<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 2000.
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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THE KROGER CO.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
OHIO 31-0345740
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
1014 VINE STREET
CINCINNATI, OHIO 45202
(513) 762-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OR
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
PAUL W. HELDMAN, ESQ.
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
THE KROGER CO.
1014 VINE STREET
CINCINNATI, OHIO 45202
(513) 762-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED UNIT(1) PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities(4)(5)(10)...........
Preferred Stock(6)(7)(10)...........
Depositary Shares(7)(10)............
Common Stock, $1 par value per share
(including Preferred Stock
Purchase Rights)(8)(10)........... (3) (3) (3) (3)
Warrants(9)(10).....................
Total....................... $1,725,000,000(10) 100% $1,725,000,000(10) $455,400(12)
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</TABLE>
(1) The proposed maximum offering price per unit will be determined by us in
connection with the issuance of the securities.
(2) The proposed maximum aggregate offering price has been estimated solely to
calculate the registration fee under Rule 457(o).
(3) Not applicable under General Instruction II.D. of Form S-3.
(4) Includes guarantees (if any) of Debt Securities by Co-Registrants who are
direct and indirect subsidiaries of the Registrant.
(5) Subject to note (11) below, we are registering an indeterminate principal
amount of Debt Securities. If any Debt Securities are issued at an original
issue discount, then the offering price will be in such greater principal
amount as will result in an aggregate initial offering price not to exceed
$1,725,000,000 less the dollar amount of any securities previously issued.
(6) Subject to note (11) below, we are registering an indeterminate number of
shares of Preferred Stock.
(7) Subject to note (11) below, we are registering an indeterminate number of
Depositary Shares to be evidenced by Depositary Receipts issued under a
Deposit Agreement. If we elect to offer fractional interests in shares of
Preferred Stock, Depositary Receipts will be distributed for such
fractional interests and the shares of Preferred Stock will be issued to
the depositary under the Deposit Agreement.
(8) Subject to note (11) below, we are registering an indeterminate number of
shares of Common Stock. We are also registering an indeterminate number of
shares of Common Stock to be issued, upon conversion or redemption of
Preferred Stock or Debt Securities. Includes associated Preferred Stock
Purchase Rights (the "Rights"). Until the occurrence of certain prescribed
events, none of which has occurred, the Rights are not exercisable, are
evidenced by the certificates representing the Common Stock, and will be
transferred only with the Common Stock.
(9) Subject to note (11) below, we are registering an indeterminate amount and
number of Warrants, representing rights to purchase Debt Securities,
Preferred Stock or Common Stock.
(10) Subject to note (11) below, we are registering an indeterminate number of
shares of Debt Securities, Preferred Stock, Depositary Shares and Common
Stock, to be issued upon conversion or redemption, or upon the exercise of
Warrants, Debt Securities, Preferred Stock or Depositary Shares.
(11) In no event, will the aggregate initial offering price of all securities
exceed $1,725,000,000 or the equivalent in one or more foreign currencies,
foreign currency units, or composite currencies. The aggregate amount of
Common Stock registered is further limited to that which is permissible
under Rule 415(a)(4) under the Securities Act. The registered securities
may be sold separately or as units with other registered securities.
(12) Previously paid relating to the amount of Securities remaining and carried
forward under Rule 429.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT CONTAINS A PROSPECTUS THAT RELATES TO $1,725,000,000 OF
SECURITIES REMAINING AS REGISTERED UNDER REGISTRATION STATEMENT NO. 333-85727 TO
THE EXTENT REMAINING ON THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
The following entities are direct or indirect subsidiaries of Registrant,
and may guarantee one or more issues of Debt Securities, and are Co-Registrants
under this Registration Statement:
<TABLE>
<CAPTION>
STATE OF INCORPORATION/ IRS EMPLOYER
NAME ORGANIZATION IDENTIFICATION NO.
---- ----------------------- ------------------
<S> <C> <C>
Dillon Companies, Inc. Kansas 48-0196590
Drugs Distributors, Inc. Indiana 31-1112998
Henpil, Inc. Texas 74-6044519
Inter-American Foods, Inc. Ohio 74-1491846
J. V. Distributing, Inc. Michigan 31-1107025
KRGP Inc. Ohio 31-1569084
KRLP Inc. Ohio 31-1579339
The Kroger Co. of Michigan Michigan 38-0900860
Kroger Dedicated Logistics Co. Ohio 31-1399126
Kroger Limited Partnership I Ohio 31-1569568
Kroger Limited Partnership II Ohio 31-1569087
Peyton's-Southeastern, Inc. Tennessee 61-0942129
Rocket Newco, Inc. Texas 76-0542912
Topvalco, Inc. Ohio 31-0574717
Vine Court Assurance Incorporated Vermont 31-1192645
Wydiv, Inc. Texas 75-6032155
City Market, Inc. Colorado 84-0595476
Dillon Real Estate Co., Inc. Kansas 48-0680105
Jackson Ice Cream Co., Inc. Kansas 48-0686152
Junior Food Stores of West Florida, Inc. Florida 59-0980071
Kwik Shop, Inc. Kansas 48-6112339
Mini Mart, Inc. Wyoming 83-0208334
Quik Stop Markets, Inc. California 94-1610162
THGP Co., Inc. Pennsylvania 23-2922125
THLP Co., Inc. Pennsylvania 23-2922123
Turkey Hill, L.P. Pennsylvania 23-2922126
Wells Aircraft, Inc. Kansas 48-0690719
Fred Meyer, Inc. Delaware 91-1826443
Fred Meyer Stores, Inc. Delaware 93-0798201
CB&S Advertising Agency, Inc. Oregon 93-0587794
Distribution Trucking Company Oregon 93-0786441
FM, Inc. Utah 93-1197669
FM Holding Corporation Delaware 93-0864302
Grand Central, Inc. Utah 87-0277527
FM Retail Services, Inc. Washington 91-1628326
Fred Meyer of Alaska, Inc. Alaska 93-0802793
Fred Meyer of California, Inc. California 93-0979434
Fred Meyer Jewelers, Inc. Delaware 93-1197671
Merksamer Jewelers, Inc. California 68-0202947
Roundup Co. Washington 93-0798202
JH Properties, Inc. Washington 91-1816127
Smith's Food & Drug Centers, Inc. Delaware 87-0258768
Compare, Inc. Delaware 86-0609950
Richie's, Inc. Texas 74-2047032
Saint Lawrence Holding Company Delaware 86-0504830
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
STATE OF INCORPORATION/ IRS EMPLOYER
NAME ORGANIZATION IDENTIFICATION NO.
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<S> <C> <C>
Smith's Beverage of Wyoming, Inc. Wyoming 80-0126833
Smitty's Supermarkets, Inc. Delaware 86-0765032
Smitty's Equipment Leasing, Inc. Delaware 86-0758585
Smitty's Super Valu, Inc. Delaware 13-3054103
Treasure Valley Land Company, L.C. Idaho 82-0474377
Western Property Investment Group, Inc. California 87-0485081
Quality Food Centers, Inc. Washington 91-1330075
Hughes Markets, Inc. California 95-1947206
Hughes Realty, Inc. California 95-2253719
KU Acquisition Corporation Washington 91-1765648
Second Story, Inc. Washington 91-1753356
Quality Food, Inc. Delaware 91-1829342
Quality Food Holdings, Inc. Delaware 91-1829339
QFC Sub, Inc. Washington 91-1931177
Food 4 Less Holdings, Inc. Delaware 33-0642810
Ralphs Grocery Company Delaware 95-4356030
Alpha Beta Company California 95-1456805
Bay Area Warehouse Stores, Inc. California 93-1087199
Bell Markets, Inc. California 94-1569281
Cala Co. Delaware 95-4200005
Cala Foods, Inc. California 94-1342664
Crawford Stores, Inc. California 95-0657410
Food 4 Less of California, Inc. California 33-0293011
Food 4 Less of Southern California, Inc. Delaware 33-0483203
Food 4 Less Merchandising, Inc. California 33-0483193
Food 4 Less GM, Inc. California 95-4390406
Kroger Texas L.P. Ohio 31-1678530
RJD Assurance, Inc. Vermont 03-0364178
</TABLE>
<PAGE> 4
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE
AND MAY BE CHANGED. WE MAY NOT SELL THESE
SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL
THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER
TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED FEBRUARY 2, 2000
PROSPECTUS
$1,725,000,000
THE KROGER CO.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
We may offer any of the following securities from time to time:
- debt securities;
- preferred stock;
- depositary shares relating to preferred stock;
- common stock; and
- warrants to purchase debt securities, common stock or preferred stock.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
February , 2000
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
The Kroger Co............................................... 4
Consolidated Ratio of Earnings to Fixed Charges............. 4
Use of Proceeds............................................. 4
Plan of Distribution........................................ 4
Description of Debt Securities.............................. 5
Description of Capital Stock................................ 9
Description of the Depositary Shares........................ 12
Description of the Warrants................................. 15
Experts..................................................... 17
Legal Opinions.............................................. 17
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $1,725,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
Kroger files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and 7 World Trade Center, Suite 1300, New York, New York 10048.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from the SEC's
Web site at http://www.sec.gov.
2
<PAGE> 6
The SEC allows us to "incorporate by reference" the information we file
with them. This means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below, which we have already filed with the
SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we sell all of the
securities.
<TABLE>
<CAPTION>
KROGER SEC FILINGS (FILE NO. 1-303) PERIOD
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<S> <C>
Annual Report on Form 10-K......... Year ended January 2, 1999 (as amended).
Quarterly Reports on Form 10-Q..... Quarters ended May 22, 1999, August 14,
1999, and November 6, 1999.
Current Reports on Form 8-K or Form
8-K/A............................ January 8, 1999; January 15, 1999;
January 28, 1999; April 30, 1999; May 10,
1999; May 28, 1999; May 28, 1999, as
amended; June 17, 1999; June 23, 1999;
June 25, 1999; July 20, 1999; August 20,
1999; September 10, 1999; September 14,
1999; September 22, 1999; October 21,
1999; October 29, 1999; December 6, 1999;
and January 12, 2000.
Registration Statement on Form
8-A/A, dated April 4, 1997, as
amended on Form 8-A/A, dated
October 18, 1998................... Description of preferred stock purchase
rights
</TABLE>
You may request a copy of these filings, other than any exhibits, unless we
have specifically incorporated by reference an exhibit in this prospectus, at no
cost, by writing or telephoning us at the following address:
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202-1100
(513) 762-4000
Attention: Paul Heldman
This prospectus is part of a registration statement we filed with the SEC.
We have incorporated into this registration statement exhibits that include a
form of proposed underwriting agreement and indenture. You should read the
exhibits carefully for provisions that may be important to you.
