As filed with the Securities and Exchange
Commission on May 15, 1997
Registration No. 333-
----------------
----------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE KROGER CO.
(Exact name of registrant as specified in its charter)
Ohio 31-0345740
- ------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1014 Vine Street, Cincinnati, Ohio 45202
- ---------------------------------------- ---------
(Address of Principal Executive Offices) (Zip Code)
The Kroger Co.
1997 Long-Term Incentive Plan
-----------------------------
(Full title of Plan)
Paul W. Heldman
Vice President, Secretary and General Counsel
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
--------------------------------------
(Name and address of agent for service)
(513) 762-4000
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate Amount of
Securities To To be Price Offering Registration
Be Registered Registered Per Share<F1> Price<F1> Fee
Common Stock 10,000,000 $27 $270,000,000 $81,818.18
$1 Par Value shares
Preferred Stock
Purchase Rights <F2> <F2> <F2> <F2>
- ------------------------------------------------------------------------------
</TABLE>
<F1> Estimated solely for the purpose of calculating the
registration fee pursuant to Securities Act Rule 457(c), on
the basis of the average of the high and low sale prices of
the Registrant's Common Stock on the New York Stock
Exchange on May 14, 1997, which date is within 5 business
days prior to the date of the filing of this Registration
Statement, as reported by The Wall Street Journal.
-----------------------
<F2> Preferred Stock Purchase Rights will be issued in a number
equal to the shares of Common Stock to be issued for no
additional consideration and therefore no registration
fee is required. Prior to the occurrence of certain events,
the Preferred Stock Purchase Rights will not be exercisable
or evidenced separately from the Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Kroger Co. ("Kroger"
or "Registrant") with the Securities and Exchange Commission
("Commission") are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year
ended December 28, 1996;
2. All other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), since the end of the fiscal year covered
by the Form 10-K referred to above; and
3. The description of Kroger Common Stock contained
in Kroger's registration statement filed pursuant to
Section 12 of the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by Kroger pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-
effective amendment which indicates that all shares of Kroger
Common Stock offered hereby have been sold or which withdraws
from registration such shares of Kroger Common Stock then
remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from
the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Kroger's consolidated balance sheet as of December 28, 1996
and December 29, 1995, its consolidated statements of operations
and accumulated earnings (deficit), and cash flows for each of
the three years in the period ended December 28, 1996 and its
consolidated financial statement schedules, which appear in
Kroger's Annual Report on Form 10-K for the fiscal year ended
December 28, 1996 incorporated by reference in this Registration
Statement, have been incorporated herein in reliance on the
report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of that firm as experts in accounting and
auditing.
Documents incorporated herein by reference in the future
will include financial statements, related schedules and
auditors' reports, which financial statements and schedules will
have been examined to the extent and for the periods set forth
in such opinions by the firm or firms rendering such opinions,
and, to the extent so examined and consent to incorporation by
reference given, will be incorporated herein by reference in
reliance upon such opinions given upon authority of such firms
as experts in accounting and auditing.
A legal opinion to the effect that the shares of Kroger
Common Stock offered hereby have been duly authorized and that,
when they are issued in accordance with the terms of the 1997
Long-Term Incentive Plan, they will be validly issued and
outstanding, fully paid and nonassessable, has been rendered by
Paul W. Heldman, Esquire, Vice President, Secretary and General
Counsel of Kroger. As of April 30, 1997, Mr. Heldman owned
approximately 20,438 shares of Kroger Common Stock and held
options to acquire 240,000 shares of Kroger Common Stock.
Item 6. Indemnification of Directors and Officers.
Under Kroger's Regulations (by-laws), each present or
former director, officer or employee of Kroger and each person
who is serving or shall have served at the request of Kroger as
a director, officer or employee of another corporation (and his
or her heirs, executors or administrators) shall be indemnified
by Kroger against expenses actually and necessarily incurred by
him or her, and also against expenses, judgments, decrees,
fines, penalties, or amounts paid in settlement, in connection
with the defense of any pending or threatened action, suit, or
proceeding, criminal or civil, to which he or she is or may be
made a party by reason of being or having been such director,
officer or employee, provided (1) he or she is adjudicated or
determined not to have been negligent or guilty of misconduct in
the performance of his or her duty to Kroger or such other
corporation, (2) he or she is determined to have acted in good
faith in what he or she reasonably believed to be the best
interest of Kroger or of such other corporation, and (3) in any
matter the subject of a criminal action, suit, or proceeding, he
or she is determined to have had no reasonable cause to believe
that his or her conduct was unlawful. See also Ohio Revised
--- ----
Code, Section 1701.13.
The foregoing indemnification provisions are not exclusive
of any other rights to which such director, officer or employee
may be entitled under Kroger's Articles of Incorporation or
Regulations, any agreement, any insurance purchased by Kroger,
any vote of shareholders or otherwise.
