<PAGE>
As filed with the Securities and Exchange Commission on March 10, 1999
Registration No. 333-73257
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
KOHL'S CORPORATION
(Exact name of Registrant as specified in its charter)
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(414) 703-7000
(Name, address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Wisconsin 39-1630919
(I.R.S. Employer
(State or other jurisdiction Identification No.)
of incorporation or organization)
William S. Kellogg
R. Lawrence Montgomery
Kohl's Corporation
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(414) 703-7000
(Name, address, including zip code, and telephone number, including area code,
of agents for service)
---------------
Copies to:
Peter M. Sommerhauser Andrew R. Schleider
Godfrey & Kahn, S.C. Shearman & Sterling
780 North Water Street 599 Lexington Avenue
Milwaukee, Wisconsin 53202 New York, New York 10022
(414) 273-3500 --------------- (212) 848-4000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum
Title of each Class of Amount Maximum Aggregate Amount of
Securities to be to be Offering Price Offering Registration
Registered Registered(1) Per Unit(2) Price(2) Fee
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value................. 4,903,600 shares $66 29/32 $328,081,488 $91,207(3)
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
</TABLE>
(1) Includes 639,600 shares that the underwriters have the option to purchase
to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average of the high and low
prices of the common stock on the New York Stock Exchange on February 25,
1999.
(3) Paid on March 3, 1999.
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This registration statement contains two forms of prospectus: one to be
used in connection with an offering in the United States and Canada and one to
be used in a concurrent offering outside the United States and Canada. The
prospectuses are identical in all material respects except for the front cover
page. The U.S. prospectus is included in this registration statement and is
followed by the alternate front cover page to be used in the international
prospectus. The alternate page for the international prospectus included in
this registration statement is labeled "Alternate Page for International
Prospectus." Final forms of each prospectus will be filed with the Securities
and Exchange Commission under Rule 424(b).
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+Information in this prospectus is not complete and may be changed. We may not +
+sell these securities until the Registration Statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and we are not soliciting offers to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS (Subject to Completion)
Issued March 10, 1999
4,264,000 Shares
Common Stock
-----------
Kohl's Corporation is offering 2,800,000 shares and the selling stockholders
are offering 1,464,000 shares. Initially, the U.S. underwriters are offering
3,411,200 shares in the United States and Canada, and the international
underwriters are offering 852,800 shares outside the United States and
Canada.
-----------
Kohl's Corporation's common stock is listed on the New York Stock Exchange
under the symbol "KSS." On March 9, 1999, the reported last sale price of
the common stock on the New York Stock Exchange was $73 3/8 per share.
-----------
PRICE $ A SHARE
-----------
<TABLE>
<CAPTION>
Underwriting Proceeds to
Price to Discounts and Proceeds to Selling
Public Commissions Company Stockholders
-------- ------------- ----------- ------------
<S> <C> <C> <C> <C>
Per
Share.... $ $ $ $
Total..... $ $ $ $
</TABLE>
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
Kohl's Corporation has granted the U.S. underwriters the right to purchase up
to an additional 639,600 shares of common stock to cover over-allotments.
Morgan Stanley & Co. Incorporated expects to deliver the shares to purchasers
on , 1999.
-----------
MORGAN STANLEY DEAN WITTER
MERRILL LYNCH & CO.
ROBERT W. BAIRD & CO.
Incorporated
WILLIAM BLAIR & COMPANY
, 1999
<PAGE>
ABOUT THIS PROSPECTUS
You should rely only on the information contained in or incorporated by
reference in this prospectus. We and the selling stockholders have not
authorized anyone else to provide you with different information. We and the
selling stockholders are not making an offer of the common stock in any state
where the offer or sale is not permitted. The information in this prospectus
is accurate only as of any date of this prospectus.
In this prospectus, the terms "Kohl's", "we" and "our" mean Kohl's
Corporation and its consolidated subsidiaries.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Kohl's................................................................... 3
Selected Consolidated Financial Data..................................... 4
Use of Proceeds.......................................................... 6
Price Range of Common Stock and Dividend Policy.......................... 6
Capitalization........................................................... 7
Description of Capital Stock............................................. 8
Selling Stockholders..................................................... 10
United States Federal Income Tax Considerations To Non-United States
Holders................................................................. 12
Underwriters............................................................. 14
Legal Matters............................................................ 17
Experts.................................................................. 17
Forward-Looking Statements............................................... 17
Where You Can Find More Information...................................... 18
</TABLE>
----------------
"Kohl's" is one of our federally registered service marks. This prospectus
also includes or incorporates references to trademarks and brand names of
other companies.
2
<PAGE>
KOHL'S
We currently operate 213 family oriented, specialty department stores
primarily in the Midwest and Mid-Atlantic areas of the United States. Our
stores feature quality, national brand merchandise which provides exceptional
value to customers. We sell moderately priced apparel, shoes, accessories,
soft home products and housewares targeted to middle-income customers shopping
for their families and homes. Our stores have fewer departments than
traditional, full-line department stores, but offer customers dominant
assortments of merchandise displayed in complete selections of styles, colors
and sizes. Central to our pricing strategy and overall profitability is a
culture focused on maintaining a low cost structure. Critical elements of this
low cost structure are our unique store format, lean staffing levels,
sophisticated management information systems and operating efficiencies
resulting from centralized buying, advertising and distribution.
Since 1986, we have expanded from 40 stores to our current total of 213
stores both by acquiring and converting pre-existing stores to our retailing
format and by opening new stores. From fiscal 1993 to fiscal 1997, our net
sales increased from $1.3 billion to $3.1 billion and our operating income
increased from $102.4 million to $258.8 million. In fiscal 1998, our net sales
increased to $3.7 billion.
We believe that we have substantial opportunity for further growth. We plan
to open approximately 40 to 45 stores in 1999, including entering new markets
in Denver, St. Louis and Dallas/Ft. Worth. We plan to open 50 to 55 stores in
2000, including 33 locations previously operated by Caldor Corporation in New
York (12 stores), New Jersey (11 stores), Connecticut (9 stores) and Maryland
(1 store). Our expansion strategy is to open additional stores in existing
markets, where we can leverage advertising, purchasing, transportation and
other regional overhead expenses; in contiguous markets, where we can extend
regional operating efficiencies; and in new markets which offer a similar
opportunity to implement our retailing concept successfully.
Our retailing concept has proven to be readily transferable to new markets.
For example, we have successfully opened new stores in small markets, such as
Kalamazoo and Knoxville; intermediate markets, such as Kansas City and
Charlotte; and large markets, such as Chicago and Philadelphia. In addition,
our concept has been successful in various retailing formats such as strip
shopping centers, community and regional malls and free-standing stores. We
believe that the transferability of our retailing strategy, our experience in
acquiring and converting pre-existing stores and in opening new stores, and
our substantial investment in our management information systems, centralized
distribution and headquarters functions provide a solid foundation for further
expansion.
Our fiscal year ends on the Saturday closest to January 31. Our principal
executive offices are located at N56 W17000 Ridgewood Drive, Menomonee Falls,
Wisconsin 53051. Our telephone number at this location is (414) 703-7000.
Recent Developments
Net sales and sales growth for the thirteen weeks and years ended January
31, 1998 and January 30, 1999 were as follows:
<TABLE>
<CAPTION>
Percentage Increase at
Period Ended January 30, 1999
--------------------------------- ---------------------------
All Comparable
January 31, 1998 January 30, 1999 Stores Stores
---------------- ---------------- ----------- -------------
(in millions)
<S> <C> <C> <C> <C>
Thirteen weeks.. $1,077.8 $1,289.5 19.6% 6.4%
Year............ 3,060.1 3,681.8 20.3 7.9
</TABLE>
Comparable stores sales growth represents sales of those stores open
throughout the full period and throughout the full prior period.
At January 30, 1999, we operated 213 stores compared to 182 stores at
January 31, 1998.
On March 2, 1999, we purchased the right to occupy 32 store locations
previously operated by Caldor Corporation. We expect to purchase Caldor's
lease for a 33rd store location within thirty days. We plan to take possession
of the stores after Caldor completes its "going out of business sale," and we
expect that the stores will be open for business in spring 2000. We paid $142
million for the rights to occupy the stores and expect to invest approximately
$165 million more to renovate and refixture the stores.
3
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
We derived the selected consolidated financial data in the following table
for each of the five years in the period ended January 31, 1998 from our
consolidated financial statements, which have been audited by Ernst & Young
LLP, independent auditors. You should read this information in conjunction
with our consolidated financial statements and related notes, management's
discussion and analysis of financial condition and results of operations and
other financial information incorporated into this prospectus. We derived the
selected consolidated financial data for the nine months ended November 1,
1997 and October 31, 1998 from our unaudited consolidated financial
statements, which, in the opinion of management, include all adjustments,
consisting of normal recurring accruals, necessary for a fair presentation of
the financial position and results of operations as of the dates and for the
periods presented. The results for the nine months ended October 31, 1998 are
not necessarily indicative of results to be expected for the full fiscal year.
Our fiscal year ends on the Saturday closest to January 31. Fiscal 1995
contained 53 weeks. We adjusted all per share data to reflect the 2-for-1
stock splits effected in April 1996 and April 1998.
