, and any other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, or his substitute or substitutes, 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 in order to effectuate the same as fully, 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 may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities indicated on April 22, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
/s/ NEAL J. RIDER President and Director
- --------------------------------------------------- (Principal Executive Officer)
Neal J. Rider
/s/ MATTHEW H. HILDRETH Vice President, Treasurer,
- --------------------------------------------------- Assistant Secretary and Director
Matthew H. Hildreth (Principal Financial and Accounting Officer)
/s/ CARLOS M. HERNANDEZ Director
- ---------------------------------------------------
Carlos M. Hernandez
</Table>
II-26
EXHIBIT INDEX
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
*1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of Fleming Companies,
Inc., filed as Exhibit 3.1 to Fleming's Quarterly Report on
Form 10-Q for the quarter ended April 17, 1999 and
incorporated herein by reference.
4.2 Bylaws of Fleming Companies, Inc., filed as Exhibit 3.2 to
Fleming's Quarterly Report on Form 10-Q for the quarter
ended April 17, 1999 and incorporated herein by reference.
4.3 Form of Indenture.
*4.4 Form of Debt Security.
5.1 Opinion of Latham & Watkins.
5.2 Opinion of McAfee & Taft.
12 Statement Regarding Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
23.3 Consent of McAfee & Taft (included in Exhibit 5.2).
24 Powers of Attorney (included on the signature pages hereto).
*25 Statement of Eligibility of Trustee on Form T-1.
</Table>
- ---------------
* To be filed by amendment or by a report on Form 8-K Pursuant to Regulation
S-K, Item 601(b).