Post Effective Amendment No. 3 on Form S-8
As filed with the Securities and Exchange Commission on December 20, 2002
Registration No. 333-66961
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT
NO. 3 ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE KROGER CO.
(Exact name of registrant as specified in its charter)
| Ohio |
|
31-0345740 |
| (State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
| |
| 1014 Vine Street, Cincinnati, Ohio |
|
45202 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Fred Meyer, Inc. Non-Employee Directors’
Deferred Compensation Plan
(Full title of Plan)
Paul W. Heldman
Senior Vice President, Secretary and General Counsel
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
(Name and address of agent for service)
(513) 762-4000
(Telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
| Title Of Securities To Be
Registered |
|
Amount To be Registered |
|
Proposed Maximum Offering Price Per
Share(1) |
|
Proposed Maximum Aggregate Offering Price(1) |
|
Amount of Registration Fee(2) |
|
|
|
|
|
|
|
|
|
| Common Stock $1 Par Value |
|
10,770 shares |
|
$14.985 |
|
$161,388.45 |
|
$14.85 |
|
|
|
|
|
|
|
|
|
| Preferred Stock Purchase Rights |
|
(3) |
|
(3) |
|
(3) |
|
(3) |
(1) |
|
Estimated solely for the purpose of calculating the registration fee pursuant to Securities Act Rule 457(c), on the basis of the average of the high and low
sale prices of the Registrant’s Common Stock on the New |
(footnotes continued on next
page)
York Stock Exchange on December 13, 2002, which date is within 5 business days prior to the date of the filing of this
Registration Statement, as reported by The Wall Street Journal.
(2) |
|
Pursuant to the requirements of Rule 429(b) of the Securities Act of 1933, such amount represents a portion of the registration fee of $113,841.52 remaining
relating to 2,175,760 shares of Fred Meyer Common Stock previously paid with the Registration Statement on Form S-4 (Registration No. 333-66961) (170,000,000 shares) to which this amendment relates. |
(3) |
|
Preferred Stock Purchase Rights will be issued for no additional consideration and therefore no registration fee is required. Prior to the occurrence of certain
events, the Preferred Stock Purchase Rights will not be exercisable or evidenced separately from the Common Stock. |
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PART I
EXPLANATORY NOTE
This Post-Effective Amendment No. 3 on
Form S-8 to Form S-4 relates to 10,770 shares of Common Stock to be issued under the Fred Meyer Non-Employee Directors’ Deferred Compensation Plan (the “Plan”).
Pursuant to the Agreement and Plan of Merger dated October 18, 1998 by and between The Kroger Co. (“Kroger”), Fred Meyer, Inc. (“FMY”), and Jobsite
Holdings Inc., the following events, among others, occurred:
(a) FMY was acquired by, and became
a wholly-owned subsidiary of, The Kroger Co., and
(b) shares issued or to be issued under the
Plan became shares of Kroger Common Stock.
The documents containing information specified by Part I of this
Registration Statement have been or will be sent or given to the participants under the Plan, as specified in Rule 428(b)(1) promulgated by the Securities Exchange Commission under the Securities Act. Such documents are not required to be filed with
the SEC but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.
References to “the Company” or the “Registrant” mean The Kroger Co., an Ohio corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Kroger Co. (“Kroger” or “Registrant”) with the
Securities and Exchange Commission (“Commission”) are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year ended February 2, 2002, as amended;
2. All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), since the end of the fiscal year covered by the Form 10-K referred to above; and
3. The description of Kroger Common Stock contained in Kroger’s registration statement filed
pursuant to Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
All documents filed by Kroger pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all
shares of Kroger Common Stock offered hereby have been sold or which withdraws from registration such shares of Kroger Common Stock then remaining unsold, shall be deemed to be incorporated in this Registration Statement by reference and to be a
part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by
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reference herein modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The financial statements incorporated in this Registration Statement by reference to the Annual Report on Form 10-K of The Kroger Co. for the fiscal year ended February 2, 2002 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
Documents incorporated herein by reference in the future will include financial statements, related schedules and auditors’ reports, which financial statements and
schedules will have been examined to the extent and for the periods set forth in such opinions by the firm or firms rendering such opinions, and, to the extent so examined and consent to incorporation by reference given, will be incorporated herein
by reference in reliance upon such opinions given upon authority of such firms as experts in accounting and auditing.
A legal opinion to the effect that the shares of Kroger Common Stock offered hereby have been duly authorized and that, when they are issued in accordance with the terms of the Fred Meyer Non-Employee Directors’ Deferred
Compensation Plan, they will be validly issued and outstanding, fully paid and nonassessable, has been rendered by Paul W. Heldman, Esquire, Senior Vice President, Secretary and General Counsel of Kroger. As of December 15, 2002, Mr. Heldman owned
approximately 163,847 shares of Kroger Common Stock and held options to acquire 600,500 shares of Kroger Common Stock.
Item
6. Indemnification of Directors and Officers.
Under Kroger’s Regulations (by-laws), each
present or former director, officer or employee of Kroger and each person who is serving or shall have served at the request of Kroger as a director, officer or employee of another corporation (and his or her heirs, executors or administrators)
shall be indemnified by Kroger against expenses actually and necessarily incurred by him or her, and also against expenses, judgments, decrees, fines, penalties, or amounts paid in settlement, in connection with the defense of any pending or
threatened action, suit, or proceeding, criminal or civil, to which he or she is or may be made a party by reason of being or having been such director, officer or employee, provided (1) he or she is adjudicated or determined not to have been
negligent or guilty of misconduct in the performance of his or her duty to Kroger or such other corporation, (2) he or she is determined to have acted in good faith in what he or she reasonably believed to be the best interest of Kroger or of such
other corporation, and (3) in any matter the subject of a criminal action, suit, or proceeding, he or she is determined to have had no reasonable cause to believe that his or her conduct was unlawful. See also Ohio Revised Code, Section
1701.13.