<TABLE>
<CAPTION>
Fiscal Year Ended Nine Months Ended
--------------------------------------------------------------- ------------------------
January 29, January 28, February 3, February 1, January 31, November 1, October 31,
1994 1995 1996 1997 1998 1997 1998
----------- ----------- ----------- ----------- ----------- ----------- -----------
(In Thousands, Except Per Share and Per Square Foot Data) (Unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Net sales............... $1,305,746 $1,554,100 $1,925,669 $2,388,221 $3,060,065 $1,982,257 $2,392,215
Cost of merchandise
sold................... 869,236 1,037,740 1,294,653 1,608,688 2,046,468 1,317,121 1,582,547
---------- ---------- ---------- ---------- ---------- ---------- ----------
Gross margin............ 436,510 516,360 631,016 779,533 1,013,597 665,136 809,668
Selling, general and
administrative
expenses............... 305,547 356,893 436,442 536,226 678,793 472,061 565,280
Depreciation and
amortization........... 23,201 27,402 33,931 44,015 57,380 41,813 51,383
Preopening expenses..... 5,360 8,190 10,712 10,302 18,589 18,589 15,591
Credit operations, non-
recurring(a)........... -- -- 14,052 -- -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Operating income........ 102,402 123,875 135,879 188,990 258,835 132,673 177,414
Interest expense, net... 5,711 6,424 13,150 17,622 23,772 18,405 15,627
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before income
taxes and extraordinary
item................... 96,691 117,451 122,729 171,368 235,063 114,268 161,787
Income taxes............ 41,029 48,939 50,077 68,890 93,790 45,593 63,583
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before
extraordinary item..... 55,662 68,512 72,652 102,478 141,273 68,675 98,204
Extraordinary item(b)... (1,769) -- -- -- -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income.............. $ 53,893 $ 68,512 $ 72,652 $ 102,478 $ 141,273 $ 68,675 $ 98,204
========== ========== ========== ========== ========== ========== ==========
Per share:
Basic.................. $ .37 $ .47 $ .49 $ .69 $ .93 $ .46 $ .62
Diluted................ .36 .46 .49 .68 .91 .45 .60
Operating Data:
Comparable store sales
growth(c).............. 8.3% 6.1% 5.9% 11.3% 10.0% 10.2% 8.8%
Net sales per selling
square foot(d)......... $ 255 $ 258 $ 257 $ 261 $ 267 $ 178 $ 180
Total square feet of
selling space
(in thousands; end of
period)................ 5,523 6,824 8,378 10,064 12,533 12,486 15,129
Number of stores open
(end of period)........ 90 108 128 150 182 182 214(e)
Capital expenditures
including capitalized
leases................. $ 64,813 $ 132,800 $ 138,797 $ 223,423 $ 202,735 $ 163,921 $ 183,784
Balance Sheet Data (end
of period):
Working capital......... $ 86,856 $ 114,637 $ 175,368 $ 229,339 $ 525,251 $ 468,009 $ 566,557
Property and equipment,
net.................... 186,626 298,737 409,168 596,227 749,649 724,019 883,602
Total assets............ 469,289 658,717 805,385 1,122,483 1,619,721 1,607,536 1,930,086
Total long-term debt.... 51,852 108,777 187,699 312,031 310,366 310,932 379,076
Shareholders' equity.... 262,502 334,249 410,638 517,471 954,782 874,561 1,056,938
</TABLE>
(footnotes on next page)
4
<PAGE>
(footnotes from previous page)
(a) Effective September 1, 1995, we terminated our agreement with Citicorp
Retail Services under which we sold our private label credit card
receivables. At the same time, we established our own credit card
operation. In connection with this transaction, we incurred a one-time
charge of $14.1 million ($8.3 million after-tax).
(b) The extraordinary item reflects an after-tax charge of $1.8 million to
write-off unamortized deferred financing costs in connection with our
termination of certain credit facilities in January 1994.
(c) Comparable store sales for each period are based on sales of stores
(including relocated or expanded stores) open throughout the current and
prior year. Comparable store sales growth for fiscal 1996 compares the 52
weeks of fiscal 1996 to the same 52 week calendar in fiscal 1995 and
excludes the electronics business that we discontinued in 1996. Comparable
store sales growth for fiscal 1995 has been adjusted to eliminate the 53rd
week in fiscal 1995.
(d) Net sales per selling square foot is calculated using net sales of stores
that have been open for the full period, divided by their square footage
of selling space.
(e) We subsequently closed one undersized store in the Milwaukee market upon
expiration of the lease.
5
<PAGE>
USE OF PROCEEDS
We estimate that we will receive net proceeds from the offering of
approximately $198.9 million, based on an assumed offering price of $73 3/8
per share. We intend to use approximately $165 million of the proceeds to
renovate and refixture 33 former Caldor stores. On March 2, 1999, we purchased
the right to occupy 32 of the store locations and expect to purchase the
rights to occupy the 33rd store location within thirty days. We intend to use
the remaining proceeds for other general corporate purposes, including
financing our continued store growth. Until we use the proceeds for these
purposes, we will temporarily repay borrowings under our revolving credit
facility and reduce future sales of accounts receivable under our accounts
receivable financing program. At February 27, 1999, the interest rate payable
under our revolving credit facility was approximately 5 1/8% per annum. The
facility matures on June 12, 2003. We will not receive any proceeds from the
sale of common stock by the selling stockholders, but we will receive the
exercise price of their employee stock options.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The common stock has been traded on the New York Stock Exchange since May
19, 1992, under the symbol "KSS." The table below sets forth the high and low
prices of the common stock for the fiscal periods indicated, adjusted for our
2-for-1 stock splits effected in April 1996 and April 1998.
<TABLE>
<CAPTION>
Common Stock Price
-------------------
High Low
--------- ---------
<S> <C> <C>
Fiscal 1999
First Quarter (through March 9, 1999)....................... $73 3/8 $63 3/8
Fiscal 1998
First Quarter............................................... $43 15/32 $34 11/16
Second Quarter.............................................. 57 5/8 40 1/2
Third Quarter............................................... 58 11/16 34 1/16
Fourth Quarter.............................................. 67 3/4 45 1/8
Fiscal 1997
First Quarter............................................... $25 9/16 $19 7/16
Second Quarter.............................................. 31 19/32 24 7/8
Third Quarter............................................... 37 3/8 29
Fourth Quarter.............................................. 37 11/16 31 5/16
</TABLE>
See the cover page of this prospectus for a recent reported last sale
price.
At January 29, 1999, there were 5,495 holders of record of our common
stock.
We have never paid a cash dividend, have no current plans to pay dividends,
and intend to retain all our earnings for investment in and growth of our
business. In addition, financial covenants and other restrictions in our
financing agreements limit our ability to pay dividends. The payment of future
dividends, if any, will be determined by our board of directors in light of
existing conditions, including our earnings, financial condition and
requirements, restrictions in our financing agreements, business conditions
and other factors they deem relevant.
6
<PAGE>
CAPITALIZATION
The following table sets forth our consolidated capitalization as of
October 31, 1998, and as adjusted to give effect to the offering and the
exercise of employee stock options by the selling stockholders. We based the
adjustment on an assumed offering price of $73 3/8 per share for the 2,800,000
shares that we are selling in the offering. We also adjusted for the proceeds
that we will receive upon exercise of employee stock options for 1,309,000
shares of common stock by the selling stockholders and the related income tax
benefits that we will receive. The adjustments from the stock option exercises
increased total shareholders' equity by $44.5 million. For purposes of the
table, we have assumed that the U.S. underwriters do not exercise their over-
allotment option and that $69.5 million of the net proceeds are applied to
repay borrowings under our revolving credit facility. At February 27, 1999, we
had no borrowings under our revolving credit facility.
<TABLE>
<CAPTION>
As of October 31, 1998
----------------------
Actual As Adjusted
---------- -----------
(In Thousands)
<S> <C> <C>
Long-term debt:
Revolving credit facility............................. $ 69,500 $ --
Capitalized lease obligations......................... 47,421 47,421
6.57% unsecured senior notes, due 2004................ 60,000 60,000
6.70% notes, due 2006................................. 100,000 100,000
7 3/8% notes, due 2011................................ 100,000 100,000
Other................................................. 2,155 2,155
---------- ----------
Total long-term debt................................ 379,076 309,576
Shareholders' equity:
Common stock; 158,202,170 shares outstanding
(162,311,170 shares after the offering).............. 1,582 1,623
Paid-in capital....................................... 492,498 735,927
Retained earnings..................................... 562,858 562,858
---------- ----------
Total shareholders' equity.......................... 1,056,938 1,300,408
---------- ----------
Total capitalization................................ $1,436,014 $1,609,984
========== ==========
</TABLE>
7
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 400,000,000 common shares, $0.01
par value per share, and 10,000,000 preferred shares, $0.01 par value per
share. As of January 30, 1999, 158,394,735 shares of common stock and no
shares of preferred stock were issued and outstanding.
Common Stock
Voting. For all matters submitted to a vote of stockholders, each holder of
common stock is entitled to one vote for each share registered in his or her
name on the books of Kohl's. Our common stock does not have cumulative voting
rights. As a result, subject to the voting rights of any outstanding preferred
stock and any voting limitations imposed by the Wisconsin Business Corporation
Law, persons who hold more than 50% of the outstanding common stock can elect
all of the directors who are up for election in a particular year.
Election of Board of Directors. Our articles of incorporation divide the
board of directors into three classes serving staggered three-year terms. As a
result, at least two annual meetings will generally be required for
stockholders to effect a change of a majority of the board of directors. Any
director, or the entire board of directors, may be removed from office only
for cause. These provisions in the articles of incorporation require an 80%
vote of stockholders to amend or repeal.
Dividends. If our board declares a dividend, holders of common stock will
receive payments from the funds of Kohl's that are legally available to pay
dividends. However, this dividend right is subject to any preferential
dividend rights we may grant to the persons who hold preferred stock, if any
is outstanding.
Liquidation. If Kohl's is dissolved, the holders of common stock will be
entitled to share ratably in all the assets that remain after we pay our
liabilities and any amounts we may owe to the persons who hold preferred
stock, if any is outstanding.
Other Rights and Restrictions. Holders of common stock do not have
preemptive rights, and they have no right to convert their common stock into
any other securities. Our common stock is not redeemable.
Listing. Our common stock is listed on the New York Stock Exchange.
Transfer Agent and Registrar. The transfer agent and registrar for our
common stock is The Bank of New York.
Wisconsin Business Corporation Law
Provisions of the Wisconsin Business Corporation Law ("WBCL") could have
the effect of delaying, deterring or preventing a change in control of Kohl's.
Restrictions on Business Combinations. Sections 180.1130 to 180.1134 of the
WBCL provide generally that for a "resident domestic corporation," such as
Kohl's, business combinations not meeting fair price standards specified in
the statute must be approved by the affirmative vote of at least (1) 80% of
the votes entitled to be cast by the outstanding voting shares of the
corporation, and (2) two-thirds of the votes entitled to be cast by the
holders of voting shares that are not beneficially owned by a "significant
shareholder" or an affiliate or associate of a significant shareholder who is
a party to the transaction. This requirement is in addition to any vote that
may be required by law or our articles of incorporation. The term "business
combination" means, subject to certain exceptions, a merger or share exchange
of the issuing public corporation (or any subsidiary of that corporation)
with, or the sale or other disposition of substantially all of the property
and assets of the issuing public corporation to, any significant shareholder
or affiliate of a significant shareholder. "Significant shareholder" means a
person that is the beneficial owner of 10% or more of the voting power of the
outstanding voting shares of the issuing public corporation. These statutory
sections also restrict the repurchase of shares and the sale of corporate
assets by an issuing public corporation in response to a takeover offer.
