UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

(Mark One)

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended January 28, 2017.

 

OR

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                    to                   

 

Commission file number 1-303

 

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, OH

 

45202

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code (513) 762-4000

 

Securities registered pursuant to Section 12(b) of the Act:

 

 

 

 

Title of each class

    

Name of each exchange on which registered

 

 

 

Common Stock $1 par value

 

New York Stock Exchange

 

Securities registered pursuant to Section 12(g) of the Act:

 

NONE

(Title of class)

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

 

 

 

Yes  ☒

 

No  ☐

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.

 

 

 

Yes  ☐

 

No  ☒

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

 

 

 

Yes  ☒

 

No  ☐

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

 

 

 

Yes  ☒

 

No  ☐

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§299.405 of this chapter) is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☒

 

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

Accelerated filer

Non-accelerated filer (Do not check if a smaller reporting company)

Smaller reporting company

 

Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Exchange Act).

 

 

 

Yes  ☐

 

No  ☒

 

The aggregate market value of the Common Stock of The Kroger Co. held by non-affiliates as of August 13, 2016:  $30.6 billion.  There were 914,240,326 shares of Common Stock ($1 par value) outstanding as of March 22, 2017.

 

Documents Incorporated by Reference:

 

Portions of the proxy statement to be filed pursuant to Regulation 14A of the Exchange Act on or before May 26, 2017, are incorporated by reference into Part III of this Form 10-K.

 

 

 


 

PART I

 

FORWARD LOOKING STATEMENTS.

 

This Annual Report on Form 10-K contains forward-looking statements about our future performance.  These statements are based on our assumptions and beliefs in light of the information currently available to us.  These statements are subject to a number of known and unknown risks, uncertainties and other important factors, including the risks and other factors discussed in “Risk Factors” and “Outlook” below, that could cause actual results and outcomes to differ materially from any future results or outcomes expressed or implied by such forward looking statements.  Such statements are indicated by words such as “comfortable,” “committed,” “will,” “expect,” “goal,” “should,” “intend,” “target,” “believe,” “anticipate,” “plan,” and similar words or phrases.  Moreover, statements in the sections entitled Risk Factors, Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) and Outlook, and elsewhere in this report regarding our expectations, projections, beliefs, intentions or strategies are forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended.

 

ITEM 1. BUSINESS.

 

The Kroger Co. (the “Company” or “Kroger”) was founded in 1883 and incorporated in 1902.  As of January 28, 2017, we are one of the largest retailers in the world based on annual sales.  We also manufacture and process some of the food for sale in our supermarkets.  We maintain a web site (www.thekrogerco.com) that includes additional information about the Company.  We make available through our web site, free of charge, our annual reports on Form 10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K and our interactive data files, including amendments.  These forms are available as soon as reasonably practicable after we have filed them with, or furnished them electronically to, the SEC.

 

Our revenues are predominately earned and cash is generated as consumer products are sold to customers in our stores, fuel centers and via our online platforms. We earn income predominantly by selling products at price levels that produce revenues in excess of the costs to make these products available to our customers.  Such costs include procurement and distribution costs, facility occupancy and operational costs and overhead expenses.  Our fiscal year ends on the Saturday closest to January 31.  All references to 2016, 2015 and 2014 are to the fiscal years ended January 28, 2017, January 30, 2016 and January 31, 2015, respectively, unless specifically indicated otherwise.

 

EMPLOYEES

 

As of January 28, 2017, Kroger employed approximately 443,000 full- and part-time employees. A majority of our employees are covered by collective bargaining agreements negotiated with local unions affiliated with one of several different international unions. There are approximately 366 such agreements, usually with terms of three to five years.

 

STORES

 

As of January 28, 2017, Kroger operated, either directly or through its subsidiaries, 2,796 supermarkets under a variety of local banner names, of which 2,255 had pharmacies and 1,445 had fuel centers.  We also offer ClickList™ and Harris Teeter ExpressLane—  personalized, order online, pick up at the store services —  at 637 of our supermarkets.  Approximately 48% of these supermarkets were operated in Company-owned facilities, including some Company-owned buildings on leased land.  Our current strategy emphasizes self-development and ownership of store real estate.  Our stores operate under a variety of banners that have strong local ties and brand recognition.  Supermarkets are generally operated under one of the following formats: combination food and drug stores (“combo stores”); multi-department stores; marketplace stores; or price impact warehouses.

 

The combo store is the primary food store format.  They typically draw customers from a 2 — 2.5 mile radius.  We believe this format is successful because the stores are large enough to offer the specialty departments that customers desire for one-stop shopping, including natural food and organic sections, pharmacies, general merchandise, pet centers and high-quality perishables such as fresh seafood and organic produce.

 

Multi-department stores are significantly larger in size than combo stores.  In addition to the departments offered at a typical combo store, multi-department stores sell a wide selection of general merchandise items such as apparel, home fashion and furnishings, outdoor living, electronics, automotive products, toys and fine jewelry.

2


 

 

Marketplace stores are smaller in size than multi-department stores.  They offer full-service grocery, pharmacy and health and beauty care departments as well as an expanded perishable offering and general merchandise area that includes apparel, home goods and toys.

 

Price impact warehouse stores offer a “no-frills, low cost” warehouse format and feature everyday low prices plus promotions for a wide selection of grocery and health and beauty care items. Quality meat, dairy, baked goods and fresh produce items provide a competitive advantage. The average size of a price impact warehouse store is similar to that of  a combo store.

 

In addition to the supermarkets, as of January 28, 2017, we operated, through subsidiaries, 784 convenience stores, 319 fine jewelry stores and an online retailer.  All 114 of our fine jewelry stores located in malls are operated in leased locations.  In addition, 69 convenience stores were operated by franchisees through franchise agreements.  Approximately 56% of the convenience stores operated by subsidiaries were operated in Company-owned facilities. The convenience stores offer a limited assortment of staple food items and general merchandise and, in most cases, sell fuel.

 

SEGMENTS

 

We operate supermarkets, multi-department stores, jewelry stores, and convenience stores throughout the United States.  Our retail operations, which represent over 98% of our consolidated sales and earnings before interest, taxes and depreciation and amortization (“EBITDA”), is our only reportable segment.  We aggregate our operating divisions into one reportable segment due to the operating divisions having similar economic characteristics with similar long-term financial performance.  In addition, our operating divisions offer customers similar products,  have similar distribution methods, operate in similar regulatory environments, purchase the majority of the merchandise for retail sale from similar (and in many cases identical) vendors on a coordinated basis from a centralized location, serve similar types of customers, and are allocated capital from a centralized location. Our operating divisions are organized primarily on a geographical basis so that the operating division management team can be responsive to local needs of the operating division and can execute company strategic plans and initiatives throughout the locations in their operating division. This geographical separation is the primary differentiation between these retail operating divisions.  The geographical basis of organization reflects how the business is managed and how our Chief Executive Officer, who acts as our chief operating decision maker, assesses performance internally.  All of our operations are domestic.  Revenues, profits and losses and total assets are shown in our Consolidated Financial Statements set forth in Item 8 below.

 

MERCHANDISING AND MANUFACTURING

 

Corporate brand products play an important role in our merchandising strategy.  Our supermarkets, on average, stock over 14,000 private label items.  Our corporate brand products are primarily produced and sold in three “tiers.”  Private Selection® is the premium quality brand designed to be a unique item in a category or to meet or beat the “gourmet” or “upscale” brands.  The “banner brand” (Kroger®, Ralphs®, Fred Meyer®, King Soopers®, etc.), which represents the majority of our private label items, is designed to satisfy customers with quality products.  Before we will carry a “banner brand” product we must be satisfied that the product quality meets our customers’ expectations in taste and efficacy, and we guarantee it.  P$$T…®, Check This Out… and Heritage Farm™ are the three value brands, designed to deliver good quality at a very affordable price.   In addition, we continue to grow our other brands, including Simple Truth® and Simple Truth Organic®.  Both Simple Truth and Simple Truth Organic are Free From 101+ artificial preservatives and ingredients that customers have told us they do not want in their food, and the Simple Truth Organic products are USDA certified organic.

 

Approximately 35% of the corporate brand units sold in our supermarkets are produced in our food production plants; the remaining corporate brand items are produced to our strict specifications by outside manufacturers. This percentage has declined recently due to an expanded portfolio of non-grocery corporate brand units produced by outside manufacturers.  Our food production plants produced 45% of our grocery category corporate brand units sold in our supermarkets, which is consistent with our historical trend.  We perform a “make or buy” analysis on corporate brand products and decisions are based upon a comparison of market-based transfer prices versus open market purchases.  As of January 28, 2017, we operated 38 food production plants. These plants consisted of 17 dairies, ten deli or bakery plants, five grocery product plants, two beverage plants, two meat plants and two cheese plants.

 

3


 

SEASONALITY

 

The majority of our revenues are generally not seasonal in nature.  However, revenues tend to be higher during the major holidays throughout the year.  Additionally, significant inclement weather systems, particularly winter storms, tend to affect our sales trends.

 

EXECUTIVE OFFICERS OF THE REGISTRANT

 

The disclosure regarding executive officers is set forth in Item 10 of Part III of this Form 10-K under the heading “Executive Officers of the Company,” and is incorporated herein by reference.

 

COMPETITIVE ENVIRONMENT

 

For the disclosure related to our competitive environment, see Item 1A under the heading “Competitive Environment.”

 

ITEM 1A. RISK FACTORS.

 

There are risks and uncertainties that can affect our business.  The significant risk factors are discussed below.  The following information should be read together with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the “Outlook” section in Item 7 of this Form 10-K, which include forward-looking statements and factors that could cause us not to realize our goals or meet our expectations.

 

COMPETITIVE ENVIRONMENT

 

The operating environment for the food retailing industry continues to be characterized by intense price competition, aggressive expansion, increasing fragmentation of retail and online formats, entry of non-traditional competitors and market consolidation.  We have developed a strategic plan that we believe provides a balanced approach that will enable us to meet the wide-ranging needs and expectations of our customers in this challenging economic environment.  However, the nature and extent to which our competitors implement various pricing and promotional activities in response to increasing competition, including our execution of our strategic plan, and our response to these competitive actions, can adversely affect our profitability.  Our profitability and growth have been, and could continue to be, adversely affected by changes in the overall economic environment that affect consumer spending, including discretionary spending.

 

PRODUCT SAFETY

 

Customers count on Kroger to provide them with safe food and drugs and other merchandise.  Concerns regarding the safety of the products that we sell could cause shoppers to avoid purchasing certain products from us, or to seek alternative sources of supply even if the basis for the concern is outside of our control.  Any lost confidence on the part of our customers would be difficult and costly to reestablish.  Any issue regarding the safety of items we sell, regardless of the cause, could have a substantial and adverse effect on our reputation, financial condition, results of operations, or cash flows.

 

LABOR RELATIONS

 

A majority of our employees are covered by collective bargaining agreements with unions, and our relationship with those unions, including a prolonged work stoppage affecting a substantial number of locations, could have a material adverse effect on our results.

 

We are a party to approximately 366 collective bargaining agreements.  Upon the expiration of our collective bargaining agreements, work stoppages by the affected workers could occur if we are unable to negotiate new contracts with labor unions.  A prolonged work stoppage affecting a substantial number of locations could have a material adverse effect on our results.  Further, if we are unable to control health care, pension and wage costs, or if we have insufficient operational flexibility under our collective bargaining agreements, we may experience increased operating costs and an adverse effect on our financial condition, results of operations, or cash flows.

 

4


 

DATA AND TECHNOLOGY

 

Our business is increasingly dependent on information technology systems that are complex and vital to continuing operations. If we were to experience difficulties maintaining or operating existing systems or implementing new systems, we could incur significant losses due to disruptions in our operations.

 

Through our sales and marketing activities, we collect and store some personal information that our customers provide to us. We also gather and retain information about our associates in the normal course of business. Under certain circumstances, we may share information with vendors that assist us in conducting our business, as required by law, or otherwise in accordance with our privacy policy. Although we have implemented procedures to protect our information, we cannot be certain that all of our systems are entirely free from vulnerability to attack. Computer hackers may attempt to penetrate our or our vendors’ network security and, if successful, misappropriate confidential customer or business information. In addition, a Kroger associate, a contractor or other third party with whom we do business may attempt to circumvent our security measures in order to obtain information or may inadvertently cause a breach involving information. Loss of customer or business information could disrupt our operations, damage our reputation, and expose us to claims from customers, financial institutions, regulatory authorities, payment card associations, associates, and other persons, any of which could have an adverse effect on our business, financial condition and results of operations. In addition, compliance with tougher privacy and information security laws and standards may result in significant expense due to increased investment in technology and the development of new operational processes.

 

Additionally, on October 1, 2015, the payment card industry shifted liability for certain transactions to retailers who are not able to accept Europay, MasterCard, Visa (EMV) transactions. We completed the implementation of the EMV technology for more than the majority of our supermarket transactions in 2016 with plans to complete them in 2017, and have a plan in place to complete implementation for our fuel centers prior to the liability shift for fuel centers.

 

INDEBTEDNESS

 

Our indebtedness could reduce our ability to obtain additional financing for working capital, mergers and acquisitions or other purposes and could make us vulnerable to future economic downturns as well as competitive pressures.  If debt markets do not permit us to refinance certain maturing debt, we may be required to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness.  Changes in our credit ratings, or in the interest rate environment, could have an adverse effect on our financing costs and structure.

 

LEGAL PROCEEDINGS AND INSURANCE

 

From time to time, we are a party to legal proceedings, including matters involving personnel and employment issues, personal injury, antitrust claims and other proceedings.  Other legal proceedings purport to be brought as class actions on behalf of similarly situated parties.  Some of these proceedings could result in a substantial loss to Kroger.  We estimate our exposure to these legal proceedings and establish accruals for the estimated liabilities, where it is reasonably possible to estimate and where an adverse outcome is probable.  Assessing and predicting the outcome of these matters involves substantial uncertainties.  Adverse outcomes in these legal proceedings, or changes in our evaluations or predictions about the proceedings, could have a material adverse effect on our financial results.  Please also refer to the “Legal Proceedings” section in Item 3 and the “Litigation” section in Note 13 to the Consolidated Financial Statements.

 

We use a combination of insurance and self-insurance to provide for potential liability for workers’ compensation, automobile and general liability, property, director and officers’ liability, and employee health care benefits.  Any actuarial projection of losses is subject to a high degree of variability.   Changes in legal claims, trends and interpretations, variability in inflation rates, changes in the nature and method of claims settlement, benefit level changes due to changes in applicable laws, insolvency of insurance carriers, and changes in discount rates could all affect our financial condition, results of operations, or cash flows.

 

5


 

MULTI-EMPLOYER PENSION OBLIGATIONS

 

As discussed in more detail below in “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Critical Accounting Policies- Multi-Employer Pension Plans ,” Kroger contributes to several multi-employer pension plans based on obligations arising under collective bargaining agreements with unions representing employees covered by those agreements.  We believe that the present value of actuarially accrued liabilities in most of these multi-employer plans substantially exceeds the value of the assets held in trust to pay benefits, and we expect that Kroger’s contributions to those funds will increase over the next few years.  A significant increase to those funding requirements could adversely affect our financial condition, results of operations, or cash flows.  Despite the fact that the pension obligations of these funds are not the liability or responsibility of the Company, except as noted below, there is a risk that the agencies that rate our outstanding debt instruments could view the underfunded nature of these plans unfavorably when determining their ratings on our debt securities.  Any downgrading of our debt ratings likely would adversely affect our cost of borrowing and access to capital.

 

We also currently bear the investment risk of one of the larger multi-employer pension plans in which we participate.  In addition, we have been designated as the named fiduciary of this fund with sole investment authority of the assets of the fund.  If investment results fail to meet our expectations, we could be  required to make additional contributions to fund a portion of or the entire shortfall, which could have an adverse effect on our business, financial condition, results of operations, or cash flows.

 

INTEGRATION OF NEW BUSINESS

 

We enter into mergers and acquisitions with expected benefits including, among other things, operating efficiencies, procurement savings, innovation, sharing of best practices and increased market share that may allow for future growth.  Achieving the anticipated benefits may be subject to a number of significant challenges and uncertainties, including, without limitation, whether unique corporate cultures will work collaboratively in an efficient and effective manner, the coordination of geographically separate organizations, the possibility of imprecise assumptions underlying expectations regarding potential synergies and the integration process, unforeseen expenses and delays, and competitive factors in the marketplace.  We could also encounter unforeseen transaction and integration-related costs or other circumstances such as unforeseen liabilities or other issues.  Many of these potential circumstances are outside of our control and any of them could result in increased costs, decreased revenue, decreased synergies and the diversion of management time and attention.  If we are unable to achieve our objectives within the anticipated time frame, or at all, the expected benefits may not be realized fully or at all, or may take longer to realize than expected, which could have an adverse effect on our business, financial condition and results of operations, or cash flows.

 

FUEL

 

We sell a significant amount of fuel, which could face increased regulation and demand could be affected by concerns about the effect of emissions on the environment as well as retail price increases.  We are unable to predict future regulations, environmental effects, political unrest, acts of terrorism and other matters that may affect the cost and availability of fuel, and how our customers will react, which could adversely affect our financial condition, results of operations, or cash flows.

 

ECONOMIC CONDITIONS

 

Our operating results could be materially impacted by changes in overall economic conditions that impact consumer confidence and spending, including discretionary spending.  Future economic conditions affecting disposable consumer income such as employment levels, business conditions, changes in housing market conditions, the availability of credit, interest rates, tax rates, the impact of natural disasters or acts of terrorism, and other matters could reduce consumer spending.  Increased fuel prices could also have an effect on consumer spending and on our costs of producing and procuring products that we sell.  We are unable to predict how the global economy and financial markets will perform.  If the global economy and financial markets do not perform as we expect, it could adversely affect our financial condition, results of operations, or cash flows.

 

6


 

WEATHER AND NATURAL DISASTERS

 

A large number of our stores and distribution facilities are geographically located in areas that are susceptible to hurricanes, tornadoes, floods, droughts and earthquakes.  Weather conditions and natural disasters could disrupt our operations at one or more of our facilities, interrupt the delivery of products to our stores, substantially increase the cost of products, including supplies and materials and substantially increase the cost of energy needed to operate our facilities or deliver products to our facilities.  Adverse weather and natural disasters could materially affect our financial condition, results of operations, or cash flows.

 

GOVERNMENT REGULATION

 

Our stores are subject to various laws, regulations, and administrative practices that affect our business. We must comply with numerous provisions regulating, among other things, health and sanitation standards, food labeling and safety, equal employment opportunity, minimum wages, and licensing for the sale of food, drugs, and alcoholic beverages. We cannot predict future laws, regulations, interpretations, administrative orders, or applications, or the effect they will have on our operations. They could, however, significantly increase the cost of doing business.  They also could require the reformulation of some of the products that we sell (or manufacture for sale to third parties) to meet new standards.  We also could be required to recall or discontinue the sale of products that cannot be reformulated.  These changes could result in additional record keeping, expanded documentation of the properties of certain products, expanded or different labeling, or scientific substantiation.  Any or all of these requirements could have an adverse effect on our financial condition, results of operations, or cash flows.

 

ITEM 1B. UNRESOLVED STAFF COMMENTS.

 

None.

 

ITEM 2. PROPERTIES.

 

As of January 28, 2017, we operated approximately 4,000 owned or leased supermarkets, convenience stores, fine jewelry stores, distribution warehouses and food production plants through divisions, subsidiaries or affiliates. These facilities are located throughout the United States. While our current strategy emphasizes ownership of store real estate, a majority of the properties used to conduct our business are leased.

 

We generally own store equipment, fixtures and leasehold improvements, as well as processing and food production equipment. The total cost of our owned assets and capitalized leases at January 28, 2017, was $40.6 billion while the accumulated depreciation was $19.6 billion.

 

Leased premises generally have base terms ranging from ten-to-twenty years with renewal options for additional periods. Some options provide the right to purchase the property after the conclusion of the lease term. Store rentals are normally payable monthly at a stated amount or at a guaranteed minimum amount plus a percentage of sales over a stated dollar volume. Rentals for the distribution, food production and miscellaneous facilities generally are payable monthly at stated amounts.  For additional information on lease obligations, see Note 10 to the Consolidated Financial Statements.

7


 

ITEM 3. LEGAL PROCEEDINGS.

 

Various claims and lawsuits arising in the normal course of business, including suits charging violations of certain antitrust, wage and hour, or civil rights laws, as well as product liability cases, are pending against the Company.  Some of these suits purport or have been determined to be class actions and/or seek substantial damages. Any damages that may be awarded in antitrust cases will be automatically trebled. Although it is not possible at this time to evaluate the merits of all of these claims and lawsuits, nor their likelihood of success, we believe that any resulting liability will not have a material adverse effect on our financial position, results of operations, or cash flows.

 

We continually evaluate our exposure to loss contingencies arising from pending or threatened litigation and believe we have made provisions where it is reasonably possible to estimate and where an adverse outcome is probable.  Nonetheless, assessing and predicting the outcomes of these matters involves substantial uncertainties.  We currently believe that the aggregate range of loss for our exposures is not material.  It remains possible that despite our current belief, material differences in actual outcomes or changes in our evaluation or predictions could arise that could have a material adverse effect on our financial condition, results of operations, or cash flows.

 

ITEM 4. MINE SAFETY DISCLOSURES.

 

Not applicable.

 

8


 

PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES.

 

(a)

 

The following table sets forth the high and low sales prices for our common shares on the New York Stock Exchange for each full quarterly period of the two most recently completed fiscal years.  All share and per share amounts presented are reflective of the two-for-one stock split that began trading at the split adjusted price on July 14, 2015.

 

COMMON SHARE PRICE RANGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

2015

 

Quarter

    

High

    

Low

    

High

    

Low

 

1st

 

$

40.91

 

$

33.62

 

$

38.87

 

$

34.05

 

2nd

 

$

37.97

 

$

32.02

 

$

38.65

 

$

37.09

 

3rd

 

$

33.24

 

$

28.71

 

$

38.73

 

$

27.32

 

4th

 

$

36.44

 

$

30.44

 

$

42.75

 

$

36.00

 

 

Main trading market: New York Stock Exchange (Symbol KR)

 

Number of shareholders of record at fiscal year-end 2016: 28,351

 

Number of shareholders of record at March 22, 2017: 28,252

 

During 2016, we paid two quarterly cash dividends of $0.105 per share and two quarterly cash dividends of $0.12 per share.  During 2015, we paid two quarterly cash dividends of $0.0925 per share and two quarterly cash dividends of $0.105 per share.  On March 1, 2017, we paid a quarterly cash dividend of $0.12 per share.  On March 9, 2017, we announced that our Board of Directors declared a quarterly cash dividend of $0.12 per share, payable on June 1, 2017, to shareholders of record at the close of business on May 15, 2017.  We currently expect to continue to pay comparable cash dividends on a quarterly basis depending on our earnings and other factors, including approval by our Board.

 

For information on securities authorized for issuance under our existing equity compensation plans, see Item 12 under the heading “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”

 

9


 

PERFORMANCE GRAPH

 

Set forth below is a line graph comparing the five-year cumulative total shareholder return on our common shares, based on the market price of the common shares and assuming reinvestment of dividends, with the cumulative total return of companies in the Standard & Poor’s 500 Stock Index and a peer group composed of food and drug companies.

 

PICTURE 1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Base

 

INDEXED RETURNS

 

 

 

Period

 

Years Ending

 

Company Name/Index

    

2011

    

2012

    

2013

    

2014

    

2015

    

2016

 

The Kroger Co.

 

100

 

117.21

 

154.38

 

299.59

 

340.41

 

296.50

 

S&P 500 Index

 

100

 

117.60

 

141.48

 

161.61

 

160.53

 

194.03

 

Peer Group

 

100

 

120.77

 

137.32

 

171.73

 

160.23

 

157.59

 

 

Kroger’s fiscal year ends on the Saturday closest to January 31.

 

Data supplied by Standard & Poor’s.

 

The foregoing Performance Graph will not be deemed incorporated by reference into any other filing, absent an express reference thereto.


*     Total assumes $100 invested on January 29, 2012, in The Kroger Co., S&P 500 Index, and the Peer Group, with reinvestment of dividends.

 

**   The Peer Group consists of Costco Wholesale Corp., CVS Caremark Corp, Etablissements Delhaize Freres Et Cie Le Lion (“Groupe Delhaize”, which is included through July 22, 2016 when it merged with Koninklijke Ahold), Great Atlantic & Pacific Tea Company, Inc. (included through March 13, 2012 when it became private after emerging from bankruptcy), Koninklijke Ahold Delhaize NV (changed name from Koninklijke Ahold after merger with Groupe Delhaize), Safeway, Inc. (included through January 29, 2015 when it was acquired by AB Acquisition LLC), Supervalu Inc., Target Corp., Tesco Plc (included through November 27, 2013 when it sold its U.S. business), Wal-Mart Stores Inc., Walgreens Boots Alliance Inc. (formerly, Walgreen Co.), Whole Foods Market Inc. and Winn-Dixie Stores, Inc. (included through March 9, 2012 when it became a wholly-owned subsidiary of Bi-Lo Holdings).

10


 

(c)

 

The following table presents information on our purchases of our common shares during the fourth quarter of 2016.

 

ISSUER PURCHASES OF EQUITY SECURITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

 

 

 

 

 

Total Number of

 

Maximum Dollar

 

 

 

 

 

 

 

 

Shares

 

Value of Shares

 

 

 

 

 

 

 

 

Purchased as

 

that May Yet Be

 

 

 

 

 

 

 

 

Part of Publicly

 

Purchased Under

 

 

 

Total Number

 

Average

 

Announced

 

the Plans or

 

 

 

of Shares

 

Price Paid

 

Plans or

 

Programs (4)

 

Period (1)

    

Purchased (2)

    

Per Share

    

Programs (3)

    

(in millions)

 

First period - four weeks

 

 

 

 

 

 

 

 

 

 

 

November 6, 2016 to December 3, 2016

 

2,927,535

 

$

32.98

 

2,927,300

 

$

587

 

Second period - four weeks

 

 

 

 

 

 

 

 

 

 

 

December 4, 2016 to December 31, 2016

 

3,977,379

 

$

34.48

 

3,906,084

 

$

461

 

Third period — four weeks

 

 

 

 

 

 

 

 

 

 

 

January 1, 2017 to January 28, 2017

 

3,931,162

 

$

33.86

 

3,930,799

 

$

339

 

Total

 

10,836,076

 

$

33.85

 

10,764,183

 

$

339

 


(1)

The reported periods conform to our fiscal calendar composed of thirteen 28-day periods. The fourth quarter of 2016 contained three 28-day periods.

 

(2)

Includes (i) shares repurchased under our 2016 Share Repurchase Programs described below in footnote 4, (ii) shares repurchased under a program announced on December 6, 1999 to repurchase common shares to reduce dilution resulting from our employee stock option and long-term incentive plans, under which repurchases are limited to proceeds received from exercises of stock options and the tax benefits associated therewith (the “1999 Repurchase Program”), and (iii) 71,893 shares that were surrendered to the Company by participants under our long-term incentive plans to pay for taxes on restricted stock awards.

 

(3)

Represents shares repurchased under the 2016 Share Repurchase Programs and the 1999 Repurchase Program.

 

(4)

On June 22, 2016, our Board of Directors approved a new $500 million share repurchase program (the “June 2016 Share Repurchase Program”).  On September 15, 2016, our Board of Directors approved an additional $500 million share repurchase authority to supplement the June 2016 program (the “September 2016 Share Repurchase Program”, and together, the “2016 Share Repurchase Programs”). The amounts shown in this column reflect the amount remaining under the 2016 Share Repurchase Programs as of the specified period end dates.  Amounts available under the 1999 Repurchase Program are dependent upon option exercise activity. The June 2016 Share Repurchase Program was exhausted during the fourth quarter of 2016.  The September 2016 Share Repurchase Program and the 1999 Repurchase Program do not have an expiration date but may be terminated by our Board of Directors at any time.  On March 9, 2017, our Board of Directors approved an additional $500 million share repurchase authority to supplement the September 2016 Share Repurchase Program.

11


 

 

ITEM 6. SELECTED FINANCIAL DATA.

 

The following table presents our selected consolidated financial data for each of the last five fiscal years.  Refer to Note 2 of the Consolidated Financial Statements for disclosure of business combinations and their effect on each of the last three fiscal years’ Consolidated Statements of Operations and the last two fiscal years’ Consolidated Balance Sheets.  All share and per share amounts presented are reflective of the two-for-one stock split that began trading at the split adjusted price on July 14, 2015.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fiscal Years Ended

 

 

    

January 28,

    

January 30,

    

January 31,

    

February 1,

    

February 2,

 

 

 

2017

 

2016

 

2015

 

2014

 

2013

 

 

 

(52 weeks)

 

(52 weeks)

 

(52 weeks)

 

(52 weeks)

 

(53 weeks)

 

 

 

(In millions, except per share amounts)

 

Sales

 

$

115,337

 

$

109,830

 

$

108,465

 

$

98,375

 

$

96,619

 

Net earnings including noncontrolling interests

 

 

1,957

 

 

2,049

 

 

1,747

 

 

1,531

 

 

1,508

 

Net earnings attributable to The Kroger Co.

 

 

1,975

 

 

2,039

 

 

1,728

 

 

1,519

 

 

1,497

 

Net earnings attributable to The Kroger Co. per diluted common share

 

 

2.05

 

 

2.06

 

 

1.72

 

 

1.45

 

 

1.39

 

Total assets

 

 

36,505

 

 

33,897

 

 

30,497

 

 

29,281

 

 

24,634

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Long-term liabilities, including obligations under capital leases and financing obligations

 

 

16,935

 

 

14,128

 

 

13,663

 

 

13,181

 

 

9,359

 

Total shareholders’ equity — The Kroger Co.

 

 

6,698

 

 

6,820

 

 

5,412

 

 

5,384

 

 

4,207

 

Cash dividends per common share

 

 

0.450

 

 

0.395

 

 

0.340

 

 

0.308

 

 

0.248

 

 

 

12


 

ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.

 

The following discussion and analysis of financial condition and results of operations of The Kroger Co. should be read in conjunction with the “Forward-looking Statements” section set forth in Part I, the “Risk Factors” section set forth in Item 1A of Part I and the “Outlook” section below.

 

OUR BUSINESS

 

The Kroger Co. was founded in 1883 and incorporated in 1902.  Kroger is one of the world’s largest retailers, as measured by revenue, operating 2,796 supermarkets under a variety of local banner names in 35 states and the District of Columbia.  Of these stores, 2,255 have pharmacies and 1,445 have fuel centers.  We also offer ClickList™ and Harris Teeter ExpressLane — personalized, order online, pick up at the store services —  at 637 of our supermarkets, and operate 784 convenience stores, either directly or through franchisees, 319 fine jewelry stores and an online retailer.

 

We operate 38 food production plants, primarily bakeries and dairies, which supply approximately 35% of the corporate brand units sold in our supermarkets; the remaining corporate brand items are produced to our strict specifications by outside manufacturers. This percentage has declined recently due to an expanded portfolio of non-grocery corporate brand units produced by outside manufacturers.  Our food production plants produced 45% of our grocery category corporate brand units sold in our supermarkets, which is consistent with our historical trend. 

 

Our revenues are earned and cash is generated as consumer products are sold to customers in our stores, fuel centers and via our online platforms.  We earn income predominately by selling products at price levels that produce revenues in excess of the costs we incur to make these products available to our customers.  Such costs include procurement and distribution costs, facility occupancy and operational costs, and overhead expenses.  Our retail operations, which represent over 98% of our consolidated sales and EBITDA, is our only reportable segment.

 

On September 2, 2016, we closed our merger with Modern HC Holdings, Inc. (“ModernHEALTH”) by purchasing 100% of the outstanding shares of ModernHEALTH for $407 million.  ModernHEALTH is included in our ending Consolidated Balance Sheet for 2016 and in our Consolidated Statements of Operations from September 2, 2016 through January 28, 2017.

 

On December 18, 2015, we closed our merger with Roundy’s, Inc. (“Roundy’s”) by purchasing 100% of Roundy’s® outstanding common stock for $3.60 per share and assuming Roundy’s outstanding debt, for a purchase price of $866 million.  Roundy’s is included in our ending Consolidated Balance Sheets for 2015 and 2016 and in our Consolidated Statements of Operations for the last six weeks of 2015 and all periods in 2016. 

 

On August 18, 2014, we closed our merger with Vitacost.com® by purchasing 100% of the Vitacost.com outstanding common stock for $8.00 per share or $287 million.  Vitacost.com is included in our ending Consolidated Balance Sheets for 2015 and 2016 and in our Consolidated Statements of Operations for all periods succeeding the merger. 

 

See Note 2 to the Consolidated Financial Statements for more information related to our mergers with ModernHEALTH, Roundy’s and Vitacost.com.

   

13


 

USE OF NON-GAAP FINANCIAL MEASURES  

   

The accompanying Consolidated Financial Statements, including the related notes, set forth in Part II, Item 8 of this Form 10-K are presented in accordance with generally accepted accounting principles (“GAAP”). We provide non-GAAP measures, including First-In, First-Out (“FIFO”) gross margin, FIFO operating profit, adjusted net earnings and adjusted net earnings per diluted share because management believes these metrics are useful to investors and analysts.  These non-GAAP financial measures should not be considered as an alternative to gross margin, operating profit, net earnings and net earnings per diluted share or any other GAAP measure of performance.  These measures should not be reviewed in isolation or considered as a substitute for our financial results as reported in accordance with GAAP.  Our calculation and reasons these are useful metrics to investors and analysts are explained below.

   

We calculate FIFO gross margin as sales less merchandise costs, including advertising, warehousing, and transportation expenses, but excluding the Last-In, First-Out (“LIFO”) charge.  Merchandise costs exclude depreciation and rent expenses.  FIFO gross margin is an important measure used by management to evaluate merchandising and operational effectiveness.  Management believes FIFO gross margin is a useful metric to investors and analysts because it measures our day-to-day merchandising and operational effectiveness.

   

We calculate FIFO operating profit as operating profit excluding the LIFO charge.  FIFO operating profit is an important measure used by management to evaluate operational effectiveness.  Management believes FIFO operating profit is a useful metric to investors and analysts because it measures our day-to-day operational effectiveness. 

   

We believe the adjusted net earnings per diluted share metric presents more accurate year-over-year comparisons for our net earnings per diluted share because adjusted items are not the result of our normal operations. 

   

OVERVIEW  

   

Notable items for 2016 are:

   

 

 

 

 

 

 

 

Net earnings per diluted share of $2.05.

 

 

 

 

 

 

 

 

Net earnings for 2016 includes $111 million ($71 million after-tax) of charges to operating, general and administrative expenses related to the restructuring of certain pension obligations to help stabilize associates’ future benefits (“2016 Adjusted Items”). 

   

 

 

 

 

 

 

 

Adjusted net earnings per diluted share of $2.12.

 

 

 

 

 

 

 

 

Identical supermarket sales, excluding fuel, increased 1.0%.

   

 

 

 

 

 

 

 

Increased market share, total unit growth, added 420 Clicklist™ locations and achieved record high unit share for Corporate Brands.

 

 

 

 

 

 

 

 

Results include unfavorable pricing and cost effects and the loss of sales leverage due to a challenging, deflationary operating environment.

 

 

 

 

 

 

 

 

During 2016, we returned $2.2 billion to shareholders from share repurchases and dividend payments and invested $407 million in the ModernHEALTH merger.

 

   

14


 

The following table provides a reconciliation of net earnings attributable to The Kroger Co. to adjusted net earnings attributable to The Kroger Co. and a reconciliation of net earnings attributable to The Kroger Co. per diluted common share to adjusted net earnings attributable to The Kroger Co. per diluted common share, excluding the 2016 and 2014 Adjusted Items.  In 2015, we did not have any adjustment items that affect net earnings or net earnings per diluted share.

 

Net Earnings per Diluted Share excluding the Adjusted Items

($ in millions, except per share amounts)

 

 

 

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Net earnings attributable to The Kroger Co.

 

$

1,975

 

$

2,039

 

$

1,728

 

2016 Adjusted Items (1)(2)

 

 

71

 

 

 —

 

 

 —

 

2014 Adjusted Items (1)(2)

 

 

 —

 

 

 —

 

 

39

 

Net earnings attributable to The Kroger Co. excluding the adjusted items above

 

$

2,046

 

$

2,039

 

$

1,767

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per diluted common share

 

$

2.05

 

$

2.06

 

$

1.72

 

2016 Adjusted Items (3)

 

 

0.07

 

 

 —

 

 

 —

 

2014 Adjusted Items (3)

 

 

 —

 

 

 —

 

 

0.04

 

Net earnings attributable to The Kroger Co. per diluted common share excluding the adjusted items above

 

$

2.12

 

$

2.06

 

$

1.76

 

 

 

 

 

 

 

 

 

 

 

 

Average numbers of common shares used in diluted calculation

 

 

958

 

 

980

 

 

993

 


(1)

The amounts presented represent the after-tax effect of the 2016 and 2014 Adjusted Items.  The “2014 Adjusted Items” are an $87 million ($56 million after-tax) charge to OG&A due to the commitments and withdrawal liabilities arising from restructuring of certain multi-employer obligations (“2014 Multi-Employer Pension Plan Obligation”) to help stabilize associates’ future pension benefits, offset partially by the benefits from certain tax items of $17 million.

(2)

The pre-tax adjustments for the 2016 and 2014 Adjusted Items were $111 million and $87 million, respectively. 

(3)

The amounts presented represent the net earnings per diluted common share effect of the 2016 and 2014 Adjusted Items.

 

RESULTS OF OPERATIONS

 

Sales

 

Total Sales

($ in millions)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

 

    

Percentage

    

 

 

    

Percentage

    

 

 

 

 

 

2016

 

Increase(2)

 

2015

 

Increase(3)

 

2014

 

Total supermarket sales without fuel

 

$

96,900

 

6.1

%  

$

91,310

 

5.8

%  

$

86,281

 

Fuel sales

 

 

13,979

 

(5.6)

%  

 

14,804

 

(21.5)

%  

 

18,850

 

Other sales(1)

 

 

4,458

 

20.0

%  

 

3,716

 

11.5

%  

 

3,334

 

Total sales

 

$

115,337

 

5.0

%  

$

109,830

 

1.3

%  

$

108,465

 


(1)

Ot her sales primarily relate to sales at convenience stores, excluding fuel; jewelry stores; food production plants to outside customers; data analytic services; variable interest entities; specialty pharmacy; in-store health clinics; digital coupon services; and online sales by Vitacost.com. 

(2)

This column represents the sales percentage increases in 2016, compared to 2015.

(3)

This column represents the sales percentage increases in 2015, compared to 2014.

 

15


 

Total sales increased in 2016, compared to 2015, by 5.0%.  This increase was primarily due to our increase in total supermarket sales, without fuel, and our merger with ModernHEALTH, partially offset by a decrease in fuel sales due to a 9.4% decrease in the average retail fuel price.  The increase in total supermarket sales without fuel for 2016, compared to 2015, was primarily due to our merger with Roundy’s, an increase in supermarket square footage and our identical supermarket sales increase, excluding fuel, of 1.0%.  Identical supermarket sales, excluding fuel, for 2016, compared to 2015, increased primarily due to an increase in the number of households shopping with us, partially offset by product cost deflation of 0.8%.  Excluding mergers, acquisitions and operational closings, total supermarket square footage at the end of 2016 increased 3.4% over 2015.  Total fuel sales decreased 5.6% in 2016, compared to 2015, primarily due to a decrease in the average retail fuel price of 9.4%, partially offset by an increase in fuel gallons sold of 4.2%.  The decrease in the average retail fuel price was caused by a decrease in the product cost of fuel.

 

Total sales increased in 2015, compared to 2014, by 1.3%.  This increase in 2015 total sales, compared to 2014, was primarily due to an increase in identical supermarket sales, excluding fuel, of 5.0%.  Total sales also increased due to the inclusion of Roundy’s sales, due to our merger, for the period of December 18, 2015 to January 30, 2016.  Identical supermarket sales, excluding fuel, for 2015, compared to 2014, increased primarily due to an increase in the number of households shopping with us, an increase in visits per household, changes in product mix and product cost inflation.  Total fuel sales decreased in 2015, compared to 2014, primarily due to a 26.7% decrease in the average retail fuel price, partially offset by an increase in fuel gallons sold of 7.1%.

 

We define a supermarket as identical when it has been in operation without expansion or relocation for five full quarters.  Although identical supermarket sales is a relatively standard term, numerous methods exist for calculating identical supermarket sales growth.  As a result, the method used by our management to calculate identical supermarket sales may differ from methods other companies use to calculate identical supermarket sales.  We urge you to understand the methods used by other companies to calculate identical supermarket sales before comparing our identical supermarket sales to those of other such companies.  Fuel discounts received at our fuel centers and earned based on in-store purchases are included in all of the identical supermarket sales results calculations as illustrated in the following table and reduce our identical supermarket sales results.  Differences between total supermarket sales and identical supermarket sales primarily relate to changes in supermarket square footage.  Identical supermarket sales include sales from all departments at identical multi-department stores and Roundy’s stores that are identical as if they were part of the Company in the prior year.  Our identical supermarket sales results are summarized in the following table.  We used the identical supermarket dollar figures presented below to calculate percentage changes for 2016 and 2015.

 

Identical Supermarket Sales

(dollars in millions)

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

 

Including supermarket fuel centers

 

$

103,180

 

$

103,106

 

Excluding supermarket fuel centers

 

$

92,451

 

$

91,568

 

Including supermarket fuel centers

 

 

0.1

%  

 

1.1

%

Excluding supermarket fuel centers

 

 

1.0

%  

 

5.0

%

 

Gross Margin, LIFO and FIFO Gross Margin

 

Our gross margin rates, as a percentage of sales, were 22.40% in 2016, 22.16% in 2015 and 21.16% in 2014.  The increase in 2016, compared to 2015, resulted primarily from lower fuel sales, a lower LIFO charge and our merger with Roundy’s due to its historically higher gross margin rate, partially offset by continued investments in lower prices for our customers, unfavorable pricing and cost effects due to transitioning to a deflationary operating environment, our merger with ModernHEALTH due to its historically lower gross margin rate and increased warehousing and shrink costs, as a percentage of sales.  The increase in 2015, compared to 2014, resulted primarily from lower fuel sales, reductions in transportation costs and a lower LIFO charge, partially offset by continued investments in lower prices for our customers and increased shrink costs, as a percentage of sales. Lower fuel sales increase our gross margin rate, as a percentage of sales, due to the very low gross margin rate, as a percentage of sales, on fuel sales compared to non-fuel sales.

 

16


 

Our LIFO charge was $19 million in 2016, $28 million in 2015 and $147 million in 2014.  In 2016, our LIFO charge primarily resulted from annualized product cost inflation related to pharmacy, and was partially offset by annualized product cost deflation in other departments.  In 2015, we experienced lower product cost inflation, compared to 2014, which resulted in a lower LIFO charge. In 2015, our LIFO charge primarily resulted from annualized product cost inflation related to pharmacy, and was partially offset by annualized product cost deflation related to meat and dairy.  In 2014, our LIFO charge primarily resulted from annualized product cost inflation related to pharmacy, grocery, deli, meat and seafood. 

 

Our FIFO gross margin rates, as a percentage of sales, were 22.42% in 2016, 22.18% in 2015 and 21.30% in 2014.  Excluding the effect of fuel and our mergers with Roundy’s and ModernHEALTH (“recent mergers”), our FIFO gross margin rate decreased seven basis points in 2016, compared to 2015.  This decrease resulted primarily from continued investments in lower prices for our customers, unfavorable pricing and cost effects due to transitioning to a deflationary operating environment and increased warehousing and shrink costs, as a percentage of sales.   Excluding the effect of fuel, our FIFO gross margin rate decreased four basis points in 2015, compared to 2014.  This decrease resulted primarily from continued investments in lower prices for our customers and increased shrink costs, partially offset by a reduction in transportation costs, as a percentage of sales. 

 

Operating, General and Administrative Expenses

 

OG&A expenses consist primarily of employee-related costs such as wages, health care benefits and retirement plan costs, utility and credit card fees.  Rent expense, depreciation and amortization expense and interest expense are not included in OG&A.