The foregoing indemnification provisions are not exclusive of any other rights to which such director,
officer or employee may be entitled under Kroger’s Articles of Incorporation or Regulations, any agreement, any insurance purchased by Kroger, any vote of shareholders or otherwise.
Kroger has purchased insurance insuring officers and directors of the company against certain liabilities incurred in their capacities as such in order to insure Kroger
against any payments which it is obligated to make to such persons under the foregoing indemnification provisions.
4
The Agreement and Plan of Merger, dated as of October 18, 1998 (the “Merger
Agreement”), among Kroger, Jobsite Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of the Registrant (“Merger Sub”), and Fred Meyer, Inc. (“Fred Meyer@) provides that each present and former director and
officer of Fred Meyer or any of its subsidiaries after our acquisition of Fred Meyer (the “Merger”) will be indemnified by Kroger against any costs or expenses, including reasonable attorneys’ fees, judgments, fines, losses, claims,
damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, for acts or omissions existing or occurring at or prior to the Merger, whether
asserted or claimed prior to, at or following the Merger, to the fullest extent permitted under the Delaware General Corporation Law. Without limiting the generality of the foregoing, in the event any person entitled to indemnification under such
provisions becomes involved in any claim, action, proceeding or investigation after the Merger, Kroger will periodically advance to such person his or her reasonable legal and other reasonably incurred expenses, including the cost of any
investigation and preparation incurred in connection with the claim, action, preceding or investigation, subject to the person providing an undertaking to reimburse all amounts advanced in the event of a final non-appealable determination by a court
of competent jurisdiction that such person is not entitled the advancing of the expenses.
For six years from the
Merger, the Registrant must maintain in effect the current directors’ and officers’ liability insurance covering those persons who are currently covered by Fred Meyer’s directors’ and officers’ liability insurance policy to
the extent that it provides coverage for events occurring on or prior to the Merger, so long as the annual premium therefor would not be in excess of 200% of the last annual premium paid prior to the date of the Merger Agreement (the “Current
Premium”). If such premiums for such insurance would at any time exceed 200% of the Current Premium, then the Registrant shall cause to be maintained policies of insurance which provide the maximum coverage available at an annual premium equal
to 200% of the Current Premium.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
The exhibits listed in the Index of Exhibits of this Registration Statement are filed
herewith or are incorporated herein by reference to other filings.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (“Securities Act”);
(b) to reflect in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and
5
(c) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a) and (b) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;
2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
4. That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
5. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions set forth in Item 6, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered and the Commission remains of the same opinion, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati, State of Ohio, on December 20, 2002.
| THE KROGER CO. |
| |
| By: |
|
*
|
| |
|
Joseph A. Pichler, Chairman of the Board of Directors and Chief Executive Officer |
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the capacities indicated on December 20, 2002.
| Signature
|
|
Title
|
| *
J. Michael Schlotman |
|
Group Vice President and Chief Financial Officer (principal financial officer) |
| |
| *
M. Elizabeth Van Oflen |
|
Vice President and Corporate Controller (principal accounting officer) |
| |
| *
Joseph A. Pichler |
|
Chairman of the Board of Directors and Chief Executive Officer (principal executive officer) |
| |
| *
David B. Dillon |
|
President, Chief Operating Officer and Director |
| |
| *
Reuben V. Anderson |
|
Director |
| |
| *
Robert D. Beyer |
|
Director |
| |
| *
John L. Clendenin |
|
Director |
| |
| *
Richard K. Davidson |
|
Director |
| |
| *
John T. LaMacchia |
|
Director |
| |
| *
David B. Lewis |
|
Director |
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Edward M. Liddy |
|
Director |
| |
| *
Clyde R. Moore |
|
Director |
| |
| *
Thomas H. O’Leary |
|
Director |
| |
| *
Katherine D. Ortega |
|
Director |
| |
Steven R. Rogel |
|
Director |
| |
| *
Bobby S. Shackouls |
|
Director |
*By (Bruce M. Gack)
Bruce M. Gack
Attorney-in-fact
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INDEX OF EXHIBITS
| |
| Exhibit 4.1 |
|
Provisions of amended Articles of Incorporation. Incorporated by reference to Exhibit 3.1 of Kroger’s Quarterly
Report on Form 10-Q for the quarter ended October 3, 1998. Provisions of Regulations (by-laws) of The Kroger Co. defining the rights of security holders. Incorporated herein by reference to Exhibit 4.2 of Kroger’s Registration Statement on Form
S-3 as 0filed with the Securities and Exchange Commission on January 28, 1993 and bearing Registration No. 33-57552. |
| |
| Exhibit 5 |
|
Opinion of Paul W. Heldman, Esquire, with respect to the validity of the Common Stock being registered. Filed
herewith. |
| |
| Exhibit 23.1 |
|
Consent of PricewaterhouseCoopers LLP, Independent Accountants. Filed herewith. |
| |
| Exhibit 23.2 |
|
Consent of Paul W. Heldman, Esquire. Contained in the opinion filed as Exhibit 5 hereto. |
| |
| Exhibit 24 |
|
Powers of Attorney of certain officers and directors of Kroger. Filed herewith. |
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