8
<PAGE>
Sections 180.1140 to 180.1144 of the WBCL prohibit certain "business
combinations" between a "resident domestic corporation" and an interested
shareholder within three years after the date such person became an interested
shareholder, unless the business combination or the acquisition of the
interested shareholder's stock has been approved before the stock acquisition
date by the corporation's board of directors. An "interested shareholder" is a
person beneficially owning 10% or more of the voting power of the outstanding
voting stock of such corporation. After the three-year period, a business
combination with the interested shareholder may be consummated only with the
approval of the holders of a majority of the voting stock not beneficially
owned by the interested shareholder at a meeting called for that purpose,
unless the business combination satisfies specified adequacy-of-price
standards intended to provide a fair price for shares held by disinterested
stockholders.
Control Share Voting Restrictions. Under Section 180.1150(2) of the WBCL,
the voting power of shares of a "resident domestic corporation" that are held
by any person in excess of 20% of the voting power are limited (in voting on
any matter) to 10% of the full voting power of those excess shares, unless
otherwise provided in the articles of incorporation or unless full voting
rights have been restored at a special meeting of the stockholders called for
that purpose. This statute is designed to protect corporations against
uninvited takeover bids by reducing to one-tenth of their normal voting power
all shares in excess of 20% owned by an acquiring person. Section 180.1150(3)
excludes shares held or acquired under certain circumstances from the
application of Section 180.1150(2), including (among others) shares acquired
directly from Kohl's and shares acquired in a merger or share exchange to
which Kohl's is a party.
Constituency Provision. Under Section 180.0827 of the WBCL, in discharging
his or her duties, a director or officer of Kohl's may, in addition to
considering the effects of any action on stockholders, consider the effects of
any action on employees, suppliers, customers, the communities in which Kohl's
operates and any other factors that the director or officer considers
pertinent.
Preferred Stock
Our articles of incorporation authorize the board of directors to issue
preferred stock in one or more series and to determine the voting rights,
dividend rights, dividend rates, liquidation preferences, conversion or
exchange rights, redemption rights, including sinking fund provisions and
redemption prices, and other terms and rights of each series.
Although our board of directors does not presently intend to authorize the
issuance of preferred stock, it could issue a series of preferred stock that
could impede the completion of a merger, tender offer or other takeover
attempt. Our board will issue such a series of preferred stock only if it
determines that the issuance is in the best interests of Kohl's and its
stockholders. In addition, the terms of a series of preferred stock might
discourage a potential acquiror from attempting to acquire Kohl's in a manner
that changes the composition of our board of directors, even when a majority
of our stockholders believe that such an acquisition would be in their best
interests or would receive a premium for their stock over the then current
market price.
9
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth information about the beneficial ownership
of the common stock as of December 31, 1998, and after the sale of the common
stock offered hereby, by each selling stockholder. To calculate the percentage
owned after the offering, we assume no exercise of the U.S. underwriters'
over-allotment option. Each of the selling stockholders (other than Mr.
Sommerhauser) is an executive officer of Kohl's. Messrs. Kellogg, Baker,
Herma, Montgomery, Mansell and Sommerhauser is each a director. Except as
otherwise noted below, the selling stockholders have sole voting and
investment power with respect to their shares.
<TABLE>
<CAPTION>
Shares Beneficially Shares Beneficially
Owned Prior to Offering Shares Owned After Offering
------------------------------ Being ---------------------------
Name of Beneficial Owner Number Percent Offered Number Percent
- ------------------------ -------------- ------------------- ------------- ----------
<S> <C> <C> <C> <C> <C>
William S. Kellogg...... 12,487,045(a) 7.8% 559,300(b) 11,827,745(a) 7.3%
Jay H. Baker............ 5,368,718(c) 3.4 400,000(d) 4,968,718(c) 3.1
John F. Herma........... 6,847,273(e) 4.3 341,100 6,506,173(e) 4.0
R. Lawrence Montgomery.. 819,960(f) * 41,000 778,960(f) *
Kevin Mansell........... 639,810(g) * 32,000 607,810(g) *
Caryn Blanc............. 697,450(h) * 34,900 662,550(h) *
Arlene Meier............ 390,100(i) * 19,500 370,600(i) *
Jeffrey Rusinow......... 129,500(j) * 6,500 123,000(j) *
Donald Sharpin.......... 83,500(j) * 4,200 79,300(j) *
Gary Vasques............ 80,000(j) * 4,000 76,000(j) *
Richard Leto............ 61,000(j) * 3,000 58,000(j) *
Peter M. Sommerhauser... 16,837,673(k) 10.6 18,500(b) 16,719,173(k) 10.3
</TABLE>
(footnotes on next page)
10
<PAGE>
(footnotes from previous page)
* Less than 1%.
(a) Includes 9,337,245 shares held in trust for the benefit of Mr. Kellogg's
family but as to which Mr. Sommerhauser has sole voting and investment
power and 43,260 shares held by a charitable foundation for which Mr.
Kellogg serves as a director and president. Includes 1,258,900 shares
(1,158,900 shares after the offering) held in trust for the benefit of Mr.
Baker's family and as to which Mr. Kellogg and Mr. Sommerhauser have
shared voting and investment power but no pecuniary interest. Includes
950,000 shares (390,700 shares after the offering) represented by stock
options.
(b) Excludes 100,000 shares being offered by the Jay Baker Children's Trusts.
(c) Includes 1,258,900 shares (1,158,900 shares after the offering) held in
trust for the benefit of Mr. Baker's family as to which Mr. Kellogg and
Mr. Sommerhauser have shared voting and investment power and 125,660
shares held by a charitable foundation for which Mr. Baker serves as a
director and president. Also includes 475,000 shares (175,000 shares after
the offering) represented by stock options.
(d) Includes 100,000 shares being offered by the Jay Baker Children's Trusts.
(e) Includes 5,351,703 shares held in trust for the benefit of Mr. Herma's
family as to which Mr. Sommerhauser has sole voting and investment power
and 25,150 shares held by a charitable foundation for which Mr. Herma
serves as a director and president. Also includes 475,000 shares (133,900
shares after the offering) represented by stock options.
(f) Includes 125,948 shares held in trust for the benefit of Mr. Montgomery's
family as to which Mr. Sommerhauser has sole voting and investment power.
Also includes 520,828 shares (500,328 shares after the offering)
represented by stock options.
(g) Includes 138,000 shares held in trust for the benefit of Mr. Mansell's
family as to which Mr. Sommerhauser has sole voting and investment power.
Also includes 327,078 shares (311,078 shares after the offering)
represented by stock options.
(h) Includes 545,454 shares (510,554 shares after the offering) represented by
stock options.
(i) Includes 383,100 shares (363,600 shares after the offering) represented by
stock options.
(j) All of the shares are represented by stock options.
(k) Includes 16,461,866 shares (16,361,866 shares after the offering) held in
trust for the benefit of the families of current and former executive
officers of Kohl's or in charitable foundations established by executive
officers of Kohl's, as to which Mr. Sommerhauser has sole or shared voting
and investment power but no pecuniary interest. Includes 81,042 shares
held in trust for the benefit of Mr. Sommerhauser's family as to which Mr.
Sommerhauser has no voting or investment power and 5,500 shares held by a
charitable foundation for which Mr. Sommerhauser serves as director and
president. Includes 2,000 shares represented by stock options.
11
<PAGE>
UNITED STATES FEDERAL TAX CONSIDERATIONS
TO NON-UNITED STATES HOLDERS
This section summarizes the United States federal income and estate tax
issues that a nonresident alien individual foreign corporation, foreign
partnership or other foreign shareholder (a "non-United States shareholder")
may consider relevant in connection with its purchase, ownership and
disposition of our common stock. This summary does not address all of the
United States federal income and estate tax considerations that may be
relevant to you in light of your particular circumstances or if you are
subject to special treatment under United States federal income tax laws.
Furthermore, this summary does not discuss any aspects of state, local or
foreign taxation. We base this summary on current provisions of the federal
income tax laws, Treasury regulations, judicial opinions, published positions
of the United States Internal Revenue Service (the "IRS") and other applicable
authorities, all of which are subject to change, possibly with retroactive
effect. We urge you to consult your own adviser with respect to the tax
consequences of acquiring, holding and disposing of our common stock.
Dividends. Dividends that we pay to you generally will be subject to
withholding of United States federal income tax at the rate or 30% (or such
lower rate specified in an applicable income tax treaty) unless the dividend
is effectively connected with your conduct of a trade or business within the
United States (of if certain tax treaties apply, is attributable to a United
States permanent establishment maintained by you) and you file the appropriate
documentation with Kohl's or our transfer agent, in which case you will be
subject to United States federal income tax at graduated rates in the same
manner as United States persons are taxed. If you are a corporation, such
effectively connected income also may be subject to the branch profits tax at
a rate of 30% (or such lower rate specified in an applicable income tax
treaty), which is generally imposed on a foreign corporation on the
repatriation from the United States of effectively connected earnings and
profits. You should consult any applicable income tax treaties that may
provide for a lower rate of withholding or other rules different from those
described above. You may be required to satisfy certain certification
requirements in order to claim treaty benefits or otherwise claim a reduction
of or exemption from withholding under the foregoing rules.
Sale or Disposition of Common Stock. You generally will not incur United
States federal income tax on gain recognized on a sale or other disposition of
our common stock unless:
(1) the gain is effectively connected with your conduct of a trade or
business within the United States or if certain tax treaties apply, is
attributable to a United States permanent establishment maintained by you;
(2) you are a nonresident alien, hold our common stock as a capital
asset and are present in the United States for 183 or more days in the
taxable year of disposition and either you have a "tax home" in the United
States or the gain is attributable to an office or other fixed place of
business maintained by you in the United States;
(3) Kohl's is or has been a "United States real property holding
corporation" for United States federal income tax purposes (which we likely
are not) and in the event that our common stock is considered regularly
traded, you hold or have held, directly or indirectly, at any time during
the five-year period ending on the date of disposition (or, if shorter,
your holding period), more than 5% of our common stock, in which case your
gain will be taxed as if it were gain described in clause (1) above; or
(4) you are subject to tax pursuant to the federal income tax provisions
applicable to certain United States expatriates.
Gain that is or is treated as effectively connected with your conduct of a
trade or business within the United States will be subject to United States
federal income tax on the same basis that applies to United States persons
generally (and, with respect to corporate holders, under certain
circumstances, the branch profits tax) but will not be subject to withholding.
You should consult any applicable treaties that may provide for different
rules. A non-resident alien holding our common stock as a capital asset as
described in clause (2) above, generally will incur a 30% (or such lower rate
specified in an applicable income tax treaty) tax on the gain derived from the
sale, which gain may be offset by certain United States source capital losses.