Kroger has purchased insurance insuring officers and
directors of the company against certain liabilities incurred in
their capacities as such in order to insure Kroger against any
payments which it is obligated to make to such persons under the
foregoing indemnification provisions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Index of Exhibits of this
Registration Statement are filed herewith or are incorporated
herein by reference to other filings.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration
Statement:
(a) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 ("Securities Act");
(b) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(c) to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a) and (b) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement;
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering;
4. That, for purposes of determining any liability under
the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
5. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions set forth in Item 6, or otherwise, the Registrant has
been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered and the
Commission remains of the same opinion, the Registrant will,
unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
-----------
The Registrant. Pursuant to the requirements of the
--------------
Securities Act, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on May 15, 1997.
THE KROGER CO.
By *
-------------------------
Joseph A. Pichler, Chairman
of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities indicated on May 15, 1997.
Signature Title
- ---------- -------
*
- --------------------------- Group Vice President and
W. Rodney McMullen Chief Financial Officer
(principal financial officer)
*
- --------------------------- Vice President and Corporate
J. Michael Schlotman Controller
(principal accounting
officer)
*
- --------------------------- Chairman of the Board of
Joseph A. Pichler Directors and Chief Executive
Officer
(principal executive officer)
*
- --------------------------- President, Chief Operating
David B. Dillon Officer and Director
*
- --------------------------- Director
Reuben V. Anderson
*
- --------------------------- Director
John L. Clendenin
*
- --------------------------- Director
Richard W. Dillon
*
- --------------------------- Director
John T. LaMacchia
*
- --------------------------- Director
Edward M. Liddy
- --------------------------- Director
Patricia Shontz Longe
*
- --------------------------- Director
Clyde R. Moore
*
- --------------------------- Director
T. Ballard Morton, Jr.
*
- --------------------------- Director
Thomas H. O'Leary
*
- --------------------------- Director
John D. Ong
*
- --------------------------- Director
Katherine D. Ortega
- --------------------------- Director
Martha Romayne Seger
*
- --------------------------- Director
James D. Woods
*By (Bruce M. Gack)
-----------------------
Bruce M. Gack
Attorney-in-fact
<PAGE>
INDEX OF EXHIBITS
------------------
Exhibit 4.1 Provisions of amended Articles of Incorporation.
Incorporated by reference to Exhibit 3(a) of
Kroger's Current Report on Form 8-K dated
April 16, 1997. Provisions of Regulations
(by-laws) of The Kroger Co. defining the rights
of security holders. Incorporated herein by
reference to Exhibit 4.2 of Kroger's Registration
Statement on Form S-3 as filed with the
Securities and Exchange Commission on January 28,
1993 and bearing Registration No. 33-57552.
Exhibit 4.2 The Kroger Co. 1997 Long-Term Incentive Plan.
Filed herewith.
Exhibit 5 Opinion of Paul W. Heldman, Esquire, with respect
to the validity of the Common Stock being
registered. Filed herewith.
Exhibit 23.1 Consent of Coopers & Lybrand L.L.P., Independent
Accountants. Filed herewith.
Exhibit 23.2 Consent of Paul W. Heldman, Esquire. Contained
in the opinion filed as Exhibit 5 hereto.
Exhibit 24 Powers of Attorney of certain officers and
directors of Kroger. Filed herewith.
<PAGE>
THE KROGER CO.
1997 LONG-TERM INCENTIVE PLAN
1. Definitions
In this Plan the following definitions apply:
1.1 "Agreement" means a written agreement implementing a
grant of an Option or an award of Restricted Stock.
1.2 "Board" means the Board of Directors of the Company.
1.3 "Code" means the Internal Revenue Code of 1986, as
amended.
1.4 "Committee" means the committee appointed to
administer each of the Programs under the Plan. For purposes
of the Insider Program and the Outside Director Program the
Committee will be a committee of the Board meeting the
standards of Rule 16b-3(d)(1) under the Exchange Act, or any
similar successor rule, appointed by the Board to administer
the Insider Program and the Outside Director Program, which
initially will be composed of those members of the
Compensation Committee of the Board who qualify as "outside
directors" under Section 162(m) of the Code. For purposes of
the Non-Insider Program, the Committee will be the Stock
Option Committee.
1.5 "Common Stock" means the common stock, par value
$1.00 per Share, of the Company.
1.6 "Company" means THE KROGER CO.
1.7 "Date of Exercise" means the date on which the
Company receives notice of the exercise of an Option in
accordance with the terms of Article 8.
1.8 "Date of Grant" means the date on which an Option is
granted or Restricted Stock is awarded by the Committee.
1.9 "Director" means a member of the Board of the
Company.
1.10 "Employee" means any person determined by the
Committee to be an employee of the Company or a Subsidiary.
1.11 "Employee Director" means a Director who is an
Employee of the Company.
1.12 "Exchange Act" means the Securities Exchange Act of
1934, as amended.