 

OG&A expenses, as a percentage of sales, were 16.63% in 2016, 16.34% in 2015 and 15.82% in 2014.  OG&A expenses, as a percentage of sales, increased 29 basis points to 16.63% in 2016 from 16.34% in 2015.  This increase resulted primarily from a decrease in fuel sales, the loss of sales leverage due to transitioning to a deflationary operating environment, the 2016 Adjusted Items, our recent mergers due to their historically higher OG&A rate, compared to our other divisions, and increases in healthcare benefit and credit card costs, partially offset by increased supermarket sales, productivity improvements, effective cost controls, $110 million United Food and Commercial Workers International Union (“UFCW”) contributions made during 2015 (“2015 UFCW Contributions”) and decreases in incentive plans, company-sponsored pension plans and utility costs, as a percentage of sales.  Our fuel sales lower our OG&A rate, as a percentage of sales, due to the very low OG&A rate, as a percentage of sales, of fuel sales compared to non-fuel sales.  Excluding the effect of fuel, the 2016 Adjusted Items, recent mergers and the 2015 UFCW Contributions, our OG&A rate decreased five basis points in 2016, compared to 2015.  This decrease resulted primarily from increased supermarket sales, productivity improvements, effective cost controls and decreases in incentive plans, company-sponsored pension plans and utility costs, partially offset by the loss of sales leverage due to transitioning to a deflationary operating environment and increases in healthcare benefit and credit card costs, as a percentage of sales.

 

OG&A expenses, as a percentage of sales, increased 52 basis points to 16.34% in 2015 from 15.82% in 2014.  This increase resulted primarily from a decrease in fuel sales, increases in EMV chargebacks, company-sponsored pension, healthcare and incentive plan costs, partially offset by increased supermarket sales, the 2014 Multi-Employer Pension Plan Obligation, lower charges for total contributions to The Kroger Foundation and UFCW Consolidated Pension Plan (“2014 Contributions”), compared to the 2015 UFCW Contributions, productivity improvements and effective cost controls at the store level.  Excluding fuel, the 2015 UFCW Contributions, the 2014 Contributions and the 2014 Multi-Employer Pension Plan Obligation, our OG&A rate decreased nine basis points, compared to 2014.  The decrease resulted primarily from increased supermarket sales, productivity improvements and effective cost controls at the store level, partially offset by increases in EMV chargebacks , company-sponsored pension, healthcare and incentive plan costs, as a percentage of sales. 

 

Rent Expense

 

Rent expense increased on a total dollars and percentage of sales basis in 2016, compared to 2015, due to:

   

·

Our merger with Roundy’s, due to its higher volume of leased versus owned supermarkets, and

·

Lower fuel sales, which increases our rent expense rate, as a percentage of sales.

 

17


 

Rent expense increased in 2015, compared to 2014, due to our merger with Roundy’s ,   partially offset by our continued emphasis to own rather than lease, whenever possible.  Rent expense, as a percentage of sales, in 2015 was consistent with 2014, due to the effect of our merger with Roundy’s being offset by our continued emphasis to own rather than lease, whenever possible, and the benefit of increased sales.

 

Depreciation and Amortization Expense

 

Depreciation and amortization expense increased on a total dollars and percentage of sales basis in 2016, compared to 2015, due to:

 

·

Additional depreciation on capital investments, excluding mergers and lease buyouts, of $3.6 billion, during 2016,

·

Unfavorable sales leveraging from transitioning to a deflationary operating environment, and

·

Our merger with Roundy’s.

 

Depreciation and amortization expense increased on a total dollars and percentage of sales basis in 2015, compared to 2014, due to:

 

·

Ad ditional depreciation on capital investments, excluding mergers and lease buyouts of $3.3 billion, during 2015 , and

·

Our merger with Roundy’s.

 

Operating Profit and FIFO Operating Profit

 

Operating profit was $3.4 billion in 2016, $3.6 billion in 2015 and $3.1 billion in 2014.  Operating profit, as a percentage of sales, decreased 28 basis points in 2016, compared to 2015, due to increased OG&A, depreciation and amortization and rent expenses, partially offset by higher gross margin and a lower LIFO charge, as a percentage of sales.  Operating profit, as a percentage of sales, increased 37 basis points in 2015, compared to 2014, due to higher gross margin and a lower LIFO charge, partially offset by increased OG&A, depreciation and amortization and rent expenses, as a percentage of sales.  Specific factors of these operating trends are discussed earlier in this section.

 

FIFO operating profit was $3.5 billion in 2016, $3.6 billion in 2015 and $3.3 billion in 2014.  FIFO operating profit, as a percentage of sales, was 3.00% in 2016, 3.28% in 2015 and 3.03% in 2014.  Fuel sales lower our operating profit rate due to the very low operating profit rate, as a percentage of sales, of fuel sales compared to non-fuel sales.  FIFO operating profit, as a percentage of sales excluding fuel, the 2016 Adjusted Items, the effects of our recent mergers and the 2015 UFCW Contributions, decreased 14 basis points in 2016, compared to 2015.  This decrease was due to lower gross margin, higher depreciation and amortization, partially offset by decreased OG&A and rent expenses, as a percentage of sales.  FIFO operating profit, as a percentage of sales excluding fuel, the effects of our Roundy’s merger, the 2015 UFCW Contributions, the 2014 Contributions and the 2014 Multi-Employer Pension Plan Obligation, increased 8 basis points in 2015, compared to 2014.  This increase was primarily due to decreased OG&A and rent, partially offset by lower gross margin and increased depreciation and amortization, as a percentage of sales.  Specific factors of these operating trends are discussed earlier in this section. 

 

Interest Expense

 

Interest expense totaled $522 million in 2016, $482 million in 2015 and $488 million in 2014.  The increase in interest expense in 2016, compared to 2015, resulted primarily from additional borrowings used for share repurchases, mergers and a higher weighted average interest rate.  The decrease in interest expense in 2015, compared to 2014, resulted primarily from the timing of debt principal payments and debt issuances, partially offset by an increase in interest expense associated with our commercial paper program. 

 

18


 

Income Taxes

 

Our effective income tax rate was 32.8% in 2016, 33.8% in 2015 and 34.1% in 2014.  The 2016 tax rate differed from the federal statutory rate primarily as a result of the recognition of excess tax benefits related to share-based payments after the adoption of ASU 2016-09, the utilization of tax credits, the Domestic Manufacturing Deduction and other changes, partially offset by the effect of state income taxes.  The 2015 and 2014 tax rate differed from the federal statutory rate primarily as a result of the utilization of tax credits, the Domestic Manufacturing Deduction and other changes, partially offset by the effect of state income taxes.

 

Net Earnings and Net Earnings Per Diluted Share

 

Our net earnings are based on the factors discussed in the Results of Operations section.

 

Net earnings of $2.05 per diluted share in 2016 represented a decrease of 0.5% from net earnings of $2.06 per diluted share in 2015.  Excluding the 2016 Adjusted Items, net earnings of $2.12 per diluted share in 2016 represented an increase of 2.9% from net earnings of $2.06 per diluted share in 2015.  The net earnings of 2015 do not include any adjusted items.  The 2.9% increase resulted primarily from a lower LIFO charge, lower income tax expense and lower weighted average common shares outstanding due to common share repurchases, partially offset by lower non-fuel FIFO operating profit and lower fuel earnings.

 

Net earnings of $2.06 per diluted share in 2015 represented a increase of 19.8% from net earnings of $1.72 per diluted share in 2014.  Excluding the 2014 Adjusted Items, net earnings of $2.06 per diluted share in 2015 represented an increase of 17.0% from net earnings of $1.76 per diluted share in 2014.  The net earnings of 2015 do not include any adjusted items.  The 17.0% increase resulted primarily from higher non-fuel FIFO operating profit, a lower LIFO charge and lower weighted average common shares outstanding due to common share repurchases, partially offset by lower fuel earnings and higher income tax expense.

 

COMMON SHARE REPURCHASE PROGRAMS

 

We maintain share repurchase programs that comply with Rule 10b5-1 of the Securities Exchange Act of 1934 and allow for the orderly repurchase of our common shares, from time to time.  We made open market purchases of our common shares totaling $1.7 billion in 2016, $500 million in 2015 and $1.1 billion in 2014 under these repurchase programs.  In addition to these repurchase programs, we also repurchase common shares to reduce dilution resulting from our employee stock option plans.  This program is solely funded by proceeds from stock option exercises, and the tax benefit from these exercises.  We repurchased approximately $105 million in 2016, $203 million in 2015 and $155 million in 2014 of our common shares under the stock option program.

 

The following Board of Director authorizations created repurchase programs to reacquire shares via open market purchases:

 

·

A $500 million share repurchase program authorized by our Board of Directors and announced on June 25, 2015.  On March 10, 2016, our Board of Directors approved an additional $500 million share repurchase authority to supplement the June 2015 program.  These programs were exhausted during the first quarter of 2016.

·

On June 22, 2016, our Board of Directors approved a $500 million share repurchase program.  On September 15, 2016, our Board of Directors approved an additional $500 million share repurchase authority to supplement the June 2016 program. The June 2016 program was exhausted during the fourth quarter of 2016.

·

On March 9, 2017, our Board of Directors approved an additional $500 million share repurchase authority to supplement the September 2016 program.

 

During the first quarter through March 28, 2017, the Company used an additional $341 million of cash to repurchase 11 million common shares at an average price of $31.09 per share.  As of March 28, 2017, we have exhausted the September 2016 program and have $498 million remaining under the March 2017 program.

 

19


 

CAPITAL INVESTMENTS

 

Capital investments, including changes in construction-in-progress payables and excluding mergers and the purchase of leased facilities, totaled $3.7 billion in 2016, $3.3 billion in 2015 and $2.7 billion in 2014.  Capital investments for mergers totaled $401 million in 2016, $168 million in 2015 and $252 million in 2014.  We merged with ModernHEALTH in 2016, Roundy’s in 2015 and Vitacost.com in 2014.  Refer to Note 2 to the Consolidated Financial Statements for more information on these mergers. Capital investments for the purchase of leased facilities totaled $5 million in 2016, $35 million in 2015 and $135 million in 2014.  The table below shows our supermarket storing activity and our total supermarket square footage:

 

Supermarket Storing Activity

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Beginning of year

 

2,778

 

2,625

 

2,640

 

Opened

 

50

 

31

 

33

 

Opened (relocation)

 

21

 

12

 

13

 

Acquired

 

 —

 

159

 

 

Closed (operational)

 

(32)

 

(37)

 

(48)

 

Closed (relocation)

 

(21)

 

(12)

 

(13)

 

End of year

 

2,796

 

2,778

 

2,625

 

 

 

 

 

 

 

 

 

Total supermarket square footage (in millions)

 

178

 

173

 

162

 

 

RETURN ON INVESTED CAPITAL

 

We calculate return on invested capital (“ROIC”) by dividing adjusted operating profit for the prior four quarters by the average invested capital.  Adjusted operating profit is calculated by excluding certain items included in operating profit, and adding back our LIFO charge, depreciation and amortization and rent to our U.S. GAAP operating profit of the prior four quarters.  Average invested capital is calculated as the sum of (i) the average of our total assets, (ii) the average LIFO reserve, (iii) the average accumulated depreciation and amortization and (iv) a rent factor equal to total rent for the last four quarters multiplied by a factor of eight; minus (i) the average taxes receivable, (ii) the average trade accounts payable, (iii) the average accrued salaries and wages and (iv) the average other current liabilities, excluding accrued income taxes.  Averages are calculated for ROIC by adding the beginning balance of the first quarter and the ending balance of the fourth quarter, of the last four quarters, and dividing by two.  We use a factor of eight for our total rent as we believe this is a common factor used by our investors, analysts and rating agencies.  ROIC is a non-GAAP financial measure of performance.  ROIC should not be reviewed in isolation or considered as a substitute for our financial results as reported in accordance with GAAP.  ROIC is an important measure used by management to evaluate our investment returns on capital.  Management believes ROIC is a useful metric to investors and analysts because it measures how effectively we are deploying our assets.

 

Although ROIC is a relatively standard financial term, numerous methods exist for calculating a company’s ROIC.  As a result, the method used by our management to calculate ROIC may differ from methods other companies use to calculate their ROIC.  We urge you to understand the methods used by other companies to calculate their ROIC before comparing our ROIC to that of such other companies.

 

20


 

The following table provides a calculation of ROIC for 2016 and 2015.  The January 30, 2016 calculation of ROIC excludes the financial position and results for the Roundy's merger.

 

 

 

 

 

 

 

 

 

 

 

Rolling   Four Quarters Ended

 

 

 

($ in millions)

 

 

    

January 28, 2017

    

January 30, 2016

 

Return on Invested Capital

 

 

 

 

 

 

 

Numerator

 

 

 

 

 

 

 

Operating profit

 

$

3,436

 

$

3,576

 

LIFO (credit) charge

 

 

19

 

 

28

 

Depreciation and amortization

 

 

2,340

 

 

2,089

 

Rent

 

 

881

 

 

723

 

Adjustments for pension plan agreements

 

 

111

 

 

 —

 

Other

 

 

 —

 

 

(13)

 

Adjusted operating profit

 

$

6,787

 

$

6,403

 

 

 

 

 

 

 

 

 

Denominator

 

 

 

 

 

 

 

Average total assets

 

$

35,201

 

$

32,197

 

Average taxes receivable (1)

 

 

(262)

 

 

(206)

 

Average LIFO reserve

 

 

1,283

 

 

1,259

 

Average accumulated depreciation and amortization

 

 

18,940

 

 

17,441

 

Average trade accounts payable

 

 

(5,773)

 

 

(5,390)

 

Average accrued salaries and wages

 

 

(1,330)

 

 

(1,359)

 

Average other current liabilities (2)

 

 

(3,265)

 

 

(3,054)

 

Adjustment for Roundy’s merger

 

 

 —

 

 

(714)

 

Rent x 8

 

 

7,048

 

 

5,784

 

Average invested capital

 

$

51,842

 

$

45,958

 

Return on Invested Capital

 

 

13.09

%  

 

13.93

%


(1)

Taxes receivable were $132 as of January 28, 2017, $392 as of January 30, 2016 and $20 as of January 31, 2015. The January 30, 2016 balance is higher than the other comparative balances due to changes to tangible property regulations in 2015. Refer to Note 5 of the Consolidated Financial Statements for further detail.

(2)

Other current liabilities included accrued income taxes of $1 as of January 28, 2017 and $5 as of January 31, 2015. We did not have any accrued income taxes as of January 30, 2016. Accrued income taxes are removed from other current liabilities in the calculation of average invested capital.

 

CRITICAL ACCOUNTING POLICIES

 

We have chosen accounting policies that we believe are appropriate to report accurately and fairly our operating results and financial position, and we apply those accounting policies in a consistent manner.  Our significant accounting policies are summarized in Note 1 to the Consolidated Financial Statements.

 

The preparation of financial statements in conformity with GAAP requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, and expenses, and related disclosures of contingent assets and liabilities.  We base our estimates on historical experience and other factors we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources.  Actual results could differ from those estimates.

 

We believe that the following accounting policies are the most critical in the preparation of our financial statements because they involve the most difficult, subjective or complex judgments about the effect of matters that are inherently uncertain.

 

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Self-Insurance Costs

 

We primarily are self-insured for costs related to workers’ compensation and general liability claims.  The liabilities represent our best estimate, using generally accepted actuarial reserving methods, of the ultimate obligations for reported claims plus those incurred but not reported for all claims incurred through January 28, 2017.  We establish case reserves for reported claims using case-basis evaluation of the underlying claim data and we update as information becomes known.

 

For both workers’ compensation and general liability claims, we have purchased stop-loss coverage to limit our exposure to any significant exposure on a per claim basis.  We are insured for covered costs in excess of these per claim limits.  We account for the liabilities for workers’ compensation claims on a present value basis utilizing a risk-adjusted discount rate.  A 25 basis point decrease in our discount rate would increase our liability by approximately $2 million.  General liability claims are not discounted.

 

The assumptions underlying the ultimate costs of existing claim losses are subject to a high degree of unpredictability, which can affect the liability recorded for such claims.  For example, variability in inflation rates of health care costs inherent in these claims can affect the amounts realized.  Similarly, changes in legal trends and interpretations, as well as a change in the nature and method of how claims are settled can affect ultimate costs.  Our estimates of liabilities incurred do not anticipate significant changes in historical trends for these variables, and any changes could have a considerable effect on future claim costs and currently recorded liabilities.

 

Impairments of Long-Lived Assets

 

We monitor the carrying value of long-lived assets for potential impairment each quarter based on whether certain triggering events have occurred.  These events include current period losses combined with a history of losses or a projection of continuing losses or a significant decrease in the market value of an asset.  When a triggering event occurs, we perform an impairment calculation, comparing projected undiscounted cash flows, utilizing current cash flow information and expected growth rates related to specific stores, to the carrying value for those stores.  If we identify impairment for long-lived assets to be held and used, we compare the assets’ current carrying value to the assets’ fair value.  Fair value is determined based on market values or discounted future cash flows.  We record impairment when the carrying value exceeds fair market value.  With respect to owned property and equipment held for disposal, we adjust the value of the property and equipment to reflect recoverable values based on our previous efforts to dispose of similar assets and current economic conditions.  We recognize impairment for the excess of the carrying value over the estimated fair market value, reduced by estimated direct costs of disposal.  We recorded asset impairments in the normal course of business totaling $26 million in 2016, $46 million in 2015 and $37 million in 2014.  We record costs to reduce the carrying value of long-lived assets in the Consolidated Statements of Operations as “Operating, general and administrative” expense.

 

22


 

The factors that most significantly affect the impairment calculation are our estimates of future cash flows.  Our cash flow projections look several years into the future and include assumptions on variables such as inflation, the economy and market competition.  Application of alternative assumptions and definitions, such as reviewing long-lived assets for impairment at a different level, could produce significantly different results.

 

Goodwill

 

Our goodwill totaled $3.0 billion as of January 28, 2017.  We review goodwill for impairment in the fourth quarter of each year, and also upon the occurrence of triggering events.  We perform reviews of each of our operating divisions and variable interest entities (collectively, “reporting units”) that have goodwill balances.  Fair value is determined using a multiple of earnings, or discounted projected future cash flows, and we compare fair value to the carrying value of a reporting unit for purposes of identifying potential impairment.  We base projected future cash flows on management’s knowledge of the current operating environment and expectations for the future.  If we identify potential for impairment, we measure the fair value of a reporting unit against the fair value of its underlying assets and liabilities, excluding goodwill, to estimate an implied fair value of the reporting unit’s goodwill.  We recognize goodwill impairment for any excess of the carrying value of the reporting unit’s goodwill over the implied fair value.

 

The annual evaluation of goodwill performed for our reporting units during the fourth quarter of 2016, 2015 and 2014 did not result in impairment.  Based on current and future expected cash flows, we believe goodwill impairments are not reasonably likely.  A 10% reduction in fair value of our reporting units would not indicate a potential for impairment of our goodwill balance.

 

For additional information relating to our results of the goodwill impairment reviews performed during 2016, 2015 and 2014 see Note 3 to the Consolidated Financial Statements.

 

The impairment review requires the extensive use of management judgment and financial estimates.  Application of alternative estimates and assumptions, such as reviewing goodwill for impairment at a different level, could produce significantly different results.  The cash flow projections embedded in our goodwill impairment reviews can be affected by several factors such as inflation, business valuations in the market, the economy, market competition and our ability to successfully integrate recently acquired businesses.

 

Store Closing Costs

 

We provide for closed store liabilities on the basis of the present value of the estimated remaining non-cancellable lease payments after the closing date, net of estimated subtenant income.  We estimate the net lease liabilities using a discount rate to calculate the present value of the remaining net rent payments on closed stores.  We usually pay closed store lease liabilities over the lease terms associated with the closed stores, which generally have remaining terms ranging from one to 20 years.  Adjustments to closed store liabilities primarily relate to changes in subtenant income and actual exit costs differing from original estimates.  We make adjustments for changes in estimates in the period in which the change becomes known.  We review store closing liabilities quarterly to ensure that any accrued amount that is not a sufficient estimate of future costs is adjusted to earnings in the proper period.

 

We estimate subtenant income, future cash flows and asset recovery values based on our experience and knowledge of the market in which the closed store is located, our previous efforts to dispose of similar assets and current economic conditions.  The ultimate cost of the disposition of the leases and the related assets is affected by current real estate markets, inflation rates and general economic conditions.

 

We reduce owned stores held for disposal to their estimated net realizable value.  We account for costs to reduce the carrying values of property, equipment and leasehold improvements in accordance with our policy on impairment of long-lived assets.  We classify inventory write-downs in connection with store closings, if any, in “Merchandise costs.”  We expense costs to transfer inventory and equipment from closed stores as they are incurred.

 

23


 

Post-Retirement Benefit Plans

 

We account for our defined benefit pension plans using the recognition and disclosure provisions of GAAP, which require the recognition of the funded status of retirement plans on the Consolidated Balance Sheet.  We record, as a component of Accumulated Other Comprehensive Income (“AOCI”), actuarial gains or losses, prior service costs or credits and transition obligations that have not yet been recognized.

 

The determination of our obligation and expense for Company-sponsored pension plans and other post-retirement benefits is dependent upon our selection of assumptions used by actuaries in calculating those amounts.  Those assumptions are described in Note 15 to the Consolidated Financial Statements and include, among others, the discount rate, the expected long-term rate of return on plan assets, mortality and the rate of increases in compensation and health care costs.  Actual results that differ from our assumptions are accumulated and amortized over future periods and, therefore, generally affect our recognized expense and recorded obligation in future periods.  While we believe that our assumptions are appropriate, significant differences in our actual experience or significant changes in our assumptions, including the discount rate used and the expected return on plan assets, may materially affect our pension and other post-retirement obligations and our future expense.  Note 15 to the Consolidated Financial Statements also discusses the effect of a 1% change in the assumed health care cost trend rate on other post-retirement benefit costs and the related liability.

 

The objective of our discount rate assumptions was intended to reflect the rates at which the pension benefits could be effectively settled.  In making this determination, we take into account the timing and amount of benefits that would be available under the plans.  Our methodology for selecting the discount rates was to match the plan’s cash flows to that of a hypothetical bond portfolio whose cash flow from coupons and maturities match the plan’s projected benefit cash flows.  The discount rates are the single rates that produce the same present value of cash flows.  The selection of the 4.25% and 4.18% discount rates as of year-end 2016 for pension and other benefits, respectively, represents the hypothetical bond portfolio using bonds with an AA or better rating constructed with the assistance of an outside consultant.  We utilized a discount rate of 4.62% and 4.44% as of year-end 2015 for pension and other benefits, respectively.  A 100 basis point increase in the discount rate would decrease the projected pension benefit obligation as of January 28, 2017, by approximately $510 million.

 

To determine the expected rate of return on pension plan assets held by Kroger for 2016, we considered current and forecasted plan asset allocations as well as historical and forecasted rates of return on various asset categories.  In 2016, our assumed pension plan investment return rate was 7.40% compared to 7.44% in 2015 and 2014.  During 2016, Kroger began managing the assets for the Harris Teeter and Roundy’s pension plans, and our expected rate of return reflects implementing a similar investment management strategy for the Harris Teeter and Roundy’s plans’ assets.  Historically, the Kroger pension plans’ average rate of return was 5.81% for the 10 calendar years ended December 31, 2016, net of all investment management fees and expenses.  The value of all investments in our Company-sponsored defined benefit pension plans during the calendar year ending December 31, 2016, net of investment management fees and expenses, increased 6.90%.  For the past 20 years, the Kroger pension plans’ average annual rate of return has been 7.77%.  Based on the above information and forward looking assumptions for investments made in a manner consistent with our target allocations, we believe a 7.40% rate of return assumption is reasonable for 2016.  See Note 15 to the Consolidated Financial Statements for more information on the asset allocations of pension plan assets.

 

On January 31, 2015, we adopted new industry specific mortality tables based on mortality experience and assumptions for generational mortality improvement in determining our benefit obligations. On January 28, 2017, we adopted an updated assumption for generational mortality improvement, based on additional years of published mortality experience.

 

24


 

Sensitivity to changes in the major assumptions used in the calculation of Kroger’s pension plan liabilities is illustrated below (in millions).

 

 

 

 

 

 

 

 

 

 

 

 

    

 

    

Projected Benefit

    

 

 

 

 

 

Percentage

 

Obligation

 

Expense

 

 

 

Point Change

 

Decrease/(Increase)

 

Decrease/(Increase)

 

Discount Rate

 

+/- 1.0%

 

$

510/(620)

 

$

36/(46)

 

Expected Return on Assets

 

+/- 1.0%

 

 

 

$

32/(32)

 

 

In 2016, we contributed $3 million to our Company-sponsored defined benefit plans and are not required to make any contributions to these plans in 2017.  We contributed $5 million to our Company-sponsored defined benefit plans in 2015 and did not make contributions in 2014.  Among other things, investment performance of plan assets, the interest rates required to be used to calculate the pension obligations, and future changes in legislation, will determine the amounts of contributions.

 

We contributed and expensed $215 million in 2016, $196 million in 2015 and $177 million in 2014 to employee 401(k) retirement savings accounts.  The increase in 2016, compared to 2015, is primarily due to our recent mergers. The increase in 2015, compared to 2014, is due to a higher employee savings rate.  The 401(k) retirement savings account plans provide to eligible employees both matching contributions and automatic contributions from the Company based on participant contributions, plan compensation and length of service.

 

Multi-Employer Pension Plans

 

We contribute to various multi-employer pension plans based on obligations arising from collective bargaining agreements.  These multi-employer pension plans provide retirement benefits to participants based on their service to contributing employers.  The benefits are paid from assets held in trust for that purpose.  Trustees are appointed in equal number by employers and unions.  The trustees typically are responsible for determining the level of benefits to be provided to participants as well as for such matters as the investment of the assets and the administration of the plans.

 

We recognize expense in connection with these plans as contributions are funded or when commitments are probable and reasonably estimable, in accordance with GAAP.  We made cash contributions to these plans of $289 million in 2016, $426 million in 2015 and $297 million in 2014.

 

We continue to evaluate and address our potential exposure to under-funded multi-employer pension plans as it relates to our associates who are beneficiaries of these plans.  These under-fundings are not our liability.  When an opportunity arises that is economically feasible and beneficial to us and our associates, we may negotiate the restructuring of under-funded multi-employer pension plan obligations to help stabilize associates’ future benefits and become the fiduciary of the restructured multi-employer pension plan.  The commitments from these restructurings do not change our debt profile as it relates to our credit rating.  We are currently designated as the named fiduciary of the UFCW Consolidated Pension Plan and have sole investment authority over these assets.  Significant effects of these restructuring agreements recorded in our Consolidated Financial Statements are:

 

·

In 2016, we incurred a charge of $111 million, $71 million, after tax, due to commitments and withdrawal liabilities arising from the restructuring of certain multi-employer pension plan obligations, of which $28 million was contributed to the UFCW Consolidated Pension Plan in 2016.

 

·

In 2015, we contributed $190 million to the UFCW Consolidated Pension Plan.  We had previously accrued $60 million of the total contributions at January 31, 2015 and recorded expense for the remaining $130 million at the time of payment in 2015. 

 

·

In 2014, we incurred a charge of $56 million. after-tax, related to commitments and withdrawal liabilities associated with the restructuring of pension plan agreements, of which $15 million was contributed to the UFCW Consolidated Pension Plan in 2014. 

 

25


 

As we continue to work to find solutions to under-funded multi-employer pension plans, it is possible we could incur withdrawal liabilities for certain funds.  Two locations have initiated a withdrawal process, in the first quarter of 2017, resulting in an estimated withdrawal liability of less than $100 million, after-tax.

 

Based on the most recent information available to us, we believe that the present value of actuarially accrued liabilities in most of the multi-employer plans to which we contribute substantially exceeds the value of the assets held in trust to pay benefits.  We have attempted to estimate the amount by which these liabilities exceed the assets, (i.e., the amount of underfunding), as of December 31, 2016.  Because we are only one of a number of employers contributing to these plans, we also have attempted to estimate the ratio of our contributions to the total of all contributions to these plans in a year as a way of assessing our “share” of the underfunding.  Nonetheless, the underfunding is not a direct obligation or liability of ours or of any employer.  As of December 31, 2016, we estimate that our share of the underfunding of multi-employer pension plans to which we contribute, or as it relates to certain funds, an estimated withdrawal liability, was approximately $3.0 billion, pre-tax, or $1.8 billion, after-tax.  This represents an increase in the estimated amount of underfunding of approximately $100 million, pre-tax, or approximately $40 million, after-tax, as of December 31, 2016, compared to December 31, 2015.  The increase in the amount of underfunding is attributable to lower than expected returns on the assets held in the multi-employer pension plans during 2016 and changes in mortality rate assumptions.  Our estimate is based on the most current information available to us including actuarial evaluations and other data (that include the estimates of others), and such information may be outdated or otherwise unreliable.

 

We have made and disclosed this estimate not because, except as noted above, this underfunding is a direct liability of ours.  Rather, we believe the underfunding is likely to have important consequences.  In 2017, we expect to contribute approximately $360 million to multi-employer pension plans, which excludes any additional multi-employer pension plan restructurings that could occur. Of this amount, $35 million has been accrued for as of January 28, 2017.  We expect increases in expense as a result of increases in multi-employer pension plan contributions over the next few years.  Finally, underfunding means that, in the event we were to exit certain markets or otherwise cease making contributions to these plans, we could trigger a substantial withdrawal liability. Any adjustment for withdrawal liability will be recorded when it is probable that a liability exists and can be reasonably estimated, in accordance with GAAP. 

 

The amount of underfunding described above is an estimate and could change based on contract negotiations, returns on the assets held in the multi-employer pension plans, benefit payments or future restructuring agreements.  The amount could decline, and our future expense would be favorably affected, if the values of the assets held in the trust significantly increase or if further changes occur through collective bargaining, trustee action or favorable legislation.  On the other hand, our share of the underfunding could increase and our future expense could be adversely affected if the asset values decline, if employers currently contributing to these funds cease participation or if changes occur through collective bargaining, trustee action or adverse legislation.  We continue to evaluate our potential exposure to under-funded multi-employer pension plans.  Although these liabilities are not a direct obligation or liability of ours, any commitments to fund certain multi-employer pension plans will be expensed when our commitment is probable and an estimate can be made.

 

See Note 16 to the Consolidated Financial Statements for more information relating to our participation in these multi-employer pension plans.

 

Uncertain Tax Positions

 

We review the tax positions taken or expected to be taken on tax returns to determine whether and to what extent a benefit can be recognized in our Consolidated Financial Statements.  Refer to Note 5 to the Consolidated Financial Statements for the amount of unrecognized tax benefits and other disclosures related to uncertain tax positions.

 

Various taxing authorities periodically audit our income tax returns.  These audits include questions regarding our tax filing positions, including the timing and amount of deductions and the allocation of income to various tax jurisdictions.  In evaluating the exposures connected with these various tax filing positions, including state and local taxes, we record allowances for probable exposures.  A number of years may elapse before a particular matter, for which an allowance has been established, is audited and fully resolved.  As of January 28, 2017, the Internal Revenue Service had concluded its examination of our 2012 and 2013 federal tax returns. 

 

The assessment of our tax position relies on the judgment of management to estimate the exposures associated with our various filing positions.

26


 

Share-Based Compensation Expense

 

We account for stock options under the fair value recognition provisions of GAAP.  Under this method, we recognize compensation expense for all share-based payments granted.  We recognize share-based compensation expense, net of an estimated forfeiture rate, over the requisite service period of the award.  In addition, we record expense for restricted stock awards in an amount equal to the fair market value of the underlying stock on the grant date of the award, over the period the award restrictions lapse.  As described in Note 17 to the Consolidated Financial Statements, we adopted a new share-based compensation standard during 2016, which requires recognition of excess tax benefits related to share-based payments in our provision for income taxes. Excess tax benefits were historically recorded in additional paid-in capital.

 

Inventories

 

Inventories are stated at the lower of cost (principally on a LIFO basis) or market.  In total, approximately 89% and 95% of inventories were valued using the LIFO method in 2016 and 2015, respectively.  Cost for the balance of the inventories, including substantially all fuel inventories, was determined using the FIFO method.  Replacement cost was higher than the carrying amount by $1.3 billion at January 28, 2017 and January 31, 2016.  We follow the Link-Chain, Dollar-Value LIFO method for purposes of calculating our LIFO charge or credit.

 

We follow the item-cost method of accounting to determine inventory cost before the LIFO adjustment for substantially all store inventories at our supermarket divisions.  This method involves counting each item in inventory, assigning costs to each of these items based on the actual purchase costs (net of vendor allowances and cash discounts) of each item and recording the cost of items sold.  The item-cost method of accounting allows for more accurate reporting of periodic inventory balances and enables management to more precisely manage inventory.  In addition, substantially all of our inventory consists of finished goods and is recorded at actual purchase costs (net of vendor allowances and cash discounts). 

 

We evaluate inventory shortages throughout the year based on actual physical counts in our facilities.  We record allowances for inventory shortages based on the results of recent physical counts to provide for estimated shortages from the last physical count to the financial statement date.

 

Vendor Allowances

 

We recognize all vendor allowances as a reduction in merchandise costs when the related product is sold.  In most cases, vendor allowances are applied to the related product cost by item, and therefore reduce the carrying value of inventory by item.  When it is not practicable to allocate vendor allowances to the product by item, we recognize vendor allowances as a reduction in merchandise costs based on inventory turns and as the product is sold.  We recognized approximately $7.8 billion in 2016, $7.3 billion in 2015 and $6.9 billion in 2014 of vendor allowances as a reduction in merchandise costs.  We recognized approximately 92% of all vendor allowances in the item cost with the remainder being based on inventory turns.

 

RECENTLY ADOPTED ACCOUNTING STANDARDS

 

In September 2015, the FASB issued Accounting Standards Update (“ASU”) 2015-16, “Business Combinations (Topic 805): Simplifying the Accounting for Measurement-Period Adjustments.” This amendment eliminates the requirement to retrospectively account for adjustments made to provisional amounts recognized in a business combination. This amendment became effective for us beginning January 31, 2016, and was adopted prospectively in accordance with the standard. The adoption of this amendment did not have an effect on our Consolidated Balance Sheets or Consolidated Statements of Operations.

   

During the second quarter of 2016, we adopted ASU 2016-09, “Compensation-Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting.”  This amendment addresses several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. As a result of the adoption, we recognized $49 million of excess tax benefits related to share-based payments in our provision for income taxes in 2016. These items were historically recorded in additional paid-in capital. In addition, for 2016, cash flows related to excess tax benefits are classified as an operating activity. Cash paid on employees’ behalf related to shares withheld for tax

27


 

purposes is classified as a financing activity. Retrospective application of the cash flow presentation requirements resulted in increases to both “Net cash provided by operating activities” and “Net cash used by financing activities” of $59 million for 2016, $84 million for 2015 and $52 for 2014.  Our stock compensation expense continues to reflect estimated forfeitures.

 

During 2016, we adopted ASU 2014-15, “Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern (Topic 205)”. This standard requires us to evaluate, for each annual and interim reporting period, whether there are conditions and events, considered in the aggregate, that raise substantial doubt about our ability to continue as a going concern within one year after the date the  Consolidated Financial Statements are issued or are available to be issued. If substantial doubt is raised, additional disclosures around our plan to alleviate these doubts are required. The adoption of this standard did not affect our Consolidated Financial Statements.

 

During 2016, we adopted ASU 2015-07, “Fair Value Measurement - Disclosures for Investments in Certain Entities that Calculate Net Asset Value per Share (or Its Equivalent) (Topic 820)”.  This standard requires us to disclose which assets we value using net asset value as a practical expedient, and ends the requirement to classify these assets within the GAAP fair value hierarchy.  See Note 15 of our Consolidated Financial Statements for disclosures of assets we value using net asset value as a practical expedient. 

 

RECENTLY ISSUED ACCOUNTING STANDARDS

 

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers,” as amended by several subsequent ASUs, which provides guidance for revenue recognition. The standard’s core principle is that a company will recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which the company expects to be entitled in exchange for those goods or services.  Per ASU 2015-14, “Deferral of Effective Date,” this guidance will be effective for us in the first quarter of our fiscal year ending February 2, 2019.  Early adoption is permitted as of the first quarter of our fiscal year ending February 3, 2018.  We are currently in the process of evaluating the effect of adoption of this ASU on our Consolidated Financial Statements.

   

In November 2015, the FASB issued ASU 2015-17, “Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes.” This amendment requires deferred tax liabilities and assets be classified as noncurrent in a classified statement of financial position. This guidance will be effective for our fiscal year ending February 3, 2018. Early adoption is permitted. The implementation of this amendment will not have an effect on our Consolidated Statements of Operations and will not have a significant effect on our Consolidated Balance Sheets.

   

In February 2016, the FASB issued ASU 2016-02, “Leases”, which provides guidance for the recognition of lease agreements.  The standard’s core principle is that a company will now recognize most leases on its balance sheet as lease liabilities with corresponding right-of-use assets.  This guidance will be effective for us in the first quarter of fiscal year ending February 1, 2020.  Early adoption is permitted.  The adoption of this ASU will result in a significant increase to our Consolidated Balance Sheets for lease liabilities and right-of-use assets, and we are currently evaluating the other effects of adoption of this ASU on our Consolidated Financial Statements.  We believe our current off-balance sheet leasing commitments are reflected in our investment grade debt rating.

 

LIQUIDITY AND CAPITAL RESOURCES

 

Cash Flow Information

 

Net cash provided by operating activities

 

We generated $4.3 billion of cash from operations in 2016, compared to $4.9 billion in 2015 and $4.2 billion in 2014.  The cash provided by operating activities came from net earnings including non-controlling interests adjusted primarily for non-cash expenses of depreciation and amortization, stock compensation, expense for Company-sponsored pension plans and the LIFO charge.  Changes in working capital created a net cash outflow in 2016, and net cash inflows for 2015 and 2014.

 

The decrease in net cash provided by operating activities in 2016, compared to 2015, resulted primarily due to a decrease in net earnings including noncontrolling interests and changes in working capital, partially offset by an increase in non-cash expenses, deferred taxes and lower payments on long-term liabilities.  

28


 

The increase in net cash provided by operating activities in 2015, compared to 2014, resulted primarily due to an increase in net earnings including non-controlling interests, an increase in non-cash items and changes in working capital.  The increase in non-cash items in 2015, as compared to 2014, was primarily due to increases in depreciation and amortization expense and expense for Company-sponsored pension plans, partially offset by a lower LIFO charge.

 

Cash provided (used) by operating activities for changes in working capital was ($492) million in 2016, compared to $180 million in 2015 and $3 million in 2014.  The decrease in cash provided by operating activities for changes in working capital in 2016, compared to 2015, was primarily due to the net effect of the following:

·

Higher receivables due to increasing vendor allowance activity and pharmacy sales requiring third party payments,

·

Increased inventory purchases due to store growth and new distribution centers,

·

Higher prepayment of benefit costs,

·

Lower accrued expenses due to reduced incentive plan payout accruals, and

·

Lower tax payments due to a 2015 tax deduction associated with tangible property regulations.

 

The increase in cash provided by operating activities for changes in working capital in 2015, compared to 2014, was primarily due to an increase in cash provided by trade accounts payables and store deposits in transit, partially offset by a decrease in cash provided by income taxes receivable and payable. 

 

Net cash used by investing activities

 

Cash used by investing activities was $3.9 billion in 2016, compared to $3.6 billion in 2015 and $3.1 billion in 2014.  The amount of cash used by investing activities increased in 2016, compared to 2015, primarily due to increased cash payments for capital investments and our merger with ModernHEALTH. The amount of cash used by investing activities increased in 2015, compared to 2014, due to increased payments for capital investments, partially offset by lower payments for mergers.

 

Net cash provided (used) by financing activities

 

Financing activities used cash of $352 million in 2016, $1.3 billion in 2015 and $1.2 billion in 2014.  The decrease in the amount of cash used for financing activities in 2016, compared to 2015, was primarily due to higher treasury stock purchases, partially offset by higher long-term and commercial paper borrowings.  The increase in the amount of cash used for financing activities in 2015, compared to 2014, was primarily related to increased payments on long-term debt and commercial paper, partially offset by higher proceeds from issuances of long-term debt and decreased treasury stock purchases. 

 

Debt Management

 

Total debt, including both the current and long-term portions of capital lease and lease-financing obligations, increased $2.0 billion to $14.1 billion as of year-end 2016, compared to 2015.  The increase in 2016, compared to 2015, resulted from the issuance of (i) $1.0 billion of senior notes bearing an interest rate of 4.45%, (ii) 750 million of senior notes bearing an interest rate of 2.65%, (iii) $500 million of senior notes bearing an interest rate of 3.875%, (iv) $500 million of senior notes bearing an interest rate of 1.5%, (v) increases in commercial paper borrowings and  (vi) increases in capital lease obligations due to additional leased locations, partially offset by payments of $1.4 billion on maturing long-term debt obligations.

 

Total debt, including both the current and long-term portions of capital lease and lease-financing obligations, increased $481 million to $12.1 billion as of year-end 2015, compared to 2014.  The increase in 2015, compared to 2014, resulted primarily from the issuance of (i) $300 million of senior notes bearing an interest rate of 2.00%, (ii) $300 million of senior notes bearing an interest rate of 2.60%, (iii) $500 million of senior notes bearing an interest rate of 3.50% and (iv) an increase in capital lease obligations due to our merger with Roundy’s and various leased locations, partially offset by payments of $678 million on long-term debt obligations assumed as part of our merger with Roundy’s and $500 million of payments at maturity of senior notes bearing an interest rate of 3.90%.  The increase in financing obligations was due to partially funding our merger with Roundy’s.

 

29


 

Liquidity Needs

 

We estimate our liquidity needs over the next twelve-month period to range from $5.9 to $6.4 billion, which includes anticipated requirements for working capital, capital investments, interest payments and scheduled principal payments of debt and commercial paper, offset by cash and temporary cash investments on hand at the end of 2016.  We generally operate with a working capital deficit due to our efficient use of cash in funding operations and because we have consistent access to the capital markets.  Based on current operating trends, we believe that cash flows from operating activities and other sources of liquidity, including borrowings under our commercial paper program and bank credit facility, will be adequate to meet our liquidity needs for the next twelve months and for the foreseeable future beyond the next twelve months.  We have approximately $1.4 billion of commercial paper and $600 million of senior notes maturing in the next twelve months, which is included in the range of $5.9 to $6.4 billion in estimated liquidity needs.  We expect to refinance this debt, in 2017, by issuing additional senior notes or commercial paper on favorable terms based on our past experience.  We also currently plan to continue repurchases of common shares under the Company’s share repurchase programs and a growing dividend.  We believe we have adequate coverage of our debt covenants to continue to maintain our current debt ratings and to respond effectively to competitive conditions.

 

Factors Affecting Liquidity

 

We can currently borrow on a daily basis approximately $2.75 billion under our commercial paper  program.  At January 28, 2017, we had $1.4 billion of commercial paper borrowings outstanding.  Commercial paper borrowings are backed by our credit facility, and reduce the amount we can borrow under the credit facility.  If our short-term credit ratings fall, the ability to borrow under our current commercial paper program could be adversely affected for a period of time and increase our interest cost on daily borrowings under our commercial paper program.  This could require us to borrow additional funds under the credit facility, under which we believe we have sufficient capacity.  However, in the event of a ratings decline, we do not anticipate that our borrowing capacity under our commercial paper program would be any lower than $500 million on a daily basis.  Although our ability to borrow under the credit facility is not affected by our credit rating, the interest cost on borrowings under the credit facility could be affected by an increase in our Leverage Ratio.  As of March 22, 2017, we had $956 million of commercial paper borrowings outstanding. 

 

Our credit facility requires the maintenance of a Leverage Ratio and a Fixed Charge Coverage Ratio (our “financial covenants”).  A failure to maintain our financial covenants would impair our ability to borrow under the credit facility. These financial covenants are described below:

 

·

Our Leverage Ratio (the ratio of Net Debt to Consolidated EBITDA, as defined in the credit facility) was 2.27 to 1 as of January 28, 2017.  If this ratio were to exceed 3.50 to 1, we would be in default of our credit facility and our ability to borrow under the facility would be impaired.  In addition, our applicable margin on borrowings is determined by our Leverage Ratio.

 

·

Our Fixed Charge Coverage Ratio (the ratio of Consolidated EBITDA plus Consolidated Rental Expense to Consolidated Cash Interest Expense plus Consolidated Rental Expense, as defined in the credit facility) was 4.75 to 1 as of January 28, 2017.  If this ratio fell below 1.70 to 1, we would be in default of our credit facility and our ability to borrow under the facility would be impaired.

