<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 1998.
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
----------------
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
(513) 762-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
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
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLED OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED UNIT (1) PRICE (2) FEE
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities (4)(9)
Preferred Stock
(5)(6)(9)
Depositary Shares (6)(9)
Common Stock, $1 par
value per share
(including Preferred
Stock Purchase
Rights) (7)(9) (3) (3) (3) (3)
Warrants(8)(9)
Total $800,000,000(9) 100% $800,000,000(9) $236,000(11)
</TABLE>
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Footnotes continued on next page.
<PAGE>
(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) Subject to note (10) 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 $800,000,000 less the dollar amount of any securities previously
issued.
(5) Subject to note (10) below, we are registering an indeterminate number of
shares of Preferred Stock.
(6) Subject to note (10) 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.
(7) Subject to note (10) 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.
(8) Subject to note (10) below, we are registering an indeterminate amount and
number of Warrants, representing rights to purchase Debt Securities,
Preferred Stock or Common Stock.
(9) Subject to note (10) 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 or
Warrants, Debt Securities, Preferred Stock or Depositary Shares.
(10) In no event, will the aggregate initial offering price of all securities
exceed $800,000,000 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.
(11) Of this amount, $131,631.73 previously paid relating to 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 ALSO RELATES TO $104,266,000
OF SECURITIES REMAINING AS REGISTERED UNDER REGISTRATION STATEMENT NO. 333-
06763 AND $341,943,251 OF SECURITIES REMAINING AS REGISTERED UNDER
REGISTRATION STATEMENT NO. 33-61563, IN BOTH CASES 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>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAW OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION DATED APRIL 16, 1998
PROSPECTUS
$800,000,000
THE KROGER CO.
SECURITIES
-----------
The Kroger Co., an Ohio corporation (the "Company"), may offer from time to
time (i) its debt securities (the "Debt Securities"), which may be any of
senior secured Debt Securities, senior unsecured Debt Securities, senior
subordinated Debt Securities or subordinated Debt Securities, in each case
consisting of bonds, debentures, notes and/or other evidences of indebtedness,
(ii) shares of its common stock, $1 par value (the "Common Stock"), (iii)
shares of its preferred stock, $100 par value (the "Preferred Stock"), in one
or more series, which may be issued in the form of depositary shares (the
"Depositary Shares"), evidenced by depositary receipts (the "Depositary
Receipts"), and (iv) warrants to purchase Debt Securities, or shares of Common
Stock or Preferred Stock (the "Warrants"), in each case, as will be designated
by the Company at the time of the offering thereof. The Debt Securities, the
Common Stock, the Preferred Stock, the Depositary Shares and the Warrants are
collectively referred to in this Prospectus as the "Securities" and will have
an aggregate initial offering price of up to $800,000,000, or the equivalent
thereof in U.S. dollars if any Securities are denominated in a currency other
than U.S. dollars or in currency units. The Securities may be offered
separately or together (in any combination) and as separate series, in any case
in amounts, at prices and on terms to be determined at the time of sale.
The form in which the Securities are to be issued, their specific title or
designation, authorized denominations, aggregate principal amount or aggregate
initial offering price, maturity, if any, rate or rates (which may be fixed or
variable) (or the manner of calculation thereof) and times of payment of
interest or dividends, if any, redemption, repayment, conversion, exchange and
sinking fund terms, if any, voting or other rights, if any, exercise price and
detachability, if any, additional covenants, if any, and other specific terms
will be set forth in a Prospectus Supplement (including any related terms
sheet) relating to such Securities (the "Prospectus Supplement"), together with
the terms of offering of such Securities. If so specified in the applicable
Prospectus Supplement, Debt Securities of a series may be issued in whole or in
part in the form of one or more temporary or permanent global securities. The
Prospectus Supplement will also contain information, as applicable, about
certain material United States federal income tax considerations relating to
the particular Securities offered thereby. The Prospectus Supplement will also
contain information, where applicable, as to any listing on a national
securities exchange of the Securities covered by such Prospectus Supplement.
The Common Stock is traded on the New York Stock Exchange under the symbol
"KR." On April 15, 1998, the last reported sale price of the Common Stock, as
reported on the New York Stock Exchange Composite Tape, was $45.375 per share.
The Securities may be offered directly to one or more purchasers, through
agents designated from time to time by the Company or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such Securities.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1998.
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES
OFFERED HEREBY, INCLUDING OVER-ALLOTMENT, STABILIZING TRANSACTIONS, SYNDICATE
SHORT COVERING TRANSACTIONS AND PENALTY BIDS. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
----------------
AVAILABLE INFORMATION
The Kroger Co. (together with its consolidated subsidiaries and affiliates,
the "Company") is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed with the Commission can be inspected
and copied at the Commission's public reference facilities at 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices
at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and 7 World Trade Center, New York, New York 10048. Copies
of such material can be obtained by mail from the Commission's Public
Reference Section at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Such reports, proxy statements and other information also
can be inspected at the offices of the New York Stock Exchange, Inc. ("NYSE"),
20 Broad Street, New York, New York 10005. The Commission maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements,
and other information regarding registrants that file electronically.
The Company has filed a registration statement on Form S-3 (herein, together
with all amendments and exhibits, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement and the exhibits filed as a part thereof. Statements contained
herein concerning any document filed as an exhibit are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement. Each such statement is
qualified in its entirety by such references.
----------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference in this Prospectus:
1. Annual Report on Form 10-K for the fiscal year ended December 27, 1997.
2. Reports on Form 8-K dated January 22, 1998, February 25, 1998, and April
15, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities will be deemed to be
incorporated herein by reference and to be a part hereof from the respective
dates of filing of such documents.
Any statement contained in a document incorporated or deemed incorporated by
reference herein will be deemed to be modified or superseded for purposes of
this Prospectus and the Registration Statement of which it is a part to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded will not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or such Registration Statement.
2
<PAGE>
The Company will provide without charge to each person, including a
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
documents which are incorporated herein by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to The Kroger Co.,
1014 Vine Street, Cincinnati, Ohio 45202, Attention: Paul W. Heldman, (513)
762-4000.
THE COMPANY
The Company was founded in 1883, incorporated in 1902, and maintains its
principal executive offices in Cincinnati, Ohio. The Company is the nation's
largest supermarket operator measured by total sales for 1997. At December 27,
1997, the Company operated 1,392 supermarkets in 24 states and 697 convenience
stores in 15 states. Additionally the Company had 119 franchised convenience
stores in 4 states. The Company also operates food processing facilities which
enable the Company's stores to offer quality, low-cost private label
perishable and non-perishable products, and an efficient warehouse and
distribution system which supplies products to its stores.
USE OF PROCEEDS
The Company will apply the net proceeds from the sale of the Securities to
repay amounts outstanding under its revolving credit facilities. From time to
time, the Company expects to use borrowings under its revolving credit
facilities to repurchase or redeem outstanding indebtedness of the Company, or
for other general corporate purposes.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table presents the consolidated ratio of earnings to fixed
charges for the Company. For purposes of determining the ratio of earnings to
fixed charges, "earnings" includes earnings before tax expense, cumulative
effect of change in accounting for income taxes and extraordinary loss, plus
fixed charges (excluding capitalized interest) and "fixed charges" consists of
interest (including capitalized interest) on all indebtedness, amortization of
deferred financing costs and that portion of rental expense which the Company
believes to be representative of interest.
