<PAGE> 1
As filed with the Securities and Exchange
Commission on May 20, 1999
Registration No. 333-
---------------
---------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE KROGER CO.
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(Exact name of registrant as specified in its charter)
Ohio 31-0345740
- -------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1014 Vine Street, Cincinnati, Ohio 45202
- ---------------------------------------- ---------------------
(Address of Principal Executive Offices) (Zip Code)
The Kroger Co.
1999 Long-Term Incentive Plan
-----------------------------
(Full title of Plan)
Paul W. Heldman
Senior Vice President, Secretary and General Counsel
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
----------------------
(Name and address of agent for service)
(513) 762-4000
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate Amount of
Securities To To be Price Offering Registration
Be Registered Registered Per Share(1) Price(1) Fee
<S> <C> <C> <C> <C>
Common Stock 10,000,000 $51.25 $512,500,000 $142,475
$1 Par Value shares
Preferred Stock
Purchase Rights (2) (2) (2) (2)
- ----------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Securities Act Rule 457(c), on the basis of the average
of the high and low sale prices of the Registrant's Common Stock on
the New York Stock Exchange on May 18, 1999, which date is within 5
business days prior to the date of the filing of this Registration
Statement, as reported by THE WALL STREET JOURNAL.
(2) Preferred Stock Purchase Rights will be issued for no additional
consideration and therefore no registration fee is required. Prior to
the occurrence of certain events, the Preferred Stock Purchase Rights
will not be exercisable or evidenced separately from the Common
Stock.
</TABLE>
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Kroger Co. ("Kroger" or
"Registrant") with the Securities and Exchange Commission ("Commission") are
incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year ended
January 2, 1999, as amended;
2. All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), since the end of the fiscal year covered by
the Form 10-K referred to above; and
3. The description of Kroger Common Stock contained in
Kroger's registration statement filed pursuant to Section 12 of
the Exchange Act, including any amendments or reports filed for
the purpose of updating such description.
All documents filed by Kroger pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
shares of Kroger Common Stock offered hereby have been sold or which withdraws
from registration such shares of Kroger Common Stock then remaining unsold,
shall be deemed to be incorporated in this Registration Statement by reference
and to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The financial statements incorporated in this Registration
Statement by reference to the Annual Report on Form 10-K of The Kroger Co. for
the fiscalyear ended January 2, 1999 and the audited historical financial
statements included in The Kroger Co.'s Form 8-K dated May 10, 1999 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing. The report on the financial statements included in the
Annual Report on Form 10-K includes an explanatory paragraph relating to The
Kroger Co.'s change in its application of the LIFO method of accounting for
store inventories as of December 28, 1997.
<PAGE> 4
Documents incorporated herein by reference in the future will
include financial statements, related schedules and auditors' reports, which
financial statements and schedules will have been examined to the extent and for
the periods set forth in such opinions by the firm or firms rendering such
opinions, and, to the extent so examined and consent to incorporation by
reference given, will be incorporated herein by reference in reliance upon such
opinions given upon authority of such firms as experts in accounting and
auditing.
A legal opinion to the effect that the shares of Kroger Common
Stock offered hereby have been duly authorized and that, when they are issued in
accordance with the terms of the 1999 Long-Term Incentive Plan, they will be
validly issued and outstanding, fully paid and nonassessable, has been rendered
by Paul W. Heldman, Esquire, Senior Vice President, Secretary and General
Counsel of Kroger. As of April 30, 1999, Mr. Heldman owned approximately 29,137
shares of Kroger Common Stock and held options to acquire 179,583 shares of
Kroger Common Stock.
Item 6. Indemnification of Directors and Officers.
Under Kroger's Regulations (by-laws), each present or former
director, officer or employee of Kroger and each person who is serving or shall
have served at the request of Kroger as a director, officer or employee of
another corporation (and his or her heirs, executors or administrators) shall be
indemnified by Kroger against expenses actually and necessarily incurred by him
or her, and also against expenses, judgments, decrees, fines, penalties, or
amounts paid in settlement, in connection with the defense of any pending or
threatened action, suit, or proceeding, criminal or civil, to which he or she is
or may be made a party by reason of being or having been such director, officer
or employee, provided (1) he or she is adjudicated or determined not to have
been negligent or guilty of misconduct in the performance of his or her duty to
Kroger or such other corporation, (2) he or she is determined to have acted in
good faith in what he or she reasonably believed to be the best interest of
Kroger or of such other corporation, and (3) in any matter the subject of a
criminal action, suit, or proceeding, he or she is determined to have had no
reasonable cause to believe that his or her conduct was unlawful. See also Ohio
Revised Code, Section 1701.13.
The foregoing indemnification provisions are not exclusive of
any other rights to which such director, officer or employee may be entitled
under Kroger's Articles of Incorporation or Regulations, any agreement, any
insurance purchased by Kroger, any vote of shareholders or otherwise.
Kroger has purchased insurance insuring officers and directors
of the company against certain liabilities incurred in their capacities as such
in order to insure Kroger against any payments which it is obligated to make to
such persons under the foregoing indemnification provisions.