 

Our credit facility is more fully described in Note 6 to the Consolidated Financial Statements.  We were in compliance with our financial covenants at year-end 2016.

 

30


 

The tables below illustrate our significant contractual obligations and other commercial commitments, based on year of maturity or settlement, as of January 28, 2017 (in millions of dollars):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

2017

    

2018

    

2019

    

2020

    

2021

    

Thereafter

    

Total

 

Contractual Obligations  (1) (2)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Long-term debt(3)

 

$

2,197

 

$

1,315

 

$

1,246

 

$

724

 

$

797

 

$

7,036

 

$

13,315

 

Interest on long-term debt (4)

 

 

444

 

 

479

 

 

422

 

 

343

 

 

330

 

 

3,995

 

 

6,013

 

Capital lease obligations

 

 

92

 

 

76

 

 

71

 

 

66

 

 

64

 

 

647

 

 

1,016

 

Operating lease obligations

 

 

986

 

 

932

 

 

856

 

 

759

 

 

656

 

 

3,992

 

 

8,181

 

Financed lease obligations

 

 

7

 

 

8

 

 

8

 

 

9

 

 

9

 

 

53

 

 

94

 

Self-insurance liability (5)

 

 

229

 

 

146

 

 

100

 

 

68

 

 

41

 

 

98

 

 

682

 

Construction commitments(6)

 

 

428

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

428

 

Purchase obligations(7)

 

 

478

 

 

178

 

 

78

 

 

68

 

 

36

 

 

65

 

 

903

 

Total

 

$

4,861

 

$

3,134

 

$

2,781

 

$

2,037

 

$

1,933

 

$

15,886

 

$

30,632

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other Commercial Commitments

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Standby letters of credit

 

$

242

 

$

 —

 

$

 —

 

$

 —

 

$

 —

 

$

 —

 

$

242

 

Surety bonds

 

 

396

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

396

 

Total

 

$

638

 

$

 —

 

$

 —

 

$

 —

 

$

 —

 

$

 —

 

$

638

 


(1)

The contractual obligations table excludes funding of pension and other postretirement benefit obligations, which totaled approximately $33 million in 2016. This table also excludes contributions under various multi-employer pension plans, which totaled $289 million in 2016.

(2)

The liability related to unrecognized tax benefits has been excluded from the contractual obligations table because a reasonable estimate of the timing of future tax settlements cannot be determined.

(3)

As of January 28, 2017 we had $1.4 billion of commercial paper and no borrowings under our credit facility.

(4)

Amounts include contractual interest payments using the interest rate as of January 28, 2017, and stated fixed and swapped interest rates, if applicable, for all other debt instruments.

(5)

The amounts included in the contractual obligations table for self-insurance liability related to workers’ compensation claims have been stated on a present value basis.

(6)

Amounts include funds owed to third parties for projects currently under construction. These amounts are reflected in other current liabilities in our Consolidated Balance Sheets.

(7)

Amounts include commitments, many of which are short-term in nature, to be utilized in the normal course of business, such as several contracts to purchase raw materials utilized in our food production plants and several contracts to purchase energy to be used in our stores and food production plants.  Our obligations also include management fees for facilities operated by third parties and outside service contracts.  Any upfront vendor allowances or incentives associated with outstanding purchase commitments are recorded as either current or long-term liabilities in our Consolidated Balance Sheets.

 

As of January 28, 2017, we maintained a $2.75 billion (with the ability to increase by $750 million), unsecured revolving credit facility that, unless extended, terminates on June 30, 2019.  Outstanding borrowings under the credit facility and commercial paper borrowings, and some outstanding letters of credit, reduce funds available under the credit facility.  As of January 28, 2017, we had $1.4 billion of borrowings of commercial paper and no borrowings under our credit facility.  The outstanding letters of credit that reduce funds available under our credit facility totaled $13 million as of January 28, 2017.

 

In addition to the available credit mentioned above, as of January 28, 2017, we had authorized for issuance $4 billion of securities under a shelf registration statement filed with the SEC and effective on December 14, 2016.

 

31


 

We also maintain surety bonds related primarily to our self-insured workers’ compensation claims.  These bonds are required by most states in which we are self-insured for workers’ compensation and are placed with predominately third-party insurance providers to insure payment of our obligations in the event we are unable to meet our claim payment obligations up to our self-insured retention levels.   These bonds do not represent liabilities of ours, as we already have reserves on our books for the claims costs.  Market changes may make the surety bonds more costly and, in some instances, availability of these bonds may become more limited, which could affect our costs of, or access to, such bonds.  Although we do not believe increased costs or decreased availability would significantly affect our ability to access these surety bonds, if this does become an issue, we would issue letters of credit, in states where allowed, against our credit facility to meet the state bonding requirements.  This could increase our cost and decrease the funds available under our credit facility.

 

We also are contingently liable for leases that have been assigned to various third parties in connection with facility closings and dispositions.  We could be required to satisfy obligations under the leases if any of the assignees are unable to fulfill their lease obligations.  Due to the wide distribution of our assignments among third parties, and various other remedies available to us, we believe the likelihood that we will be required to assume a material amount of these obligations is remote.  We have agreed to indemnify certain third-party logistics operators for certain expenses, including multi-employer pension plan obligations and withdrawal liabilities.

 

In addition to the above, we enter into various indemnification agreements and take on indemnification obligations in the ordinary course of business.  Such arrangements include indemnities against third party claims arising out of agreements to provide services to us; indemnities related to the sale of our securities; indemnities of directors, officers and employees in connection with the performance of their work; and indemnities of individuals serving as fiduciaries on benefit plans.  While our aggregate indemnification obligation could result in a material liability, we are not aware of any current matter that could result in a material liability.

 

32


 

OUTLOOK

 

This discussion and analysis contains certain forward-looking statements about our future performance.  These statements are based on management’s assumptions and beliefs in light of the information currently available to it.  Such statements are indicated by words such as “comfortable,” “committed,” “will,” “expect,” “goal,” “should,” “intend,” “target,” “believe,” “anticipate,” “plan,” and similar words or phrases. These forward-looking statements are subject to uncertainties and other factors that could cause actual results to differ materially.

 

Statements elsewhere in this report and below regarding our expectations, projections, beliefs, intentions or strategies are forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934.  While we believe that the statements are accurate, uncertainties about the general economy, our labor relations, our ability to execute our plans on a timely basis and other uncertainties described below could cause actual results to differ materially. 

 

·

For 2017, we expect net earnings to be $2.21 to $2.25 per diluted share, including an estimated $0.09 for the 53 rd  week. We expect the first quarter to be in the $0.55 to $0.59 range, the second quarter to be up slightly compared to last year, the third quarter to be up strongly compared to last year, and the fourth quarter to be up high single-digits compared to last year, without the benefit of the 53 rd  week.

 

·

We expect identical supermarket sales growth, excluding fuel sales, in 2017 to range from flat to 1.0% growth.

 

·

We expect full-year FIFO operating margin in 2017, excluding fuel, to decline approximately 10 basis points compared to 2016 results.

 

·

We expect capital investments, excluding mergers, acquisitions and purchases of leased facilities, to be $3.2 to $3.5 billion.  These capital investments include approximately 55 major projects covering new stores, expansions and relocations; 175 major remodels; and other investments including digital, technology, minor remodels, and upgrades to logistics, merchandising systems and infrastructure to support our Customer 1 st  business strategy.

 

·

We expect total supermarket square footage for 2017 to grow approximately 1.8% before mergers, acquisitions and operational closings.

 

·

We expect the 2017 effective tax rate to be approximately 35%, excluding the resolution of certain tax items.

 

·

In 2017, we anticipate annualized product cost inflation, excluding fuel, and an annualized LIFO charge of approximately $25 million.

 

·

We expect 2017 Company-sponsored pension plans expense to be approximately $110 million.  We are not required to make a cash contribution in 2017.

 

·

In 2017, we expect to contribute approximately $360 million to multi-employer pension funds.  Of this amount, $35 million has been accrued for as of year-end. This excludes any additional multi-employer pension plan restructuring that could occur. We continue to evaluate and address our potential exposure to under-funded multi-employer pension plans.  Although these liabilities are not a direct obligation or liability of Kroger, any new agreements that would commit us to fund certain multi-employer plans will be expensed when our commitment is probable and an estimate can be made.

 

·

We are currently negotiating an agreement with UFCW for store associates in Atlanta. In 2017, we will also negotiate agreements with UFCW for store associates in Dallas and Food 4 Less® Warehouse Stores. Negotiations this year will be challenging as we must have competitive cost structures in each market while meeting our associates’ needs for solid wages and good quality, affordable health care and retirement benefits.

33


 

Various uncertainties and other factors could cause actual results to differ materially from those contained in the forward-looking statements.  These include:

 

·

The extent to which our sources of liquidity are sufficient to meet our requirements may be affected by the state of the financial markets and the effect that such condition has on our ability to issue commercial paper at acceptable rates.  Our ability to borrow under our committed lines of credit, including our bank credit facilities, could be impaired if one or more of our lenders under those lines is unwilling or unable to honor its contractual obligation to lend to us, or in the event that natural disasters or weather conditions interfere with the ability of our lenders to lend to us.  Our ability to refinance maturing debt may be affected by the state of the financial markets.

·

Our ability to achieve sales, earnings and cash flow goals may be affected by: labor negotiations or disputes; changes in the types and numbers of businesses that compete with us; pricing and promotional activities of existing and new competitors, including non-traditional competitors, and the aggressiveness of that competition; our response to these actions; the state of the economy, including interest rates, the inflationary and deflationary trends in certain commodities, and the unemployment rate; the effect that fuel costs have on consumer spending; volatility of fuel margins; changes in government-funded benefit programs; manufacturing commodity costs; diesel fuel costs related to our logistics operations; trends in consumer spending; the extent to which our customers exercise caution in their purchasing in response to economic conditions; the inconsistent pace of the economic recovery; changes in inflation or deflation in product and operating costs; stock repurchases; our ability to retain pharmacy sales from third party payors; consolidation in the healthcare industry, including pharmacy benefit managers; our ability to negotiate modifications to multi-employer pension plans; natural disasters or adverse weather conditions; the potential costs and risks associated with potential cyber-attacks or data security breaches; the success of our future growth plans; and the successful integration of Harris Teeter and Roundy’s.   Our ability to achieve sales and earnings goals may also be affected by our ability to manage the factors identified above. Our ability to execute our financial strategy may be affected by our ability to generate cash flow.

 

·

During the first three quarters of each fiscal year, our LIFO charge and the recognition of LIFO expense is affected primarily by estimated year-end changes in product costs.  Our fiscal year LIFO charge is affected primarily by changes in product costs at year-end.

 

·

If actual results differ significantly from anticipated future results for certain reporting units, including variable interest entities, an impairment loss for any excess of the carrying value of the reporting units’ goodwill over the implied fair value would have to be recognized.

·

Our effective tax rate may differ from the expected rate due to changes in laws, the status of pending items with various taxing authorities, and the deductibility of certain expenses.

·

Changes in our product mix may negatively affect certain financial indicators. For example, we continue to add supermarket fuel centers to our store base. Since fuel generates lower profit margins than our supermarket sales, we expect to see our FIFO gross margins decline as fuel sales increase.

 

We cannot fully foresee the effects of changes in economic conditions on our business. We have assumed economic and competitive situations will not change significantly in 2017.

 

Other factors and assumptions not identified above could also cause actual results to differ materially from those set forth in the forward-looking information. Accordingly, actual events and results may vary significantly from those included in, contemplated or implied by forward-looking statements made by us or our representatives.  We undertake no obligation to update the forward-looking information contained in this filing.

 

 

34


 

ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.

 

Financial Risk Management

 

We use derivative financial instruments primarily to manage our exposure to fluctuations in interest rates.  We do not enter into derivative financial instruments for trading purposes.  As a matter of policy, all of our derivative positions are intended to reduce risk by hedging an underlying economic exposure.  Because of the high correlation between the hedging instrument and the underlying exposure, fluctuations in the value of the instruments generally are offset by reciprocal changes in the value of the underlying exposure.  The interest rate derivatives we use are straightforward instruments with liquid markets.

 

We manage our exposure to interest rates and changes in the fair value of our debt instruments primarily through the strategic use of our commercial paper program, variable and fixed rate debt, and interest rate swaps.  Our current program relative to interest rate protection contemplates hedging the exposure to changes in the fair value of fixed-rate debt attributable to changes in interest rates.  To do this, we use the following guidelines: (i) use average daily outstanding borrowings to determine annual debt amounts subject to interest rate exposure, (ii) limit the average annual amount of debt subject to interest rate reset and the amount of floating rate debt to a combined total of $2.5 billion or less, (iii) include no leveraged products, and (iv) hedge without regard to profit motive or sensitivity to current mark-to-market status.

 

As of January 28, 2017, we maintained two interest rate swap agreements, with an aggregate notional amount totaling $100 million, to manage our exposure to changes in the fair value of our fixed rate debt resulting from interest rate movements by effectively converting a portion of our debt from fixed to variable rates.  These agreements mature in December 2018, and coincide with our scheduled debt maturities.  The differential between fixed and variable rates to be paid or received is accrued as interest rates change in accordance with the agreements as an adjustment to interest expense.  These interest rate swap agreements are being accounted for as fair value hedges.

 

As of January 28, 2017, we maintained 25 forward-starting interest rate swap agreements with maturity dates of August 15, 2027, January 15, 2029, January 15, 2049 and January 15, 2050 with an aggregate notional amount totaling $1.6 billion.  A forward-starting interest rate swap is an agreement that effectively hedges the variability in future benchmark interest payments attributable to changes in interest rates on the forecasted issuance of fixed-rate debt.  We entered into these forward-starting interest rate swaps in order to lock in fixed interest rates on our forecasted issuances of debt in fiscal years 2017, 2018 and 2019.  The fixed interest rates for these forward-starting interest rate swaps range from 2.07% to 3.00%.  The variable rate component on the forward-starting interest rate swaps is 3 month LIBOR.  Accordingly, the forward-starting interest rate swaps were designated as cash-flow hedges as defined by GAAP.  As of January 28, 2017, the fair value of the interest rate swaps was recorded in other assets for $67 million, other long-term liabilities for $7 million and accumulated other comprehensive income for $38 million, net of tax.

 

Annually, we review with the Financial Policy Committee of our Board of Directors compliance with the guidelines described above.  The guidelines may change as our business needs dictate.

 

35


 

The tables below provide information about our interest rate derivatives classified as fair value hedges and underlying debt portfolio as of January 28, 2017 and January 30, 2016.  The amounts shown for each year represent the contractual maturities of long-term debt, excluding capital leases, and the average outstanding notional amounts of interest rate derivatives classified as fair value hedges as of January 28, 2017 and January 30, 2016.  Interest rates reflect the weighted average rate for the outstanding instruments.  The variable component of each interest rate derivative and the variable rate debt is based on U.S. dollar LIBOR using the forward yield curve as of January 28, 2017 and January 30, 2016.  The Fair Value column includes the fair value of our debt instruments and interest rate derivatives

classified as fair value hedges as of January 28, 2017 and January 30, 2016.  See Notes 6, 7 and 8 to the Consolidated Financial Statements.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

January 28, 2017

 

 

 

Expected Year of Maturity

 

 

    

2017

    

2018

    

2019

    

2020

    

2021

    

Thereafter

    

Total

    

Fair Value

 

 

 

(in millions)

 

Debt

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed rate

 

$

(716)

 

$

(1,298)

 

$

(1,246)

 

$

(699)

 

$

(797)

 

$

(6,955)

 

$

(11,711)

 

$

(12,301)

 

Average interest rate

 

 

4.94

%

 

4.54

%  

 

4.68

%  

 

4.62

%  

 

4.63

%  

 

4.57

%  

 

 

 

 

 

 

Variable rate

 

$

(1,481)

 

$

(17)

 

$

 —

 

$

(25)

 

$

 —

 

$

(81)

 

$

(1,604)

 

$

(1,604)

 

Average interest rate

 

 

0.93

%

 

3.53

%  

 

 —

%  

 

5.00

%  

 

 —

%  

 

3.73

%  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

January 28, 2017

 

January 28,

 

January 28,

 

 

 

Average Notional Amounts Outstanding

 

2017

 

2017

 

 

    

2017

    

2018

    

2019

    

2020

    

2021

    

Thereafter

    

Total

    

Fair Value

 

 

 

(in millions)

 

Interest Rate Derivatives Classified as Fair Value Hedges

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed to variable

 

$

100

 

$

88

 

$

 —

 

$

 

$

 

$

 

$

100

 

$

(1)

 

Average pay rate

 

 

6.71

%

 

7.20

%  

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

Average receive rate

 

 

6.80

%

 

6.80

%  

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

January 30, 2016

 

 

 

Expected Year of Maturity

 

 

    

2016

    

2017

    

2018

    

2019

    

2020

    

Thereafter

    

Total

    

Fair Value

 

 

 

(in millions)

 

Debt

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed rate

 

$

(768)

 

$

(713)

 

$

(1,300)

 

$

(747)

 

$

(699)

 

$

(5,456)

 

$

(9,683)

 

$

(10,597)

 

Average interest rate

 

 

4.74

%

 

4.78

%  

 

4.95

%  

 

4.80

%  

 

4.80

%  

 

4.68

%  

 

 

 

 

 

 

Variable rate

 

$

(1,550)

 

$

(22)

 

$

(7)

 

$

(27)

 

$

(25)

 

$

(82)

 

$

(1,713)

 

$

(1,747)

 

Average interest rate

 

 

3.71

%

 

1.21

%  

 

1.26

%  

 

1.06

%  

 

0.46

%  

 

0.03

%  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

January 30, 2016

 

January 30,

 

January 30,

 

 

 

Average Notional Amounts Outstanding

 

2016

 

2016

 

 

    

2016

    

2017

    

2018

    

2019

    

2020

    

Thereafter

    

Total

    

Fair Value

 

 

 

(in millions)

 

Interest Rate Derivatives Classified as Fair Value Hedges

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed to variable

 

$

100

 

$

100

 

$

88

 

$

 —

 

$

 

$

 

$

100

 

$

1

 

Average pay rate

 

 

6.30

%

 

6.64

%  

 

6.95

%  

 

 —

 

 

 

 

 

 

 

 

 

 

 

Average receive rate

 

 

6.80

%

 

6.80

%  

 

6.80

%  

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

Based on our year-end 2016 variable rate debt levels, a 10 percent change in interest rates would be immaterial.  See Note 7 to the Consolidated Financial Statements for further discussion of derivatives and hedging policies.

 

36


 

ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.

 

Report of Independent Registered Public Accounting Firm

 

To the Shareholders and Board of Directors of

The Kroger Co.

 

In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of operations, comprehensive income, changes in shareholders’ equity and cash flows present fairly, in all material respects, the financial position of The Kroger Co. and its subsidiaries at January 28, 2017 and January 30, 2016, and the results of their operations and their cash flows for each of the three years in the period ended January 28, 2017 in conformity with accounting principles generally accepted in the United States of America.  Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of January 28, 2017, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).  The Company’s management is responsible for these financial statements, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Report on Internal Control Over Financial Reporting appearing under Item 9A.  Our responsibility is to express opinions on these financial statements and on the Company’s internal control over financial reporting based on our integrated audits.  We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States).  Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects.  Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation.  Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk.  Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

 

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.  A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.  Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

As described in Management’s Report on Internal Control Over Financial Reporting, management has excluded Modern HC Holdings, Inc. from its assessment of internal control over financial reporting as of January 28, 2017 because it was acquired by the Company in a purchase business combination on September 2, 2016.  We have also excluded Modern HC Holdings, Inc. from our audit of internal control over financial reporting. Modern HC Holdings, Inc. is a wholly-owned subsidiary whose total assets and total revenues represent 1% and less than 1%, respectively, of the related consolidated financial statement amounts as of and for the year ended January 28, 2017.

 

/s/ PricewaterhouseCoopers LLP

Cincinnati, Ohio

March 28, 2017

 

37


 

THE KROGER CO.

CONSOLIDATED BALANCE SHEETS

 

 

 

 

 

 

 

 

 

 

    

January 28,

    

January 30,

 

(In millions, except par values)

 

2017

 

2016

 

ASSETS 

 

 

 

 

 

 

 

Current assets 

 

 

 

 

 

 

 

Cash and temporary cash investments 

 

$

322

 

$

277

 

Store deposits in-transit 

 

 

910

 

 

923

 

Receivables 

 

 

1,649

 

 

1,734

 

FIFO inventory 

 

 

7,852

 

 

7,440

 

LIFO reserve 

 

 

(1,291)

 

 

(1,272)

 

Prepaid and other current assets 

 

 

898

 

 

790

 

Total current assets 

 

 

10,340

 

 

9,892

 

 

 

 

 

 

 

 

 

Property, plant and equipment, net 

 

 

21,016

 

 

19,619

 

Intangibles, net

 

 

1,153

 

 

1,053

 

Goodwill 

 

 

3,031

 

 

2,724

 

Other assets 

 

 

965

 

 

609

 

 

 

 

 

 

 

 

 

Total Assets 

 

$

36,505

 

$

33,897

 

 

 

 

 

 

 

 

 

LIABILITIES 

 

 

 

 

 

 

 

Current liabilities 

 

 

 

 

 

 

 

Current portion of long-term debt including obligations under capital leases and financing obligations 

 

$

2,252

 

$

2,370

 

Trade accounts payable 

 

 

5,818

 

 

5,728

 

Accrued salaries and wages 

 

 

1,234

 

 

1,426

 

Deferred income taxes 

 

 

251

 

 

221

 

Other current liabilities 

 

 

3,305

 

 

3,226

 

Total current liabilities 

 

 

12,860

 

 

12,971

 

 

 

 

 

 

 

 

 

Long-term debt including obligations under capital leases and financing obligations 

 

 

11,825

 

 

9,709

 

Deferred income taxes 

 

 

1,927

 

 

1,752

 

Pension and postretirement benefit obligations

 

 

1,524

 

 

1,380

 

Other long-term liabilities 

 

 

1,659

 

 

1,287

 

 

 

 

 

 

 

 

 

Total Liabilities 

 

 

29,795

 

 

27,099

 

 

 

 

 

 

 

 

 

Commitments and contingencies (see Note 13)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SHAREHOLDERS’ EQUITY 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Preferred shares, $100 per share, 5 shares authorized and unissued 

 

 

 —

 

 

 —

 

Common shares, $1 par per share, 2,000 shares authorized; 1,918 shares issued in 2016 and 2015

 

 

1,918

 

 

1,918

 

Additional paid-in capital 

 

 

3,070

 

 

2,980

 

Accumulated other comprehensive loss 

 

 

(715)

 

 

(680)

 

Accumulated earnings 

 

 

15,543

 

 

14,011

 

Common shares in treasury, at cost, 994 shares in 2016 and 951 shares in 2015

 

 

(13,118)

 

 

(11,409)

 

 

 

 

 

 

 

 

 

Total Shareholders’ Equity - The Kroger Co.

 

 

6,698

 

 

6,820

 

Noncontrolling interests 

 

 

12

 

 

(22)

 

 

 

 

 

 

 

 

 

Total Equity 

 

 

6,710

 

 

6,798

 

 

 

 

 

 

 

 

 

Total Liabilities and Equity 

 

$

36,505

 

$

33,897

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

38


 

THE KROGER CO.

CONSOLIDATED STATEMENTS OF OPERATIONS

 

Years Ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

    

2015

    

2014

 

(In millions, except per share amounts)

 

(52 weeks)

 

(52 weeks)

 

(52 weeks)

 

Sales

 

$

115,337

 

$

109,830

 

$

108,465

 

Merchandise costs, including advertising, warehousing, and transportation, excluding items shown separately below

 

 

89,502

 

 

85,496

 

 

85,512

 

Operating, general and administrative

 

 

19,178

 

 

17,946

 

 

17,161

 

Rent

 

 

881

 

 

723

 

 

707

 

Depreciation and amortization

 

 

2,340

 

 

2,089

 

 

1,948

 

 

 

 

 

 

 

 

 

 

 

 

Operating profit

 

 

3,436

 

 

3,576

 

 

3,137

 

Interest expense

 

 

522

 

 

482

 

 

488

 

 

 

 

 

 

 

 

 

 

 

 

Earnings before income tax expense

 

 

2,914

 

 

3,094

 

 

2,649

 

Income tax expense

 

 

957

 

 

1,045

 

 

902

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings including noncontrolling interests

 

 

1,957

 

 

2,049

 

 

1,747

 

Net earnings (loss) attributable to noncontrolling interests

 

 

(18)

 

 

10

 

 

19

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co.

 

$

1,975

 

$

2,039

 

$

1,728

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per basic common share

 

$

2.08

 

$

2.09

 

$

1.74

 

 

 

 

 

 

 

 

 

 

 

 

Average number of common shares used in basic calculation

 

 

942

 

 

966

 

 

981

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per diluted common share

 

$

2.05

 

$

2.06

 

$

1.72

 

 

 

 

 

 

 

 

 

 

 

 

Average number of common shares used in diluted calculation

 

 

958

 

 

980

 

 

993

 

 

 

 

 

 

 

 

 

 

 

 

Dividends declared per common share

 

$

0.465

 

$

0.408

 

$

0.350

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

39


 

THE KROGER CO.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

 

Years Ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

2015

    

2014

 

(In millions)

 

(52 weeks)

 

(52 weeks)

 

(52 weeks)

 

Net earnings including noncontrolling interests

 

$

1,957

 

$

2,049

 

$

1,747

 

 

 

 

 

 

 

 

 

 

 

 

Other comprehensive income (loss)

 

 

 

 

 

 

 

 

 

 

Realized and unrealized gains and losses on available for sale securities, net of income tax(1)  

 

 

(20)

 

 

3

 

 

5

 

Change in pension and other postretirement defined benefit plans, net of income tax(2)

 

 

(64)

 

 

131

 

 

(329)

 

Unrealized gains and losses on cash flow hedging activities, net of income tax(3)

 

 

47

 

 

(3)

 

 

(25)

 

Amortization of unrealized gains and losses on cash flow hedging activities, net of income tax

 

 

2

 

 

1

 

 

1

 

 

 

 

 

 

 

 

 

 

 

 

Total other comprehensive income (loss)

 

 

(35)

 

 

132

 

 

(348)

 

 

 

 

 

 

 

 

 

 

 

 

Comprehensive income

 

 

1,922

 

 

2,181

 

 

1,399

 

Comprehensive income (loss) attributable to noncontrolling interests

 

 

(18)

 

 

10

 

 

19

 

Comprehensive income attributable to The Kroger Co.

 

$

1,940

 

$

2,171

 

$

1,380

 

 


(1)

Amount is net of tax of $( 16) in 2016 and $2 in 2015 and $3 2014.

(2)

Amount is net of tax of $ (39) in 2016, $77 in 2015 and $(193) in 2014.

(3)

Amount is net of tax of $ 27 in 2016, $(2) in 2015 and $(14) in 2014.

 

The accompanying notes are an integral part of the consolidated financial statements.

40


 

THE KROGER CO.

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

Years Ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

    

2015

    

2014

 

(In millions)

 

 (52 weeks)

 

 (52 weeks)

 

(52 weeks)

 

Cash Flows from Operating Activities:

 

 

 

 

 

 

 

 

 

 

Net earnings including noncontrolling interests 

 

$

1,957

 

$

2,049

 

$

1,747

 

Adjustments to reconcile net earnings including noncontrolling interests to net cash provided by operating activities:

 

 

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

2,340

 

 

2,089

 

 

1,948

 

Asset impairment charge

 

 

26

 

 

46

 

 

37

 

LIFO charge

 

 

19

 

 

28

 

 

147

 

Stock-based employee compensation

 

 

141

 

 

165

 

 

155

 

Expense for Company-sponsored pension plans

 

 

94

 

 

103

 

 

55

 

Deferred income taxes

 

 

201

 

 

317

 

 

73

 

Other

 

 

(28)

 

 

54

 

 

72

 

Changes in operating assets and liabilities net of effects from mergers of businesses:

 

 

 

 

 

 

 

 

 

 

Store deposits in-transit

 

 

13

 

 

95

 

 

(27)

 

Receivables

 

 

(110)

 

 

(59)

 

 

(141)

 

Inventories

 

 

(382)

 

 

(184)

 

 

(147)

 

Prepaid and other current assets

 

 

(172)

 

 

(28)

 

 

2

 

Trade accounts payable

 

 

16

 

 

440

 

 

135

 

Accrued expenses

 

 

(118)

 

 

275

 

 

249

 

Income taxes receivable and payable

 

 

261

 

 

(359)

 

 

(68)

 

Contribution to Company-sponsored pension plans

 

 

 —

 

 

(5)

 

 

 —

 

Other

 

 

14

 

 

(109)

 

 

(22)

 

 

 

 

 

 

 

 

 

 

 

 

Net cash provided by operating activities

 

 

4,272

 

 

4,917

 

 

4,215

 

 

 

 

 

 

 

 

 

 

 

 

Cash Flows from Investing Activities:

 

 

 

 

 

 

 

 

 

 

Payments for property and equipment, including payments for lease buyouts

 

 

(3,699)

 

 

(3,349)

 

 

(2,831)

 

Proceeds from sale of assets

 

 

132

 

 

45

 

 

37

 

Payments for mergers

 

 

(401)

 

 

(168)

 

 

(252)

 

Other

 

 

93

 

 

(98)

 

 

(14)

 

 

 

 

 

 

 

 

 

 

 

 

Net cash used by investing activities

 

 

(3,875)

 

 

(3,570)

 

 

(3,060)

 

 

 

 

 

 

 

 

 

 

 

 

Cash Flows from Financing Activities:

 

 

 

 

 

 

 

 

 

 

Proceeds from issuance of long-term debt

 

 

2,781

 

 

1,181

 

 

576

 

Payments on long-term debt

 

 

(1,355)

 

 

(1,245)

 

 

(375)

 

Net borrowings (payments) on commercial paper

 

 

435

 

 

(285)

 

 

25

 

Dividends paid

 

 

(429)

 

 

(385)

 

 

(338)

 

Excess tax benefits on stock-based awards

 

 

 —

 

 

97

 

 

52

 

Proceeds from issuance of capital stock

 

 

68

 

 

120

 

 

110

 

Treasury stock purchases

 

 

(1,766)

 

 

(703)

 

 

(1,283)

 

Investment in the remaining equity of a noncontrolling interest

 

 

 —

 

 

(26)

 

 

 —

 

Other

 

 

(86)

 

 

(92)

 

 

(55)

 

 

 

 

 

 

 

 

 

 

 

 

Net cash used by financing activities

 

 

(352)

 

 

(1,338)

 

 

(1,288)

 

 

 

 

 

 

 

 

 

 

 

 

Net increase (decrease) in cash and temporary cash investments

 

 

45

 

 

9

 

 

(133)

 

 

 

 

 

 

 

 

 

 

 

 

Cash and temporary cash investments:

 

 

 

 

 

 

 

 

 

 

Beginning of year

 

 

277

 

 

268

 

 

401

 

End of year

 

$

322

 

$

277

 

$

268

 

 

 

 

 

 

 

 

 

 

 

 

Reconciliation of capital investments:

 

 

 

 

 

 

 

 

 

 

Payments for property and equipment, including payments for lease buyouts

 

$

(3,699)

 

$

(3,349)

 

$

(2,831)

 

Payments for lease buyouts

 

 

5

 

 

35

 

 

135

 

Changes in construction-in-progress payables

 

 

72

 

 

(35)

 

 

(56)

 

Total capital investments, excluding lease buyouts

 

$

(3,622)

 

$

(3,349)

 

$

(2,752)

 

 

 

 

 

 

 

 

 

 

 

 

Disclosure of cash flow information:

 

 

 

 

 

 

 

 

 

 

Cash paid during the year for interest

 

$

505

 

$

474

 

$

477

 

Cash paid during the year for income taxes

 

$

557

 

$

1,001

 

$

941

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

 

 

41


 

 

THE KROGER CO.

CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS’ EQUITY

 

Years Ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

    

    

    

 

    

    

 

    

    

    

    

 

    

Accumulated

    

    

 

    

    

 

    

    

 

 

 

 

 

 

 

 

Additional

 

 

 

 

 

 

Other

 

 

 

 

 

 

 

 

 

 

 

Common Stock

 

Paid-In

 

Treasury Stock

 

Comprehensive

 

Accumulated

 

Noncontrolling

 

 

 

(In millions, except per share amounts)

 

Shares

 

Amount

 

Capital

 

Shares

 

Amount

 

Gain (Loss)

 

Earnings

 

Interest

 

Total

Balances at February 1, 2014

 

1,918

 

$

1,918

 

$

2,590

 

902

 

$

(9,641)

 

$

(464)

 

$

10,981

 

$

11

 

$

5,395

Issuance of common stock:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stock options exercised

 

 —

 

 

 —

 

 

 —

 

(10)

 

 

110

 

 

 —

 

 

 —

 

 

 —

 

 

110

Restricted stock issued

 

 —

 

 

 —

 

 

(91)

 

(5)

 

 

40

 

 

 —

 

 

 —

 

 

 —

 

 

(51)

Treasury stock activity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Treasury stock purchases, at cost

 

 —

 

 

 —

 

 

 —

 

51

 

 

(1,129)

 

 

 —

 

 

 —

 

 

 —

 

 

(1,129)

Stock options exchanged

 

 —

 

 

 —

 

 

 —

 

6

 

 

(154)

 

 

 —

 

 

 —

 

 

 —

 

 

(154)

Share-based employee compensation

 

 —

 

 

 —

 

 

155

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

155

Other comprehensive loss net of income tax of ($204)

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

(348)

 

 

 —

 

 

 —

 

 

(348)

Other

 

 —

 

 

 —

 

 

94

 

 —

 

 

(35)

 

 

 —

 

 

 —

 

 

 —

 

 

59

Cash dividends declared ($0.350 per common share)

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(342)

 

 

 —

 

 

(342)

Net earnings including non-controlling interests

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

1,728

 

 

19

 

 

1,747

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balances at January 31, 2015

 

1,918

 

$

1,918

 

$

2,748

 

944

 

$

(10,809)

 

$

(812)

 

$

12,367

 

$

30

 

$

5,442

Issuance of common stock:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stock options exercised

 

 —

 

 

 —

 

 

 —

 

(9)

 

 

120

 

 

 —

 

 

 —

 

 

 —

 

 

120

Restricted stock issued

 

 —

 

 

 —

 

 

(122)

 

(5)

 

 

37

 

 

 —

 

 

 —

 

 

 —

 

 

(85)

Treasury stock activity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Treasury stock purchases, at cost

 

 —

 

 

 —

 

 

 —

 

14

 

 

(500)

 

 

 —

 

 

 —

 

 

 —

 

 

(500)

Stock options exchanged

 

 —

 

 

 —

 

 

 —

 

7

 

 

(203)

 

 

 —

 

 

 —

 

 

 —

 

 

(203)

Share-based employee compensation

 

 —

 

 

 —

 

 

165

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

165

Other comprehensive gain net of income tax of $77

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

132

 

 

 —

 

 

 —

 

 

132

Investment in the remaining equity of a non-controlling interest

 

 —

 

 

 —

 

 

26

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(57)

 

 

(31)

Other

 

 —

 

 

 —

 

 

163

 

 —

 

 

(54)

 

 

 —

 

 

 —

 

 

(5)

 

 

104

Cash dividends declared ($0.408 per common share)

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(395)

 

 

 —

 

 

(395)

Net earnings including non-controlling interests

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

2,039

 

 

10

 

 

2,049

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balances at January 30, 2016

 

1,918

 

$

1,918

 

$

2,980

 

951

 

$

(11,409)

 

$

(680)

 

$

14,011

 

$

(22)

 

$

6,798

Issuance of common stock:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stock options exercised

 

 —

 

 

 —

 

 

(1)

 

(5)

 

 

68

 

 

 —

 

 

 —

 

 

 —

 

 

67

Restricted stock issued

 

 —

 

 

 —

 

 

(116)

 

(3)

 

 

57

 

 

 —

 

 

 —

 

 

 —

 

 

(59)

Treasury stock activity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Treasury stock purchases, at cost

 

 —

 

 

 —

 

 

 —

 

47

 

 

(1,661)

 

 

 —

 

 

 —

 

 

 —

 

 

(1,661)

Stock options exchanged

 

 —

 

 

 —

 

 

 —

 

4

 

 

(105)

 

 

 —

 

 

 —

 

 

 —

 

 

(105)

Share-based employee compensation

 

 —

 

 

 —

 

 

141

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

141

Other comprehensive loss net of income tax of $(28)

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

(35)

 

 

 —

 

 

 —

 

 

(35)

Other

 

 —

 

 

 —

 

 

66

 

 —

 

 

(68)

 

 

 —

 

 

 —

 

 

52

 

 

50

Cash dividends declared ($0.465 per common share)

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

(443)

 

 

 —

 

 

(443)

Net earnings (loss) including non-controlling interests

 

 —

 

 

 —

 

 

 —

 

 —

 

 

 —

 

 

 —

 

 

1,975

 

 

(18)

 

 

1,957

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balances at January 28, 2017

 

1,918

 

$

1,918

 

$

3,070

 

994

 

$

(13,118)

 

$

(715)

 

$

15,543

 

$

12

 

$

6,710

 

The accompanying notes are an integral part of the consolidated financial statements.

 

 

42


 

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

All amounts in the Notes to Consolidated Financial Statements are in millions except per share amounts.

 

1. ACCOUNTING  POLICIES

 

The following is a summary of the significant accounting policies followed in preparing these financial statements.

 

Description of Business, Basis of Presentation and Principles of Consolidation

 

The Kroger Co. (the “Company”) was founded in 1883 and incorporated in 1902.  As of January 28, 2017, the Company was one of the largest retailers in the world based on annual sales.  The Company also manufactures and processes food for sale by its supermarkets.  The accompanying financial statements include the consolidated accounts of the Company, its wholly-owned subsidiaries and the variable interest entities in which the Company is the primary beneficiary.  Intercompany transactions and balances have been eliminated.

 

On June 25, 2015, the Company’s Board of Directors approved a two-for-one stock split of the Company’s common shares in the form of a 100% stock dividend, which was effective July 13, 2015. All share and per share amounts in the Company’s Consolidated Financial Statements and related notes have been retroactively adjusted to reflect the stock split for all periods presented.

 

Refer to Note 17 for a description of changes to the Consolidated Statement of Operations and Consolidated Statement of Cash Flows for a recently adopted accounting standard regarding the presentation of employee share-based compensation payments.

 

Fiscal Year

 

The Company’s fiscal year ends on the Saturday nearest January 31.  The last three fiscal years consist of the 52-week periods ended January 28, 2017, January 30, 2016 and January 31, 2015.

 

Pervasiveness of Estimates

 

The preparation of financial statements in conformity with generally accepted accounting principles (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities.  Disclosure of contingent assets and liabilities as of the date of the consolidated financial statements and the reported amounts of consolidated revenues and expenses during the reporting period is also required.  Actual results could differ from those estimates.

 

Cash, Temporary Cash Investments and Book Overdrafts

 

Cash and temporary cash investments represent store cash and short-term investments with original maturities of less than three months.  Book overdrafts are included in “Trade accounts payable” and “Accrued salaries and wages” in the Consolidated Balance Sheets.

 

Deposits In-Transit

 

Deposits in-transit generally represent funds deposited to the Company’s bank accounts at the end of the year related to sales, a majority of which were paid for with debit cards, credit cards and checks, to which the Company does not have immediate access but settle within a few days of the sales transaction.

 

43


 

 

Inventories

 

Inventories are stated at the lower of cost (principally on a last-in, first-out “LIFO” basis) or market.  In total, approximately 89% of inventories in 2016 and 95% of inventories in 2015 were valued using the LIFO method.  Cost for the balance of the inventories, including substantially all fuel inventories, was determined using the first-in, first-out (“FIFO”) method.  Replacement cost was higher than the carrying amount by $1,291 at January 28, 2017 and $1,272 at January 30, 2016.  The Company follows the Link-Chain, Dollar-Value LIFO method for purposes of calculating its LIFO charge or credit.

 

The item-cost method of accounting to determine inventory cost before the LIFO adjustment is followed for substantially all store inventories at the Company’s supermarket divisions.  This method involves counting each item in inventory, assigning costs to each of these items based on the actual purchase costs (net of vendor allowances and cash discounts) of each item and recording the cost of items sold. The item-cost method of accounting allows for more accurate reporting of periodic inventory balances and enables management to more precisely manage inventory.  In addition, substantially all of the Company’s inventory consists of finished goods and is recorded at actual purchase costs (net of vendor allowances and cash discounts).

 

The Company evaluates inventory shortages throughout the year based on actual physical counts in its facilities.  Allowances for inventory shortages are recorded based on the results of these counts to provide for estimated shortages as of the financial statement date.

 

Property, Plant and Equipment

 

Property, plant and equipment are recorded at cost or, in the case of assets acquired in a business combination, at fair value.  Depreciation and amortization expense, which includes the depreciation of assets recorded under capital leases, is computed principally using the straight-line method over the estimated useful lives of individual assets.  Buildings and land improvements are depreciated based on lives varying from 10 to 40 years.  All new purchases of store equipment are assigned lives varying from three to nine years.  Leasehold improvements are amortized over the shorter of the lease term to which they relate, which generally varies from four to 25 years, or the useful life of the asset.  Food production plant and distribution center equipment is depreciated over lives varying from three to 15 years.  Information technology assets are generally depreciated over five years.  Depreciation and amortization expense was $2,340 in 2016, $2,089 in 2015 and $1,948 in 2014.

 

Interest costs on significant projects constructed for the Company’s own use are capitalized as part of the costs of the newly constructed facilities.  Upon retirement or disposal of assets, the cost and related accumulated depreciation and amortization are removed from the balance sheet and any gain or loss is reflected in net earnings.  Refer to Note 4 for further information regarding the Company’s property, plant and equipment.

 

Deferred Rent

 

The Company recognizes rent holidays, including the time period during which the Company has access to the property for construction of buildings or improvements and escalating rent provisions on a straight-line basis over the term of the lease.  The deferred amount is included in “Other current liabilities” and “Other long-term liabilities” on the Company’s Consolidated Balance Sheets.

 

Goodwill

 

The Company reviews goodwill for impairment during the fourth quarter of each year, and also upon the occurrence of a triggering event.  The Company performs reviews of each of its operating divisions and variable interest entities (collectively, “reporting units”) that have goodwill balances.  Generally, fair value is determined using a multiple of earnings, or discounted projected future cash flows, and is compared to the carrying value of a reporting unit for purposes of identifying potential impairment.  Projected future cash flows are based on management’s knowledge of the current operating environment and expectations for the future.  If potential for impairment is identified, the fair value of a reporting unit is measured against the fair value of its underlying assets and liabilities, excluding goodwill, to estimate an implied fair value of the reporting unit’s goodwill.  Goodwill impairment is recognized for any excess of the carrying value of the reporting unit’s goodwill over the implied fair value.  Results of the goodwill impairment reviews performed during 2016, 2015 and 2014 are summarized in Note 3.

44


 

 

Impairment of Long-Lived Assets

 

The Company monitors the carrying value of long-lived assets for potential impairment each quarter based on whether certain triggering events have occurred.  These events include current period losses combined with a history of losses or a projection of continuing losses or a significant decrease in the market value of an asset.  When a triggering event occurs, an impairment calculation is performed, comparing projected undiscounted future cash flows, utilizing current cash flow information and expected growth rates related to specific stores, to the carrying value for those stores.  If the Company identifies impairment for long-lived assets to be held and used, the Company compares the assets’ current carrying value to the assets’ fair value.  Fair value is based on current market values or discounted future cash flows.  The Company records impairment when the carrying value exceeds fair market value.  With respect to owned property and equipment held for disposal, the value of the property and equipment is adjusted to reflect recoverable values based on previous efforts to dispose of similar assets and current economic conditions.  Impairment is recognized for the excess of the carrying value over the estimated fair market value, reduced by estimated direct costs of disposal.  The Company recorded asset impairments in the normal course of business totaling $26, $46 and $37 in 2016, 2015 and 2014, respectively.  Costs to reduce the carrying value of long-lived assets for each of the years presented have been included in the Consolidated Statements of Operations as “Operating, general and administrative” expense.

