SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 11-K
ANNUAL REPORT PURSUANT TO SECTION 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[X] Annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934
For the fiscal year ended December 24, 2004
Or
[ ] Transition report pursuant to Section 15(d) of the Securities Exchange Act
of 1934
For the transition period from ____________ to ____________
Commission file number 001-08140
A. Full title of the plan and the address of the plan, if different from that of
the issuer named below:
THE FLEMING 401(k) PLAN
5801 North Broadway, Suite 100
Oklahoma City, Oklahoma 73118
B. Name of issuer of the securities held pursuant to the plan and the address of
its principal executive office:
FLEMING COMPANIES, INC.
5801 North Broadway, Suite 100
Oklahoma City, Oklahoma 73118
The Fleming 401(k) Plan (in liquidation)
TABLE OF CONTENTS
Report of Independent Registered Public Accounting Firm .....................3
Financial Statements
Statements of Net Assets Available for Benefits, December 24, 2004
and December 26, 2003 ...................................................4
Statements of Changes in Net Assets Available for Benefits, Year Ended
December 24, 2004 .......................................................5
Notes to Financial Statements .............................................6
Supplemental Schedule
Schedule of Assets Held for Investment Purposes, December 24, 2004 .......12
Report of Independent Registered Public Accounting Firm
Plan Sponsor and Trustee
The Fleming 401(k) Plan
We have audited the accompanying statements of net assets available for benefits
of The Fleming 401(k) Plan as of December 24, 2004 and December 26, 2003, and
the related statement of changes in net assets available for benefits for the
year ended December 24, 2004. These financial statements are the responsibility
of the Plan's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. The Plan is not required to have,
nor were we engaged to perform an audit of its internal control over financial
reporting. Our audits included consideration of internal control over financial
reporting as a basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion on the
effectiveness of the Plan's internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing accounting principles used and significant estimates made
by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
As discussed in Note A to the financial statements, the Board of Directors of
Fleming Companies, Inc., the Plan's sponsor, adopted resolutions on October 15,
2003 to terminate the Plan. In accordance with accounting principles generally
accepted in the United States of America, the Plan has changed its basis of
accounting from the ongoing plan basis to the liquidation basis; however, such
change had no effect on the financial statements.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the net assets available for benefits of The Fleming
401(k) Plan as of December 24, 2004 and December 26, 2003, and the changes in
net assets available for benefits for the year ended December 24, 2004 in
conformity with accounting principles generally accepted in the United States of
America.
Our audits were performed for the purpose of forming an opinion on the basic
financial statements taken as a whole. The supplemental schedule of assets held
for investment purposes is presented for the purpose of additional analysis and
is not a required part of the basic financial statements but is supplemental
information required by the Department of Labor's Rules and Regulations for
Reporting and Disclosure under the Employee Retirement Income Security Act of
1974. This supplemental schedule is the responsibility of the Plan's management.
Such supplemental schedule has been subjected to the auditing procedures applied
in the audits of the basic financial statements and, in our opinion, is fairly
stated in all material respects in relation to the basic financial statements
taken as a whole.
GRANT THORNTON LLP
Oklahoma City, Oklahoma
June 30, 2005
The Fleming 401(k) Plan (in liquidation)
STATEMENTS OF NET ASSETS AVAILABLE FOR BENEFITS
December 24, December 26,
2004 2003
------------ ------------
ASSETS
Investments $ 386,640 $204,753,498
Receivables
Participant contributions - 926
Accrued interest, dividends and other - 5
------------ ------------
931
Cash
- 1,828
------------ ------------
Total assets 386,640 204,756,257
LIABILITIES
Excess contribution payable - 239,292
------------ ------------
NET ASSETS AVAILABLE FOR BENEFITS $ 386,640 $204,516,965
============ ============
The accompanying notes are an integral part of this statement.
The Fleming 401(k) Plan (in liquidation)
STATEMENT OF CHANGES IN NET ASSETS AVAILABLE FOR BENEFITS
Year ended December 24, 2004
Additions
Participant contributions $ 44,598
Interest and dividend income 302,234
Net appreciation in fair value of investments 2,461,666
-------------
2,808,498
-------------
Deductions
Benefits paid to participants 162,181,403
Administrative fees 46,861
-------------
162,228,264
-------------
Net decrease before transfers (159,419,766)
Net transfers to other plans 44,710,559
-------------
NET DECREASE (204,130,325)
Net assets available for benefits at beginning of year 204,516,965
-------------
Net assets available for benefits at end of year $ 386,640
=============
The accompanying notes are an integral part of this statement.