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
- ------------------------------------------------------------------------------------
DECEMBER 27, DECEMBER 28, DECEMBER 30, DECEMBER 31, JANUARY 1,
1997 1996 1995 1994 1994
(52 WEEKS) (52 WEEKS) (52 WEEKS) (52 WEEKS) (52 WEEKS)
- ------------ ------------ ------------ ------------ ----------
<S> <C> <C> <C> <C>
2.5 2.2 2.0 1.8 1.5
</TABLE>
DESCRIPTION OF DEBT SECURITIES
Offered Debt Securities (as defined below) will constitute either senior or
subordinated debt of the Company and will be issued, in the case of Offered
Debt Securities that will be senior debt ("Senior Debt Securities"), under an
Indenture (the "Senior Indenture"), between the Company and a trustee to be
selected by the Company (the "Senior Trustee"), and, in the case of Offered
Debt Securities that will be subordinated debt ("Subordinated Debt
Securities"), under an Indenture (the "Subordinated Indenture"), between the
Company and a trustee to be selected by the Company (the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures", and the Senior Trustee and the Subordinated Trustee are
hereinafter referred to as the "Trustee". The statements under this caption
relating to the Debt Securities and the Indentures are summaries and do not
purport to be complete. Such summaries make use of terms defined in the
Indentures and are qualified in their entirety by express reference to the
Indentures and the cited provisions thereof, the forms of which are filed as
exhibits to the Registration Statement. For purposes of this description of
the Debt Securities the term "Company" refers only to The Kroger Co. and does
not include The Kroger Co.'s consolidated subsidiaries.
The particular terms of each issue of Debt Securities (the "Offered Debt
Securities"), as well as any modifications or additions to the following
general terms which may be applicable in the case of such Offered Debt
Securities, will be described in the Prospectus Supplement relating to such
Offered
3
<PAGE>
Debt Securities. Accordingly, for a description of the terms of a particular
issue of Offered Debt Securities, reference must be made both to the
Prospectus Supplement relating thereto and the following description.
GENERAL
The Debt Securities will represent general unsecured senior or subordinated
obligations of the Company or, in the case of Offered Debt Securities that are
secured Debt Securities, secured obligations of the Company. The Debt
Securities may be issued in one or more series with the same or various
maturities. Capitalized terms used herein shall have the meanings established
in the Indenture unless otherwise defined herein.
As of the date of this Prospectus, Debt Securities relating to this
Prospectus may be issued from time to time up to an aggregate principal amount
of $800,000,000 or the equivalent thereof. Reference is made to the Prospectus
Supplement for the following terms of the Offered Debt Securities: (i) the
title, aggregate principal amount and authorized denominations of the Offered
Debt Securities; (ii) the percentage of their principal amount at which such
Offered Debt Securities will be issued; (iii) the date or dates on which the
Offered Debt Securities will mature; (iv) the rate or rates (which may be
fixed or variable) per annum, if any, at which the Offered Debt Securities
will bear interest and the date from which such interest may accrue; (v) the
times and places at which principal and any such interest will be payable;
(vi) any redemption or sinking fund provisions; (vii) the currency of payment
of principal of, premium, if any, and interest on the Offered Debt Securities;
(viii) any index or other basis used to determine the amount of payments of
principal of and interest on the Offered Debt Securities; (ix) whether the
Offered Debt Securities of any series will be represented by a single global
note registered in the name of a depositary's nominee and, if so, the
depositary for and the method of transferring beneficial interests in the
global note; (x) whether the Offered Debt Securities will be issuable in
registered form or bearer form or both and, if Offered Debt Securities in
bearer form are issuable, restrictions applicable to the exchange of one form
for another and to the offer, sale and delivery of Offered Debt Securities in
bearer form; (xi) ranking as Subordinated Debt Securities, if applicable, and
the terms of any such subordination; (xii) if the Offered Debt Securities are
secured, the security therefor; and (xiii) any other terms relating to the
Offered Debt Securities not inconsistent with the Indenture, including any
terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Offered Debt
Securities.
Offered Debt Securities may be presented for transfer in the manner, at the
places and subject to the restrictions set forth in the Offered Debt
Securities and the Prospectus Supplement. Such services will be provided
without charge, other than any tax or other governmental charge payable in
connection therewith, but subject to the limitations provided in the
Indentures. Offered Debt Securities in bearer form and the coupons, if any,
appertaining thereto will be transferable by delivery.
The indentures under which certain of the Company's outstanding indebtedness
was issued restrict the Company's ability to redeem, defease or otherwise
acquire the Debt Securities.
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other considerations
applicable thereto will be described in the Prospectus Supplement relating
thereto.
EVENTS OF DEFAULT AND NOTICE THEREOF
The Indentures will define "Events of Default" with respect to any series of
Debt Securities as being any one of the following events and such other events
as may be established for a particular series of Debt Securities: (a) failure
to pay interest on Debt Securities of such series for 30 days after
4
<PAGE>
it becomes due; (b) failure to pay principal (or premium or sinking fund
payment, if any) on Debt Securities of such series when due at maturity, upon
redemption, by declaration or otherwise; (c) failure to perform any other
covenants for 60 days after notice (other than a covenant included in the
Indentures solely for the benefit of Debt Securities of any series other than
such Debt Securities); (d) a default under any indebtedness for borrowed money
in excess of $30,000,000 constituting a failure to pay when due or resulting
in such indebtedness becoming due prior to maturity; (e) certain events of
bankruptcy, insolvency or reorganization; and (f) any other Event of Default
provided with respect to Debt Securities of such series. (Section 501.) No
Event of Default (except an Event of Default described in (c), (d) or (e)
above) with respect to a particular series of Debt Securities issued under the
Indenture necessarily constitutes an Event of Default with respect to any
other series of Debt Securities issued thereunder.
Each Indenture will provide that the Trustee shall, within 90 days after the
occurrence of a default with respect to any series of Debt Securities or all
Debt Securities, give to the holders of such series of Debt Securities or all
Debt Securities, as the case may be, notice of all uncured defaults known to
it (the term "default" to include the events specified above without grace
periods); provided, that except in the case of default in the payment of
principal (or premium or sinking fund payment, if any) or interest on any
series of the Debt Securities, the Trustee shall be protected in withholding
such notice if it in good faith determines that the withholding of such notice
is in the interest of the holders of the Debt Securities of such series.
(Section 602.)
The Company will be required to furnish to the Trustee annually after the
first issue of the Debt Securities under the Indenture a statement of certain
officers of the Company to the effect that to the best of their knowledge the
Company is not in default in the performance and observance of the terms of
the Indenture or, if they have knowledge that the Company is in default,
specifying such default. (Section 1004.)
If an Event of Default described in clause (a) or (b) above with respect to
Debt Securities of any series at the time Outstanding or an Event of Default
specified pursuant to clause (f) with respect to Debt Securities of a
particular series occurs and is continuing, then in every such case, unless
the principal of all such Debt Securities shall have become due and payable,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may in writing to the Company declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities (as defined in the Indenture), such portion of the
principal amount as may be specified in the terms of that series) of all of
the Debt Securities of that series, to be due and payable five business days
after the receipt by the Company and the Administrative Agents of such written
notice. If an Event of Default described in clause (c), (d) or (e) above
occurs and is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of all the Debt Securities then
Outstanding may in writing to the Company declare the principal amount (or, if
any such Debt Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of
all of the Debt Securities to be due and payable five business days after the
receipt by the Company of such written notice; provided, that each of the two
preceding provisions shall not restrict the availability of other rights or
remedies that the Trustee or the Holders may have. However, at any time after
such a declaration of acceleration with respect to Debt Securities of such
series (or of all Outstanding Securities, as the case may be) has been made,
but before the maturity thereof, the Holders of a majority in principal amount
of Outstanding Securities of such series (or of all Outstanding Securities, as
the case may be) may, subject to certain conditions, rescind and annul such
acceleration if all Events of Default, other than the non-payment of
accelerated principal (or specified portion thereof) with respect to Debt
Securities of such series (or of all Outstanding Securities, as the case may
be) have been cured or waived as provided in the Indenture. (Section 502.)