1.13 "Fair Market Value" of a Share of Common Stock means
the amount equal to the fair market value of a Share of Common
Stock determined pursuant to a reasonable method adopted by
the Committee in good faith. Unless otherwise provided to the
contrary in an Agreement or in resolutions of the Committee,
the Fair Market Value of a Share will be the mean between the
highest and lowest selling price on the date of determination
on the New York Stock Exchange--Composite Transactions, or if
no sales are made on that date, on the most recent prior date
for which sales are reported.
1.14 "Grantee" means an Employee to whom Restricted Stock
has been awarded pursuant to Article 10.
1.15 "Insider" means an officer or other employee of the
Company subject to Section 16(a) of the Exchange Act.
1.16 "Insider Program" means that portion of the Plan
under which grants or awards are made to Insiders, including
Employee Directors.
1.17 "Non-Insider Program" means that portion of the Plan
under which grants or awards are made to Employees, excluding
Insiders and Employee Directors.
1.18 "Option" means a nonstatutory stock option granted
under the Plan that does not qualify as an incentive stock
option under Section 422 of the Code.
1.19 "Option Period" means the period during which an
Option may be exercised.
1.20 "Option Price" means the price per Share at which an
Option may be exercised. The Option Price will be determined
by the Committee, but in no event shall the Option Price of an
Option be less than the Fair Market Value per Share determined
as of the Date of Grant.
1.21 "Optionee" means an Employee or Director to whom an
Option has been granted.
1.22 "Outside Director Program" means that portion of the
Plan under which grants are made to Directors, other than
Employee Directors.
1.23 "Performance Goals" means performance goals
established by the Committee which may be based on earnings or
earnings growth, sales, return on assets, equity or
investment, total shareholder return, regulatory compliance,
satisfactory internal or external audits, improvement of
financial ratings, achievement of balance sheet, income
statement or other financial statement objectives, or any
other objective goals established by the Committee, and may be
absolute in their terms or measured against or in relationship
to other companies similarly or otherwise situated.
Performance goals may be particular to an employee or the
department, branch, Subsidiary or other division in which he
or she works, or may be based on the performance of the
Company generally, and may cover any period specified by the
Committee.
1.24 "Plan" means THE KROGER CO. 1997 Long-Term Incentive
Plan.
1.25 "Restricted Stock" means Shares awarded pursuant to
Article 10.
1.26 "Share" means a share of authorized but unissued
Common Stock or a reacquired share of issued Common Stock.
1.27 "Stock Option Committee" means a committee of three
or more members appointed by the Chief Executive Officer of
the Company to administer the Non-Insider Program, each of
whom is ineligible to receive grants or awards under the Non-
Insider Program, and has been ineligible for at least one
year.
1.28 "Subsidiary" means a corporation at least 50% of the
total combined voting power of all classes of stock of which
is owned by the Company, either directly or through one or
more other Subsidiaries.
2. Purpose
The Plan is intended to assist in attracting and
retaining Employees and Directors of outstanding ability and
to promote the identification of their interests with those of
the shareholders of the Company.
3. Administration
The Plan will be administered by the Committee. In
addition to any other powers granted to the Committee, it will
have the following powers, subject to the express provisions
of the Plan:
3.1 to determine in its discretion the Employees to whom
Options will be granted and to whom Restricted Stock will be
awarded, the number of Shares to be subject to each Option or
Restricted Stock award, and the terms upon which Options may
be acquired and exercised and the terms and conditions of
Restricted Stock awards;
3.2 to determine all other terms and provisions of each
Agreement, which need not be identical;
3.3 without limiting the generality of the foregoing, to
provide in its discretion in an Agreement:
(a) for an agreement by the Optionee or Grantee to
render services to the Company or a Subsidiary upon such terms
and conditions as may be specified in the Agreement, provided
that the Committee will not have the power to commit the
Company or any Subsidiary to employ or otherwise retain any
Optionee or Grantee;
(b) for restrictions on the transfer, sale or other
disposition of Shares issued to the Optionee upon the exercise
of an Option and for other restrictions permitted by Article
10 with respect to Restricted Stock;
(c) for an agreement by the Optionee or Grantee to
resell to the Company, under specified conditions, Shares
issued upon the exercise of an Option or awarded as Restricted
Stock; and
(d) for the payment of the Option Price upon the
exercise by an Employee of an Option otherwise than in cash,
including without limitation by delivery (including
constructive delivery) of shares of Common Stock (other than
Restricted Stock) valued at Fair Market Value on the Date of
Exercise of the Option, or a combination of cash and shares of
Common Stock;
3.4 to construe and interpret the Agreements and the
Plan;
3.5 to require, whether or not provided for in the
pertinent Agreement, of any person exercising an Option or
acquiring Restricted Stock, at the time of such exercise or
acquisition, the making of any representations or agreements
that the Committee may deem necessary or advisable in order to
comply with the securities laws of the United States or of any
state;
3.6 to provide for satisfaction of an Optionee's or
Grantee's tax liabilities arising in connection with the Plan
through, without limitation, retention by the Company of
shares of Common Stock otherwise issuable on the exercise of
an Option or through delivery of Common Stock to the Company
by the Optionee or Grantee under such terms and conditions as
the Committee deems appropriate; and
3.7 to make all other determinations and take all other
actions necessary or advisable for the administration of the
Plan.