 

Store Closing Costs

 

The Company provides for closed store liabilities relating to the present value of the estimated remaining non-cancellable lease payments after the closing date, net of estimated subtenant income.  The Company estimates the net lease liabilities using a discount rate to calculate the present value of the remaining net rent payments on closed stores.  The closed store lease liabilities usually are paid over the lease terms associated with the closed stores, which generally have remaining terms ranging from one to 20 years.  Adjustments to closed store liabilities primarily relate to changes in subtenant income and actual exit costs differing from original estimates.  Adjustments are made for changes in estimates in the period in which the change becomes known.  Store closing liabilities are reviewed quarterly to ensure that any accrued amount that is not a sufficient estimate of future costs is adjusted to income in the proper period.

 

Owned stores held for disposal are reduced to their estimated net realizable value.  Costs to reduce the carrying values of property, equipment and leasehold improvements are accounted for in accordance with the Company’s policy on impairment of long-lived assets.  Inventory write-downs, if any, in connection with store closings, are classified in the Consolidated Statements of Operations as “Merchandise costs.”  Costs to transfer inventory and equipment from closed stores are expensed as incurred.

 

The current portion of the future lease obligations of stores is included in “Other current liabilities,” and the long-term portion is included in “Other long-term liabilities” in the Consolidated Balance Sheets.

 

Interest Rate Risk Management

 

The Company uses derivative instruments primarily to manage its exposure to changes in interest rates.  The Company’s current program relative to interest rate protection and the methods by which the Company accounts for its derivative instruments are described in Note 7.

 

Benefit Plans and Multi-Employer Pension Plans

 

The Company recognizes the funded status of its retirement plans on the Consolidated Balance Sheets. Actuarial gains or losses, prior service costs or credits and transition obligations that have not yet been recognized as part of net periodic benefit cost are required to be recorded as a component of Accumulated Other Comprehensive Income (“AOCI”).  All plans are measured as of the Company’s fiscal year end.

 

45


 

 

The determination of the obligation and expense for Company-sponsored pension plans and other post-retirement benefits is dependent on the selection of assumptions used by actuaries and the Company in calculating those amounts.  Those assumptions are described in Note 15 and include, among others, the discount rate, the expected long-term rate of return on plan assets, mortality and the rates of increase in compensation and health care costs.  Actual results that differ from the assumptions are accumulated and amortized over future periods and, therefore, generally affect the recognized expense and recorded obligation in future periods.  While the Company believes that the assumptions are appropriate, significant differences in actual experience or significant changes in assumptions may materially affect the pension and other post-retirement obligations and future expense.

 

The Company also participates in various multi-employer plans for substantially all union employees.  Pension expense for these plans is recognized as contributions are funded or when commitments are probable and reasonably estimable, in accordance with GAAP.  Refer to Note 16 for additional information regarding the Company’s participation in these various multi-employer pension plans.

 

The Company administers and makes contributions to the employee 401(k) retirement savings accounts.  Contributions to the employee 401(k) retirement savings accounts are expensed when contributed.  Refer to Note 15 for additional information regarding the Company’s benefit plans.

 

Share Based Compensation

 

The Company accounts for stock options under fair value recognition provisions Under this method, the Company recognizes compensation expense for all share-based payments granted.  The Company recognizes share-based compensation expense, net of an estimated forfeiture rate, over the requisite service period of the award.  In addition, the Company records expense for restricted stock awards in an amount equal to the fair market value of the underlying stock on the grant date of the award, over the period the awards lapse. Excess tax benefits related to share-based payments are recognized in the provision for income taxes. Refer to Note 12 for additional information regarding the Company’s stock based compensation.

 

Deferred Income Taxes

 

Deferred income taxes are recorded to reflect the tax consequences of differences between the tax basis of assets and liabilities and their financial reporting basis.  Refer to Note 5 for the types of differences that give rise to significant portions of deferred income tax assets and liabilities.  Deferred income taxes are classified as a net current or noncurrent asset or liability based on the classification of the related asset or liability for financial reporting purposes.  A deferred tax asset or liability that is not related to an asset or liability for financial reporting is classified according to the expected reversal date.

 

Uncertain Tax Positions

 

The Company reviews the tax positions taken or expected to be taken on tax returns to determine whether and to what extent a benefit can be recognized in its consolidated financial statements.  Refer to Note 5 for the amount of unrecognized tax benefits and other related disclosures related to uncertain tax positions.

 

Various taxing authorities periodically audit the Company’s income tax returns.  These audits include questions regarding the Company’s tax filing positions, including the timing and amount of deductions and the allocation of income to various tax jurisdictions.  In evaluating the exposures connected with these various tax filing positions, including state and local taxes, the Company records allowances for probable exposures.  A number of years may lapse before a particular matter, for which an allowance has been established, is audited and fully resolved.  As of January 28, 2017, the Internal Revenue Service had concluded its examination of the Company’s 2012 and 2013 federal tax returns.

 

The assessment of the Company’s tax position relies on the judgment of management to estimate the exposures associated with the Company’s various filing positions.

 

46


 

 

Self-Insurance Costs

 

The Company is primarily self-insured for costs related to workers’ compensation and general liability claims.  Liabilities are actuarially determined and are recognized based on claims filed and an estimate of claims incurred but not reported.  The liabilities for workers’ compensation claims are accounted for on a present value basis.  The Company has purchased stop-loss coverage to limit its exposure to any significant exposure on a per claim basis.  The Company is insured for covered costs in excess of these per claim limits.

 

The following table summarizes the changes in the Company’s self-insurance liability through January 28, 2017.

 

 

 

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Beginning balance

 

$

639

 

$

599

 

$

569

 

Expense

 

 

263

 

 

234

 

 

246

 

Claim payments

 

 

(220)

 

 

(225)

 

 

(216)

 

Assumed from mergers

 

 

 —

 

31

 

 —

 

Ending balance

 

 

682

 

 

639

 

 

599

 

Less: Current portion

 

 

(229)

 

 

(223)

 

 

(213)

 

Long-term portion

 

$

453

 

$

416

 

$

386

 

 

The current portion of the self-insured liability is included in “Other current liabilities,” and the long-term portion is included in “Other long-term liabilities” in the Consolidated Balance Sheets.

 

The Company maintains surety bonds related to self-insured workers’ compensation claims.  These bonds are required by most states in which the Company is self-insured for workers’ compensation and are placed with third-party insurance providers to insure payment of the Company’s obligations in the event the Company is unable to meet its claim payment obligations up to its self-insured retention levels.  These bonds do not represent liabilities of the Company, as the Company has recorded reserves for the claim costs.

 

The Company is similarly self-insured for property-related losses.  The Company maintains stop loss coverage to limit its property loss exposures including coverage for earthquake, wind, flood and other catastrophic events.

 

Revenue Recognition

 

Revenues from the sale of products are recognized at the point of sale.  Discounts provided to customers by the Company at the time of sale, including those provided in connection with loyalty cards, are recognized as a reduction in sales as the products are sold.  Discounts provided by vendors, usually in the form of paper coupons, are not recognized as a reduction in sales provided the coupons are redeemable at any retailer that accepts coupons.  The Company records a receivable from the vendor for the difference in sales price and cash received.  Pharmacy sales are recorded when product is provided to the customer.  Sales taxes are recorded as other accrued liabilities and not as a component of sales.    The Company does not recognize a sale when it sells its own gift cards and gift certificates.  Rather, it records a deferred liability equal to the amount received.  A sale is then recognized when the gift card or gift certificate is redeemed to purchase the Company’s products.  In 2016, the Company began recognizing gift card and gift certificate breakage under the proportional method, where recognition of breakage income is based upon the historical run-off rate of unredeemed gift cards and gift certificates.  Prior to 2016, gift card and gift certificate breakage was recognized under the remote method, where breakage income is recognized when redemption is unlikely to occur and there is no legal obligation to remit the value of the unredeemed gift cards or gift certificates.  The amount of breakage was not material for 2016, 2015 and 2014.

 

Merchandise Costs

 

The “Merchandise costs” line item of the Consolidated Statements of Operations includes product costs, net of discounts and allowances; advertising costs (see separate discussion below); inbound freight charges; warehousing costs, including receiving and inspection costs; transportation costs; and food production and operational costs.  Warehousing, transportation and manufacturing management salaries are also included in the “Merchandise costs” line item; however, purchasing management salaries and administration costs are included in the “Operating, general and administrative” line item along with most of the Company’s other managerial and administrative costs.  Rent expense and depreciation and amortization expense are shown separately in the Consolidated Statements of Operations.

47


 

 

Warehousing and transportation costs include distribution center direct wages, transportation direct wages, repairs and maintenance, utilities, inbound freight and, where applicable, third party warehouse management fees.  These costs are recognized in the periods the related expenses are incurred.

 

The Company believes the classification of costs included in merchandise costs could vary widely throughout the industry.  The Company’s approach is to include in the “Merchandise costs” line item the direct, net costs of acquiring products and making them available to customers in its stores.  The Company believes this approach most accurately presents the actual costs of products sold.

 

The Company recognizes all vendor allowances as a reduction in merchandise costs when the related product is sold.  When possible, vendor allowances are applied to the related product cost by item and, therefore, reduce the carrying value of inventory by item.  When the items are sold, the vendor allowance is recognized.  When it is not possible, due to systems constraints, to allocate vendor allowances to the product by item, vendor allowances are recognized as a reduction in merchandise costs based on inventory turns and, therefore, recognized as the product is sold.

 

Advertising Costs

 

The Company’s advertising costs are recognized in the periods the related expenses are incurred and are included in the “Merchandise costs” line item of the Consolidated Statements of Operations.  The Company’s pre-tax advertising costs totaled $717 in 2016, $679 in 2015 and $648 in 2014.  The Company does not record vendor allowances for co-operative advertising as a reduction of advertising expense.

 

Consolidated Statements of Cash Flows

 

For purposes of the Consolidated Statements of Cash Flows, the Company considers all highly liquid debt instruments purchased with an original maturity of three months or less to be temporary cash investments.

 

Segments

 

The Company operates supermarkets, multi-department stores, jewelry stores, and convenience stores throughout the United States.  The Company’s retail operations, which represent over 98% of the Company’s consolidated sales and EBITDA, are its only reportable segment.  The Company’s operating divisions have been aggregated into one reportable segment due to the operating divisions having similar economic characteristics with similar long-term financial performance.  In addition, the Company’s operating divisions offer customers similar products, have similar distribution methods, operate in similar regulatory environments, purchase the majority of the merchandise for retail sale from similar (and in many cases identical) vendors on a coordinated basis from a centralized location, serve similar types of customers, and are allocated capital from a centralized location.  Operating divisions are organized primarily on a geographical basis so that the operating division management team can be responsive to local needs of the operating division and can execute company strategic plans and initiatives throughout the locations in the operating division.  The geographical separation is the primary differentiation between these operating divisions.  The Company’s geographic basis of organization reflects the manner in which the business is managed and how the Company’s Chief Executive Officer, who acts as the Company’s chief operating decision maker, assesses performance internally.  All of the Company’s operations are domestic.

 

48


 

 

The following table presents sales revenue by type of product for 2016, 2015 and 2014.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

2015

 

2014

 

 

    

Amount

    

% of total

    

Amount

    

% of total

    

Amount

    

% of total

 

Non Perishable (1)

 

$

60,220

 

52.2

%  

$

57,187

 

52.1

%  

$

54,392

 

50.1

%  

Perishable (2)

 

 

27,666

 

24.0

%  

 

25,726

 

23.4

%  

 

24,178

 

22.3

%  

Fuel

 

 

13,979

 

12.1

%  

 

14,802

 

13.5

%  

 

18,850

 

17.4

%  

Pharmacy

 

 

10,432

 

9.0

%  

 

9,778

 

8.9

%  

 

9,032

 

8.3

%  

Other (3)

 

 

3,040

 

2.7

%  

 

2,337

 

2.1

%  

 

2,013

 

1.9

%  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Sales and other revenue

 

$

115,337

 

100

%  

$

109,830

 

100

%  

$

108,465

 

100

%  

 


(1)

Consists primarily of grocery, general merchandise, health and beauty care and natural foods.

(2)

Consists primarily of produce, floral, meat, seafood, deli, bakery and fresh prepared.

(3)

Consists primarily of sales related to jewelry stores, food production plants to outside customers, data analytic services, variable interest entities, specialty pharmacy, in-store health clinics, digital coupon services and online sales by Vitacost.com.

 

 

 

49


 

 

2. MERGERS

 

On September 2, 2016, the Company closed its merger with Modern HC Holdings, Inc. (“ModernHEALTH”) by purchasing 100% of the outstanding shares of ModernHEALTH for $407. This merger allows the Company to expand its specialty pharmacy services by significantly increasing geographic reach and patient therapies. The merger was accounted for under the purchase method of accounting and was financed through the issuance of commercial paper. In a business combination, the purchase price is allocated to assets acquired and liabilities assumed based on their fair values, with any excess of purchase price over fair value recognized as goodwill. In addition to recognizing the assets and liabilities on the acquired company’s balance sheet, the Company reviews supply contracts, leases, financial instruments, employment agreements and other significant agreements to identify potential assets or liabilities that require recognition in connection with the application of acquisition accounting under Accounting Standards Codification (“ASC”) 805. Intangible assets are recognized apart from goodwill when the asset arises from contractual or other legal rights, or are separable from the acquired entity such that they may be sold, transferred, licensed, rented or exchanged either on a standalone basis or in combination with a related contract, asset or liability.

 

Pending finalization of the Company’s valuation and other items, the following table summarizes the preliminary fair values of the assets acquired and liabilities assumed as part of the merger with ModernHEALTH:

 

 

 

 

 

 

 

 

    

September 2,

 

 

 

2016

 

ASSETS

 

 

 

 

Total current assets

 

$

82

 

 

 

 

 

 

Property, plant and equipment

 

 

8

 

Intangibles

 

 

136

 

 

 

 

 

 

Total Assets, excluding Goodwill

 

 

226

 

 

 

 

 

 

LIABILITIES

 

 

 

 

Total current liabilities

 

 

(70)

 

 

 

 

 

 

Fair-value of long-term debt including obligations under capital leases and financing obligations

 

 

(1)

 

Deferred income taxes

 

 

(33)

 

 

 

 

 

 

Total Liabilities

 

 

(104)

 

 

 

 

 

 

Total Identifiable Net Assets

 

 

122

 

Goodwill

 

 

285

 

Total Purchase Price

 

$

407

 

 

Of the $136 allocated to intangible assets, the Company recorded $131 and $5 related to pharmacy prescription files and distribution agreements, respectively. The Company will amortize the pharmacy prescription files and distribution agreements, using the straight line method, over 10 years. The goodwill recorded as part of the merger was attributable to the assembled workforce of ModernHEALTH and operational synergies expected from the merger, as well as any intangible assets that did not qualify for separate recognition. The merger was treated as a stock purchase for income tax purposes. The assets acquired and liabilities assumed as part of the merger did not result in a step up of tax basis and goodwill is not expected to be deductible for tax purposes.

 

On December 18, 2015, the Company closed its merger with Roundy’s by purchasing 100% of Roundy’s outstanding common stock for $3.60 per share and assuming Roundy’s outstanding debt, for a purchase price of $866.  The merger brings a complementary store base in communities throughout Wisconsin and a stronger presence in the greater Chicagoland area.  The merger was accounted for under the purchase method of accounting and was financed through a combination of commercial paper and long-term debt. 

 

50


 

 

The Company’s purchase price allocation was finalized in the fourth quarter of 2016.  The changes in the fair values assumed from the preliminary amounts determined as of December 18, 2015 were a decrease in goodwill of $13, a decrease in current liabilities of $8 and a decrease in deferred tax liabilities of $5. The table below summarizes the final fair value of the assets acquired and liabilities assumed: 

 

 

 

 

 

 

 

    

December 18,

 

 

 

2015

 

ASSETS

 

 

 

 

Cash and temporary cash investments 

 

$

20

 

Store deposits in-transit 

 

 

30

 

Receivables 

 

 

43

 

FIFO inventory 

 

 

323

 

Prepaid and other current assets 

 

 

19

 

Total current assets

 

 

435

 

 

 

 

 

 

Property, plant and equipment

 

 

342

 

Intangibles

 

 

324

 

Other assets 

 

 

4

 

 

 

 

 

 

Total Assets, excluding Goodwill

 

 

1,105

 

 

 

 

 

 

LIABILITIES

 

 

 

 

Current portion of obligations under capital leases and financing obligations

 

 

(9)

 

Trade accounts payable 

 

 

(236)

 

Accrued salaries and wages 

 

 

(40)

 

Other current liabilities 

 

 

(81)

 

Total current liabilities

 

 

(366)

 

 

 

 

 

 

Fair-value of long-term debt 

 

 

(678)

 

Fair-value of long-term obligations under capital leases and financing obligations

 

 

(20)

 

Deferred income taxes

 

 

(107)

 

Pension and postretirement benefit obligations

 

 

(36)

 

Other long-term liabilities 

 

 

(111)

 

 

 

 

 

 

Total Liabilities

 

 

(1,318)

 

 

 

 

 

 

Total Identifiable Net Liabilities

 

 

(213)

 

Goodwill

 

 

401

 

Total Purchase Price

 

$

188

 

 

 

Of the $324 allocated to intangible assets, $211 relates to the Mariano’s®, Pick ‘n Save®, Metro Market and Copps™ trade names, to which was assigned an indefinite life and, therefore, will not be amortized.  The Company also recorded $69 ,   $38, and $6 related to favorable leasehold interests, pharmacy prescription files and customer lists, respectively. The Company will amortize the favorable leasehold interests over a weighted average of twelve years. The Company will amortize the pharmacy prescription files and customer lists over seven and two years, respectively, on a straight-line basis.  The goodwill recorded as part of the merger was attributable to the assembled workforce of Roundy’s and operational synergies expected from the merger, as well as any intangible assets that do not qualify for separate recognition.  The transaction was treated as a stock purchase for income tax purposes.  The assets acquired and liabilities assumed as part of the merger did not result in a step up of the tax basis and goodwill is not expected to be deductible for tax purposes.

 

On August 18, 2014, the Company closed its merger with Vitacost.com, Inc. (“Vitacost.com”) by purchasing 100% of the Vitacost.com outstanding common stock for $8.00 per share or $287.  This merger affords the Company access to Vitacost.com’s extensive e-commerce platform, which can be combined with the Company’s customer insights and loyal customer base, to create new levels of personalization and convenience for customers.  The merger was accounted for under the purchase method of accounting and was financed through the issuance of commercial paper.

 

51


 

 

The Company’s purchase price allocation was finalized in the second quarter of 2015. The changes in the fair values assumed from the preliminary amounts were not material.  The table below summarizes the final fair values of the assets acquired and liabilities assumed:

 

 

 

 

 

 

    

August 18,

 

 

2014

ASSETS

 

 

 

Total current assets

 

$

80

 

 

 

 

Property, plant and equipment

 

 

28

Intangibles

 

 

81

 

 

 

 

Total Assets, excluding Goodwill

 

 

189

 

 

 

 

LIABILITIES

 

 

 

Total current liabilities

 

 

(56)

 

 

 

 

Deferred income taxes

 

 

(6)

 

 

 

 

Total Liabilities

 

 

(62)

 

 

 

 

Total Identifiable Net Assets

 

 

127

Goodwill

 

 

160

Total Purchase Price

 

$

287

 

Of the $81 allocated to intangible assets, the Company recorded $49, $26 and $6 related to customer relationships, technology and the trade name, respectively.  The Company will amortize the technology and the trade name, using the straight line method, over 10 and three years, respectively, while the customer relationships will be amortized over five years using the declining balance method.  The goodwill recorded as part of the merger was attributable to the assembled workforce of Vitacost.com and operational synergies expected from the merger, as well as any intangible assets that did not qualify for separate recognition.  The transaction was treated as a stock purchase for income tax purposes.  The assets acquired and liabilities assumed as part of the merger did not result in a step up of the tax basis and goodwill is not expected to be deductible for tax purposes.

 

Pro forma results of operations, assuming the Vitacost.com merger had taken place at the beginning of 2013, the Roundy’s transaction had taken place at the beginning of 2014 and the ModernHEALTH merger had taken place at the beginning of 2015, are included in the following table.  The pro forma information includes historical results of operations of Vitacost.com, Roundy’s and ModernHEALTH, as well as adjustments for interest expense that would have been incurred due to financing the mergers, depreciation and amortization of the assets acquired and excludes the pre-merger transaction related expenses incurred by Vitacost.com, Roundy’s, ModernHEALTH and the Company.  The pro forma information does not include efficiencies, cost reductions, synergies or investments in lower prices for our customers expected to result from the mergers.  The unaudited pro forma financial information is not necessarily indicative of the results that actually would have occurred had the Vitacost.com merger completed at the beginning of 2013, the Roundy’s merger completed at the beginning of 2014 or the ModernHEALTH merger completed at beginning of 2015.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fiscal year ended

    

Fiscal year ended

    

Fiscal year ended

    

 

 

January 28, 2017

 

January 30, 2016

 

January 31, 2015

 

Sales

 

$

115,994

 

$

114,341

 

$

112,458

 

Net earnings including noncontrolling interests

 

 

1,958

 

 

2,059

 

 

1,751

 

Net earnings (loss) attributable to noncontrolling interests

 

 

(18)

 

 

10

 

 

19

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co.

 

$

1,976

 

$

2,049

 

$

1,732

 

 

 

52


 

 

3. GOODWILL  AND  INTANGIBLE  ASSETS

 

The following table summarizes the changes in the Company’s net goodwill balance through January 28, 2017.

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

 

Balance beginning of year

 

 

 

 

 

 

 

Goodwill

 

$

5,256

 

$

4,836

 

Accumulated impairment losses

 

 

(2,532)

 

 

(2,532)

 

 

 

 

2,724

 

 

2,304

 

 

 

 

 

 

 

 

 

Activity during the year

 

 

 

 

 

 

 

Mergers

 

 

307

 

 

420

 

 

 

 

 

 

 

 

 

Balance end of year

 

 

 

 

 

 

 

Goodwill

 

 

5,563

 

 

5,256

 

Accumulated impairment losses

 

 

(2,532)

 

 

(2,532)

 

 

 

$

3,031

 

$

2,724

 

 

In 2016, the Company acquired all of the outstanding shares of ModernHEALTH (see Note 2) resulting in additional goodwill totaling $285.

 

In 2015, the Company acquired all the outstanding shares of Roundy’s (see Note 2),  resulting in additional goodwill totaling $401.  In 2016, the Company finalized its Roundy's purchase allocation resulting in a decrease in goowill of $13 (see Note 2).

 

Testing for impairment must be performed annually, or on an interim basis upon the occurrence of a triggering event or a change in circumstances that would more likely than not reduce the fair value of a reporting unit below its carrying amount.  The annual evaluations of goodwill and indefinite-lived intangible assets were performed during the fourth quarter of 2016, 2015 and 2014 did not result in impairment.

 

Based on current and future expected cash flows, the Company believes goodwill impairments are not reasonably likely.  A 10% reduction in fair value of the Company’s reporting units would not indicate a potential for impairment of the Company’s remaining goodwill balance. 

 

In 2016, the Company acquired definite and indefinite lived intangible assets totaling approximately $136 as a result of the merger with ModernHEALTH.

 

In 2015, the Company acquired definite and indefinite lived intangible assets totaling approximately $324 as a result of the merger with Roundy's. 

 

53


 

 

The following table summarizes the Company’s intangible assets balance through January 28, 2017.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

2015

 

 

    

Gross carrying

    

Accumulated

    

Gross carrying

    

Accumulated

 

 

 

amount

 

amortization (1)

 

amount

 

amortization (1)

 

Definite-lived favorable leasehold interests

 

$

167

 

$

(41)

 

$

169

 

$

(31)

 

Definite-lived pharmacy prescription files

 

 

254

 

 

(56)

 

 

127

 

 

(40)

 

Definite-lived customer relationships

 

 

93

 

 

(55)

 

 

93

 

 

(39)

 

Definite-lived other

 

 

97

 

 

(33)

 

 

78

 

 

(23)

 

Indefinite-lived trade name

 

 

641

 

 

 —

 

 

641

 

 

 —

 

Indefinite-lived liquor licenses

 

 

86

 

 

 —

 

 

78

 

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

1,338

 

$

(185)

 

$

1,186

 

$

(133)

 

 


(1)

Favorable leasehold interests are amortized to rent expense, pharmacy prescription files are amortized to merchandise costs, customer relationships are amortized to depreciation and amortization expense and other intangibles are amortized to operating, general and administrative (“OG&A”) expense and depreciation and amortization expense.

 

Amortization expense associated with intangible assets totaled approximately $63, $51 and $41, during fiscal years 2016, 2015 and 2014, respectively. Future amortization expense associated with the net carrying amount of definite-lived intangible assets for the years subsequent to 2016 is estimated to be approximately:

 

 

 

 

 

2017

    

$

73

2018

 

 

57

2019

 

 

39

2020

 

 

30

2021

 

 

28

Thereafter

 

 

199

 

 

 

 

Total future estimated amortization associated with definite-lived intangible assets

 

$

426

 

 

4. PROPERTY, PLANT  AND  EQUIPMENT, NET

 

Property, plant and equipment, net consists of:

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

 

Land

 

$

3,197

 

$

2,997

 

Buildings and land improvements

 

 

11,643

 

 

10,524

 

Equipment

 

 

13,495

 

 

12,520

 

Leasehold improvements

 

 

9,342

 

 

8,710

 

Construction-in-progress

 

 

1,979

 

 

2,115

 

Leased property under capital leases and financing obligations

 

 

932

 

 

801

 

 

 

 

 

 

 

 

 

Total property, plant and equipment

 

 

40,588

 

 

37,667

 

Accumulated depreciation and amortization

 

 

(19,572)

 

 

(18,048)

 

 

 

 

 

 

 

 

 

Property, plant and equipment, net

 

$

21,016

 

$

19,619

 

 

Accumulated depreciation and amortization for leased property under capital leases was $330 at January 28, 2017 and $293 at January 30, 2016.

 

Approximately $219 and $264, net book value, of property, plant and equipment collateralized certain mortgages at January 28, 2017 and January 30, 2016, respectively.

 

54


 

 

5. TAXES  BASED  ON  INCOME

 

The provision for taxes based on income consists of:

 

 

 

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Federal

 

 

 

 

 

 

 

 

 

 

Current

 

$

721

 

$

723

 

$

847

 

Deferred

 

 

158

 

 

266

 

 

(15)

 

 

 

 

 

 

 

 

 

 

 

 

Subtotal federal

 

 

879

 

 

989

 

 

832

 

 

 

 

 

 

 

 

 

 

 

 

State and local

 

 

 

 

 

 

 

 

 

 

Current

 

 

51

 

 

37

 

 

59

 

Deferred

 

 

27

 

 

19

 

 

11

 

 

 

 

 

 

 

 

 

 

 

 

Subtotal state and local

 

 

78

 

 

56

 

 

70

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

957

 

$

1,045

 

$

902

 

 

A reconciliation of the statutory federal rate and the effective rate follows:

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Statutory rate

 

35.0

%  

35.0

%  

35.0

%

State income taxes, net of federal tax benefit

 

1.6

%  

1.2

%  

1.7

%

Credits

 

(1.1)

%

(1.2)

%

(1.2)

%

Favorable resolution of audit issues

 

(0.5)

%

(0.2)

%

(0.4)

%

Domestic manufacturing deduction

 

(0.7)

%

(0.7)

%

(0.7)

%

Excess tax benefits from share-based payments

 

(1.6)

%

 —

%

 —

%

Other changes, net

 

0.1

%

(0.3)

%

(0.3)

%

 

 

 

 

 

 

 

 

 

 

32.8

%  

33.8

%  

34.1

%

 

The 2016 tax rate differed from the federal statutory rate primarily as a result of the recognition of excess tax benefits related to share-based payments after the adoption of ASU 2016-09 (see Note 17), the utilization of tax credits, the Domestic Manufacturing Deduction and other changes, partially offset by the effect of state income taxes. 

 

The 2015 rate for state income taxes is less than 2016 and 2014 due to filing amended returns to claim additional benefits in years still under review, the favorable resolution of state issues and an increase in state credits. 

 

55


 

 

The tax effects of significant temporary differences that comprise tax balances were as follows:

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

 

Current deferred tax assets:

 

 

 

 

 

 

 

Net operating loss and credit carryforwards

 

$

23

 

$

10

 

Compensation related costs

 

 

67

 

 

83

 

Other

 

 

50

 

61

 

 

 

 

 

 

 

 

 

Subtotal

 

 

140

 

 

154

 

Valuation allowance

 

 

(11)

 

 

(9)

 

 

 

 

 

 

 

 

 

Total current deferred tax assets

 

 

129

 

 

145

 

 

 

 

 

 

 

 

 

Current deferred tax liabilities:

 

 

 

 

 

 

 

Insurance related costs

 

 

(52)

 

 

(56)

 

Inventory related costs

 

 

(328)

 

 

(310)

 

 

 

 

 

 

 

 

 

Total current deferred tax liabilities

 

 

(380)

 

 

(366)

 

 

 

 

 

 

 

 

 

Current deferred taxes

 

$

(251)

 

$

(221)

 

 

 

 

 

 

 

 

 

Long-term deferred tax assets:

 

 

 

 

 

 

 

Compensation related costs

 

$

783

 

$

709

 

Lease accounting

 

 

121

 

 

106

 

Closed store reserves

 

 

46

 

 

57

 

Insurance related costs

 

 

7

 

 

29

 

Net operating loss and credit carryforwards

 

 

101

 

 

128

 

Other

 

1

 

 

17

 

 

 

 

 

 

 

 

 

Subtotal

 

 

1,059

 

 

1,046

 

Valuation allowance

 

 

(39)

 

 

(43)

 

 

 

 

 

 

 

 

 

Total long-term deferred tax assets

 

 

1,020

 

 

1,003

 

Long-term deferred tax liabilities:

 

 

 

 

 

 

 

Depreciation and amortization

 

 

(2,947)

 

 

(2,755)

 

 

 

 

 

 

 

 

 

Total long-term deferred tax liabilities

 

 

(2,947)

 

 

(2,755)

 

 

 

 

 

 

 

 

 

Long-term deferred taxes

 

$

(1,927)

 

$

(1,752)

 

 

At January 28, 2017, the Company had net operating loss carryforwards for state income tax purposes of $1,206.  These net operating loss carryforwards expire from 2017 through 2036.  The utilization of certain of the Company’s state net operating loss carryforwards may be limited in a given year.  Further, based on the analysis described below, the Company has recorded a valuation allowance against some of the deferred tax assets resulting from its state net operating losses. 

 

At January 28, 2017, the Company had state credit carryforwards of $62, most of which expire from 2017 through 2027.  The utilization of certain of the Company’s credits may be limited in a given year. Further, based on the analysis described below, the Company has recorded a valuation allowance against some of the deferred tax assets resulting from its state credits .

 

At January 28, 2017, the Company had federal net operating loss carryforwards of $55. These net operating loss carryforwards expire from 2030 through 2035. The utilization of certain of the Company’s federal net operating loss carryforwards may be limited in a given year. Further, based on the analysis described below, the Company has not recorded a valuation allowance against the deferred tax assets resulting from its federal net operating losses. 

 

56


 

 

The Company regularly reviews all deferred tax assets on a tax filer and jurisdictional basis to estimate whether these assets are more likely than not to be realized based on all available evidence.  This evidence includes historical taxable income, projected future taxable income, the expected timing of the reversal of existing temporary differences and the implementation of tax planning strategies.  Projected future taxable income is based on expected results and assumptions as to the jurisdiction in which the income will be earned.  The expected timing of the reversals of existing temporary differences is based on current tax law and the Company’s tax methods of accounting.  Unless deferred tax assets are more likely than not to be realized, a valuation allowance is established to reduce the carrying value of the deferred tax asset until such time that realization becomes more likely than not.  Increases and decreases in these valuation allowances are included in "Income tax expense" in the Consolidated Statements of Operations.

 

A reconciliation of the beginning and ending amount of unrecognized tax benefits, including positions impacting only the timing of tax benefits, is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Beginning balance

 

$

204

 

$

246

 

$

325

 

Additions based on tax positions related to the current year

 

 

10

 

 

11

 

 

17

 

Reductions based on tax positions related to the current year

 

 

(1)

 

 

(11)

 

 

(6)

 

Additions for tax positions of prior years

 

 

3

 

 

4

 

 

9

 

Reductions for tax positions of prior years

 

 

(30)

 

 

(27)

 

 

(36)

 

Settlements

 

 

(2)

 

 

(17)

 

 

(63)

 

Lapse of statute

 

 

(7)

 

 

(2)

 

 

 —

 

Ending balance

 

$

177

 

$

204

 

$

246

 

 

The Company does not anticipate that changes in the amount of unrecognized tax benefits over the next twelve months will have a significant impact on its results of operations or financial position.

 

As of January 28, 2017, January 30, 2016 and January 31, 2015, the amount of unrecognized tax benefits that, if recognized, would impact the effective tax rate was $73, $83 and $90, respectively.

 

To the extent interest and penalties would be assessed by taxing authorities on any underpayment of income tax, such amounts have been accrued and classified as a component of income tax expense.  During the years ended January 28, 2017, January 30, 2016 and January 31, 2015, the Company recognized approximately $(1), $(5) and $3, respectively, in interest and penalties (recoveries).  The Company had accrued approximately $20, $25 and $30 for the payment of interest and penalties as of January 28, 2017, January 30, 2016 and January 31, 2015, respectively.

 

As of January 28, 2017, the Internal Revenue Service had concluded its examination of the Company’s 2012 and 2013 federal tax returns.

 

6. DEBT  OBLIGATIONS

 

Long-term debt consists of:

 

 

 

 

 

 

 

 

 

 

 

January 28,

 

January 30,

 

 

    

2017

    

2016

 

1.14% to 8.00% Senior Notes due through 2047

 

$

11,311

 

$

9,826

 

5.00% to 12.75% Mortgages due in varying amounts through 2027

 

 

38

 

 

58

 

0.66% to 0.91% Commercial paper borrowings due through February 2017

 

 

1,425

 

 

990

 

Other

 

 

541

 

 

522

 

 

 

 

 

 

 

 

 

Total debt, excluding capital leases and financing obligations

 

 

13,315

 

 

11,396

 

Less current portion

 

 

(2,197)

 

 

(2,318)

 

 

 

 

 

 

 

 

 

Total long-term debt, excluding capital leases and financing obligations

 

$

11,118

 

$

9,078

 

 

57


 

 

In 2016, the Company issued $1,000 of senior notes due in fiscal year 2047 bearing an interest rate of 4.45%, $500 of senior notes due in fiscal year 2046 bearing an interest rate of 3.88%, $750 of senior notes due in fiscal year 2026 bearing an interest rate of 2.65% and $500 of senior notes due in fiscal year 2019 bearing an interest rate of 1.50%. The Company also repaid $450 of senior notes bearing an interest rate of 2.20%, $500 of senior notes bearing an interest rate of 3-month London Inter-Bank Offering Rate plus 53 basis points and $300 of senior notes bearing an interest rate of 1.20%.

 

In 2015, the Company issued $500 of senior notes due in fiscal year 2026 bearing an interest rate of 3.50%, $300 of senior notes due in fiscal year 2021 bearing an interest rate of 2.60% and $300 of senior notes due in fiscal year 2019 bearing an interest rate of 2.00%, and repaid $500 of senior notes bearing an interest rate of 3.90% upon maturity. Due to the merger with Roundy’s, the Company assumed $678 of term loans, which were entirely paid off following the merger.

 

On June 30, 2014, the Company amended, extended and restated its $2,000 unsecured revolving credit facility.  The Company entered into the amended credit facility to amend, extend and restate the Company’s existing credit facility that would have terminated on January 25, 2017.  The amended credit facility provides for a $2,750 unsecured revolving credit facility (the “Credit Agreement”), with a termination date of June 30, 2019, unless extended as permitted under the Credit Agreement.  The Company has the ability to increase the size of the Credit Agreement by up to an additional $750, subject to certain conditions.  

 

Borrowings under the Credit Agreement bear interest at the Company’s option, at either (i) LIBOR plus a market rate spread, based on the Company’s Leverage Ratio or (ii) the base rate, defined as the highest of (a) the Federal Funds Rate plus 0.5%, (b) the Bank of America prime rate, and (c) one-month LIBOR plus 1.0%, plus a market rate spread based on the Company’s Leverage Ratio.  The Company will also pay a Commitment Fee based on the Leverage Ratio and Letter of Credit fees equal to a market rate spread based on the Company’s Leverage Ratio.  The Credit Agreement contains covenants, which, among other things, require the maintenance of a Leverage Ratio of not greater than 3.50:1.00 and a Fixed Charge Coverage Ratio of not less than 1.70:1.00.  The Company may repay the Credit Agreement in whole or in part at any time without premium or penalty.  The Credit Agreement is not guaranteed by the Company’s subsidiaries.

 

As of January 28, 2017, the Company had $1,425 of borrowings of commercial paper, with a weighted average interest rate of 0.91%, and no borrowings under the Credit Agreement. As of January 30, 2016, the Company had $990 of borrowings of commercial paper, with a weighted average interest rate of 0.66%, and no borrowings under the Credit Agreement.

 

As of January 28, 2017, the Company had outstanding letters of credit in the amount of $242, of which $13 reduces funds available under the Credit Agreement.  The letters of credit are maintained primarily to support performance, payment, deposit or surety obligations of the Company.

 

Most of the Company’s outstanding public debt is subject to early redemption at varying times and premiums, at the option of the Company.  In addition, subject to certain conditions, some of the Company’s publicly issued debt will be subject to redemption, in whole or in part, at the option of the holder upon the occurrence of a redemption event, upon not less than five days’ notice prior to the date of redemption, at a redemption price equal to the default amount, plus a specified premium.  “Redemption Event” is defined in the indentures as the occurrence of (i) any person or group, together with any affiliate thereof, beneficially owning 50% or more of the voting power of the Company, (ii) any one person or group, or affiliate thereof, succeeding in having a majority of its nominees elected to the Company’s Board of Directors, in each case, without the consent of a majority of the continuing directors of the Company or (iii) both a change of control and a below investment grade rating.

 

58


 

 

The aggregate annual maturities and scheduled payments of long-term debt, as of year-end 2016, and for the years subsequent to 2016 are:

 

 

 

 

 

 

2017

    

$

2,197

 

2018

 

 

1,315

 

2019

 

 

1,246

 

2020

 

 

724

 

2021

 

 

797

 

Thereafter

 

 

7,036

 

 

 

 

 

 

Total debt

 

$

13,315

 

 

 

7. DERIVATIVE  FINANCIAL  INSTRUMENTS

 

GAAP requires that derivatives be carried at fair value on the balance sheet, and provides for hedge accounting when certain conditions are met.  The Company’s derivative financial instruments are recognized on the balance sheet at fair value.  Changes in the fair value of derivative instruments designated as “cash flow” hedges, to the extent the hedges are highly effective, are recorded in other comprehensive income, net of tax effects.  Ineffective portions of cash flow hedges, if any, are recognized in current period earnings.  Other comprehensive income or loss is reclassified into current period earnings when the hedged transaction affects earnings.  Changes in the fair value of derivative instruments designated as “fair value” hedges, along with corresponding changes in the fair values of the hedged assets or liabilities, are recorded in current period earnings.  Ineffective portions of fair value hedges, if any, are recognized in current period earnings.

 

The Company assesses, both at the inception of the hedge and on an ongoing basis, whether derivatives used as hedging instruments are highly effective in offsetting the changes in the fair value or cash flow of the hedged items.  If it is determined that a derivative is not highly effective as a hedge or ceases to be highly effective, the Company discontinues hedge accounting prospectively.

 

Interest Rate Risk Management

 

The Company is exposed to market risk from fluctuations in interest rates.  The Company manages its exposure to interest rate fluctuations through the use of a commercial paper program, interest rate swaps (fair value hedges) and forward-starting interest rate swaps (cash flow hedges).  The Company’s current program relative to interest rate protection contemplates hedging the exposure to changes in the fair value of fixed-rate debt attributable to changes in interest rates.  To do this, the Company uses the following guidelines: (i) use average daily outstanding borrowings to determine annual debt amounts subject to interest rate exposure, (ii) limit the average annual amount subject to interest rate reset and the amount of floating rate debt to a combined total of $2,500 or less, (iii) include no leveraged products, and (iv) hedge without regard to profit motive or sensitivity to current mark-to-market status.

 

The Company reviews compliance with these guidelines annually with the Financial Policy Committee of the Board of Directors.  These guidelines may change as the Company’s needs dictate.

 

59


 

 

Fair Value Interest Rate Swaps

 

The table below summarizes the outstanding interest rate swaps designated as fair value hedges as of January 28, 2017 and January 30, 2016.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2016

 

2015

 

 

    

Pay

    

Pay

    

Pay

    

Pay

 

 

 

 Floating

 

 Fixed

 

 Floating

 

 Fixed

 

Notional amount

 

$

100

 

$

 

$

100

 

$

 

Number of contracts

 

 

2

 

 

 

 

2

 

 

 

Duration in years

 

 

1.92

 

 

 

 

2.92

 

 

 

Average variable rate

 

 

6.37

%  

 

 

 

6.00

%  

 

 

Average fixed rate

 

 

6.80

%  

 

 

 

6.80

%  

 

 

Maturity

 

 

December 2018

 

 

 

 

 

December 2018

 

 

 

 

 

The gain or loss on these derivative instruments as well as the offsetting gain or loss on the hedged items attributable to the hedged risk is recognized in current earnings as “Interest expense.”  These gains and losses for 2016 and 2015 were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year-To-Date

 

 

 

January 28, 2017

 

January 30, 2016

 

 

    

Gain/(Loss) on

    

Gain/(Loss) on

    

Gain/(Loss) on

    

Gain/(Loss) on

 

Consolidated Statements of Operations Classification

 

Swaps

 

Borrowings

 

Swaps

 

Borrowings

 

Interest Expense

 

$

(2)

 

$

2

 

$

1

 

$

(1)

 

 

The following table summarizes the location and fair value of derivative instruments designated as fair value hedges on the Company’s Consolidated Balance Sheets:

 

 

 

 

 

 

 

 

 

 

 

 

 

Asset Derivatives

 

 

 

Fair Value

 

 

 

 

    

January 28,

    

January 30,

    

 

 

Derivatives Designated as Fair Value Hedging Instruments

 

2017

 

2016

 

Balance Sheet Location

 

Interest Rate Hedges

 

$

(1)

 

$

1

 

(Other long-term liabilities)/Other assets

 

 

Cash Flow Forward-Starting Interest Rate Swaps

 

As of January 28, 2017, the Company had eleven forward-starting interest rate swap agreements with maturity dates of August 2017 with an aggregate notional amount totaling $600, nine forward-starting interest rate swap agreements with maturity dates of January 2019 with an aggregate notional amount totaling $750 and five forward-starting interest rate swap agreements with maturity dates of January 2020 with an aggregate notional amount totaling $250.  A forward-starting interest rate swap is an agreement that effectively hedges the variability in future benchmark interest payments attributable to changes in interest rates on the forecasted issuance of fixed-rate debt.  The Company entered into these forward-starting interest rate swaps in order to lock in fixed interest rates on its forecasted issuance of debt in August 2017, January 2019 and January 2020.  Accordingly, the forward-starting interest rate swaps were designated as cash-flow hedges as defined by GAAP.  As of January 28, 2017, the fair value of the interest rate swaps was recorded in other assets and other long-term liabilities for $67 and $7, respectively, and accumulated other comprehensive income for $38 net of tax.

 

As of January 30, 2016, the Company had seven forward-starting interest rate swap agreements with maturity dates of August 2017 with an aggregate notional amount totaling $400. The Company entered into these forward-starting interest rate swaps in order to lock in fixed interest rates on its forecasted issuances of debt in August 2017.  Accordingly, the forward-starting interest rate swaps were designated as cash-flow hedges as defined by GAAP.  As of January 30, 2016, the fair value of the interest rate swaps was recorded in other long-term liabilities for $27 and accumulated other comprehensive loss for $17 net of tax.

 

60


 

 

During 2016, the Company terminated forward-starting interest rate swaps with maturity dates of October 2016, with an aggregate notional amount totaling $300.  These forward-starting interest rate swap agreements were hedging the variability in future benchmark interest payments attributable to changing interest rates on the forecasted issuance of fixed-rate debt issued during the third quarter of 2016.  Since these forward-starting interest rate swap agreements were classified as cash flow hedges, the unamortized loss of $13, $8 net of tax, has been deferred in AOCI and will be amortized to earnings as the interest payments are made.