The Fleming 401(k) Plan (in liquidation)
NOTES TO FINANCIAL STATEMENTS
December 24, 2004 and December 26, 2003
NOTE A - DESCRIPTION OF PLAN
On October 15, 2003, the Board of Directors of the Plan Sponsor (Fleming
Companies, Inc.) adopted resolutions to terminate The Fleming 401(k) Plan
(the "Plan") effective January 31, 2004 and, as a result, all participants
became fully vested in their benefits under the Plan as of January 31,
2004. In October 2003, participants were notified of the Plan's
termination.
The following description of the Plan provides only general information.
Participants should refer to the Plan document for a more complete
description of the Plan's provisions.
The Plan, established in 1980, and amended and restated at various times,
is a defined contribution plan subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The Plan was
designed to provide retirement benefits to eligible employees of Fleming
Companies, Inc. and its subsidiaries (the "Company").
The Plan provides for the appointment of a committee responsible for Plan
administration. Historically, that committee was the Retirement Committee
of Fleming Companies, Inc. However, as a result of the bankruptcy
reorganization efforts and management departures, the Retirement Committee
has not met since December 18, 2002. Subsequent to the bankruptcy filing,
all Plan amendments were approved by the Finance Committee of the Board of
Directors. See Note H.
In January 2004, assets totaling approximately $44.7 million, relating to
the employees of the convenience distribution business, were transferred
into a separate 401(k) plan established for the benefits of employees of
the convenience distribution business. As contemplated by and required
under the Plan of Reorganization, described in Note H, the convenience
distribution business became part of the Reorganized Debtor, defined in the
Plan of Reorganization, which continues as an ongoing business.
Partial Plan terminations occurred during 2003 due to the Company's
bankruptcy restructuring in 2003. Participants who were affected by the
partial Plan terminations became fully vested in Company contributions in
their account.
Prior to January 31, 2004, employees were eligible to participate in the
Plan after achieving three months of service and attaining 21 years of age,
or participation in a prior plan. Through January 31, 2004, participants
could have made deferrals of compensation contributions in accordance with
the provisions of Internal Revenue Code (the "Code") section 401(k) of at
least 1%, but not more than 25%, of the participant's compensation, subject
to certain limitations. Participant deferral accounts are 100% vested. No
contributions were made by the Company for the 2004 Plan year. Prior to the
termination of the Plan, a participant was 100% vested in the Company's
contribution after three years of credited service.
Due to the Company's bankruptcy reorganization, for 2004 and 2003 the
Company eliminated its obligation to make Company matching and other annual
contributions.
Until all assets are distributed from the Plan, separate accounts will be
maintained for each remaining participant. Accounts are classified as
follows:
o Accounts attributable to Company contributions and related investment
earnings.
o Accounts attributable to contributions by participants under section
401(k) of the Code and related investment earnings.
o Accounts attributable to contributions by participants on an after-tax
basis and related investment earnings.
Prior to January 31, 2004, participants or beneficiaries, with certain
limitations, could have borrowed from their vested accounts a minimum of
$500 up to a maximum of $50,000 or 50% of their vested account balance,
whichever is less. Each loan was collateralized by the balance in the
borrower/participant's accounts and accrued interest at rates that, at
December 24, 2004, were 5.75% and 6.5%, and at December 26, 2003, ranged
from 5.0% to 11.5%. Loans mature at various dates; however, all loans
become due and payable upon distribution of the borrower/participant's
accounts.
Benefits of the Plan are payable upon reaching normal retirement, early
retirement or termination of employment, or in the event of death or
disability. Lump-sum distributions are the only distribution option
available.
Historically, upon termination of a participant's employment with the
Company, the nonvested portion of the Company contribution was forfeited.
Forfeitures were used first to pay Plan expenses and then to reduce future
Company contributions. At December 24, 2004, the forfeiture account balance
totaled approximately $39,000 which will be used to pay Plan expenses with
any remaining balance paid to participants actively employed during 2004.
Until an account is distributed, participants may direct the investments of
their accounts into various investment funds. Participants should refer to
the information provided by Fidelity Management Trust Company for a
complete description of the investment options.
NOTE B - SUMMARY OF ACCOUNTING POLICIES
A summary of the Plan's significant accounting policies consistently
applied in the preparation of the accompanying financial statements
follows.