Any determinations or actions made or taken by the Committee
pursuant to this Article shall be binding and final.
4. Eligibility
Options and Restricted Stock may be granted or awarded only to
Employees and Directors. A non-Employee Director (i) who
directly holds fewer than 1,000 Shares of Common Stock at the
time of a grant may not participate in the Plan, (ii) may not
receive Restricted Stock, and (iii) may not receive Options
except in accordance with Article 6. In no event may any
participant receive awards and grants covering more than
300,000 Shares in the aggregate under this Plan.
5. Stock Subject to the Plan
5.1 The maximum number of Shares that may be issued
under the Plan is 10,000,000 Shares. The maximum number of
Shares that may be awarded as Restricted Stock under the Plan
is 500,000. In addition to the decisions that it makes in
administering the Insider Program, annually the Committee for
the Insider Program will approve the number of Shares that may
be granted under the Non-Insider Program for that fiscal year.
5.2 If an Option expires or terminates for any reason
without having been fully exercised or if Shares of Restricted
Stock are forfeited, the unissued or forfeited Shares that had
been subject to the Agreement relating thereto will become
available for the grant of other Options or for the award of
additional Restricted Stock.
6. Special Conditions to Outside Director Program
6.1 The Outside Director Program is a formula plan under
which Directors, excluding Employee Directors, will be granted
Options, but only in accordance with the provisions set forth
in this Article 6. For purposes of this Article 6 only, the
term Director excludes any member of the Board who does not
at the time of the relevant grant then own a minimum of 1,000
Shares of Common Stock and also excludes Employee Directors.
6.2 Options will be granted to Directors as follows:
(a) Subject to approval of this Plan by
shareholders, on May 15, 1997 each Director will be granted an
Option to purchase 2,000 Shares at an Option Price equal to
the Fair Market Value of the Shares on that date, which date
will be the Date of Grant;
(b) In fiscal year 1998 and fiscal year 1999, on
the date of the Annual Meeting of Shareholders, each Director
will be granted an Option to purchase 2,000 Shares at an
Option Price equal to the Fair Market Value of the Shares on
that date, which date will be the Date of Grant; and
(c) Options granted under this Article 6 will vest
in 400 share amounts on each of the five annual anniversary
dates of the Date of Grant and may be exercised by the
Optionee at any time after vesting and prior to the
termination of the Option. Those options terminate one year
from the date on which the Optionee ceases to be a member of
the Board (for all reasons other than retirement) or 10 years
from the Date of Grant, whichever first occurs. Options
granted hereunder are not transferable other than by will or
the laws of descent and distribution. Exercise of those
Options may be made only in writing delivered to the Company
accompanied by payment of the Option Price.
6.3 If on any Date of Grant there is an insufficient
number of Shares available for a grant, the number of Shares
subject to such grant will be reduced to the greatest whole
number of Shares arrived at by dividing the remaining Shares
available for the grant by the number of Directors eligible
for the grant.
7. Options
7.1 The Committee is authorized to grant Options to
Employees, including Employee Directors. Options also may be
granted to Directors, excluding Employee Directors, only
pursuant to Article 6.
7.2 The Option Period for Options granted to Employees,
including Employee Directors, will be determined by the
Committee and specifically set forth in the Agreement. No
Option will be exercisable before six months after the Date of
Grant (except that this limitation need not apply in the event
of the death or disability of the Optionee within the six-
month period) or after ten years from the Date of Grant.
7.3 The maximum number of Shares of Common Stock with
respect to which Options may be granted to any Employee under
this Plan during its term is 300,000 Shares. In no event will
the Option Price of an Option be less than the Fair Market
Value of a Share of Common Stock at the time of the grant.
7.4 All other terms of Options granted under the Plan
will be determined by the Committee in its sole discretion.
8. Exercise
An Option may, subject to the provisions of the Agreement
under which it was granted, be exercised in whole or in part
by the delivery to the Company of written notice of the
exercise, in such form as the Committee may prescribe,
accompanied, in the case of an Option, by (i) full payment for
the Shares with respect to which the Option is exercised, or
(ii) irrevocable instructions to a broker selected by the
Committee to consummate "cashless" exercises to deliver
promptly to the Company cash equal to full payment for the
Shares for which the Option is exercised.
9. Non-transferability
Unless otherwise provided in the Agreement respecting the
grant, Options granted under the Plan will not be transferable
otherwise than by will or the laws of descent and
distribution, and an Option may be exercised during his or
her lifetime only by the Optionee or, in the event of his or
her legal disability, by his or her legal representative.
10. Restricted Stock Awards
10.1 The Committee is hereby authorized to award Shares
of Restricted Stock to Employees, including Employee
Directors.