You should rely on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or the documents incorporated by
reference is accurate as of any date other than the date on the front of this
prospectus or those documents.
3
<PAGE> 7
THE KROGER CO.
Kroger was founded in 1883 and incorporated in Ohio in 1902. As of January
2, 1999, we were the largest grocery retailer in the United States based on
annual sales. We also manufacture and process food that our supermarkets sell.
Our principal executive offices are located at 1014 Vine Street, Cincinnati,
Ohio 45202-1100, and our telephone number is (513) 762-4000.
As of November 6, 1999, we have operated approximately 2,270 supermarkets
and multidepartment stores in 31 states, 790 convenience stores in 15 states and
380 fine jewelry stores in 25 states. One hundred thirteen of the convenience
stores are franchised to third parties in three states. We also operate
manufacturing facilities that permit us to offer quality, low-cost private label
products.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The table below presents our consolidated ratio of earnings to fixed
charges for the periods shown:
<TABLE>
<CAPTION>
QUARTER ENDED FISCAL YEARS ENDED
- ----------------------- -------------------------------------------------------------------
NOVEMBER 6, OCTOBER 3, JANUARY 2, DECEMBER 27, DECEMBER 28, DECEMBER 30, DECEMBER 31,
1999 1998 1999 1997 1996 1995 1994
(12 WEEKS) (16 WEEKS) (53 WEEKS) (52 WEEKS) (52 WEEKS) (52 WEEKS) (52 WEEKS)
- ----------- ---------- ----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
2.0 2.0 1.8 2.4 2.2 2.0 1.8
</TABLE>
"Earnings" includes:
- earnings before tax expense; and
- extraordinary loss, plus fixed charges,
and excludes capitalized interest.
"Fixed charges" includes:
- interest, including capitalized interest, on all indebtedness;
- amortization of deferred financing costs; and
- that portion of rental expense that we believe is representative of
interest.
USE OF PROCEEDS
We will use the net proceeds from the sale of the securities to repay
amounts under our bank credit facilities, to retire debt, and for other general
corporate purposes.
PLAN OF DISTRIBUTION
We may sell the securities in any one or more of the following ways:
- directly to investors;
- to investors through agents or dealers;
- through underwriting syndicates led by one or more managing underwriters;
and
- through one or more underwriters acting alone.
4
<PAGE> 8
If we use underwriters in the sale, the obligations of the underwriters to
purchase the securities will be subject to conditions. The underwriters will be
obligated to purchase all the securities offered, if any are purchased. The
underwriters will acquire the securities for their own account. The underwriters
may resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers.
We may use agents in the sale of securities. Unless indicated in the
prospectus supplement, the agent will be acting on a best efforts basis for the
period of its appointment.
If we use a dealer in the sale of the securities, we will sell the
securities to the dealer as principal. The dealer may then resell the securities
to the public at varying prices it determines at the time of resale.
We also may sell the securities in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment, by a remarketing firm
acting as principal for its own account or as our agent. Remarketing firms may
be deemed to be underwriters in connection with the securities they remarket.
We may authorize underwriters, dealers or agents to solicit offers to
purchase the securities under a delayed delivery contract providing for payment
and delivery at a future date.
We will identify any underwriters or agents and describe their
compensation, including any discounts or commissions, in a prospectus
supplement. Underwriters, dealers and agents that participate in the
distribution of the offered securities may be underwriters as defined in the
Securities Act of 1933. Any discounts or commissions received by them from us
and any profit on the resale of the securities by them may be treated as
underwriting discounts and commissions.
We may have agreements with the underwriters, dealers and agents to
indemnify them against some civil liabilities, including liabilities under the
Securities Act of 1933, or to contribute to payments that the underwriters,
dealers or agents may be required to make. Underwriters, dealers or agents may
engage in transactions with, or perform services for, us in the ordinary course
of their business.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes the terms and provisions of the debt securities.
When we offer to sell a particular series of debt securities, we will describe
the specific terms of the securities in a supplement to this prospectus. The
prospectus supplement also will indicate whether the general terms and
provisions described in this prospectus apply to the particular series of debt
securities.
The debt securities will be issued under an indenture between Kroger and a
trustee to be selected by us. The indenture allows us to have different trustees
for each debt security offering.
We have summarized the material terms of the indenture below. The indenture
is included as an exhibit to the registration statement for these securities
that we have filed with the SEC. You should read the indenture for the
provisions that are important to you.
5
<PAGE> 9
PRINCIPAL TERMS OF THE DEBT SECURITIES
The debt securities will rank equally and ratably with all of our other
unsecured and unsubordinated indebtedness.
A prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to that series of debt securities.
These terms will include some or all of the following:
- their type and title;
- their total principal amount and currency or currency unit;
- the denominations in which they are authorized to be issued;
- the percentage of their principal amount at which they will be issued;
- the date on which they will mature;
- if they bear interest, the interest rate or the method by which the
interest rate will be determined;
- the times at which any interest will be payable or the manner of
determining the interest payment dates;
- any optional or mandatory redemption periods and the redemption or
purchase price;
- any guarantees by our direct and indirect subsidiaries;
- any sinking fund requirements;
- any special United States federal income tax considerations;
- whether they are to be issued in the form of one or more temporary or
permanent global securities and, if so, the identity of the depositary
for the global securities;
- any information with respect to book-entry procedures;
- the manner in which the amount of any payments of principal and interest
determined by reference to an index are determined; and
- any other specific terms not inconsistent with the indenture.
DENOMINATIONS, REGISTRATION, TRANSFER AND PAYMENT
We will issue the debt securities in registered form without coupons or in
the form of one or more global securities, as described below under "Global
securities." We will issue registered securities denominated in U.S. dollars
only in denominations of $1,000 or any integral multiple of $1,000. We will
issue global securities in a denomination equal to the total principal amount of
outstanding debt securities of the series represented by the global security. We
will describe the denomination of debt securities denominated in a foreign or
composite currency in a prospectus supplement.
You may present registered securities for registration of transfer at the
office of the registrar or at the office of any transfer agent designated by us.
We will pay principal and any premium and interest on registered securities
at the office of the paying agent. We may choose to make any interest payment
(1) by check mailed to the holder's address appearing in the register or (2) by
wire transfer to an account maintained by the holder as specified in the
register. We will make interest
6
<PAGE> 10
payments to the person in whose name the debt security is registered at the
close of business on the day or days specified by us.
The trustee's principal office in the City of New York, Chicago,
Cincinnati, or other location, will be designated as the sole paying agent for
payments on registered securities.
GLOBAL SECURITIES
We will deposit global securities with the depositary identified in the
prospectus supplement. A global security is a security, typically held by a
depositary, that represents the beneficial interests of a number of purchasers
of the security.
After we issue a global security, the depositary will credit on its
book-entry registration and transfer system the respective principal amounts of
the debt securities represented by the global security to the accounts of
persons that have accounts with the depositary. These account holders are known
as "participants." The underwriters or agents participating in the distribution
of the debt securities will designate the accounts to be credited. Only a
participant or a person that holds an interest through a participant may be the
beneficial owner of a global security. Ownership of beneficial interests in the
global security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the depositary and its
participants.
We and the trustee will treat the depositary or its nominee as the sole
owner or holder of the debt securities represented by a global security. Except
as set forth below, owners of beneficial interests in a global security will not
be entitled to have the debt securities represented by the global security
registered in their names. They also will not receive or be entitled to receive
physical delivery of the debt securities in definitive form and will not be
considered the owners or holders of the debt securities.
Principal, any premium and any interest payments on debt securities
represented by a global security registered in the name of a depositary or its
nominee will be made to the depositary or its nominee as the registered owner of
the global security. None of Kroger, the trustee or any paying agent will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the global
security or for maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
We expect that the depositary, upon receipt of any payments, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the global
security as shown on the depositary's records. We also expect that payments by
participants to owners of beneficial interests in the global security will be
governed by standing instructions and customary practices, as is the case with
the securities held for the accounts of customers registered in "street names"
and will be the responsibility of the participants.
If the depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by us within ninety days,
we will issue registered securities in exchange for the global security. In
addition, we may at any time in our sole discretion determine not to have any of
the debt securities of a series represented by global securities. In that event,
we will issue debt securities of that series in definitive form in exchange for
the global securities.
7
<PAGE> 11
EVENTS OF DEFAULT
When we use the term "Event of Default" in the indenture, here are examples
of what we mean:
- we fail to pay the principal or any premium on any debt security when
due;
- we fail to deposit any sinking fund payment when due;
- we fail to pay interest when due on any security for 30 days;
- we fail to comply with any other covenant in the debt securities and this
failure continues for 60 days after we receive written notice of it;
- we default in any of our other indebtedness in excess of $50,000,000, and
that results in an acceleration of maturity; or
- we take specified actions relating to our bankruptcy, insolvency or
reorganization.
The supplemental indenture or the form of security for a particular series
of debt securities may include additional Events of Default or changes to the
Events of Default described above. You should refer to the prospectus supplement
for the Events of Default relating to a particular series of debt securities. A
default under one series of debt securities will not necessarily be a default
under another series.
If an Event of Default for debt securities of any series occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
all of the debt securities of that series outstanding may require us to
immediately repay all of the principal and interest due on the debt securities
of that series. The holders of a majority in principal amount of all of the debt
securities of that series may rescind this accelerated payment requirement, if
the rescission would not conflict with any judgment or decree by a court and if
all existing Events of Default have been cured or waived.
If an Event of Default occurs and is continuing, the trustee may pursue any
remedy available to it to collect payment or to enforce the performance of any
provision of the debt securities or the indenture.
The holders of a majority in principal amount of the debt securities may
generally waive an existing default and its consequences.
MODIFICATION OF THE INDENTURE
The indenture may be amended without the consent of any holder of debt
securities:
- to cure any ambiguity, defect or inconsistency;
- to permit a successor to assume our obligations under the indenture;
- to add additional covenants for the benefit of holders;
- to add additional Events of Default;
- to add or change provisions necessary to facilitate the issuance of
securities; or
- to entitle the securities to the benefit of security.
The indenture may be amended with the written consent of the holders of at
least 50% in principal amount of the debt securities of the series affected by
the amendment. Holders of at least 50% in principal amount of the debt
securities may waive our
8
<PAGE> 12
compliance with any provision of the indenture or the debt securities by giving
notice to the trustee.
However, no amendment or waiver that
- changes the maturity of principal or any installment of principal or
interest;
- reduces the amount of principal or interest or premium payable on
redemption;
- reduces the amount of debt securities whose holders must consent to an
amendment or waiver;
- modifies provisions related to rights of holders to redeem securities at
their option; or
- changes other rights of holders as specifically identified in the
indenture
will be effective against any holder without the holder's consent.