1. Plan Year End
The Plan's fiscal year ends on the Friday before the last Saturday in
December.
2. Basis of Accounting
The financial statements have been prepared using the accrual method of
accounting. As discussed in Note A, during 2003, the Plan was terminated
and currently is in the process of liquidating. In accordance with
accounting principles generally accepted in the United States of America,
the Plan has changed its basis of accounting from the ongoing plan basis to
the liquidation basis. Because plan assets and liabilities are very liquid
and short-term in nature and were carried at fair values, changing to the
liquidation basis had no effect on the realizability or carrying amounts of
the assets and liabilities and had no effect on the financial statements.
3. Investments
Mutual funds are stated at net asset value as determined based on the
closing market prices of the underlying investments held. Investments in
shares of collective trust funds are valued at their estimated fair values,
as determined in good faith by the trustee. Corporate common stocks are
valued based upon quoted market prices. Participant loans are valued at
cost which approximates fair value.
Purchases and sales of securities are recorded on a trade date basis.
Interest income is recorded on the accrual basis. Dividends are recorded on
the ex-dividend date.
Investment securities, in general, are exposed to various risks, such as
interest rate, credit and overall market volatility. Due to the level of
risk associated with certain investment securities, it is reasonably
possible that changes in the values of investment securities will occur in
the near term and that such changes could materially affect the amounts
reported in the statements of net assets available for benefits.
4. Cash
The Plan maintains its cash in accounts which may not be federally insured.
The Plan has not experienced any losses in such accounts and believes it is
not exposed to any significant credit risks on cash.
5. Administrative Fees
Certain expenses incurred in connection with the general administration of
the Plan are paid by the Plan and are recorded as administrative fees.
6. Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect certain reported amounts and disclosures;
accordingly, actual results could differ from those estimates.
NOTE C - INVESTMENTS
The Plan's investments are held by Fidelity Management Trust Company
("Fidelity"). The following is a schedule of investments by type at:
December 24, 2004 December 26, 2003
----------------- -----------------
Mutual funds $ 357,640 $178,335,200
Collective trust funds 1,896 21,908,659
Corporate common stock - Fleming Companies, Inc. - 477
Participant loans 27,104 4,509,162
------------ ------------
$ 386,640 $204,753,498
============ ============
The following table presents the fair value of investments that represent
5% or more of the Plan's net assets available for benefits at:
December 24, 2004 December 26, 2003
----------------- -----------------
Number Fair Number Fair
of shares value of shares value
--------- ----- --------- -----
Fidelity Contrafund 1,027 $58,260 260,816 $12,871,283
Fidelity Equity Income Fund 721 38,034 290,568 14,455,767
Fidelity Magellan Fund 448 46,473 434,161 42,434,890
Fidelity Managed Income Portfolio 21,908,659 21,908,659
Fidelity Puritan Fund 1,776 33,669 1,116,362 20,619,201
Fidelity Retirement Money Market Portfolio 71,568 71,568 21,385,189 21,385,189
Pimco Total Return, Institutional Class 2,524 26,932 1,061,447 11,368,093
Fidelity Diversified International Fund 501,550 12,097,389
Pimco RCM Large Cap Growth 1,752 22,284 1,093,491 13,056,278
Fidelity Low Priced Stock Fund 569 22,919
Participant Loans - 27,014 -
____________________
Less than 5% in reported year.
NOTE C - INVESTMENTS - CONTINUED
The following table presents the net appreciation (including gains and
losses on investments bought and sold, as well as held during the year) by
type of investment for the year ended December 24, 2004:
Mutual funds $2,452,035
Corporate common stock - Fleming Companies, Inc. 9,631
----------
$2,461,666
==========
NOTE D - TAX STATUS
The Internal Revenue Service has determined and informed the Company in a
letter dated March 26, 2003 that the Plan, as amended on November 2, 2001,
meets the requirements of section 401(a) of the Code and that the Plan's
related trust is tax-exempt under section 501(a) of the Code.
However, effective January 1, 2002, the Plan was amended and restated. The
Company has not yet received a determination letter from the Internal
Revenue Service for the amended and restated Plan. The Company believes
that the Plan currently is designed and is being operated in compliance
with the applicable requirements of the Code. Therefore, no provision for
income taxes is included in the Plan's financial statements.