The Agreement and Plan of Merger, dated as of October 18, 1998
(the "Merger Agreement"), among Kroger, Jobsite Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of the Registrant ("Merger Sub"), and
Fred Meyer, Inc. ("Fred Meyer") provides that each present and former director
and officer of Fred Meyer or any of its subsidiaries after our acquisition of
Fred Meyer (the "Merger") will be indemnified by Kroger against any costs or
expenses, including reasonable attorneys' fees, judgments, fines, losses,
claims, damages or liabilities incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, for acts
<PAGE> 5
or omissions existing or occurring at or prior to the Merger, whether asserted
or claimed prior to, at or following the Merger, to the fullest extent permitted
under the Delaware General Corporation Law. Without limiting the generality of
the foregoing, in the event any person entitled to indemnification under such
provisions becomes involved in any claim, action, proceeding or investigation
after the Merger, Kroger will periodically advance to such person his or her
reasonable legal and other reasonably incurred expenses, including the cost of
any investigation and preparation incurred in connection with the claim, action,
preceding or investigation, subject to the person providing an undertaking to
reimburse all amounts advanced in the event of a final non-appealable
determination by a court of competent jurisdiction that such person is not
entitled the advancing of the expenses.
For six years from the Merger, the Registrant must maintain in
effect the current directors' and officers' liability insurance covering those
persons who are currently covered by Fred Meyer's directors' and officers'
liability insurance policy to the extent that it provides coverage for events
occurring on or prior to the Merger, so long as the annual premium therefor
would not be in excess of 200% of the last annual premium paid prior to the date
of the Merger Agreement (the "Current Premium"). If such premiums for such
insurance would at any time exceed 200% of the Current Premium, then the
Registrant shall cause to be maintained policies of insurance which provide the
maximum coverage available at an annual premium equal to 200% of the Current
Premium.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Index of Exhibits of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(a) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 ("Securities Act");
(b) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(c) to include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
<PAGE> 6
Provided, however, that paragraphs (a) and (b) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
4. That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions set forth in Item 6, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered and the Commission remains of the same opinion, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE> 7
SIGNATURES
----------
THE REGISTRANT. Pursuant to the requirements of the Securities
Act, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cincinnati, State of Ohio, on May 20, 1999.
THE KROGER CO.
By *
---------------------------
Joseph A. Pichler, Chairman
of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 20, 1999.
Signature Title
- --------- -----
* Executive Vice President and
- ---------------------------- Chief Financial Officer
W. Rodney McMullen (principal financial officer)
* Vice President and Corporate
- ---------------------------- Controller
J. Michael Schlotman (principal accounting
officer)
* Chairman of the Board of
- ---------------------------- Directors and Chief Executive
Joseph A. Pichler Officer
(principal executive officer)
* President, Chief Operating Officer
- ---------------------------- and Director
David B. Dillon
* Director
- ----------------------------
Reuben V. Anderson
* Director
- ----------------------------
John L. Clendenin
* Director
- ----------------------------
John T. LaMacchia
* Director
- ----------------------------
Edward M. Liddy
<PAGE> 8
* Director
- ----------------------------
Clyde R. Moore
* Director
- ----------------------------
T. Ballard Morton, Jr.
Director
- ----------------------------
Thomas H. O'Leary
* Director
- ----------------------------
Katherine D. Ortega
* Director
- ----------------------------
Martha Romayne Seger
Director
- ----------------------------
Bobby S. Shackouls
* Director
- ----------------------------
James D. Woods
*By (Bruce M. Gack)
Bruce M. Gack
Attorney-in-fact
<PAGE> 9
INDEX OF EXHIBITS
-----------------
Exhibit 4.1 Provisions of amended Articles of Incorporation.
Incorporated by reference to Exhibit 3.1 of Kroger's
Quarterly Report on Form 10-Q for the quarter ended October
3, 1998. Provisions of Regulations (by-laws) of The Kroger
Co. defining the rights of security holders. Incorporated
herein by reference to Exhibit 4.2 of Kroger's Registration
Statement on Form S-3 as filed with the Securities and
Exchange Commission on January 28, 1993 and bearing
Registration No. 33-57552.
Exhibit 4.2 The Kroger Co. 1999 Long-Term Incentive Plan. Filed
herewith.
Exhibit 5 Opinion of Paul W. Heldman, Esquire, with respect to the
validity of the Common Stock being registered. Filed
herewith.
Exhibit 23.1 Consent of PricewaterhouseCoopers, Independent Accountants.
Filed herewith.
Exhibit 23.2 Consent of Paul W. Heldman, Esquire. Contained in the
opinion filed as Exhibit 5 hereto.
Exhibit 24 Powers of Attorney of certain officers and directors of
Kroger. Filed herewith.
<PAGE> 1
Exhibit 4.2
THE KROGER CO.
1999 LONG-TERM INCENTIVE PLAN
1. Definitions
In this Plan the following definitions apply:
1.1 "Agreement" means a written agreement implementing a grant of an
Option or an award of Restricted Stock.
