As filed with the Securities and Exchange
Commission on May 15, 1997
Registration No. 333-
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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.
(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.
1997 Long-Term Incentive 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<F1> Price<F1> Fee
Common Stock 10,000,000 $27 $270,000,000 $81,818.18
$1 Par Value shares
Preferred Stock
Purchase Rights <F2> <F2> <F2> <F2>
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<F1> 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 14, 1997, 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.
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<F2> Preferred Stock Purchase Rights will be issued in a number
equal to the shares of Common Stock to be issued for no
additional consideration and therefore no registration
fee is required. Prior to the occurrence of certain events,
the Preferred Stock Purchase Rights will not be exercisable
or evidenced separately from the Common Stock.
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 December 28, 1996;
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 December 28, 1996
and December 29, 1995, its consolidated statements of operations
and accumulated earnings (deficit), and cash flows for each of
the three years in the period ended December 28, 1996 and its
consolidated financial statement schedules, which appear in
Kroger's Annual Report on Form 10-K for the fiscal year ended
December 28, 1996 incorporated by reference in this Registration
Statement, have been incorporated herein in reliance on the
report of Coopers & Lybrand L.L.P., independent 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 1997
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 April 30, 1997, Mr. Heldman owned
approximately 20,438 shares of Kroger Common Stock and held
options to acquire 240,000 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
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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
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The Registrant. Pursuant to the requirements of the
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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 15, 1997.
THE KROGER CO.
By *
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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 15, 1997.
Signature Title
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*
- --------------------------- Group Vice President and
W. Rodney McMullen Chief Financial Officer
(principal financial officer)
*
- --------------------------- Vice President and Corporate
J. Michael Schlotman Controller
(principal accounting
officer)
*
- --------------------------- Chairman of the Board of
Joseph A. Pichler Directors and Chief Executive
Officer
(principal executive officer)
*
- --------------------------- President, Chief Operating
David B. Dillon Officer and Director
*
- --------------------------- Director
Reuben V. Anderson
*
- --------------------------- Director
John L. Clendenin
*
- --------------------------- Director
Richard W. Dillon
*
- --------------------------- Director
John T. LaMacchia
*
- --------------------------- Director
Edward M. Liddy
- --------------------------- Director
Patricia Shontz Longe
*
- --------------------------- Director
Clyde R. Moore
*
- --------------------------- 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
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Exhibit 4.1 Provisions of amended Articles of Incorporation.
Incorporated by reference to Exhibit 3(a) of
Kroger's Current Report on Form 8-K dated
April 16, 1997. Provisions of Regulations
(by-laws) of The Kroger Co. defining the rights
of security holders. Incorporated herein by
reference to Exhibit 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. 1997 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 L.L.P., Independent
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.