As filed with the Securities and Exchange
Commission on May 23, 1994
Registration No. 33-_______
_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE KROGER CO.
(Exact name of registrant as specified in its charter)
Ohio 31-0345740
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1014 Vine Street, Cincinnati, Ohio 45202
(Address of Principal Executive Offices) (Zip Code)
The Kroger Co.
1994 Long-Term Incentive Plan
(Full title of Plan)
Paul W. Heldman
Vice President, Secretary and General Counsel
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
(Name and address of agent for service)
(513) 762-4000
(Telephone number, including area code, of agent for service)
Copy to:
Steven Kaplan, Esquire
Arnold & Porter
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
202-872-8757
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate Amount of
Securities To To be Price Offering Registration
Be Registered Registered Per Share* Price* Fee
Common Stock 8,000,000 $22.25 $178,000,000 $61,379.31
$1 Par Value shares
*Estimated solely for the purpose of calculating the registration
fee pursuant to Securities Act Rule 457(c), on the basis of the
average of the high and low sale prices of the Registrant's
Common Stock on the New York Stock Exchange on May 16, 1994,
which date is within 5 business days prior to the date of the
filing of this Registration Statement, as reported by "The Wall
Street Journal."
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Kroger Co.
("Kroger" or "Registrant") with the Securities and Exchange
Commission ("Commission") are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year
ended January 1, 1994;
2. All other reports filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended ("Exchange Act"), since the end of the fiscal
year covered by the Form 10-K referred to above; and
3. The description of Kroger Common Stock
contained in Kroger's registration statement filed
pursuant to Section 12 of the Exchange Act, including
any amendments or reports filed for the purpose of
updating such description.
All documents filed by Kroger pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-
effective amendment which indicates that all shares of Kroger
Common Stock offered hereby have been sold or which withdraws
from registration such shares of Kroger Common Stock then
remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from
the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Kroger's consolidated balance sheet as of January 1,
1994 and January 2, 1993, its consolidated statements of
operations and accumulated earnings (deficit), and cash flows for
each of the three years in the period ended January 1, 1994 and
its consolidated financial statement schedules, which appear in
Kroger's Annual Report on Form 10-K for the fiscal year ended
January 1, 1994 incorporated by reference in this Registration
Statement, have been incorporated herein in reliance on the
report of Coopers & Lybrand, independent certified public
accountants, given on the authority of that firm as experts in
accounting and auditing.
Documents incorporated herein by reference in the future
will include financial statements, related schedules and
auditors' reports, which financial statements and schedules will
have been examined to the extent and for the periods set forth in
such opinions by the firm or firms rendering such opinions, and,
to the extent so examined and consent to incorporation by
reference given, will be incorporated herein by reference in
reliance upon such opinions given upon authority of such firms as
experts in accounting and auditing.
A legal opinion to the effect that the shares of Kroger
Common Stock offered hereby have been duly authorized and that,
when they are issued in accordance with the terms of the 1994
Long-Term Incentive Plan, they will be validly issued and
outstanding, fully paid and nonassessable, has been rendered by
Paul W. Heldman, Esquire, Vice President, Secretary and General
Counsel of Kroger. As of March 31, 1994, Mr. Heldman owned
approximately 11,274 shares of Kroger Common Stock and held
options to acquire 88,352 shares of Kroger Common Stock.
Item 6. Indemnification of Directors and Officers.
Under Kroger's Regulations (by-laws), each present or
former director, officer or employee of Kroger and each person
who is serving or shall have served at the request of Kroger as a
director, officer or employee of another corporation (and his or
her heirs, executors or administrators) shall be indemnified by
Kroger against expenses actually and necessarily incurred by him
or her, and also against expenses, judgments, decrees, fines,
penalties, or amounts paid in settlement, in connection with the
defense of any pending or threatened action, suit, or proceeding,
criminal or civil, to which he or she is or may be made a party
by reason of being or having been such director, officer or
employee, provided (1) he or she is adjudicated or determined not
to have been negligent or guilty of misconduct in the performance
of his or her duty to Kroger or such other corporation, (2) he or
she is determined to have acted in good faith in what he or she
reasonably believed to be the best interest of Kroger or of such
other corporation, and (3) in any matter the subject of a
criminal action, suit, or proceeding, he or she is determined to
have had no reasonable cause to believe that his or her conduct
was unlawful. See also Ohio Revised Code, Section 1701.13.
The foregoing indemnification provisions are not
exclusive of any other rights to which such director, officer or
employee may be entitled under Kroger's Articles of Incorporation
or Regulations, any agreement, any insurance purchased by Kroger,
any vote of shareholders or otherwise.
Kroger has purchased insurance insuring officers and
directors of the company against certain liabilities incurred in
their capacities as such in order to insure Kroger against any
payments which it is obligated to make to such persons under the
foregoing indemnification provisions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Index of Exhibits of this
Registration Statement are filed herewith or are incorporated
herein by reference to other filings.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales
are being made, a post-effective amendment to the Registration
Statement:
(a) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 ("Securities
Act");
(b) 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; and
(c) to include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (a) and (b) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement;
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering;
4. That, for purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 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; and
5. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions set forth in Item 6, or otherwise, the Registrant has
been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered and the
Commission remains of the same opinion, the Registrant will,
unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on May 23, 1994.
THE KROGER CO.
By *
___________________________
Joseph A. Pichler, Chairman
of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities indicated on May 23, 1994.
Signature Title
* Executive Vice President and
- ------------------------ Chief Financial Officer
William J. Sinkula (principal financial officer)
* Vice President - Financial
- ------------------------ Services and Control
W. Rodney McMullen (principal accounting
officer)
* Chairman of the Board of
- ------------------------ Directors and Chief Executive
Joseph A. Pichler Officer
(principal executive officer)
* President, Chief Operating
- ------------------------ Officer and Director
Richard L. Bere
* Director
- ------------------------
Reuben V. Anderson
* Director
- ------------------------
Raymond B. Carey, Jr.
* Director
- ------------------------
John L. Clendenin
Director
- ------------------------
Richard W. Dillon
* Director
- ------------------------
Lyle Everingham
Director
- ------------------------
John T. LaMacchia
Director
- ------------------------
Patricia Shontz Longe
* Director
- ------------------------
T. Ballard Morton, Jr.
* Director
- ------------------------
Thomas H. O'Leary
* Director
- ------------------------
John D. Ong
Director
- ------------------------
Katherine D. Ortega
* Director
- ------------------------
Martha Romayne Seger
Director
- ------------------------
James D. Woods
*By (Bruce M. Gack)
--------------------
Bruce M. Gack
Attorney-in-fact
INDEX OF EXHIBITS
Exhibit 4.1 Provisions of Articles of Incorporation and
Regulations (by-laws) of The Kroger Co. defining
the rights of security holders. Incorporated
herein by reference to Exhibits 4.1 and 4.2 of
Kroger's Registration Statement on Form S-3 as
filed with the Securities and Exchange Commission
on January 28, 1993 and bearing Registration
No. 33-57552.
Exhibit 4.2 The Kroger Co. 1994 Long-Term Incentive Plan.
Filed herewith.
Exhibit 5 Opinion of Paul W. Heldman, Esquire, with respect
to the validity of the Common Stock being
registered. Filed herewith.
Exhibit 23.1 Consent of Coopers & Lybrand, Independent
Certified Public Accountants. Filed herewith.
Exhibit 23.2 Consent of Paul W. Heldman, Esquire. Contained
in the opinion filed as Exhibit 5 hereto.
Exhibit 24 Powers of Attorney of certain officers and
directors of Kroger. Filed herewith.