12
<PAGE>
Federal Estate Taxes. If an individual who is not a citizen (as
specifically defined for United States federal estate tax purposes) of the
United States at the time of death owns or is treated as owning our common
stock, then such common stock will be included in that individual's gross
estate for United States federal estate tax purposes, unless an applicable
estate tax treaty provides otherwise.
Information Reporting and Backup Withholding. We must report annually to
the IRS and to you the amount of dividends paid to you and the amount of tax
withheld with respect to such dividends, regardless of whether any tax is
actually withheld. This information may also be made available to the
authorities of a country in which you reside under the provisions of an
applicable income tax treaty or other agreement.
Under current federal income tax law, United States information reporting
requirements and backup withholding tax at a rate of 31% will generally apply
(1) to dividends that we pay on our common stock to you at an address within
the United States and (2) to payments to you by a United States office of a
broker of the proceeds of a sale of common stock unless you certify your non-
United States shareholder status under penalties of perjury or otherwise
establish an exemption. Information reporting requirements (but not backup
withholding) will also apply to payments of the proceeds of sales of our
common stock by foreign offices or United States brokers, or foreign brokers
with certain types of relationships to the United States, unless the broker
has documentary evidence in its records that you are a non-United States
shareholder and certain other conditions are met, or you otherwise establish
an exemption.
The United States Treasury Department has issued regulations generally
effective for payments made after December 31, 1999 that will affect the
procedures that you must follow in establishing your status as a non-United
States shareholder for purposes of the withholding, backup withholding and
information reporting rules discussed in this prospectus. Among other things,
(1) non-United States shareholders currently required to furnish certification
of foreign status may be required to furnish new certification of foreign
status, and (2) certain non-United States shareholders not currently required
to furnish certification of foreign status may be required to furnish
certification of foreign status in the future. We urge you to consult your tax
adviser concerning the effect of such regulations on an investment in our
common stock.
Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules generally will be refunded or credited against your
United States federal income tax liability, provided that the required
information is furnished to the IRS.
13
<PAGE>
UNDERWRITERS
Under the terms and subject to the conditions in the underwriting agreement
dated the date of this prospectus, the U.S. underwriters named below, for whom
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce Fenner & Smith
Incorporated, Robert W. Baird & Co. Incorporated and William Blair & Company,
L.L.C. are acting as U.S. representatives, and the international underwriters
named below, for whom Morgan Stanley & Co. International Limited, Merrill
Lynch International, Robert W. Baird & Co. Incorporated and William Blair &
Company, L.L.C. are acting as international representatives, have severally
agreed to purchase, and we and the selling stockholders have agreed to sell to
them, severally, the respective number of shares of common stock set forth
opposite the names of such underwriters below:
<TABLE>
<CAPTION>
Number of
Name Shares
---- ---------
<S> <C>
U.S. Underwriters:
Morgan Stanley & Co. Incorporated...................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated........................................................
Robert W. Baird & Co. Incorporated..................................
William Blair & Company, L.L.C......................................
---------
Subtotal.......................................................... 3,411,200
---------
International Underwriters:
Morgan Stanley & Co. International Limited..........................
Merrill Lynch International.........................................
Robert W. Baird & Co. Incorporated..................................
William Blair & Company, L.L.C......................................
---------
Subtotal.......................................................... 852,800
---------
Total........................................................... 4,264,000
=========
</TABLE>
The U.S. underwriters and the international underwriters, and the U.S.
representatives and the international representatives, are collectively
referred to as the "underwriters" and the "representatives," respectively. The
underwriters are offering the shares of common stock subject to their
acceptance of the shares from us and the selling stockholders and subject to
prior sale. The underwriting agreement provides that the obligations of the
several underwriters to pay for and accept delivery of the shares of common
stock offered hereby are subject to the approval of certain legal matters by
their counsel and to certain other conditions. The underwriters are obligated
to take and pay for all of the shares of common stock offered hereby (other
than those covered by the U.S. underwriters' over-allotment option described
below) if any such shares are taken.
Pursuant to the Agreement between U.S. and International Underwriters, each
U.S. underwriter has represented and agreed that, with certain exceptions:
. it is not purchasing any shares (as defined herein) for the account of
anyone other than a United States or Canadian person (as defined
herein); and
14
<PAGE>
. it has not offered or sold, and will not offer or sell, directly or
indirectly, any shares or distribute any prospectus relating to the
shares outside the United States or Canada or to anyone other than a
United States or Canadian person.
Pursuant to the Agreement between U.S. and International Underwriters, each
international underwriter has represented and agreed that, with certain
exceptions:
. it is not purchasing any shares for the account of any United States or
Canadian person; and
. it has not offered or sold, and will not offer or sell, directly or
indirectly, any shares or distribute any prospectus relating to the
shares in the United States or Canada or to any United States or
Canadian person.
With respect to any underwriter that is a U.S. underwriter and an
international underwriter, the foregoing representations and agreements (1)
made by it in its capacity as a U.S. underwriter apply to it in its capacity
as a U.S. underwriter and (2) made by it in its capacity as an international
underwriter apply only to it in its capacity as an international underwriter.
The foregoing limitations do not apply to stabilization transactions or to
certain other transactions specified in the Agreement between U.S. and
International Underwriters. As used herein, "United States" or "Canadian"
person means any national or resident of the United States or Canada, or any
corporation, pension, profit-sharing or other trust or other entity organized
under the laws of the United States or Canada or of any political subdivision
thereof (other than a branch located outside the United States and Canada of
any United States or Canadian person), and includes any United States or
Canadian branch of a person who is otherwise not a United States or Canadian
person. All shares of common stock to be purchased by the underwriters under
the Underwriting Agreement are referred to herein as the "shares."
Pursuant to the Agreement between U.S. and International Underwriters,
sales may be made between U.S. underwriters and international underwriters of
any number of shares as may be mutually agreed. The per share price of any
shares so sold shall be the public offering price set forth on the cover page
hereof, in United States dollars, less an amount not greater than the per
share amount of the concession to dealers set forth below.
Pursuant to the Agreement between U.S. and International Underwriters, each
U.S. underwriter has represented that it has not offered or sold, and has
agreed not to offer or sell, any shares, directly or indirectly, in any
province or territory of Canada or to, or for the benefit of, any resident of
any province or territory of Canada in contravention of the securities laws
thereof and has represented that any offer or sale of shares in Canada will be
made only pursuant to an exemption from the requirement to file a prospectus
in the province or territory of Canada in which such offer or sale is made.
Each U.S. underwriter has further agreed to send to any dealer who purchases
from it any of the shares a notice stating in substance that, by purchasing
such shares, such dealer represents and agrees that it has not offered or
sold, and will not offer or sell, directly or indirectly, any of such shares
in any province or territory of Canada or to, or for the benefit of, any
resident of any province or territory of Canada in contravention of the
securities laws thereof and that any offer or sale of shares in Canada will be
made only pursuant to an exemption from the requirement to file a prospectus
in the province or territory of Canada in which such offer or sale is made,
and that such dealer will deliver to any other dealer to whom it sells any of
such shares a notice containing substantially the same statement as is
contained in this sentence.
Pursuant to the Agreement between U.S. and International Underwriters, each
international underwriter has represented and agreed that:
. it has not offered or sold and, prior to the date six months after the
closing date for the sale of the shares to the international
underwriters, will not offer or sell, any shares to persons in the
United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995;
. it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in
relation to the shares in, from or otherwise involving the United
Kingdom; and
15
<PAGE>
. it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the
offering of the shares to a person who is of a kind described in Article
11(3) of the Financial Services Act of 1986 (Investment Advertisements)
(Exemptions) Order 1996 (as amended) or is a person to whom such
document may otherwise lawfully be issued or passed on.
Pursuant to the Agreement between U.S. and International Underwriters, each
international underwriter has further represented that it has not offered or
sold, and has agreed not to offer to sell, directly or indirectly, in Japan or
to or for the account of any resident thereof, any of the shares acquired in
connection with the distribution contemplated hereby, except for offers or
sales to Japanese international underwriters or dealers and except pursuant to
any exemption from the registrations requirements of the Securities and
Exchange Law and otherwise in compliance with applicable provisions of Japanese
law. Each international underwriter has further agreed to send to any dealer
who purchases from it any of the shares a notice stating in substance that, by
purchasing such shares, such dealer represents and agrees that it has not
offered or sold, and will not offer or sell, any of such shares, directly or
indirectly, in Japan or to or for the account of any resident thereof except
for offers or sales to Japanese international underwriters or dealers and
except pursuant to any exemption from the registration requirements of the
Securities and Exchange Law and otherwise in compliance with applicable
provisions of Japanese law, and that such dealer will send to any other dealer
to whom it sells any of such shares a notice containing substantially the same
statement as is contained in this sentence.
The underwriters initially propose to offer part of the common stock
directly to the public at the public offering price set forth on the cover page
hereof and part to certain dealers at a price which represents a concession not
in excess of $ a share under the public offering price. Any underwriter may
allow, and such dealers may reallow, a concession not in excess of $ a share
to other underwriters or to certain dealers. After the initial offering of the
common stock, the offering price and other selling terms may from time to time
be varied by the representatives.
We have granted the U.S. underwriters an option, exercisable for 30 days
from the date of this prospectus, to purchase up to an aggregate of 639,600
additional shares of common stock at the public offering price set forth on the
cover page hereof, less underwriting discounts and commissions. The U.S.
underwriters may exercise such option to purchase solely for the purpose of
covering over-allotments, if any, made in connection with the offering of the
shares of common stock offered hereby. To the extent such option is exercised,
each U.S. underwriter will become obligated, subject to certain conditions, to
purchase approximately the same percentage of such additional shares of common
stock as the number set forth next to such U.S. underwriter's name in the
preceding table bears to the total number of shares of common stock set forth
next to the names of all U.S. underwriters in the preceding table. If the U.S.
underwriters' option is exercised in full, the total price to the public would
be $ , the total underwriters' discounts and commissions would be $ and
the total proceeds to Kohl's would be $ .
In the underwriting agreement:
. we have agreed to pay the printing, legal, accounting and other expenses
related to the offering, which we estimate will be $350,000; and
. Kohl's, the selling stockholders and the underwriters have agreed to
indemnify each other against certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
Kohl's and each of the selling stockholders has agreed that, without the
prior written consent of Morgan Stanley & Co. Incorporated on behalf of the
underwriters, it will not during the period ending 90 days after the date of
this prospectus:
. offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any shares of common stock or any securities
convertible into or exercisable or exchangeable for common stock or
. enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the
common stock;
16
<PAGE>
whether any such transaction described above is to be settled by delivery of
common stock or such other securities, in cash or otherwise, except under
certain limited circumstances.