5
<PAGE>
Each Indenture also provides that the Holders of not less than a majority in
principal amount of the Debt Securities of a series (or of all Outstanding
Securities, as the case may be) may, subject to certain limitations, waive
certain defaults. Subject to certain limitations, the Holders of not less than
a majority of the principal amount of the Debt Securities of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. (Sections 512 and 513.) Each Indenture will provide that in case an
Event of Default shall occur (which shall not have been cured or waived), the
Trustee will be required to exercise such of its rights and powers under the
Indenture and to use the degree of care and skill in their exercise that a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs. (Section 601.) Subject to such provisions, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the Holders of the Debt Securities unless
they shall have offered to the Trustee reasonable security or indemnity.
(Section 603.)
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of a portion of the principal
amount of such Original Issue Discount Securities upon the occurrence of an
Event of Default and the continuation thereof.
MODIFICATION OF THE INDENTURE
Each Indenture will provide that with certain exceptions, the Indenture, the
rights and obligations of the Company and the rights of the Holders of the
Debt Securities may be modified by the Company and the Trustee with the
consent of the Holders of not less than 50% in aggregate principal amount of
all series of Debt Securities directly affected by such modification; but no
such modification may be made, without the consent of each Holder of such Debt
Securities affected thereby, which would (i) change the stated maturity of any
Debt Security, or any installment of interest, if any, on any such Debt
Security, or reduce the principal amount thereof, or reduce any premium
payable upon the redemption thereof, or reduce the rate of interest thereon,
or reduce the principal amount payable on acceleration with respect to an
Original Issue Discount Security, or change the place or currency of payment
of principal or any premium or interest on any such Debt Security; (ii) reduce
the above-stated percentage of Debt Securities, the consent of the Holders of
which is required to modify or alter the Indenture; (iii) impair the right to
institute suit for the enforcement of any payment of the principal of, and
premium, if any, and interest on any such Debt Security; (iv) modify the
foregoing requirements except to increase the percentage of outstanding Debt
Securities or to provide that certain other provisions cannot be modified or
waived without the consent of the Holders of all outstanding Debt Securities;
or (v) modify the provisions of the Subordinated Indenture with respect to the
subordination of the Subordinated Debt Securities in a manner adverse to the
Holders of such Debt Securities. (Section 902.) The Company may set a record
date for any Act of the Holders with respect to consenting to any amendment
(Section 104.)
THE TRUSTEES
Each Indenture contains limitations on the right of the Trustee, as a
creditor of the Company, to obtain payment of claims in certain cases, or to
realize on certain property received in respect of any such claim as security
or otherwise. In addition, the Trustee may be deemed to have a conflicting
interest and may be required to resign as Trustee if at the time of a default
under the Indenture it is a creditor of the Company.
As of the date hereof, the Company has not selected a Trustee for either the
Senior Indenture or the Subordinated Indenture.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Prospectus Supplement will contain provisions regarding the ability of
the Company to consolidate or merge with or into, or convey, transfer or lease
its properties or assets to any Person.
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CERTAIN DEFINITIONS
"Indebtedness" means (without duplication), with respect to any Person, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) every obligation of such Person issued or assumed as the
deferred purchase price of property, every conditional sale obligation and
every obligation under any title retention agreement, in each case if on terms
permitting any portion of the purchase price to be paid beyond one year from
the date of purchase (but excluding trade accounts payable arising in the
ordinary course of business which are not overdue by more than 90 days or
which are being contested in good faith), (iv) every obligation of such Person
issued or contracted for as payment in consideration of the purchase by such
Person or an Affiliate of such Person of the stock or substantially all of the
assets of another Person or a merger or consolidation to which such Person or
an Affiliate of such Person was a party, (v) every obligation of the type
referred to in clauses (i) through (iv) of other Persons and all dividends of
other Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, and (vi) every obligation of the type referred to in clauses (i)
through (v) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured. "Indebtedness,"
however, does not include any obligation of any Person under any interest rate
swap, cap, collar or similar arrangement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
If Subordinated Debt Securities are issued, a Prospectus Supplement relating
thereto will describe the terms whereby such Subordinated Debt Securities will
be made subordinate and subject in right of payment to the prior payment in
full of senior indebtedness of the Company, and such description will include
a definition of what constitutes "senior indebtedness" of the Company.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 350,000,000 shares
of Common Stock, par value $1 per share, and 5,000,000 shares of cumulative
preferred stock, par value $100 per share. As of March 17, 1998, 255,664,563
shares of Common Stock were issued and outstanding. No shares of preferred
stock are outstanding.
COMMON STOCK
All of the outstanding shares of Common Stock are, and the shares of Common
Stock issuable hereunder will be when issued, fully paid and nonassessable.
Subject to the rights of the holders of any shares of preferred stock that may
be issued in the future, the holders of Common Stock (i) are entitled to such
dividends as the Board of Directors in its discretion may validly declare,
(ii) in the event of liquidation, will share ratably in the net assets of the
Company, and (iii) are entitled to cast one vote per share except that they
are entitled to cumulative votes for the election of directors. The Common
Stock has no conversion rights, nor are there any preemptive, subscription,
redemption or call provisions applicable to the Common Stock.
TRANSFER AGENT
The Bank of New York is the transfer agent and registrar for the Company's
Common Stock.
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PREFERRED STOCK
General
The Company may issue, from time to time, shares of one or more series of
Preferred Stock.
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. The particular terms of any series of
Preferred Stock offered by any Prospectus Supplement and the extent, if any,
to which such general provisions may apply to the series of Preferred Stock so
offered will be described in a Prospectus Supplement relating to such
Preferred Stock. The following summary of certain provisions of the Preferred
Stock does not purport to be complete and is subject to, and is qualified in
its entirety by express reference to, the provisions of the Company's Amended
Articles of Incorporation, as amended (the "Articles of Incorporation"), and
each Certificate of Designation relating to a specific series of the Preferred
Stock (each, a "Certificate of Designation"), which will be in the form filed
as an exhibit to, or incorporated by reference in, the Registration Statement
at or prior to the time of issuance of such series of Preferred Stock.
Pursuant to the Articles of Incorporation, the Company has the authority to
issue 5,000,000 shares of voting cumulative Preferred Stock. As of the date of
this Prospectus, 2,000,000 shares were available for issuance. Of these
amounts, 50,000 shares have been designated Series A Preferred Shares, for
issuance pursuant to Preferred Stock Purchase Rights issued under the
Company's warrant dividend plan. The Board of Directors of the Company is
authorized to issue shares of Preferred Stock, in one or more series, and to
fix for each such series relative, participating, optional or other special
rights and such qualifications, limitations or restrictions, as are permitted
by the Ohio Revised Code.
The Board of Directors of the Company is authorized to determine for each
series of Preferred Stock, and the Prospectus Supplement will set forth with
respect to such series, the following: (i) the designation and number of
shares of such series, (ii) the dividend rate of such series, (iii) the dates
of payment of dividends on shares of such series and the dates from which they
are cumulative, (iv) the redemption rights of the Company with respect to
shares of such series and the price or prices at which shares of such series
may be redeemed, (v) the amount or amounts payable to holders of shares of
such series on any voluntary or involuntary liquidation, dissolution or
winding up of the Company, which may be different for voluntary and
involuntary liquidation, dissolution, or winding up, (vi) the amount of the
sinking fund, if any, to be applied to the purchase or redemption of shares of
such series and the manner of its application, (vii) whether or not the shares
of such series will be made convertible into, or exchangeable for, shares of
any other class or classes or of any other series of the same class of stock
of the Company, and if made so convertible or exchangeable, the conversion
price or prices, or the rates of exchange, and the adjustments, if any, at
which such conversion or exchange may be made, and (viii) whether or not the
issue of any additional shares of such series or any future series in addition
to such series or any other class of stock will be subject to any restrictions
and, if so, the nature of such restrictions.
