Registration No. 333-_________
As filed with the Securities and Exchange Commission on May 2, 1997
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
KOHL'S CORPORATION
(Exact Name of Registrant as Specified in Charter)
Wisconsin 39-1630919
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(Address of Principal Executive Offices) (Zip Code)
1994 Long-Term Compensation Plan
1997 Stock Option Plan for Outside Directors
(Full Title of the Plans)
William S. Kellogg
Chairman
Kohl's Corporation
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(Name and Address of Agent for Service)
(414) 703-7000
(Telephone Number, including Area Code, of Agent for Service)
Copy of all correspondence to:
Peter M. Sommerhauser Sigrid E. Dynek Godfrey & Kahn, S.C. Kohl's Corporation 780 North Water Street N56 W17000 Ridgewood Drive Milwaukee, Wisconsin 53202 Menomonee Falls, Wisconsin 53051 |
PART I
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended February 1, 1997.
(b) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-B filed under the Securities Exchange Act of 1934, as amended ("Exchange Act"), including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold, or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. 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 no preclude any additional right to indemnification or allowance of expenses that a director or officer may have under the articles 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 (or the full Board, if unable to obtain such a quorum or
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committee); (iii) by a panel of three arbitrators; (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 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 and insurance to the extent required or permitted under Sections 180.0850 to 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.
As permitted by Section 180.0858, the Company has adopted indemnification provisions in its By-Laws which closely track the statutory indemnification provisions.
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, the directors of the Company are 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 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Articles of Incorporation of the Company, incorporated herein by reference to Exhibit 10.16 of the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended August 3, 1996.
4.2 By-Laws of the Company, incorporated herein by reference to Exhibit 10.14 of the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended May 4, 1996.
4.3 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.
4.4 1997 Stock Option Plan for Outside Directors.
5 Opinion of Godfrey & Kahn, S.C.
23 Consent of Ernst & Young LLP.
24 Powers of Attorney appear on the signature page of this Registration Statement.
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Item 9. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement 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.
(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 the purposes of determining any liability under the
Securities Act, each filing of the Company'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.
(5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described in Item 6 or otherwise, the Company has been advised that in the opinion of the Securities and Exchange 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Milwaukee, State of Wisconsin, on March 31, 1997.
KOHL'S CORPORATION
BY: /s/ William S. Kellogg ------------------------------- William S. Kellogg Chairman of the Board and Chief Executive Officer |
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KOHL'S CORPORATION
1997 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
ARTICLE I
Purpose
The purpose of the 1997 Stock Option Plan for Outside Directors (the "Plan) is to enable Kohl's Corporation (the "Company") to attract and retain outside directors and to strengthen the mutuality of interests between such directors and the Company's shareholders.
ARTICLE II
Definitions
For purposes of the Plan, the following terms shall have the following meanings:
2.1 "Board" shall mean the Board of Directors of the Company.
2.2 "Change of Control" shall mean the occurrence of (1) the acquisition (other than from the Company) by any person, entity, or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act), other than the Company, a subsidiary of the Company, or any employee benefit plan or plans sponsored by the Company or any subsidiary of the Company, directly or indirectly, of beneficial ownership (within the meaning of Exchange Act Rule 13d-3) of 20% or more of the then outstanding shares of Common Stock of the Company or voting securities representing 20% or more of the combined voting power of the Company's then outstanding voting securities ordinarily entitled to vote in the election of directors unless the Incumbent Board (as defined below), before such acquisition or within 30 days thereafter, deems such acquisition not to be a Change of Control; or (2) individuals who, as of the Effective Date, constitute the Board (as of such date, the "Incumbent Board") ceasing for any reason to constitute at least a majority of such Board; provided, however, that any person becoming a director subsequent to the Effective Date whose election, or nomination for election by the shareholders of the Company, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be for purposes of the Plan, considered as though such a person were a member of the Incumbent Board but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest which was (or, if threatened, would have been) subject to Exchange Act Rule 14a-11.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended, and rules and regulations under the Internal Revenue Code of 1986, as amended.
2.4 "Common Stock" shall mean the Common Shares, par value $.01 per share, of the Company.
2.5 "Effective Date" shall mean the date on which the Plan is approved by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock present, or represented, and entitled to vote at a duly held meeting of the shareholders of the Company.