In order to facilitate the offering of the common stock, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of the common stock. Specifically, the underwriters may over-allot in
connection with the offering, creating a short position in the common stock for
their own account. In addition, to cover over-allotments or to stabilize the
price of the common stock, the underwriters may bid for, and purchase, shares
of common stock in the open market. Finally, the underwriting syndicate may
reclaim selling concessions allowed to an underwriter or a dealer for
distributing shares of common stock in the offering, if the syndicate
repurchases previously distributed common stock in transactions to cover
syndicate short positions, in stabilization transactions or otherwise. Any of
these activities may stabilize or maintain the market price of the common stock
above independent market levels. The underwriters are not required to engage in
these activities, and may end any of these activities at any time.
Certain underwriters from time to time perform various investment banking
services for us, for which such underwriters receive compensation.
LEGAL MATTERS
Certain legal matters will be passed upon for Kohl's by Godfrey & Kahn,
S.C., Milwaukee, Wisconsin, and for the underwriters by Shearman & Sterling,
New York, New York. Mr. Peter M. Sommerhauser is a director of Kohl's and a
shareholder and member of the management committee of Godfrey & Kahn, S.C. As
of December 31, 1998, Mr. Sommerhauser beneficially owned 16,837,673 shares of
common stock.
EXPERTS
The consolidated financial statements of Kohl's appearing in Kohl's
Corporation Annual Report (Form 10-K) for the year ended January 31, 1998, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
FORWARD-LOOKING STATEMENTS
Statements in this prospectus or incorporated by reference in this
prospectus that are not statements of historical fact may be deemed to be
"forward-looking statements," subject to protections under federal law. We
intend words such as "believes," "anticipates," "plans," "expects" and similar
expressions to identify forward-looking statements. In addition, statements
covering our future performances and our plans, objectives, expectations or
intentions are forward-looking statements, such as statements regarding our
debt service requirements, planned capital expenditures, future store openings
and adequacy of capital resources. There are a number of important factors that
could cause our results to differ materially from those indicated by the
forward-looking statements, including among others those discussed under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" sections of our annual and quarterly reports and as follows:
. heightened competition;
. adverse weather conditions in our retail markets;
. increases in interest rates;
. increases in real estate, construction and development costs;
. inventory imbalances caused by unanticipated fluctuations in consumer
demand;
. trends in the economy which affect consumer confidence and demand for
our merchandise;
. our ability to find suitable store sites that we can acquire on
acceptable terms;
17
<PAGE>
. our ability to continue to hire, train and retain sufficient numbers of
capable and talented associates; and
. interruptions in our business as a result of the Year 2000 computer
problem in our systems or in the systems of one of our major suppliers.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference room located at 450
Fifth Street, N.W., Washington, D.C. 20549, as well as at the regional offices
of the SEC located at 7 World Trade Center, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference
rooms and their copy charges.
Our common stock is listed on the New York Stock Exchange. You may also
inspect the information we file with the SEC at the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, including any we
make after the date we filed our registration statement and before the
registration statement becomes effective:
(1) our annual report on Form 10-K for the fiscal year ended January 31,
1998;
(2) our quarterly reports on Form 10-Q for the quarterly periods ended
May 2, 1998, August 1, 1998 and October 31, 1998; and
(3) the description of our common stock contained in our registration
statement on Form 8-B dated June 25, 1993, as updated from time to time by
our subsequent filings with the SEC.
You may also request a copy of these filings (excluding exhibits), at no
cost, by writing or telephoning our chief financial officer at the following
address:
Arlene Meier
Kohl's Corporation
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
(414) 703-7000
18
<PAGE>
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+Information in this prospectus is not complete and may be changed. We may not +
+sell these securities until the Registration Statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and we are not soliciting offers to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
[Alternate Page for International Prospectus]
PROSPECTUS (Subject to Completion)
Issued March 10, 1999
4,264,000 Shares
[KOHL'S LOGO]
Common Stock
------------
Kohl's Corporation is offering 2,800,000 shares and the selling stockholders
are offering 1,464,000 shares. Initially, the international underwriters are
offering 852,800 shares outside the United States and Canada, and the U.S.
underwriters are offering 3,411,200 shares in the United States and
Canada.
------------
Kohl's Corporation's common stock is listed on the New York Stock Exchange
under the symbol "KSS." On March 9, 1999, the reported last sale price of
the common stock on the New York Stock Exchange was $73 3/8 per share.
------------
PRICE $ A SHARE
------------
<TABLE>
<CAPTION>
Underwriting Proceeds to
Price to Discounts and Proceeds to Selling
Public Commissions Company Stockholders
-------- ------------- ----------- ------------
<S> <C> <C> <C> <C>
Per
Share.... $ $ $ $
Total..... $ $ $ $
</TABLE>
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
Kohl's Corporation has granted the U.S. underwriters the right to purchase up
to an additional 639,600 shares of common stock to cover over-allotments.
Morgan Stanley & Co. Incorporated expects to deliver the shares to purchasers
on , 1999.
------------
MORGAN STANLEY DEAN WITTER
MERRILL LYNCH INTERNATIONAL
ROBERT W. BAIRD & CO.
Incorporated
WILLIAM BLAIR & COMPANY
, 1999
<PAGE>
PART II
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth those expenses to be incurred by the Company
in connection with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions. All of the
amounts shown are estimates, except the applicable Securities and Exchange
Commission registration fee.
<TABLE>
<S> <C>
SEC registration fee............................................... $ 91,207
Printing expenses.................................................. 85,000
Legal fees......................................................... 100,000
Accounting fees.................................................... 40,000
NYSE listing fees.................................................. 14,000
Blue sky fees and expenses......................................... 5,000
Miscellaneous expenses............................................. 14,793
--------
Total............................................................ $350,000
========
</TABLE>
ITEM 15. Indemnification of Directors and Officers
Section 180.0851 of the Wisconsin Business Corporation Law (the "WBCL")
requires the Company to indemnify a director or officer, to the extent such
person is successful on the merits or otherwise in the defense of a proceeding
for all reasonable expenses incurred in the proceeding, if such person was a
party to such proceeding because he or she was a director or officer of the
Company unless it is determined that he or she breached or failed to perform a
duty owed to the Company and such breach or failure to perform constitutes:
(i) a willful failure to deal fairly with the Company or its shareholders in
connection with a matter in which the director or officer has a material
conflict of interest; (ii) a violation of criminal law, unless the director or
officer had reasonable cause to believe his or her conduct was unlawful; (iii)
a transaction from which the director or officer derived an improper personal
profit; or (iv) willful misconduct.
Section 180.0858 of the WBCL provides that subject to certain limitations,
the mandatory indemnification provisions do not preclude any additional right
to indemnification or allowance of expenses that a director or officer may
have under the article of incorporation or bylaws of the Company, a written
agreement between the director or officer and the Company, or a resolution of
the Board of Directors or the shareholders.
Unless otherwise provided in the Company's articles of incorporation or
bylaws, or by written agreement between the director or officer and the
Company, an officer or director seeking indemnification is entitled to
indemnification if approved in any of the following manners as specified in
Section 180.0855 of the WBCL: (i) by majority vote of a disinterested quorum
of the board of directors; (ii) by independent legal counsel chosen by a
quorum of disinterested directors or its committee; (iii) by a panel of three
arbitrators (one of which is chosen by a quorum of disinterested directors);
(iv) by the vote of the shareholders; (v) by a court; or (vi) by any other
method permitted in Section 180.0858 of the WBCL.
Reasonable expenses incurred by a director or officer who is a party to a
proceeding may be reimbursed by the Company, pursuant to Section 180.0853 of
the WBCL, at such time as the director or officer furnishes to the Company
written affirmation of his or her good faith that he or she has not breached
or failed to perform his or her duties and written confirmation to repay any
amounts advanced if it is determined that indemnification by the Company is
not required.
Section 180.0859 of the WBCL provides that it is the public policy of the
State of Wisconsin to require or permit indemnification, allowance of expenses
or insurance to the extent required or permitted under Sections 180.0850 or
180.0858 of the WBCL for any liability incurred in connection with a
proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
II-1
<PAGE>
As permitted by Section 180.0858, the Company has adopted indemnification
provisions in its By-Laws which closely track the statutory indemnification
provisions with certain exceptions. In particular, Article VIII of the
Company's By-Laws, among other items, provides (i) that an individual shall be
indemnified unless it is proven by a final judicial adjudication that
indemnification is prohibited and (ii) payment or reimbursement of expenses,
subject to certain limitations, will be mandatory rather than permissive.
Through insurance, the officers and directors of the Company are also
insured for acts or omissions related to the conduct of their duties. The
insurance covers certain liabilities which may arise under the Securities Act
of 1933, as amended.
Under Section 180.0828 of the WBCL, a director of the Company is not
personally liable for breach of any duty resulting solely from his or her
status as a director, unless it shall be proved that the director's conduct
constituted conduct described in the first paragraph of this item.
ITEM 16. Exhibits
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Articles of Incorporation of the Company, as amended, incorporated by
reference to Exhibit 10.16 of the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended August 3, 1996.
3.2 Bylaws of the Company, as amended, incorporated by reference to
Exhibit 10.14 of the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended May 4, 1996.
4.1 Amendment to Revolving Credit Agreement dated as of June 5, 1998.
5.1* Opinion of Godfrey & Kahn, S.C.
10.1 1994 Long-Term Compensation Plan, incorporated herein by reference to
Exhibit 10.15 of the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended May 4, 1996.
23.1 Consent of Ernst & Young LLP.
23.2* Consent of Godfrey & Kahn, S.C.
24.1* Powers of Attorney.
</TABLE>
- --------
* Filed on March 3, 1999.
ITEM 17. Undertakings
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 the time shall be deemed to be the initial bona fide offering
thereof.
2. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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
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 Act
and will be governed by the financial adjudication of such issue.
II-2
<PAGE>
3. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be a part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Menomonee Falls, State of Wisconsin, on March
9, 1999.