1.2 "Board" means the Board of Directors of the Company.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Committee" means the committee appointed to administer each of
the Programs under the Plan. For purposes of the Insider Program and the
Outside Director Program the Committee will be a committee of the Board meeting
the standards of Rule 16b-3(d)(1) under the Exchange Act, or any similar
successor rule, appointed by the Board to administer the Insider Program and
the Outside Director Program, which initially will be composed of those members
of the Compensation Committee of the Board who qualify as "outside directors"
under Section 162(m) of the Code. For purposes of the Non-Insider Program, the
Committee will be the Stock Option Committee.
1.5 "Common Stock" means the common stock, par value $1.00 per Share,
of the Company.
1.6 "Company" means THE KROGER CO.
1.7 "Date of Exercise" means the date on which the Company receives
notice of the exercise of an Option in accordance with the terms of Article 8.
1.8 "Date of Grant" means the date on which an Option is granted or
Restricted Stock is awarded by the Committee.
1.9 "Director" means a member of the Board of the Company.
1.10 "Employee" means any person determined by the Committee to be an
employee of the Company or a Subsidiary.
1.11 "Employee Director" means a Director who is an Employee of the
Company.
1.12 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.13 "Fair Market Value" of a Share of Common Stock means the amount
equal to the fair market value of a Share of Common Stock determined pursuant to
a reasonable method adopted by the Committee in good faith. Unless otherwise
provided to the contrary in an Agreement or in resolutions of the Committee, the
Fair Market Value of a Share will be the mean between the highest and lowest
selling price on the date of determination on the New York Stock
Exchange--Composite Transactions, or if no sales are made on that date, on the
most recent prior date for which sales are reported.
1.14 "Grantee" means an Employee to whom Restricted Stock has been
awarded pursuant to Article 10.
<PAGE> 2
1.15 "Insider" means an officer or other employee of the Company
subject to Section 16(a) of the Exchange Act.
1.16 "Insider Program" means that portion of the Plan under which
grants or awards are made to Insiders, including Employee Directors.
1.17 "Non-Insider Program" means that portion of the Plan under which
grants or awards are made to Employees, excluding Insiders and Employee
Directors.
1.18 "Option" means a nonstatutory stock option granted under the Plan
that does not qualify as an incentive stock option under Section 422 of the
Code.
1.19 "Option Period" means the period during which an Option may be
exercised.
1.20 "Option Price" means the price per Share at which an Option may
be exercised. The Option Price will be determined by the Committee, but in no
event shall the Option Price of an Option be less than the Fair Market Value
per Share determined as of the Date of Grant.
1.21 "Optionee" means an Employee or Director to whom an Option has
been granted.
1.22 "Outside Director Program" means that portion of the Plan under
which grants are made to Directors, other than Employee Directors.
1.23 "Performance Goals" means performance goals established by the
Committee which may be based on earnings or earnings growth, sales, return on
assets, equity or investment, total shareholder return, regulatory compliance,
satisfactory internal or external audits, improvement of financial ratings,
achievement of balance sheet, income statement or other financial statement
objectives, or any other objective goals established by the Committee, and may
be absolute in their terms or measured against or in relationship to other
companies similarly or otherwise situated. Performance goals may be particular
to an employee or the department, branch, Subsidiary or other division in which
he or she works, or may be based on the performance of the Company generally,
and may cover any period specified by the Committee.
1.24 "Plan" means THE KROGER CO. 1999 Long-Term Incentive Plan.
1.25 "Restricted Stock" means Shares awarded pursuant to Article 10.
1.26 "Share" means a share of authorized but unissued Common Stock or
a reacquired share of issued Common Stock.
1.27 "Stock Option Committee" means a committee of three or more
members appointed by the Chief Executive Officer of the Company to administer
the Non-Insider Program, each of whom is ineligible to receive grants or awards
under the Non-Insider Program, and has been ineligible for at least one year.
1.28 "Subsidiary" means a corporation at least 50% of the total
combined voting power of all classes of stock of which is owned by the Company,
either directly or through one or more other Subsidiaries.
2. PURPOSE
<PAGE> 3
The Plan is intended to assist in attracting and retaining
Employees and Directors of outstanding ability and to promote the
identification of their interests with those of the shareholders of the
Company.