 

During 2015, the Company terminated eight forward-starting interest rate swap agreements with maturity dates of October 2015 and January 2016 with an aggregate notional amount totaling $600.  Four of these forward-starting interest rate swap agreements, with an aggregate notional amount totaling $300, were entered into and terminated in 2015.  These forward-starting interest rate swap agreements were hedging the variability in future benchmark interest payments attributable to changing interest rates on the forecasted issuance of fixed-rate debt issued in 2015.  As discussed in Note 6, the Company issued $1,100 of senior notes in 2015.  Since these forward-starting interest rate swap agreements were classified as cash flow hedges, the unamortized loss of $17, $11 net of tax, has been deferred in AOCI and will be amortized to earnings as the interest payments are made.

 

The following table summarizes the effect of the Company’s derivative instruments designated as cash flow hedges for 2016 and 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year-To-Date

 

 

 

 

 

Amount of Gain/(Loss) in

 

Amount of Gain/(Loss)

 

 

 

 

 

AOCI on Derivative

 

Reclassified from AOCI into

 

Location of Gain/(Loss)

 

Derivatives in Cash Flow Hedging

 

(Effective Portion)

 

Income (Effective Portion)

 

Reclassified into Income

 

Relationships

    

2016

    

2015

    

2016

    

2015

    

(Effective Portion)

 

Forward-Starting Interest Rate Swaps, net of tax*

 

$

(2)

 

$

(51)

 

$

(2)

 

$

(1)

 

Interest expense

 

 


* The amounts of Gain/(Loss) in AOCI on derivatives include unamortized proceeds and payments from forward-starting interest rate swaps once classified as cash flow hedges that were terminated prior to end of 2016 and 2015, respectively. 

 

For the above fair value and cash flow interest rate swaps, the Company has entered into International Swaps and Derivatives Association master netting agreements that permit the net settlement of amounts owed under their respective derivative contracts.  Under these master netting agreements, net settlement generally permits the Company or the counterparty to determine the net amount payable for contracts due on the same date and in the same currency for similar types of derivative transactions.  These master netting agreements generally also provide for net settlement of all outstanding contracts with a counterparty in the case of an event of default or a termination event.

 

Collateral is generally not required of the counterparties or of the Company under these master netting agreements. As of January 28, 2017 and January 30, 2016, no cash collateral was received or pledged under the master netting agreements.

 

61


 

 

The effect of the net settlement provisions of these master netting agreements on the Company’s derivative balances upon an event of default or termination event is as follows as of January 28, 2017 and January 30, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Amounts Not Offset in the

 

 

 

 

 

 

 

 

 

 

 

 

Net Amount

 

Balance Sheet

 

 

 

 

 

    

Gross Amount

    

Gross Amounts Offset

    

Presented in the

    

Financial

    

 

 

    

 

 

 

January 28, 2017

 

Recognized

 

in the Balance Sheet

 

Balance Sheet

 

Instruments

 

Cash Collateral

 

Net Amount

 

Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash Flow Forward-Starting Interest Rate Swaps

 

$

67

 

$

 —

 

$

67

 

$

 —

 

$

 —

 

$

67

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Value Interest Rate Swaps

 

 

1

 

 

 —

 

 

1

 

 

 —

 

 

 —

 

 

1

 

Cash Flow Forward-Starting Interest Rate Swaps

 

 

7

 

 

 —

 

 

7

 

 

 —

 

 

 —

 

 

7

 

Total

 

$

8

 

$

 —

 

$

8

 

$

 —

 

$

 —

 

$

8

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Amounts Not Offset in the

 

 

 

 

 

 

 

 

 

 

 

 

Net Amount

 

Balance Sheet

 

 

 

 

 

    

Gross Amount

    

Gross Amounts Offset

    

Presented in the

    

Financial

    

 

 

    

 

 

 

January 30, 2016

 

Recognized

 

in the Balance Sheet

 

Balance Sheet

 

Instruments

 

Cash Collateral

 

Net Amount

 

Assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Value Interest Rate Swaps

 

$

1

 

$

 —

 

$

1

 

$

 —

 

$

 —

 

$

1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash Flow Forward-Starting Interest Rate Swaps

 

$

27

 

$

 —

 

$

27

 

$

 —

 

$

 —

 

$

27

 

 

 

 

8. FAIR  VALUE  MEASUREMENTS

 

GAAP establishes a fair value hierarchy that prioritizes the inputs used to measure fair value.  The three levels of the fair value hierarchy defined in the standards are as follows:

 

Level 1 - Quoted prices are available in active markets for identical assets or liabilities;

 

Level 2 - Pricing inputs are other than quoted prices in active markets included in Level 1, which are either directly or indirectly observable;

 

Level 3 - Unobservable pricing inputs in which little or no market activity exists, therefore requiring an entity to develop its own assumptions about the assumptions that market participants would use in pricing an asset or liability.

 

62


 

 

For items carried at (or adjusted to) fair value in the consolidated financial statements, the following tables summarize the fair value of these instruments at January 28, 2017 and January 30, 2016:

 

January 28, 2017 Fair Value Measurements Using

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

Quoted Prices in

    

 

 

    

 

 

    

 

 

 

 

 

Active Markets

 

 

 

 

Significant

 

 

 

 

 

 

for Identical

 

Significant Other

 

Unobservable

 

 

 

 

 

 

Assets

 

Observable Inputs

 

Inputs

 

 

 

 

 

 

(Level 1)

 

(Level 2)

 

(Level 3)

 

Total

 

Trading Securities

 

$

50

 

$

 —

 

$

 —

 

$

50

 

Long-Lived Assets

 

 

 —

 

 

 —

 

 

3

 

 

3

 

Interest Rate Hedges

 

 

 —

 

 

59

 

 

 —

 

 

59

 

Total

 

$

50

 

$

59

 

$

3

 

$

112

 

 

January 30, 2016 Fair Value Measurements Using

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

Quoted Prices in

    

 

 

    

 

 

    

 

 

 

 

 

Active Markets

 

 

 

 

Significant

 

 

 

 

 

 

for Identical

 

Significant Other

 

Unobservable

 

 

 

 

 

 

Assets

 

Observable Inputs

 

Inputs

 

 

 

 

 

 

(Level 1)

 

(Level 2)

 

(Level 3)

 

Total

 

Trading Securities

 

$

48

 

$

 —

 

$

 —

 

$

48

 

Available-For-Sale Securities

 

 

41

 

 

 —

 

 

 —

 

 

41

 

Long-Lived Assets

 

 

 —

 

 

 —

 

 

7

 

 

7

 

Interest Rate Hedges

 

 

 —

 

 

(26)

 

 

 —

 

 

(26)

 

Total

 

$

89

 

$

(26)

 

$

7

 

$

70

 

 

In the first two quarters of 2016, the Company sold all available-for-sale securities for a gain of $27, which was recorded to “Operating, general and administrative” within the Consolidated Statements of Operations. In 2015, unrealized gains on the Level 1 available-for-sale securities totaled $5.

 

The Company values interest rate hedges using observable forward yield curves.  These forward yield curves are classified as Level 2 inputs.

 

Fair value measurements of non-financial assets and non-financial liabilities are primarily used in the impairment analysis of goodwill, other intangible assets, long-lived assets and in the valuation of store lease exit costs.  The Company reviews goodwill and indefinite-lived intangible assets for impairment annually, during the fourth quarter of each fiscal year, and as circumstances indicate the possibility of impairment.  See Note 3 for further discussion related to the Company’s carrying value of goodwill.  Long-lived assets and store lease exit costs were measured at fair value on a nonrecurring basis using Level 3 inputs as defined in the fair value hierarchy.  See Note 1 for further discussion of the Company’s policies and recorded amounts for impairments of long-lived assets and valuation of store lease exit costs. In 2016, long-lived assets with a carrying amount of $29 were written down to their fair value of $3, resulting in an impairment charge of $26. In 2015, long-lived assets with a carrying amount of $53 were written down to their fair value of $7, resulting in an impairment charge of $46. 

 

Mergers are accounted for using the acquisition method of accounting, which requires that the purchase price paid for an acquisition be allocated to the assets and liabilities acquired based on their estimated fair values as of the effective date of the acquisition, with the excess of the purchase price over the net assets being recorded as goodwill. See Note 2 for further discussion related to accounting for mergers.

 

63


 

 

Fair Value of Other Financial Instruments

 

Current and Long-term Debt

 

The fair value of the Company’s long-term debt, including current maturities, was estimated based on the quoted market prices for the same or similar issues adjusted for illiquidity based on available market evidence.  If quoted market prices were not available, the fair value was based upon the net present value of the future cash flow using the forward interest rate yield curve in effect at respective year-ends.  At January 28, 2017, the fair value of total debt was $13,905 compared to a carrying value of $13,315. At January 30, 2016, the fair value of total debt was $12,344 compared to a carrying value of $11,396.

 

Cash and Temporary Cash Investments, Store Deposits In-Transit, Receivables, Prepaid and Other Current Assets, Trade Accounts Payable, Accrued Salaries and Wages and Other Current Liabilities

 

The carrying amounts of these items approximated fair value.

 

Other Assets

 

During the second quarter of 2016, the Company entered into agreements with a third party.  As part of the consideration for entering these agreements, the Company received a financial instrument that derives its value from the third party’s business operations.  The Company used the Monte-Carlo simulation method to determine the fair value of this financial instrument.  The Monte-Carlo simulation is a generally accepted statistical technique used to generate a defined number of valuation paths in order to develop a reasonable estimate of the fair value of this financial instrument.  The assumptions used in the Monte-Carlo simulation are classified as Level 3 inputs.  The financial instrument was valued at $335 and recorded in “Other assets” within the Consolidated Balance Sheets.  As the financial instrument was obtained in exchange for certain obligations, the Company also recognized offsetting deferred revenue liabilities in “Other current liabilities” and “Other long-term liabilities” within the Consolidated Balance Sheets.  The deferred revenue will be amortized to “Sales” within the Consolidated Statements of Operations over the term of the agreements.  Post inception, the Company received a distribution of $59, which was recorded as a reduction of the cost method investment.

 

The fair values of certain investments recorded in “other assets” within the Consolidated Balance Sheets were estimated based on quoted market prices for those or similar investments, or estimated cash flows, if appropriate.  At January 28, 2017 and January 30, 2016, the carrying and fair value of long-term investments for which fair value is determinable was $151 and $128 respectively. At January 28, 2017 and January 30, 2016, the carrying value of notes receivable for which fair value is determinable was $182 and $145, respectively.

 

64


 

 

9. ACCUMULATED  OTHER  COMPREHENSIVE  INCOME (LOSS)

 

The following table represents the changes in AOCI by component for the years ended January 30, 2016 and January 28, 2017:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension and

 

 

 

 

 

 

Cash Flow

 

 

 

 

Postretirement

 

 

 

 

 

 

Hedging

 

Available for sale

 

Defined Benefit

 

 

 

 

 

    

Activities (1)

    

Securities (1)

    

Plans (1)

    

Total (1)

 

Balance at January 31, 2015

 

$

(49)

 

$

17

 

$

(780)

 

$

(812)

 

OCI before reclassifications(2)

 

 

(3)

 

 

3

 

 

78

 

 

78

 

Amounts reclassified out of AOCI(3)

 

 

1

 

 

 —

 

 

53

 

 

54

 

Net current-period OCI

 

 

(2)

 

 

3

 

 

131

 

 

132

 

Balance at January 30, 2016

 

$

(51)

 

$

20

 

$

(649)

 

$

(680)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at January 30, 2016

 

$

(51)

 

$

20

 

$

(649)

 

$

(680)

 

OCI before reclassifications(2)

 

 

47

 

 

(6)

 

 

(97)

 

 

(56)

 

Amounts reclassified out of AOCI(3)

 

 

2

 

 

(14)

 

 

33

 

 

21

 

Net current-period OCI

 

 

49

 

 

(20)

 

 

(64)

 

 

(35)

 

Balance at January 28, 2017

 

$

(2)

 

$

 —

 

$

(713)

 

$

(715)

 


(1)

All amounts are net of tax.

(2)

Net of tax of $(2), $2 and $45 for cash flow hedging activities, available for sale securities and pension and postretirement defined benefit plans, respectively, as of January 30, 2016.  Net of tax of $ 27 ,   $( 3) and $ (59) for cash flow hedging activities, available for sale securities and pension and postretirement defined benefit plans, respectively, as of January 28, 2017.

(3)

Net of tax of $32 for pension and postretirement defined benefit plans, as of January 30, 2016.  Net of tax of $ 20 and $(13) for pension and postretirement defined benefit plans and available for sale securities, respectively, as of January 28, 2017.

 

65


 

 

The following table represents the items reclassified out of AOCI and the related tax effects for the years ended January 28, 2017, January 30, 2016 and January 31, 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the year ended

 

For the year ended

 

For the year ended

 

 

    

 

January 28, 2017

    

January 30, 2016

    

January 31, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash flow hedging activity items

 

 

 

 

 

 

 

 

 

 

 

Amortization of gains and losses on cash flow hedging activities(1)

 

 

$

2

 

$

1

 

$

1

 

Tax expense

 

 

 

 —

 

 

 —

 

 

 —

 

Net of tax

 

 

 

2

 

 

1

 

 

1

 

 

 

 

 

 

 

 

 

 

 

 

 

Available for sale security items

 

 

 

 

 

 

 

 

 

 

 

Realized gains on available for sale securities(2)

 

 

 

(27)

 

 

 —

 

 

 —

 

Tax expense

 

 

 

13

 

 

 —

 

 

 —

 

Net of tax

 

 

 

(14)

 

 

 —

 

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension and postretirement defined benefit plan items

 

 

 

 

 

 

 

 

 

 

 

Amortization of amounts included in net periodic pension expense(3)

 

 

 

53

 

 

85

 

 

35

 

Tax expense

 

 

 

(20)

 

 

(32)

 

 

(13)

 

Net of tax

 

 

 

33

 

 

53

 

 

22

 

Total reclassifications, net of tax

 

 

$

21

 

$

54

 

$

23

 


(1)

Reclassified from AOCI into interest expense.

(2)

Reclassified from AOCI into operating, general and administrative expense.

(3)

Reclassified from AOCI into merchandise costs and OG&A expense.  These components are included in the computation of net periodic pension costs.

 

 

10. LEASES  AND  LEASE-FINANCED  TRANSACTIONS

 

While the Company’s current strategy emphasizes ownership of store real estate, the Company operates primarily in leased facilities. Lease terms generally range from 10 to 20 years with options to renew for varying terms. Terms of certain leases include escalation clauses, percentage rent based on sales or payment of executory costs such as property taxes, utilities or insurance and maintenance.  Rent expense for leases with escalation clauses or other lease concessions are accounted for on a straight-line basis beginning with the earlier of the lease commencement date or the date the Company takes possession.  Portions of certain properties are subleased to others for periods generally ranging from one to 20 years.

 

Rent expense (under operating leases) consists of:

 

 

 

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Minimum rentals

 

$

973

 

$

807

 

$

795

 

Contingent payments

 

 

16

 

 

18

 

 

16

 

Tenant income

 

 

(108)

 

 

(102)

 

 

(104)

 

 

 

 

 

 

 

 

 

 

 

 

Total rent expense

 

$

881

 

$

723

 

$

707

 

 

66


 

 

Minimum annual rentals and payments under capital leases and lease-financed transactions for the five years subsequent to 2016 and in the aggregate are:

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

 

    

 

 

    

Lease-

 

 

 

Capital

 

Operating

 

Financed

 

 

 

Leases

 

Leases

 

Transactions

 

2017

 

$

92

 

$

986

 

$

7

 

2018

 

 

76

 

 

932

 

 

8

 

2019

 

 

71

 

 

856

 

 

8

 

2020

 

 

66

 

 

759

 

 

9

 

2021

 

 

64

 

 

656

 

 

9

 

Thereafter

 

 

647

 

 

3,992

 

 

53

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

1,016

 

$

8,181

 

$

94

 

 

 

 

 

 

 

 

 

 

 

 

Less estimated executory costs included in capital leases

 

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net minimum lease payments under capital leases

 

 

1,016

 

 

 

 

 

 

 

Less amount representing interest

 

 

348

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Present value of net minimum lease payments under capital leases

 

$

668

 

 

 

 

 

 

 

 

Total future minimum rentals under noncancellable subleases at January 28, 2017 were $268.

 

11. EARNINGS  PER  COMMON SHARE

 

Net earnings attributable to The Kroger Co. per basic common share equals net earnings attributable to The Kroger Co. less income allocated to participating securities divided by the weighted average number of common shares outstanding.  Net earnings attributable to The Kroger Co. per diluted common share equals net earnings attributable to The Kroger Co. less income allocated to participating securities divided by the weighted average number of common shares outstanding, after giving effect to dilutive stock options.  The following table provides a reconciliation of net earnings attributable to The Kroger Co. and shares used in calculating net earnings attributable to The Kroger Co. per basic common share to those used in calculating net earnings attributable to The Kroger Co. per diluted common share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the year ended

 

For the year ended

 

For the year ended

 

 

 

January 28, 2017

 

January 30, 2016

 

January 31, 2015

 

 

 

 

 

 

 

 

Per

 

 

 

 

 

 

Per

 

 

 

 

 

 

Per

 

 

 

Earnings

 

Shares

 

Share

 

Earnings

 

Shares

 

Share

 

Earnings

 

Shares

 

Share

 

(in millions, except per share amounts)

 

(Numerator)

 

(Denominator)

 

Amount

 

(Numerator)

 

(Denominator)

 

Amount

 

(Numerator)

 

(Denominator)

 

Amount

 

Net earnings attributable to The Kroger Co. per basic common share

 

$

1,959

 

942

 

$

2.08

 

$

2,021

 

966

 

$

2.09

 

$

1,711

 

981

 

$

1.74

 

Dilutive effect of stock options

 

 

 

 

16

 

 

 

 

 

 

 

14

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per diluted common share

 

$

1,959

 

958

 

$

2.05

 

$

2,021

 

980

 

$

2.06

 

$

1,711

 

993

 

$

1.72

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Company had combined undistributed and distributed earnings to participating securities totaling $16, $18 and $17 in 2016, 2015 and 2014, respectively.

 

The Company had options outstanding for approximately 7.1 million, 1.9 million and 4.6 million, respectively, for the years ended January 28, 2017, January 30, 2016 and January 31, 2015, which were excluded from the computations of net earnings per diluted common share because their inclusion would have had an anti-dilutive effect on net earnings per diluted share.

67


 

 

 

12. STOCK OPTION PLANS

 

The Company grants options for common shares (“stock options”) to employees under various plans at an option price equal to the fair market value of the stock at the date of grant.  The Company accounts for stock options under the fair value recognition provisions Under this method, the Company recognizes compensation expense for all share-based payments granted.  The Company recognizes share-based compensation expense, net of an estimated forfeiture rate, over the requisite service period of the award.  Excess tax benefits related to share-based payments are recognized in the provision for income taxes. Equity awards may be made at one of four meetings of its Board of Directors occurring shortly after the Company’s release of quarterly earnings.  The 2016 primary grant was made in conjunction with the June meeting of the Company’s Board of Directors. Certain changes to the stock option compensation strategy were put into effect in 2015, which resulted in a reduction to the number of stock options granted in 2016 and 2015, compared to 2014.

 

Stock options typically expire 10 years from the date of grant.  Stock options vest between one and five years from the date of grant.  At January 28, 2017, approximately 33 million common shares were available for future option grants under the 2008, 2011 and 2014 Long-Term Incentive Plans (the “Plans”).

 

In addition to the stock options described above, the Company awards restricted stock to employees and non-employee directors under various plans.  The restrictions on these awards generally lapse between one and five years from the date of the awards.  The Company records expense for restricted stock awards in an amount equal to the fair market value of the underlying shares on the grant date of the award, over the period the awards lapse.  As of January 28, 2017, approximately 17 million common shares were available under the Plans for future restricted stock awards or shares issued to the extent performance criteria are achieved.  The Company has the ability to convert shares available for stock options under the Plans to shares available for restricted stock awards.  Under the Plans, four shares available for option awards can be converted into one share available for restricted stock awards.

 

All awards become immediately exercisable upon certain changes of control of the Company.

 

Stock Options

 

Changes in options outstanding under the stock option plans are summarized below:

 

 

 

 

 

 

 

 

 

    

Shares

    

Weighted-

 

 

 

subject

 

average

 

 

 

to option

 

exercise

 

 

 

(in millions)

 

price

 

Outstanding, year-end 2013

 

43.3

 

$

12.83

 

Granted

 

8.4

 

$

24.71

 

Exercised

 

(10.3)

 

$

11.56

 

Canceled or Expired

 

(0.6)

 

$

15.56

 

 

 

 

 

 

 

 

Outstanding, year-end 2014

 

40.8

 

$

15.56

 

Granted

 

3.4

 

$

38.40

 

Exercised

 

(8.9)

 

$

13.54

 

Canceled or Expired

 

(0.4)

 

$

19.98

 

 

 

 

 

 

 

 

Outstanding, year-end 2015

 

34.9

 

$

18.26

 

Granted

 

4.8

 

$

37.10

 

Exercised

 

(4.9)

 

$

14.20

 

Canceled or Expired

 

(0.5)

 

$

28.35

 

 

 

 

 

 

 

 

Outstanding, year-end 2016

 

34.3

 

$

21.32

 

 

68


 

 

A summary of options outstanding, exercisable and expected to vest at January 28, 2017 follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted-average

 

 

 

 

Aggregate

 

 

 

 

 

remaining

 

Weighted-average

 

 intrinsic 

 

 

    

 Number of shares

    

contractual life

    

exercise price

    

value

 

 

 

(in millions)

 

(in years)

 

 

 

 

(in millions)

 

Options Outstanding

 

34.3

 

6.04

 

$

21.32

 

447

 

Options Exercisable

 

21.7

 

4.84

 

$

16.00

 

381

 

Options Expected to Vest

 

12.3

 

8.09

 

$

30.45

 

65

 

 

Restricted stock

 

Changes in restricted stock outstanding under the restricted stock plans are summarized below:

 

 

 

 

 

 

 

 

 

    

Restricted

    

 

 

 

 

 

shares

 

Weighted-average

 

 

 

outstanding

 

grant-date

 

 

 

(in millions)

 

fair value

 

Outstanding, year-end 2013

 

9.6

 

$

16.16

 

Granted

 

6.1

 

$

24.76

 

Lapsed

 

(5.2)

 

$

16.52

 

Canceled or Expired

 

(0.3)

 

$

18.67

 

 

 

 

 

 

 

 

Outstanding, year-end 2014

 

10.2

 

$

21.04

 

Granted

 

3.2

 

$

38.34

 

Lapsed

 

(5.4)

 

$

21.49

 

Canceled or Expired

 

(0.4)

 

$

22.80

 

 

 

 

 

 

 

 

Outstanding, year-end 2015

 

7.6

 

$

28.01

 

Granted

 

3.6

 

$

37.03

 

Lapsed

 

(3.5)

 

$

28.52

 

Canceled or Expired

 

(0.3)

 

$

30.70

 

 

 

 

 

 

 

 

Outstanding, year-end 2016

 

7.4

 

$

32.09

 

 

The weighted-average grant date fair value of stock options granted during 2016, 2015 and 2014 was $7.48, $9.78 and $5.98, respectively.  The fair value of each stock option grant was estimated on the date of grant using the Black-Scholes option-pricing model, based on the assumptions shown in the table below.  The Black-Scholes model utilizes accounting judgment and financial estimates, including the term option holders are expected to retain their stock options before exercising them, the volatility of the Company’s share price over that expected term, the dividend yield over the term and the number of awards expected to be forfeited before they vest.  Using alternative assumptions in the calculation of fair value would produce fair values for stock option grants that could be different than those used to record stock-based compensation expense in the Consolidated Statements of Operations.  The decrease in the fair value of the stock options granted during 2016, compared to 2015, resulted primarily from a decrease in the Company’s share price, which increased the expected dividend yield, and decreases in the weighted average expected volatitity and the weighted average risk free discount rate.  The increase in the fair value of the stock options granted during 2015, compared to 2014, resulted primarily from an increase in the Company’s share price, which decreased the expected dividend yield, and an increase in the weighted average risk-free interest rate.

 

The following table reflects the weighted-average assumptions used for grants awarded to option holders:

 

 

 

 

 

 

 

 

 

 

    

2016

    

2015

    

2014

 

Weighted average expected volatility

 

21.40

%  

24.07

%  

25.29

%  

Weighted average risk-free interest rate

 

1.29

%  

2.12

%  

2.06

%  

Expected dividend yield

 

1.40

%  

1.20

%  

1.51

%  

Expected term (based on historical results)

 

7.2

years

7.2

years

6.6

years

 

69


 

 

The weighted-average risk-free interest rate was based on the yield of a treasury note as of the grant date, continuously compounded, which matures at a date that approximates the expected term of the options.  The dividend yield was based on our history and expectation of dividend payouts.  Expected volatility was determined based upon historical stock volatilities; however, implied volatility was also considered.  Expected term was determined based upon historical exercise and cancellation experience.

 

Total stock compensation recognized in 2016, 2015 and 2014 was $141, $165 and $155, respectively.  Stock option compensation recognized in 2016, 2015 and 2014 was $28, $31 and $32, respectively. Restricted shares compensation recognized in 2016, 2015 and 2014 was $113, $134 and $123, respectively.

 

The total intrinsic value of stock options exercised was $105, $217 and $142 in 2016, 2015 and 2014, respectively.  The total amount of cash received in 2016 by the Company from the exercise of stock options granted under share-based payment arrangements was $68.  As of January 28, 2017, there was $218 of total unrecognized compensation expense remaining related to non-vested share-based compensation arrangements granted under Plans.  This cost is expected to be recognized over a weighted-average period of approximately two years.  The total fair value of options that vested was $28, $33 and $26 in 2016, 2015 and 2014, respectively.

 

Shares issued as a result of stock option exercises may be newly issued shares or reissued treasury shares.  Proceeds received from the exercise of options, and the related tax benefit, may be utilized to repurchase the Company’s common shares under a stock repurchase program adopted by the Company’s Board of Directors.  During 2016, the Company repurchased approximately three million common shares in such a manner.

 

13. COMMITMENTS AND  CONTINGENCIES

 

The Company continuously evaluates contingencies based upon the best available evidence.

 

The Company believes that allowances for loss have been provided to the extent necessary and that its assessment of contingencies is reasonable.  To the extent that resolution of contingencies results in amounts that vary from the Company’s estimates, future earnings will be charged or credited.

 

The principal contingencies are described below:

 

Insurance — The Company’s workers’ compensation risks are self-insured in most states. In addition, other workers’ compensation risks and certain levels of insured general liability risks are based on retrospective premium plans, deductible plans, and self-insured retention plans.  The liability for workers’ compensation risks is accounted for on a present value basis.  Actual claim settlements and expenses incident thereto may differ from the provisions for loss.  Property risks have been underwritten by a subsidiary and are all reinsured with unrelated insurance companies.  Operating divisions and subsidiaries have paid premiums, and the insurance subsidiary has provided loss allowances, based upon actuarially determined estimates.

 

Litigation — Various claims and lawsuits arising in the normal course of business, including suits charging violations of certain antitrust, wage and hour, or civil rights laws, as well as product liability cases, are pending against the Company.  Some of these suits purport or have been determined to be class actions and/or seek substantial damages.  Any damages that may be awarded in antitrust cases will be automatically trebled.  Although it is not possible at this time to evaluate the merits of all of these claims and lawsuits, nor their likelihood of success, the Company is of the belief that any resulting liability will not have a material effect on the Company’s financial position, results of operations, or cash flows.

 

The Company continually evaluates its exposure to loss contingencies arising from pending or threatened litigation and believes it has made provisions where it is reasonably possible to estimate and when an adverse outcome is probable.  Nonetheless, assessing and predicting the outcomes of these matters involves substantial uncertainties.  Management currently believes that the aggregate range of loss for the Company’s exposure is not material to the Company.  It remains possible that despite management’s current belief, material differences in actual outcomes or changes in management’s evaluation or predictions could arise that could have a material adverse effect on the Company’s financial condition, results of operations, or cash flows.

 

70


 

 

Assignments — The Company is contingently liable for leases that have been assigned to various third parties in connection with facility closings and dispositions.  The Company could be required to satisfy the obligations under the leases if any of the assignees is unable to fulfill its lease obligations.  Due to the wide distribution of the Company’s assignments among third parties, and various other remedies available, the Company believes the likelihood that it will be required to assume a material amount of these obligations is remote.

 

14. STOCK

 

Preferred Shares

 

The Company has authorized five million shares of voting cumulative preferred shares; two million shares were available for issuance at January 28, 2017.  The shares have a par value of $100 per share and are issuable in series.

 

Common Shares

 

The Company has authorized two billion common shares, $1 par value per share.

 

On June 25, 2015, the Company’s Board of Directors approved a two-for-one stock split of The Kroger Co.’s common shares in the form of a 100% stock dividend, which was effective July 13, 2015.  All share and per share amounts in the Company’s Consolidated Financial Statements and related notes have been retroactively adjusted to reflect the stock split for all periods presented.

 

Common Stock Repurchase Program

 

The Company maintains stock repurchase programs that comply with Rule 10b5-1 of the Securities Exchange Act of 1934 to allow for the orderly repurchase of The Kroger Co. common shares, from time to time.  The Company made open market purchases totaling $1,661, $500 and $1,129 under these repurchase programs in 2016, 2015 and 2014, respectively.  In addition to these repurchase programs, in December 1999, the Company began a program to repurchase common shares to reduce dilution resulting from its employee stock option plans.  This program is solely funded by proceeds from stock option exercises and the related tax benefit.  The Company repurchased approximately $105, $203 and $154 under the stock option program during 2016, 2015 and 2014, respectively.

 

15. COMPANY- SPONSORED BENEFIT PLANS

 

The Company administers non-contributory defined benefit retirement plans for some non-union employees and union-represented employees as determined by the terms and conditions of collective bargaining agreements.  These include several qualified pension plans (the “Qualified Plans”) and non-qualified pension plans (the “Non-Qualified Plans”).  The Non-Qualified Plans pay benefits to any employee that earns in excess of the maximum allowed for the Qualified Plans by Section 415 of the Internal Revenue Code.  The Company only funds obligations under the Qualified Plans.  Funding for the Company-sponsored pension plans is based on a review of the specific requirements and on evaluation of the assets and liabilities of each plan.

 

In addition to providing pension benefits, the Company provides certain health care benefits for retired employees.  The majority of the Company’s employees may become eligible for these benefits if they reach normal retirement age while employed by the Company.  Funding of retiree health care benefits occurs as claims or premiums are paid.

 

The Company recognizes the funded status of its retirement plans on the Consolidated Balance Sheets.  Actuarial gains or losses, prior service costs or credits and transition obligations that have not yet been recognized as part of net periodic benefit cost are required to be recorded as a component of AOCI.  All plans are measured as of the Company’s fiscal year end.

 

71


 

 

Amounts recognized in AOCI as of January 28, 2017 and January 30, 2016 consists of the following (pre-tax):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension Benefits

 

Other Benefits

 

Total

 

 

    

2016

    

2015

    

2016

    

2015

    

2016

    

2015

 

Net actuarial loss (gain)

 

$

1,308

 

$

1,213

 

$

(120)

 

$

(121)

 

$

1,188

 

$

1,092

 

Prior service cost (credit)

 

 

 —

 

 

1

 

 

(58)

 

 

(66)

 

 

(58)

 

 

(65)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

1,308

 

$

1,214

 

$

(178)

 

$

(187)

 

$

1,130

 

$

1,027

 

 

Amounts in AOCI expected to be recognized as components of net periodic pension or postretirement benefit costs in the next fiscal year are as follows (pre-tax):

 

 

 

 

 

 

 

 

 

 

 

 

 

    

Pension Benefits

    

Other Benefits

    

Total

 

 

 

2017

 

2017

 

2017

 

Net actuarial loss (gain)

 

$

85

 

$

(9)

 

$

76

 

Prior service credit

 

 

 —

 

 

(8)

 

 

(8)

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

85

 

$

(17)

 

$

68

 

 

Other changes recognized in other comprehensive income in 2016, 2015 and 2014 were as follows (pre-tax):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension Benefits

 

Other Benefits

 

Total

 

 

    

2016

    

2015

    

2014

    

2016

    

2015

    

2014

    

2016

    

2015

    

2014

 

Incurred net actuarial loss (gain)

 

$

165

 

$

(83)

 

$

590

 

$

(9)

 

$

(39)

 

$

14

 

$

156

 

$

(122)

 

$

604

 

Amortization of prior service credit

 

 

 

 

 

 

 

 

8

 

 

11

 

 

7

 

 

8

 

 

11

 

 

7

 

Amortization of net actuarial gain (loss)

 

 

(71)

 

 

(102)

 

 

(50)

 

 

10

 

 

7

 

 

8

 

 

(61)

 

 

(95)

 

 

(42)

 

Other

 

 

 

 

 

 

 

 

 —

 

 

(2)

 

 

(47)

 

 

 —

 

 

(2)

 

 

(47)

 

Total recognized in other comprehensive income (loss)

 

 

94

 

 

(185)

 

 

540

 

 

9

 

 

(23)

 

 

(18)

 

 

103

 

 

(208)

 

 

522

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total recognized in net periodic benefit cost and other comprehensive income

 

$

188

 

$

(82)

 

$

595

 

$

10

 

$

(22)

 

$

(9)

 

$

198

 

$

(104)

 

$

586

 

 

72


 

 

Information with respect to change in benefit obligation, change in plan assets, the funded status of the plans recorded in the Consolidated Balance Sheets, net amounts recognized at the end of fiscal years, weighted average assumptions and components of net periodic benefit cost follow:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension Benefits

 

 

 

 

 

 

 

 

 

Qualified Plans

 

Non-Qualified Plans

 

Other Benefits

 

 

    

2016

    

2015

    

2016

    

2015

    

2016

    

2015

 

Change in benefit obligation:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Benefit obligation at beginning of fiscal year

 

$

3,922

 

$

4,102

 

$

290

 

$

304

 

$

244

 

$

275

 

Service cost

 

 

68

 

 

62

 

 

2

 

 

3

 

 

9

 

 

10

 

Interest cost

 

 

177

 

 

154

 

 

14

 

 

12

 

 

10

 

 

9

 

Plan participants’ contributions

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

12

 

 

10

 

Actuarial (gain) loss

 

 

186

 

 

(411)

 

 

29

 

 

(17)

 

 

(9)

 

 

(39)

 

Benefits paid

 

 

(211)

 

 

(162)

 

 

(19)

 

 

(17)

 

 

(23)

 

 

(19)

 

Other

 

 

(2)

 

 

(17)

 

 

 —

 

 

3

 

 

 —

 

 

(2)

 

Assumption of Roundy's benefit obligation

 

 

 —

 

 

194

 

 

 —

 

 

2

 

 

 —

 

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Benefit obligation at end of fiscal year

 

$

4,140

 

$

3,922

 

$

316

 

$

290

 

$

243

 

$

244

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Change in plan assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair value of plan assets at beginning of fiscal year

 

$

3,045

 

$

3,189

 

$

 —

 

$

 —

 

$

 —

 

$

 —

 

Actual return (loss) on plan assets

 

 

302

 

 

(124)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Employer contributions

 

 

3

 

 

5

 

 

19

 

 

17

 

 

11

 

 

9

 

Plan participants’ contributions

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

12

 

 

10

 

Benefits paid

 

 

(211)

 

 

(162)

 

 

(19)

 

 

(17)

 

 

(23)

 

 

(19)

 

Other

 

 

(1)

 

 

(18)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Assumption of Roundy’s plan assets

 

 

 —

 

 

155

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair value of plan assets at end of fiscal year

 

$

3,138

 

$

3,045

 

$

 —

 

$

 —

 

$

 —

 

$

 —

 

Funded status and net liability recognized at end of fiscal year

 

$

(1,002)

 

$

(877)

 

$

(316)

 

$

(290)

 

$

(243)

 

$

(244)

 

 

As of January 28, 2017 and January 30, 2016, other current liabilities include $37 and $31, respectively, of net liability recognized for the above benefit plans.

 

As of January 28, 2017 and January 30, 2016, pension plan assets do not include common shares of The Kroger Co.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension Benefits

 

Other Benefits

 

Weighted average assumptions

    

2016

    

2015

    

2014

    

2016

    

2015

    

2014

 

Discount rate — Benefit obligation

 

4.25

%  

4.62

%  

3.87

%  

4.18

%  

4.44

%  

3.74

%

Discount rate — Net periodic benefit cost

 

4.62

%  

3.87

%  

4.99

%

4.44

%  

3.74

%  

4.68

%

Expected long-term rate of return on plan assets

 

7.40

%  

7.44

%  

7.44

%

 

 

 

 

 

 

Rate of compensation increase — Net periodic benefit cost

 

2.71

%  

2.85

%  

2.86

%

 

 

 

 

 

 

Rate of compensation increase — Benefit obligation

 

2.72

%  

2.71

%  

2.85

%

 

 

 

 

 

 

 

The Company’s discount rate assumptions were intended to reflect the rates at which the pension benefits could be effectively settled.  They take into account the timing and amount of benefits that would be available under the plans.  The Company’s policy is to match the plan’s cash flows to that of a hypothetical bond portfolio whose cash flow from coupons and maturities match the plan’s projected benefit cash flows.  The discount rates are the single rates that produce the same present value of cash flows.  The selection of the 4.25% and 4.18% discount rates as of year-end 2016 for pension and other benefits, respectively, represents the hypothetical bond portfolio using bonds with an AA or better rating constructed with the assistance of an outside consultant.  A 100 basis point increase in the discount rate would decrease the projected pension benefit obligation as of January 31, 2017, by approximately $510.

73


 

 

To determine the expected rate of return on pension plan assets held by the Company for 2016, the Company considered current and forecasted plan asset allocations as well as historical and forecasted rates of return on various asset categories.  In 2016, the Company assumed a pension plan investment return rate to 7.40% compared to 7.44% in 2015 and 2014. The Company pension plan’s average rate of return was 5.81% for the 10 calendar years ended December 31, 2016, net of all investment management fees and expenses.  The value of all investments in the Qualified Plans during the calendar year ending December 31, 2016 increased 6.90%, net of investment management fees and expenses.  For the past 20 years, the Company’s average annual rate of return has been 7.77%.  Based on the above information and forward looking assumptions for investments made in a manner consistent with the Company’s target allocations, the Company believes a 7.40% rate of return assumption is reasonable.

 

The Company calculates its expected return on plan assets by using the market-related value of plan assets.  The market-related value of plan assets is determined by adjusting the actual fair value of plan assets for gains or losses on plan assets.  Gains or losses represent the difference between actual and expected returns on plan investments for each plan year.  Gains or losses on plan assets are recognized evenly over a five year period.  Using a different method to calculate the market-related value of plan assets would provide a different expected return on plan assets.

 

On January 31, 2015, the Company adopted new industry specific mortality tables based on mortality experience and assumptions for generational mortality improvement in determining the Company’s benefit obligations. On January 28, 2017, the Company adopted an updated assumption for generational mortality improvement, based on additional years of published mortality experience.

 

The funded status decreased in 2016, compared to 2015, due primarily to a decrease in the discount rate, partially offset by an increase in plan assets.

 

The following table provides the components of the Company’s net periodic benefit costs for 2016, 2015 and 2014:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pension Benefits

 

 

 

 

 

 

 

 

 

 

 

 

Qualified Plans

 

Non-Qualified Plans

 

Other Benefits

 

 

    

2016

    

2015

    

2014

    

2016

    

2015

    

2014

    

2016

    

2015

    

2014

 

Components of net periodic benefit cost:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Service cost

 

$

68

 

$

62

 

$

48

 

$

2

 

$

3

 

$

3

 

$

9

 

$

10

 

$

11

 

Interest cost

 

 

177

 

 

154

 

 

169

 

 

14

 

 

12

 

 

13

 

 

10

 

 

9

 

 

13

 

Expected return on plan assets

 

 

(238)

 

 

(230)

 

 

(228)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Amortization of:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prior service credit

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(8)

 

 

(11)

 

 

(7)

 

Actuarial (gain) loss

 

 

60

 

 

93

 

 

46

 

 

8

 

 

9

 

 

4

 

 

(10)

 

 

(7)

 

 

(8)

 

Other

 

 

3

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Net periodic benefit cost

 

$

70

 

$

79

 

$

35

 

$

24

 

$

24

 

$

20

 

$

1

 

$

1

 

$

9

 

 

The following table provides the projected benefit obligation (“PBO”), accumulated benefit obligation (“ABO”) and the fair value of plan assets for all Company-sponsored pension plans.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Qualified Plans

 

Non-Qualified Plans

 

 

    

2016

    

2015

    

2016

    

2015

 

PBO at end of fiscal year

 

$

4,140

 

$

3,922

 

$

316

 

$

290

 

ABO at end of fiscal year

 

$

3,997

 

$

3,786

 

$

297

 

$

280

 

Fair value of plan assets at end of year

 

$

3,138

 

$

3,045

 

$

 —

 

$

 —

 

 

74


 

 

The following table provides information about the Company’s estimated future benefit payments.

 

 

 

 

 

 

 

 

 

 

    

Pension

    

Other

 

 

 

Benefits

 

Benefits

 

2017

 

$

246

 

$

14

 

2018

 

$

242

 

$

14

 

2019

 

$

253

 

$

15

 

2020

 

$

265

 

$

17

 

2021

 

$

276

 

$

18

 

2022 —2026

 

$

1,522

 

$

104

 

 

The following table provides information about the weighted average target and actual pension plan asset allocations.

 

 

 

 

 

 

 

 

 

 

 

 

 

Actual

 

 

 

Target allocations

 

 Allocations

 

 

    

2016

    

2016

    

2015

 

Pension plan asset allocation

 

 

 

 

 

 

 

Global equity securities

 

13.2

%  

14.3

%  

14.9

%

Emerging market equity securities

 

5.8

 

6.5

 

5.2

 

Investment grade debt securities

 

8.0

 

12.0

 

11.3

 

High yield debt securities

 

14.0

 

14.2

 

11.9

 

Private equity

 

6.0

 

7.5

 

7.4

 

Hedge funds

 

39.0

 

35.2

 

36.0

 

Real estate

 

3.0

 

2.8

 

3.9

 

Other

 

11.0

 

7.5

 

9.4

 

 

 

 

 

 

 

 

 

Total

 

100.0

%  

100.0

%  

100.0

%

 

Investment objectives, policies and strategies are set by the Pension Investment Committee (the “Committee”).  The primary objectives include holding and investing the assets and distributing benefits to participants and beneficiaries of the pension plans.  Investment objectives have been established based on a comprehensive review of the capital markets and each underlying plan’s current and projected financial requirements.  The time horizon of the investment objectives is long-term in nature and plan assets are managed on a going-concern basis.

 

Investment objectives and guidelines specifically applicable to each manager of assets are established and reviewed annually.  Derivative instruments may be used for specified purposes, including rebalancing exposures to certain asset classes.  Any use of derivative instruments for a purpose or in a manner not specifically authorized is prohibited, unless approved in advance by the Committee.

 

The current target allocations shown represent the 2016 targets that were established in 2015. The Company will rebalance by liquidating assets whose allocation materially exceeds target, if possible, and investing in assets whose allocation is materially below target.  If markets are illiquid, the Company may not be able to rebalance to target quickly.  To maintain actual asset allocations consistent with target allocations, assets are reallocated or rebalanced periodically.  In addition, cash flow from employer contributions and participant benefit payments can be used to fund underweight asset classes and divest overweight asset classes, as appropriate.  The Company expects that cash flow will be sufficient to meet most rebalancing needs.

 

The Company is not required to make any contributions to the Qualified Plans in 2017.  If the Company does make any contributions in 2017, the Company expects these contributions will decrease its required contributions in future years.  Among other things, investment performance of plan assets, the interest rates required to be used to calculate the pension obligations, and future changes in legislation, will determine the amounts of any contributions.  The Company expects 2017 expense for Company-sponsored pension plans to be approximately $110. 