10.2 Restricted Stock awards under the Plan will consist
of Shares that are restricted against transfer, subject to
forfeiture, and subject to such other terms and conditions
intended to further the purposes of the Plan as may be
determined by the Committee. The terms and conditions may
provide, in the discretion of the Committee, for the vesting
of awards to be contingent upon the achievement of one or more
Performance Goals.
10.3 Restricted Stock awards will be evidenced by
Agreements containing provisions setting forth the terms and
conditions governing the awards. Each agreement will contain
the following:
(a) prohibitions against the sale, assignment,
transfer, exchange, pledge, hypothecation, or other
encumbrance of (i) the Shares awarded as Restricted Stock
under the Plan, (ii) the right to vote the Shares, or (iii)
the right to receive dividends thereon in each case during the
restriction period applicable to the Shares; provided,
however, that the Grantee shall have all the other rights of a
shareholder including, but not limited to, the right to
receive dividends and the right to vote the Shares;
(b) at least one term, condition or restriction
constituting a "substantial risk of forfeiture" as defined in
Section 83(c) of the Code;
(c) such other terms, conditions and restrictions
as the Committee in its discretion may specify (including,
without limitation, provisions creating additional substantial
risks of forfeiture);
(d) a requirement that each certificate
representing Shares of Restricted Stock must be deposited with
the Company, or its designee, and will bear the following
legend:
"This certificate and the shares of stock
represented hereby are subject to the terms and
conditions (including the risks of forfeiture and
restrictions against transfer) contained in THE KROGER
CO. 1997 Long-Term Incentive Plan and an Agreement
entered into between the registered owner and The
Kroger Co. Release from such terms and conditions
shall be made only in accordance with the provisions of
the Plan and the Agreement, a copy of each of which is
on file in the office of the Secretary of The Kroger
Co."
(e) the applicable period or periods of any terms,
conditions or restrictions applicable to the Restricted Stock,
provided, however, that the Committee in its discretion may
accelerate the expiration of the applicable restriction period
with respect to any part or all of the Shares awarded to a
Grantee; and
(f) the terms and conditions upon which any
restrictions upon Shares of Restricted Stock awarded under the
Plan will lapse and new certificates free of the foregoing
legend will be issued to the Grantee or his or her legal
representative.
10.4 The Committee may include in an Agreement a
requirement that in the event of a Grantee's termination of
employment for any reason prior to the lapse of restrictions,
all Shares of Restricted Stock shall be forfeited by the
Grantee to the Company without payment of any consideration by
the Company, and neither the Grantee nor any successors,
heirs, assigns or personal representatives of the Grantee will
thereafter have any further rights or interest in the Shares
or certificates.
10.5 The maximum number of Shares of Restricted Stock
that may be awarded to any Employee under this Plan during its
term is 300,000 Shares.
11. Capital Adjustments
The number and class of Shares subject to each outstanding
Option or Restricted Stock award, the Option Price and the
aggregate number and class of Shares for which grants or
awards thereafter may be made, including Options granted under
Article 6, will be subject to such adjustment, if any, as the
Committee in its sole discretion deems appropriate to reflect
such events as stock dividends, stock splits, adoption of
stock rights plans, recapitalizations, mergers, consolidations
or reorganizations of or by the Company.
12. Termination or Amendment
The Board may amend or terminate this Plan in any respect at
any time. Board approval must be accompanied by (i)
shareholder approval in those cases in which amendment
requires shareholder approval under applicable law or
regulations or the requirements of the principal exchange or
interdealer quotation system on which the Common Stock is
listed or quoted, and (ii) affected Optionee or Grantee
approval if the amendment or termination would adversely
affect the holder's rights under any outstanding grants or
awards.
13. Effectiveness of the Plan
The Plan and any amendments requiring shareholder approval
pursuant to Article 12 are subject to approval by vote of the
shareholders of the Company within 12 months after their
adoption by the Board. Subject to that approval, the Plan and
any amendments are effective on the date on which they are
adopted by the Board. Options and Restricted Stock may be
granted or awarded prior to shareholder approval of the Plan
or amendments, but each such Option or Restricted Stock grant
or award are made subject to the approval of the Plan or
amendments by the shareholders. The date on which any Option
or Restricted Stock granted or awarded prior to shareholder
approval of the Plan or amendment is granted or awarded will
be the Date of Grant for all purposes as if the Option or
Restricted Stock had not been subject to approval. No Option
may be exercised prior to shareholder approval, and any
Restricted Stock awarded will be forfeited if shareholder
approval is not obtained.
14. Term of the Plan
Unless sooner terminated by the Board pursuant to Article 12,
the Plan will terminate on the date ten years after its
adoption by the Board, and no Options or Restricted Stock may
be granted or awarded after termination. The termination will
not affect the validity of any Option or Restricted Stock
outstanding on the date of termination.