3. ADMINISTRATION
The Plan will be administered by the Committee. In addition to
any other powers granted to the Committee, it will have the following powers,
subject to the express provisions of the Plan:
3.1 to determine in its discretion the Employees to whom Options will
be granted and to whom Restricted Stock will be awarded, the number of Shares to
be subject to each Option or Restricted Stock award, and the terms upon which
Options may be acquired and exercised and the terms and conditions of Restricted
Stock awards;
3.2 to determine all other terms and provisions of each Agreement,
which need not be identical;
3.3 without limiting the generality of the foregoing, to provide in
its discretion in an Agreement:
(a) for an agreement by the Optionee or Grantee to render
services to the Company or a Subsidiary upon such terms and conditions as may
be specified in the Agreement, provided that the Committee will not have the
power to commit the Company or any Subsidiary to employ or otherwise retain any
Optionee or Grantee;
(b) for restrictions on the transfer, sale or other disposition
of Shares issued to the Optionee upon the exercise of an Option and for other
restrictions permitted by Article 10 with respect to Restricted Stock;
(c) for an agreement by the Optionee or Grantee to resell to the
Company, under specified conditions, Shares issued upon the exercise of an
Option or awarded as Restricted Stock; and
(d) for the payment of the Option Price upon the exercise by an
Employee of an Option otherwise than in cash, including without limitation by
delivery (including constructive delivery) of shares of Common Stock (other
than Restricted Stock) valued at Fair Market Value on the Date of Exercise of
the Option, or a combination of cash and shares of Common Stock;
3.4 to construe and interpret the Agreements and the Plan;
3.5 to require, whether or not provided for in the pertinent
Agreement, of any person exercising an Option or acquiring Restricted Stock, at
the time of such exercise or acquisition, the making of any representations or
agreements that the Committee may deem necessary or advisable in order to
comply with the securities laws of the United States or of any state;
3.6 to provide for satisfaction of an Optionee's or Grantee's tax
liabilities arising in connection with the Plan through, without limitation,
retention by the Company of shares of Common Stock otherwise issuable on the
exercise of an Option or through delivery of Common Stock to the Company by the
Optionee or Grantee under such terms and conditions as the Committee deems
appropriate; and
3.7 to make all other determinations and take all other actions
necessary or advisable for the administration of the Plan.
<PAGE> 4
Any determinations or actions made or taken by the Committee pursuant
to this Article shall be binding and final.
4. ELIGIBILITY
Options and Restricted Stock may be granted or awarded only to
Employees and Directors. A non-Employee Director (i) who directly holds fewer
than 1,000 Shares of Common Stock at the time of a grant may not participate in
the Plan, (ii) may not receive Restricted Stock, and (iii) may not receive
Options except in accordance with Article 6. In no event may any participant
receive awards and grants covering more than 500,000 Shares in the aggregate
under this Plan.
5. STOCK SUBJECT TO THE PLAN
5.1 The maximum number of Shares that may be issued under the Plan is
10,000,000 Shares. The maximum number of Shares that may be awarded as
Restricted Stock under the Plan is 500,000. In addition to the decisions that it
makes in administering the Insider Program, annually the Committee for the
Insider Program will approve the number of Shares that may be granted under the
Non-Insider Program for that fiscal year.
5.2 If an Option expires or terminates for any reason without having
been fully exercised or if Shares of Restricted Stock are forfeited, the
unissued or forfeited Shares that had been subject to the Agreement relating
thereto will become available for the grant of other Options or for the award of
additional Restricted Stock.
6. SPECIAL CONDITIONS TO OUTSIDE DIRECTOR PROGRAM
6.1 The Outside Director Program is a formula plan under which
Directors, excluding Employee Directors, will be granted Options, but only in
accordance with the provisions set forth in this Article 6. For purposes of this
Article 6 only, the term Director excludes any member of the Board who does not
at the time of the relevant grant then own a minimum of 1,000 Shares of Common
Stock and also excludes Employee Directors.
6.2 Options will be granted to Directors as follows:
(a) Subject to approval of this Plan by shareholders, on May 20,
1999 each Director will be granted an Option to purchase 2,000 Shares at an
Option Price equal to the Fair Market Value of the Shares on that date, which
date will be the Date of Grant;
(b) In fiscal year 2000 and fiscal year 2001, on the date of the
Annual Meeting of Shareholders, each Director will be granted an Option to
purchase 2,000 Shares at an Option Price equal to the Fair Market Value of the
Shares on that date, which date will be the Date of Grant; and
(c) Options granted under this Article 6 will vest in 400 share
amounts on each of the five annual anniversary dates of the Date of Grant and
may be exercised by the Optionee at any time after vesting and prior to the
termination of the Option. Those options terminate one year from the date on
which the Optionee ceases to be a member of the Board (for all reasons other
than retirement) or 10 years from the Date of Grant, whichever first occurs.
Options granted hereunder are not transferable other than by will or the laws
of descent and distribution. Exercise of those Options may be made only in
writing delivered to the Company accompanied by payment of the Option Price.
<PAGE> 5
6.3 If on any Date of Grant there is an insufficient number of Shares
available for a grant, the number of Shares subject to such grant will be
reduced to the greatest whole number of Shares arrived at by dividing the
remaining Shares available for the grant by the number of Directors eligible for
the grant.
7. OPTIONS
7.1 The Committee is authorized to grant Options to Employees,
including Employee Directors. Options also may be granted to Directors,
excluding Employee Directors, only pursuant to Article 6.
7.2 The Option Period for Options granted to Employees, including
Employee Directors, will be determined by the Committee and specifically set
forth in the Agreement. No Option will be exercisable before six months after
the Date of Grant (except that this limitation need not apply in the event of
the death or disability of the Optionee within the six-month period) or after
ten years from the Date of Grant.
