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As filed with the Securities and Exchange
Commission on May 20, 1999
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.
1999 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)
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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(1) Price(1) Fee
Common Stock 10,000,000 $51.25 $512,500,000 $142,475
$1 Par Value shares
Preferred Stock
Purchase Rights (2) (2) (2) (2)
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<FN>
(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 May 18, 1999, 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.
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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 2, 1999, 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 fiscalyear ended January 2, 1999 and the audited historical financial
statements included in The Kroger Co.'s Form 8-K dated May 10, 1999 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing. The report on the financial statements included in the
Annual Report on Form 10-K includes an explanatory paragraph relating to The
Kroger Co.'s change in its application of the LIFO method of accounting for
store inventories as of December 28, 1997.
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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 1999 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, 1999, Mr. Heldman owned approximately 29,137
shares of Kroger Common Stock and held options to acquire 179,583 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
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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;
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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.
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SIGNATURES
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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 20, 1999.
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 20, 1999.
Signature Title
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* Executive Vice President and
- ---------------------------- Chief Financial Officer
W. Rodney McMullen (principal financial officer)
* Vice President and Corporate
- ---------------------------- Controller
J. Michael Schlotman (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
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Reuben V. Anderson
* Director
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John L. Clendenin
* Director
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John T. LaMacchia
* Director
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Edward M. Liddy
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* Director
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Clyde R. Moore
* Director
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T. Ballard Morton, Jr.
Director
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Thomas H. O'Leary
* Director
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Katherine D. Ortega
* Director
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Martha Romayne Seger
Director
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Bobby S. Shackouls
* Director
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James D. Woods
*By (Bruce M. Gack)
Bruce M. Gack
Attorney-in-fact
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INDEX OF EXHIBITS
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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. 1999 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, 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.