As filed with the Securities and Exchange Commission on June 22, 1998
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)
---------------
Restated Nonqualified Deferred Compensation Plan
(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
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to Be Price Per Offering Registration
to Be Registered Registered Share Price Fee
- ------------------- ---------- --------- ---------- ------------
<S> <C> <C> <C> <C>
Deferred $5,000,000 NA $5,000,000 $1,475.00
Compensation
Obligations
</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.
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 securities registered hereby are deferred compensation obligations of
the Company under the Company's Restated Nonqualified Deferred Compensation Plan
(the "Plan"). These securities represent the contractual obligation of the
Company to pay or distribute when due to participants in the Plan cash with
respect to amounts deferred in accordance with the terms of the Plan. The right
of each participant in the Plan is that of a general, unsecured creditor of the
Company. A participant's interest under the Plan may not be sold, assigned,
transferred, pledged or otherwise encumbered.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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<PAGE>
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 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
II-2
<PAGE>
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.
(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.
II-3
<PAGE>
(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.
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 Corp. 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 8, 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 8, 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.
II-4
<PAGE>
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");
(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
II-5
<PAGE>
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 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.
II-6
<PAGE>
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 June 22, 1998.
KINDERCARE LEARNING CENTERS, INC.
By EVA M. KRIPALANI
-------------------------------------
Eva M. Kripalani
Vice President and General Counsel
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 June 22, 1998.
Signature Title
--------- -----
* DAVID J. JOHNSON Chief Executive Officer and Chairman
- ---------------------------------- of the Board of Directors (Principal
David J. Johnson Executive Officer)
DAN JACKSON Vice President, Financial Control and
- ---------------------------------- Planning (Principal Financial and
Dan Jackson Accounting Officer)
* HENRY R. KRAVIS Director
- ----------------------------------
Henry R. Kravis
* GEORGE R. ROBERTS Director
- ----------------------------------
George R. Roberts
II-7
<PAGE>
* CLIFTON S. ROBBINS Director
- ----------------------------------
Clifton S. Robbins
* NILS P. BROUS Director
- ----------------------------------
Nils P. Brous
* SANDRA W. SCARR Director
- ----------------------------------
Sandra W. Scarr, Ph.D.
* STEPHEN A. KAPLAN Director
- ----------------------------------
Stephen A. Kaplan
* By EVA M. KRIPALANI
----------------------------------
Eva M. Kripalani, Attorney-in-Fact
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
- -------- --------------------
4.1 Certificate of Merger of KCLC Acquisition Corp. 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 8, 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 8, 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
June 22, 1998
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 $5,000,000 deferred compensation obligations in connection with the
Company's Restated Nonqualified Deferred Compensation Plan (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 deferred compensation obligations have been duly authorized by all
requisite action on the part of the Company and, when issued in accordance with
the terms and conditions of the Plan, will be legally and validly issued and
will represent the binding obligation of the Company to make payments of cash to
the holders thereof in accordance with the terms and conditions of the Plan; and
3. The Plan is intended to qualify as an unfunded plan maintained by the
Company primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees of the Company.
Assuming such qualification, the Plan is exempt from the participation and
vesting, funding, and fiduciary
<PAGE>
responsibility requirements of the Employee Retirement Income Security Act of
1974, as amended, and the provisions of the Plan have been drafted to comply
with this exemption.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STOEL RIVES LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
the Restated Nonqualified Deferred Compensation Plan 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
June 19, 1998
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors of
KinderCare Learning Centers, Inc.:
We consent to the use of our report incorporated herein by reference.
KPMG PEAT MARWICK LLP
Atlanta, Georgia
June 19, 1998
POWER OF ATTORNEY
(Restated Nonqualified Deferred Compensation Plan S-8)
The undersigned, an officer and/or director of KinderCare Learning Centers,
Inc. (the "Company"), 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 the Company 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 the Company 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 deferred compensation
obligations of the Company issuable pursuant to the Company's Restated
Nonqualified Deferred Compensation Plan, including specifically, but without
limitation thereto, power and authority to sign his or her name (whether on
behalf of the Company 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 obligations 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.
DAVID J. JOHNSON
- ----------------------------------
David J. Johnson
Dated: June 22, 1998
HENRY R. KRAVIS GEORGE R. ROBERTS
- ---------------------------------- ----------------------------------
Henry R. Kravis George R. Roberts
Dated: June 22, 1998 Dated: June 22, 1998
CLIFTON S. ROBBINS NILS P. BROUS
- ---------------------------------- ----------------------------------
Clifton S. Robbins Nils P. Brous
Dated: June 22, 1998 Dated: May 27, 1998
SANDRA W. SCARR, Ph.D. STEPHEN A. KAPLAN
- ---------------------------------- ----------------------------------
Sandra W. Scarr, Ph.D. Stephen A. Kaplan
Dated: May 21, 1998 Dated: May 20, 1998