7.3 The maximum number of Shares of Common Stock with respect to which
Options may be granted to any Employee under this Plan during its term is
500,000 Shares. In no event will the Option Price of an Option be less than the
Fair Market Value of a Share of Common Stock at the time of the grant.
7.4 All other terms of Options granted under the Plan will be
determined by the Committee in its sole discretion.
8. EXERCISE
An Option may, subject to the provisions of the Agreement under which
it was granted, be exercised in whole or in part by the delivery to the Company
of written notice of the exercise, in such form as the Committee may prescribe,
accompanied, in the case of an Option, by (i) full payment for the Shares with
respect to which the Option is exercised, or (ii) irrevocable instructions to a
broker selected by the Committee to consummate "cashless" exercises to deliver
promptly to the Company cash equal to full payment for the Shares for which the
Option is exercised.
9. NON-TRANSFERABILITY
Unless otherwise provided in the Agreement respecting the grant,
Options granted under the Plan will not be transferable otherwise than by will
or the laws of descent and distribution, and an Option may be exercised during
his or her lifetime only by the Optionee or, in the event of his or her legal
disability, by his or her legal representative.
10. RESTRICTED STOCK AWARDS
10.1 The Committee is hereby authorized to award Shares of Restricted
Stock to Employees, including Employee Directors.
10.2 Restricted Stock awards under the Plan will consist of Shares
that are restricted against transfer, subject to forfeiture, and subject to
such other terms and conditions intended to further the purposes of the Plan as
may be determined by the Committee. The terms and conditions may provide, in
the discretion of the Committee, for the vesting of awards to be contingent
upon the achievement of one or more Performance Goals.
<PAGE> 6
10.3 Restricted Stock awards will be evidenced by Agreements
containing provisions setting forth the terms and conditions governing the
awards. Each agreement will contain the following:
(a) prohibitions against the sale, assignment, transfer,
exchange, pledge, hypothecation, or other encumbrance of (i) the Shares awarded
as Restricted Stock under the Plan, (ii) the right to vote the Shares, or (iii)
the right to receive dividends thereon in each case during the restriction
period applicable to the Shares; provided, however, that the Grantee shall have
all the other rights of a shareholder including, but not limited to, the right
to receive dividends and the right to vote the Shares;
(b) at least one term, condition or restriction constituting a
"substantial risk of forfeiture" as defined in Section 83(c) of the Code;
(c) such other terms, conditions and restrictions as the
Committee in its discretion may specify (including, without limitation,
provisions creating additional substantial risks of forfeiture);
(d) a requirement that each certificate representing Shares of
Restricted Stock must be deposited with the Company, or its designee, and will
bear the following legend:
"This certificate and the shares of stock represented hereby are
subject to the terms and conditions (including the risks of
forfeiture and restrictions against transfer) contained in THE
KROGER CO. 1999 Long-Term Incentive Plan and an Agreement entered
into between the registered owner and The Kroger Co. Release from
such terms and conditions shall be made only in accordance with
the provisions of the Plan and the Agreement, a copy of each of
which is on file in the office of the Secretary of The Kroger
Co."
(e) the applicable period or periods of any terms, conditions or
restrictions applicable to the Restricted Stock, provided, however, that the
Committee in its discretion may accelerate the expiration of the applicable
restriction period with respect to any part or all of the Shares awarded to a
Grantee; and
(f) the terms and conditions upon which any restrictions upon
Shares of Restricted Stock awarded under the Plan will lapse and new
certificates free of the foregoing legend will be issued to the Grantee or his
or her legal representative.
10.4 The Committee may include in an Agreement a requirement that in
the event of a Grantee's termination of employment for any reason prior to the
lapse of restrictions, all Shares of Restricted Stock shall be forfeited by the
Grantee to the Company without payment of any consideration by the Company, and
neither the Grantee nor any successors, heirs, assigns or personal
representatives of the Grantee will thereafter have any further rights or
interest in the Shares or certificates.
10.5 The maximum number of Shares of Restricted Stock that may be
awarded to any Employee under this Plan during its term is 500,000 Shares.
11. CAPITAL ADJUSTMENTS
<PAGE> 7
The number and class of Shares subject to each outstanding Option or
Restricted Stock award, the Option Price and the aggregate number and class of
Shares for which grants or awards thereafter may be made, including Options
granted under Article 6, will be subject to such adjustment, if any, as the
Committee in its sole discretion deems appropriate to reflect such events as
stock dividends, stock splits, adoption of stock rights plans,
recapitalizations, mergers, consolidations or reorganizations of or by the
Company.
12. TERMINATION OR AMENDMENT
The Board may amend or terminate this Plan in any respect at any time.
Board approval must be accompanied by (i) shareholder approval in those cases in
which amendment requires shareholder approval under applicable law or
regulations or the requirements of the principal exchange or interdealer
quotation system on which the Common Stock is listed or quoted, and (ii)
affected Optionee or Grantee approval if the amendment or termination would
adversely affect the holder's rights under any outstanding grants or awards.