15. Indemnification of Committee
In addition to any other rights of indemnification as they may
have as Directors or as members of the Committee, the members
of the Committee will be indemnified by the Company against
the reasonable expenses, including attorneys' fees, actually
and reasonably incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection
with the Plan or any Option or Restricted Stock granted or
awarded hereunder, and against all amounts reasonably paid by
them in settlement thereof or paid by them in satisfaction of
a judgment in any such action, suit or proceeding, if such
members acted in good faith and in a manner which they
believed to be in, and not opposed to, the best interests of
the Company.
16. General Provisions
16.1 The establishment of the Plan does not confer upon
any Employee or Director any legal or equitable right against
the Company, any Subsidiary or the Committee, except as
expressly provided in the Plan.
16.2 The Plan does not constitute inducement or
consideration for the employment of any Employee or the
service of any Director, nor is it a contract between the
Company or any Subsidiary and any Employee or Director.
Participation in the Plan, or the receipt of a grant or award
hereunder, does not give an Employee or Director any right to
be retained in the service of the Company or any Subsidiary.
16.3 The Company and its Subsidiaries may assume options,
warrants, or rights to purchase stock issued or granted by
other corporations whose stock or assets are acquired by the
Company or its Subsidiaries, or which is merged into or
consolidated with the Company. The terms and conditions of
assumed options may vary from the terms and conditions
contained in this Plan, to the extent determined by the
Committee. Assumed options will not be counted toward the
limit specified in Section 7.3 unless the Committee determines
that application of the limit is necessary for the grants of
Options to qualify as "performance-based compensation" under
Section 162(m) of the Code. Neither the adoption of this
Plan, nor its submission to the shareholders, may be taken to
impose any limitations on the powers of the Company or its
affiliates to issue, grant, or assume options, warrants,
rights, or restricted stock, otherwise than under this Plan,
or to adopt other long-term incentive plans or to impose any
requirement of shareholder approval upon the same.
16.4 The interests of any Employee or Director under the
Plan are not subject to the claims of creditors and may not,
in any way, be assigned, alienated or encumbered except as
provided in Article 9.
16.5 The Plan will be governed, construed and
administered in accordance with the laws of Ohio.
<PAGE>
THE KROGER CO.
Cincinnati, Ohio 45202
Paul W. Heldman
Vice President, Secretary
and General Counsel
May 15, 1997
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 10,000,000 shares of
its Common Stock (the "Securities") pursuant to The Kroger Co.
1997 Long-Term Incentive Plan (the "Plan"). I have acted as
counsel to the Company in connection with its preparation of a
Registration Statement relating to that issuance on Form S-8
to be filed by the Company with the Securities and Exchange
Commission for the registration of the Securities under the
Securities Act of 1933, as amended. I have examined the
above-mentioned documents, the Amended Articles of
Incorporation and Regulations of the Company, the corporate
minutes of the proceedings of the directors and shareholders
of the Company, and all other records and documents of the
Company as I have deemed necessary in order to express the
opinions hereinafter set forth.
Based upon the foregoing, and assuming compliance with
applicable federal and state securities laws, I am of the
opinion that when the Securities are issued pursuant to the
Plan, they will be duly authorized, validly issued and
outstanding, fully paid and non-assessable.
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 as having passed upon the legality of
the Securities offered thereby on behalf of the Company.
Very truly yours,
(Paul Heldman)
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
registration statement of The Kroger Co. on Form S-8 of our
report dated January 22, 1997, on our audits of the
consolidated financial statements of The Kroger Co. as of
December 28, 1996, and December 30, 1995, and for the years
ended December 28, 1996, December 30, 1995, and December 31,
1994, which report is included in the Company's Annual Report
on Form 10-K for the fiscal year ended December 28, 1996. We
also consent to the reference to our firm as "Experts".
(Coopers & Lybrand L.L.P.)
Coopers & Lybrand L.L.P.