Dividends
Holders of shares of Preferred Stock will be entitled to receive, when and
as declared by the Board of Directors of the Company out of funds of the
Company legally available therefor, cash dividends payable on such dates and
at such rates, if any, per share as set forth in the applicable Prospectus
Supplement.
Unless otherwise set forth in the applicable Prospectus Supplement, each
series of Preferred Stock will rank equally to any other series of Preferred
Stock. If at any time the Company has failed to pay accrued dividends on any
senior series at the time dividends are payable on a junior series, the
Company may not pay any dividend on such junior series of Preferred Stock or
redeem or otherwise
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repurchase shares of such junior series of Preferred Stock until such
accumulated but unpaid dividends on the senior series have been paid or set
aside for payment in full by the Company. As of the date of this Prospectus,
the Company's Articles of Incorporation provide that all shares of Preferred
Stock will rank equally.
Unless otherwise set forth in the applicable Prospectus Supplement, no
dividends (other than in Common Stock or other capital stock ranking junior to
the Preferred Stock of any series as to dividends and upon liquidation) will
be declared or paid or set aside for payment, nor will any other distribution
be declared or made upon the Common Stock, or any other capital stock of the
Company ranking junior to or on a parity with the Preferred Stock of such
series as to dividends, nor will any Common Stock or any other capital stock
of the Company ranking junior to or on a parity with the Preferred Stock of
such series as to dividends be redeemed, purchased or otherwise acquired for
any consideration (or any monies be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Company
(except by conversion into or exchange for other capital stock of the Company
ranking junior to the Preferred Stock of such series as to dividends) unless,
full cumulative dividends on the Preferred Stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for all past dividend periods and the then
current dividend period; provided, however, that any monies theretofore
deposited in any sinking fund with respect to any Preferred Stock of the
Company in compliance with the provisions of such sinking fund may thereafter
be applied to the purchase or redemption of such Preferred Stock in accordance
with the terms of such sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the Preferred Stock
outstanding on the last dividend payment date have been paid or declared and
set apart for payment; and provided, further, that any such junior or parity
Preferred Stock of the Company or Common Stock of the Company may be converted
into or exchanged for stock of the Company ranking junior to the series of
Preferred Stock then senior to such junior or parity Preferred Stock as to
dividends.
The amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period will be computed on the basis of a
360-day year of twelve 30-day months. Accrued but unpaid dividends will not
bear interest.
Convertibility
No series of Preferred Stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the applicable Prospectus
Supplement.
Redemption and Sinking Fund
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the applicable Prospectus Supplement.
Liquidation Rights
Unless otherwise set forth in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding-up of the Company, the
holders of shares of each series of Preferred Stock are entitled to receive
out of assets of the Company available for distribution to stockholders,
before any distribution of assets is made to holders of: (i) any other shares
of Preferred Stock of the Company ranking junior to such series of Preferred
Stock as to rights upon liquidation, dissolution or winding-up; or (ii) shares
of Common Stock, liquidating distributions per share in the amount of the
liquidation preference specified in the applicable Prospectus Supplement for
such series of Preferred Stock plus any dividends accrued and accumulated but
unpaid to the date of final distribution, but, in either case, the holders of
each series of Preferred Stock will not be entitled to receive the liquidating
distribution of, plus such dividends on, such shares until the liquidation
preference of any shares of the Company's capital stock ranking senior to such
series of the Preferred Stock as to the rights upon
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liquidation, dissolution or winding-up have been paid (or a sum set aside
therefor sufficient to provide for payment) in full. If upon any liquidation,
dissolution or winding-up of the Company, funds available for such purpose are
insufficient to pay in full the amounts payable with respect to any series of
the Preferred Stock, and any other Preferred Stock ranking as to any such
distribution on a parity with such series of the Preferred Stock, the holders
of such series of the Preferred Stock of the Company and such other parity
Preferred Stock will share ratably in any such distribution of assets in
proportion to the full respective preferential amounts to which they are
entitled. Unless otherwise specified in a Prospectus Supplement for a series
of Preferred Stock, after payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of Preferred
Stock will not be entitled to any further participation in any distribution of
assets by the Company. Neither a consolidation or merger of the Company with
another corporation nor a sale of securities will be considered a liquidation,
dissolution or winding-up of the Company.
Voting Rights
Holders of Preferred Stock will be entitled to one vote per share held,
unless otherwise set forth in the applicable Prospectus Supplement, or as
otherwise from time to time required by law.
Miscellaneous
The holders of Preferred Stock will have no preemptive rights. The Preferred
Stock, upon issuance against full payment of the purchase price therefor, will
be fully paid and nonassessable. There are no restrictions on repurchase or
redemption of the Preferred Stock on account of any arrearage on sinking fund
installments except as may be set forth in an applicable Prospectus
Supplement. Payment of dividends on any series of Preferred Stock may be
restricted by loan agreements, indentures or other agreements entered into by
the Company. The accompanying Prospectus Supplement will describe any material
contractual restrictions on dividend payments. Such Prospectus Supplement also
will describe any material United States federal income tax considerations
applicable to the Preferred Stock.
No Other Rights
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the applicable Prospectus Supplement, the
Articles of Incorporation or the applicable Certificate of Designation, or as
otherwise required by law.
Transfer Agent and Registrar
The transfer agent and registrar for each series of Preferred Stock will be
designated in the applicable Prospectus Supplement.
PREFERRED STOCK PURCHASE RIGHTS
On February 28, 1986, the Company adopted a warrant dividend plan providing
for stock purchase rights to owners of the Company's common stock. The Plan
was amended and restated as of April 4, 1997. Each right, when exercisable,
entitles the holder to purchase from the Company one ten-thousandth of a share
of Series A Preferred Shares, par value $100 per share, at $87.50 per 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 the
Company's common stock or ten business days following a tender offer or
exchange offer resulting in a person or group having beneficial ownership of
10% or
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more of the Company's common stock. In the event the rights become exercisable
and thereafter the Company is acquired in a merger or other business
combination, each right will entitle the holder to purchase common stock of
the surviving corporation, for the exercise price, having a market value of
twice the exercise price of the right. Under certain other circumstances,
including certain acquisitions of the Company in a merger or other business
combination transaction, or if 50% or more of the Company's assets or earning
power are sold under certain 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 two times the exercise price. At the
Company's option, the rights, prior to becoming exercisable, are redeemable in
their entirety at a price of $.01 per right. The rights are subject to
adjustment and expire March 19, 2006. This summary description of the Plan is
qualified in its entirety by the terms of the plan more particularly set forth
in the Company's Form 8-A/A dated
April 4, 1997.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may, at its option, elect to offer fractional shares of the
Preferred Stock of a series, rather than full shares of the Preferred Stock of
such series. In the event such option is exercised, the Company will issue
Depositary Receipts for Depositary Shares, each of which will represent a
fraction (to be set forth in the Prospectus Supplement relating to a
particular series of Preferred Stock) of a share of a particular series of
Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") among
the Company, a depositary to be named in the applicable Prospectus Supplement
(the "Preferred Stock Depositary") and the holders from time to time of
Depositary Receipts issued thereunder. Subject to the terms of the Deposit
Agreement, each holder of a Depositary Share will be entitled, in proportion
to the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption, subscription and
liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement to those persons purchasing Depositary
Shares.