Kohl's Corporation
/s/ William S. Kellogg
By: _________________________________
William S. Kellogg
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William S. Kellogg Chairman and Director
______________________________________
William S. Kellogg
* Vice Chairman, Chief
______________________________________ Executive Officer and
R. Lawrence Montgomery Director
* Chief Operating Officer and
______________________________________ Director
John F. Herma
* President and Director
______________________________________
Kevin Mansell
/s/ Arlene Meier Chief Financial Officer
______________________________________ (Principal Financial and
Arlene Meier Accounting Officer)
* Director
______________________________________
Jay H. Baker
Director
______________________________________
James Ericson
* Director
______________________________________
Frank V. Sica
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director
______________________________________
Herbert Simon
* Director
______________________________________
Peter M. Sommerhauser
* Director
______________________________________
R. Elton White
</TABLE>
*Executed on March 9, 1999 by
William S. Kellogg pursuant
to a power of attorney
previously filed.
/s/ William S. Kellogg
- ---------------------------------
William S. Kellogg
II-5
<PAGE>
Exhibit 1.1
4,264,000 Shares
KOHL'S CORPORATION
Common Stock
(par value $.01 per share)
UNDERWRITING AGREEMENT
March ___, 1999
<PAGE>
Morgan Stanley & Co.
Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Robert W. Baird & Co. Incorporated
William Blair & Company, L.L.C.
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. International Limited
Merrill Lynch International
Robert W. Baird & Co. Incorporated
William Blair & Company, L.L.C.
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Sirs:
Kohl's Corporation, a Wisconsin corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I and II hereto
(the "Underwriters"), and certain shareholders of the Company (the "Selling
Shareholders") named in Schedule III hereto severally propose to sell to the
several Underwriters, an aggregate of 4,264,000 million shares of the Common
Shares (par value per share $.01), of the Company (the "Firm Shares") of which
2,800,000 million shares are to be issued and sold by the Company (the "Company
Firm Shares") and 1,464,000 million shares are to be sold by the Selling
Shareholders, each Selling Shareholder selling the amount set forth opposite
such Selling Shareholder's name in Schedule III hereto. The Company and the
Selling Shareholders are hereinafter collectively referred to as the "Sellers".
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Robert W. Baird & Co. Incorporated and William Blair &
Company, L.L.C. shall act as representatives (the "Representatives") of the
several Underwriters.
It is understood that, subject to the conditions hereinafter stated,
3,411,200 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule
2
<PAGE>
I hereto (the "U.S. Underwriters") in connection with the offering and sale of
such U.S. Firm Shares in the United States and Canada to United States and
Canadian Persons (as such terms are defined in the Agreement Between U.S. and
International Underwriters of even date herewith), and 852,800 Firm Shares (the
"International Shares") will be sold to the several International Underwriters
named in Schedule II hereto (the "International Underwriters") in connection
with the offering and sale of such International Shares outside the United
States and Canada to persons other than United States and Canadian Persons.
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Robert W. Baird & Co. Incorporated and William Blair & Company,
L.L.C. shall act as representatives (the "U.S. Representatives") of the several
U.S. Underwriters, and Morgan Stanley & Co. International Limited, Merrill Lynch
International, Robert W. Baird & Co. Incorporated and William Blair & Company,
L.L.C. shall act as representatives (the "International Representatives") of the
several International Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 639,600 shares of Common Shares (par
value $.01 per share) of the Company (the "Additional Shares"; and, together
with the Company Firm Shares, the "Company Shares"), if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of Common Stock granted to
the U.S. Underwriters in Article III hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares". The Common
Shares (par value $.01 per share) of the Company are hereinafter referred to as
the "Common Stock".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, and including all documents incorporated by reference therein, the
exhibits thereto and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares, including all documents incorporated by reference therein, are
hereinafter collectively referred to as the "Prospectus". The terms
"supplement", "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
If the Company files a registration statement to register additional
shares of Common Stock and relies on Rule 462(b) for such registration statement
to become effective upon
3
<PAGE>
filing with the Commission (the "Rule 462(b) Registration Statement"), then any
reference to the "Registration Statement" shall be deemed to refer to both the
registration statement referred to above and the Rule 462(b) Registration
Statement, in each case as amended from time to time.
I.
The Company represents and warrants to each of the Selling
Shareholders and each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before, and the Company does not
know of any such proceedings that are threatened by, the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(c) The Company is validly existing as a corporation in good standing
under the laws of the State of Wisconsin, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Kohl's Department Stores, Inc., a Delaware corporation, Kohl's
Receivables Corporation, a Wisconsin corporation, Kohl's Investment Company, a
Delaware
4
<PAGE>
Corporation, Kohl's Pennsylvania, Inc., a Pennsylvania corporation and Kohl's
Illinois, Inc., a Nevada corporation, are the only "significant subsidiaries"
of the Company (as such term is defined under Regulation S-X) and each is
validly existing as a corporation in good standing under the laws of the State
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(f) All the outstanding shares of Common Stock (including the Shares
to be sold by the Selling Shareholders) have been duly authorized and are
validly issued, fully paid and, subject to Wisconsin Business Corporation Law
(S) 180.0622(2)(b), nonassessable.
(g) The Company Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and, subject to Wisconsin Business Corporation Law (S)
180.0622(2)(b), nonassessable.
(h) This Agreement and each of the Power of Attorney and Custody
Agreement (each, a "Power of Attorney and Custody Agreement" and collectively,
the "Power of Attorney and Custody Agreements"), dated as of the date hereof,
between each Selling Shareholder and the Company, as Custodian (the
"Custodian"), relating to the deposit of, and/or the irrevocable exercise of
options with respect to, the Shares to be sold by such Selling Shareholder and
appointing certain individuals as such Selling Shareholder's attorneys-in-fact
to the extent set forth therein, relating to the transactions contemplated
hereby and by the Registration Statement, have been duly authorized, executed
and delivered by the Company.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Power of Attorney
and Custody Agreements and the issuance and delivery of the Company Shares
will not contravene any provision of applicable federal or state law or the
articles of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any federal or state governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of or qualification with any federal or state
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement or the Power of Attorney and Custody
Agreements, except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Shares.
5
<PAGE>
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending, and the
Company does not know of any proceedings that are threatened, to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and
are not so described or any statutes, regulations, material contracts or other
documents that are required to be described in the Registration Statement or
the Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental, administrative or regulatory authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its business
in the manner described in the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(m) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder.
(n) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(o) The Shares are listed on the New York Stock Exchange.
(p) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
6
<PAGE>
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(r) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock (provided that the Company does not make any representation as to any
actions that may be taken by any Underwriter); and the Company has not
distributed and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Shares other than any
preliminary prospectus filed with the Commission or the Prospectus or other
material permitted by the Securities Act.
(s) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of the
Company or any of its subsidiaries will be affected by the Year 2000 Problem
(that is, any significant risk that computer hardware or software applications
used by the Company and its subsidiaries will not, in the case of dates or
time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to January
1, 2000); as a result of such review, (i) the Company has no reason to
believe, and does not believe, that (A) there are any issues related to the
Company's preparedness to address the Year 2000 Problem that are of a
character required to be described or referred to in the Registration
Statement or Prospectus which have not been accurately described in the
Registration Statement or Prospectus and (B) the Year 2000 Problem will have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, business or operations of the Company and its subsidiaries, taken as
a whole, or result in any material loss or interference with the business or
operations of the Company and its subsidiaries, taken as a whole; and (ii) the
Company reasonably believes, after due inquiry, that the suppliers, vendors,
customers or other material third parties used or served by the Company and
such subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year 2000
Problem by any supplier, vendor, customer or material third party would not
have a material adverse effect on the condition, financial or otherwise, or on
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole.
II.
Each of the Selling Shareholders represents and warrants to each of
the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
7
<PAGE>
(b) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of its obligations under, this
Agreement and the Power of Attorney and Custody Agreement of such Selling
Shareholder, will not contravene any provision of applicable federal or state
law or any agreement or other instrument binding upon such Selling Shareholder
or any judgment, order or decree of any federal or state governmental body,
agency or court having jurisdiction over such Selling Shareholder, and no
consent, approval, authorization or order of or qualification with any federal
or state governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the Power of
Attorney and Custody Agreement of such Selling Shareholder, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has valid and marketable title to the
Shares deposited by it pursuant to the Power of Attorney and Custody
Agreement, and on the Closing Date (as defined below) will have, valid and
marketable title to the Shares to be sold by such Selling Shareholder and the
legal right and power and all authorization and approval to enter into this
Agreement and the Power of Attorney and Custody Agreement, and to sell,
transfer and deliver the Shares to be sold by such Selling Shareholder.
(d) The Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by such Selling Shareholder and is a valid
and binding agreement of such Selling Shareholder.
(e) Delivery of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement will pass marketable title to such Shares free and
clear of any security interests, claims, liens, equities and other
encumbrances.
(f) All information furnished by or on behalf of such Selling
Shareholder expressly for use in the Registration Statement and Prospectus
does not, and on the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading.
(g) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock (provided that such Selling Shareholder does not make any
representation as to any actions that may be taken by any Underwriter); and
such Selling Shareholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Shares other than any preliminary prospectus filed with the Commission
or the Prospectus or other material permitted by the Securities Act.
8
<PAGE>
III.
The Company and each Selling Shareholder, severally and not jointly,
hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations and warranties of the Company, with respect to
Firm Shares sold by it, and of the Selling Shareholders, with respect to Firm
Shares sold by them, herein contained, but subject to the conditions hereinafter
stated, agrees severally and not jointly, to purchase from the Sellers at $_____
a share (the "Purchase Price") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine)
(x) in the case of the Company, that bears the same proportion to the number of
Firm Shares to be sold by the Company as the number of Firm Shares set forth in
Schedules I and II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares and (y) in the case of the Selling Shareholders,
that bears the same proportion to the number of Firm Shares to be sold by such
Selling Shareholders as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees, to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 639,600
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Article V hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
Firm Shares.
Each Seller hereby agrees that without the prior written consent of
Morgan Stanley & Co. Incorporated ("Morgan Stanley"), it will not, for a period
of 90 days after the date of the Prospectus, (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, other than any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock and issued
pursuant to employee benefit or employee stock option or ownership plans of the
Company which are in existence on the date of this Agreement, or (ii) enter into
any
9
<PAGE>
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of such shares of Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, other
than (a) the sale of the Shares to the Underwriters pursuant to this Agreement,
(b) transactions relating to shares of Common Stock or other securities acquired
in open market transactions after completion of the public offering or (c) in
connection with the adoption of a stockholder rights plan, the distribution to
stockholders of the Company of a dividend consisting of a right to purchase, in
whole or in part, a share of preferred stock of the Company for each share of
Common Stock held by such stockholder.
In addition, each Selling Shareholder agrees that, without the prior
written consent of Morgan Stanley on behalf of the Underwriters, it will not,
for a period of 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
IV.
