As filed with the Securities and Exchange Commission on December 12, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
KINDERCARE LEARNING CENTERS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 63-0941966
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
650 NE Holladay, Suite 1500
Portland, Oregon 97232
(Address of Principal (Zip Code)
Executive Offices)
1997 Stock Purchase and Option Plan for
Key Employees of KinderCare Learning Centers, Inc. and Subsidiaries
(Full title of plan)
Eva M. Kripalani
Vice President and General Counsel
KinderCare Learning Centers, Inc.
650 NE Holladay, Suite 1500
Portland, Oregon 97232
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 872-1300
Copy to:
Margaret Hill Noto
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Proposed Proposed Amount
Maximum Maximum of
Amount Offering Aggregate Regis-
Title of Securities to Be Price Per Offering tration
to Be Registered Registered Share(1) Price(1) Fee
<S> <C> <C> <C> <C>
Common Stock 2,342,105 Shares $19.00 $21,330,617 $6,293
- ---------------------------------------------------------------------------------------------------------------------
<FN>
(1) This Registration Statement registers 2,342,105 shares of Common Stock under
the KinderCare Learning Centers, Inc. 1997 Stock Purchase and Option Plan for
Key Employees of KinderCare Learning Centers, Inc. and Subsidiaries (the
"Plan"). The proposed maximum offering price per share and the proposed maximum
aggregate offering price were estimated solely for the purpose of calculating
the registration fee pursuant to Rule 457(h) under the Securities Act of 1933.
In accordance with Rule 457(h), the offering price for the shares issuable under
the Plan was calculated based on the exercise price and purchase price of $19.00
per share with respect to 896,729 shares to be purchased and shares subject to
or to become subject to options at such price. With respect to the balance of
1,445,376 shares reserved for the Plan, the offering price was calculated
pursuant to Rule 457(h) based on $2.97 per share, which was the book value of
the Common Stock as of September 19, 1997.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed by KinderCare Learning Centers, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933 that
contains audited consolidated financial statements for the Company's latest
fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by
the annual report or prospectus referred to in (a) above.
(c) The description of the authorized capital stock of the Company
contained in the Company's registration statement filed under Section 12 of
the Securities Exchange Act of 1934, including any amendment or report
filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
The authorized capital stock of the Company consists of 20,000,000 shares
of Common Stock, par value $.0l per share, of which 9,368,421 shares were
outstanding as of September 19, 1997 and 10,000,000 shares of Preferred Stock,
$.01 par value, of which no shares are outstanding. In connection with the
Merger, the Common Stock was delisted from the Nasdaq National Market.
Voting Rights. The holders of the Common Stock are entitled to one vote per
share on all matters submitted for action by the shareholders. There is no
provision for cumulative voting with respect to the election of directors.
Accordingly, the holders of
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more than 50% of the shares of Common Stock can elect all of the directors. In
such event, the holders of the remaining shares will not be able to elect any
directors.
Dividend Rights. All shares of Common Stock are entitled to share equally
in such dividends as the Board of Directors may declare from sources legally
available therefor. The Company's borrowing agreements impose certain
restrictions on the ability of the Company to declare dividends with respect to
the Common Stock.
Liquidation Rights. Upon liquidation or dissolution of the Company, whether
voluntary or involuntary, all shares of Common Stock are entitled to share
equally in the assets available for distribution to shareholders after payment
of all prior obligations of the Company and any payments to any outstanding
shares of preferred stock.
Other Matters. The holders of the Common Stock have no preemptive rights.
All outstanding shares of Common Stock are, and the Common Stock offered hereby
will be, fully paid and non-assessable.
Preferred Stock. The Board of Directors of the Company may, without further
action of the shareholders, issue Preferred Stock in one or more series and fix
or alter the rights, preferences, privileges and restrictions thereof, including
dividend rights, dividend rates, conversion rights, voting rights, redemption
terms and prices, liquidation terms and preferences, and the number of shares
constituting any series or the designations of such series.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware GCL") grants each corporation the power to indemnify officers and
directors under certain circumstances. Article VIII of the Company's Certificate
of Incorporation, as amended in its entirety in the Certificate of Merger dated
February 13, 1997 (the "Certificate"), requires indemnification of current or
former directors or officers of the Company as permitted by Section 145. Article
VIII of the Certificate is summarized as follows:
(a) Indemnification. Subject to exceptions described below, the
Company will indemnify an individual who is a party to a proceeding because
he or she is or was a director or officer, against liability he or she
incurs in the proceeding if he or she acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of
the Company. In any criminal proceeding, the individual must also have had
no reasonable cause to believe his or her
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conduct was unlawful. An individual's conduct regarding an employee benefit
plan satisfies these indemnification requirements if he or she acts with a
purpose he or she believed in good faith was in the interests of the
participants in and beneficiaries of the plan. A proceeding terminated by
judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself mean that the proposed
indemnitee did not meet the standards of conduct required for
indemnification.