NOTE E - REFUNDS
The Plan approved refunds of $239,292 of excess contributions to highly
compensated members in 2003. Refunds were necessary in order to satisfy the
actual deferral percentage limitation and the actual contribution
percentage limitation under IRC section 401(m) for the year ended December
26, 2003. The Code requires these refunds be made prior to the end of the
following year. These refunds were made within the first four months after
December 26, 2003. No refunds of excess contributions were required for
2004.
NOTE F - RELATED PARTY TRANSACTIONS
Certain Plan investments are managed by Fidelity. Fidelity is the trustee
as defined by the Plan and, therefore, these transactions qualify as
party-in-interest transactions.
NOTE G - REGULATORY MATTERS
By letter dated March 6, 2003, the Employee Benefits Security
Administration of the United States Department of Labor (the "DOL")
confirmed to the Company that it had initiated an investigation of certain
of the retirement plans (including the Plan) sponsored by the Company
(collectively, the "Retirement Plans") pursuant to the authority provided
by Section 504 of ERISA. The investigation consisted of interviews and the
review of records of the Retirement Plans.
The Company has provided access to and copies of documents requested by the
DOL. The Company has not received any formal results or finding from the
DOL with respect to its investigation.
NOTE H - PLAN SPONSOR BANKRUPTCY / SEC INVESTIGATION
On April 1, 2003, Fleming Companies, Inc. and certain of its affiliates
(collectively, the "Debtors") filed for relief under Chapter 11 of Title 11
of the United States Code (the "Bankruptcy Code") in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"). On
July 27, 2004, the Bankruptcy Court entered an order confirming the Debtors
and the Official Committee of Unsecured Creditors Third Amended Joint Plan
of Reorganization (the "Plan of Reorganization"). Pursuant to the Plan of
Reorganization, among other things, the Debtors' cases were substantively
consolidated and sponsorship of the Plan was transferred to and assumed by
the Post Confirmation Trust created pursuant to the Plan of Reorganization.
The Company was the subject of an investigation by the Securities and
Exchange Commission (the "SEC") relating to certain accounting transactions
and practices during the years 2001 and 2002 which may have involved
certain members of management or employees who had significant roles in
internal controls of Fleming Companies, Inc. On September 14, 2004, the SEC
announced the settlement of enforcement proceedings against the Company for
securities fraud and other violations arising from material earnings
overstatements during late 2001 and the first half of 2002. Under the
settlement of the enforcement proceedings, the Company consented to
administrative orders to cease and desist from such violations and no fines
or other monetary penalties were assessed against the Company.
The Fleming 401(k) Plan (in liquidation)
SCHEDULE H, LINE 4i - ASSETS HELD FOR INVESTMENT PURPOSES
December 24, 2004
Identity of issuer, borrower, lessor Current
or similar party; description of investment Units Cost value
------------------------------------------- ----- ---- -----
Fidelity investments*
Puritan Fund 1,776 ** $ 33,669
Magellan Fund 448 ** 46,473
Contrafund 1,027 ** 58,260
Equity Income Fund 721 ** 38,034
Low-Priced Stock Fund 569 ** 22,919
Diversified International Fund 529 ** 15,150
Freedom 2020 Fund 183 ** 2,553
Retirement Money Market Portfolio 71,568 ** 71,568
Managed Income Portfolio 1,896 ** 1,896
Spartan US Equity Index Fund 426 ** 18,256
---------
Total Fidelity investments 308,778
Pimco High Yield Fund, Administrative Class 93 ** 932
Pimco Total Return, Institutional Class 2,524 ** 26,932
Pimco RCM Large Cap Growth 1,752 ** 22,284
Templeton Developing Markets, A 38 ** 700
Participant loans* (1) 27,014
---------
TOTAL $ 386,640
=========
_______________
*Party in interest
**Cost omitted for participant-directed investments
(1) Participant loans, at rates of 5.75% and 6.5% and maturity dates in 2005
and 2007, become due and payable upon distribution of the borrower/
participant's accounts. Distribution of all loans occurred in 2005.
SIGNATURES
THE FLEMING 401(k) PLAN. Pursuant to the requirements of the Securities
Exchange Act of 1934, the trustees (or other persons who administer the employee
benefit plan) have duly caused this annual report to be signed on its behalf by
the undersigned hereunto duly authorized.
THE FLEMING 401(k) PLAN
Date: July 7, 2005 By: STEVE S. EATON
Steve S. Eaton, Designate of the
Fleming Companies, Inc. Post
Confirmation Trust