As filed with the Securities and Exchange
Commission on September 15, 1997
Registration No. 33-55501
----------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
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.
Employee Stock Purchase Plan and Stock Program
----------------------------------------------
(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)
- -----------------
This Post-Effective Amendment is being filed to merge The
Kroger Co. Employee Stock Purchase Plan, registered under
Registration No. 33-55501, and The Kroger Employee Stock
Program, registered under Registration No. 2-03082, to file
the amended and restated The Kroger Co. Employee Stock
Purchase Plan and Stock Program, and to deregister The Kroger
Employee Stock Program (Registration No. 2-93982).
<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
Post-Effective Amendment No. 1 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati, State of Ohio, on
September 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 September 15, 1997.
Signature Title
- --------- -----
*
- ----------------------- Group Vice President and
W. Rodney McMullen Chief Financial Officer
(principal financial officer)
*
- ----------------------- Vice President and
J. Michael Schlotman Corporate 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 No.
- -----------
Exhibit 4 The Kroger Co. Employee Stock Purchase Plan and
Stock Program.
Exhibit 5 Opinion of Paul W. Heldman, Esquire, regarding
legality.
Exhibit 23.1 Consent of Coopers & Lybrand, L.L.P.,
Independent Certified Public Accountants.
Exhibit 23.2 Consent of Counsel, included in Exhibit 5.
Exhibit 24 Powers of Attorney of certain officers and
directors of Kroger.
Exhibit 99 Subsidiary List.
<PAGE>
EXHIBIT 4
THE KROGER CO.
EMPLOYEE STOCK PURCHASE PLAN AND STOCK PROGRAM
AMENDED AND RESTATED AS OF SEPTEMBER 11, 1997
1. Purpose of the Plan. The purpose of The Kroger Co.
-------------------
Employee Stock Purchase Plan and Stock Program (the "Plan") is
to permit employees of The Kroger Co. (the "Company") and its
subsidiaries and affiliated entities to obtain or enhance a
proprietary interest in the Company by permitting them to make
installment or other purchases of shares of the Company's
Common Stock and, under the stock program component of the
Plan, to permit eligible employees to become shareholders of
the Company on terms to be determined through agreement with
employees, and thus to provide a means for employees to share
in the future success of the Company. Under the stock program
component of the Plan, the Company may offer Common Stock to
employees as a form of compensation, in connection with a
collective-bargaining agreement, or otherwise, as part of an
agreement with employees on wages, work conditions, and other
terms and conditions of employment.
2. Administration. The Plan will be administered by the
--------------
Employee Stock Purchase Plan and Stock Program Committee (the
"Committee") consisting of not less than three members who
will be appointed by, and will serve at the pleasure of, the
Chief Executive Officer of the Company. Each member of the
Committee must be a director or officer of the Company and
will not be eligible to participate in the Plan. Subject to
express provisions of the Plan and to such instructions and
limitations as the Board of Directors of the Company may
establish from time to time, the Committee will have the
authority to prescribe, amend and rescind rules and
regulations relating to the Plan. The Committee may interpret
the Plan and may correct any defect or supply any omission or
reconcile any inconsistency in the Plan to the extent
necessary for the effective operation of the Plan. Any action
taken by the Committee on the matters referred to in this
paragraph will be conclusive. The Committee may appoint Star
Bank, N. A., or any other financial institution, as
Administrator of the Plan and may delegate to the
Administrator responsibility for day-to-day operation of the
Plan. The Committee will oversee the Administrator and may
change the designation of the Administrator.
3. Effective Date of the Plan. The Plan will become
--------------------------
effective on the date determined by the Committee, following
approval by the Board of Directors of the Company.
4. Shares Subject to the Plan. There is hereby reserved for
--------------------------
issuance under this Plan an aggregate of Twenty-Nine Million
(29,000,000) shares of Common Stock, which may be authorized
and unissued shares of Common Stock, previously issued shares
of Common Stock acquired by the Company and held as treasury
shares, or shares acquired through open market or negotiated
purchases, or any combination thereof. Of these shares, an
aggregate of 1,000,000 shares may be issued under the stock
program component of the Plan.
5. Eligibility. Any other employee of the Company, and any
-----------
employee of any subsidiary or affiliated entity of the Company
which from time to time may be designated by the Committee for
inclusion under the Plan, may participate in the Plan.
6. Participation and Payroll Deduction. (a) Except as may
-----------------------------------
be otherwise provided for herein, each employee who is
eligible for and elects to participate in the Plan will be
granted a Periodic Investment Right, for as many full shares
of Common Stock as may be purchased for each participant's
account as determined in the manner set forth in Article 8.
After the Plan has become effective any eligible employee may
elect to participate by completing such forms as are developed
by the Committee in conjunction with the Administrator.
Payroll deductions authorized by a participant will be made at
such time and in such manner as the Committee or the
Administrator may determine. Reports will be furnished to
each participant, from time to time as determined by the
Committee or the Administrator, showing the balance in the
participant's account; (b) participants may, from time to
time, also make contributions to their accounts in the form of
Common Stock; and (c) participants may from time to time make
cash contributions for the purchase of shares of Common Stock
by the Administrator pursuant to such rules as the Committee
may provide.