 

Assumed health care cost trend rates have a significant effect on the amounts reported for the health care plans.  The Company used a 6.10% initial health care cost trend rate, which is assumed to decrease on a linear basis to a 4.50%

75


 

 

ultimate health care cost trend rate in 2037, to determine its expense.  A one-percentage-point change in the assumed health care cost trend rates would have the following effects:

 

 

 

 

 

 

 

 

 

 

    

1% Point

    

1% Point

 

 

 

 Increase

 

 Decrease

 

Effect on total of service and interest cost components

 

$

2

 

$

(2)

 

Effect on postretirement benefit obligation

 

$

24

 

$

(21)

 

 

The following tables, which both reflect the adoption of Accounting Standards Update (“ASU”) 2015-07 (see Note 17), set forth by level, within the fair value hierarchy, the Qualified Plans’ assets at fair value as of January 28, 2017 and January 30, 2016:

 

Assets at Fair Value as of January 28, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Quoted Prices in

 

 

 

 

Significant

 

 

 

 

 

 

 

 

Active Markets for

 

Significant Other

 

Unobservable

 

Assets

 

 

 

 

 

 

Identical Assets

 

Observable Inputs

 

Inputs

 

Measured

 

 

 

 

 

    

(Level 1)

    

(Level 2)

    

(Level 3)

    

at NAV

    

Total

 

Cash and cash equivalents

 

$

183

 

$

 —

 

$

 —

 

$

 —

 

$

183

 

Corporate Stocks

 

 

240

 

 

 —

 

 

 —

 

 

 —

 

 

240

 

Corporate Bonds

 

 

 —

 

 

57

 

 

 —

 

 

 —

 

 

57

 

U.S. Government Securities

 

 

 —

 

 

37

 

 

 —

 

 

 —

 

 

37

 

Mutual Funds/Collective Trusts

 

 

122

 

 

4

 

 

 —

 

 

827

 

 

953

 

Partnerships/Joint Ventures

 

 

 —

 

 

156

 

 

 —

 

 

 —

 

 

156

 

Hedge Funds

 

 

 —

 

 

 —

 

 

67

 

 

1,034

 

 

1,101

 

Private Equity

 

 

 —

 

 

 —

 

 

 —

 

 

245

 

 

245

 

Real Estate

 

 

 —

 

 

 —

 

 

65

 

 

22

 

 

87

 

Other

 

 

 —

 

 

35

 

 

 —

 

 

44

 

 

79

 

Total

 

$

545

 

$

289

 

$

132

 

$

2,172

 

$

3,138

 

 

Assets at Fair Value as of January 30, 2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Quoted Prices in

 

 

 

 

Significant

 

 

 

 

 

 

 

 

Active Markets for

 

Significant Other

 

Unobservable

 

Assets

 

 

 

 

 

 

Identical Assets

 

Observable Inputs

 

Inputs

 

Measured

 

 

 

 

 

    

(Level 1)

    

(Level 2)

    

(Level 3)

    

at NAV

    

Total

 

Cash and cash equivalents

 

$

27

 

$

 —

 

$

 —

 

$

 —

 

$

27

 

Corporate Stocks

 

 

231

 

 

 —

 

 

 —

 

 

 —

 

 

231

 

Corporate Bonds

 

 

 —

 

 

76

 

 

 —

 

 

 —

 

 

76

 

U.S. Government Securities

 

 

 —

 

 

75

 

 

 —

 

 

 —

 

 

75

 

Mutual Funds/Collective Trusts

 

 

89

 

 

5

 

 

 —

 

 

896

 

 

990

 

Partnerships/Joint Ventures

 

 

 —

 

 

118

 

 

 —

 

 

 —

 

 

118

 

Hedge Funds

 

 

 —

 

 

 —

 

 

61

 

 

1,043

 

 

1,104

 

Private Equity

 

 

 —

 

 

 —

 

 

 —

 

 

225

 

 

225

 

Real Estate

 

 

 —

 

 

 —

 

 

79

 

 

24

 

 

103

 

Other

 

 

 —

 

 

47

 

 

 —

 

 

49

 

 

96

 

Total

 

$

347

 

$

321

 

$

140

 

$

2,237

 

$

3,045

 

 

76


 

 

For measurements using significant unobservable inputs (Level 3) during 2016 and 2015, a reconciliation of the beginning and ending balances is as follows:

 

 

 

 

 

 

 

 

 

    

Hedge Funds

    

Real Estate

Ending balance, January 31, 2015

 

$

56

 

$

84

Contributions into Fund

 

 

13

 

 

9

Realized gains

 

 

 —

 

 

5

Unrealized (losses) gains

 

 

(1)

 

 

2

Distributions

 

 

(7)

 

 

(21)

 

 

 

 

 

 

 

Ending balance, January 30, 2016

 

 

61

 

 

79

Contributions into Fund

 

 

10

 

 

9

Realized gains

 

 

1

 

 

12

Unrealized losses

 

 

(1)

 

 

(2)

Distributions

 

 

(4)

 

 

(32)

Other

 

 

 —

 

 

(1)

 

 

 

 

 

 

 

Ending balance, January 28, 2017

 

$

67

 

$

65

 

See Note 8 for a discussion of the levels of the fair value hierarchy.  The assets’ fair value measurement level above is based on the lowest level of any input that is significant to the fair value measurement.

 

The following is a description of the valuation methods used for the Qualified Plans’ assets measured at fair value in the above tables:

 

·

Cash and cash equivalents: The carrying value approximates fair value.

 

·

Corporate Stocks: The fair values of these securities are based on observable market quotations for identical assets and are valued at the closing price reported on the active market on which the individual securities are traded.

 

·

Corporate Bonds: The fair values of these securities are primarily based on observable market quotations for similar bonds, valued at the closing price reported on the active market on which the individual securities are traded. When such quoted prices are not available, the bonds are valued using a discounted cash flow approach using current yields on similar instruments of issuers with similar credit ratings, including adjustments for certain risks that may not be observable, such as credit and liquidity risks.

 

·

U.S. Government Securities: Certain U.S. Government securities are valued at the closing price reported in the active market in which the security is traded. Other U.S. government securities are valued based on yields currently available on comparable securities of issuers with similar credit ratings. When quoted prices are not available for similar securities, the security is valued under a discounted cash flow approach that maximizes observable inputs, such as current yields of similar instruments, but includes adjustments for certain risks that may not be observable, such as credit and liquidity risks.

 

·

Mutual Funds/Collective Trusts: The mutual funds/collective trust funds are public investment vehicles valued using a Net Asset Value (NAV) provided by the manager of each fund.  The NAV is based on the underlying net assets owned by the fund, divided by the number of shares outstanding.  The NAV’s unit price is quoted on a private market that is not active.  However, t he NAV is based on the fair value of the underlying securities within the fund, which are traded on an active market, and valued at the closing price reported on the active market on which those individual securities are traded.

 

·

Partnerships/Joint Ventures: These funds consist primarily of U.S. government securities, Corporate Bonds, Corporate Stocks, and derivatives, which are valued in a manner consistent with these types of investments, noted above.

 

77


 

 

·

Hedge Funds: Hedge funds are private investment vehicles valued using a Net Asset Value (NAV) provided by the manager of each fund.  The NAV is based on the underlying net assets owned by the fund, divided by the number of shares outstanding.  The NAV’s unit price is quoted on a private market that is not active.  T he NAV is based on the fair value of the underlying securities within the funds, which may be traded on an active market, and valued at the closing price reported on the active market on which those individual securities are traded.  For investments not traded on an active market, or for which a quoted price is not publicly available, a variety of unobservable valuation methodologies, including discounted cash flow, market multiple and cost valuation approaches, are employed by the fund manager to value investments.  Fair values of all investments are adjusted annually, if necessary, based on audits of the Hedge Fund financial statements; such adjustments are reflected in the fair value of the plan’s assets.

 

·

Private Equity: Private Equity investments are valued based on the fair value of the underlying securities within the fund, which include investments both traded on an active market and not traded on an active market. For those investments that are traded on an active market, the values are based on the closing price reported on the active market on which those individual securities are traded.  For investments not traded on an active market, or for which a quoted price is not publicly available, a variety of unobservable valuation methodologies, including discounted cash flow, market multiple and cost valuation approaches, are employed by the fund manager to value investments.  Fair values of all investments are adjusted annually, if necessary, based on audits of the private equity fund financial statements; such adjustments are reflected in the fair value of the plan’s assets.

 

·

Real Estate: Real estate investments include investments in real estate funds managed by a fund manager.  These investments are valued using a variety of unobservable valuation methodologies, including discounted cash flow, market multiple and cost valuation approaches.

 

The methods described above may produce a fair value calculation that may not be indicative of net realizable value or reflective of future fair values.  Furthermore, while the Company believes its valuation methods are appropriate and consistent with other market participants, the use of different methodologies or assumptions to determine the fair value of certain financial instruments could result in a different fair value measurement.

 

The Company contributed and expensed $215, $196 and $177 to employee 401(k) retirement savings accounts in 2016, 2015 and 2014, respectively.  The 401(k) retirement savings account plans provide to eligible employees both matching contributions and automatic contributions from the Company based on participant contributions, compensation as defined by the plan and length of service.

 

16. MULTI-EMPLOYER PENSION PLANS

 

The Company contributes to various multi-employer pension plans based on obligations arising from collective bargaining agreements.  These multi-employer pension plans provide retirement benefits to participants based on their service to contributing employers.  The benefits are paid from assets held in trust for that purpose.  Trustees are appointed in equal number by employers and unions.  The trustees typically are responsible for determining the level of benefits to be provided to participants as well as for such matters as the investment of the assets and the administration of the plans.

 

The Company recognizes expense in connection with these plans as contributions are funded or when commitments are probable and reasonably estimable, in accordance with GAAP.  The Company made cash contributions to these plans of $289 million in 2016, $426 million in 2015 and $297 million in 2014.

 

The Company continues to evaluate and address potential exposure to under-funded multi-employer pension plans as it relates to the Company’s associates who are beneficiaries of these plans.  These under-fundings are not a liability of the Company.  When an opportunity arises that is economically feasible and beneficial to the Company and its associates, the Company may negotiate the restructuring of under-funded multi-employer pension plan obligations to help stabilize associates’ future benefits and become the fiduciary of the restructured multi-employer pension plan.  The commitments from these restructurings do not change the debt profile of the Company as it relates to the Company’s credit rating.  The Company is currently designated as the named fiduciary of the UFCW Consolidated Pension Plan and

78


 

 

has sole investment authority over these assets.  Significant effects of these restructuring agreements recorded in our Consolidated Financial Statements are:

 

In 2016, the Company incurred a charge of $111, $71 (after-tax), due to commitments and withdrawal liabilities arising from the restructuring of certain multi-employer pension plan obligations, of which $28 was contributed to the UFCW Consolidated Pension Plan in 2016.

 

In 2015, the Company contributed $190 to the UFCW Consolidated Pension Plan.  The Company had previously accrued $60 of the total contributions at January 31, 2015 and recorded expense for the remaining $130 at the time of payment in 2015. 

 

In 2014, the Company incurred a charge of $56 (after-tax) related to commitments and withdrawal liabilities associated with the restructuring of pension plan agreements, of which $15 was contributed to the UFCW Consolidated Pension Plan in 2014.

 

The risks of participating in multi-employer pension plans are different from the risks of participating in single-employer pension plans in the following respects:

 

a.

Assets contributed to the multi-employer plan by one employer may be used to provide benefits to employees of other participating employers.

 

b.

If a participating employer stops contributing to the plan, the unfunded obligations of the plan allocable to such withdrawing employer may be borne by the remaining participating employers.

 

c.

If the Company stops participating in some of its multi-employer pension plans, the Company may be required to pay those plans an amount based on its allocable share of the unfunded vested benefits of the plan, referred to as a withdrawal liability.

 

The Company’s participation in multi-employer plans is outlined in the following tables.  The EIN / Pension Plan Number column provides the Employer Identification Number (“EIN”) and the three-digit pension plan number.  The most recent Pension Protection Act Zone Status available in 2016 and 2015 is for the plan’s year-end at December 31, 2015 and December 31, 2014, respectively.  Among other factors, generally, plans in the red zone are less than 65 percent funded, plans in the yellow zone are less than 80 percent funded and plans in the green zone are at least 80 percent funded.  The FIP/RP Status Pending / Implemented Column indicates plans for which a funding improvement plan (“FIP”) or a rehabilitation plan (“RP”) is either pending or has been implemented.  Unless otherwise noted, the information for these tables was obtained from the Forms 5500 filed for each plan’s year-end at December 31, 2015 and December 31, 2014. The multi-employer contributions listed in the table below are the Company’s multi-employer contributions made in fiscal years 2016, 2015 and 2014.

 

79


 

 

The following table contains information about the Company’s multi-employer pension plans:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

    

    

    

    

    

    

FIP/RP

    

    

 

    

    

 

    

    

 

    

    

 

 

 

 

 

Pension Protection

 

Status

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EIN / Pension

 

Act Zone Status

 

Pending/

 

Multi-Employer Contributions

 

Surcharge

 

Pension Fund

 

Plan Number

 

2016

 

2015

 

Implemented

 

2016

 

2015

 

2014

 

Imposed(6)

 

SO CA UFCW Unions & Food Employers Joint Pension Trust Fund (1) (2)

 

95-1939092 - 001

 

Red

 

Red

 

Implemented

 

$

60

 

$

55

 

$

48

 

No

 

Desert States Employers & UFCW Unions Pension Plan (1)

 

84-6277982 - 001

 

Green

 

Green

 

No

 

 

18

 

 

18

 

 

21

 

No

 

Sound Retirement Trust (formerly Retail Clerks Pension Plan) (1) (3)

 

91-6069306 – 001

 

Red

 

Red

 

Implemented

 

 

18

 

 

17

 

 

15

 

No

 

Rocky Mountain UFCW Unions and Employers Pension Plan (1)

 

84-6045986 - 001

 

Green

 

Green

 

No

 

 

16

 

 

17

 

 

17

 

No

 

Oregon Retail Employees Pension Plan (1)

 

93-6074377 - 001

 

Green

 

Green

 

No

 

 

8

 

 

9

 

 

7

 

No

 

Bakery and Confectionary Union & Industry International Pension Fund (1)

 

52-6118572 - 001

 

Red

 

Red

 

Implemented

 

 

10

 

 

11

 

 

11

 

No

 

Washington Meat Industry Pension Trust (1) (4) (5)

 

91-6134141 - 001

 

Red

 

Red

 

Implemented

 

 

 —

 

 

 —

 

 

1

 

No

 

Retail Food Employers & UFCW Local 711 Pension (1)

 

51-6031512 - 001

 

Red

 

Red

 

Implemented

 

 

9

 

 

9

 

 

9

 

No

 

Denver Area Meat Cutters and Employers Pension Plan (1)

 

84-6097461 - 001

 

Green

 

Green

 

No

 

 

3

 

 

7

 

 

8

 

No

 

United Food & Commercial Workers Intl Union — Industry Pension Fund (1) (4)

 

51-6055922 - 001

 

Green

 

Green

 

No

 

 

37

 

 

35

 

 

33

 

No

 

Western Conference of Teamsters Pension Plan

 

91-6145047 - 001

 

Green

 

Green

 

No

 

 

33

 

 

31

 

 

30

 

No

 

Central States, Southeast & Southwest Areas Pension Plan

 

36-6044243 - 001

 

Red

 

Red

 

Implemented

 

 

23

 

 

16

 

 

15

 

No

 

UFCW Consolidated Pension Plan (1) 

 

58-6101602 – 001

 

Green

 

Green

 

No

 

 

34

 

 

190

 

 

70

 

No

 

Other

 

 

 

 

 

 

 

 

 

 

20

 

 

11

 

 

12

 

 

 

Total Contributions

 

 

 

 

 

 

 

 

 

$

289

 

$

426

 

$

297

 

 

 


(1)

The Company’s multi-employer contributions to these respective funds represent more than 5% of the total contributions received by the pension funds.

(2)

The information for this fund was obtained from the Form 5500 filed for the plan’s year-end at March 31, 2016 and March 31, 2015.

(3)

The information for this fund was obtained from the Form 5500 filed for the plan’s year-end at September 30, 2015 and September 30, 2014.

(4)

The information for this fund was obtained from the Form 5500 filed for the plan’s year-end at June 30, 2015 and June 30, 2014.

(5)

As of June 30, 2014, this pension fund was merged into the Sound Retirement Trust.  After the completion of the merger, on July 1, 2014, certain assets and liabilities related to the Washington Meat Industry Pension Trust were transferred from the Sound Retirement Trust to the UFCW Consolidated Pension Plan.  See the above information regarding the restructuring of certain pension plan agreements.

(6)

Under the Pension Protection Act, a surcharge may be imposed when employers make contributions under a collective bargaining agreement that is not in compliance with a rehabilitation plan.  As of January 28, 2017, the collective bargaining agreements under which the Company was making contributions were in compliance with rehabilitation plans adopted by the applicable pension fund.

 

80


 

 

The following table describes (a) the expiration date of the Company’s collective bargaining agreements and (b) the expiration date of the Company’s most significant collective bargaining agreements for each of the material multi-employer funds in which the Company participates.

 

 

 

 

 

 

 

 

 

 

 

Expiration Date

 

Most Significant Collective

 

 

 

of Collective

 

Bargaining Agreements(1)

 

 

 

Bargaining

 

(not in millions)

 

Pension Fund

    

Agreements

    

Count

    

Expiration

 

SO CA UFCW Unions & Food Employers Joint Pension Trust Fund

 

June 2017 to March 2019

 

2

 

June 2017 to March 2019

 

UFCW Consolidated Pension Plan

 

March 2016 (2) to August 2020

 

8

 

April 2016 to August 2020

 

Desert States Employers & UFCW Unions Pension Plan

 

October 2016 (2) to June 2018

 

1

 

June  2018

 

Sound Retirement Trust (formerly Retail Clerks Pension Plan)

 

April 2016 (2) to May 2019

 

2

 

May 2016 to May 2019

 

Rocky Mountain UFCW Unions and Employers Pension Plan

 

January 2019 to February 2019

 

1

 

January  2019

 

Oregon Retail Employees Pension Plan

 

August 2018 to June 2019

 

3

 

August 2018(2) to June 2019

 

Bakery and Confectionary Union & Industry International Pension Fund

 

June 2016 (2) to July 2018

 

4

 

August 2016 to July 2018

 

Retail Food Employers & UFCW Local 711 Pension

 

April 2017 to November 2019

 

1

 

March 2019

 

Denver Area Meat Cutters and Employers Pension Plan

 

January 2019 to February 2019

 

1

 

January  2019

 

United Food & Commercial Workers Intl Union — Industry Pension Fund

 

March 2014(2) to April 2019

 

2

 

March 2017 to April 2019

 

Western Conference of Teamsters Pension Plan

 

April 2017 to September 2020

 

5

 

July 2017 to September 2020

 

Central States, Southeast & Southwest Areas Pension Plan

 

September 2017 to November 2018

 

3

 

September 2017 to November 2018

 


(1)

This column represents the number of significant collective bargaining agreements and their expiration date for each of the Company’s pension funds listed above.  For purposes of this table, the “significant collective bargaining agreements” are the largest based on covered employees that, when aggregated, cover the majority of the employees for which we make multi-employer contributions for the referenced pension fund.

(2)

Certain collective bargaining agreements for each of these pension funds are operating under an extension.

 

Based on the most recent information available to it, the Company believes the present value of actuarial accrued liabilities in most of these multi-employer plans substantially exceeds the value of the assets held in trust to pay benefits.  Moreover, if the Company were to exit certain markets or otherwise cease making contributions to these funds, the Company could trigger a substantial withdrawal liability.  Any adjustment for withdrawal liability will be recorded when it is probable that a liability exists and can be reasonably estimated.

 

The Company also contributes to various other multi-employer benefit plans that provide health and welfare benefits to active and retired participants. Total contributions made by the Company to these other multi-employer health and welfare plans were approximately $1,143 in 2016, $1,192 in 2015 and $1,200 in 2014.

 

17. RECENTLY  ADOPTED  ACCOUNTING  STANDARDS

 

In September 2015, the FASB issued ASU 2015-16, “Business Combinations (Topic 805): Simplifying the Accounting for Measurement-Period Adjustments.” This amendment eliminates the requirement to retrospectively account for adjustments made to provisional amounts recognized in a business combination. This amendment became effective for the Company beginning January 31, 2016, and was adopted prospectively in accordance with the standard. The adoption of this amendment did not have an effect on the Company’s Consolidated Balance Sheets or Consolidated Statements of Operations.

   

During the second quarter of 2016, the Company adopted ASU 2016-09, “Compensation-Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting.”  This amendment addresses several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. As a result of the adoption, the Company recognized $49 of excess tax benefits related to share-based payments in its provision for income taxes in 2016. These items were historically recorded in additional paid-in capital. In addition, for 2016, cash flows related to excess tax benefits are classified as an operating activity. Cash paid on employees’ behalf related to shares withheld for tax purposes is classified as a financing activity. Retrospective application of the cash flow presentation requirements resulted in increases to both “Net cash provided by operating activities” and “Net cash used by financing activities” of $59 for 2016, $84 for 2015 and $52 for 2014.  The Company’s stock compensation expense continues to reflect estimated forfeitures.

 

81


 

 

During 2016, the Company adopted ASU 2014-15, “Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern (Topic 205)”. This standard requires management to evaluate, for each annual and interim reporting period, whether there are conditions and events, considered in the aggregate, that raise substantial doubt about the Company’s ability to continue as a going concern within one year after the date the Consolidated Financial Statements are issued or are available to be issued. If substantial doubt is raised, additional disclosures around the Company’s plan to alleviate these doubts are required. The adoption of this standard did not have any affect on the Company’s Consolidated Financial Statements.

 

During 2016, the Company adopted ASU 2015-07, “Fair Value Measurement - Disclosures for Investments in Certain Entities that Calculate Net Asset Value per Share (or Its Equivalent) (Topic 820)”.  This standard requires the Company to disclose which assets are valued using net asset value as a practical expedient, and ends the requirement to classify these assets within the GAAP fair value hierarchy.  See Note 15 of the Consolidated Financial Statements for disclosures of assets valued using net asset value as a practical expedient.

 

 

18. RECENTLY  ISSUED  ACCOUNTING  STANDARDS

 

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers,” as amended by several subsequent ASUs, which provides guidance for revenue recognition. The standard’s core principle is that a company will recognize revenue when it transfers promised goods or services to customers in an amount that reflects the consideration to which the company expects to be entitled in exchange for those goods or services.  Per ASU 2015-14, “Deferral of Effective Date,” this guidance will be effective for the Company in the first quarter of its fiscal year ending February 2, 2019.  Early adoption is permitted as of the first quarter of the Company’s fiscal year ending February 3, 2018.  The Company is currently in the process of evaluating the effect of adoption of this ASU on its Consolidated Financial Statements.

 

In November 2015, the FASB issued ASU 2015-17, “Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes.” This amendment requires deferred tax liabilities and assets be classified as noncurrent in a classified statement of financial position. This guidance will be effective for the Company’s fiscal year ending February 3, 2018. Early adoption is permitted. The implementation of this amendment will not have an effect on the Company’s Consolidated Statements of Operations and will not have a significant effect on the Company’s Consolidated Balance Sheets.

 

In February 2016, the FASB issued ASU 2016-02, “Leases”, which provides guidance for the recognition of lease agreements.  The standard’s core principle is that a company will now recognize most leases on its balance sheet as lease liabilities with corresponding right-of-use assets.  This guidance will be effective for the Company in the first quarter of fiscal year ending February 1, 2020.  Early adoption is permitted.  The adoption of this ASU will result in a significant increase to the Company’s Consolidated Balance Sheets for lease liabilities and right-of-use assets, and the Company is currently evaluating the other effects of adoption of this ASU on the its Consolidated Financial Statements.

 

 

82


 

 

19. QUARTERLY  DATA (UNAUDITED)

 

The two tables that follow reflect the unaudited results of operations for 2016 and 2015.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Quarter

 

 

 

 

 

    

First

    

Second

    

Third

    

Fourth

    

Total Year

 

2016

 

(16 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(12 Weeks)

 

 

(52 Weeks)

 

Sales

 

$

34,604

 

$

26,565

 

$

26,557

 

$

27,611

 

$

115,337

 

Merchandise costs, including advertising, warehousing, and transportation, excluding items shown separately below

 

 

26,669

 

 

20,697

 

 

20,653

 

 

21,483

 

 

89,502

 

Operating, general and administrative

 

 

5,779

 

 

4,473

 

 

4,443

 

 

4,483

 

 

19,178

 

Rent

 

 

262

 

 

205

 

 

199

 

 

215

 

 

881

 

Depreciation and amortization

 

 

694

 

 

525

 

 

549

 

 

572

 

 

2,340

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating profit

 

 

1,200

 

 

665

 

 

713

 

 

858

 

 

3,436

 

Interest expense

 

 

155

 

 

116

 

 

124

 

 

126

 

 

522

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings before income tax expense

 

 

1,045

 

 

549

 

 

589

 

 

732

 

 

2,914

 

Income tax expense

 

 

350

 

 

171

 

 

206

 

 

230

 

 

957

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings including noncontrolling interests

 

 

695

 

 

378

 

 

383

 

 

502

 

 

1,957

 

Net loss attributable to noncontrolling interests

 

 

(1)

 

 

(5)

 

 

(8)

 

 

(4)

 

 

(18)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co.

 

$

696

 

$

383

 

$

391

 

$

506

 

$

1,975

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per basic common share

 

$

0.72

 

$

0.40

 

$

0.41

 

$

0.54

 

$

2.08

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Average number of shares used in basic calculation

 

 

954

 

 

943

 

 

940

 

 

929

 

 

942

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per diluted common share

 

$

0.71

 

$

0.40

 

$

0.41

 

$

0.53

 

$

2.05

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Average number of shares used in diluted calculation

 

 

966

 

 

959

 

 

953

 

 

943

 

 

958

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dividends declared per common share

 

$

0.105

 

$

0.120

 

$

0.120

 

$

0.120

 

$

0.465

 

 

Annual amounts may not sum due to rounding.

 

83


 

 

In the second quarter of 2016, the Company incurred a $111 charge to OG&A expenses for commitments and withdrawal liabilities associated with the restructuring of certain multi-employer pension plan agreements.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Quarter

 

 

 

 

 

    

First

    

Second

    

Third

    

Fourth

    

Total Year

 

2015

 

(16 Weeks)

 

(12 Weeks)

 

(12 Weeks)

 

(12 Weeks)

 

(52 Weeks)

 

Sales

 

$

33,051

 

$

25,539

 

$

25,075

 

$

26,165

 

$

109,830

 

Merchandise costs, including advertising, warehousing, and transportation, excluding items shown separately below

 

 

25,760

 

 

20,065

 

 

19,478

 

 

20,193

 

 

85,496

 

Operating, general and administrative

 

 

5,354

 

 

4,068

 

 

4,169

 

 

4,355

 

 

17,946

 

Rent

 

 

215

 

 

155

 

 

172

 

 

181

 

 

723

 

Depreciation and amortization

 

 

620

 

 

477

 

 

484

 

 

508

 

 

2,089

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating profit

 

 

1,102

 

 

774

 

 

772

 

 

928

 

 

3,576

 

Interest expense

 

 

148

 

 

114

 

 

107

 

 

113

 

 

482

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings before income tax expense

 

 

954

 

 

660

 

 

665

 

 

815

 

 

3,094

 

Income tax expense

 

 

330

 

 

227

 

 

238

 

 

250

 

 

1,045

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings including noncontrolling interests

 

 

624

 

 

433

 

 

427

 

 

565

 

 

2,049

 

Net earnings (loss) attributable to noncontrolling interests

 

 

5

 

 

 —

 

 

(1)

 

 

6

 

 

10

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co.

 

$

619

 

$

433

 

$

428

 

$

559

 

$

2,039

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per basic common share

 

$

0.63

 

$

0.44

 

$

0.44

 

$

0.57

 

$

2.09

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Average number of shares used in basic calculation

 

 

969

 

 

963

 

 

965

 

 

966

 

 

966

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net earnings attributable to The Kroger Co. per diluted common share

 

$

0.62

 

$

0.44

 

$

0.43

 

$

0.57

 

$

2.06

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Average number of shares used in diluted calculation

 

 

983

 

 

977

 

 

979

 

 

980

 

 

980

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dividends declared per common share

 

$

0.093

 

$

0.105

 

$

0.105

 

$

0.105

 

$

0.408

 

 

Annual amounts may not sum due to rounding.

 

In the third quarter of 2015, the Company incurred a $80 charge to OG&A expenses for contributions to the UFCW Consolidated Pension Plan.

 

In the fourth quarter of 2015, the Company incurred a $30 charge to OG&A expenses for contributions to the UFCW Consolidated Pension Plan.

 

20. SUBSEQUENT EVENT

 

In 2016, the Company announced a Voluntary Retirement Offering (“VRO”) for certain non-store associates.  Approximately 1,300 associates irrevocably accepted the VRO in early March 2017.  The Company anticipates recognizing a VRO charge of approximately $180, pre-tax, in the first quarter of 2017.

 

As we continue to work to find solutions to under-funded multi-employer pension plans, it is possible we could incur withdrawal liabilities for certain funds.  Two locations have initiated a withdrawal process, in the first quarter of 2017, resulting in an estimated withdrawal liability of less than $100, after-tax.

 

84


 

 

ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.

 

None.

 

ITEM 9A. CONTROLS AND PROCEDURES.

 

As of January 28, 2017, our Chief Executive Officer and Chief Financial Officer, together with a disclosure review committee appointed by the Chief Executive Officer, evaluated the Company’s disclosure controls and procedures.  Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective as of January 28, 2017.

 

CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING

 

There was no change in our internal control over financial reporting during the fiscal quarter ended January 28, 2017 that has materially affected, or is reasonably likely to materially affect, our internal control over financial  reporting.

 

MANAGEMENT’S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING

 

Management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company.  With the participation of the Chief Executive Officer and the Chief Financial Officer, our management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework and criteria established in Internal Control — Integrated Framework (2013) , issued by the Committee of Sponsoring Organizations of the Treadway Commission.  Our management excluded Modern HC Holdings, Inc. (“ModernHEALTH”) from its assessment of internal control over financial reporting, as of January 28, 2017, because it was acquired in a purchase business combination on September 2, 2016. ModernHEALTH is a wholly-owned subsidiary whose total assets and total revenues represent 1% and less than 1%, respectively, of the related Consolidated Financial Statements amounts as of and for the year ended January 28, 2017.  Based on the evaluation, management has concluded that the Company’s internal control over financial reporting was effective as of January 28, 2017.

 

The effectiveness of the Company’s internal control over financial reporting as of January 28, 2017, has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their report, which can be found in Item 8 of this Form 10-K.

 

ITEM 9B. OTHER INFORMATION.

 

None.

85


 

 

PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.

 

The information required by this Item not otherwise set forth below is set forth under the headings Election of Directors, Information Concerning the Board of Directors — Committees of the Board, Information Concerning the Board of Directors — Audit Committee, Information Concerning the Board of Directors — Code of Ethics and Section 16(a) Beneficial Ownership Reporting Compliance in the definitive proxy statement to be filed by the Company with the Securities and Exchange Commission before May 26, 2017 (the “2017 proxy statement”) and is hereby incorporated by reference into this Form 10-K.

 

EXECUTIVE OFFICERS OF THE COMPANY

 

The following is a list of the names and ages of the executive officers and the positions held by each such person. Except as otherwise noted, each person has held office for at least five years.  Each officer will hold office at the discretion of the Board for the ensuing year until removed or replaced.

 

 

 

 

 

 

Name

    

Age

    

Recent Employment History

 

 

 

 

 

Mary E. Adcock

 

41 

 

Ms. Adcock was elected Group Vice President of Retail Operations, effective May 2016.  Prior to this, she served as Vice President of Operations for Kroger’s Columbus Division from November 2015 to May 2016 and as Vice President of Merchandising for the Columbus Division from March 2014 to November 2015. From February 2012 to March 2014, she served as Vice President of Natural Foods Merchandising and from October 2009 to February 2012, she served as Vice President of Deli/Bakery Manufacturing. Prior to that, Ms. Adcock held several leadership positions in the manufacturing department, including human resources manager, general manager and division operations manager.  Ms. Adcock joined Kroger in 1999 as human resources assistant manager at the Country Oven Bakery in Bowling Green, Kentucky.

 

 

 

 

 

Jessica C. Adelman

 

41 

 

Ms. Adelman joined Kroger in November 2015 as Group Vice President of Corporate Affairs. Prior to joining Kroger, she served as senior vice president of corporate  affairs for Syngenta North America, a leading agriculture company, since 2008. Prior to that, Ms. Adelman held several strategic leadership roles with other companies, including director of Cargill Government Solutions. Ms. Adelman has 20 years of experience as a public affairs executive in the food industry.

 

 

 

 

 

Stuart W. Aitken

 

45 

 

Mr. Aitken was elected Group Vice President June 2015 and is responsible for leading Kroger’s data analytics subsidiary, 84.51° LLC. Prior to joining Kroger, he served as the chief executive officer of dunnhumby USA, LLC from July 2010 to June 2015. Mr. Aitken has over 15 years of marketing, academic and technical experience across  a variety of industries, and held various leadership roles with other companies, including Michaels Stores and Safeway, Inc.

 

 

 

 

 

Robert W. Clark

 

51 

 

Mr. Clark was elected Senior Vice President of Merchandising in March 2016. Prior  to this, he served as Group Vice President of Non-Perishables from March 2013 to March 2016. Prior to that, he served as Vice President of Merchandising for Kroger’s Fred Meyer division from October 2011 to March 2013. From August 2010 to October 2011 he served as Vice President of Operations for Kroger’s Columbus division. Prior to that, from May 2002 to August 2010, he served as Vice President of Merchandising for Kroger’s Fry’s division. From 1985 to 2002, Mr. Clark held  various leadership positions in store and district management, as well as grocery merchandising. Mr. Clark began his career with Kroger in 1985 as a courtesy clerk at Fry’s.

 

86


 

 

Yael Cosset

 

43 

 

Mr. Cosset was elected Group Vice President and Chief Digital Officer in January 2017 and is responsible for leading Kroger’s digital strategy, focused on building Kroger’s presence in the marketplace in digital channels, personalization and              e-commerce. Prior to this, he served as Chief Commercial Officer and Chief Information Officer of 84.51° LLC from April 2015 to December 2016.  Prior to joining Kroger, Mr. Cosset served in several leadership roles at dunnhumby USA, LLC since 2009, including Executive Vice President of Consumer Markets and  Global Chief Information Officer.

 

 

 

 

 

Michael J. Donnelly

 

58 

 

Mr. Donnelly was elected Executive Vice President of Merchandising in September 2015. Prior to this, he served as Senior Vice President of Merchandising from July 2011 to September 2015. Prior to that, Mr. Donnelly held a variety of key management positions with Kroger, including President of Ralphs Grocery Company, President of Fry’s Food Stores, and Senior Vice President, Drug/GM Merchandising and Procurement. Mr. Donnelly joined Kroger in 1978 as a clerk.

 

 

 

 

 

Todd A. Foley

 

47 

 

Mr. Foley has served as Vice President and Treasurer since June 2013. Prior to this,  he served as Assistant Corporate Controller from March 2006 to June 2013. Prior to that, he served as Controller of Kroger’s Cincinnati/Dayton division from October 2003 to March 2006. Mr. Foley began his career with Kroger in 2001 as an audit manager in the Internal Audit Department after working for PricewaterhouseCoopers from 1991 to 2001, where most recently he was a senior  audit manager.

 

 

 

 

 

Christopher T. Hjelm

 

55 

 

Mr. Hjelm was elected Executive Vice President and Chief Information Officer in September 2015. Prior to this, he served as Senior Vice President and Chief Information Officer from August 2005 to September 2015. From February 2005 to July 2005, he was Chief Information Officer of Travel Distribution Services for Cendant Corporation. From July 2003 to November 2004, Mr. Hjelm served as Chief Technology Officer for Orbitz LLC, which was acquired by Cendant Corporation in November 2004. Mr. Hjelm served as Senior Vice President for Technology at eBay Inc. from March 2002 to June 2003, and served as Executive Vice President for Broadband Network Services for Excite@Home from June 2001 to February 2002. From January 2000 to June 2001, Mr. Hjelm served as Chairman, President and Chief Executive Officer of ZOHO Corporation. Prior to that, he held various key roles for  14 years with Federal Express Corporation, including that of Senior Vice President  and Chief Information Officer.

 

 

 

 

 

Sukanya R. Madlinger

 

53 

 

Ms. Madlinger was elected Senior Vice President in September 2015, and is responsible for the oversight of several of Kroger’s retail divisions. Prior to this, she served as President of Kroger’s Cincinnati/Dayton division from 2010 to September 2015. Ms. Madlinger has held various leadership positions in operations and merchandising since joining Kroger in 1986.

 

 

 

 

 

Timothy A. Massa

 

50 

 

Mr. Massa was elected Group Vice President of Human Resources and Labor Relations in June 26, 2014. He joined Kroger in October 2010 as Vice President, Corporate Human Resources, Talent Development. Prior to joining Kroger, he served in various Human Resources leadership roles for 21 years at Procter & Gamble, most recently serving as Global Human Resources Director of Customer Business Development.

 

 

 

 

 

87


 

 

W. Rodney McMullen

 

56 

 

Mr. McMullen was elected Chairman of the Board effective January 1, 2015, and Chief Executive Officer effective January 1, 2014. Prior to this, he served as President and Chief Operating Officer from August 2009 to December 2013. Prior to that he  was elected Vice Chairman in June 2003, Executive Vice President, Strategy,  Planning and Finance in January 2000, Executive Vice President and Chief Financial Officer in May 1999, Senior Vice President in October 1997, and Group Vice President and Chief Financial Officer in June 1995. Before that he was appointed Vice President, Control and Financial Services in March 1993, and Vice President,  Planning and Capital Management in December 1989. Mr. McMullen joined Kroger  in 1978 as a part-time stock clerk.

 

 

 

 

 

Frederick J. Morganthall II

 

65 

 

Mr. Morganthall was elected Executive Vice President of Retail Operations in September 2015. Prior to this, he served as Senior Vice President, Retail Divisions, from June 2015 to September 2015. Mr. Morganthall joined Kroger in 2014 as part of the Kroger-Harris Teeter merger, serving as President of Harris Teeter until June  2015. He joined Harris Teeter in 1986 and served in several key leadership roles prior to becoming president, including vice president of merchandising, vice president of distribution, and vice president of operations. Mr. Morganthall began his career in grocery retail in 1978 with Spartan Stores in Michigan.

 

 

 

 

 

J. Michael Schlotman

 

59 

 

Mr. Schlotman was elected Executive Vice President and Chief Financial Officer in September 2015. Prior to this, he was elected Senior Vice President and Chief Financial Officer in June 2003, and Group Vice President and Chief Financial Officer in January 2000. Prior to that he was elected Vice President and Corporate Controller in 1995, and served in various positions in corporate accounting since joining Kroger in 1985.

 

 

 

 

 

Erin S. Sharp

 

59 

 

Ms. Sharp has served as Group Vice President of Manufacturing since June 2013. She joined Kroger in 2011 as Vice President of Operations for Kroger’s Manufacturing division. Before joining Kroger, Ms. Sharp served as Vice President of Manufacturing for the Sara Lee Corporation. In that role, she led the manufacturing and logistics operations for the central region of their U.S. Fresh Bakery Division. Ms. Sharp has over 25 years of experience supporting food manufacturing operations.

 

 

 

 

 

Alessandro Tosolini

 

50 

 

Mr. Tosolini was elected Senior Vice President of New Business Development in December 2014. Before joining Kroger, he held numerous leadership positions with Procter & Gamble for 24 years, in the U.S. and internationally, most recently serving   as senior vice president of Global e Business and vice president of Global  eCommerce.

 

 

 

 

 

Mark C. Tuffin

 

57 

 

Mr. Tuffin has served as Senior Vice President since January 2014, and is responsible for the oversight of several of Kroger’s retail divisions. Prior to this, he served as President of Kroger’s Smith’s division from July 2011 to January 2014. From September 2009 to July 2011, Mr. Tuffin served as Vice President of Transition, where he was responsible for implementing an organizational restructuring initiative for Kroger’s retail divisions. He joined Kroger’s Smith’s division in 1996 and served in a series of leadership roles, including Vice President of Merchandising from September 1999 to September 2009. Mr. Tuffin held various positions with other supermarket retailers before joining Smith’s in 1996.

 

 

 

 

 

M. Elizabeth Van Oflen

 

59 

 

Ms. Van Oflen has served as Vice President and Controller since April 2003. Prior to this, she held various positions in Kroger’s Finance and Tax Departments. Ms. Van Oflen joined Kroger in 1982.

 

 

 

 

 

Christine S. Wheatley

 

46 

 

Ms. Wheatley was elected Group Vice President, Secretary and General Counsel in May 2014. She joined Kroger in February 2008 as Corporate Counsel, and became Senior Attorney in 2010, Senior Counsel in 2011, and Vice President in 2012. Before joining Kroger, Ms. Wheatley was engaged in the private practice of law for 11 years, most recently as a partner at Porter Wright Morris & Arthur in Cincinnati.

 

 

88


 

 

ITEM 11. EXECUTIVE COMPENSATION.

 

The information required by this Item is set forth in the sections entitled Compensation Discussion and Analysis, Compensation Committee Report, and Compensation Tables in the 2017 proxy statement and is hereby incorporated by reference into this Form 10-K.

 

ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.

 

The following table provides information regarding shares outstanding and available for issuance under our existing equity compensation plans.

 

Equity Compensation Plan Information

 

 

 

 

 

 

 

 

 

 

 

    

(a)  

    

(b)  

    

(c)  

 

 

 

 

 

 

 

 

Number of securities

 

 

 

 

 

 

 

 

remaining for future

 

 

 

Number of securities to

 

Weighted-average

 

issuance under equity

 

 

 

be issued upon exercise

 

exercise price of

 

compensation plans

 

 

 

of outstanding options,

 

outstanding options,

 

(excluding securities

 

Plan Category

 

warrants and rights (1)

 

warrants and rights (1)

 

reflected in column (a))

 

 

 

 

 

 

 

 

 

 

Equity compensation plans approved by security holders

 

35,572,478

 

$

21.32

 

50,044,668

 

Equity compensation plans not approved by security holders

 

 —

 

$

 —

 

 —

 

Total

 

35,572,478

 

$

21.32

 

50,044,668

 


(1)

The total number of securities reported includes the maximum number of common shares, 1,266,874, that may be issued under performance units granted under our long-term incentive plans. The nature of the awards is more particularly described in the Compensation Discussion and Analysis section of the definitive 2017 proxy statement  and is hereby incorporated by reference into this Form 10-K. The weighted-average exercise price in column (b) does not take these performance unit awards into account. Based on historical data, or in the case of the award made in 2014 and earned in 2016 the actual payout percentage, our best estimate of the number of common shares that will be issued under the performance unit grants is approximately 637,437.

 

The remainder of the information required by this Item is set forth in the section entitled Beneficial Ownership of Common Stock in the 2017 proxy statement and is hereby incorporated by reference into this Form 10-K.

 

ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.

 

This information required by this Item is set forth in the sections entitled Related Person Transactions and Information Concerning the Board of Directors-Independence in the 2017 proxy statement and is hereby incorporated by reference into this Form 10-K.

 

ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES.

 

The information required by this Item is set forth in the section entitled Ratification of the Apppointment of Kroger’s Independent Auditor in the 2017 proxy statement and is hereby incorporated by reference into this Form 10-K.

 

89


 

 

PART IV

 

ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.

 

 

 

 

(a)1.

    

Financial Statements:

 

 

Report of Independent Registered Public Accounting Firm

 

 

Consolidated Balance Sheets as of January 28, 2017 and January 30, 2016

 

 

Consolidated Statements of Operations for the years ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

Consolidated Statements of Comprehensive Income for the years ended January 28, 2017, January 30, 2016 and January 31, 2015

Consolidated Statements of Cash Flows for the years ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

Consolidated Statement of Changes in Shareholders’ Equity for the years ended January 28, 2017, January 30, 2016 and January 31, 2015

 

 

Notes to Consolidated Financial Statements

 

 

 

(a)2.

 

Financial Statement Schedules:

 

 

There are no Financial Statement Schedules included with this filing for the reason that they are not applicable or are not required or the information is included in the financial statements or notes thereto.

 

 

 

(a)3.(b)

 

Exhibits

 

 

 

3.1

 

Amended Articles of Incorporation are hereby incorporated by reference to Exhibit 3.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 22, 2010, as amended by the Amendment to Amended Articles of Incorporation, which is hereby incorporated by reference to Exhibit 3.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 23, 2015.

 

 

 

3.2

 

The Company’s Regulations are hereby incorporated by reference to Exhibit 3.2 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 26, 2007.