The following description of the terms of the Depositary Shares sets forth
certain general terms and provisions of the Depositary Shares to which any
Prospectus Supplement may relate. The particular terms of the Depositary
Shares offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may apply to the Depositary Shares so offered will be
described in a Prospectus Supplement relating to such Depositary Shares. The
forms of Deposit Agreement and Depositary Receipt will be filed with the
Commission as exhibits to a document incorporated by reference in the
Registration Statement prior to the date of any Prospectus Supplement relating
to an offering of the Depositary Shares.
Immediately following the issuance of fractional shares of a series of
Preferred Stock by the Company, the Company will deposit such shares with the
Preferred Stock Depositary, which will then issue and deliver the Depositary
Receipts to the purchasers thereof. Depositary Receipts will only be issued
evidencing whole Depositary Shares. A Depositary Receipt may evidence any
number of whole Depositary Shares.
Pending the preparation of definitive engraved Depositary Receipts, the
Preferred Stock Depositary may, upon the written order of the Company, issue
temporary Depositary Receipts substantially identical to (and entitling the
holders thereof to all the rights pertaining to) the definitive Depositary
Receipts but not in definitive form. Definitive Depositary Receipts will be
prepared thereafter without unreasonable delay, and such temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Company's expense.
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The following summary of certain provisions which will be included in the
Deposit Agreement with respect to the Depositary Shares does not purport to be
complete and is subject to, and is qualified in its entirety by express
reference to, all the provisions of the Deposit Agreement, including the
definitions therein of certain terms.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock represented by
the Depositary Shares to the record holders of the Depositary Shares in
proportion to the number of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto in proportion to the number of Depositary
Shares owned by such holders, unless the Preferred Stock Depositary determines
that such distribution cannot be made proportionately among such holders or
that it is not feasible to make such distributions, in which case the
Preferred Stock Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or other property thus received, or any part thereof, at such place or places
and upon such terms as it may deem proper.
The amount distributed in any of the foregoing cases will be reduced by any
amounts required to be withheld by the Company or the Preferred Stock
Depositary on account of taxes or other governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Preferred Stock Depositary resulting from any
redemption, in whole or in part, of such series of the Preferred Stock held by
the Preferred Stock Depositary. The redemption price per Depositary Share will
be the fraction of the redemption price per share payable with respect to such
series of the Preferred Stock equal to the fraction of a share of such
Preferred Stock represented by a Depositary Share. If the Company redeems
shares of a series of Preferred Stock held by the Preferred Stock Depositary,
the Preferred Stock Depositary will redeem as of the same redemption date the
number of Depositary Shares representing the shares of Preferred Stock so
redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or substantially
equivalent method determined by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
monies payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption, upon
surrender to the Preferred Stock Depositary of the Depositary Receipts
evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
the Preferred Stock are entitled to vote, the Preferred Stock Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such series of Preferred Stock. Each
record holder of such Depositary Shares on the record date (which will be the
same date as the
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record date for the related series of Preferred Stock) will be entitled to
instruct the Preferred Stock Depositary as to the exercise of the voting
rights pertaining to the number of shares of the series of Preferred Stock
represented by such holder's Depositary Shares. The Preferred Stock Depositary
will endeavor, insofar as practicable, to vote or cause to be voted the number
of shares of the Preferred Stock represented by such Depositary Shares in
accordance with such instructions, provided the Preferred Stock Depositary
receives such instructions sufficiently in advance of such meeting to enable
it to so vote or cause to be voted the shares of Preferred Stock, and the
Company will agree to take all reasonable action that may be deemed necessary
by the Preferred Stock Depositary in order to enable the Preferred Stock
Depositary to do so. The Preferred Stock Depositary will abstain from voting
shares of the Preferred Stock represented by Depositary Shares to the extent
it does not receive specific instructions from the holders of Depositary
Shares representing such Preferred Stock.
WITHDRAWAL OF STOCK
Upon a holder's surrender of Depositary Receipts at the corporate trust
office of the Preferred Stock Depositary and upon such holder's payment of the
taxes, charges and fees provided for in the Deposit Agreement and subject to
the terms thereof, the holder of the Depositary Shares evidenced thereby will
be entitled to delivery at such office, to or upon his or her order, of the
number of whole shares of the related series of Preferred Stock and any money
or other property, if any, represented by such Depositary Shares.
Holders of Depositary Shares will be entitled to receive whole shares of the
related series of Preferred Stock, but holders of such whole shares of
Preferred Stock will not thereafter be entitled to deposit such shares of
Preferred Stock with the Preferred Stock Depositary or to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the holders evidence
a number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of the related series of Preferred
Stock to be withdrawn, the Preferred Stock Depositary will deliver to such
holder or upon such holder's order at the same time a new Depositary Receipt
evidencing such excess number of Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Preferred Stock Depositary.
However, any amendment that materially adversely alters the rights of the
holders of Depositary Shares will not be effective unless such amendment has
been approved by the holders of a majority of the Depositary Shares then
outstanding. Every holder of a Depositary Receipt at the time such amendment
becomes effective will be deemed, by continuing to hold such Depositary
Receipt, to be bound by the Deposit Agreement as so amended. Notwithstanding
the foregoing, in no event may any amendment impair the right of any holder of
any Depositary Shares, upon surrender of the Depositary Receipts evidencing
such Depositary Shares and subject to any conditions specified in the Deposit
Agreement, to receive shares of the related series of Preferred Stock and any
money or other property represented thereby, except in order to comply with
mandatory provisions of applicable law. The Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior
written notice to the Preferred Stock Depositary, in which case, on a date
that is not later than 30 days after the date of such notice, the Preferred
Stock Depositary will deliver or make available for delivery to holders of
Depositary Shares, upon surrender of the Depositary Receipts evidencing such
Depositary Shares, such number of whole or fractional shares of the related
series of Preferred Stock as are represented by such Depositary Shares. The
Deposit Agreement will automatically terminate after all outstanding
Depositary Shares have been redeemed or there has been a final distribution in
respect of the related series of Preferred Stock in connection with any
liquidation, dissolution or winding-up of the Company and such distribution
has been distributed to the holders of Depositary Shares.
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CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and the governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay the charges of the Preferred Stock Depositary, including
charges in connection with the initial deposit of any series of Preferred
Stock represented by Depositary Shares and the initial issuance of the
Depositary Shares and all withdrawals of shares of the related series of
Preferred Stock, except that holders of Depositary Shares will pay other
transfer and other taxes and governmental charges and such other charges as
are expressly provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company written notice of its election to do so, and the Company may at any
time remove the Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary, which
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and 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 $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to the holders of Depositary
Shares all reports and communications from the Company that are delivered to
the Preferred Stock Depositary and which the Company is required to furnish to
the holders of the Preferred Stock.
The Preferred Stock Depositary's corporate trust office will be identified
in the applicable Prospectus Supplement. Unless otherwise set forth in the
applicable Prospectus Supplement, the Preferred Stock Depositary will act as
transfer agent and registrar for Depositary Receipts and if shares of a series
of Preferred Stock are redeemable, the Preferred Stock Depositary will act as
redemption agent for the corresponding Depositary Receipts.
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue, together with other Securities or separately,
warrants for the purchase of (i) Debt Securities (the "Debt Warrants"), (ii)
Common Stock (the "Common Stock Warrants") or (iii) Preferred Stock (the
"Preferred Stock Warrants" and, collectively with the Debt Warrants and the
Common Stock Warrants, the "Warrants").
The Warrants will be issued under Warrant Agreements (as defined below) to
be entered into between the Company and a bank or trust company, as warrant
agent (the "Warrant Agent"), all to be set forth in the applicable Prospectus
Supplement relating to Warrants for which this Prospectus is being delivered.