OTHER DEBT SECURITIES
In addition to the debt securities described above, we may issue
subordinated debt securities that rank junior to our senior debt securities.
These debt securities will be described in a prospectus supplement and will be
issued pursuant to an indenture entered into between Kroger and a trustee that
we select. The indenture will be filed with the SEC and qualified under the
Trust Indenture Act.
OTHER LIMITATIONS
The prospectus supplement may contain provisions that limit our ability to
consolidate or merge with other companies. It also may contain provisions that
limit our right to incur liens and to engage in sale and leaseback transactions.
DESCRIPTION OF CAPITAL STOCK
Our Amended Articles of Incorporation authorize us to issue 1,000,000,000
shares of common stock, $1 par value per share, and 5,000,000 shares of
cumulative preferred stock, $100 par value per share. At our annual meeting of
shareholders in 1999, our shareholders authorized an increase in the authorized
shares of common stock to 2,000,000,000, but that increase has not yet been
implemented. As of November 6, 1999, there were outstanding 834,112,508 shares
of common stock, and no shares of cumulative preferred stock.
COMMON STOCK
All outstanding common stock is, and any stock issued under this prospectus
will be, fully paid and nonassessable. Subject to rights of preferred
stockholders if any preferred stock is issued and outstanding, holders of common
stock
- are entitled to any dividends validly declared;
- will share ratably in our net assets in the event of a liquidation; and
- are entitled to one vote per share, unless they are entitled to
cumulative voting for the election of directors.
The common stock has no conversion rights. Holders of common stock have no
preemption, subscription, redemption, or call rights related to those shares.
9
<PAGE> 13
The Bank of New York is the transfer agent and registrar for our common
stock.
PREFERRED STOCK
This prospectus describes the terms and provisions of our preferred stock.
When we offer to sell a particular series of preferred stock, we will describe
the specific terms of the securities in a supplement to this prospectus. The
prospectus supplement will also indicate whether the terms and provisions
described in this prospectus apply to the particular series of preferred stock.
The preferred stock will be issued under a certificate of designations relating
to each series of preferred stock. It is also subject to our Amended Articles of
Incorporation.
We have summarized the material portions of the certificate of designations
below. The certificate of designations will be filed with the SEC in connection
with an offering of preferred stock.
Our Amended Articles of Incorporation authorize us to issue 5,000,000
shares of preferred stock, par value $100 per share. Our Board is authorized to
designate any series of preferred stock and the powers, preferences and rights
of the preferred stock without further shareholder action. As of November 6,
1999, we had no shares of preferred stock outstanding. On that same date, 50,000
shares were reserved for issuance under our warrant dividend plan. These shares
are designated "Series A Preferred Shares."
Our Board is authorized to determine or fix the following terms for each
series of preferred stock, which will be described in a prospectus supplement:
- the designation and number of shares;
- the dividend rate;
- the payment date for dividends and the date from which dividends are
cumulative;
- our redemption rights and the redemption prices;
- amounts payable to holders on our liquidation, dissolution or winding up;
- the amount of the sinking fund, if any;
- whether the shares will be convertible or exchangeable, and if so the
prices and terms; and
- whether future shares of the series or any future series or other class
of stock is subject to any restrictions, and if so the nature of the
restrictions.
When we issue shares of preferred stock, they will be fully paid and
nonassessable.
Dividends
The holders of preferred stock will be entitled to receive cash dividends
if declared by our Board of Directors out of funds we can legally use for
payment. The prospectus supplement will indicate the dividend rates and the
dates on which we will pay dividends. The rates may be fixed or variable or
both. If the dividend rate is variable, the formula used to determine the
dividend rate will be described in the prospectus supplement. We will pay
dividends to the holders of record as they appear on the record dates fixed by
our Board.
Our Board will not declare and pay a dividend on any series of preferred
stock unless full dividends for all series of preferred stock ranking equal as
to dividends have been
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<PAGE> 14
declared or paid and sufficient funds are set aside for payment. If dividends
are not paid in full, we will declare any dividends pro rata among the preferred
stock of each series and any series of preferred stock ranking equal to any
other series as to dividends. A "pro rata" declaration means that the dividends
we declare per share on each series of preferred stock will bear the same
relationship to each other that the full accrued dividends per share on each
series of the preferred stock bear to each other.
Unless all dividends on the preferred stock have been paid in full, we will
not declare or pay any dividends or set aside sums for payment of dividends or
distributions on any common stock or on any class of security ranking junior to
the series of preferred stock, except for dividends or distributions paid for
with securities ranking junior to the preferred stock. We also will not redeem,
purchase, or otherwise acquire any securities ranking junior to the series of
preferred stock as to dividends or liquidation preferences, except by conversion
into or exchange for stock junior to the series of preferred stock.
Convertibility
We will not convert or exchange any series of preferred stock for other
securities or property, unless otherwise indicated in the prospectus supplement.
Redemption and sinking fund
We will not redeem or pay into a sinking fund any series of preferred
stock, unless otherwise indicated in the prospectus supplement.
Liquidation rights
If we voluntarily or involuntarily liquidate, dissolve or wind up our
business, holders of any series of preferred stock will be entitled to receive
the liquidation preference per share specified in the prospectus supplement and
all accrued and unpaid dividends. We will pay these amounts to the holders of
each series of the preferred stock, and all amounts owing on any preferred stock
ranking equally with that series of preferred stock as to distributions upon
liquidation. These payments will be made out of our assets available for
distribution to shareholders before any distribution is made to holders of
common stock or any class of stock ranking junior to the series of preferred
stock as to dividends and liquidation preferences.
In the event there are insufficient assets to pay the liquidation
preferences for all equally-ranked classes of preferred stock in full, we will
allocate the remaining assets equally among all series of equally-ranked
preferred stock based upon the aggregate liquidation preference for all
outstanding shares for each series. This distribution means that the
distribution we pay to the holders of all shares ranking equal as to
distributions if we dissolve, liquidate or wind up our business will bear the
same relationship to each other that the full distributable amounts for which
the holders are respectively entitled if we dissolve, liquidate or wind up our
business bear to each other. After we pay the full amount of the liquidation
preference to which they are entitled, the holders of shares of a series of
preferred stock will not be entitled to participate in any further distribution
of our assets.
Voting rights
Holders of preferred stock will be entitled to one vote per share, unless
otherwise indicated in the prospectus supplement or otherwise required by law.
11
<PAGE> 15
Transfer agent and registrar
The prospectus supplement for each series of preferred stock will name the
transfer agent and registrar.
PREFERRED STOCK PURCHASE RIGHTS
On February 28, 1996, we adopted a shareholders' rights plan providing for
stock purchase rights to owners of Kroger common shares. The shareholders'
rights plan was amended and restated on April 4, 1997, and further amended on
October 18, 1998. Each right, when exercisable, entitles the holder to purchase
from us one ten-thousandth of a share. The rights will become exercisable, and
separately tradeable, ten days after a person or group acquires 10% or more of
our common shares or ten business days following a tender offer or exchange
offer resulting in a person or group having beneficial ownership of 10% or more
of our common shares. In the event the rights become exercisable, each right
will entitle the holder the right, if that holder pays the exercise price, to
purchase Kroger common shares, having a market value of twice the exercise price
of the right. Under other circumstances, including some acquisitions of Kroger
in a merger or other business combination transaction, or if 50% or more of our
assets or earning power are sold under some circumstances, each right will
entitle the holder to receive upon payment of the exercise price, shares of
common stock of the acquiring company with a market value of twice the exercise
price. At our option, the rights, before becoming exercisable, are redeemable in
their entirety at a price of $.01 per right. The rights may be adjusted and
expire March 19, 2006.
This summary is qualified by the full text of the shareholders' rights
plan. A copy of this plan is filed as an exhibit to the registration statement
and is incorporated into this prospectus by reference.
DESCRIPTION OF THE DEPOSITARY SHARES
This prospectus describes the terms and provisions of our depositary
shares. When we offer to sell depositary shares, we will describe the specific
terms for the securities in a supplement to this prospectus. The prospectus
supplement also will indicate whether the terms and provisions described in this
prospectus apply to the depositary shares being offered.
We have summarized the material portions of the deposit agreement below.
The deposit agreement will be filed with the SEC in connection with an offering
of depositary shares.
We may offer fractional interests in preferred stock, rather than full
shares of preferred stock. If we do, we will provide for a depositary to issue
to the public receipts for depositary shares, each of which will represent
ownership of and entitlement to all rights and preferences of a fractional
interest in a share of preferred stock of a specified series. These rights
include dividend, voting, redemption and liquidation rights. The applicable
fraction will be specified in a prospectus supplement. The shares of preferred
stock represented by the depositary shares will be deposited with a depositary
named in a prospectus supplement, under a deposit agreement among us, the
depositary and the holders of the depositary receipts.
The depositary shares will be evidenced by depositary receipts issued under
the deposit agreement. The depositary will be the transfer agent, registrar and
dividend
12
<PAGE> 16
disbursing agent for the depositary shares. Holders of depositary receipts agree
to be bound by the deposit agreement, which requires holders to file proof of
residence and pay charges.
DIVIDENDS
The depositary will distribute all cash dividends or other cash
distributions received to the record holders of depositary receipts in
proportion to the number of depositary shares owned by them on the relevant
record date. The record date will be the same date as the record date we fix for
the applicable series of preferred stock.
If we make a non-cash distribution, the depositary will distribute property
to the holders of depositary receipts, unless the depositary determines, after
consultation with us, that it is not feasible to make this distribution. If this
occurs, the depositary may, with our approval, adopt any other method for the
distribution as it deems appropriate, including the sale of the property and
distribution of the net proceeds from the sale.
LIQUIDATION PREFERENCE
If we voluntarily or involuntarily liquidate, dissolve or wind up our
business, the holders of each depositary share will receive the fraction of the
liquidation preference accorded each share of the applicable series of preferred
stock.
REDEMPTION
If we redeem the series of preferred stock underlying the depositary
shares, we will redeem the depositary shares from the redemption proceeds of the
preferred stock held by the depositary. Whenever we redeem any preferred stock
held by the depositary, the depositary will redeem on the same redemption date
the number of depositary shares representing the preferred stock being redeemed.
The depositary will mail the notice of redemption between 30 to 60 days prior to
the date fixed for redemption to the record holders of the depositary receipts.
VOTING
The depositary will promptly mail information contained in any notice of
meeting it receives from us to the record holders of the depositary receipts.
Each record holder of depositary receipts will be entitled to instruct the
depositary as to its exercise of its voting rights pertaining to the number of
shares of preferred stock represented by its depositary shares. The depositary
will try, if practical, to vote the preferred stock underlying the depositary
shares according to the instructions received. We will agree to try to take all
action that the depositary finds necessary in order to enable the depositary to
vote the preferred stock in that manner. The depositary will not vote any of the
preferred stock for which it does not receive specific instructions from the
holders of depositary receipts.