 

 

 

4.1

 

Instruments defining the rights of holders of long-term debt of the Company and its subsidiaries are not filed as Exhibits because the amount of debt under each instrument is less than 10% of the consolidated assets of the Company.  The Company undertakes to file these instruments with the SEC upon request.

 

 

 

10.1*

 

The Kroger Co. Deferred Compensation Plan for Independent Directors. Incorporated by reference to Exhibit 10.2 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 30, 2016.

 

 

 

10.2*

 

The Kroger Co. Executive Deferred Compensation Plan.  Incorporated by reference to Exhibit 10.4 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 29, 2005.

 

 

 

10.3*

 

The Kroger Co. 401(k) Retirement Savings Account Restoration Plan. Incorporated by reference to Exhibit 10.4 of the Company’s Annual Report on Form 10-K for the fiscal year ended February 3, 2007.

 

 

 

10.4*

 

The Kroger Co. Supplemental Retirement Plans for Certain Retirement Benefit Plan Participants. Incorporated by reference to Exhibit 10.6 of the Company’s Annual Report on Form 10-K for the fiscal year ended February 3, 2007.

 

 

 

10.5*

 

The Kroger Co. Employee Protection Plan dated January 13, 2017.

 

 

 

10.6

 

Amended and Restated Credit Agreement dated as of June 30, 2014, among The Kroger Co., the initial lenders named therein, Bank of America, N.A. and Wells Fargo Bank National Association as co-administrative agents, Citibank, N.A., as syndication agent, and The Royal Bank of Scotland plc and U.S. Bank National Association, National Association, as co-documentation agents, incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K filed with the SEC on June 30, 2014.

 

 

 

10.7*

 

The Kroger Co. 2008 Long-Term Incentive and Cash Bonus Plan. Incorporated by reference to Exhibit 4.2 of the Company’s Form S-8 filed with the SEC on June 26, 2008.

 

 

 

10.8*

 

The Kroger Co. 2011 Long-Term Incentive and Cash Bonus Plan. Incorporated by reference to Exhibit 4.2 of the Company’s Form S-8 filed with the SEC on June 23, 2011.

90


 

 

 

 

 

10.9*

 

The Kroger Co. 2014 Long-Term Incentive and Cash Bonus Plan. Incorporated by reference to Exhibit 4.2 of the Company’s Form S-8 filed with the SEC on July 29, 2014.

 

 

 

10.10*

 

Form of Restricted Stock Grant Agreement under Long-Term Incentive and Cash Bonus Plans. Incorporated by reference to Exhibit 10.9 of the Company’s Annual Report on Form 10-K for the fiscal year ended February 3, 2007.

 

 

 

10.11*

 

Form of Non-Qualified Stock Option Grant Agreement under Long-Term Incentive and Cash Bonus Plans. Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 24, 2008.

 

 

 

10.12*

 

Form of Performance Unit Award Agreement under Long-Term Incentive and Cash Bonus Plans. Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended August 15, 2015.

 

 

 

10.13*

 

The Kroger Co. 2014 Long-Term Cash Bonus Plan. Incorporated by reference to Exhibit 10.19 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2015.

 

 

 

10.14*

 

The Kroger Co. 2015 Long-Term Cash Bonus Plan. Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 23, 2015.

 

 

 

10.15*

 

The Kroger Co. 2016 Long-Term Cash Bonus Plan. Incorporated by reference to Exhibit 10.18 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 30, 2016.

 

 

 

10.16*

 

Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan Amendment and Restatement, effective January 1, 2016.

 

 

 

10.17*

 

Harris Teeter Supermarkets, Inc. Flexible Deferral Plan Amendment and Restatement effective January 1, 2016.

 

 

 

10.18*

 

Harris Teeter Merger Cash Bonus Plan, which is hereby incorporated by reference to Exhibit 10.22 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 30, 2016.

 

 

 

12.1

 

Schedule of Computation of Ratio of Earnings to Fixed Charges.

 

 

 

21.1

 

Subsidiaries of the Registrant.

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

24.1

 

Powers of Attorney.

 

 

 

31.1

 

Rule 13a-14(a)/15d-14(a) Certification.

 

 

 

31.2

 

Rule 13a-14(a)/15d-14(a) Certification.

 

 

 

32.1

 

Section 1350 Certifications.

 

 

 

101.INS

 

XBRL Instance Document.

 

 

 

101.SCH

 

XBRL Taxonomy Extension Schema Document.

 

 

 

101.CAL

 

XBRL Taxonomy Extension Calculation Linkbase Document.

 

 

 

101.DEF

 

XBRL Taxonomy Extension Definition Linkbase Document.

 

 

 

101.LAB

 

XBRL Taxonomy Extension Label Linkbase Document.

 

 

 

101.PRE

 

XBRL Taxonomy Extension Presentation Linkbase Document.


* Management contract or compensatory plan or arrangement.

91


 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

 

THE KROGER CO.

 

 

Dated: March 28, 2017

/s/ W. Rodney McMullen

 

W. Rodney McMullen

 

Chairman of the Board and Chief Executive Officer

 

(principal executive officer)

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Company and in the capacities indicated on the 28 th of March 2017.

 

 

 

 

 

/s/ J. Michael Schlotman

 

Executive Vice President and Chief Financial Officer

J. Michael Schlotman

 

(principal financial officer)

 

 

 

/s/ M. Elizabeth Van Oflen

 

Vice President & Controller

M. Elizabeth Van Oflen

 

(principal accounting officer)

 

 

 

*

    

Director

Nora A. Aufreiter

 

 

*

 

Director

Robert D. Beyer

 

 

*

 

Director

Anne Gates

 

 

*

 

Director

Susan J. Kropf

 

 

*

 

Chairman of the Board and Chief Executive Officer

W. Rodney McMullen

 

 

*

 

Director

Jorge P. Montoya

 

 

*

 

Director

Clyde R. Moore

 

 

*

 

Director

Susan M. Phillips

 

 

*

 

Director

James A. Runde

 

 

*

 

Director

Ronald L. Sargent

 

 

*

 

Director

Bobby S. Shackouls

 

 

*

 

Director

Mark S. Sutton

 

 

 

 

 

* By:

/s/ Stacey M. Heiser

 

 

 

Stacey M. Heiser

 

 

 

Attorney-in-fact

 

 

 

 

 

 

 

 

92


 

 

EXHIBIT INDEX

 

 

 

 

Exhibit No.

    

 

 

 

 

3.1

 

Amended Articles of Incorporation are hereby incorporated by reference to Exhibit 3.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 22, 2010, as amended by the Amendment to Amended Articles of Incorporation, which is hereby incorporated by reference to Exhibit 3.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 23, 2015.

 

 

 

3.2

 

The Company’s Regulations are hereby incorporated by reference to Exhibit 3.2 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 26, 2007.

 

 

 

4.1

 

Instruments defining the rights of holders of long-term debt of the Company and its subsidiaries are not filed as Exhibits because the amount of debt under each instrument is less than 10% of the consolidated assets of the Company.  The Company undertakes to file these instruments with the SEC upon request.

 

 

 

10.1*

 

The Kroger Co. Deferred Compensation Plan for Independent Directors. Incorporated by reference to Exhibit 10.2 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2015.

 

 

 

10.2*

 

The Kroger Co. Executive Deferred Compensation Plan.  Incorporated by reference to Exhibit 10.4 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 29, 2005.

 

 

 

10.3*

 

The Kroger Co. 401(k) Retirement Savings Account Restoration Plan. Incorporated by reference to Exhibit 10.4 of the Company’s Annual Report on Form 10-K for the fiscal year ended February 3, 2007.

 

 

 

10.4*

 

The Kroger Co. Supplemental Retirement Plans for Certain Retirement Benefit Plan Participants. Incorporated by reference to Exhibit 10.6 of the Company’s Annual Report on Form 10-K for the fiscal year ended February 3, 2007.

 

 

 

10.5*

 

The Kroger Co. Employee Protection Plan dated January 13, 2017.

 

 

 

10.6

 

Amended and Restated Credit Agreement dated as of June 30, 2014, among The Kroger Co., the initial lenders named therein, Bank of America, N.A. and Wells Fargo Bank National Association as co-administrative agents, Citibank, N.A., as syndication agent, and The Royal Bank of Scotland plc and U.S. Bank National Association, National Association, as co-documentation agents, incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K filed with the SEC on June 30, 2014.

 

 

 

10.7*

 

The Kroger Co. 2008 Long-Term Incentive and Cash Bonus Plan. Incorporated by reference to Exhibit 4.2 of the Company’s Form S-8 filed with the SEC on June 26, 2008.

 

 

 

10.8*

 

The Kroger Co. 2011 Long-Term Incentive and Cash Bonus Plan. Incorporated by reference to Exhibit 4.2 of the Company’s Form S-8 filed with the SEC on June 23, 2011.

 

 

 

10.9*

 

The Kroger Co. 2014 Long-Term Incentive and Cash Bonus Plan. Incorporated by reference to Exhibit 4.2 of the Company’s Form S-8 filed with the SEC on July 29, 2014.

 

 

 

10.10*

 

Form of Restricted Stock Grant Agreement under Long-Term Incentive and Cash Bonus Plans. Incorporated by reference to Exhibit 10.9 of the Company’s Annual Report on Form 10-K for the fiscal year ended February 3, 2007.

 

 

 

10.11*

 

Form of Non-Qualified Stock Option Grant Agreement under Long-Term Incentive and Cash Bonus Plans. Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 24, 2008.

 

 

 

10.12*

 

Form of Performance Unit Award Agreement under Long-Term Incentive and Cash Bonus Plans. Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended August 15, 2015.

 

 

 

10.13*

 

The Kroger Co. 2014 Long-Term Cash Bonus Plan. Incorporated by reference to Exhibit 10.19 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2015.

93


 

 

 

 

 

10.14*

 

The Kroger Co. 2015 Long-Term Cash Bonus Plan. Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q for the quarter ended May 23, 2015.

 

 

 

10.15*

 

The Kroger Co. 2016 Long-Term Cash Bonus Plan. Incorporated by reference to Exhibit 10.18 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 30, 2016.

 

 

 

10.16*

 

Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan Amendment and Restatement, effective January 1, 2016.

 

 

 

10.17*

 

Harris Teeter Supermarkets, Inc. Flexible Deferral Plan Amendment and Restatement, effective January 1, 2016.

 

 

 

10.18*

 

Harris Teeter Merger Cash Bonus Plan, which is hereby incorporated by reference to Exhibit 10.22 of the Company’s Annual Report on Form 10-K for the fiscal year ended January 30, 2016.

 

 

 

12.1

 

Schedule of Computation of Ratio of Earnings to Fixed Charges.

 

 

 

21.1

 

Subsidiaries of the Registrant.

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

24.1

 

Powers of Attorney.

 

 

 

31.1

 

Rule 13a-14(a)/15d-14(a) Certification.

 

 

 

31.2

 

Rule 13a-14(a)/15d-14(a) Certification.

 

 

 

32.1

 

Section 1350 Certifications.

 

 

 

101.INS

 

XBRL Instance Document.

 

 

 

101.SCH

 

XBRL Taxonomy Extension Schema Document.

 

 

 

101.CAL

 

XBRL Taxonomy Extension Calculation Linkbase Document.

 

 

 

101.DEF

 

XBRL Taxonomy Extension Definition Linkbase Document.

 

 

 

101.LAB

 

XBRL Taxonomy Extension Label Linkbase Document.

 

 

 

101.PRE

 

XBRL Taxonomy Extension Presentation Linkbase Document.


* Management contract or compensatory plan or arrangement.

94


Exhibit 10.16

 

HARRIS TEETER SUPERMARKETS, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

 

 


 

Text of Plan

 

 

Amendment and Restatement Effective January 1, 2016

 

 


 

 

HARRIS TEETER SUPERMARKETS, INC.

701 Crestdale Road

Matthews, North Carolina 28105

 

 

 

 


 

 

HARRIS TEETER SUPERMARKETS, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(Text of Plan)

 

Page

 

 

Article I. REFERENCES, CONSTRUCTION AND DEFINITIONS

 

 

 

1.1

Accrual Fraction

 

1.2

Accrued SERP Benefit

 

1.3

Affiliate

 

1.4

Assumed Automatic Retirement Contribution Retirement Benefit

 

1.5

Assumed Pension Plan Retirement Benefit

 

1.6

Assumed Profit Sharing Retirement Benefit

 

1.7

Assumed Social Security Benefit

 

1.8

Beneficiary

 

1.9

Board

 

1.10

Change in Control

 

1.11

Code

 

1.12

Committee

 

1.13

Company

 

1.14

Credited Service

 

1.15

Deferred Retirement

 

1.16

Deferred Retirement Benefit

 

1.17

Disability Retirement

 

1.18

Disability Retirement Benefit

 

1.19

Early Retirement

 

1.20

Early Retirement Benefit

 

1.21

Earnings

 

1.22

Effective Date

 

1.23

Employee

 

1.24

Eligible Spouse

 

1.25

ERISA

 

1.26

Final Average Earnings

 

1.27

Long-Term Disability Benefit

 

1.28

Normal Retirement

 

1.29

Normal Retirement Age

 

1.30

Normal Retirement Benefit

 

1.31

Participant

 

1.32

Participating Company

 

1.33

Pension Plan

 

1.34

Plan

 

1.35

Plan Administrator or Administrator

 

1.36

Plan Year

 

1.37

Prior A&E Plan Provisions

 

1.38

Prior Ruddick Plan Provisions

i


 

 

1.39

Retirement

 

 

1.40

Service

 

 

1.41

Severance

10 

 

 

1.42

Standard Form of Benefit

10 

 

 

1.43

Termination of Employment

10 

 

 

1.44

Total Disability

11 

 

 

Article II. ELIGIBILITY AND PARTICIPATION

11 

 

 

 

 

2.1

Eligibility

11 

 

 

2.2

Participation

11 

 

 

2.3

Duration of Participation

11 

 

 

 

 

 

Article III. RETIREMENT BENEFITS

12 

 

 

 

 

 

3.1

Normal or Deferred Retirement Benefit

12 

 

 

3.2

Early Retirement Benefit

12 

 

 

3.3

Disability Retirement Benefit

13 

 

 

3.4

Death Prior to Benefit Commencement

13 

 

 

3.5

Reemployment

13 

 

 

3.6

Change in Control

13 

 

 

 

Article IV. PRE-RETIREMENT DEATH BENEFIT

14 

 

 

 

 

4.1

Eligibility

14 

 

 

4.2

Commencement and Method

14 

 

 

4.3

Amount

14 

 

 

 

Article V. SEVERANCE BENEFIT

14 

 

 

Article VI. CONDITION

14 

 

 

Article VII. ADMINISTRATION OF THE PLAN

15 

 

 

 

 

7.1

Powers and Duties of the Committee

15 

 

 

7.2

Agents

15 

 

 

7.3

Reports to Board

15 

 

 

7.4

Structure of Committee

15 

 

 

7.5

Adoption of Procedures of Committee

15 

 

 

7.6

Instructions for Payments

15 

 

 

7.7

Claims for Benefits

16 

 

 

7.8

Hold Harmless

17 

 

 

7.9

Service of Process

18 

 

 

 

Article VIII. DESIGNATION OF BENEFICIARIES

18 

 

 

 

 

8.1

Beneficiary Designation

18 

 

 

8.2

Failure to Designate Beneficiary

18 

 

 

Article IX. WITHDRAWAL OF PARTICIPATING COMPANY

18 

 

 

 

 

9.1

Withdrawal of Participating Company

18 

 

 

9.2

Effect of Withdrawal

18 

 

 

ii


 

Article X. AMENDMENT OR TERMINATION OF THE PLAN

19 

 

 

 

10.1

Right to Amend or Terminate Plan

19 

 

10.2

Notice

20 

 

 

Article XI. GENERAL PROVISIONS AND LIMITATIONS

20 

 

 

 

11.1

No Right to Continued Employment

20 

 

11.2

Payment on Behalf of Payee

20 

 

11.3

Nonalienation

20 

 

11.4

Missing Payee

21 

 

11.5

Required Information

21 

 

11.6

No Trust or Funding Created

21 

 

11.7

Binding Effect

21 

 

11.8

Merger or Consolidation

21 

 

11.9

Mandatory Cash-Out

22 

 

11.10

Acceleration of Payment

22 

 

11.11

Delay of Payment

22 

 

11.12

Participant’s Right to Change Payment Elections by December 31, 2007

22 

 

11.13

Entire Plan

22 

 

 

 

iii


 

 

HARRIS TEETER SUPERMARKETS, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

Amendment and Restatement

Effective January 1, 2016

Preamble

This Plan is designed to enhance the earnings and growth of the Company and the Participating Companies. The Plan rewards selected key Employees with retirement and survivor benefits.  Such benefits are intended to supplement retirement and survivor benefits from other sources. By providing such supplemental benefits, the Plan enables the Company and the Participating Companies to attract superior key Employees, to encourage them to make careers with the Company or the Participating Companies, and to give them additional incentive to make the Company and the Participating Companies more profitable.

The Plan was amended and restated effective as of January 1, 2005 to comply with the requirements of Section 409A of the Internal Revenue Code (“Code”) and the regulations and other guidance issued thereunder, as in effect from time to time.  To the extent a provision of the Plan is contrary to or fails to address the requirements of Code Section 409A and related treasury regulations, the Plan shall be construed and administered as necessary to comply with such requirements to the extent allowed under applicable treasury regulations until the Plan is appropriately amended to comply with such requirements.  The benefits provided under the Plan that are subject to Code Section 409A include benefits earned and vested prior to January 1, 2005.

The January 1, 2005 restatement also contained certain amendments, effective October 1, 2005, that were intended to coordinate the benefit formulas under this Plan with certain amendments made to the Company’s qualified retirement plans effective October 1, 2005.  The January 1, 2005 restatement also retained all provisions contained in the previous October 1, 1989 restatement of the Plan, which merged into one plan all the supplemental executive retirement plans maintained by the Company and its Affiliates (the “Prior Plans”). The Plan continues to provide the same level of supplemental benefits as was provided each Employee participating in one of the Prior Plans.

This restatement effective as of January 1, 2016 amends the Plan to incorporate amendments to the prior restatement and to permit continued benefits for Participants who become employees of an Affiliate.

ARTICLE I.

REFERENCES, CONSTRUCTION AND DEFINITIONS

Unless otherwise indicated, all references to articles, sections and subsections shall be to the Plan as set forth in this document. The Plan and all rights thereunder shall be construed and enforced in accordance with ERISA and, to the extent that state law is applicable, the laws of the State of North Carolina. The article titles and the captions preceding sections and subsections have been inserted solely as a matter of convenience and in no way define or limit the scope or intent of any provision. When the context so requires, the singular includes the plural. Whenever used herein

 


 

and capitalized, the following terms shall have the respective meanings indicated unless the context plainly requires otherwise.

1.1        Accrual Fraction :  A fraction, the numerator of which is the number of years of Credited Service the Participant completed as of the applicable date (but not beyond the Participant’s 65th birthday) and the denominator of which is 20; provided, however, in no event shall the Accrual Fraction exceed “1. 0.”

1.2        Accrued SERP Benefit :   An amount determined by multiplying the Participant’s “Benefit Percentage” times the Participant’s Final Average Earnings times the Participant’s Accrual Fraction and reduced by the following:  (1) the Participant’s Assumed Pension Plan Retirement Benefit, (2) the Participant’s Assumed Social Security Benefit, (3) the Participant’s Assumed Profit Sharing Retirement Benefit, and (4) the Participant’s Assumed Automatic Retirement Contribution Retirement Benefit. The Participant’s “Benefit Percentage” shall be fifty-five percent (55%).  Such Benefit percentage shall be increased for a named executive officer of the Company (as determined for federal securities law reporting purposes), but not to more than 60% in the aggregate, as follows:

(a)     One percent (1%) per complete fiscal year (October 1 – September 30) for years of Service beginning after September 30, 2007 in excess of twenty (20) years of Service but only for Service while serving as a named executive officer; and

(b)     If the Participant is party to a Change in Control and Severance Agreement between the Company, or an Affiliate, and the Participant, and the Participant’s employment is terminated within twenty-four (24) months following a Change in Control other than for cause, death or disability or if a good reason termination occurs (as provided and defined in such agreement), by additional percentage points equal to the Change in Control multiple (e.g., 2.5 or 2.99) used to determine Participant’s Change in Control benefit under a Change in Control agreement between the Participant and the Company or an Affiliate.

Effective December 31, 2002, in the event a Participant is removed from active participation in the Plan pursuant to Section 2.3 prior to the date the Participant is eligible to Retire, the Participant’s Accrued SERP Benefit shall be calculated by using:

(x)     the Participant’s Credited Service as of the date of the Participant’s removal from active participation;

(y)     the lesser of (i) the Participant’s Final Average Earnings as of the date of the Participant’s removal from active participation or (ii) the Participant’s Final Average Earnings as of the Participant’s Termination of Employment; and

(z)     the reductions described in (1), (2), (3) and (4) above as of the Participant’s Termination of Employment; and

for purposes of determining such Participant’s eligibility to Retire, such Participant shall continue to earn Credited Service and be credited with future increases in age as if the Participant had not been removed from active participation in the Plan.

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In the event a Participant is removed from active participation in the Plan pursuant to Section 2.3 after the date the Participant is eligible to Retire, the Participant’s Accrued SERP Benefit shall be calculated by using:

(a)     the Participant’s Credited Service and Final Average Earnings as of the date of the Participant’s removal from active participation; and

(b)     the reductions described in (1), (2), (3) and (4) above as of the Participant’s Termination of Employment;

provided, however, if such Participant was eligible to Retire as of November 21, 2002, in no event shall such Participant’s Accrued SERP Benefit be less than the benefit such Participant would have received if the Participant’s Termination of Employment had occurred on November 21, 2002.

Notwithstanding any other provision of the Plan, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the amount of any such Participant’s Accrued SERP Benefit under the Plan shall be frozen as of the Closing Date.

1.3        Affiliate :  The Company, and any corporation or other entity with which the Company would be considered a single employer under Code Sections 414(b) or (c), provided that the language “at least 50 percent” is used instead of “at least 80 percent” each place it appears in applying Code Sections 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code Section 414(b) and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses under common control under Code Section 414(c).

1.4        Assumed Automatic Retirement Contribution Retirement Benefit :  For a Participant who is not eligible to participate in the Pension Plan on or after October 1, 2005, the annual retirement benefit a Participant would receive under the Automatic Retirement Contribution Subaccount of the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan (f/k/a Ruddick Retirement and Savings Plan) or, effective as of January 1, 2016, the company automatic contributions account under The Kroger Co. 401(k) Retirement Savings Plan and the Make-Up ARC Contribution under the Harris Teeter Supermarkets, Inc. Flexible Deferral Plan (f/k/a Ruddick Corporation Flexible Deferral Plan) beginning effective October 1, 2005, computed by converting such combined amounts to the appropriate annuity form pursuant to the actuarial equivalence assumptions provided under Section 1.3 of the Pension Plan.  For purposes of computing the Assumed Automatic Retirement Contribution Retirement Benefit, if the Participant is younger than age 60 on such date, the value of such Subaccount is first projected to age 60, using PBGC interest rates for deferred annuities in effect on the Participant’s Retirement date.

1.5        Assumed Pension Plan Retirement Benefit :  The actual annual retirement benefit a Participant would receive at the later of age 60 or actual date of Retirement (but not later than age 65), pursuant to the Pension Plan calculated with the following assumptions:

(a)     A married Participant elects to receive the retirement benefit as a joint and 75% annuity pursuant to Section 4.1(a)(1) of the Pension Plan.

(b)     A single Participant elects to receive the retirement benefit as a life and 10 year certain annuity as provided in Section 4.1(a)(2) of the Pension Plan.

3


 

(c)     The service requirement for early retirement under the Pension Plan is 10 years.

(d)     The Offset Amount (e.g. the automatic retirement contribution amount under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan and, on and after January 1, 2016 the company automatic contribution amounts under The Kroger Co. 401(k) Retirement Savings Account Plan) under the Pension Plan does not apply.

(e)     For a Participant whose actual annual retirement benefit is calculated by reference to the Prior Ruddick Plan Provisions because of the minimum benefits provided under Section 3.2(b) or Section 3.3(b) of the Pension Plan, the Prior Plan Minimum Benefit (under Section 4.05 of the Prior Ruddick Plan Provisions), if any, is computed by converting the Prior Plan Account Balance (as defined in the Prior Ruddick Plan Provisions) and Credited Interest (as defined in the Prior Ruddick Plan Provisions) to the appropriate annuity form using Pension Benefit Guaranty Corporation (“PBGC”) annuity rates in effect on the Participant’s Retirement date. For purposes of computing the Prior Plan Minimum Benefit, if the Participant is younger than age 60 on such date, the amount of the Prior Plan Account Balance and Credited Interest is first projected to age 60, using PBGC interest rates for deferred annuities in effect on the Participant’s Retirement date.

(f)     For a Participant whose actual annual retirement benefit is calculated by reference to the Prior A&E Plan provisions because of the minimum benefits provided under Section 3.2(b) or Section 3.3(b) of the Pension Plan, the Supplemental Retirement Benefit (under Article 11 of the Prior A&E Plan Provisions), if any, due to Accumulated Contributions or a Profit Sharing Account (each as described in Article 11 of the Prior A&E Plan Provisions) is computed by converting the Accumulated Contributions or Profit Sharing Account to the appropriate annuity form using PBGC immediate annuity rates in effect on the Participant’s Retirement date. For purposes of computing the Supplemental Retirement Benefit, if the Participant is younger than age 60 on such date, the amount of the Accumulated Contributions or Profit Sharing Account is first projected to age 60, using PBGC interest rates for deferred annuities in effect on the Participant’s Retirement date.

1.6        Assumed Profit Sharing Retirement Benefit :  The annual retirement benefit a Participant would receive under a profit sharing plan sponsored by the Company or a Participating Company, including the A&E Profit Sharing Subaccount of the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan (but excluding any other accounts or benefits under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan), computed by converting such Subaccount to the appropriate annuity form using PBGC immediate annuity rates in effect on the Participant’s Retirement date.  For purposes of computing the Assumed Profit Sharing Retirement Benefit, if the Participant is younger than age 60 on such date, the value of the Account is first projected to age 60, using PBGC interest rates for deferred annuities in effect on the Participant’s Retirement date.

1.7        Assumed Social Security Benefit :  The annual primary insurance amount available to the Participant at age 65 under the Social Security Act as in effect at the time of his Termination of Employment without regard to whether such amount actually commences to be paid and without regard to any increase in the Social Security base or benefit levels that may take effect after such date. If a Participant incurs a Termination of Service before attaining age 65, the Assumed Social

4


 

Security Benefit will be determined as though the Participant had continued to receive Earnings until age 65 at the same rate as in effect during the last calendar year of employment. This Assumed Social Security Benefit will be estimated using available Earnings up to 5 years with prior earnings estimated based on a wage index derived from the Bureau of Labor Statistics compilation of the average weekly earnings of manufacturing workers.

1.8        Beneficiary :  The beneficiary or beneficiaries designated by a Participant pursuant to Article VIII to receive the benefits, if any, payable on behalf of the Participant under the Plan after the death of such Participant who is not survived by an Eligible Spouse and following the commencement of payment of any of the retirement benefits under Article III, or, when there has been no such designation or an invalid designation, the individual or entity, or the individual or entities, who will receive such amount.

1.9        Board :  The Board of Directors of the Company.

1.10      Change in Control :  With respect to a Participant, a “change in ownership,” a “change in effective control,” or a “change in the ownership of substantial assets” of a corporation as described in Treasury Regulations Section 1.409A-3(i)(5) (which events are collectively referred to herein as “Change in Control events”).  Notwithstanding any provision herein to the contrary, to qualify as a Change in Control, the occurrence of the Change in Control event must be objectively determinable and any requirement that any person, such as the Committee, certify the occurrence of a Change in Control event must be strictly ministerial and not involve any discretionary authority.  To constitute a Change in Control with respect to a Participant, the Change in Control event must relate to (i) the corporation for which the Participant is performing services at the time of the Change in Control; (ii) the corporation that is liable for the payment of the deferred compensation; or (iii) a corporation that is a majority shareholder of a corporation identified in subparagraph (i) or (ii) above, or any corporation in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending in a corporation identified in subparagraph (i) or (ii) above.

(a)     A “change in ownership” of a corporation occurs on the date that any one person, or more than one person acting as a group, acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation.  However, if any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in ownership of the corporation (or to cause a change in the effective control of the corporation (within the meaning of paragraph (b) below)).

(b)     Notwithstanding that a corporation has not undergone a change in ownership under paragraph (a) above, a “change in effective control” of a corporation occurs on the date that either:

(i)     Any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the corporation

5


 

6


 

possessing 30 percent or more of the total voting power of the stock of such corporation; or

(ii)     A majority of members of the corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the corporation’s board of directors prior to the date of the appointment or election.

For purposes of this paragraph (b), the term corporation refers solely to the relevant corporation identified in the opening paragraph of this Section 1.10, for which no other corporation is a majority shareholder.

(c)     A “change in the ownership of substantial assets” of a corporation occurs on the date that any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the corporation immediately prior to such acquisition or acquisitions.  For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

1.11      Code :  The Internal Revenue Code of 1986, as now in effect or as hereafter amended; and, where the context requires, a reference to the Code shall include a reference to any proposed or final treasury regulations or similar guidance issued thereunder. All citations to sections of the Code or regulations are to such sections as they may from time to time be amended or renumbered.

1.12      Committee :  The “SERP Administrative Committee” appointed by the Board of Directors of Harris Teeter Supermarkets, Inc. and responsible for administering the Plan as provided for in Article VII.

1.13      Company :  Harris Teeter Supermarkets, Inc. (f/k/a Ruddick Corporation), a North Carolina corporation, or any entity which succeeds to its rights and obligations with respect to the Plan.

1.14      Credited Service :  With respect to a Participant, each Plan Year during which the Participant completes at least 1,000 Hours of Service (as defined in the Pension Plan).  In addition, periods of Total Disability commencing while such Participant is employed by the Participating Company or an Affiliate also shall be counted under the Plan in determining Credited Service.  If a Participant is a party to a Change in Control and Severance Agreement between the Company, or Affiliate, and the Participant, and the Participant’s employment is terminated within twenty-four (24) months of a Change in Control other than for cause, death, or disability or if a good reason termination occurs (as provided and defined in such agreement), the Participant shall be credited with additional years of Credited Service equal to the Change in Control multiple (e.g. 2.0, 2.5, or 2.99) used to determine Participant’s Change in Control benefit under such agreement.

7


 

1.15      Deferred Retirement :  Termination of Employment, other than on account of death, after the date the Participant attains Normal Retirement Age.

1.16      Deferred Retirement Benefit :  The retirement benefit calculated pursuant to Section 3.1.

1.17      Disability Retirement :  With respect to a Participant who incurs a Termination of Employment on account of Total Disability, the Participant shall be deemed to have taken Disability Retirement on the date the Long-Term Disability Benefit ceases to be available to the Participant, provided the Participant’s Total Disability continues until Normal Retirement Age.

1.18      Disability Retirement Benefit :  The retirement benefit calculated pursuant to Section 3.3.

1.19      Early Retirement :  Termination of Employment, other than on account of death, after attaining age 55 (but prior to attaining Normal Retirement Age) and completing 10 years of Credited Service.

1.20      Early Retirement Benefit :  The retirement benefit calculated pursuant to Section 3.2.

1.21      Earnings :  With respect to a Participant, annual cash compensation actually paid by the Participating Company or an Affiliate to the Participant for Service as reported or reportable on IRS Form W-2 for Federal income tax purposes (or similar form required for such purpose) on a calendar year basis, plus the amount, if any, of compensation which, but for the Participant’s election to defer the receipt thereof pursuant to Section 125, 132(f)(4) or 401(k) of the Code or any other plan of deferred compensation (including, without, limitation, the Harris Teeter Supermarkets, Inc. Flexible Deferral Plan (f/k/a the Ruddick Corporation Flexible Deferral Plan (the “ FDP ”)), would have been reflected on Form W-2; however, such earnings shall exclude all distributions made by the FDP.  The foregoing notwithstanding, Earnings shall not include: (i) any sums paid by a Participating Company or Affiliate as payment for or reimbursement of any expenses including relocation, foreign housing and travel expenses, regardless of whether such sums are taxable income to the Participant, (ii) payment for premiums or similar fees or expenses related to any life insurance plan or program, (iii) tax gross up payments and payment of foreign taxes, (iv) amounts of a Profit Sharing Award under the American & Efird, Inc. Employees' Profit Sharing Plan actually paid to or deferred by an Employee, (v) amounts realized from the exercise of  a non-qualified stock option, from the sale, exchange or other disposition of stock acquired under a qualified stock option, when restricted stock (or property) held by the Participant becomes freely transferable or is no longer subject to a substantial risk of forfeiture, or from dividends paid on restricted stock prior to vesting that are otherwise reportable as wages, and (vi) any severance paid after the Participant’s employment with the Participating Employers or Affiliates ends or separation pay pursuant to a separation agreement.  Notwithstanding the above, if the bonus payable to the Company’s Chief Executive Officer and Chief Financial Officer under the Executive Officer Incentive Bonus Plan is paid during the calendar year ending on December 31, 2014, such amounts shall be added to and deemed to be Earnings for the calendar year ending on December 31, 2013.

8


 

1.22      Effective Date :  The original effective date of the Plan is October 1, 1983. The Effective Date of the Plan, as amended and restated herein, is January 1, 2016.

1.23      Employee :  A person who is a common-law employee of the Participating Company or an Affiliate.

1.24      Eligible Spouse :  The spouse of a Participant who is legally married (as determined by the Committee) on the date which payments from this Plan to the Participant begin or immediately before the Participant’s death.

1.25      ERISA :  The Employee Retirement Income Security Act of 1974, as now in effect or as hereafter amended. All citations to sections of ERISA are to such sections as they may from time to time be amended or renumbered.

1.26      Final Average Earnings :  As of the Participant’s Termination of Employment, the Participant’s average annual Earnings during the highest 3 calendar years out of the last ten calendar years preceding such Termination of Employment; provided, however, if a Participant is at least age sixty (60) and employed by American & Efird, Inc. at the time of the Participant’s Termination of Employment, Final Average Earnings shall mean the Participant’s average annual earnings during the Participant’s highest 3 calendar years during which the Participant was employed by American & Efird, Inc. or an Affiliate.  If the Participant does not have 3 calendar years of Earnings, then Final Average Earnings shall mean the Participant’s average annual Earnings. Provided, however, the Participant’s Earnings shall be considered to have continued during a period of Total Disability commencing while such participant is an Employee at the rate of such Participant’s Earnings in effect during the calendar year next preceding commencement of such Total Disability.

Notwithstanding the above, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the determination of Final Average Earnings shall consider annualized Earnings amounts paid to such Participants for the 2011 calendar year.  Such annualized Earnings amount shall be determined by adding the actual Earnings paid to a Participant during the portion of the 2011 calendar year ending on the Closing Date plus a deemed amount of continued base salary (assuming no salary reduction or salary deferral contributions) for the period from the Closing Date through December 31, 2011, and subtracting the amount of the Participant’s 2012 incentive bonus paid prior to the Closing Date.

1.27      Long-Term Disability Benefit :  Any disability benefits available to a Participant pursuant to the long-term disability plan of the Participating Company or an Affiliate.

1.28      Normal Retirement :  Termination of Employment, other than on account of death, on the date the Participant attains Normal Retirement Age.

1.29      Normal Retirement Age :   Age 60.

1.30      Normal Retirement Benefit :  The retirement benefit calculated pursuant to Section 3.1.

9


 

1.31      Participant :  As of any date, any individual who commenced participation in the Plan as provided in Article II and who is either (i) an Employee, (ii) a former Employee who is eligible for a benefit under the Plan, or (iii) a former Employee whose employment terminated on account of Total Disability and who may later become eligible for a benefit under the Plan.

1.32      Participating Company :  The Company, or an Affiliate which, by action of its board of directors or equivalent governing body and with the written consent of the Board, has adopted the Plan; provided that the Board may, subject to the foregoing proviso, waive the requirement that such board of directors or equivalent governing body effect such adoption. By its adoption of or participation in the Plan, a Participating Company shall be deemed to appoint the Company its exclusive agent to exercise on its behalf all of the power and authority conferred by the Plan upon the Company and accept the delegation to the Committee of all the power and authority conferred upon it by the Plan. The authority of the Company to act as such agent shall continue until the Plan is terminated as to the Participating Company. The term “Participating Company” shall be construed as if the Plan were solely the Plan of such Participating Company, unless the context plainly requires otherwise.

1.33      Pension Plan :  The “Harris Teeter Supermarkets, Inc. Employees’ Pension Plan” (f/k/a the “Ruddick Corporation Employees’ Pension Plan,” as amended and restated effective October 1, 2005, and as it may be amended from time to time hereafter.

1.34      Plan : The Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan (f/k/a the Ruddick Supplemental Executive Retirement Plan) as contained herein and as it may be amended from time to time hereafter.

1.35      Plan Administrator or Administrator :  The Committee.

1.36      Plan Year :  The 12 consecutive month period commencing October 1 and ending on the next September 30.

1.37      Prior A&E Plan Provisions : The provisions set forth in the document entitled “American & Efird Mills, Inc. Employees’ Pension Plan,” effective September 30, 1986, and the amendment adopted August 14, 1987, which provisions were in effect immediately prior to the effective date of the merger of such plan into the Pension Plan.

1.38      Prior Ruddick Plan Provisions :  The provisions set forth in the document entitled “Retirement Plan for Employees of Ruddick Corporation,” effective September 30, 1986, and the amendment adopted February 19, 1988, which provisions were in effect immediately prior to the effective date of the merger of such plan into the Pension Plan.

1.39      Retirement : A Participant’s Normal Retirement, Early Retirement, Deferred Retirement or Disability Retirement. The term “Retire” means the act of taking Retirement.

1.40      Service : Employment with the Company or any Affiliate; provided, however, that Service does not include periods of employment with an Affiliate rendered prior to the date the Affiliate became an Affiliate. Service includes periods of employment with a predecessor employer. Service may also include any period of a Participant’s prior employment by any  

10


 

organization upon such terms and conditions as the Board may approve. Notwithstanding any provision in the Plan to the contrary, periods of Total Disability constitute Service.

1.41      Severance : Termination of Employment other than on account of Retirement, death or Total Disability. With respect to a Participant whose employment with the Participating Company or an Affiliate terminates on account of Total Disability, Severance shall occur if and when the Total Disability ceases prior to Disability Retirement and the Participant does not return to the employment of the Participating Company or an Affiliate.

1.42      Standard Form of Benefit : The method for payment of benefits commencing pursuant to Article III (Retirement Benefits) shall be as follows:

(a)     For a Participant who has an Eligible Spouse on the date on which the payments from the Plan are to begin, payable monthly during the Participant’s lifetime, with an automatic 75% survivor benefit payable monthly to the Participant’s surviving Eligible Spouse for his or her lifetime. However, if the Participant’s Eligible Spouse is more than 10 years younger than the Participant, the monthly income payable to the Participant (and, consequently, the monthly income payable to the surviving Eligible Spouse) will be reduced actuarially using the actuarial assumptions under the Pension Plan and assuming that the Eligible Spouse is 10 years older than such Eligible Spouse’s actual age, so that the retirement benefit and the survivor benefit for the Eligible Spouse, when considered together, is the actuarial equivalent of the retirement benefit and the survivor benefit for the Eligible Spouse which would have been payable had the Eligible Spouse been the same age as the Participant. Benefits payable to an Eligible Spouse shall commence within 60 days of the Participant’s death.

(b)     For a Participant who does not have an Eligible Spouse on the date on which the payments from the Plan are to begin, payable monthly during the Participant’s lifetime or for a 10-year certain period, if longer. Benefits payable following the death of such a Participant shall commence to such Participant’s Beneficiary within 60 days of the Participant’s death.

1.43      Termination of Employment :  The termination of employment of the Participant with the Participating Company and all of its Affiliates that are considered a single employer within the meaning of Code Sections 414(b) and 414(c), provided that the language “at least 50 percent” is used instead of “at least 80 percent” each place it appears in applying Code Sections 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code Section 414(b), and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Code Section 414(c).  Whether a Termination of Employment has occurred is determined based on whether the facts and circumstances indicate that the employer and the Participant reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Participant would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or an independent contractor) over the

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immediately preceding 36-month period (or the full period of services to the employer if the Participant has been providing services to the employer less than 36 months).

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Temporary absences from employment while the Participant is on military leave, sick leave, or other bona fide leave of absence will not be considered a Termination of Employment if the period of such leave does not exceed six months, or if longer, so long as the Participant’s right to reemployment with the Participating Company is provided either by statute or by contract.  However, if the period of leave exceeds six months and the Participant’s right to reemployment is not provided either by statute or by contract, a Termination of Employment is deemed to occur on the first day immediately following such six-month period.  Notwithstanding the foregoing, where a leave of absence is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six months, and where such impairment causes the Participant to be unable to perform the duties of his or her position of employment or any substantially similar position of employment, a 29-month period of absence may be substituted for such six-month period.

1.44      Total Disability :   Any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months which results in (i) the Participant being unable to engage in any substantial gainful activity or (ii) the Participant receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Participating Company or an Affiliate.  In addition, the Participant will be deemed Totally Disabled if determined to be totally disabled by the Social Security Administration.  In the event that a Participant is not determined to be Totally Disabled by the Social Security Administration as provided in the preceding sentence, the Committee, in its sole discretion, shall determine whether such Participant has suffered a Total Disability or is Totally Disabled.  In making such determination, the Committee shall apply the definitions and criteria set forth in the first sentence of this Section and, if consistent with such criteria, may require such medical proof as it deems necessary, including the certificate of one or more licensed physicians selected by the Committee; the decision of the Committee as to Total Disability shall be final and binding.  “Totally Disabled” means being under a Total Disability.

ARTICLE II.

ELIGIBILITY AND PARTICIPATION

2.1        Eligibility .  An Employee (a) who is a member of the Participating Company’s or an Affiliate’s “select group of management or highly compensated employees”, as defined in Sections 201(2), 301(a)(3) and 401(a) of ERISA, as amended, and (b) whom the Committee designates, shall become a Participant in the Plan.

2.2        Participation .  An Employee who is eligible to become a Participant shall become a Participant on a date determined by the Committee in its discretion. The Committee shall notify in writing an eligible Employee of such Employee’s commencement of participation in the Plan and the resulting benefits. Each Employee participating in the Plan prior to the Effective Date of this amendment and restatement shall continue participation in the plan as of such date.

2.3        Duration of Participation .  A Participant shall continue to be a Participant until the later of the Participant’s Termination of Employment, the Participant’s Severance, or the date the Participant is no longer entitled to a benefit under this Plan; provided, however, the Committee shall have the discretionary power and authority to remove a Participant from active participation in the Plan at any time.

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ARTICLE III.

RETIREMENT BENEFITS

3.1        Normal or Deferred Retirement Benefit .

(a)      Eligibility .  Upon a Participant’s Normal or Deferred Retirement the Company shall pay the Participant the “Normal or Deferred Retirement Benefit” described in this Section 3.1.

(b)      Commencement and Method .  Payment of the Normal or Deferred Retirement Benefit shall be made in the Standard Form of Benefit and shall begin on the first day of the month that is six months following the Participant’s Normal or Deferred Retirement.  The initial payment shall include a balloon payment equal to six monthly payments plus interest at the rate of seven percent (7%) per annum on each monthly payment.

(c)      Amount .  The amount of each monthly payment of the Normal or Deferred Retirement Benefit shall equal one-twelfth of the Participant’s Accrued SERP Benefit. No additional benefits shall accrue under this Plan after a Participant attains age 65.

Notwithstanding the above, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the amount of any such Participant’s Normal or Deferred Retirement Benefit shall be based upon the Accrued SERP Benefit as of the Closing Date.

3.2        Early Retirement Benefit .

(a)      Eligibility .  Upon a Participant’s Early Retirement the Company shall pay the Participant the “Early Retirement Benefit” described in this Section 3.2.

(b)      Commencement and Method .  Payment of the Early Retirement Benefit shall be made in the Standard Form of Benefit and shall begin on the first day of the month that is six months following the Participant’s Early Retirement.  The initial payment shall include a balloon payment equal to six monthly payments plus interest at the rate of seven percent (7%) per annum on each monthly payment.  Notwithstanding the preceding, a Participant may elect to delay payment of his Early Retirement Benefit by submitting an election to the Committee, provided that (i) any such election must be made at least 12 months before the Participant’s Early Retirement and (ii) the payment of such Early Retirement Benefit will be further delayed to a date that is 5 years from the date the first payment of the Early Retirement Benefit would otherwise have commenced.