The Company and the Selling Shareholders are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company and the Selling
Shareholders are further advised by you that the Shares are to be offered to the
public initially at $____ a Share (the "Public Offering Price") and to certain
dealers selected by you at a price that represents a concession not in excess of
$____ a share under the public offering price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of $_____ a
share, to any Underwriter or to certain other dealers.
V.
Payment for the Firm Shares to be sold by the Company and each Selling
Shareholder shall be made by wire transfers payable to the order of the Company
and the Custodian (or to the Company's registrar at the Custodian's direction),
as the case may be, in federal funds or other funds immediately available in New
York City against delivery of such Firm Shares for the respective accounts of
the several Underwriters at a closing to be held at the office of Shearman &
Sterling, 599 Lexington Avenue, New York, New York, at 10:00 A.M., local time,
on ________, 1999, or at such other time on the same or such other date, not
later than __________, 1999, as shall be agreed to by you, the Company and the
Selling Shareholders. The time and date of each such payment are hereinafter
referred to as the "Closing Date".
Payment for any Additional Shares shall be made by wire transfers
payable to the order of the Company in federal funds or other funds immediately
available in New York City
10
<PAGE>
against delivery of such Additional Shares for the respective accounts of the
several U.S. Underwriters at a closing to be held at the office of Shearman &
Sterling, 599 Lexington Avenue, New York, New York, at 10:00 A.M., local time,
on such date (which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor later than five business days after the giving
of the notice hereinafter referred to) as shall be designated in a written
notice from the U.S. Representatives to the Company of your determination, on
behalf of the U.S. Underwriters, to purchase a number, specified in said notice,
of Additional Shares, or on such other date, in any event not later than
________, 1999, as shall be agreed to by the Representatives and the Company.
The time and date of such payment are hereinafter referred to as the "Option
Closing Date". The notice of the determination to exercise the option to
purchase Additional Shares and of the Option Closing Date may be given at any
time within 30 days after the date of this Agreement. The U.S. Underwriters
represent that the Additional Shares will be used only to cover over-allotments
made in connection with the offering of the Firm Shares.
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
VI.
The obligations of the Company and each Selling Shareholder and the
several obligations of the Underwriters hereunder are subject to the condition
that the Registration Statement shall have become effective not later than the
date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in or
contemplated by the Registration Statement, that is material and
adverse and that makes it, in your reasonable judgment, impracticable
to market the Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, on behalf of the Company,
11
<PAGE>
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Godfrey
& Kahn, S.C., counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Company is validly existing as a corporation in good
standing under the laws of the State of Wisconsin, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus;
(ii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iii) all the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) have been duly
authorized and are validly issued, fully paid and, subject to
Wisconsin Business Corporation Law (S) 180.0622(2)(b), nonassessable.
(iv) the Company Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and, subject to Wisconsin Business
Corporation Law (S) 180.0622(2)(b), nonassessable.
(v) this Agreement and each of the Power of Attorney and
Custody Agreements and the issuance and delivery of the Company Shares
have been duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Power of Attorney and Custody Agreements and the issuance and
delivery of the Company Shares will not contravene any provision of
the law of the State of Wisconsin or the federal laws of the United
States applicable to the Company or the certificate of incorporation
or by-laws of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or any of
its subsidiaries which has been identified to such counsel by the
Company as one of such agreements or instruments that is material to
the Company and its subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, without independent investigation other than
inquiries of responsible officers of the
12
<PAGE>
Company, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of or
qualification with any federal or State of Wisconsin governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement or the Power of Attorney or Custody
Agreements, except such as may be required by securities or Blue Sky
laws in connection with the offer and sale of the Shares by the
Underwriters;
(vii) the statements (1) in the Prospectus under the caption
"Description of Capital Stock" (2) in the Registration Statement under
Item 15 thereof and (3) to such counsel's knowledge, after due inquiry
of responsible officers of the Company, under the caption "Executive
Compensation--Employment Agreements" and "--Other Agreements" in the
Company's Proxy Statement for its Annual Meeting of Stockholders
immediately succeeding the filing of the Company's last annual report,
in each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(viii) after due inquiry, without independent investigation other
than inquiries of responsible officers of the Company, such counsel
does not know of any legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
of any statutes, regulations, material contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required;
(ix) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(x) the statements in the Prospectus under the caption "United
States Federal Income Tax Considerations to Non-United States Holders"
insofar as such statements constitute a summary of the United States
federal tax laws referred to therein, are accurate and fairly
summarize the United States federal tax laws referred to therein; and
(xi) (1) each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed as
to form in all material respects with the Exchange Act and the
applicable rules and regulations of
13
<PAGE>
the Commission thereunder and (2) the Registration Statement, as of
its effective date, and the Prospectus, as of its date and as of the
Closing Date, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder, except that,
in each case, such counsel need not express any opinion as to the
financial statements, schedules and other financial data included in
or excluded from such documents filed pursuant to the Exchange Act or
the Registration Statement and such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in such documents filed pursuant to the Exchange
Act or in the Registration Statement and the Prospectus (other than as
specified in subparagraphs (viii) and (xi) above insofar as the
captions referred to therein relate to provisions of documents and
other legal matters); and
(xii) in addition, such opinion shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company, and with your representatives and your counsel at which
the contents of the Registration Statement, the Prospectus and related
matters were discussed and, although such counsel need not pass upon
or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus and need not make any independent check or verification
thereof (other than as specified in subparagraphs (viii) and (xi)
above insofar as the captions referred to therein relate to provisions
of documents), on the basis of the foregoing, no facts have come to
the attention of such counsel which have led such counsel to believe
that the Registration Statement, at the time it became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its
date and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that such counsel need
not express any opinion as to the financial statements, schedules and
other financial data included in or excluded from the Registration
Statement. Such counsel may also state in such opinion that (i)
whenever such counsel indicates that the opinion is with respect to
matters within the "knowledge of" or "known by" such counsel, such
knowledge means the representations and warranties of the Company
contained in this Agreement and in the documents delivered on the
Closing Date by the Company pursuant to this Agreement, and the
current conscious awareness of facts of the attorneys currently
practicing law with such firm who had involvement in the transaction
or such other attorneys presently in the firm whom such counsel has
determined are likely, in the course of representing the Company, to
have knowledge of the matters covered by the opinion, and that (ii)
such opinion is limited to the laws of the United States, the State of
Wisconsin and the General Corporation Law of the State of Delaware.
14
<PAGE>
(d) you shall have received on the Closing Date an opinion of Godfrey
& Kahn, S.C., counsel for the Selling Shareholders, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Shareholders;
(ii) the execution and delivery by each Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations
under, this Agreement and the Power of Attorney and Custody Agreement
of such Selling Shareholder will not contravene any provision of the
laws of the State of Wisconsin or the federal laws of the United
States applicable to each Selling Shareholder or, to the best of such
counsel's knowledge, without independent investigation other than
inquiry of such Selling Shareholder, any agreement or other instrument
binding upon such Selling Shareholder or, to the best of such
counsel's knowledge, without independent investigation other than
inquiry of such Selling Shareholder, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of or qualification with any federal or State of Wisconsin
governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the
Power of Attorney and Custody Agreement of such Selling Shareholder,
except such as have been obtained or such as may be required by
securities or Blue Sky laws in connection with the offer and sale of
the Shares;
(iii) each of the Selling Shareholders has the legal right and
power, and all authorization and approval required by federal or State
of Wisconsin law, to enter into this Agreement and the Power of
Attorney and Custody Agreement of such Selling Shareholder and to
sell, transfer and deliver the Shares to be sold by such Selling
Shareholder;
(iv) the Power of Attorney and Custody Agreement of each Selling
Shareholder has been authorized, executed and delivered by such
Selling Shareholder and is a valid and binding agreement of such
Selling Shareholder; and
(v) delivery of the Shares to be sold by each Selling Shareholder
pursuant to this Agreement will pass marketable title to such Shares
free and clear of any security interests, claims, liens, equities and
other encumbrances to each of the several Underwriters who have
purchased Shares in good faith and without notice of any such security
interest, claim, lien, equity, encumbrance or any other adverse claim
within the meaning of the Uniform Commercial Code.
(e) You shall have received on the Closing Date an opinion of Sigrid
Dynek, Vice President and General Counsel of the Company, to the effect that:
15
<PAGE>
(i) the Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as
a whole;
(ii) each of Kohl's Department Stores, Inc., Kohl's Receivables
Corporation, Kohl's Investment Company, Kohl's Pennsylvania, Inc. and
Kohl's Illinois, Inc., is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each of Kohl's Department Stores, Inc., Kohl's Receivables
Corporation, Kohl's Investment Company, Kohl's Pennsylvania, Inc., and
Kohl's Illinois, Inc., is validly existing as a corporation in good
standing under the laws of its state of incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus, to such counsel's knowledge; and
(iv) the statements (1) to such counsel's knowledge, after due inquiry
of responsible officers of the Company, in "Item 3 -- Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (2) to such counsel's knowledge, after due
inquiry of responsible officers of the Company, in "Item 1 -- Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-Q, if
any, filed since such annual report, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein.
(f) You shall have received on the Closing Date an opinion of Shearman
& Sterling, special counsel for the Underwriters, dated the Closing Date.
With respect to subparagraphs (xi) and (xii) of paragraph (c) above, Godfrey &
Kahn, S.C. and, with respect to paragraph (f) above, Shearman & Sterling may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof and the
documents incorporated by reference therein, but are without independent check
or verification, except as specified.
With respect to paragraph (d) above, Godfrey & Kahn, S.C. may rely upon the
representations of each Selling Shareholder contained herein and in the Power of
Attorney and Custody Agreement of such Selling Shareholder and in other
documents and instruments; provided
16
<PAGE>
that copies of such Power of Attorney and Custody Agreement and of any such
other documents and instruments shall be delivered to you and shall be in form
and substance satisfactory to your counsel.
The opinions of Godfrey & Kahn, S.C. described in paragraphs (c) and (d)
above shall be rendered to you at the request of the Company and the Selling
Shareholders, respectively, and shall so state therein.
(g) You shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form
and substance satisfactory to you, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(h) You shall have received on the Closing Date certificates dated the Closing
Date and signed by the Selling Shareholders or by an attorney-in-fact of the
Selling Shareholders, to the effect that the representations and warranties of
each Selling Shareholder contained in this Agreement are true and correct as of
the Closing Date and that each Selling Shareholder has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares and other matters related to the issuance of the
Additional Shares.