Cincinnati, Ohio
May 15, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned
officer of The Kroger Co. (the "Company") hereby constitutes
and appoints Paul W. Heldman and Bruce M. Gack and each of
them (with full power to each of them to act alone) his true
and lawful attorney-in-fact and agent for him and on his
behalf and in his name, place and stead, to sign, execute and
affix his seal thereto and file with the Securities and
Exchange Commission (or any other governmental or regulatory
authority) any of the documents referred to below relating to
the registration under the Securities Act of 1933, as amended,
on Form S-8 or other appropriate form of 10,000,000 shares of
the Common Stock of the Company with respect to the granting,
awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the
Company's 1997 Long-Term Incentive Plan: (a) a registration
statement under the Securities Act of 1933, as amended, with
all exhibits and any and all documents required to be filed
with respect thereto; and (b) any and all amendments thereto
that may be filed from time to time by the Company with all
exhibits and any and all documents required to be filed with
respect thereto; granting unto said attorneys, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully to
all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(Joseph A. Pichler) May 15, 1997
Joseph A. Pichler
Chairman and Chief Executive Officer
and Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned
officer of The Kroger Co. (the "Company") hereby constitutes
and appoints Paul W. Heldman and Bruce M. Gack and each of
them (with full power to each of them to act alone) his true
and lawful attorney-in-fact and agent for him and on his
behalf and in his name, place and stead, to sign, execute and
affix his seal thereto and file with the Securities and
Exchange Commission (or any other governmental or regulatory
authority) any of the documents referred to below relating to
the registration under the Securities Act of 1933, as amended,
on Form S-8 or other appropriate form of 10,000,000 shares of
the Common Stock of the Company with respect to the granting,
awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the
Company's 1997 Long-Term Incentive Plan: (a) a registration
statement under the Securities Act of 1933, as amended, with
all exhibits and any and all documents required to be filed
with respect thereto; and (b) any and all amendments thereto
that may be filed from time to time by the Company with all
exhibits and any and all documents required to be filed with
respect thereto; granting unto said attorneys, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully to
all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(W. Rodney McMullen) May 15, 1997
W. Rodney McMullen
Group Vice President and
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned
officer of The Kroger Co. (the "Company") hereby constitutes
and appoints Paul W. Heldman and Bruce M. Gack and each of
them (with full power to each of them to act alone) his true
and lawful attorney-in-fact and agent for him and on his
behalf and in his name, place and stead, to sign, execute and
affix his seal thereto and file with the Securities and
Exchange Commission (or any other governmental or regulatory
authority) any of the documents referred to below relating to
the registration under the Securities Act of 1933, as amended,
on Form S-8 or other appropriate form of 10,000,000 shares of
the Common Stock of the Company with respect to the granting,
awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the
Company's 1997 Long-Term Incentive Plan: (a) a registration
statement under the Securities Act of 1933, as amended, with
all exhibits and any and all documents required to be filed
with respect thereto; and (b) any and all amendments thereto
that may be filed from time to time by the Company with all
exhibits and any and all documents required to be filed with
respect thereto; granting unto said attorneys, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully to
all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(J. Michael Schlotman) May 15, 1997
J. Michael Schlotman
Vice President and Corporate Controller
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned
officer of The Kroger Co. (the "Company") hereby constitutes
and appoints Paul W. Heldman and Bruce M. Gack and each of
them (with full power to each of them to act alone) his true
and lawful attorney-in-fact and agent for him and on his
behalf and in his name, place and stead, to sign, execute and
affix his seal thereto and file with the Securities and
Exchange Commission (or any other governmental or regulatory
authority) any of the documents referred to below relating to
the registration under the Securities Act of 1933, as amended,
on Form S-8 or other appropriate form of 10,000,000 shares of
the Common Stock of the Company with respect to the granting,
awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the
Company's 1997 Long-Term Incentive Plan: (a) a registration
statement under the Securities Act of 1933, as amended, with
all exhibits and any and all documents required to be filed
with respect thereto; and (b) any and all amendments thereto
that may be filed from time to time by the Company with all
exhibits and any and all documents required to be filed with
respect thereto; granting unto said attorneys, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully to
all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(David B. Dillon) May 15, 1997
David B. Dillon
President, Chief Operating Officer
and Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That each of the
undersigned directors of The Kroger Co. (the "Company") hereby
constitutes and appoints Paul W. Heldman and Bruce M. Gack and
each of them (with full power to each of them to act alone)
his or her true and lawful attorney-in-fact and agent for him
or her and on his or her behalf and in his or her name, place
and stead, to sign, execute and affix his or her seal thereto
and file with the Securities and Exchange Commission (or any
other governmental or regulatory authority) any of the
documents referred to below relating to the registration under
the Securities Act of 1933, as amended, on Form S-8 or other
appropriate form of 10,000,000 of the Common Stock of the
Company with respect to the granting, awarding, or selling of
any stock to the employees and directors of the Company or its
subsidiaries pursuant to the Company's 1997 Long-Term
Incentive Plan: (a) a registration statement under the
Securities Act of 1933, as amended, with all exhibits and any
and all documents required to be filed with respect thereto;
and (b) any and all amendments thereto that may be filed from
time to time by the Company with all exhibits and any and all
documents required to be filed with respect thereto; granting
unto said attorneys, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and
purposes as he or she might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-
fact and agents, or any of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned directors have hereunto
set their hands and seals, as of the 15th day of May, 1997.
(Reuben V. Anderson) (T. Ballard Morton, Jr.)