WITHDRAWAL OF PREFERRED STOCK
If holders surrender depositary receipts at the principal office of the
depositary and pay any unpaid amount due to the depositary, the owner of the
depositary shares is entitled to receive the number of whole shares of preferred
stock and all money and other property represented by the depositary shares.
Partial shares of preferred stock will not be issued. If the holder delivers
depositary receipts evidencing a number of depositary shares that represent more
than a whole number of shares of preferred stock, the depositary will issue a
new depositary receipt evidencing the excess number of depositary shares to that
holder.
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<PAGE> 17
Holders of preferred stock received in exchange for depositary shares will no
longer be entitled to deposit these shares under the deposit agreement or to
receive depositary receipts.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between us and
the depositary. However, any amendment that materially and adversely alters the
rights of the holders, other than any change in fees, of depositary shares will
not be effective unless approved by the holders of at least a majority of the
depositary shares then outstanding. An amendment may not impair the right of any
owner of any depositary shares to surrender its depositary receipt with
instructions to the depositary in exchange for preferred stock, money and
property, except in order to comply with mandatory provisions of applicable law.
The deposit agreement may be terminated by us or the depositary only if:
- all outstanding depositary shares have been redeemed; or
- there has been a final distribution to the holders of the preferred stock
in connection with the liquidation, dissolution or winding up of our
business, and the distribution has been made to all the holders of
depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges
attributable solely to the depositary arrangements. We will pay the depositary's
charges for the initial deposit of the preferred stock and the initial issuance
of the depositary shares, any redemption of the preferred stock and all
exchanges for preferred stock. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and other charges stated in the
deposit agreement to be for their accounts. In some circumstances, the
depositary may refuse to transfer depositary shares, may withhold dividends and
distributions and may sell the depositary shares if those charges are not paid.
OBLIGATIONS OF DEPOSITARY
The depositary will forward to the holders of depositary receipts all
reports and communications from us that are delivered to it and that we are
required to furnish to the holders of the preferred stock. In addition, the
depositary will make available for inspection by holders of depositary receipts
at its principal office, and at other places it deems advisable, any reports and
communications received from us.
We will not assume, and the depositary will not assume, any obligation or
any liability under the deposit agreement to holders of depositary receipts
other than for gross negligence or willful misconduct. We will not be liable,
and the depositary will not be liable, if we are prevented or delayed by law or
any circumstance beyond our control in performing our obligations under the
deposit agreement. Our obligations and the depositary's obligations under the
deposit agreement will be limited to performance in good faith of our and their
duties. We and the depositary will not be obligated to prosecute or defend any
legal proceeding related to any depositary shares or preferred stock unless we
receive satisfactory indemnity. We and the depositary may rely on written advice
of our counsel or accountants, on information provided by holders of depositary
receipts or other persons believed in good faith to be competent to give this
information. We also may rely on documents believed to be genuine and to have
been signed or presented by the proper party or parties.
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<PAGE> 18
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us notice of its
election to do so. At any time we may remove the depositary. The resignation or
removal will take effect after a successor depositary is appointed and has
accepted the appointment. We must appoint a successor within 60 days after
delivery of the notice for resignation or removal and the successor depositary
must be a bank or trust company having its principal office in the United States
and having a combined capital and surplus of at least $150,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the depositary shares will be treated for federal income tax
purposes as if they were owners of the preferred stock underlying the depositary
shares. Accordingly, the owners will be entitled to take into account for
federal income tax purposes income and deductions to which they would be
entitled if they were holders of the preferred stock. In addition:
- no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, when exchanged, be the same as the aggregate tax
basis of the depositary shares being exchanged; and
- the holding period for preferred stock in the hands of an exchanging
owner of depositary shares will include the period during which that
person owned the depositary shares.
DESCRIPTION OF THE WARRANTS
This prospectus describes the terms and provisions of the warrants. When we
offer to sell warrants, we will describe the specific terms of the warrants and
warrant agreement in a supplement to this prospectus. The prospectus supplement
also will indicate whether the terms and provisions described in this prospectus
apply to the warrants being offered.
We have summarized the material portions of the warrant agreement below.
The warrant agreement will be filed with the SEC in connection with an offering
of warrants. You should read the warrant agreement for the provisions that are
important to you.
We may issue warrants for the purchase of our debt securities, preferred
stock or common stock. Warrants may be issued alone or together with debt
securities, preferred stock or common stock offered by any prospectus supplement
and may be attached to or separate from those securities. Each series of
warrants will be issued under a separate warrant agreement to be entered into
between us and a bank or trust company, as warrant agent. The warrant agent will
act solely as our agent in connection with the warrants and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants.
DEBT WARRANTS
The prospectus supplement relating to a particular issue of warrants to
issue debt securities will describe the terms of the debt warrants, including
the following:
- their title;
- their offering price;
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<PAGE> 19
- their aggregate number;
- the designation and terms of the debt securities that can be purchased
when they are exercised;
- the designation and terms of the debt securities that are issued with the
warrants and the number of warrants issued with each debt security;
- the date when they and any debt securities issued will be separately
transferable;
- the principal amount of debt securities that can be purchased when they
are exercised and the purchase price;
- the date on which the right to exercise warrants begins and the date on
which the right expires;
- the minimum or maximum amount of warrants that may be exercised at any
one time;
- whether they and the debt securities that may be issued when they are
exercised will be issued in registered or bearer form;
- information about book-entry procedures;
- the currency or currency units in which the offering price and the
exercise price are payable;
- a discussion of material United States federal income tax considerations;
- the antidilution provisions; and
- the redemption or call provisions.
STOCK WARRANTS
The prospectus supplement relating to any particular issue of warrants to
issue common stock or preferred stock will describe the terms of the stock
warrants, including the following:
- their title;
- their offering price;
- their aggregate number;
- the designation and terms of the common stock or preferred stock that can
be purchased when they are exercised;
- the designation and terms of the common stock or preferred stock that is
issued and the number of warrants issued with shares of each common stock
or preferred stock;
- the date when they and any common stock or preferred stock issued will be
separately transferable;
- the number of shares of common stock or preferred stock that can be
purchased when they are exercised and the purchase price;
- the date on which the right to exercise them begins and the date on which
the right expires;
- the minimum or maximum amount that may be exercised at any one time;
16
<PAGE> 20
- the currency or currency units in which the offering price and the
exercise price are payable;
- a discussion of material United States federal income tax considerations;
- the antidilution provisions; and
- the redemption or call provisions.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K of The Kroger Co. for the year ended January 2,
1999 and to the Current Reports on Form 8-K dated August 20, 1999 and October
29, 1999 have been so incorporated in reliance on the reports (which contain an
explanatory paragraph relating to the Company's change in its application of the
LIFO method of accounting for store inventories as of December 28, 1997) of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements incorporated in this prospectus by reference to
the Current Report on 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 said firm as experts in auditing and accounting.
The supplemental consolidated financial statements incorporated in this
prospectus by reference to the Current Report on Form 8-K dated May 28, 1999,
have been so incorporated in reliance on the report (which contains an
explanatory paragraph that describes a change in the Company's application of
the LIFO method of accounting for store inventories and an explanatory paragraph
that discloses that the supplemental financial statements give retroactive
effect to the merger of The Kroger Co. and Fred Meyer, Inc. on May 27, 1999,
which has been accounted for as a pooling of interests) of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements of Fred Meyer, Inc., as of January
30, 1999 and January 31, 1998 and for the fiscal years ended January 30, 1999,
January 31, 1998, and February 1, 1997, incorporated in this prospectus by
reference to Kroger's Current Report on Form 8-K dated May 28, 1999, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
Documents incorporated by reference in the future in this prospectus will
include financial statements, related schedules, if required, and auditors'
reports. The financial statements and schedules will have been audited to the
extent and for the periods identified in the reports by the firm submitting the
report. If audited financials are incorporated by reference, it will be based on
reports given on the authority of the issuing firm as experts in accounting and
auditing.
LEGAL OPINIONS
The validity of the securities we are offering will be passed upon for us
by Paul Heldman, Esq., Senior Vice President, Secretary and General Counsel of
Kroger. As of May 30, 1999, Mr. Heldman owned approximately 44,137 shares of
Kroger common stock, and had options to acquire an additional 204,583 shares.
17
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
Securities being registered, other than underwriting compensation, are estimated
as follows:
<TABLE>
<S> <C>
Registration Fee for Registration Statement.......... $455,400
Accounting Fees and Expenses......................... 50,000
Blue Sky Fees and Expenses........................... 15,000
Legal Fees and Expenses.............................. 75,000
Printing and Engraving Fees.......................... 75,000
Miscellaneous........................................ 50,000
--------
TOTAL.............................................. $720,400*
========
</TABLE>
- -------------------------
* All amounts are estimated except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Registrant's Regulations (bylaws) each present or former
director, officer or employee of the Registrant and each person who is serving
or shall have served at the request of the Registrant as a director, officer, or
employee of another corporation (and his heirs, executors and administrators)
will be indemnified by the Registrant against expenses actually and necessarily
incurred by him, 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 is or may be made a party by reason of being or having been such director,
officer, or employee, provided (1) he is adjudicated or determined not to have
been negligent or guilty of misconduct in the performance of his duty to the
Registrant or such other corporation, (2) he is determined to have acted in good
faith in what he reasonably believed to be the best interest of the Registrant
or of such other corporation, and (3) in any matter the subject of a criminal
action, suit, or proceeding, he is determined to have had no reasonable cause to
believe that his conduct was unlawful. See also Ohio Revised Code, Section
1701.13.
The Registrant also maintains directors' and officers' reimbursement and
liability insurance pursuant to policies with aggregate limits of $125 million.
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S>
1.1 -- Form of Underwriting Agreement. Incorporated by reference to
Exhibit 1.1 to The Kroger Co.'s Registration Statement on
Form S-3 (Registration No. 333-85727) filed with the SEC on
August 20, 1999.
</TABLE>
II-1
<PAGE> 22
<TABLE>
<C> <C> <S>
4.1 -- Amended Articles of Incorporation of The Kroger Co. are
incorporated by reference to Exhibit 3.1 of The Kroger Co.'s
Quarterly Report on Form 10-Q for the quarter ended October
3, 1998. The Kroger Co.'s Regulations are incorporated by
reference to Exhibit 4.2 of The Kroger Co.'s Registration
Statement on Form S-3 (Registration No. 33-57552) filed with
the SEC on January 28, 1993.
4.2 -- Rights Agreement, including form of Rights Certificate,
incorporated by reference to The Kroger Co.'s Registration
Statements on Form 8-A/A dated April 4, 1997 and October 18,
1998.
4.3 -- Form of Senior Indenture (including form of securities).