13. EFFECTIVENESS OF THE PLAN
The Plan and any amendments requiring shareholder approval pursuant to
Article 12 are subject to approval by vote of the shareholders of the Company
within 12 months after their adoption by the Board. Subject to that approval,
the Plan and any amendments are effective on the date on which they are adopted
by the Board. Options and Restricted Stock may be granted or awarded prior to
shareholder approval of the Plan or amendments, but each such Option or
Restricted Stock grant or award are made subject to the approval of the Plan or
amendments by the shareholders. The date on which any Option or Restricted Stock
granted or awarded prior to shareholder approval of the Plan or amendment is
granted or awarded will be the Date of Grant for all purposes as if the Option
or Restricted Stock had not been subject to approval. No Option may be exercised
prior to shareholder approval, and any Restricted Stock awarded will be
forfeited if shareholder approval is not obtained.
14. TERM OF THE PLAN
Unless sooner terminated by the Board pursuant to Article 12, the Plan
will terminate on the date ten years after its adoption by the Board, and no
Options or Restricted Stock may be granted or awarded after termination. The
termination will not affect the validity of any Option or Restricted Stock
outstanding on the date of termination.
15. INDEMNIFICATION OF COMMITTEE
In addition to any other rights of indemnification as they may have as
Directors or as members of the Committee, the members of the Committee will be
indemnified by the Company against the reasonable expenses, including attorneys'
fees, actually and reasonably incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action taken or failure to
act under or in connection with the Plan or any Option or Restricted Stock
granted or awarded hereunder, and against all amounts reasonably paid by them in
settlement thereof or paid by them in satisfaction of a judgment in any such
action, suit or proceeding, if such members acted in good faith and in a manner
which they believed to be in, and not opposed to, the best interests of the
Company.
16. GENERAL PROVISIONS
<PAGE> 8
16.1 The establishment of the Plan does not confer upon any Employee
or Director any legal or equitable right against the Company, any Subsidiary or
the Committee, except as expressly provided in the Plan.
16.2 The Plan does not constitute inducement or consideration for the
employment of any Employee or the service of any Director, nor is it a contract
between the Company or any Subsidiary and any Employee or Director.
Participation in the Plan, or the receipt of a grant or award hereunder, does
not give an Employee or Director any right to be retained in the service of the
Company or any Subsidiary.
16.3 The Company and its Subsidiaries may assume options, warrants, or
rights to purchase stock issued or granted by other corporations whose stock or
assets are acquired by the Company or its Subsidiaries, or which is merged into
or consolidated with the Company. The terms and conditions of assumed options
may vary from the terms and conditions contained in this Plan, to the extent
determined by the Committee. Assumed options will not be counted toward the
limit specified in Section 7.3 unless the Committee determines that application
of the limit is necessary for the grants of Options to qualify as
"performance-based compensation" under Section 162(m) of the Code. Neither the
adoption of this Plan, nor its submission to the shareholders, may be taken to
impose any limitations on the powers of the Company or its affiliates to issue,
grant, or assume options, warrants, rights, or restricted stock, otherwise than
under this Plan, or to adopt other long-term incentive plans or to impose any
requirement of shareholder approval upon the same.
16.4 The interests of any Employee or Director under the Plan are not
subject to the claims of creditors and may not, in any way, be assigned,
alienated or encumbered except as provided in Article 9.
16.5 The Plan will be governed, construed and administered in
accordance with the laws of Ohio.
<PAGE> 1
EXHIBIT 5
THE KROGER CO.
Cincinnati, Ohio 45202
Paul W. Heldman
Senior Vice President, Secretary
and General Counsel
May 20, 1999
Board of Directors
The Kroger Co.
1014 Vine Street
Cincinnati, OH 45202
Ladies and Gentlemen:
I am familiar with the proceedings taken and proposed to be taken by The Kroger
Co., an Ohio corporation (the "Company"), in connection with the issuance of up
to 10,000,000 shares of its Common Stock (the "Securities") pursuant to The
Kroger Co. 1999 Long-Term Incentive Plan (the "Plan"). I have acted as counsel
to the Company in connection with its preparation of a Registration Statement
relating to that issuance on Form S-8 to be filed by the Company with the
Securities and Exchange Commission for the registration of the Securities under
the Securities Act of 1933, as amended. I have examined the above-mentioned
documents, the Amended Articles of Incorporation and Regulations of the
Company, the corporate minutes of the proceedings of the directors and
shareholders of the Company, and all other records and documents of the Company
as I have deemed necessary in order to express the opinions hereinafter set
forth.
Based upon the foregoing, and assuming compliance with applicable federal and
state securities laws, I am of the opinion that when the Securities are issued
pursuant to the Plan, they will be duly authorized, validly issued and
outstanding, fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me in the Registration Statement as having
passed upon the legality of the Securities offered thereby on behalf of the
Company.