- --------------------------- ------------------------
(John L. Clendenin) (Thomas H. O'Leary)
- --------------------------- --------------------------
(David B. Dillon) (John D. Ong)
- --------------------------- --------------------------
(Richard W. Dillon) (Katherine D. Ortega)
- --------------------------- --------------------------
(John T. LaMacchia) (Joseph A. Pichler)
- --------------------------- --------------------------
(Edward M. Liddy) (James D. Woods)
- --------------------------- --------------------------
(Clyde R. Moore)
- ---------------------------
<PAGE>
RESOLUTION
------------
RESOLVED, That The Kroger Co. 1997 Long-Term Incentive Plan
(the "Plan"), in substantially the form presented to this
meeting with all changes as the officers of the Company, upon
advice of counsel, may approve, is adopted, subject to
ratification by the holders of a majority of the Company's
Common Stock represented at the Annual Shareholders Meeting to
be held on May 15, 1997; and further
RESOLVED, That upon approval by the shareholders, the Plan
will become effective on May 15, 1997, and the officers of the
Company will be authorized to issue 8,800,000 shares of Common
Stock of the Company pursuant to the Plan; and further
RESOLVED, That the officers of the Company are authorized to
execute a Registration Statement for the Plan on behalf of the
Company on Form S-8 (the "Registration Statement"), for the
purpose of registering the 8,800,000 shares of Common Stock
under the Securities Act of 1933, and to file the Registration
Statement with the Securities and Exchange Commission in the
form approved by the executing officers, with approval
evidenced by the execution thereof; and further
RESOLVED, That the officers of the Company are authorized to
execute in the name and on behalf of the Company, all
amendments to the Registration Statement, as they deem
appropriate, to procure all other necessary signatures thereto
and to file the amendments with the Securities and Exchange
Commission; and further
RESOLVED, That Paul Heldman and Bruce M. Gack, or either one
of them, are appointed the true and lawful attorneys-in-fact,
with authority to sign and execute on behalf of The Kroger
Co., and on behalf of the directors and officers thereof in
their official capacities, the Registration Statement and any
and all amendments thereto, which they in their discretion
deem necessary or advisable to be filed with the Securities
and Exchange Commission; and further
RESOLVED, That Paul Heldman, Vice President, Secretary and
General Counsel of this Company, whose address is 1014 Vine
Street, Cincinnati, Ohio, is designated as the Agent for
Service to be named in the Registration Statement, and
authorized to receive notices and communications, with respect
to the registration under the Securities Act of 1933, as
amended, of the proposed issue of the shares of Common Stock
with all powers consequent upon that designation under the
rules and regulations of the Securities and Exchange
Commission; and further
RESOLVED, That the officers of the Company are authorized to
list the 8,800,000 shares of Common Stock subject to the Plan
with the New York Stock Exchange and to take all actions, and
prepare, execute, and file all documents, including an
indemnity agreement relating to the use of facsimile
signatures in the execution of the shares of Common Stock,
necessary, incidental or convenient to effectuate the listing;
and further
RESOLVED, That for the purpose of executing the shares of
Common Stock the Company hereby adopts and acknowledges the
facsimile signatures of Joseph A. Pichler and Paul Heldman,
its Chairman of the Board, and Secretary, respectively, and
the shares of Common Stock may be executed by the facsimile
signatures hereby adopted until further order of the Board of
Directors, even if either of them may have ceased to hold his
respective office at the time the shares of Common Stock are
delivered; and further
RESOLVED, That the officers of the Company are authorized and
directed, in the name and on behalf of the Company, to take
all action they deem necessary or advisable to register or
qualify the shares of Common Stock for issue, offer, sale or
trade under the Blue Sky or securities laws of any State of
the United States or Province of Canada and in that connection
to execute and deliver all documents required under those
laws, and to take any and all further action which they deem
necessary or advisable in order to maintain registration or
qualification of the shares of Common Stock for as long as
they may deem necessary or as required by law; and further
RESOLVED, That the 1994 Long-Term Incentive Plan, adopted by
this Board at its regular meeting on December 3, 1993, is
amended to terminate all future grants of options under
Article 6 of that Plan; and further
RESOLVED, That the officers of the Company are authorized and
directed in the name and on behalf of the Company to execute,
deliver, and file, as required, all documents necessary or
appropriate to effectuate the purposes and intents of the
foregoing resolutions and the various transactions
contemplated thereby.
<PAGE>
RESOLUTION
WHEREAS, At its regularly scheduled meeting held on February
21, 1997, this Board adopted the 1997 Long-Term Incentive Plan
(the "Plan"); and
WHEREAS, The Board deems it desirable to amend the Plan; now,
therefore,
RESOLVED, That the Plan be and it hereby is amended (i) to
increase the shares authorized to be issued under the Plan to
10,000,000 shares, (ii) to increase the maximum aggregate
grant or award under the Plan to any participant to 300,000
shares, (iii) to increase the number of shares annually
granted to directors under Sections 6.2(b) and 6.2(c) to
2,000, and (iv) to increase the number of those shares vesting
under Section 6.2(c) to 400; and further
RESOLVED, That upon approval by the shareholders, the Plan
will become effective on May 15, 1997, in the form approved by
the Board of Directors, as the Plan may be amended as
permitted in the Plan; and
RESOLVED, That except as modified in these resolutions, the
Plan and the resolutions of February 21, 1997, related to the
Plan, remain unchanged and in full force and effect.
<PAGE>
