As filed with the Securities and Exchange
Commission on September 16, 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE KROGER CO.
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(Exact name of registrant as specified in its charter)
Ohio 31-0345740
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1014 Vine Street, Cincinnati, Ohio 45202
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(Address of Principal Executive Offices) (Zip Code)
The Kroger Co.
Employee Stock Purchase Plan
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(Full title of Plan)
Paul W. Heldman
Vice President, Secretary and General Counsel
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
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(Name and address of agent for service)
(513) 762-4000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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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 6,000,000 $24.675 $148,050,000 $51,051.72
$1 Par Value shares
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*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
September 12, 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
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Journal.
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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, which includes an
explanatory paragraph for the change in accounting for postretirement benefit
costs other than pensions, 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 Employee Stock Purchase 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 June 30, 1994, Mr. Heldman owned approximately
11,274 shares of Kroger Common Stock and held options to acquire 100,852
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.
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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
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The Registrant. Pursuant to the requirements of the Securities
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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
September 16, 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 September 16, 1994.
Signature Title
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- -------------*--------------- Executive Vice President and
William J. Sinkula Chief Financial Officer
(principal financial officer)
- -------------*--------------- Vice President - Financial
W. Rodney McMullen Services and Control and
Principal Accounting Officer
(principal accounting
officer)
- -------------*--------------- Chairman of the Board of
Joseph A. Pichler Directors and Chief Executive
Officer
(principal executive officer)
- -------------*--------------- President, Chief Operating
Richard L. Bere Officer and Director
- -------------*--------------- 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)
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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. Employee Stock Purchase 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.
Exhibit 99 List of Subsidiaries participating in the Plan. Filed
herewith.