(b) Exceptions. (i) The Company will not indemnify a person for
liability incurred in a proceeding by or in the right of the Company in
which the person was adjudged liable to the Company, unless and only to the
extent that, the person or persons making the settlement determination (the
"Reviewing Party") pursuant to Article VIII or a court of competent
jurisdiction acting pursuant to Article VIII, determines that, under the
circumstances of the case, the indemnitee is fairly and reasonably entitled
to indemnification.
(ii) Indemnification permitted under Article VIII in connection
with a proceeding by or in the right of the Company shall include
reasonable expenses (including attorney fees), penalties, fines
(including an excise tax assessed with respect to an employee benefit
plan) and amounts paid in settlement (provided the settlement and the
amounts paid in settlement are not unreasonable, as determined by the
Reviewing Party who determines that indemnification is permissible
under Article VIII) in connection with the proceeding, but, unless
ordered by a court, shall not include judgments.
(iii) Notwithstanding any other Article VIII provision, no person
is entitled to indemnification or advancement of expenses under
Article VIII with respect to any proceeding or claim brought or made
by the person against the Company, other than a proceeding or claim
seeking or defending that person's right to indemnification or
advancement of expenses under court order.
(c) Amounts. A person entitled to indemnification under Article VIII
for some portion of the liability he or she incurs, but not the total
amount he or she incurs, the Company will indemnify a person for the
portion of incurred liability to which he or she is entitled. The Company
will indemnify a director or officer to the extent he has been successful,
on the merits or otherwise, in defense of any proceeding where he or she
was a party, or in defense of any claim, issue or matter therein, because
he or she is or was a director or officer, against reasonable expenses
(including attorney fees) incurred by him or her in connection with the
proceeding.
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(d) Advances for Expenses. The Company will pay for or reimburse the
reasonable expenses (including attorney fees) incurred by a director or
officer as a party to a proceeding, in advance of the final proceeding, if
the person affirms in writing his or her good faith belief that he or she
has met the required standard of conduct described above, and if the person
undertakes an unlimited general obligation in writing to repay any advances
if it is ultimately determined that he is not entitled to indemnification
under Article VIII or otherwise.
(e) Authorization. While the Company has pre-authorized
indemnification as described, the Company shall not indemnify a director or
officer under Article VIII unless a separate determination has been made in
the specific case that the indemnification is permissible because the
person has met the required standard of conduct described above; provided
that this entitlement decision need be made for the Company to advance
expenses and a successful party as described in (c) above. Article VIII
provides for determination of entitlement to indemnification by a Reviewing
Party. A director or officer who is a party to a proceeding may also apply
to the court for indemnification or advance expenses.
(f) Indemnification of Employees and Agents. The Company may, subject
to authorization in a specific case, indemnify and advance expenses under
Article VIII to an employee or agent of the Company who is not a director
or officer, to the same or any lesser extent as an officer or director (or
greater extent if permitted by law) as determined by the Board of
Directors.
(g) Report to Stockholders. The Company shall report any
indemnification or advance expenses to a director or officer in connection
with a proceeding by or in the right of the Company, to the extent required
by law, in writing, to the stockholders with or before the notice of the
next stockholders' meeting.
(h) Insurance. The Company may buy and maintain liability insurance on
behalf of a director, officer, or individual who is or was an employee or
agent of the Company, who, while a director, officer, employee or agent of
the Company, is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other enterprise against liability asserted against or incurred by him in
that capacity or arising from his status as a director, officer, employee
or agent, whether or not the Company would have power to indemnify him
against the same liability under Article VIII.
(i) Subrogation. If the Company pays an indemnitee under Article VIII,
the Company shall be subrogated to the extent of that payment to all the
rights of recovery of the indemnitee.
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Under the 1997 Stock Purchase and Option Plan for Key Employees of
KinderCare Learning Centers, Inc. and Subsidiaries, no director who is a member
of the Compensation Committee of the Board of Directors shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the plan or the Grants (as defined in the plan). All directors on the
Committee shall be fully protected by the Company with respect to its actions
taken and interpretations and determinations made in good faith.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Certificate of Merger of KCLC Acquisition into the registrant
(incorporated by reference from Exhibit 3.1 of Amendment No. 1 to the
registrant's Registration Statement on Form S-4 dated April 7, 1997,
File No. 333-23127).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 of
Amendment No. 1 to the registrant's Registration Statement on Form S-4
dated April 9, 1997, File No. 333-23127).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney.
Item 9. 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 of 1933 (the "1933 Act");
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
(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 paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities Exchange Act of
1934 (the "1934 Act") that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the 1933
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 purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether
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such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Portland, State of Oregon, on December 11, 1997.
KINDERCARE LEARNING CENTERS, INC.
By DAVID J. JOHNSON
------------------------------------------
David J. Johnson,
Chief Executive Officer and
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on December 11, 1997.