2.6 "Eligible Director" shall mean any member of the Board who, on the date on which Options are to be granted, is not an officer or employee of the Company or any of the Company's subsidiaries, but shall exclude any such member of the Board who advises the Company in writing of his or her desire not to participate in the Plan.
2.7 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
2.8 "Fair Market Value" for purposes of the Plan, unless otherwise required by the Code, shall mean, as of any date, the closing sales prices of a share of Common Stock as reported on the principal national securities exchange on which the Common Stock is listed or admitted to trading, or, if not listed or traded on any such exchange, on the Nasdaq Stock Market, or, if not so listed or traded, the fair market value as determined by the Board, which determination shall be conclusive.
2.9 "Optionee" shall mean an individual to whom a Stock Option has been granted under the Plan.
2.10 "Stock Option" or "Option" shall mean any option to purchase shares of Common Stock granted pursuant to Article VI.
ARTICLE III
ADMINISTRATION
3.1 Administration. The Plan shall be administered and interpreted by the Board.
3.2 Guidelines. Subject to Article VII, the Board shall have the
authority to: (a) interpret the Plan; (b) establish such rules and regulations
as it deems necessary for the proper operations and administration of the Plan;
(c) select Eligible Directors to receive Options under the Plan; (d) determine
the number of shares subject to any Option and all the terms, conditions,
restrictions and/or limitations, if any, of any Option, including the time and
conditions of exercise or vesting, and the terms of any form of Option; (e)
determine the performance goals, if any, which will be applicable to the Option;
(f) grant waivers of Plan terms, conditions, restrictions, and limitations; (g)
accelerate the vesting or exercise of an
Option or the performance period of an Option; and (h) take any and all other action it deems necessary or advisable for the proper operation or administration of the Plan. The Board may correct any defect, supply any omission, conform the Plan to any change in law or regulation, or reconcile any inconsistency or ambiguity in the Plan or in any Option in the manner and to the extent it shall deem necessary to carry the Plan into effect. Notwithstanding the foregoing, no action of the Board under this Section 3.2 shall impair the rights of any Optionee without such person's consent, unless otherwise required by law.
3.3 Decisions Final. Any decision, interpretation or other action made or taken in good faith by the Board in accordance with the Plan shall be final, binding and conclusive on the Company, all members of the Board and their respective heirs, executors, administrators, successors and assigns.
3.4 Delegation. The Board may delegate any or all of its administrative responsibilities under the Plan to officers or employees of the Company.
ARTICLE IV
SHARE LIMITATION
4.1 Shares. The maximum aggregate number of shares of Common Stock that may be issued under the Plan shall be 100,000 shares of Common Stock (subject to any increase or decrease pursuant to Section 4.2), which may be either authorized and unissued shares of Common Stock or issued shares of Common Stock that have been reacquired by the Company. If any Option granted under the Plan shall expire, terminate or be canceled for any reason without having been exercised in full, the number of unpurchased shares shall again be available for the purposes of the Plan.
4.1 Changes. If there is any change in the number of outstanding shares of Common Stock through the declaration of stock dividends, stock splits or the like, the number of shares available for Options, the share subject to any Option and the exercise prices of Options shall be automatically adjusted. If there is any change in the number of outstanding shares of Common Stock through any change in the capital of the Company, or through any other transaction referred to in Section 424(a) of the Code, the Committee shall make appropriate adjustments in the maximum number of shares of Common Stock which may be issued under the Plan and any adjustments and/or modifications to outstanding Options as it deems appropriate. In the event of any other change in the capital structure or in the Common Stock of the Company, or in the event of a merger, consolidation, combination or exchange of shares, or the like, as a result of which Common Stock is changed into another class, or securities of another person, cash or other property, the exercise price, consideration to be received, and other terms of an Option shall be adjusted as deemed equitable by the Board, in its sole discretion. The Board shall have authority to provide for, in appropriate cases upon
the effectiveness of the transaction, (a) waiver, in whole or in part, of remaining restrictions for vesting or earning, and (b) the conversion of outstanding Options into cash or other property to be received in the transactions immediately or over the periods the Option would have vested or been earned. Any adjustment, waiver, conversion or the like carried out by the Board under this Section shall be conclusive and binding for all purposes of the Plan.