Copies of the form of agreement for each Warrant (each, a "Debt Securities
Warrant Agreement," a "Common Stock Warrant Agreement" or a "Preferred Stock
Warrant Agreement," as the case may be, or collectively, the "Warrant
Agreements"), including the forms of certificates representing the Warrants
(the "Debt Warrant Certificate(s)," the "Common Stock Warrant Certificate(s)"
or the "Preferred Stock Warrant Certificate(s)," as the case may be, or
collectively, the "Warrant Certificates"), reflecting the provisions to be
included in such agreements that will be entered into with respect to the
particular offerings of each type of Warrant will be, in each case, filed with
the Commission as an exhibit to a document incorporated by reference in the
Registration Statement prior to the date of any Prospectus Supplement relating
to an offering of such Warrant.
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The following description of the terms of the Warrants sets forth certain
general terms and provisions of the Warrants to which any Prospectus
Supplement may relate. The particular terms of the Warrants offered by any
Prospectus Supplement and the extent, if any, to which such general provisions
may apply to the Warrants so offered will be described in a Prospectus
Supplement relating to such Warrants. The following summary of certain
provisions of the Warrants, the Warrant Agreements and the Warrant
Certificates does not purport to be complete and is subject to, and is
qualified in its entirety by express reference to, all of the provisions of
the Warrant Agreements and Warrant Certificates, including the definitions
therein of certain terms.
DEBT WARRANTS
General
Reference is made to the applicable Prospectus Supplement for the terms of
Debt Warrants for which this Prospectus is being delivered, the Debt
Securities Warrant Agreement relating to such Debt Warrants and the Debt
Warrant Certificate(s) representing such Debt Warrants, including the
following: (i) the designation, aggregate principal amount and terms of the
Debt Securities purchasable upon exercise of such Debt Warrants and the
procedures and conditions relating to the exercise of such Debt Warrants; (ii)
the designation and terms of any related Debt Securities with which such Debt
Warrants are issued and the number of such Debt Warrants issued with each such
Debt Security; (iii) the date, if any, on and after which such Debt Warrants
and the related Debt Securities will be separately transferable; (iv) the
principal amount of Debt Securities purchasable upon exercise of each Debt
Warrant and the price at which such principal amount of Debt Securities may be
purchased upon such exercise; (v) the date on which the right to exercise such
Debt Warrants will commence and the date on which such right will expire; (vi)
a discussion of the material United States federal income tax considerations
applicable to the exercise of Debt Warrants; (vii) whether the Debt Warrants
represented by the Debt Warrant Certificates will be issued in registered or
bearer form, and, if registered, where they may be transferred and registered;
(viii) call provisions of such Debt Warrants, if any; and (ix) any other terms
of the Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated
in the applicable Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders
of the Debt Securities purchasable upon such exercise and will not be entitled
to payments of principal of (and premium, if any) or interest, if any, on the
Debt Securities purchasable upon such exercise.
Exercise of Debt Warrants
Each Debt Warrant will entitle the holder to purchase for cash such
principal amount of Debt Securities at such exercise price as will in each
case be set forth in, or be determinable as set forth in, the applicable
Prospectus Supplement relating to the Debt Warrants offered thereby. Debt
Warrants may be exercised at any time up to the date and time on such date set
forth in the applicable Prospectus Supplement. Thereafter, unexercised Debt
Warrants will become void.
Debt Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt
Warrant Certificate properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, the Company will, as soon as practicable,
forward the Debt Securities purchasable upon such exercise. If less than all
of the Debt Warrants represented by such Debt Warrant Certificate are
exercised, a new Debt Warrant Certificate will be issued for the remaining
amount of Debt Warrants.
COMMON STOCK WARRANTS
General
Reference is made to the applicable Prospectus Supplement for the terms of
Common Stock Warrants in respect of which this Prospectus is being delivered,
the Common Stock Warrant
15
<PAGE>
Agreement relating to such Common Stock Warrants and the Common Stock Warrant
Certificates representing such Common Stock Warrants, including the following:
(i) the procedures and conditions relating to the exercise of such Common
Stock Warrants; (ii) the number of shares of Common Stock, if any, issued with
such Common Stock Warrants; (iii) the date, if any, on and after which such
Common Stock Warrants and any related shares of Common Stock will be
separately transferable; (iv) the offering price of such Common Stock
Warrants, if any; (v) the number of shares of Common Stock purchasable upon
exercise of such Common Stock Warrants and the price or prices at which such
shares may be purchased upon exercise; (vi) the date on which the right to
exercise such Common Stock Warrants will commence and the date on which such
right will expire; (vii) a discussion of the material United States federal
income tax considerations applicable to the exercise of Common Stock Warrants;
(viii) call provisions of such Common Stock Warrants, if any; and (ix) any
other terms of the Common Stock Warrants.
Common Stock Warrant Certificates will be exchangeable for new Common Stock
Warrant Certificates of different denominations and Common Stock Warrants may
be exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement. Prior to the
exercise of their Common Stock Warrants, holders of Common Stock Warrants will
not have any of the rights of holders of Common Stock purchasable upon such
exercise, including, without limitation, the right to any dividend payments on
the Common Stock purchasable upon such exercise.
Exercise of Common Stock Warrants
Each Common Stock Warrant will entitle the holder to purchase for cash such
number of shares of Common Stock at such exercise price as will in each case
be set forth in, or be determinable as set forth in, the applicable Prospectus
Supplement relating to the Common Stock Warrants offered thereby. Common Stock
Warrants may be exercised at any time up to the date and time on such date set
forth in the applicable Prospectus Supplement. Thereafter, unexercised Common
Stock Warrants will become void.
Common Stock Warrants may be exercised as set forth in the applicable
Prospectus Supplement relating to the Common Stock Warrants. Upon receipt of
payment and the Common Stock Warrant Certificate properly completed and duly
executed at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward a certificate representing the number of shares
of Common Stock purchasable upon such exercise. If less than all of the Common
Stock Warrants represented by such Common Stock Warrant Certificate are
exercised, a new Common Stock Warrant Certificate will be issued for the
remaining amount of Common Stock Warrants.
PREFERRED STOCK WARRANTS
General
Reference is made to the applicable Prospectus Supplement for the terms of
Preferred Stock Warrants for which this Prospectus is being delivered, the
Preferred Stock Warrant Agreement relating to such Preferred Stock Warrants
and the Preferred Stock Warrant Certificates representing such Preferred Stock
Warrants, including the following: (i) the designation and terms of the shares
of Preferred Stock purchasable upon exercise of such Preferred Stock Warrants
and the procedures and conditions relating to the exercise of such Preferred
Stock Warrants; (ii) the designation and terms of any related shares of
Preferred Stock with respect to which such Preferred Stock Warrants are issued
and the number of shares of such Preferred Stock, if any, issued with
Preferred Stock Warrants; (iii) the date, if any, on and after which such
Preferred Stock Warrants and any related shares of Preferred Stock will be
separately transferable; (iv) the offering price of such Preferred Stock
Warrants, if any; (v) the number of shares of Preferred Stock purchasable upon
exercise of such Preferred Stock Warrants and the initial price or prices at
which such shares may be purchased upon exercise; (vi) the date on which the
right to exercise such Preferred Stock Warrants will commence and the date on
which such right will expire; (vii) a discussion of the material United States
federal income tax
16
<PAGE>
considerations applicable to the exercise of Preferred Stock Warrants; (viii)
call provisions of such Preferred Stock Warrants, if any; and (ix) any other
terms of the Preferred Stock Warrants.
Preferred Stock Warrant Certificates will be exchangeable for new Preferred
Stock Warrant Certificates of different denominations and Preferred Stock
Warrants may be exercised at the corporate trust office of the Warrant Agent
or any other office indicated in the applicable Prospectus Supplement. Prior
to the exercise of their Preferred Stock Warrants, holders of Preferred Stock
Warrants will not have any of the rights of holders of Preferred Stock
purchasable upon such exercise, including, without limitation, any right to
any dividend payments on the Preferred Stock purchasable upon such exercise.