Incorporated by reference to Exhibit 4.3 to the Registrant's
Registration Statement on Form S-3 (Registration No.
333-74389).
*4.4 -- Certificate of Designation of series of preferred shares.
*4.5 -- Form of Deposit Agreement for depositary shares.
*4.6 -- Form of Warrant Agreement, including form of warrant
certificate.
5.1 -- Opinion of Paul Heldman, Esq., including his consent.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Deloitte & Touche LLP.
23.3 -- Consent of Paul Heldman, Esq., included in Exhibit 5.1.
24.1 -- Powers of Attorney.
25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939. Incorporated by reference
to Exhibit 25.1 to the Registrant's Current Report on Form
8-K dated April 30, 1999.
</TABLE>
- -------------------------
* To be filed as an Exhibit to a document to be incorporated by reference for
the specific offering of securities, if any, to which it relates.
ITEM 17. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the Securities registered hereby, a post-effective amendment to this
Registration Statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) 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 this Registration Statement; (iii) to include any
material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement; provided, however, that
the undertakings set forth in clauses (1)(i) and (1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration Statement.
II-2
<PAGE> 23
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions of Item 15 of Part II or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in said 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, 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.
(d) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 February 2, 2000.
THE KROGER CO.
BY /s/ BRUCE M. GACK
------------------------------------
Bruce M. Gack
Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
REGISTRANT
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
* /s/ REUBEN V. ANDERSON Director
- ---------------------------------------------
Reuben V. Anderson
Director
- ---------------------------------------------
Robert D. Beyer
Director
- ---------------------------------------------
Ronald W. Burkle
* /s/ JOHN L. CLENDENIN Director
- ---------------------------------------------
John L. Clendenin
* /s/ DAVID B. DILLON Director, President and
- --------------------------------------------- Chief Operating Officer
David B. Dillon
Director
- ---------------------------------------------
Carlton J. Jenkins
Director
- ---------------------------------------------
Bruce Karatz
* /s/ JOHN T. LAMACCHIA Director
- ---------------------------------------------
John T. LaMacchia
</TABLE>
II-4
<PAGE> 25
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* /s/ EDWARD M. LIDDY Director
- ---------------------------------------------
Edward M. Liddy
* /s/ CLYDE R. MOORE Director
- ---------------------------------------------
Clyde R. Moore
* /s/ T. BALLARD MORTON, JR. Director
- ---------------------------------------------
T. Ballard Morton, Jr.
* /s/ THOMAS H. O'LEARY Director
- ---------------------------------------------
Thomas H. O'Leary
* /s/ KATHERINE D. ORTEGA Director
- ---------------------------------------------
Katherine D. Ortega
* /s/ JOSEPH A. PICHLER Chairman of the Board of
- --------------------------------------------- Directors, Chief
Joseph A. Pichler Executive Officer, and
Director
Director
- ---------------------------------------------
Steven R. Rogel
* /s/ J. MICHAEL SCHLOTMAN Group Vice President and
- --------------------------------------------- Chief Financial
J. Michael Schlotman Officer -- Principal
Financial and Accounting
Officer
* /s/ MARTHA ROMAYNE SEGER Director
- ---------------------------------------------
Martha Romayne Seger
* /s/ BOBBY S. SHACKOULS Director
- ---------------------------------------------
Bobby S. Shackouls
* /s/ JAMES D. WOODS Director
- ---------------------------------------------
James D. Woods
*By /s/ BRUCE M. GACK
- ---------------------------------------------
Bruce M. Gack
As Attorney-in-fact
February 2, 2000
</TABLE>
II-5
<PAGE> 26
CO-REGISTRANT OFFICERS AND DIRECTORS
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
All as of
February 2, 2000
<S> <C> <C>
Dillon Companies, Inc.
/s/ DAVID B. DILLON Director and Chairman of
- --------------------------------------------- the Board (Principal
David B. Dillon Executive Officer)
/s/ FRANK J. REMAR Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Frank J. Remar Financial Officer)
/s/ SCOTT M. HENDERSON Vice President and
- --------------------------------------------- Controller (Principal
Scott M. Henderson Accounting Officer)
Director
- ---------------------------------------------
Warren F. Bryant
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Assistant Secretary
Paul W. Heldman
Director and Vice
- --------------------------------------------- President
W. Rodney McMullen
Drugs Distributors, Inc.
/s/ J. ROBERT RICE Director and President
- --------------------------------------------- (Principal Executive
J. Robert Rice Officer)
/s/ LAWRENCE M. TURNER Treasurer (Principal
- --------------------------------------------- Financial and Accounting
Lawrence M. Turner Officer)
/s/ PAUL W. HELDMAN Director and Secretary
- ---------------------------------------------
Paul W. Heldman
Director
- ---------------------------------------------
Thomas P. O'Brien, Jr.
</TABLE>
II-6
<PAGE> 27
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Henpil, Inc.
/s/ LEE BREWER President and Director
- --------------------------------------------- (Principal Executive
Lee Brewer Officer)
/s/ STEVEN MCMILLAN Director, Treasurer, and
- --------------------------------------------- Secretary (Principal
Steven McMillan Financial and Accounting
Officer)
Director
- ---------------------------------------------
Thomas P. O'Brien, Jr.
Inter-American Foods, Inc.
/s/ GEOFFREY J. COVERT President (Principal
- --------------------------------------------- Executive Officer)
Geoffrey J. Covert
/s/ W. RODNEY MCMULLEN Vice President and Chief
- --------------------------------------------- Financial Officer
W. Rodney McMullen (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Treasurer (Principal
- --------------------------------------------- Accounting Officer)
Lawrence M. Turner
/s/ PAUL W. HELDMAN Director and Vice
- --------------------------------------------- President
Paul W. Heldman
Director
- ---------------------------------------------
Thomas P. O'Brien, Jr.
/s/ BRUCE M. GACK Director
- ---------------------------------------------
Bruce M. Gack
J. V. Distributing, Inc.
/s/ W. RODNEY MCMULLEN President (Principal
- --------------------------------------------- Executive Officer)
W. Rodney McMullen
/s/ LAWRENCE M. TURNER Treasurer (Principal
- --------------------------------------------- Financial and Accounting
Lawrence M. Turner Officer)
</TABLE>
II-7
<PAGE> 28
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ PAUL W. HELDMAN Director and Vice
- --------------------------------------------- President
Paul W. Heldman
Director
- ---------------------------------------------
Thomas P. O'Brien, Jr.
/s/ BRUCE M. GACK Director and Secretary
- ---------------------------------------------
Bruce M. Gack
KRGP Inc.
KRLP Inc.
Kroger Limited Partnership I
By KRGP Inc., the General Partner
Kroger Limited Partnership II
By KRGP Inc., the General Partner
Kroger Texas L.P.
By KRGP Inc., the General Partner
/s/ JOSEPH A. PICHLER Director, Chairman of the
- --------------------------------------------- Board, and Chief Executive
Joseph A. Pichler Officer (Principal
Executive Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Financial and Accounting
Officer)
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Secretary
Paul W. Heldman
Director
- ---------------------------------------------
Thomas P. O'Brien, Jr.
/s/ BRUCE M. GACK Director
- ---------------------------------------------
Bruce M. Gack
</TABLE>
II-8
<PAGE> 29
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
The Kroger Co. of Michigan
/s/ M. MARNETTE PERRY Director, Chairman of the
- --------------------------------------------- Board, and Chief Executive
M. Marnette Perry Officer (Principal
Executive Officer)
/s/ TIMOTHY M. TERRELL Treasurer and Secretary
- --------------------------------------------- (Principal Financial and
Timothy M. Terrell Accounting Officer)
Director and Vice
- --------------------------------------------- President
Paul W. Heldman
/s/ JAMES PERUN Director and Vice
- --------------------------------------------- President-Operations
James Perun
Kroger Dedicated Logistics Co.
/s/ PAUL W. HELDMAN Director and President
- --------------------------------------------- (Principal Executive
Paul W. Heldman Officer)
/s/ LAWRENCE M. TURNER Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Lawrence M. Turner Financial and Accounting
Officer)
Director
- ---------------------------------------------
W. Rodney McMullen
Peyton's-Southeastern, Inc.
/s/ J. ROBERT RICE Director and President
- --------------------------------------------- (Principal Executive
J. Robert Rice Officer)
/s/ ROBERT WELTY Treasurer and Secretary
- --------------------------------------------- (Principal Financial and
Robert Welty Accounting Officer)
</TABLE>
II-9
<PAGE> 30
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Director
- ---------------------------------------------
Terry L. Cox
/s/ PAUL W. HELDMAN Director and Assistant
- --------------------------------------------- Secretary
Paul W. Heldman
Rocket Newco, Inc.
/s/ THOMAS P. O'BRIEN, JR. Director and President
- --------------------------------------------- (Principal Executive
Thomas P. O'Brien, Jr. Officer)
/s/ STEVEN MCMILLAN Vice President, Treasurer,
- --------------------------------------------- and Secretary (Principal
Steven McMillan Financial and Accounting
Officer)
Director and Vice
- --------------------------------------------- President
Lee Brewer
Topvalco, Inc.
/s/ JAMES E. HODGE President (Principal
- --------------------------------------------- Executive Officer)
James E. Hodge
/s/ LAWRENCE M. TURNER Director, Vice President,
- --------------------------------------------- Treasurer, and Assistant
Lawrence M. Turner Secretary (Principal
Financial and Accounting
Officer)
Director and Vice
- --------------------------------------------- President
Paul W. Heldman
/s/ THOMAS P. O'BRIEN, JR. Director and Assistant
- --------------------------------------------- Secretary
Thomas P. O'Brien, Jr.
Vine Court Assurance Incorporated
/s/ J. MICHAEL SCHLOTMAN Director and President
- --------------------------------------------- (Principal Executive
J. Michael Schlotman Officer)
</TABLE>
II-10
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ LAWRENCE M. TURNER Treasurer (Principal
- --------------------------------------------- Financial Officer)
Lawrence M. Turner
/s/ DANNY L. MCDANIEL Director, Controller, and
- --------------------------------------------- Chief Accounting Officer
Danny L. McDaniel (Principal Accounting
Officer)
/s/ BRUCE M. GACK Director and Vice
- --------------------------------------------- President
Bruce M. Gack
Director
- ---------------------------------------------
L. Thomas Aydt II
Director
- ---------------------------------------------
Alan D. Port
Wydiv, Inc.
/s/ JACK CANNON Director and President
- --------------------------------------------- (Principal Executive
Jack Cannon Officer)
/s/ STEVEN MCMILLAN Director, Vice President,
- --------------------------------------------- Treasurer and Secretary
Steven McMillan (Principal Financial and
Accounting Officer)
Director
- ---------------------------------------------
Thomas P. O'Brien, Jr.