Very truly yours,
(Paul Heldman)
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report (which includes an explanatory paragraph
relating to the Company's change in its application of the LIFO method of
accounting for store inventories as of December 28, 1997) dated January 28,
1999 relating to the financial statements, which appears in The Kroger Co.'s
Annual Report on Form 10-K for the fiscal year ended January 2, 1999. We also
consent to the incorporation by reference of our report dated April 30, 1999
relating to the financial statements, which appears in the Current Report on
Form 8-K dated May 10, 1999. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
(PricewaterhouseCoopers LLP)
PricewaterhouseCoopers LLP
Cincinnati, Ohio
May 20, 1999
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer of The Kroger
Co. (the "Company") hereby constitutes and appoints Paul W. Heldman and Bruce
M. Gack and each of them (with full power to each of them to act alone) his
true and lawful attorney-in-fact and agent for him and on his behalf and in his
name, place and stead, to sign, execute and affix his seal thereto and file
with the Securities and Exchange Commission (or any other governmental or
regulatory authority) any of the documents referred to below relating to the
registration under the Securities Act of 1933, as amended, on Form S-8 or other
appropriate form of 10,000,000 shares of the Common Stock of the Company with
respect to the granting, awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the Company's 1999
Long-Term Incentive Plan: (a) a registration statement under the Securities Act
of 1933, as amended, with all exhibits and any and all documents required to be
filed with respect thereto; and (b) any and all amendments thereto that may be
filed from time to time by the Company with all exhibits and any and all
documents required to be filed with respect thereto; granting unto said
attorneys, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(Joseph A. Pichler) February 26, 1999
Joseph A. Pichler
Chairman and Chief Executive Officer
and Director
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer of The Kroger
Co. (the "Company") hereby constitutes and appoints Paul W. Heldman and Bruce
M. Gack and each of them (with full power to each of them to act alone) his
true and lawful attorney-in-fact and agent for him and on his behalf and in his
name, place and stead, to sign, execute and affix his seal thereto and file
with the Securities and Exchange Commission (or any other governmental or
regulatory authority) any of the documents referred to below relating to the
registration under the Securities Act of 1933, as amended, on Form S-8 or other
appropriate form of 10,000,000 shares of the Common Stock of the Company with
respect to the granting, awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the Company's 1999
Long-Term Incentive Plan: (a) a registration statement under the Securities Act
of 1933, as amended, with all exhibits and any and all documents required to be
filed with respect thereto; and (b) any and all amendments thereto that may be
filed from time to time by the Company with all exhibits and any and all
documents required to be filed with respect thereto; granting unto said
attorneys, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(W. Rodney McMullen) April 26, 1999
W. Rodney McMullen
Executive Vice President and
Chief Financial Officer
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer of The Kroger
Co. (the "Company") hereby constitutes and appoints Paul W. Heldman and Bruce
M. Gack and each of them (with full power to each of them to act alone) his
true and lawful attorney-in-fact and agent for him and on his behalf and in his
name, place and stead, to sign, execute and affix his seal thereto and file
with the Securities and Exchange Commission (or any other governmental or
regulatory authority) any of the documents referred to below relating to the
registration under the Securities Act of 1933, as amended, on Form S-8 or other
appropriate form of 10,000,000 shares of the Common Stock of the Company with
respect to the granting, awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the Company's 1999
Long-Term Incentive Plan: (a) a registration statement under the Securities Act
of 1933, as amended, with all exhibits and any and all documents required to be
filed with respect thereto; and (b) any and all amendments thereto that may be
filed from time to time by the Company with all exhibits and any and all
documents required to be filed with respect thereto; granting unto said
attorneys, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(J. Michael Schlotman) February 26, 1999
J. Michael Schlotman
Vice President and Corporate Controller
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned officer of The Kroger
Co. (the "Company") hereby constitutes and appoints Paul W. Heldman and Bruce
M. Gack and each of them (with full power to each of them to act alone) his
true and lawful attorney-in-fact and agent for him and on his behalf and in his
name, place and stead, to sign, execute and affix his seal thereto and file
with the Securities and Exchange Commission (or any other governmental or
regulatory authority) any of the documents referred to below relating to the
registration under the Securities Act of 1933, as amended, on Form S-8 or other
appropriate form of 10,000,000 shares of the Common Stock of the Company with
respect to the granting, awarding, or selling of any stock to the employees and
directors of the Company or its subsidiaries pursuant to the Company's 1999
Long-Term Incentive Plan: (a) a registration statement under the Securities Act
of 1933, as amended, with all exhibits and any and all documents required to be
filed with respect thereto; and (b) any and all amendments thereto that may be
filed from time to time by the Company with all exhibits and any and all
documents required to be filed with respect thereto; granting unto said
attorneys, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand.