VII.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
you may reasonably request. In the case of the Prospectus, to furnish copies of
the Prospectus in New York City prior to 5:00 p.m. on the business day following
the date of this Agreement, in such quantities as you reasonably request.
17
<PAGE>
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and to file no such proposed amendment or supplement to which you
reasonably object unless, in the reasonable judgment of the Company and its
counsel, such amendment or supplement is necessary to comply with law or to
make the statements therein not misleading.
(c) If, during such period after the first date of the public offering of
the Shares as in the opinion of your counsel the Prospectus is required by law
to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of your counsel, it is
necessary to amend or supplement the Prospectus to comply with law, forthwith
to prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish to
the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to maintain such qualification for as long as you shall reasonably
request and to pay all expenses (including reasonable fees and disbursements
of counsel) in connection with such qualification, provided that the Company
shall not be obligated to so qualify the Shares if such qualification requires
it to file any general consent to service of process or to register or qualify
as a foreign corporation in any jurisdiction in which it is not so registered
or qualified.
(e) To make generally available to the Company's security holders and
to you, as soon as practicable, an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the preparation and filing of the Registration Statement and
the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Shares, including any transfer or
other taxes payable on the Company Shares, (iii) the fees and disbursements of
the Company's counsel and accountants and of the counsel and accountants for
the Selling Shareholders, (iv) the qualification of the Shares under
securities or Blue Sky laws in accordance with paragraph (d) above, including
filing fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Memoranda, (v) the printing and delivery to the
18
<PAGE>
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any amendments
or supplements thereto, (vi) the costs and charges of any transfer agent,
registrar or depositary, (vii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection with the
marketing of the public offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expense of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road show and (viii) all other costs and expenses incident to the performance
of the obligations of the Company and the Selling Shareholders hereunder for
which provision is not otherwise made in this Section.
VIII.
Each Selling Shareholder, severally and not jointly, agrees to pay or
cause to be paid all taxes, if any, on the transfer and sale of the Shares
being sold by such Selling Shareholder.
IX.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
19
<PAGE>
The Company will indemnify and hold harmless each of the Selling
Shareholders to the same extent that the Company indemnifies and holds harmless
each Underwriter pursuant to the preceding paragraph; provided, however, the
Company shall not be liable under this paragraph to the extent any losses,
claims, damages or liabilities described in the preceding paragraph arise out of
or are based upon an untrue statement or omission or alleged untrue statement or
omission based upon information relating to such Selling Shareholder furnished
in writing by or on behalf of such Selling Shareholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
Each Selling Shareholder agrees, severally and not jointly, to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Selling Shareholder furnished in writing by or on behalf of
such Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Selling Shareholders, the directors of the Company,
the officers of the Company who sign the Registration Statement and each person,
if any, who controls the Company or any Selling Shareholder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to any of the four preceding
20
<PAGE>
paragraphs, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing (but the failure to so notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party otherwise than
under this Article IX) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section, (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Selling Shareholders and all persons, if any, who control any
Selling Shareholder within the meaning of either such Section and all persons,
if any, who control any of such Selling Shareholders within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Shareholders and such controlling persons
of Selling Shareholders, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder
21
<PAGE>
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first, second, third or fourth
paragraph of this Article IX is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Shareholders on the one hand and the Underwriters on the other
hand in connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and each Selling Shareholder
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Article IX
are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Article IX were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IX, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the
22
<PAGE>
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Article IX are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article IX and
the representations and warranties of the Company and the Selling Shareholders
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
any Selling Shareholder or any person controlling any Selling Shareholder, or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
The liability of each Selling Shareholder under this Article IX shall not
exceed an amount equal to the initial Public Offering Price of the Shares sold
by such Selling Shareholder, less the applicable underwriting discounts and
commissions.
X.
This Agreement shall be subject to termination by notice given by you to
the Sellers, if (a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event singly or together with any other such event makes it, in your reasonable
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
XI.
This Agreement shall become effective upon the later of (x) execution and
delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase
23
<PAGE>
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their respective names in
Schedule I or Schedule II bears to the aggregate number of Firm Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Article XI by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, and arrangements satisfactory to you, the
Company and the Selling Shareholders for the purchase of such Shares are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Selling
Shareholders or the Company. In any such case you, the Selling Shareholders or
the Company shall have the right to postpone the Closing Date or the Option
Closing Date, as the case may be, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company or any Selling
Shareholder to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Selling Shareholder shall be
unable to perform its obligations under this Agreement, the Company and the
Selling Shareholders will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; provided that neither the Company nor any
Selling Shareholder shall have any further liability to any Underwriter
(including any liability for damages, including loss of anticipated profits) for
any termination of this Agreement, except as provided in Article IX hereof.
24
<PAGE>
This Agreement may be signed in two or more counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
This Agreement shall be governed by the laws of the State of New York.
Very truly yours,
KOHL'S CORPORATION
By
-----------------------
Name:
Title:
The Selling Shareholders named in Schedule III hereto, acting severally
By
-----------------------
Attorney-in-Fact
Name:
Accepted, March ___, 1999
Morgan Stanley & Co.
Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Robert W. Baird & Co. Incorporated
William Blair & Company, L.L.C.
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By Morgan Stanley & Co.
Incorporated
By
----------------------
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
25
<PAGE>
MERRILL LYNCH INTERNATIONAL
ROBERT W. BAIRD & CO. INCORPORATED
WILLIAM BLAIR & COMPANY, L.L.C.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Morgan Stanley & Co. International Limited
By:
---------------------------
Name:
Title:
26
<PAGE>
SCHEDULE I
U.S. Underwriters
-----------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------
Underwriters Number of
- ------------ Firm Shares
To Be Purchased
---------------
- ---------------------------------------------------------------------
<S> <C>
Morgan Stanley & Co. Incorporated
- ---------------------------------------------------------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated
- ---------------------------------------------------------------------
Robert W. Baird & Co. Incorporated
- ---------------------------------------------------------------------
William Blair & Company, L.L.C.
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
---------------
- ---------------------------------------------------------------------
Total U.S. Firm Shares 3,411,200
===============
=====================================================================
</TABLE>
<PAGE>
SCHEDULE II
International Underwriters
---------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------
Underwriters Number of
- ------------ Firm Shares
To Be Purchased
---------------
- ---------------------------------------------------------------------
<S> <C>
Morgan Stanley International Limited
- ---------------------------------------------------------------------
Merrill Lynch International
- ---------------------------------------------------------------------
Robert W. Baird & Co. Incorporated
- ---------------------------------------------------------------------
William Blair & Company, L.L.C.
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
---------------
- ---------------------------------------------------------------------
Total International Firm Shares 852,800
===============
- ---------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE III
Selling Shareholders
--------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------
Selling Shareholder Number of
- ------------------- Firm Shares
To Be Sold
------------
- ---------------------------------------------------------------------
<S> <C>
William S. Kellogg 559,300
- ---------------------------------------------------------------------
Jay H. Baker 300,000
- ---------------------------------------------------------------------
Jay H. Baker Children's Trust FBO Stephanie E. Baker 50,000
- ---------------------------------------------------------------------
Jay H. Baker Children's Trust FBO Stephen M. Baker 50,000
- ---------------------------------------------------------------------
John F. Herma 341,100
- ---------------------------------------------------------------------
R. Lawrence Montgomery 41,000
- ---------------------------------------------------------------------
Kevin Mansell 32,000
- ---------------------------------------------------------------------
Caryn Blanc 34,900
- ---------------------------------------------------------------------
Jeffrey Rusinow 6,500
- ---------------------------------------------------------------------
Arlene Meier 19,500
- ---------------------------------------------------------------------
Gary Vasques 4,000
- ---------------------------------------------------------------------
Donald Sharpin 4,200
- ---------------------------------------------------------------------
Richard Leto 3,000
- ---------------------------------------------------------------------
Peter M. Sommerhauser 18,500
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
------------
Total Firm Shares 1,464,000
============
- ---------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 4.1
KOHL'S
CORPORATE OFFICES - N56 W17000 RIDGEWOOD DRIVE - MENOMONEE FALLS, WISCONSIN
53051 - (414) 703-7000
May 12, 1998
Mr. Michael V. Flannery, Jr.
Vice President
Bank of New York
One Wall Street
New York, NY 10286
Dear Mike:
In accordance with Section 2.14 of the Credit Agreement dated June 13, 1997,
Kohl's requests that the Lenders agree to extend the Revolving Credit Commitment
Period by one year to June 13, 2003.
Please call me or Gary Stoltmann at (414) 703-1638 if you have any questions.
Sincerely,
/s/ Arlene Meier
Arlene Meier
Executive Vice President-Finance
Chief Financial Officer
jmt
<PAGE>
BNY CAPITAL MARKETS, INC.
A SUBSIDIARY OF THE BANK OF NEW YORK COMPANY
ONE WALL STREET, NEW YORK, NY 10286
Date: June 5, 1998
To: Lenders to Kohl's Department Stores, Inc.
From: The Bank of New York and BNY Capital Markets, Inc.
Re: Extension of the Final Maturity for the $300 Million Senior Revolving
Credit Facility
This memorandum serves to inform you that the Scheduled Revolving Credit
Termination Date for $285 million of the $300 million Facility has been extended
to June 13, 2003. The extension is effective June 5, 1998. Kohl's Department
Stores, Inc., BNY Capital Markets and The Bank of New York appreciate your
prompt response to this request.
The new allocations are as follows:
<TABLE>
<CAPTION>
Lender Commitment
------ ----------
<S> <C>
The Bank of New York $ 46,000,000
First Chicago NBD $ 40,000,000
First Union (Corestates) $ 40,000,000
Bank of America NT & SA $ 35,000,000
U.S. Bank National Association $ 35,000,000
Bank One $ 33,000,000
Firstar Bank Milwaukee, N.A. $ 31,000,000
Comerica Bank $ 25,000,000
The Fuji Bank, Ltd. $ 15,000,000
------------
Total $300,000,000
</TABLE>
cc: Gary Stoltmann, Kohl's Department Stores, Inc.
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP
We consent to the reference to our firm under the captions "Selected
Consolidated Financial Data" and "Experts" in Amendment No. 1 to the
Registration Statement (Form S-3-Registration No. 333-73257) and related
Prospectus of Kohl's Corporation for the registration of 4,903,600 shares of its
common stock and to the incorporation by reference therein of our report dated
March 9, 1998, with respect to the consolidated financial statements of Kohl's
Corporation included in its Annual Report (Form 10-K) for the year ended January
31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Milwaukee, Wisconsin
March 8, 1999