7. No Interest on Accounts. The payroll deductions of
-----------------------
participants will not bear interest.
8. Purchase Price. The purchase price for a share of Common
--------------
Stock will be equal to 100% of the fair market value of the
Common Stock as determined below. As soon as practicable
after the close of each fiscal period, the funds accumulated
through all payroll deductions will be transferred by the
Company to the Administrator who will use such funds to
purchase shares of Common Stock. The Administrator will
credit each participant's account with the maximum number of
shares and any fractional shares, which results from dividing
the total dollar amount in the participant's account by the
purchase price of the Common Stock. The purchase price will
be the average of the prices of all the shares purchased with
such amounts after the close of each fiscal period. In the
case of shares purchased from the Company, the purchase price
will be the average of the high and low prices of the Common
Stock on the New York Stock Exchange - Composite Transactions
or on any other national stock exchange on the business day
preceding the date of purchase or, if no such sales of Common
Stock are made on such date, on the next preceding date on
which sales of Common Stock were made on the New York Stock
Exchange or on any other national stock exchange. Shares
issued under the stock program component of the Plan will be
valued in the same manner as set forth above and will be
included as compensation on the participant's W-2.
9. Ownership. The Participant may elect to hold the account
---------
only in the name of the Participant or, if so indicated, in
the Participant's name jointly with one other person, with
right of survivorship. Certificates for shares of Common
Stock will not be issued directly to the Participant unless
the Participant withdraws such shares from the Participant's
account pursuant to the procedures to be established by the
Committee in conjunction with the Administrator.
10. Termination or Withdrawal. Participants may terminate
-------------------------
their accounts at any time pursuant to procedures to be
established by the Committee in conjunction with the
Administrator. At that time or from time to time at the
request of the Participant, a Participant will receive
certificates for the shares of Common Stock in the
Participant's account and cash for any fractional shares.
Alternatively, the Participant may request the Administrator
pursuant to procedures to be established by the Committee in
conjunction with the Administrator to sell all or some of the
shares in the Participant's account. In the latter case the
Participant will receive the net proceeds of the sale.
11. Rights as Shareholders. None of the rights or privileges
----------------------
of a shareholder of the Company will exist with respect to
shares of Common Stock purchased under this Plan until the
date as of which the Participant's account is credited by the
Administrator with the shares purchased pursuant to the Plan.
12. Government Regulations. The Company's obligation to
----------------------
issue, sell, or deliver any shares of Common Stock under this
Plan is subject to all applicable laws and regulations and to
the approval of any governmental or regulatory authority
required in connection with the issuance, sale, or delivery of
such shares. The Company will not be required to issue, sell,
or deliver any shares of Common Stock under this Plan prior to
(a) the approval of such shares for listing on the New York
Stock Exchange or any other national stock exchange, and (b)
the completion of any registration or other qualification of
such shares under any state or Federal law or any ruling or
regulation of any governmental or regulatory authority which
the Company in its sole discretion shall determine to be
necessary or advisable.
13. Designation of Subsidiaries for Inclusion in Offerings.
------------------------------------------------------
At any time and from time to time, the Committee may designate
for inclusion in the Plan any corporation or other business
entity which is a subsidiary or an affiliated entity of the
Company.
14. Amendment of the Plan. To the extent permitted by law,
---------------------
the Committee in conjunction with the Administrator may at any
time and from time to time make such changes in the plan and
additions to it as the Committee and the Administrator deems
advisable; provided, however, that neither the Committee nor
the Administrator may make any changes or additions which
would adversely affect rights previously granted under the
Plan or may, without approval of the Board of Directors of the
Company, make any changes or additions which would (a)
increase the aggregate number of shares of Common Stock
subject to the Plan, (b) decrease the purchase price for a
share of Common Stock, or (c) change any of the provisions of
the Plan relating to eligibility for participation.
15. Duration and Termination of the Plan. The Plan shall
------------------------------------
terminate upon the earliest to occur of the following two
events:
(a) The Purchase by or issuance to employees of all
of the shares of Common Stock subject to the Plan; or
(b) The termination of the Plan by the Board of
Directors of the Company.
16. Termination of Non-employee and Inactive Accounts. The
-------------------------------------------------
Committee may establish rules and procedures (a) to determine
which accounts will be deemed inactive and to effect the
termination of inactive accounts of any participant and (b) to
effect the termination of accounts of persons who are no
longer employees of the Company. Upon the termination of any
participant's account pursuant to this Paragraph 16, the
participant will receive a certificate or certificates for the
shares of Common Stock in the participant's account, and cash
for any fractional shares, unless the participant has
requested the sale of his shares pursuant to procedures
established by the Committee. In such latter case, the
participant will receive the net proceeds of sale.
<PAGE>
EXHIBIT 5
THE KROGER CO.