ARTICLE V
Eligibility
5.1 Eligible Directors. Only Eligible Directors shall be granted Options under the Plan.
ARTICLE VI
Stock Options
6.1 Options. All Stock Options granted under the Plan shall be non-qualified stock options (i.e., options that do not qualify as incentive stock options under Section 422 of the Code).
6.2 Grants. All grants of Options to Eligible Directors shall be determined by the Board. The Board may establish a formula by which Options under the Plan shall be automatically granted to Eligible Directors from time to time.
6.3 Terms of Options. Options granted under the Plan shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Board shall, in its discretion, determine:
(a) Stock Option Certificate. Each Stock Option shall be evidenced by, and subject to the terms of, a Stock Option Certificate executed by the Company. The Stock Option Certificate shall specify the number of shares of Common Stock subject to the Stock Option, the option price, the option term, and the other terms and conditions applicable to the Stock Option.
(b) Option Price. The option price per share of Common Stock purchasable upon exercise of a Stock Option shall be determined by the Board; provided, however, the option price shall be no less than 50% of the Fair Market Value of a share of Common Stock on the date the Option is granted.
(c) Additional Terms and Conditions. The Board may, by way of the Stock Option Certificate or otherwise, establish such other terms, conditions, restrictions and/or limitations, if any, of any Stock Option provided they are not inconsistent with the Plan.
(d) Exercise Payment. At the option of the Board, upon exercise, the option price of a Stock Option may be paid in cash, shares of Common Stock, a combination of the foregoing, or such other consideration as the Board may deem appropriate. The Board shall establish appropriate methods for accepting Common Stock and may impose such conditions as it deems appropriate on the use of such Common Stock to exercise a Stock Option.
(e) Change of Control. In the event of a Change of Control, all outstanding Stock Options shall immediately become fully exercisable.
(f) Non-transferability of Option. Unless determined by the Board, no Stock Option shall be transferable by an Optionee otherwise than by will or by the laws of descent and distribution, to the extent consistent with the terms of the Plan and the Option, and all Stock Options shall be exercisable, during an Optionee's lifetime, only by the Optionee.
ARTICLE VII
Termination or Amendment
7.1 Termination or Amendment of the Plan. The Board may at any time amend, discontinue or terminate the Plan in whole or in part, provided, however, that, unless otherwise required by law, the rights of an Optionee with respect to Options granted prior to such amendment, discontinuance or termination, may not be materially impaired without the consent of such Optionee.
7.2 Amendment of Options. The Board may amend the terms of any Stock Options, prospectively or retroactively, but, subject to Article IV, no such amendment or other action by the Board shall materially impair the rights of an Optionee without the Optionee's consent.
ARTICLE VIII
UNFUNDED PLAN
8.1 Unfunded Status of Plan. The Plan is intended to constitute an "unfunded" plan for incentive compensation. With respect to any payment not yet made to an Optionee by the Company, nothing contained herein shall give any such individual any rights that are greater than those of a general creditor of the Company.
ARTICLE IX
GENERAL PROVISIONS
9.1 Nonassignment. Except as otherwise provided in the Plan or determined by the Board, Options granted hereunder and the rights and privileges conferred thereby shall not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise), and shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of such Option, right or privilege contrary to the provisions hereof, or upon the levy of any attachment or similar process thereon, such Option and the rights and privileges conferred thereby shall immediately terminate and the Option shall immediately be forfeited to the Company.
9.2 Legend. The Board may require each person purchasing shares upon exercise of an Option to represent to the Company in writing that the Optionee is acquiring the shares for investment only and not for resale or with a view to distribution and to make such other representations as the Board may require. The stock certificates representing such shares may include any legend which the Board deems appropriate to reflect any restrictions on transfer.
All certificates representing shares of Common Stock delivered under the Plan shall be subject to such stock transfer orders and other restrictions as the Board may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed or traded or the Nasdaq Stock Market, any applicable Federal or state securities law, and any applicable corporate law, and the Board may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
9.3 Other Plans. Nothing contained in the Plan shall prevent the Board from adopting other or additional compensation arrangements; and such arrangements may be either generally applicable or applicable only in specific cases.
9.4 No Right to Continue Relationship. Neither the Plan nor the grant of an Option under the Plan shall confer upon any person any right to continue as a director of the Company or obligate the Company to nominate any director for reelection by the Company's shareholders.
