KROGER CO — Regulatory Filings 2015

Aug 24, 2015

S-8 1 a15-18274_1s8.htm S-8

*As filed with the Securities and Exchange*

*Commission on August 21, 2015*

*Registration No. 333-*

*UNITED STATES*

*SECURITIES AND EXCHANGE COMMISSION*

*WASHINGTON, D.C. 20549*

*FORM S-8*

*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	(I.R.S. Employer
incorporation or organization)	Identification No.)
1014 Vine Street, Cincinnati, Ohio	45202
(Address of Principal Executive Offices)	(Zip Code)

*The Kroger Co. 401(k) Retirement Savings Account Plan*

(Full title of Plan)

*Christine S. Wheatley*

*Group 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)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer x	Accelerated filer o
Non-accelerated filer o (Do not check if smaller reporting company)	Smaller reporting company o

*CALCULATION OF REGISTRATION FEE*

			Proposed	Proposed
			Maximum	Maximum
Title of	Amount		Offering	Aggregate	Amount of
Securities to	to be		Price	Offering	Registration
be Registered	Registered		Per Share(1)	Price(1)	Fee
Common Shares $1 Par Value	20,000,000 shares	(2)	$ 34.93	$ 698,600,000	$ 81,177.32

(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 Shares on the New York Stock Exchange on August 21, 2015, which date is within 5 business days prior to the date of the filing of this Registration Statement.

(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.

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*EXPLANATORY NOTE*

The Registrant is registering additional securities under The Kroger Co. 401(k) Retirement Savings Account Plan (the “Plan”) covered hereby for which a Registration Statement on Form S-8, bearing Registration No. 333-180404, currently is effective. Pursuant to General Instruction E of Form S-8, the Registrant elects to incorporate by reference into this Registration Statement the contents of such earlier registration statement that constitute information required in this Registration Statement.

*PART II*

*INFORMATION REQUIRED IN THE REGISTRATION STATEMENT*

*Item 5. Interests of Named Experts and Counsel.*

A legal opinion to the effect that the Registrant’s common shares offered hereby have been duly authorized and that, when they are issued in accordance with the terms of the Plan, they will be validly issued and outstanding, fully paid and nonassessable, has been rendered by Christine S. Wheatley, Esquire, Group Vice President, Secretary and General Counsel of the Registrant. As of July 15, 2015, Ms. Wheatley owned approximately 47,619 common shares of the Registrant and held options to acquire 19,980 common shares of the Registrant.

*Item 8. Exhibits.*

The following exhibits are filed as part of this Registration Statement:

Exhibit No.	Description
Exhibit 5.1*	Opinion of Christine S. Wheatley, Esquire.
Exhibit 5.2*	IRS Determination Letter for The Kroger Co. 401(k) Retirement Savings Account Plan.
Exhibit 23.1*	Consent of PricewaterhouseCoopers LLP.
Exhibit 23.2*	Consent of Christine S. Wheatley, Esquire (included as part of Exhibit 5.1).
Exhibit 24.1*	Power of Attorney of Directors of the Registrant.

• Filed herewith.

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*SIGNATURES*

The Registrant . 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-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 August 24, 2015.

THE KROGER CO.
By:	/s/ W. Rodney McMullen
	W. Rodney McMullen
	Chairman of the Board and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on August 24, 2015.

Signature
/s/ W. Rodney McMullen	Chairman of the Board, Chief Executive Officer and Director
W. Rodney McMullen	(principal executive officer)
/s/ J. Michael Schlotman	Chief Financial Officer
J. Michael Schlotman	(principal financial officer)
/s/ M. Elizabeth Van Oflen	Vice President and Corporate Controller
M. Elizabeth Van Oflen	(principal accounting officer)
* /s/ Nora A. Aufreiter	Director
Nora A. Aufreiter
* /s/ Robert D. Beyer	Director
Robert D. Beyer
* /s/ Susan J. Kropf	Director
Susan J. Kropf
* /s/ David B. Lewis	Director
David B. Lewis
* /s/ Jorge P. Montoya	Director
Jorge P. Montoya
* /s/ Clyde R. Moore	Director
Clyde R. Moore
* /s/ Susan M. Phillips	Director
Susan M. Phillips
* /s/ James A. Runde	Director
James A. Runde
* /s/ Ronald L. Sargent	Director
Ronald L. Sargent
* /s/ Bobby S. Shackouls	Director
Bobby S. Shackouls
By:	* /s/ Stacey M. Heiser
Stacey M. Heiser
Attorney-in-fact

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The Plan . Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati, Ohio, on August 24, 2015.

THE KROGER CO. 401(K) RETIREMENT SAVINGS ACCOUNT PLAN
By:	/s/ Theresa Monti
Name: Theresa Monti
Title: Chairman of the Administrative Committee

4

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*EXHIBIT INDEX*

Exhibit No.	Description
Exhibit 5.1*	Opinion of Christine S. Wheatley, Esquire.
Exhibit 5.2*	IRS Determination Letter for The Kroger Co. 401(k) Retirement Savings Account Plan.
Exhibit 23.1*	Consent of PricewaterhouseCoopers LLP.
Exhibit 23.2*	Consent of Christine S. Wheatley, Esquire (included as part of Exhibit 5.1).
Exhibit 24.1*	Power of Attorney of Directors of the Registrant.

• Filed herewith.

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