Exercise of Preferred Stock Warrants
Each Preferred Stock Warrant will entitle the holder to purchase for cash
such number of shares of Preferred Stock at such exercise price as will in
each case be set forth in, or be determinable as set forth in, the applicable
Prospectus Supplement relating to the Preferred Stock Warrants offered
thereby. Preferred Stock Warrants may be exercised at any time up to the date
and time on such date set forth in the applicable Prospectus Supplement.
Thereafter, unexercised Preferred Stock Warrants will become void.
Preferred Stock Warrants may be exercised as set forth in the applicable
Prospectus Supplement relating to the Preferred Stock Warrants. Upon receipt
of payment and the Preferred Stock Warrant Certificate properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward a certificate representing the number of shares
of Preferred Stock purchasable upon such exercise. If less than all of the
Preferred Stock Warrants represented by such Preferred Stock Warrant
Certificate are exercised, a new Preferred Stock Warrant Certificate will be
issued for the remaining amount of Preferred Stock Warrants.
PLAN OF DISTRIBUTION
The Company may offer and sell the Securities directly to purchasers or to
or through underwriters, dealers or agents. Any such underwriter, dealer or
agent involved in the offer and sale of the Securities for which this
Prospectus is delivered will be named in the applicable Prospectus Supplement.
The applicable Prospectus Supplement for the Securities issued thereunder will
also set forth the terms of the offering of such Securities, including the
purchase price of such Securities and the proceeds to the Company from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which such Securities may be listed.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or from
time to time at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The
applicable Prospectus Supplement will describe the method of distribution of
the Securities.
If underwriters are used in an offering of Securities, the name of each
managing underwriter, if any, and any other underwriters and terms of the
transaction, including any underwriting discounts and other items constituting
compensation of the underwriters and dealers, if any, will be set forth in the
applicable Prospectus Supplement relating to such offering and the Securities
will be acquired by the underwriters for their own accounts and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time
to time. Underwriters, dealers and agents may be entitled, under agreements
which may be entered into with the Company, to indemnification against and
17
<PAGE>
contribution toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Company of certain expenses.
If a dealer is used in an offering of Securities, the Company will sell such
Securities to the dealer, as principal. The dealer may then resell such
Securities to the public at varying prices to be determined by such dealer at
the time of resale. The name of the dealer and the terms of the transaction
will be set forth in the applicable Prospectus Supplement relating thereto.
If an agent is used in an offering of Securities, the agent will be named,
and the terms of the agency will be set forth, in the applicable Prospectus
Supplement relating thereto. Unless otherwise indicated in such applicable
Prospectus Supplement, an agent will act on a best efforts basis for the
period of its appointment.
Dealers and agents named in an applicable Prospectus Supplement may be
deemed to be underwriters (within the meaning of the Securities Act) of the
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities under the Securities Act. Underwriters, dealers and
agents may be customers of, engage in transactions with or perform services
for, the Company in the ordinary course of business.
Offers to purchase Securities may be solicited, and sales thereof may be
made, by the Company directly to institutional investors or others, who may be
deemed to be underwriters within the meaning of the Securities Act with
respect to any resales thereof. The terms of any such offer will be set forth
in the applicable Prospectus Supplemental relating thereto.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other agents of the Company to solicit offers by
certain institutional investors to purchase Securities from the Company
pursuant to contracts providing for payment and delivery at a future date.
Institutional investors with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all
cases such purchasers must be approved by the Company. The obligations of any
purchaser under any such contract will not be subject to any conditions except
that (i) the purchase of the Securities must not at the time of delivery be
prohibited under the laws of any jurisdiction to which such purchaser is
subject and (ii) if the Securities are also being sold to underwriters, the
Securities must not be subject to delayed delivery. Underwriters and other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
In addition, the Securities may be offered and sold by the holders thereof
in one or more of the transactions described above, which transactions may be
effected at any time and from time to time. Upon any such sale of Securities,
the respective holders thereof and any broker, dealer or underwriter
participating therewith may be deemed to be underwriters within the meaning of
Section 2(11) of the Securities Act, and any commissions, discounts or
concessions upon such sale, or any profit on the resale of such shares,
received thereby in connection with such sale may be deemed to be underwriting
commissions or discounts under the Securities Act. The compensation, including
commissions, discounts, concessions and other profits, received by any broker,
dealer or underwriter in connection with the sale of any of such Securities
may be less than or in excess of customary commissions.
The anticipated date of delivery of Securities will be set forth in the
applicable Prospectus Supplement relating to each offering.
18
<PAGE>
The Securities may or may not be listed on a national securities exchange or
a foreign securities exchange. No assurances can be given that there will be a
market for any of the securities.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by Paul
W. Heldman, Esq., Senior Vice President, Secretary and General Counsel of the
Company. As of March 31, 1998, Mr. Heldman owned approximately 28,958 shares
of the Company's Common Stock and had options to acquire an additional 208,750
shares.
EXPERTS
The consolidated financial statements of The Kroger Co. as of December 27,
1997 and December 28, 1996 and for the fiscal years ended December 27, 1997,
December 28, 1996, and December 30, 1995, which appear in the Company's Annual
Report on Form 10-K for the fiscal year ended December 27, 1997, incorporated
by reference in this Prospectus, 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 (if required) and auditors' reports
which financial statements and schedules will have been audited to the extent
and for the periods set forth in such reports by the firm or firms rendering
such reports and, to the extent so audited and consent to incorporation by
reference is given, will be incorporated herein by reference upon such reports
given upon the authority of such firms as experts in accounting and auditing.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the sale of the Securities being registered
hereby, other than underwriting discounts and commissions, are estimated as
follows:
<TABLE>
<S> <C>
Registration Fee*................................................ $236,000
Printing and engraving........................................... 50,000
Legal fees and expenses.......................................... 100,000
Accounting fees and expenses..................................... 15,000
Blue Sky qualifications and related legal fees and expenses...... 10,000
Miscellaneous.................................................... 30,000
--------
Total.......................................................... $441,000
========
</TABLE>
- --------
*Actual Fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Company's Regulations (by-laws) each present or former director,
officer or employee of the Company and each person who is serving or shall
have served at the request of the Company as a director, officer or employee
of another corporation (and his heirs, executors and administrators) will be
indemnified by the Company 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
Company 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 Company 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 Company also maintains directors' and officers' reimbursement and
liability insurance pursuant to policies with aggregate limits of $125
million.
ITEM 16. EXHIBITS:
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement.
4.1 Amended Articles of Incorporation and Regulations of the Company
are hereby incorporated by reference to Exhibits 4.1 and 4.2 of
the Company'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.
4.2 Rights Agreement, including form of Rights Certificate
incorporated by reference to the Company's Registration
Statement on Form 8-A/A dated April 4, 1997.
*4.3 Form of Senior Indenture (including form of securities) relating
to the Senior Debt Securities.
*4.4 Form of Subordinated Indenture (including form of securities)
relating to the Subordinated Debt Securities.
*4.5 Certificate of Designation of Series of Preferred Shares.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
*4.6 Form of Deposit Agreement for Depositary Shares.
*4.7 Form of Warrant Agreement, including form of Warrant
Certificate.
*5.1 Opinion of Paul W. Heldman, Esq., including his consent.
12.1 Computation of Ratio of Earnings to Fixed Charges incorporated
by reference to the Company's Annual Report on Form 10-K for the
fiscal year ended December 27, 1997.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Paul W. Heldman, Esq., included in Exhibit 5.1.
24.1 Powers of Attorney.
*25.1 Statement of Eligibility on Form T-1.