City Market, Inc.
/s/ ANTHONY PRINSTER President (Principal
- --------------------------------------------- Executive Officer)
Anthony Prinster
/s/ RONALD WARREN Vice President and
- --------------------------------------------- Treasurer (Principal
Ronald Warren Financial Officer)
/s/ STAN HOSMAN Controller (Principal
- --------------------------------------------- Accounting Officer)
Stan Hosman
</TABLE>
II-11
<PAGE> 32
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ FRANK J. REMAR Director
- ---------------------------------------------
Frank J. Remar
Director
- ---------------------------------------------
Warren F. Bryant
Dillon Real Estate Co., Inc.
/s/ FRANK J. REMAR Director and President
- --------------------------------------------- (Principal Executive
Frank J. Remar Officer)
/s/ SCOTT M. HENDERSON Treasurer (Principal
- --------------------------------------------- Financial and Accounting
Scott M. Henderson Officer)
/s/ DAVID B. DILLON Director and Vice
- --------------------------------------------- President
David B. Dillon
Director and Vice
- --------------------------------------------- President
Warren F. Bryant
Jackson Ice Cream Co., Inc.
/s/ JOHN D. COX President (Principal
- --------------------------------------------- Executive Officer)
John D. Cox
/s/ FRANK J. REMAR Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Frank J. Remar Financial and Accounting
Officer)
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
Director
- ---------------------------------------------
Warren F. Bryant
</TABLE>
II-12
<PAGE> 33
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Junior Food Stores of West Florida, Inc.
/s/ MARK SALISBURY President (Principal
- --------------------------------------------- Executive Officer)
Mark Salisbury
/s/ FRANK J. REMAR Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Frank J. Remar Financial and Accounting
Officer)
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
Director
- ---------------------------------------------
Warren F. Bryant
Kwik Shop, Inc.
/s/ HENRY R. WAGUESPACK President (Principal
- --------------------------------------------- Executive Officer)
Henry R. Waguespack
/s/ FRANK J. REMAR Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Frank J. Remar Financial and Accounting
Officer)
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
Director
- ---------------------------------------------
Warren F. Bryant
Mini Mart, Inc.
/s/ SAMUEL L. SHARP President (Principal
- --------------------------------------------- Executive Officer)
Samuel L. Sharp
/s/ FRANK J. REMAR Director and Treasurer
- --------------------------------------------- (Principal Financial and
Frank J. Remar Accounting Officer)
</TABLE>
II-13
<PAGE> 34
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
Director
- ---------------------------------------------
Warren F. Bryant
Quik Stop Markets, Inc.
/s/ VAN S. TARVER President (Principal
- --------------------------------------------- Executive Officer)
Van S. Tarver
/s/ FRANK J. REMAR Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Frank J. Remar Financial and Accounting
Officer)
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
Director
- ---------------------------------------------
Warren F. Bryant
THGP Co., Inc.
THLP Co., Inc.
Turkey Hill, L.P.
By THGP Co., Inc.,
its General Partner
/s/ WARREN F. BRYANT Director and President
- --------------------------------------------- (Principal Executive
Warren F. Bryant Officer)
/s/ FRANK J. REMAR Director, President, Chief
- --------------------------------------------- Financial Officer, and
Frank J. Remar Treasurer (Principal
Financial and Accounting
Officer)
Director, Vice President,
- --------------------------------------------- and Assistant Secretary
Robert Moeder
</TABLE>
II-14
<PAGE> 35
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Wells Aircraft, Inc.
/s/ GARY W. CROW President (Principal
- --------------------------------------------- Executive Officer)
Gary W. Crow
/s/ FRANK J. REMAR Director, Vice President,
- --------------------------------------------- and Treasurer (Principal
Frank J. Remar Financial and Accounting
Officer)
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
Director
- ---------------------------------------------
Warren F. Bryant
Fred Meyer Stores, Inc.
/s/ KENNETH THRASHER President and Chief
- --------------------------------------------- Executive Officer
Kenneth Thrasher (Principal Executive
Officer)
/s/ ROBERT B. DIMOND Vice President and Chief
- --------------------------------------------- Financial Officer
Robert B. Dimond (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Accounting Officer)
Director
- ---------------------------------------------
Joseph A. Pichler
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ PAUL W. HELDMAN Director
- ---------------------------------------------
Paul W. Heldman
</TABLE>
II-15
<PAGE> 36
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Fred Meyer, Inc.
CB&S Advertising Agency, Inc.
Distribution Trucking Company
FM, Inc.
FM Holding Corporation
Grand Central, Inc.
FM Retail Services, Inc.
Fred Meyer of Alaska, Inc.
Fred Meyer of California, Inc.
Roundup Co.
JH Properties, Inc.
Smith's Beverage of Wyoming, Inc.
Smitty's Supermarkets, Inc.
Smitty's Super Valu, Inc.
Compare, Inc.
Saint Lawrence Holding Company
Smitty's Equipment Leasing, Inc.
Treasure Valley Land Company, L.C.
Western Property Investment Group, Inc.
Hughes Markets, Inc.
Hughes Realty, Inc.
KU Acquisition Corporation
/s/ WARREN F. BRYANT President and Chief
- --------------------------------------------- Executive Officer
Warren F. Bryant (Principal Executive
Officer)
/s/ ROBERT B. DIMOND Vice President and Chief
- --------------------------------------------- Financial Officer
Robert B. Dimond (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Accounting Officer)
Director
- ---------------------------------------------
Joseph A. Pichler
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Secretary
Paul W. Heldman
</TABLE>
II-16
<PAGE> 37
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
Fred Meyer Jewelers, Inc.
Merksamer Jewelers, Inc.
/s/ MICHAEL H. DON Chief Executive Officer
- --------------------------------------------- (Principal Executive
Michael H. Don Officer)
/s/ ROBERT B. DIMOND Vice President and Chief
- --------------------------------------------- Financial Officer
Robert B. Dimond (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Accounting Officer)
Director
- ---------------------------------------------
Joseph A. Pichler
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Secretary
Paul W. Heldman
Smith's Food & Drug Centers, Inc.
/s/ WARREN F. BRYANT Chief Executive Officer
- --------------------------------------------- (Principal Executive
Warren F. Bryant Officer)
/s/ ROBERT B. DIMOND Vice President and Chief
- --------------------------------------------- Financial Officer
Robert B. Dimond (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Accounting Officer)
Director
- ---------------------------------------------
Joseph A. Pichler
</TABLE>
II-17
<PAGE> 38
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Secretary
Paul W. Heldman
Richie's, Inc.
/s/ ARTURO YE Director and President
- --------------------------------------------- (Principal Executive
Arturo Ye Officer)
/s/ KEITH C. LARSON Director, Vice President,
- --------------------------------------------- and Secretary (Principal
Keith C. Larson Financial and Accounting
Officer)
Director
- ---------------------------------------------
Paul W. Heldman
Quality Food Centers, Inc.
Quality Food, Inc.
Quality Food Holdings, Inc.
QFC Sub, Inc.
Second Story, Inc.
/s/ DARRELL WEBB President and Chief
- --------------------------------------------- Executive Officer
Darrell Webb (Principal Executive
Officer)
/s/ ROBERT B. DIMOND Vice President and Chief
- --------------------------------------------- Financial Officer
Robert B. Dimond (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Accounting Officer)
Director
- ---------------------------------------------
Joseph A. Pichler
</TABLE>
II-18
<PAGE> 39
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Secretary
Paul W. Heldman
Food 4 Less Holdings, Inc.
Ralphs Grocery Company
Cala Co.
Bay Area Warehouse Stores, Inc.
Bell Markets, Inc.
Cala Foods, Inc.
Crawford Stores, Inc.
Food 4 Less of Southern California, Inc.
Alpha Beta Company
Food 4 Less GM, Inc.
Food 4 Less of California, Inc.
Food 4 Less Merchandising, Inc.
/s/ SAMMY K. DUNCAN President (Principal
- --------------------------------------------- Executive Officer)
Sammy K. Duncan
/s/ ROBERT B. DIMOND Vice President and Chief
- --------------------------------------------- Financial Officer
Robert B. Dimond (Principal Financial
Officer)
/s/ LAWRENCE M. TURNER Vice President and
- --------------------------------------------- Treasurer (Principal
Lawrence M. Turner Accounting Officer)
Director
- ---------------------------------------------
Joseph A. Pichler
/s/ DAVID B. DILLON Director
- ---------------------------------------------
David B. Dillon
/s/ PAUL W. HELDMAN Director, Vice President,
- --------------------------------------------- and Secretary
Paul W. Heldman
RJD Assurance, Inc.
/s/ J. MICHAEL SCHLOTMAN President and Director
- --------------------------------------------- (Principal Executive
J. Michael Schlotman Officer)
</TABLE>
II-19
<PAGE> 40
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C> <C>
/s/ DANNY L. MCDANIEL Controller and Director
- --------------------------------------------- (Principal Accounting
Danny L. McDaniel Officer)
/s/ LAWRENCE M. TURNER Treasurer (Principal
- --------------------------------------------- Financial Officer)
Lawrence M. Turner
/s/ BRUCE M. GACK Director
- ---------------------------------------------
Bruce M. Gack
Director
- ---------------------------------------------
L. Thomas Aydt II
Director
- ---------------------------------------------
Alan D. Port
</TABLE>
II-20
<PAGE> 41
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
- ------- --------------------
<S> <C> <C> <C>
1.1 -- Form of Underwriting Agreement. Incorporated by reference
to Exhibit 1.1 of The Kroger Co.'s Registration Statement
on Form S-3 (Registration No. 333-85727). ...............
4.1 -- Amended Articles of Incorporation of The Kroger Co. are
incorporated by reference to Exhibit 3.1 of The Kroger
Co.'s Quarterly Report on Form 10-Q for the quarter ended
October 3, 1998. The Kroger Co.'s Regulations are
incorporated by reference to Exhibit 4.2 of The Kroger
Co.'s Registration Statement on Form S-3 (Registration
No. 33-57552) filed with the SEC on January 28, 1993. ...
4.2 -- Rights Agreement, including form of Rights Certificate,
incorporated by reference to The Kroger Co.'s
Registration Statements on Form 8-A/A dated April 4, 1997
and October 18, 1998.....................................
4.3 -- Form of Senior Indenture (including form of securities).
Incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3
(Registration No. 333-74389). ...........................
*4.4 -- Certificate of Designation of series of preferred
shares. .................................................
*4.5 -- Form of Deposit Agreement for depositary shares. ........
*4.6 -- Form of Warrant Agreement, including form of warrant
certificate. ............................................
5.1 -- Opinion of Paul Heldman, Esq., including his consent. ...
12.1 -- Computation of Ratio of Earnings to Fixed Charges. ......