1014 VINE STREET
CINCINNATI, OH 45202
September 11, 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 29,000,000 shares of
its Common Stock (the "Securities") pursuant to The Kroger Co.
Employee Stock Purchase Plan and Stock Program (the "Plan").
I have acted as counsel to the Company in connection with its
preparation of Post-Effective Amendment No. 1 to a
Registration Statement relating to that issuance on Form S-8
to be filed by the Company with the Securities and Exchange
Commission related to the registration of the Securities under
the Securities Act of 1933, as amended. I have examined the
aforementioned 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 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 W. Heldman)
Paul W. Heldman
Vice President, Secretary,
and General Counsel
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment
No. 1 to the registration statement of The Kroger Co. on Form
S-8 (File No. 33-55501) 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.
(Coopers & Lybrand L.L.P.)
Coopers & Lybrand L.L.P.
September 11, 1997
<PAGE>
EXHIBIT 24
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) a Post-Effective Amendment to its Registration
Statement on Form S-8 (Registration No. 33-55501) or other
appropriate form to amend The Kroger Co. Employee Stock
Purchase Plan to include The Kroger Employee Stock Program and
to deregister The Kroger Employee Stock Program (Registration
No. 2-93982); and any and all amendments thereto (including
any amendment or amendments increasing or decreasing the
amount of the securities or changing the securities for which
registration is being sought) which 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) September 11, 1997
- ---------------------
Joseph A. Pichler
Chairman and Chief Executive Officer
& 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) a Post-Effective Amendment to its Registration
Statement on Form S-8 (Registration No. 33-55501) or other
appropriate form to amend The Kroger Co. Employee Stock
Purchase Plan to include The Kroger Employee Stock Program and
to deregister The Kroger Employee Stock Program (Registration
No. 2-93982); and any and all amendments thereto (including
any amendment or amendments increasing or decreasing the
amount of the securities or changing the securities for which
registration is being sought) which 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) September 11, 1997
- ---------------------------
W. Rodney McMullen
Group Vice President &
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) a Post-Effective Amendment to its Registration
Statement on Form S-8 (Registration No. 33-55501) or other
appropriate form to amend The Kroger Co. Employee Stock
Purchase Plan to include The Kroger Employee Stock Program and
to deregister The Kroger Employee Stock Program (Registration
No. 2-93982); and any and all amendments thereto (including
any amendment or amendments increasing or decreasing the
amount of the securities or changing the securities for which
registration is being sought) which 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) September 11, 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) a Post-Effective Amendment to its Registration
Statement on Form S-8 (Registration No. 33-55501) or other
appropriate form to amend The Kroger Co. Employee Stock
Purchase Plan to include The Kroger Employee Stock Program and
to deregister The Kroger Employee Stock Program (Registration
No. 2-93982); and any and all amendments thereto (including
any amendment or amendments increasing or decreasing the
amount of the securities or changing the securities for which
registration is being sought) which 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) September 11, 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, stead,
to sign, execute and affix his seal thereto and file with the
Securities and Exchange Commission (or any other governmental
or regulatory authority) a Post-Effective Amendment to its
Registration Statement on Form S-8 (Registration No. 33-55501)
or other appropriate form to amend The Kroger Co. Employee
Stock Purchase Plan to include The Kroger Employee Stock
Program and to deregister The Kroger Employee Stock Program
(Registration No. 2-93982); and any and all amendments thereto
(including any amendment or amendments increasing or
decreasing the amount of the securities or changing the
securities for which registration is being sought) which 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, the undersigned directors have hereunto
set their hands and seals, as of the 11th day of September,
1997.
(Richard W. Dillon) (David B. Dillon)
- ----------------------- --------------------
(Katherine D. Ortega) (Patricia S. Longe)
- ----------------------- ---------------------
(John L. Clendenin) (Thomas H. O'Leary)
- ----------------------- ---------------------
(T. Ballard Morton, Jr.) (John T. LaMacchia)
- ----------------------- ---------------------
(E. M. Liddy) (James D. Woods)
- ----------------------- ---------------------
(J. D. Ong) (Martha R. Seger)
- ------------------------ ---------------------
(Joseph A. Pichler) (Reuben Anderson)
- ------------------------ ---------------------
(C. R. Moore)
---------------------
<PAGE>
EXHIBIT 99
SUBSIDIARIES OF THE KROGER CO.
Dillon Companies, Inc.
Gateway Freightline, Inc.
The Kroger Co. of Michigan
Thoroughbred Brokerage Company
SUBSIDIARIES OF DILLON COMPANIES, INC.
City Market, Inc.
Dillon Real Estate Co., Inc.
Fry's Food Stores of America, Inc.
Fry's Leasing Company, Inc.
Jackson Ice Cream Co., Inc.
Junior Food Stores of West Florida, Inc.
(d/b/a Tom Thumb Food Stores)
Kwik Shop, Inc.
Loaf 'N Jug, Inc.
Mini Mart, Inc.
Quik Stop Markets, Inc.
Wells Aircraft, Inc.
<PAGE>