Signature Title
/s/ DAVID J. JOHNSON Chief Executive Officer and Chairman
- ----------------------------------- of the Board of Directors (Principal
David J. Johnson Executive Officer)
/s/ DAN JACKSON Vice President, Financial Control and
- ----------------------------------- Planning (Principal Financial and
Dan Jackson Accounting Officer)
/s/ HENRY R. KRAVIS Director
- -----------------------------------
Henry R. Kravis
/s/ GEORGE R. ROBERTS Director
- -----------------------------------
George R. Roberts
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/s/ CLIFTON S. ROBBINS Director
- -----------------------------------
Clifton S. Robbins
/s/ NILS P. BROUS Director
- -----------------------------------
Nils P. Brous
/s/ SANDRA W. SCARR, Ph.D. Director
- -----------------------------------
Sandra W. Scarr, Ph.D.
/s/ STEPHEN KAPLAN Director
- -----------------------------------
Stephen Kaplan
*By /s/ DAVID J. JOHNSON
------------------------------------
David J. Johnson, Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
Number Document Description
4.1 Certificate of Incorporation, as amended in its entirety by the
Certificate of Merger dated February 13, 1997 (incorporated by
reference from Exhibit 3.1 of Amendment No. 1 to the registrant's
Registration Statement on Form S-4 dated April 7, 1997, File No.
333-23127).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 of
Amendment No. 1 to the Company's Registration Statement on Form S-4
dated April 9, 1997, File No. 333-23127).
5.1 Opinion of Stoel Rives LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1).
24.1 Powers of Attorney.
EXHIBIT 5.1
December 12, 1997
Board of Directors
KinderCare Learning Centers, Inc.
825 NE Multnomah, Suite 1050
Portland, Oregon 97232
We have acted as counsel for KinderCare Learning Centers, Inc. (the
"Company") in connection with the filing of a Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended,
covering 2,342,105 shares of Common Stock (the "Shares") of the Company issuable
in connection with the Company's 1997 Stock Purchase and Option Plan for Key
Employees of KinderCare Learning Centers, Inc. and Subsidiaries (the "Plan"). We
have reviewed the corporate actions of the Company in connection with this
matter and have examined those documents, corporate records, and other
instruments we deemed necessary for the purposes of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the state of Delaware; and
2. The Shares have been duly authorized and, when issued pursuant to the
Plan and in accordance with the resolutions adopted by the Board of Directors of
the Company, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/
STOEL RIVES LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
the 1997 Stock Purchase and Option Plan for Key Employees of KinderCare Learning
Centers, Inc. on Form S-8 of our report dated August 15, 1997, appearing in the
Annual Report on Form 10-K of KinderCare Learning Centers, Inc. for the year
ended May 30, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Portland, Oregon
December 11, 1997
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use of our report incorporated herein by reference.
KPMG PEAT MARWICK LLP
Atlanta, Georgia
December 11, 1997
POWER OF ATTORNEY
(S-8)
The undersigned, an officer and/or director of KinderCare Learning Centers,
Inc., does hereby constitute and appoint each of DAVID J. JOHNSON, BETH A.
UGORETZ and EVA M. KRIPALANI his or her true and lawful attorney and agent to do
any and all acts and things and to execute in his or her name (whether on behalf
of KinderCare Learning Centers, Inc. or as an officer or director of said
Company) any and all instruments which said attorney and agent may deem
necessary or advisable in order to enable KinderCare Learning Centers, Inc. to
comply with the Securities Act of 1933, as amended, and any requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock of KinderCare Learning Centers, Inc. issuable pursuant to the Plan,
including specifically, but without limitation thereto, power and authority to
sign his or her name (whether on behalf of KinderCare Learning Centers, Inc. or
as an officer or director of said Company) to one or more Registration
Statements on Form S-8 and any amendment thereto (including any post-effective
amendment) or application for amendment thereto in respect to such Common Stock
or any exhibits filed therewith; and to file the same with the Securities and
Exchange Commission; and the undersigned does hereby ratify and confirm all that
said attorney and agent shall do or cause to be done by virtue hereof.
/s/ DAVID J. JOHNSON /s/ DAN JACKSON
- ----------------------------------- --------------------------------------
David J. Johnson Dan Jackson
Dated: October 31, 1997 Dated: October 31, 1997
/s/ HENRY R. KRAVIS /s/ GEORGE R. ROBERTS
- ----------------------------------- --------------------------------------
Henry R. Kravis George R. Roberts
Dated: October 31, 1997 Dated: October 31, 1997
/s/ CLIFTON S. ROBBINS /s/ NILS P. BROUS
- ----------------------------------- --------------------------------------
Clifton S. Robbins Nils P. Brous
Dated: October 31, 1997 Dated: November 19, 1997
/s/ SANDRA W. SCARR, Ph.D. /s/ STEPHEN KAPLAN
- ----------------------------------- --------------------------------------
Sandra W. Scarr, Ph.D. Stephen Kaplan
Dated: November 17, 1997 Dated: November 13, 1997