23.1 -- Consent of PricewaterhouseCoopers LLP. ..................
23.2 -- Consent of Deloitte & Touche LLP. .......................
23.3 -- Consent of Paul Heldman, Esq., included in Exhibit
5.1. ....................................................
24.1 -- Powers of Attorney. .....................................
25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939. Incorporated by
reference to Exhibit 25.1 to the Registrant's Current
Report on Form 8-K dated April 30, 1999. ................
</TABLE>
- -------------------------
* To be filed as an Exhibit to a document to be incorporated by reference for
the specific offering of securities, if any, to which it relates.
<PAGE> 1
Exhibit 5.1
The Kroger Co.
1014 Vine Street
Cincinnati, OH 45202-1100
February 2, 2000
Board of Directors
The Kroger Co.
1014 Vine Street
Cincinnati, OH 45202
Ladies and Gentlemen:
I am familiar with the proceedings taken and proposed to be taken by The Kroger
Co., an Ohio corporation (the "Company"), in connection with the issuance of up
to $1,725,000,000 aggregate principal amount of debt securities, preferred
stock, depositary shares, common stock, and warrants (collectively, the
"Securities"). I have acted as counsel to the Company and the co-registrant
guarantors ("Co-Registrants") in connection with its preparation of a
Registration Statement relating to such issuance of the Securities and the
public sale thereof on Form S-3 filed by the Company and the Co-Registrants with
the Securities and Exchange Commission (the "Registration Statement") for the
registration of the Securities under the Securities Act of 1933, as amended (the
"Act"). I have examined the Registration Statement and the exhibits thereto; the
Amended Articles of Incorporation and Regulations of the Company and the
Co-Registrants; the corporate minutes of the proceedings of the directors and
shareholders of the Company and the Co-Registrants; and such other records and
documents as I have deemed necessary in order to express the opinions
hereinafter set forth.
Based upon the foregoing, I am of the opinion that, when the indenture (in the
case of debt securities) and the warrant agreement (in the case of warrants) has
been duly executed and delivered, and the Securities have been duly executed and
authenticated in accordance with the terms of the instruments under which they
are being issued, and issued and sold in accordance with the underwriting
agreement related thereto, the Securities will constitute the valid and binding
obligations of the Company.
The foregoing opinion is subject to applicable bankruptcy, insolvency, or other
laws affecting creditors' rights generally, as from time to time in effect, and
to general equity principles.
<PAGE> 2
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me in the Registration Statement under the
caption "Legal Opinions" therein. In giving such consent, I do not admit that
I am in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
(Paul W. Heldman)
Paul W. Heldman
Senior Vice President, Secretary
and General Counsel
<PAGE> 1
EXHIBIT 12.1
Schedule of computation of ratio of earnings to fixed charges of The Kroger Co.
and consolidated subsidiary companies and unconsolidated companies as if
consolidated for the periods shown:
<TABLE>
<CAPTION>
Quarter Ended Fiscal Year Ended
------------------------ -----------------------------------------------------------------------
November 6, October 3, January 2, December 27, December 28, December 30, December 31,
1999 1998 1999 1997 1996 1995 1994
(12 weeks) (16 weeks) (53 weeks) (52 weeks) (52 weeks) (52 weeks) (52 weeks)
---------- ---------- ---------- ------------ ------------ ------------ ------------
(In millions of dollars)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings before
tax expense, and
extraordinary loss........ $ 240 $ 255 $ 871 $ 954 $ 701 $ 591 $ 473
Fixed charges .............. 231 261 1,038 679 595 596 582
Capitalized interest ....... (2) (4) (9) (10) (12) (11) (5)
------- ------- ------- ------- ------- ------- -------
$ 469 $ 512 $ 1,900 $ 1,623 $ 1,284 $ 1,176 $ 1,050
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Interest ................... $ 149 $ 173 $ 654 $ 397 $ 361 $ 369 $ 356
Portion of rental
payments deemed
to be interest ......... 82 88 384 282 234 227 226
------- ------- ------- ------- ------- ------- -------
$ 231 $ 261 $ 1,038 $ 679 $ 595 $ 596 $ 582
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to
fixed charges .............. 2.0 2.0 1.8 2.4 2.2 2.0 1.8
</TABLE>
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of The Kroger Co. on Form S-3 of our report (which contains an
explanatory paragraph relating to the Company's change in its application of the
LIFO method of accounting for store inventories) dated January 28, 1999, on our
audits of the consolidated financial statements of The Kroger Co. as of January
2, 1999 and December 27, 1997, and for the years ended January 2, 1999, December
27, 1997, and December 28, 1996, which report is included in the Company's
Annual Report on Form 10-K for the fiscal year ended January 2, 1999, our report
dated April 30, 1999, on our audit of the financial statements of The Kroger Co.
as of and for the twenty-eight days ended January 30, 1999, which report is
included in the Company's Current Report on Form 8-K dated May 10, 1999, our
report (which contains an explanatory paragraph that describes a change in the
Company's application of the LIFO method of accounting for store inventories and
an explanatory paragraph that discloses that the supplemental financial
statements give retroactive effect to the merger of The Kroger Co. and Fred
Meyer, Inc. on May 27, 1999, which has been accounted for as a pooling of
interests), dated May 28, 1999 on our audit of the supplemental consolidated
financial statements of The Kroger Co. as of January 2, 1999 and December 27,
1997, and for the years ended January 2, 1999, December 27, 1997, and December
28, 1996, which report is included in the Company's Current Report on Form 8-K
dated May 28, 1999, our report (which contains an explanatory paragraph relating
to the Company's change in its application of the LIFO method of accounting for
store inventories) dated January 28, 1999, except for the Guarantor Subsidiaries
note, as to which the date is August 13, 1999, on our audits of the consolidated
financial statements of The Kroger Co. as of January 2, 1999 and December 27,
1997, and for the years ended January 2, 1999, December 27, 1997, and December
28, 1996, which report is included in the Company's Current Report on Form 8-K
dated August 20, 1999, and our report (which contains an explanatory paragraph
relating to the Company's change in its application of the LIFO method of
accounting for store inventories) dated May 28, 1999 on our audits of the
consolidated financial statements of The Kroger Co. as of January 2, 1999 and
December 27, 1997 and for the years ended January 2, 1999, December 27, 1997,
and December 28, 1996, which report is included in the Company's Current Report
on Form 8-K dated October 29, 1999. We also consent to the references to our
firm under the caption "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Cincinnati, Ohio
February 2, 2000
<PAGE> 1
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Kroger Co. on Form S-3 of our report dated March 10, 1999 on the
consolidated financial statements of Fred Meyer, Inc., appearing in the Annual
Report on Form 10-K of Fred Meyer, Inc. for the year ended January 30, 1999, and
to the use of our report dated March 10, 1999, appearing in the Current Report
on Form 8-K dated May 28, 1999 of The Kroger Co., and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Portland, Oregon
February 1, 2000
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned directors of THE KROGER
CO. (the "Company") hereby make, constitute and appoint Paul W. Heldman and
Bruce M. Gack, or either one of them, his or her true and lawful
attorneys-in-fact to sign and execute for and on his or her behalf, a
registration statement and any and all amendments thereto with respect to the
issuance and sale by the Company of up to $2,500,000,000 of Securities to be
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, in such form as they, or either of them, may approve and to
do any and all other acts which said attorneys-in-fact, or either one of them,
may deem necessary or desirable to enable The Kroger Co. to comply with said Act
and the rules and regulations thereunder in connection with such sale.
IN WITNESS WHEREOF, the undersigned directors have hereunto set their hands and
seal, as of the 22nd day of April, 1999.
<TABLE>
<CAPTION>
<S> <C>
(John L. Clendenin) (James D. Woods)
- ------------------------ -----------------------
John L. Clendenin James D. Woods
(Katherine D. Ortega) (Reuben V. Anderson)
- ------------------------ -----------------------
Katherine D. Ortega Reuben V. Anderson
(T. Ballard Morton, Jr.) (Clyde R. Moore)
- ------------------------ -----------------------
T. Ballard Morton, Jr. Clyde R. Moore
(Thomas H. O'Leary) (Martha R. Seger)
- ------------------------ -----------------------
Thomas H. O'Leary Martha R. Seger
(John T. LaMacchia) (Bobby S. Shackouls)
- ------------------------ -----------------------
John T. LaMacchia Bobby S. Shackouls
(Edward M. Liddy) (Joseph A. Pichler)
- ------------------------ -----------------------
Edward M. Liddy Joseph A. Pichler
(David B. Dillon)
-----------------------
David B. Dillon
</TABLE>
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer and director of
THE KROGER CO. (the "Company") hereby makes, constitutes and appoints Paul W.
Heldman and Bruce M. Gack, or either one of them, his true and lawful
attorneys-in-fact to sign and execute for and on his behalf, a registration
statement and any and all amendments thereto with respect to the issuance and
sale by the Company of up to $2,500,000,000 of Securities to be filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, in such form as they, or either of them, may approve and to do any and
all other acts which said attorneys-in-fact, or either one of them, may deem
necessary or desirable to enable The Kroger Co. to comply with said Act and the
rules and regulations thereunder in connection with such sale.
IN WITNESS WHEREOF, I have hereunto set my hand.
(Joseph A. Pichler) April 26, 1999
- -------------------
Joseph A. Pichler
Chairman of the Board,
Chief Executive Officer and
Director
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer of THE KROGER
CO. (the "Company") hereby makes, constitutes and appoints Paul W. Heldman and
Bruce M. Gack, or either one of them, his true and lawful attorneys-in-fact to
sign and execute for and on his behalf, a registration statement and any and all
amendments thereto with respect to the issuance and sale by the Company of up to
$2,500,000,000 of Securities to be filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, in such form as
they, or either of them, may approve and to do any and all other acts which said
attorneys-in-fact, or either one of them, may deem necessary or desirable to
enable The Kroger Co. to comply with said Act and the rules and regulations
thereunder in connection with such sale.
IN WITNESS WHEREOF, I have hereunto set my hand.
(J. Michael Schlotman) February 2, 2000
- ------------------------
J. Michael Schlotman
Group Vice President and
Chief Financial Officer
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer and director of
THE KROGER CO. (the "Company") hereby makes, constitutes and appoints Paul W.
Heldman and Bruce M. Gack, or either one of them, his true and lawful
attorneys-in-fact to sign and execute for and on his behalf, a registration
statement and any and all amendments thereto with respect to the issuance and
sale by the Company of up to $2,500,000,000 of Securities to be filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, in such form as they, or either of them, may approve and to do any and
all other acts which said attorneys-in-fact, or either one of them, may deem
necessary or desirable to enable The Kroger Co. to comply with said Act and the
rules and regulations thereunder in connection with such sale.