9.5 Listing and Other Conditions.
(a) The issuance of any shares of Common Stock upon exercise of an Option shall be conditioned upon such shares being listed on a national securities exchange or on the Nasdaq Stock Market. The Company shall have no obligation to issue such shares unless and until such shares are so listed, and the right to exercise any Option shall be suspended until such listing has been effected.
(b) If at any time counsel to the Company shall be of the opinion that any sale or delivery of shares of Common Stock upon exercise of an Option is or may in the circumstances be unlawful or result in the imposition of a material amount of excise taxes under the statutes, rules or regulations of any applicable jurisdiction, the Company shall have no obligation to make such sale or delivery, or to make any application or to effect or to maintain any qualification or registration under the Securities Act of 1933, as amended, or otherwise with respect to shares of Common Stock, and the right to exercise any Option shall be suspended until, in the opinion of such counsel, such sale or delivery shall be lawful or shall not result in the imposition of a material amount of excise taxes.
(c) Upon termination of any period of suspension under this Section 9.5, any Option affected by such suspension which shall not then have expired or terminated shall be reinstated as to all shares available before such suspension and as to shares which would otherwise have become available during the period of such suspension, but no such suspension shall extend the term of any Option.
9.6 Governing Law. The Plan and actions taken in connection herewith shall be governed and construed in accordance with the laws of the State of Wisconsin.
9.7 Construction. Wherever any words are used in the Plan in the masculine gender they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form they shall be construed as though they were also used in the plural form in all cases where they would so apply.
9.8 Liability of the Board. No member of the board nor any employee of the Company or any of its subsidiaries shall be liable for any act or action hereunder, whether of omission or commission, by any other member of the Board or employee or by any agent to whom duties in connection with the administration of the Plan have been delegated or, except
in circumstances involving bad faith, gross negligence or fraud, for anything done or omitted to be done by himself.
9.9 Costs. The Company shall bear all expenses incurred in administering the Plan, including expenses of issuing Common Stock upon the exercise of Options.
9.10 Severability. If any part of the Plan shall be determined to be invalid or void in any respect, such determination shall not affect, impair, invalidate or nullify the remaining provisions of the Plan which shall continue in full force and effect.
9.11 Successors. The Plan shall be binding upon and inure to the benefit of any successor or successors of the Company.
9.12 Heading. Article and section headings contained in the Plan are included for convenience only and are not to be used in construing or interpreting the Plan.
ARTICLE X
Term of Plan
10.1 Effective Date. The Plan shall be effective as of the Effective Date.
10.2 Termination. The Plan shall continue until terminated by the Board. Termination of the Plan shall not affect Options granted before such date, which shall continue to be exercisable, in accordance with the terms of the Plan, after the Plan terminates.
Exhibit 23
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8), pertaining to the 1994 Long-Term Compensation Plan and 1997 Stock Option Plan for Outside Directors of Kohl's Corporation, of our report dated March 7, 1997, with respect to the consolidated financial statements of Kohl's Corporation included in its Annual Report (Form 10-K) for the year ended February 1, 1997 filed with the Securities and Exchange Commission.
Milwaukee, Wisconsin ERNST & YOUNG LLP
April 28, 1997
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William S. Kellogg, Jay H. Baker, John F. Herma and R. Lawrence Montgomery, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and any other regulatory authority, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that all said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ William S. Kellogg Chairman, Chief Executive Officer March 31, 1997
- ------------------------- (Principal Executive Officer) and
William S. Kellogg Director
/s/ Jay H. Baker President and Director March 31, 1997
- -------------------------
Jay H. Baker
/s/ John F. Herma Chief Operating Officer and March 31, 1997
- ------------------------- Director
John F. Herma
/s/ R. Lawrence Montgomery Vice Chairman and Director March 31, 1997
- -------------------------
R. Lawrence Montgomery
/s/ Arlene Meier Senior Vice President and Chief March 31, 1997
- ------------------------- Financial Officer (Principal
Arlene Meier Financial and Accounting Officer)
/s/ Frank V. Sica Director March 31, 1997
- -------------------------
Frank V. Sica
/s/ Herbert Simon Director March 20, 1997
- -------------------------
Herbert Simon
/s/ Peter M. Sommerhauser Director March 31, 1997
- -------------------------
Peter M. Sommerhauser
/s/ R. Elton White Director March 31, 1997
- -------------------------
R. Elton White
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