</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 undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (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 thereto) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement; and (iii) 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 clauses (1)(i) and (1)(ii) 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 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.
(b) The undersigned Registrant hereby undertakes that, for the 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 this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering 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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of Item 15 of this Part II, 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,
II-2
<PAGE>
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>
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 APRIL 16, 1998.
The Kroger Co.
/s/ Bruce M. Gack
By___________________________________
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.
SIGNATURES TITLE
*/s/ Reuben V. Anderson Director
- -------------------------------------
REUBEN V. ANDERSON
*/s/ John L. Clendenin Director
- -------------------------------------
JOHN L. CLENDENIN
*/s/ David B. Dillon Director, President
- ------------------------------------- and
DAVID B. DILLON Chief Operating
Officer
*/s/ John T. LaMacchia Director
- -------------------------------------
JOHN T. LAMACCHIA
*/s/ Edward M. Liddy Director
- -------------------------------------
EDWARD M. LIDDY
*/s/ Patricia Shontz Longe Director
- -------------------------------------
PATRICIA SHONTZ LONGE
*/s/ W. Rodney McMullen Senior Vice
- ------------------------------------- President and Chief
W. RODNEY MCMULLEN Financial Officer
II-4
<PAGE>
SIGNATURES TITLE
*/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/ John D. Ong Director
- -------------------------------------
JOHN D. ONG
*/s/ Katherine D. Ortega Director
- -------------------------------------
KATHERINE D. ORTEGA
*/s/ Joseph A. Pichler Chairman of the
- ------------------------------------- Board of Directors,
JOSEPH A. PICHLER Chief Executive
Officer, and
Director
*/s/ J. Michael Schlotman Vice President and
- ------------------------------------- Corporate
J. MICHAEL SCHLOTMAN Controller--
Principal
Accounting Officer
*/s/ Martha Romayne Seger Director
- -------------------------------------
MARTHA ROMAYNE SEGER
*/s/ James D. Woods Director
- -------------------------------------
JAMES D. WOODS
/s/ Bruce M. Gack April 16, 1998
*By _________________________________
BRUCE M. GACK AS ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DOCUMENT DESCRIPTION NUMBER
------- -------------------- ----------
<C> <S> <C>
*1.1 Form of Underwriting Agreement.
4.1 Amended Articles of Incorporation and Regulations of
the Company are hereby incorporated by reference to
Exhibits 4.1 and 4.2 of the Company'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.
4.2 Rights Agreement, including form of Rights Certificate
incorporated by reference to the Company's Registration
Statement on Form 8-A/A dated April 4, 1997.
*4.3 Form of Senior Indenture (including form of securities)
relating to the Senior Debt Securities.
*4.4 Form of Subordinated Indenture (including form of
securities) relating to the Subordinated Debt
Securities.
*4.5 Certificate of Designation of Series of Preferred
Shares.
*4.6 Form of Deposit Agreement for Depositary Shares.
*4.7 Form of Warrant Agreement, including form of Warrant
Certificate.
*5.1 Opinion of Paul W. Heldman, Esq., including his
consent.
12.1 Computation of Ratio of Earnings to Fixed Charges
incorporated by reference to the Company's Annual
Report on Form 10-K for the fiscal year ended
December 27, 1997.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Paul W. Heldman, Esq., included in Exhibit
5.1.
24.1 Powers of Attorney.
*25.1 Statement of Eligibility on Form T-1.
</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.
II-6
<PAGE>
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated January 22, 1998, on our audits of the consolidated
balance sheet of The Kroger Co. as of December 27, 1997 and December 28, 1996,
and the related consolidated statements of operations and accumulated deficit,
and cash flows for the years ended December 27, 1997, December 26, 1996, and
December 30, 1995. We also consent to the references to our firm under the
caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Cincinnati, Ohio
April 16, 1998
<PAGE>
RESOLUTION
WHEREAS, At its regularly scheduled meeting held on February 20, 1998, this
Board authorized the merger of two existing shelf registration statements into
one registration statement (the "Global Shelf"); and
WHEREAS, The amount of securities that remain unissued under the Global Shelf is
$446,209,251; and
WHEREAS, It is in the best interests of the Company to increase the amount of
Securities that can be issued under the Global Shelf to $800,000,000 and to
authorize the issuance of debt Securities thereunder; now, therefore,
RESOLVED, That the Company is authorized to increase the amount of securities
that may be issued under the Global Shelf by $353,790,749 to $800,000,000 ; and
further
RESOLVED, That, subject to the limitations contained in the adopting resolutions
and these resolutions, the Company is authorized to issue up to $800,000,000 in
debt securities; and further
RESOLVED, That the Securities will bear interest at a rate equal to a spread of
not more than 175 basis points over the yield on U. S. Treasury instruments
having a term equal to the Securities; and further
RESOLVED, That the debt Securities authorized hereby will be used to repay or
refinance existing debt of the Company; and further
RESOLVED, That the determination of all terms and conditions of the debt
Securities, so long as those terms and conditions are consistent with the
foregoing resolutions, is delegated to the 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 the Management Committee and the elected officers are authorized
and directed to take all action and to execute all documents necessary or
appropriate to effect the purposes and intent of the foregoing resolutions.
<PAGE>
RESOLUTION
WHEREAS, Pursuant to authorization of this Board, the Company registered under
Registration No. 33-61563 (the "Equity Shelf") $341,943,251 of Common Stock, all
of which remains unissued; and
WHEREAS, Pursuant to authorization of this Board, the Company registered under
Registration No. 333-06763 (the "Debt Shelf") $744,266,000 of Debt Securities,
of which $304,266,000 remains unissued; and
WHEREAS, The Board desires to authorize the merger of the Equity Shelf and the
Debt Shelf into one registration statement (the "Global Shelf"); now, therefore,
RESOLVED, That the Company is authorized to merge the Debt Shelf and the Equity
Shelf into a Global Shelf for an aggregate amount of Securities not to exceed
$646,209,251 less the principal amount of any Securities issued under the Equity
Shelf or the Debt Shelf prior to the effective date of the Global Shelf; and
further
RESOLVED, That, subject to the limitations contained in these resolutions, the
Securities to be issued under the Global Shelf may be debt Securities, equity
Securities, warrants, depositary shares, or any other form of Securities as may
be determined in accordance with these resolutions; 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
<PAGE>
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
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 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 shall 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; 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 deem 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
<PAGE>
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 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 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 any of the elected officers deem necessary or appropriate to
effect the purposes and intent of the foregoing resolutions.
<PAGE>
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 $800,000,000 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 16th day of April, 1998.
/s/ Reuben V. Anderson /s/ John L. Clendenin
/s/ David B. Dillon /s/ John T. LaMacchia
/s/ Edward M. Liddy /s/ Patricia Shontz Longe
/s/ Clyde R. Moore /s/ T. Ballard Morton, Jr.
/s/ Thomas H. O'Leary /s/ John D. Ong
/s/ Katherine D. Ortega /s/ Joseph A. Pichler
/s/ Martha Romayne Seger /s/ James D. Woods
<PAGE>
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
$800,000,000 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.
/s/ W. Rodney McMullen April 16, 1998
W. Rodney McMullen
Senior Vice President and
Chief Financial Officer
<PAGE>
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 $800,000,000 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.
/s/ Joseph A. Pichler April 16, 1998
Joseph A. Pichler
Chairman of the Board,
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 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
$800,000,000 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.
/s/ J. Michael Schlotman April 16, 1998
J. Michael Schlotman
Vice President and Corporate Controller
<PAGE>
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 $800,000,000 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.
/s/ David B. Dillon April 16, 1998
David B. Dillon
President, Chief Operating Officer, and
Director