IN WITNESS WHEREOF, I have hereunto set my hand.
(David B. Dillon) April 26, 1999
- ------------------------
David B. Dillon
President, Chief Operating Officer, and
Director
<PAGE> 5
RESOLUTION
WHEREAS, The management of the Company has determined that it is advantageous to
the Company to purchase on the open market or to redeem or repay certain of its
outstanding indebtedness (the "Repurchased Debt");
WHEREAS, The amount of funds that can be expended for such Repurchased Debt is,
under certain circumstances, limited by the terms of the Indentures under its
publicly and privately issued debt (together the "Indentures"); and
WHEREAS, The Company is considering the issuance of debt, equity, and other
forms of securities (the "Securities") through private placement or through
public offering, and the use of the proceeds from the sale of the Securities to
purchase or redeem Repurchased Debt and for other general corporate purposes;
and
WHEREAS, At its regularly scheduled meeting held on December 3, 1998, this
Board authorized the issuance of up to $2,000,000,000 of Securities; and
WHEREAS, Management has determined that it may be in the best interests of the
Company to increase the amount of Securities that can be issued from
$2,000,000,000 to $2,500,000,000; now, therefore,
RESOLVED, That, subject to the limitations set forth in these resolutions and
the Indentures, the Company is authorized to issue, from time to time, up to
$2,500,000,000 of Securities to the public, or to one or more institutional
investors, to be used to repay or refinance existing debt of the Company; and
further
RESOLVED, That as long as the proposed merger with Fred Meyer has been
consummated, debt Securities bearing an interest rate of not more than 8 percent
per annum may be issued by the Company and the determination of all terms and
conditions of the debt Securities is delegated to a Management Committee made up
of Joseph A. Pichler, David B. Dillon, W. Rodney McMullen, and Lawrence M.
Turner, any three of whom can act for the Management Committee; and further
RESOLVED, That Securities not issued under the immediately preceding resolution
may be issued on terms and conditions as determined by a committee of this Board
of Directors (the "Securities Committee") appointed in the next following
resolution; and further
RESOLVED, That in connection with the proposed public offering or private
placement of the Securities or the proposed debt repurchase program, the members
of the Financial Policy Committee are hereby appointed as the Securities
Committee, and that any three of them, at least two of whom have not served as
employees of the Company or its subsidiaries, are empowered to act as and for
the Securities Committee; and that the Securities Committee has all the
authority to act as and for the Board of Directors in the determination of
whether to issue the Securities, and, if issued, whether to offer the Securities
through a public offering or through private transactions, and whether to
purchase the Repurchased Debt; and further
RESOLVED, That the Management Committee or the Securities Committee, as the case
may be, may designate one or more persons, who may or may not be a member of the
1
<PAGE> 6
Committee, to act as and for the Committee in any capacity as the Committee may
direct; and further
RESOLVED, That the Management Committee or the Securities Committee, as the case
may be, may, at any time prior to December 31, 2001, authorize one or more
issuances and sales of the Securities by the Company and authorize one or more
purchases of Repurchased Debt for so long as, or at such times as, economically
advantageous to the Company, and, in connection with any such authorization,
issue, determine, approve, or appoint, as the case may be:
(a) the type of Security or Securities and title or titles thereof;
(b) the aggregate principal amount, not to exceed $2,500,000,000, the
denominations, and terms, of the Securities;
(c) the price at which the Securities are to be sold (which may be issued at
an "original issue discount" within the meaning of the Internal Revenue
Code of 1986, as amended), and the interest rate or rates, if any, to be
established for the Securities, which rate or rates may vary from time to
time;
(d) the issuance of the Securities in any foreign currency or European
currency units and if European currency units are issued, the currency or
currencies in which interest is payable;
(e) the maturity or maturities; and, furthermore, the Securities Committee is
authorized to determine that any issue of Securities may be of varying
maturities and amounts;
(f) the sinking fund, if any, and related redemption prices of the
Securities;
(g) the optional redemption rights, if any, of the Company and of the holders
of the Securities, and related redemption prices and any limitations on
such redemption;
(h) the restrictive covenants, if any, to be imposed upon the Company
relating to any of the Securities;
(i) the form of Registration Statement on Form S-3, or such other form as the
Securities Committee determines (the "Registration Statement"), for the
purpose of registering the Securities, if so required, under the
Securities Act of 1933, as amended, and any amendments thereto;
(j) the amount of Repurchased Debt to be purchased or redeemed by the
Company;
2
<PAGE> 7
(k) the price at which any Repurchased Debt is to be purchased, if purchased;
(l) any underwriting, standby, or similar agreement between the Company and
an underwriter or underwriters;
(m) the use, form, execution, and delivery of the Securities, indentures,
note agreement, loan agreement, distribution agreement, reimbursement
agreement, warrant agreement, notes, or any other contracts or
agreements, including listing applications, as the Securities Committee
deems necessary or appropriate;
(n) any transfer, authenticating, placement, exchange, distribution, or
paying agent, or registrar, trustee or underwriter, or any other person
or entity to act in connection with the Securities or the Repurchased
Debt; including the selection of a financial institution or institutions,
whether foreign or domestic, to advise the Company;
(o) whether the issuance of the Securities or the purchase or redemption of
Repurchased Debt is permitted under the terms of the Indentures; and
(p) any other terms, conditions, and provisions as the Securities Committee
deems necessary or appropriate; and further
RESOLVED, That the elected officers of the Company be, and each of them hereby
is, authorized, in the name and on behalf of the Company, to execute the
Registration Statement with such changes therein as the officer executing the
same may approve, such execution to be conclusive evidence of such approval, and
to execute any and all amendments thereto as deemed necessary or desirable; and
further
RESOLVED, That upon the execution of the Registration Statement or any
amendments thereto, including post-effective amendments, by directors and
officers of the Company, as required by law, either in person or by a duly
authorized attorney or attorneys, the elected officers of the Company be, and
each of them hereby is, authorized to cause the Registration Statement and any
amendments thereto to be filed with the Securities and Exchange Commission (the
"Commission") and to execute and file all such instruments, make all such
payments, and to do such other acts and things as, in their opinion or in the
opinion of any of them, may be necessary or desirable in order to effect such
filing, to cause the Registration Statement to become effective, and to maintain
the Registration Statement in effect for as long as they deem it to be in the
best interests of the Company; and further
RESOLVED, That Paul W. Heldman and Bruce M. Gack, or either one of them, be, and
each of them hereby is, made, constituted, and appointed the true and lawful
attorneys-in-fact, with authority to sign and execute on behalf of this Company,
and on behalf of the directors and officers thereof in their official
capacities, the Registration Statement and any and all amendments thereto, which
either of them, in their discretion, deem necessary or advisable to be filed
with the Commission; and further
3
<PAGE> 8
RESOLVED, That Paul W. Heldman, Senior Vice President, Secretary and General
Counsel of the Company, whose address is 1014 Vine Street, Cincinnati, Ohio, be,
and he hereby is, designated as the Agent for Service to be named in the
Registration Statement, with authority to receive notices and communications
with respect to such Registration Statement and with all powers consequent upon
such designation under the rules and regulations of the Commission; and further
RESOLVED, That, subject to the limitations set forth in these resolutions, the
Management Committee or the Securities Committee, as the case may be, may
approve the form of the Securities; that the elected officers of the Company be,
and each of them hereby is, authorized to execute, in the name and on behalf of
the Company, the Securities; that the signature of each of such officers on the
Securities may be manual or by facsimile; that Securities bearing the manual or
facsimile signatures of individuals who were at any time the elected officers of
the Company will bind the Company notwithstanding that such individuals or any
of them cease to hold such offices; that the elected officers of the Company be,
and each of them hereby is, authorized to deliver or cause to be delivered the
Securities for authentication and delivery in the principal amount thereof as
shall have been determined by the Board or a Committee; and further
RESOLVED, That the elected officers of the Company be, and each of them hereby
is, authorized and directed, if such officer or officers deems it necessary in
connection with the offering of any of the Securities, to appoint a withholding
agent and attorney for the Company for the purpose of withholding any and all
taxes required to be withheld by the Company, under any Federal or other laws or
regulations from time to time in effect, from the interest paid from time to
time on the Securities, and to authorize and direct such agent to make any and
all payments and reports and to file any and all returns and accompanying
certificates with any governmental authority which such agent may be permitted
or required to make or file as such agent under such laws or regulations; and
further
RESOLVED, That the elected officers of the Company be, and each of them hereby
is, authorized in the name and on behalf of this Company to take any and all
action which they deem necessary or advisable to effect the registration or
qualification (or exemptions therefrom) of the Securities for issue, offer,
sale, or trade under the Blue Sky or securities laws of any State of the United
States of America, any Province of Canada, or of any other country and in
connection therewith to sign, execute, acknowledge, verify, deliver, file, and
publish all such applications, issuer's covenants, consents to service of
process, resolutions, and other papers and documents as may be required under
such laws, and to take any and all further action which they deem necessary or
advisable in order to maintain such registration or qualification of the
Securities for as long as they may deem necessary or as required by law; and
further
RESOLVED, That the elected officers of the Company be, and each of them hereby
is, authorized in the name and on behalf of this Company to execute and file an
application or applications for the listing of the Securities on the New York
Stock Exchange, to appear
4
<PAGE> 9
before officials of the New York Stock Exchange and to take any and all action,
and prepare, execute, and file any and all other applications and agreements,
including an indemnity agreement relating to the use of facsimile signatures in
the execution of the Securities, necessary, incidental, or convenient to
effectuate such listing; and further
RESOLVED, That the elected officers of the Company be, and each of them hereby
is, authorized in the name and on behalf of this Company to execute and cause to
be filed with the Commission and the New York Stock Exchange an application on
Form 8-A, or such other form as may be required for the purpose of registering
the Securities on a national securities exchange, pursuant to the Securities
Exchange Act of 1934; and further
RESOLVED, That the elected officers of the Company be, and each of them hereby
is, authorized and directed to advise the Company's senior lenders and the
trustees under the Indentures of the issuance of Securities or the purchase or
redemption of Repurchased Debt, as any such officer deems necessary or
appropriate; and further
RESOLVED, That the Management Committee or the Securities Committee, as the case
may be, and each of the elected officers of the Company be, and each of them
hereby is, authorized and directed to do and perform, or cause to be done and
performed, all such acts, deeds, and things and to make, execute, and deliver,
or cause to be made, executed, and delivered, all such agreements, undertakings,
documents, instruments, or certificates, in the name and on behalf of the
Company or otherwise, including, without limitation, indentures, loan
agreements, underwriting, placement, exchange or agency agreements, and trust
agreements, all as the applicable Committee or any of the elected officers deem
necessary or appropriate to effect the purposes and intent of the foregoing
resolutions.
5