(David B. Dillon) February 26, 1999
David B. Dillon
President, Chief Operating Officer
and Director
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That each of the undersigned directors of
The Kroger Co. (the "Company") hereby constitutes and appoints Paul W. Heldman
and Bruce M. Gack and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent for him or her and
on his or her behalf and in his or her name, place and stead, to sign, execute
and affix his or her seal thereto and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) any of the
documents referred to below relating to the registration under the Securities
Act of 1933, as amended, on Form S-8 or other appropriate form of 10,000,000 of
the Common Stock of the Company with respect to the granting, awarding, or
selling of any stock to the employees and directors of the Company or its
subsidiaries pursuant to the Company's 1999 Long-Term Incentive Plan: (a) a
registration statement under the Securities Act of 1933, as amended, with all
exhibits and any and all documents required to be filed with respect thereto;
and (b) any and all amendments thereto that may be filed from time to time by
the Company with all exhibits and any and all documents required to be filed
with respect thereto; granting unto said attorneys, and each of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises in order to effectuate the
same as fully to all intents and purposes as he or she might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned directors have hereunto set their hands and
seals, as of the 26th day of February, 1999.
(Reuben V. Anderson) (T. Ballard Morton, Jr.)
- ------------------------- -----------------------------
(John L. Clendenin) (Katherine D. Ortega)
- ------------------------- -----------------------------
(John T. LaMacchia) (Edward M. Liddy)
- ------------------------- -----------------------------
(Clyde R. Moore) (Martha R. Seger)
- ------------------------- -----------------------------
(James D. Woods)
- -------------------------
<PAGE> 6
RESOLUTION
RESOLVED, That The Kroger Co. 1999 Long-Term Incentive Plan (the "Plan"), in
substantially the form presented to this meeting with all changes as the
officers of the Company, upon advice of counsel, may approve, is adopted,
subject to ratification by the holders of a majority of the Company's Common
Stock represented at the Annual Shareholders Meeting to be held on May 20,
1999; and further
RESOLVED, That upon approval by the shareholders, the Plan will become
effective on May 20, 1999, and the officers of the Company will be authorized
to issue 10,000,000 shares of Common Stock of the Company pursuant to the Plan;
and further
RESOLVED, That the officers of the Company are authorized to execute a
Registration Statement for the Plan on behalf of the Company on Form S-8 (the
"Registration Statement"), for the purpose of registering the 10,000,000 shares
of Common Stock under the Securities Act of 1933, and to file the Registration
Statement with the Securities and Exchange Commission in the form approved by
the executing officers, with approval evidenced by the execution thereof; and
further
RESOLVED, That the officers of the Company are authorized to execute in the
name and on behalf of the Company, all amendments to the Registration
Statement, as they deem appropriate, to procure all other necessary signatures
thereto and to file the amendments with the Securities and Exchange Commission;
and further
RESOLVED, That Paul Heldman and Bruce M. Gack, or either one of them, are
appointed the true and lawful attorneys-in-fact, with authority to sign and
execute on behalf of The Kroger Co., and on behalf of the directors and
officers thereof in their official capacities, the Registration Statement and
any and all amendments thereto, which they in their discretion deem necessary
or advisable to be filed with the Securities and Exchange Commission; and
further
RESOLVED, That Paul Heldman, Vice President, Secretary and General Counsel of
this Company, whose address is 1014 Vine Street, Cincinnati, Ohio, is
designated as the Agent for Service to be named in the Registration Statement,
and authorized to receive notices and communications, with respect to the
registration under the Securities Act of 1933, as amended, of the proposed
issue of the shares of Common Stock with all powers consequent upon that
designation under the rules and regulations of the Securities and Exchange
Commission; and further
RESOLVED, That the officers of the Company are authorized to list the
10,000,000 shares of Common Stock subject to the Plan with the New York Stock
Exchange and to take all actions, and prepare, execute, and file all documents,
including an indemnity agreement relating to the use of facsimile signatures in
the execution of the shares of Common Stock, necessary, incidental or
convenient to effectuate the listing; and further
RESOLVED, That for the purpose of executing the shares of Common Stock the
Company hereby adopts and acknowledges the facsimile signatures of Joseph A.
Pichler and Paul Heldman, its Chairman of the Board, and Secretary,
respectively, and the shares of Common Stock may be executed
<PAGE> 7
by the facsimile signatures hereby adopted until further order of the Board of
Directors, even if either of them may have ceased to hold his respective office
at the time the shares of Common Stock are delivered; and further
RESOLVED, That the officers of the Company are authorized and directed, in the
name and on behalf of the Company, to take all action they deem necessary or
advisable to register or qualify the shares of Common Stock for issue, offer,
sale or trade under the Blue Sky or securities laws of any State of the United
States or Province of Canada and in that connection to execute and deliver all
documents required under those laws, and to take any and all further action
which they deem necessary or advisable in order to maintain registration or
qualification of the shares of Common Stock for as long as they may deem
necessary or as required by law; and further
RESOLVED, That the 1997 Long-Term Incentive Plan, adopted by this Board at its
regular meeting on February 21, 1997, is amended to terminate all future grants
of options under Article 6 of that Plan; and further
RESOLVED, That the officers of the Company are authorized and directed in the
name and on behalf of the Company to execute, deliver, and file, as required,
all documents necessary or appropriate to effectuate the purposes and intents
of the foregoing resolutions and the various transactions contemplated thereby.
