As filed with the Securities and Exchange
Commission on June 27, 2002
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.
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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.
2002 Long-Term Incentive Plan
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(Full title of Plan)
Paul W. Heldman
Senior 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
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate Amount of
Securities To To be Price Offering Registration
Be Registered Registered Per Share(1) Price(1) Fee
Common Stock 20,000,000 $18.90 $378,000,000 $34,776
$1 Par Value shares
Preferred Stock
Purchase Rights (2) (2) (2) (2)
(1) 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 June 21, 2002, 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.
(2) Preferred Stock Purchase Rights will 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
February 2, 2002, as amended;
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.
The financial statements incorporated in this Registration Statement
by reference to the Annual Report on Form 10-K of The Kroger Co. for the fiscal
year ended February 2, 2002 have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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 2002 Long-Term Incentive Plan, they will be
validly issued and outstanding, fully paid and nonassessable, has been rendered
by Paul W. Heldman, Esquire, Senior Vice President, Secretary and General
Counsel of Kroger. As of April 30, 2002, Mr. Heldman owned approximately 114,224
shares of Kroger Common Stock and held options to acquire 480,500 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.
The Agreement and Plan of Merger, dated as of October 18, 1998 (the
"Merger Agreement"), among Kroger, Jobsite Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of the Registrant ("Merger Sub"), and
Fred Meyer, Inc. ("Fred Meyer") provides that each present and former director
and officer of Fred Meyer or any of its subsidiaries after our acquisition of
Fred Meyer (the "Merger") will be indemnified by Kroger against any costs or
expenses, including reasonable attorneys' fees, judgments, fines, losses,
claims, damages or liabilities incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, for acts or omissions existing or occurring at or prior to the
Merger, whether asserted or claimed prior to, at or following the Merger, to the
fullest extent permitted under the Delaware General Corporation Law. Without
limiting the generality of the foregoing, in the event any person entitled to
indemnification under such provisions becomes involved in any claim, action,
proceeding or investigation after the Merger, Kroger will periodically advance
to such person his or her reasonable legal and other reasonably incurred
expenses, including the cost of any investigation and preparation incurred in
connection with the claim, action, preceding or investigation, subject to the
person providing an undertaking to reimburse all amounts advanced in the event
of a final non-appealable determination by a court of competent jurisdiction
that such person is not entitled the advancing of the expenses.
For six years from the Merger, the Registrant must maintain in effect
the current directors' and officers' liability insurance covering those persons
who are currently covered by Fred Meyer's directors' and officers' liability
insurance policy to the extent that it provides coverage for events occurring on
or prior to the Merger, so long as the annual premium therefor would not be in
excess of 200% of the last annual premium paid prior to the date of the Merger
Agreement (the "Current Premium"). If such premiums for such insurance would at
any time exceed 200% of the Current Premium, then the Registrant shall cause to
be maintained policies of insurance which provide the maximum coverage available
at an annual premium equal to 200% of the Current Premium.
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 June 27, 2002.
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 June 27, 2002.
Signature Title
* Group Vice President and
- ----------------------------- Chief Financial Officer
J. Michael Schlotman (principal financial officer)
* Vice President and Corporate
- ----------------------------- Controller
M. Elizabeth Van Oflen (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
David B. Dillon
- ----------------------------- Director
Reuben V. Anderson
* Director
- -----------------------------
Robert D. Beyer
- ----------------------------- Director
John L. Clendenin
* Director
- -----------------------------
Bruce Karatz
* Director
- -----------------------------
John T. LaMacchia
* Director
- -----------------------------
David B. Lewis
Director
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Edward M. Liddy
* Director
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Clyde R. Moore
Director
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Thomas H. O'Leary
* Director
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Katherine D. Ortega
* Director
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Steven R. Rogel
* Director
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Bobby S. Shackouls
*By (Bruce M. Gack)
Bruce M. Gack
Attorney-in-fact
INDEX OF EXHIBITS
Exhibit 4.1 Provisions of amended Articles of Incorporation. Incorporated
by reference to Exhibit 3.1 of Kroger's Quarterly Report on
Form 10-Q for the quarter ended October 3, 1998. 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. 2002 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 PricewaterhouseCoopers LLP, 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.