(c)      Amount . The amount of each monthly payment of the Early Retirement Benefit shall equal one-twelfth of the Participant’s Accrued SERP Benefit. If payment of the Early Retirement Benefit commences prior to the Participant’s attainment of Normal Retirement Age, the Early Retirement Benefit shall equal one-twelfth of the Participant’s Accrued SERP Benefit reduced by .4167 percent for each month (5 percent annually) by which payment begins before the first month following the month in which the Participant will attain Normal Retirement Age.

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Notwithstanding the above, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the amount of any such Participant’s Early Retirement Benefit shall be based upon the Accrued SERP Benefit as of the Closing Date.

3.3        Disability Retirement Benefit .

(a)        Eligibility .  Upon a Participant’s Disability Retirement the Company shall pay the Participant the “Disability Retirement Benefit” described in this Section 3.3.

(b)        Commencement and Method . Payment of the Disability Retirement Benefit shall be made in the Standard Form of Benefit and shall begin in the first month following the participant’s Disability Retirement.

(c)        Amount .  The amount of each monthly payment of the Disability Retirement Benefit shall equal one-twelfth of the Participant’s Accrued SERP Benefit.

Notwithstanding the above, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the amount of any such Participant’s Disability Retirement Benefit shall be based upon the Accrued SERP Benefit as of the Closing Date.

3.4        Death Prior to Benefit Commencement .  If a married Participant dies following eligibility to Retire, whether or not the Participant had actually Retired, and prior to commencement of payment of the retirement benefit under this Article III, the Eligible Spouse’s benefit is a monthly amount equal to 75 percent of the deceased Participant’s Early, Normal, Deferred or Disability Retirement Benefit if the Participant had retired or, if the Participant had not yet retired, 75 percent of such Early, Normal, Deferred or Disability Retirement Benefit calculated as if such Participant had retired at the Participant’s date of death, payable monthly to the Eligible Spouse during his or her lifetime. Benefits payable to an Eligible Spouse shall commence within 60 days of the participant’s death. If a Participant is not survived by an Eligible Spouse upon death following eligibility to Retire, whether or not the Participant had actually Retired, and prior to commencement of payment of the retirement benefit under this Article III, then no benefit shall be payable on behalf of such Participant.

Notwithstanding the above, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the amount of benefit under this Section 3.4 shall be frozen as of the Closing Date and shall be based upon the Accrued SERP Benefit of the deceased Participant as of the Closing Date.

3.5        Reemployment .  If a Retired Participant again becomes an Employee, the Participant’s Retirement benefit payments payable after the date of reemployment shall continue unaffected by such reemployment and the Retired Participant shall not be eligible to accrue any additional benefit under this Plan.

3.6        Change in Control .  Notwithstanding any provision in the Plan to the contrary and subject to Article X below, with regard to each Participant who is an Employee at the time of a Change in Control, if the Plan is not terminated pursuant to Section 10.1, the Participant’s Accrued

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SERP Benefit shall become nonforfeitable and shall be paid in accordance with this Article III or Article IV, if applicable, and shall not be subject to the early payment reduction of the monthly amount of such Accrued SERP Benefit when payment commences prior to such Participant’s Normal Retirement Age.

ARTICLE IV.

PRE-RETIREMENT DEATH BENEFIT

4.1        Eligibility .  Subject to Section 3.4, if a Participant’s death occurs (a) (i) while the Participant is an Employee of the Participating Company or an Affiliate, and (ii) after such Participant has been a Participant for at least 5 years, or (b) while Totally Disabled but prior to Disability Retirement, and the Participant is survived by an Eligible Spouse, the Company shall pay the Participant’s Eligible Spouse for his or her lifetime the “Pre-Retirement Death Benefit” described in this Article IV.

4.2        Commencement and Method .  Payment of the Pre-Retirement Death Benefit shall be made in monthly payments and shall begin in the first month following the month of the Participant’s death and in any event within 60 days of the Participant’s death.

4.3        Amount .  Each monthly payment of the Pre-Retirement Death Benefit shall equal the product of (a) 75 percent of the deceased Participant’s Early Retirement Benefit (described in Section 3.2(c)), calculated assuming the Participant remained employed by the Participating Company or Affiliate at the same level of Earnings in effect at the time of death until age 55 and had then died and (b) a fraction the numerator of which is the Participant’s Credited Service at the date of death and the denominator of which is the Credited Service the Participant would have had if he or she had remained employed by the Participating Company or Affiliate until attaining age 55.

Notwithstanding the above, for Participants who were employed by American & Efird LLC immediately prior to the Closing Date, the amount of the benefit, if any, under this Section 4.3 shall be frozen as of the Closing Date and shall be based upon the Accrued SERP Benefit of the deceased Participant as of the Closing Date.

ARTICLE V.

SEVERANCE BENEFIT

No benefits are payable under this Plan upon a Participant’s Severance. If a Participant who has a Severance again becomes an Employee, such former Participant shall not again become a Participant unless the Committee, in the exercise of its discretion, notifies the former Participant in writing that the former Participant is again eligible to participate in the Plan pursuant to Article II.

ARTICLE VI.

CONDITION

Notwithstanding any provision in this Plan to the contrary, if a Participant dies as a result of suicide within 24 months after such Participant’s commencement of participation in the Plan, the participant’s benefits shall be forfeited and no benefit shall be paid to the Participant’s Eligible Spouse.

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ARTICLE VII.

ADMINISTRATION OF THE PLAN

7.1        Powers and Duties of the Committee .  The Committee shall have general responsibility for the administration of the Plan (including but not limited to complying with reporting and disclosure requirements, and establishing and maintaining Plan records). In the exercise of its sole and absolute discretion, the Committee shall interpret the Plan’s provisions and determine the eligibility of individuals for benefits.

7.2        Agents .  The Committee may engage such legal counsel, certified public accountants and other advisers and service providers, who may be advisers or service providers for the participating Company or an Affiliate, and make use of such agents and clerical or other personnel, as it shall require or may deem advisable for purposes of the Plan. The Committee may rely upon the written opinion of any legal counsel or accountants engaged by the Committee, and may delegate to any such agent, or to any subcommittee or member of the Committee its authority to perform any act hereunder, including, without limitation, those matters involving the exercise of discretion, provided that such delegation shall be subject to revocation at any time at the discretion of the Committee.

7.3        Reports to Board .  The Committee shall report to the Board, or to a committee of the Board designated for that purpose, as frequently as the Board or such committee shall specify, with regard to the matters for which the Committee is responsible under the Plan.

7.4        Structure of Committee .  The Committee shall consist of two or more members, each of whom shall be appointed by, shall remain in office at the will of, and may be removed, with or without cause, by the Board. Any member of the Committee may resign at any time. The Committee shall select one of its members as a Chairman. The Committee shall appoint a Secretary to keep minutes of its meetings and the Secretary may or may not be a member of the Committee. No member of the Committee shall be entitled to act on or decide any matter relating solely to such member or any of such member’s rights or benefits under the Plan. In the event the Committee is unable to act in any matter by reason of the foregoing restriction, the Board shall act on such matter. The members of the Committee shall not receive any special compensation for serving in the capacities as members of the Committee but shall be reimbursed for any reasonable expenses incurred in connection therewith. Except as otherwise required by ERISA, no bond or other security shall be required of the Committee or any member thereof in any jurisdiction. Any member of the Committee, any subcommittee or agent to whom the Committee delegates any authority, and any other person or group of persons, may serve in more than one fiduciary capacity with respect to the Plan.

7.5        Adoption of Procedures of Committee .  The Committee shall establish its own procedures and the time and place for its meetings, and provide for the keeping of minutes of all meetings. Any action of the Committee may be taken upon a unanimous vote of the members of the Committee at a meeting. The Committee may also act without meeting by unanimous written consent.

7.6        Instructions for Payments .  All requests of or directions to the Company for payment or disbursement shall be signed by a member of the Committee or such other person or

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persons as the Committee may from time to time designate in writing. This person shall cause to be kept full and accurate accounts of payments and disbursements under the Plan.

7.7        Claims for Benefits .

(a)       Any Participant or beneficiary of a deceased Participant (such Participant or beneficiary being referred to below as a “Claimant”) may deliver to the Committee a written claim for a determination with respect to the amounts distributable to such Claimant from the Plan.  The claim must state with particularity the determination desired by the Claimant.

(b)       The Committee shall notify any person or entity that makes a claim against the Plan in writing, within 90 days of Claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Plan.  If the Committee determines that the Claimant is not eligible for benefits or full benefits, the notice shall set forth (1) the specific reasons for such denial, (2) a specific reference to the provisions of the Plan on which the denial is based, (3) a description of any additional information or material necessary for the Claimant to perfect his or her claim, and a description of why it is needed, and (4) an explanation of the Plan’s claims review procedure and other appropriate information as to the steps to be taken if the Claimant wishes to have the claim reviewed.  If the Committee determines that there are special circumstances requiring additional time to make a decision, the Committee shall notify the Claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.

(c)       If the Claimant is determined by the Committee not to be eligible for benefits, or if the Claimant believes that he or she is entitled to greater or different benefits, the Claimant shall have the opportunity to have such claim reviewed by the Committee by filing a petition for review with the Committee within 60 days after receipt of the notice issued by the Committee.  Said petition shall state the specific reasons which the Claimant believes entitle him or her to benefits or to greater or different benefits.  Within 60 days after receipt by the Committee of the petition, the Committee shall afford the Claimant (and counsel, if any) an opportunity to present his or her position to the Committee verbally or in writing.  Claimant (or counsel) shall have the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits, and shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s claim.  The review shall take into account all comments, documents, records, and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.  The Committee shall notify the Claimant of its decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner calculated to be understood by the Claimant and the specific provisions of the Plan on which the decision is based.  If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Committee, but notice of this deferral shall be given to the Claimant.

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(d)       If a claim for benefits under the Plan is contingent on a determination by the Committee (or its designee) that the Participant suffers from a Total Disability, the Claimant shall receive a written response to the initial claim from the Committee within 45 days, rather than 90 days.  If special circumstances require an extension, the Committee shall notify the Claimant within the 45-day processing period that additional time is needed.  If the Committee requests additional information so it can process the claim, the Claimant will have at least 45 days in which to provide the information.  Otherwise, the initial extension cannot exceed 30 days.  If circumstances require further extension, the Committee will again notify the Claimant, this time before the end of the initial 30-day extension.  The notice will state the date a decision can be expected.  In no event will a decision be postponed beyond an additional 30 days after the end of the first 30-day extension.  The Claimant may request a review of the Committee’s decision regarding the Disability claim within 180 days, rather than 60 days.  The review must be conducted by a fiduciary different from the fiduciary who originally denied the claim, and the fiduciary also cannot be subordinate to the fiduciary who originally denied the claim.  If the original denial of the claim was based on a medical judgment, the reviewing fiduciary must consult with an appropriate health care professional who was not consulted on the original claim and who is not subordinate to someone who was  The review must identify the medical or vocational experts consulted on the original claim.  The Claimant may request, in writing, a list of those medical or vocational experts.  The Claimant will receive notice of the reviewing fiduciary’s final decision regarding the Total Disability claim within 45 days, rather than 60 days, of the request for review.

(e)       For all purposes under the Plan, such decisions on claims (where no review is requested) and decisions on review (where review is requested) shall be final, binding and conclusive on all interested parties as to participation and benefit eligibility, the Employee’s or former Employee’s Final Average Earnings, Credited Service and as to any other matter of fact or interpretation relating to the Plan.

(f)     A Claimant’s compliance with the foregoing provisions of this Section 7.7 is a mandatory prerequisite to a Claimant’s right to commence any legal action with respect to any claim for benefits under this Plan.

7.8        Hold Harmless .  To the maximum extent permitted by law, no member of the Committee shall be personally liable by reason of any contract or other instrument executed by such member or on such member’s behalf in such member’s capacity as a member of the Committee nor for any mistake of judgment made in good faith, and the Company and the Participating Company shall indemnify and hold harmless, directly from its own assets (including the proceeds of any insurance policy the premiums of which are paid from the Company’s or a Participating Company’s own assets), each member of the Committee and each other officer, employee, or director of the Company, a Participating Company or an Affiliate to whom any duty or power relating to the administration or interpretation of the Plan against any cost or expense (including counsel fees) or liability (including any sum paid in settlement of a claim with the approval of the Company and the Participating Company) arising out of any act or omission to act in connection with the Plan unless arising out of such person’s own fraud or bad faith.

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7.9        Service of Process .  The Secretary of the Company or such other person designated by the Board shall be the agent for service of process under the Plan.

ARTICLE VIII.

DESIGNATION OF BENEFICIARIES

8.1        Beneficiary Designation .  Every Participant shall file with the Administrator a written designation of one or more persons as the Beneficiary who shall be entitled to receive the amount, if any, payable under the Plan upon such Participant’s death without being survived by an Eligible Spouse and following the commencement of payment of any of the retirement benefits under Article III. A Participant may from time to time revoke or change such Participant’s Beneficiary designation without the consent of any prior Beneficiary by filing a new designation with the Administrator. The last such designation received by the Administrator shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Administrator prior to the Participant’s death, and in no event shall it be effective as of a date prior to such receipt. All decisions of the Administrator concerning the effectiveness of any Beneficiary designation, and the identity of any Beneficiary, shall be final. If a Beneficiary shall die after the death of the Participant and prior to receiving the distribution that would have been made to such Beneficiary had such Beneficiary’s death not occurred, and no alternate Beneficiary has been designated, then for the purposes of the Plan the distribution that would have been received by such Beneficiary shall be made to the Beneficiary’s estate.

8.2        Failure to Designate Beneficiary .  If no Beneficiary designation is in effect at the time of a Participant’s death without being survived by an Eligible Spouse and following the commencement of payment of any of the retirement benefits under Article III, the payment of the amount, if any, payable under the Plan upon such Participant’s death shall be made to the Participant’s estate. If the Administrator is in doubt as to the right of any person to receive such amount, the Committee may direct the Company to withhold payment, without liability for any interest thereon, until the rights thereto are determined, or the Committee may direct the Company to pay such amount into any court of appropriate jurisdiction, and such payment shall be a complete discharge of the liability of the Company therefor.

ARTICLE IX.

WITHDRAWAL OF PARTICIPATING COMPANY

9.1        Withdrawal of Participating Company .  The Participating Company (other than the Company) may withdraw from participation in the Plan by giving the Board prior written notice approved by resolution by its board of directors or similar governing body specifying a withdrawal date, which shall be the last day of a month at least 30 days subsequent to the date on which notice is received by the Board.  The Participating Company shall withdraw from participation in the Plan if and when it ceases to be either a division of the Company or an Affiliate. The Board may require the Participating Company to withdraw from the Plan as of any withdrawal date the Board specifies.

9.2        Effect of Withdrawal .  The Participating Company’s withdrawal from the Plan shall not in any way reduce or otherwise affect benefits accrued and vested as of the date of withdrawal. With respect to former Employees, “accrued and vested benefits” are benefits to which

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the former Employees are entitled as of the date of withdrawal. With respect to Employees, “accrued and vested benefits” are the benefits to which the Employees would be entitled if their employment terminated (other than on account of death or Total Disability) as of the date of withdrawal.

Withdrawal from the Plan by any Participating Company shall not in any way affect any other Participating Company’s participation in the Plan.

ARTICLE X.

AMENDMENT OR TERMINATION OF THE PLAN

10.1      Right to Amend or Terminate Plan .

(a)     The Board reserves the right at any time to amend or terminate the Plan, in whole or in part, and for any reason and without the consent of any Participating Company, Participant or Eligible Spouse. Each Participating Company by its participation in the Plan shall be deemed to have delegated this authority to the Board.

(b)     The Committee may adopt any ministerial and nonsubstantive amendment which may be necessary or appropriate to facilitate the administration, management and interpretation of the Plan, provided the amendment does not materially affect the currently estimated cost to the Participating Companies of maintaining the Plan. Each Participating Company by its participation in the Plan shall be deemed to have delegated this authority to the Committee.

(c)     If the Plan is terminated, each Participant will become entitled to payment of his accrued and vested benefits if and to the extent permitted under Code Section 409A and the regulations thereunder.  Accordingly, payment of a Participant’s accrued and vested benefits may be made in a lump sum in accordance with one of the following:

(i)     the termination of the Plan within twelve (12) months of a corporate dissolution taxed under Code Section 331 or with the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), as provided in Treasury Regulation Section 1.409A-3(j)(4)(ix)(A); or

(ii)    within the thirty (30) days preceding or the twelve (12) months following a Change in Control, provided that all substantially similar arrangements are also terminated, as provided in Treasury Regulations Section 1.409A-3(j)(4)(ix)(B); or

(iii)   the termination of the Plan, provided that the termination does not occur proximate to a downturn in the financial health of the Participating Company, if all arrangements that would be aggregated with the Plan under Treasury Regulation Section 1.409A-1(c) are terminated, no payments other than payments that would be payable under the terms of the Plan if the termination had not occurred are made within twelve (12) months of the Plan termination, all payments are made within twenty-four (24) months of the Plan termination, and no new arrangement that would be aggregated with the Plan under Treasury Regulation

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Section 1.409A-1(c) is adopted within three (3) years following the Plan termination, as provided in Treasury Regulation Section 1.409A-3(j)(4)(ix)(C); or

(iv)   such other events and conditions as the IRS may prescribe in generally applicable published guidance under Code Section 409A.

(d)     In no event shall an amendment or termination reduce or otherwise affect benefits accrued and vested as of the date of an amendment or termination. With respect to former Employees, “accrued and vested benefits” are benefits to which the former Employees are entitled as of the date of an amendment or termination. With respect to Employees, “accrued and vested benefits” are the benefits to which the Employees would be entitled if their employment terminated (other than on account of death or Total Disability) as of the date of an amendment or termination.

10.2      Notice .  Notice of any amendment or termination of the Plan shall be given by the Board or the Committee, whichever adopts the amendment, to the other and all Participating Companies.

ARTICLE XI.

GENERAL PROVISIONS AND LIMITATIONS

11.1      No Right to Continued Employment .  Nothing contained in the Plan shall give any Employee the right to be retained in the employment of the Participating Company or Affiliate or affect the right of any such employer to dismiss any Employee.  The adoption and maintenance of the Plan shall not constitute a contract between the Company or any Participating Company and Employee or consideration for, or an inducement to or condition of, the employment of any Employee.

11.2      Payment on Behalf of Payee .  If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for such person’s affairs because of illness or accident, or is a minor, or has died, then any payment due such person or such person’s estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so elects, be paid to such person’s spouse, a child, a relative, an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Plan and the Company therefor.

11.3      Nonalienation .  No interest, expectancy, benefit, payment, claim or right of any Participant or Eligible Spouse under the Plan shall be (i) subject in any manner to any claims of any creditor of the Participant or Eligible Spouse, (ii) subject to the debts, contracts, liabilities or torts of the Participant or Eligible Spouse or (iii) subject to alienation by anticipation, sale, transfer, assignment, bankruptcy, pledge, attachment, charge or encumbrance of any kind. If any person shall attempt to take any action contrary to this Section, such action shall be null and void and of no effect, and the Committee and the Company shall disregard such action and shall not in any manner be bound thereby and shall suffer no liability on account of its disregard thereof. If the Participant, Eligible Spouse or any other beneficiary hereunder shall become bankrupt, or attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge any right hereunder, then such right or benefit

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26


 

shall, in the discretion of the Committee, cease and terminate, and in such event, the Committee may hold or apply the same or any part thereof for the benefit of the Participant, Eligible Spouse or the children, or other dependents of the Participant or Eligible Spouse, or any of them, in such manner and in such amounts and proportions as the Committee may deem proper.

11.4      Missing Payee .  If the Committee cannot ascertain the whereabouts of any person to whom a payment is due under the Plan, and if, after five years from the date such payment is due, a notice of such payment due is mailed to the last known address of such person, as shown on the records of the Committee or the Company, and within three months after such mailing such person has not made written claim therefor, the Committee, if it so elects, after receiving advice from counsel to the Plan, may direct that such payment and all remaining payments otherwise due to such person be cancelled on the records of the Plan and the amount thereof forfeited, and upon such cancellation, the Company shall have no further liability therefor, except that, in the event such person later notifies the Committee of such person’s whereabouts and requests the payment or payments due to such person under the Plan, the amounts otherwise due but unpaid shall be paid to such person without interest for late payment.

11.5      Required Information .  Each Participant shall file with the Committee such pertinent information concerning himself or herself, such Participant’s Eligible Spouse, or such other person as the Committee may specify, and no Participant, Eligible Spouse, or other person shall have any rights or be entitled to any benefits under the Plan unless such information is filed by or with respect to the Participant.

11.6      No Trust or Funding Created .  The obligations of the Company to make payments hereunder shall constitute a liability of the Company to a Participant or Eligible Spouse, as the case may be. Such payments shall be made from the general funds of the Company, and the Company shall not be required to establish or maintain any special or separate fund, or purchase or acquire life insurance on a Participant’s life, or otherwise to segregate assets to assure that such payment shall be made, and neither a Participant nor an Eligible Spouse shall have any interest in any particular asset of the Company by reason of obligations hereunder. Nothing contained in the Plan shall create or be construed as creating a trust of any kind or any other fiduciary relationship between the Company and a Participant or any other person. The rights and claims of a Participant or an Eligible Spouse to a benefit provided hereunder shall have no greater or higher status than the rights and claims of any other general, unsecured creditor of the Company.

11.7      Binding Effect .  Obligations incurred by the Company pursuant to this Plan shall be binding upon and inure to the benefit of the Company, its successors and assigns, and the Participant and the Participant’s Eligible Spouse.

11.8      Merger or Consolidation .  In the event of a merger or a consolidation by the Company with another corporation, or the acquisition of substantially all of the assets or outstanding stock of the Company by another corporation, then and in such event the obligations and responsibilities of the Company under this Plan shall be assumed by any such successor or acquiring corporation, and all of the rights, privileges and benefits of the Participants and Eligible Spouses hereunder shall continue.

27


 

11.9      Mandatory Cash-Out .  Notwithstanding any provision herein to the contrary, a Participant’s benefit under the Plan shall be paid in a mandatory lump sum payment if, at the time the Participant’s benefit is scheduled to be paid or commences to be paid, the payment is not greater than the applicable dollar amount under Code Section 402(g)(1)(B) (for 2007 - $15,500) and the payment results in the termination and liquidation of the Participant’s interest under the Plan, including all agreements, programs or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Treasury Regulation Section 1.409A-1(c)(2).

11.10    Acceleration of Payment .  The time or schedule of payment of a benefit under the Plan may be accelerated upon such events and conditions as the IRS may permit in generally applicable published regulatory or other guidance under Code Section 409A, including, without limitation, payment to a person other than the Participant to the extent necessary to fulfill the terms of a domestic relations order (as defined in Code Section 414(p)(1)(B)), payment of FICA tax and income tax on wages imposed on any amounts under this Plan, or payment of the amount required to be included in income for the Participant as a result of failure of the Plan to meet the requirements of Code Section 409A with respect to the Participant.

11.11    Delay of Payment .  The Committee may delay payment of a benefit under the Plan upon such events and conditions as the IRS may permit in generally applicable published regulatory or other guidance under Code Section 409A, including, without limitation, payments that the Committee reasonably anticipates will be subject to the application of Code Section 162(m), or will violate Federal securities laws or other applicable law.

11.12    Participant’s Right to Change Payment Elections by December 31, 2007 .  At any time on or before December 31, 2007, a Participant has the right to make new payment elections with respect to the timing of benefits payable under the Plan, and any such election will not be treated as a change in the timing of a payment under Code Section 409A(a)(4) or an acceleration of a payment under Code Section 409A(a)(3), provided that this Section and any related election applies only to amounts that would not otherwise be payable during the year in which such election is made and does not cause an amount to be paid in the year of election that would not otherwise be payable in such year.

11.13    Entire Plan .  This document and any written amendments hereto contain all the terms and provisions of the Plan and shall constitute the entire Plan, any other alleged terms or provisions being of no effect.

IN WITNESS WHEREOF , the Company has caused this Plan to be executed this 19th day of December, 2016, effective as of January 1, 2016.

 

HARRIS TEETER SUPERMARKETS, INC.

 

 

 

By:

/s/ Christine S. Wheatley

 

 

 

 

Its:

Vice President and Secretary

 

28


Exhibit 10.17

 

HARRIS TEETER SUPERMARKETS, INC. FLEXIBLE DEFERRAL PLAN

______________________________

Text of Plan

Amendment and Restatement Effective January 1, 2016

______________________________

HARRIS TEETER SUPERMARKETS, INC.

701 Crestdale Road

Matthews, North Carolina 28105

 

 


 

HARRIS TEETER SUPERMARKETS, INC. FLEXIBLE DEFERRAL PLAN

Effective as of the 1st day of January, 2005, Ruddick Corporation (now known as Harris Teeter Supermarkets, Inc.), a corporation duly organized and existing under the laws of the State of North Carolina (the “Controlling Company”), adopted the amended and restated Ruddick Corporation Flexible Deferral Plan (now known as the Harris Teeter Supermarkets, Inc. Flexible Deferral Plan) (“Plan”).  The restated Plan was intended to comply with the requirements of Section 409A of the Internal Revenue Code (“Code”) and the regulations and other guidance issued thereunder, as in effect from time to time.  The restated Plan also included certain Code Section 409A transitional amendments that were previously approved consistent with the requirements of IRS Notice 2005-1, Q&A-19(c) and Q&A-20 and subsequent guidance.  To the extent a provision of the Plan is contrary to or fails to address the requirements of Code Section 409A or related treasury regulations, the Plan shall be construed and administered as necessary to comply with such requirements to the extent allowed under applicable treasury regulations until the Plan is appropriately amended to comply with such requirements.  The benefits provided under the Plan that are subject to Code Section 409A include benefits earned and vested prior to January 1, 2005.

The Plan also reflects amendments effective October 1, 2005, that provide for the restoration to Participants of the automatic retirement contributions such Participants would have received under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan (f/k/a the Ruddick Savings Plan) if not for certain exclusions from and limitations on compensation applicable under the terms of the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan, and that make changes to the Make-Up ESOP and Make-Up Pension Contribution formulas under the Plan to coordinate such contributions with amendments made to the underlying qualified plans effective October 1, 2005.

The Plan was amended and restated effective July 1, 2009 to provide nonemployee members of the Board of Directors of the Controlling Company that participate in the Plan (“Nonemployee Directors”) with the opportunity to defer payment of any portion of each of (i) the annual retainer fee and such annual retainer fee as may be payable to a committee chairperson and/or (ii) the regularly-scheduled or duly-called Board of Directors meetings fees and any regularly-scheduled or duly-called committee meeting fees (“Director Fees”) payable during each Plan Year with respect to fees earned during Plan Years beginning on or after January 1, 2010.  Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011. 

This restatement effective as of January 1, 2016 amends the Plan to incorporate amendments to the prior restatement, to permit certain employees of The Kroger Company to receive Make-Up Pension Contributions under the Plan and reflect other desired revisions.

BACKGROUND AND PURPOSE

A.         Goal .  The Controlling Company desires to provide its designated key management employees (and those of its affiliated and related companies that participate in the Plan) with an opportunity (i) to defer the receipt and income taxation of a portion of such employees’ annual base salary and incentive compensation; (ii) to provide such employees with


 

matching contributions with respect to a portion of such deferrals; (iii) to restore the employer contributions that such employees would have been credited with under the Ruddick Employee Stock Ownership Plan if not for certain exclusions from compensation applicable under the terms of such plan; (iv) to restore the retirement income that such employees would have accrued under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan if not for certain exclusions from compensation applicable under the terms of such plan; and (v) to restore the automatic retirement contributions that certain employees would have been credited with under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan if not for certain exclusions from, and limitations on, compensation applicable under the terms of such plan.

B.         Purpose .  The purpose of the Plan document is to set forth the terms and conditions pursuant to which these deferrals and contributions may be made and to describe the nature and extent of the employees’ and Nonemployee Directors’ rights to such amounts.

C.         Type of Plan .  The Plan constitutes an unfunded, nonqualified deferred compensation plan that benefits certain designated employees and Nonemployee Directors who are within a select group of key management or highly compensated employees.

STATEMENT OF AGREEMENT

To adopt the Plan described above with the purposes and goals as hereinabove described, the Controlling Company hereby sets forth the terms and provisions of the Plan as follows:

 

 


 

HARRIS TEETER SUPERMARKETS, INC. FLEXIBLE DEFERRAL PLAN

TABLE OF CONTENTS

 

 

 

 

Page

 

 

ARTICLE I DEFINITIONS

1.1

Account

1.2

Active Participant

1.3

Adjusted ARC Compensation

1.4

Adjusted ESOP Compensation

1.5

Adjusted Pension Compensation

1.6

Administrative Committee

1.7

Affiliate

1.8

Base Salary

1.9

Base Salary Deferral Contributions

1.10

Base Salary Election

1.11

Beneficiary

1.12

Board

1.13

Change in Control

1.14

Code

1.15

Compensation

1.16

Controlling Company

1.17

Deferral Contributions

1.18

Director Fees

1.19

Director Fees Election

1.20

Disability or Disabled

1.21

Early Retirement

1.22

Effective Date

1.23

Eligible Employee

1.24

ERISA

1.25

Fiscal Year

1.26

Harris Teeter Supermarkets, Inc. Employees’ Pension Plan

1.27

Harris Teeter Supermarkets, Inc. Retirement and Savings Plan

1.28

In-Service Subaccount

1.29

In-Service Distribution Date

1.30

Incentive Compensation Payment

1.31

Incentive Compensation Payment Election

1.32

Investment Election

1.33

Investment Funds

1.34

Make-Up ARC Contribution

1.35

Make-Up ESOP Contribution

1.36

Make-Up Pension Contribution

1.37

Matching Contributions

1.38

Nonemployee Director

1.39

Nonemployee Director Separation From Service Subaccount

 

i


 

 

 

 

 

1.40

Normal Retirement

1.41

Normal Retirement Age

1.42

Participant

1.43

Participating Company

1.44

Plan

1.45

Plan Year

1.46

Retirement Age

1.47

Retirement Subaccount

1.48

Ruddick ESOP

1.49

Separation From Service

1.50

Surviving Spouse

1.51

Trust or Trust Agreement

1.52

Trust Fund

1.53

Trustee

1.54

Unforeseeable Emergency

1.55

Valuation Date

1.56

Years of Employment

ARTICLE II ELIGIBILITY AND PARTICIPATION

10 

2.1

Initial Eligibility Requirements

10 

2.2

Procedure for Admission

10 

2.3

Cessation of Eligibility

11 

ARTICLE III PARTICIPANTS’ ACCOUNTS; DEFERRALS AND CREDITING

11 

3.1

Participants’ Accounts

11 

3.2

Deferral Contributions

12 

3.3

Procedure for Elections

13 

3.4

Crediting of Deferral Contributions

15 

3.5

Matching Contributions

16 

3.6

Make-Up ESOP Contributions

17 

3.7

Make-Up ARC Contributions

18 

3.8

Make-Up Pension Contributions

18 

3.9

Debiting of Distributions

20 

3.10

Crediting of Earnings

20 

3.11

Value of Account

21 

3.12

Vesting

21 

3.13

Notice to Participants of Account Balances

22 

3.14

Good Faith Valuation Binding

22 

3.15

Errors and Omissions in Accounts

22 

ARTICLE IV INVESTMENT FUNDS

22 

4.1

Selection by Administrative Committee

22 

4.2

Participant Direction of Deemed Investments

23 

 

ii


 

 

 

 

 

ARTICLE V PAYMENT OF ACCOUNT BALANCES

24 

5.1

Distributions Subaccounts

24 

5.2

Retirement Subaccount or Nonemployee Director Separation From Service Subaccount

24 

5.3

In-Service Subaccounts

27 

5.4

Disability Benefits

29 

5.5

Death Benefits

30 

5.6

Change in Control

30 

5.7

Mandatory Cash-Out

31 

5.8

Form of Assets

31 

5.9

Withdrawals for Unforeseeable Emergency

31 

5.10

Beneficiary Designation

31 

5.11

Offset for Obligations to the Company

32 

5.12

Taxes

32 

5.13

Acceleration of Payment

33 

5.14

Delay of Payment

33 

5.15

Participant’s Right to Cancel Deferrals or Terminate Participation in Plan by December 31, 2005

33 

5.16

Participant’s Right to Change Payment Elections by November 30, 2008

33 

ARTICLE VI CLAIMS

33 

6.1

Presentation of Claims

33 

6.2

Claims Procedure

34 

6.3

Review Procedure

34 

6.4

Special Procedures Applicable to Disability Benefits

34 

6.5

Legal Action

35 

6.6

Satisfaction of Claims

35 

ARTICLE VII SOURCE OF FUNDS; TRUST

35 

7.1

Source of Funds

35 

7.2

Trust

36 

ARTICLE VIII ADMINISTRATIVE COMMITTEE

37 

8.1

Appointment of Administrative Committee

37 

8.2

Administration Generally

37 

8.3

Organization of Administrative Committee

37 

8.4

Powers and Responsibility of Administrative Committee

37 

8.5

Records of Committee

38 

8.6

Construction of the Plan

39 

8.7

Direction of Trustee

39 

8.8

Indemnification

39 

ARTICLE IX AMENDMENT AND TERMINATION

39 

9.1

Amendments

39 

9.2

Termination of Plan

40 

9.3

Authorization and Delegation to the Administrative Committee and Controlling Company

41 

 

iii


 

 

 

 

 

ARTICLE X MISCELLANEOUS

41 

10.1

Taxation

41 

10.2

No Employment Contract

41 

10.3

Headings

41 

10.4

Gender and Number

42 

10.5

Assignment of Benefits

42 

10.6

Legally Incompetent

42 

10.7

Governing Law

42 

10.8

Exclusive Benefit

42 

 

 

iv


 

ARTICLE I

DEFINITIONS

For purposes of the Plan, the following terms, when used with an initial capital letter, will have the meaning set forth below unless a different meaning plainly is required by the context.

1.1        Account : means, with respect to a Participant or Beneficiary, the total dollar amount or value evidenced by the last balance posted and actually credited in accordance with the terms of the Plan to the account record established for such Participant or Beneficiary.  The Administrative Committee, as required by the terms of the Plan and otherwise as it deems necessary or desirable in its sole discretion, may establish and maintain separate subaccounts for each Participant and Beneficiary.  “Account” shall refer to the aggregate of all separate subaccounts or to individual, separate subaccounts, as may be appropriate in context.

1.2        Active Participant : means any Eligible Employee or Nonemployee Director who has become a Participant and who has not been removed from active participation as described in Section 2.3.

1.3        Adjusted ARC Compensation : means a Participant’s compensation as defined under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for purposes of automatic retirement contributions, but determined without excluding (i) any Deferral Contributions that the Participant elects to make under the Plan (the “FDP Deferral Component”) or (ii) any amounts disregarded by the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan due to the limitations under Code Section 401(a)(17), such Section 401(a)(17) amount to be limited to $52,500 for the period from October 1, 2005 to December 31, 2005 (the “Excess Considered Pay Component”).  Notwithstanding the foregoing, Adjusted ARC Compensation shall not include any bonus paid under a bonus plan that by its terms excludes such bonus from consideration as compensation under the Plan or that the Administrative Committee designates as excluded for such purpose, such as a bonus paid under the 2013 Harris Teeter Merger Cash Bonus Plan and certain long-term cash bonus plans sponsored by The Kroger Co.

1.4        Adjusted ESOP Compensation : means a Participant’s compensation as defined under the Ruddick ESOP for employer contribution purposes, but determined without excluding (i) any Deferral Contributions that the Participant elects to make under the Plan or (ii) any amounts disregarded by the Ruddick ESOP due to the limitations under Code Section 401(a)(17).

1.5        Adjusted Pension Compensation : means a Participant’s compensation as defined under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan for benefit accrual purposes, but determined without excluding (i) any Deferral Contributions that the Participant elects to make under the Plan or (ii) for an Eligible Employee who is an employee of The Kroger Co., any deferrals of compensation to any nonqualified plan of deferred compensation sponsored by The Kroger Co. 

1.6        Administrative Committee : means the committee appointed by the Board to act on behalf of the Controlling Company in administering the Plan, as provided in Article VIII.

 

 


 

1.7        Affiliate : means any corporation or other entity that is required to be aggregated with the Controlling Company under Code Sections 414(b) or (c), provided that the language “at least 50 percent” is used instead of “at least 80 percent” each place it appears in applying Code Sections 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code Section 414(b) and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses under common control under Code Section 414(c).

1.8        Base Salary : means, with respect to a Participant for a calendar year, the total of the amounts described in subsections (1), (2) and (3), minus the amounts described in subsections (4), (5), (6) and (7) as follows:

(1)        all cash remuneration actually paid by a Participating Company to the Participant as reported or reportable on IRS Form W-2 for federal income tax purposes (or similar form required for such purpose); plus

(2)        to the extent not included in subsection (1) hereof, any elective deferral (as defined in Code Section 402(g)(3)) made to any Code Section 401(k) plan of a Participating Company, and any amount which is contributed or deferred by a Participating Company at the election of the Participant and which is not included in the gross income of the Participant by reason of Code Section 125, 132(f)(4) or 457; plus

(3)        to the extent not included in subsection (1) hereof, all Base Salary Deferral Contributions made under the Plan; minus

(4)        all amounts in subsection (1) that consist of Incentive Compensation Payments; minus

(5)        all amounts in subsection (1) that consist of payments made from the Plan; minus

(6)        all amounts in subsection (1) that consist of expense reimbursements or bonuses paid in connection with relocation or amounts paid pursuant to a stock option or other equity based incentive award or dividends paid on restricted stock prior to vesting that are otherwise reportable as wages; minus

(7)        unless otherwise specified by the Controlling Company, all amounts included in subsections (1), (2), or (3), that consist of any amounts paid or made available to a Participant during the Plan Year while he is not an Active Participant.

1.9        Base Salary Deferral Contributions : means, for each Plan Year, the portion of a Participant’s Deferral Contributions attributable to his Base Salary Election for such Plan Year.

1.10      Base Salary Election : means a written, electronic or other form of election pursuant to which a Participant may elect to defer under the Plan a portion of his Base Salary.

1.11      Beneficiary : means, with respect to a Participant, the person(s) designated or identified in accordance with Section 5.10 to receive any death benefits that may be payable under the Plan upon the death of the Participant.

2


 

1.12      Board : means the Board of Directors of the Controlling Company or any committee or committees of the Board of Directors of the Controlling Company to which, and to the extent, the Controlling Company’s Board of Directors has delegated some or all of its power, authority or duties or responsibilities with respect to the Plan.  A reference to the board of directors of any other Participating Company will specify it as such.

1.13      Change in Control : means, with respect to a Participant, a “change in ownership,” a “change in effective control,” or a “change in the ownership of substantial assets” of a corporation as described in Treasury Regulations Section 1.409A-3(i)(5) (which events are collectively referred to herein as “Change in Control events”).  Notwithstanding any provision herein to the contrary, to qualify as a Change in Control, the occurrence of the Change in Control event must be objectively determinable and any requirement that any person, such as the Administrative Committee, certify the occurrence of a Change in Control event must be strictly ministerial and not involve any discretionary authority.  To constitute a Change in Control with respect to a Participant, the Change in Control event must relate to (i) the corporation for which the Participant is performing services at the time of the Change in Control; (ii) the corporation that is liable for the payment of the deferred compensation; or (iii) a corporation that is a majority shareholder of a corporation identified in subparagraph (i) or (ii) above, or any corporation in a chain of corporations in which each corporation is a majority shareholder of another corporation in the chain, ending in a corporation identified in subparagraph (i) or (ii) above.

(a)       A “change in ownership” of a corporation occurs on the date that any one person, or more than one person acting as a group, acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation.  However, if any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in ownership of the corporation (or to cause a change in the effective control of the corporation (within the meaning of paragraph (b) below)).

(b)       Notwithstanding that a corporation has not undergone a change in ownership under paragraph (a) above, a “change in effective control” of a corporation occurs on the date that either:

(i)        Any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the corporation possessing 30 percent or more of the total voting power of the stock of such corporation; or

(ii)       A majority of members of the corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the corporation’s board of directors prior to the date of the appointment or election.

3


 

For purposes of this paragraph (b), the term corporation refers solely to the relevant corporation identified in the opening paragraph of this Section 1.13 for which no other corporation is a majority shareholder.

(c)        A “change in the ownership of substantial assets” of a corporation occurs on the date that any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the corporation immediately prior to such acquisition or acquisitions.  For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

1.14      Code : means the Internal Revenue Code of 1986, as amended, and, where the context requires, includes a reference to any proposed or final treasury regulations or similar guidance issued thereunder, as amended from time to time.

1.15      Compensation : means the sum of a Participant’s Base Salary and Incentive Compensation Payments.  Compensation includes amounts paid by a Participating Company in cash under the 2013 Harris Teeter Merger Cash Bonus Plan and certain long-term cash bonus plans sponsored by The Kroger Co. to the extent determined by the Administrative Committee, but only for purposes of Deferral Contributions under Section 3.2 and not for purposes of Matching Contributions under Section 3.5 or any make-up contributions under Section 3.7 or Section 3.8. 

1.16      Controlling Company : means Harris Teeter Supermarkets, Inc. (f/k/a Ruddick Corporation), a North Carolina corporation with its principal place of business in Charlotte, North Carolina.

1.17      Deferral Contributions : means, for each Plan Year, that portion of a Participant’s Compensation or Director Fees deferred under the Plan pursuant to Section 3.2; provided that Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011.

1.18      Director Fees : means, with respect to fees earned during Plan Years beginning on or after January 1, 2010 payable to a Nonemployee Director under the Controlling Company’s compensation policies for directors in effect from time to time: (i) the annual retainer fee and such additional annual retainer fee as may be payable to a committee chairperson, and (ii) any regularly-scheduled or duly-called Board of Directors meeting fees and any regularly-scheduled or duly-called committee meeting fees.  Notwithstanding any other provisions of the Plan to the contrary, Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011.

1.19      Director Fees Election : means a written, electronic or other form of election pursuant to which a Participant may elect to defer under the Plan his Director Fees.

4


 

Notwithstanding any other provisions of the Plan to the contrary, Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011.

1.20      Disability or Disabled : means any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months which results in (i) the Participant being unable to engage in any substantial gainful activity or (ii) the Participant receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Participating Company or an Affiliate which employs the Participant.  In addition, the Participant will be deemed Disabled if determined to be totally disabled by the Social Security Administration.  In the event that a Participant is not determined to be Disabled by the Social Security Administration as provided in the preceding sentence, the Administrative Committee, in its sole discretion, shall determine whether such Participant has suffered a Disability or is Disabled.  In making such determination, the Administrative Committee shall apply the definitions and criteria set forth in the first sentence of this Section and, if consistent with such criteria, may require such medical proof as it deems necessary, including the certificate of one or more licensed physicians selected by the Administrative Committee; the decision of the Administrative Committee as to Disability shall be final and binding.

1.21      Early Retirement : means Separation From Service, other than an account of death, after attaining age 55 (but prior to obtaining Normal Retirement Age) and completing ten (10) Years of Employment.

1.22      Effective Date : means January 1, 2016, the date as of which this amended and restated Plan is effective.

1.23      Eligible Employee : means, for Plan Years beginning on or after January 1, 2007, an employee of a Participating Company (i) who is eligible to receive Incentive Compensation Payments and (ii) (A) who is included in a select group of management employees as provided in ERISA Sections 201(2), 301(a)(3), and 401(a)(1); or (B) who has an annualized Base Salary excluding commission compensation that equals or exceeds the amount described in Code Section 414(q)(1)(B)(i) in effect for the Plan Year preceding the Plan Year of eligibility (i.e., $120,000 for the 2016 Calendar Year).  The Administrative Committee may establish procedures for determining an employee’s annualized Base Salary for a Plan Year, which procedures may include projecting Base Salary as of a date prior to the beginning of the enrollment period for a Plan Year to the end of such Plan Year.

Effective as of January 1, 2016, solely for purposes of Make-Up Pension Contributions (and not for purposes of eligibility to make Deferral Contributions or to receive Make-Up ARC Contributions or Matching Contributions) “Eligible Employee” includes an employee of The Kroger Co. who (i) continues to earn benefit accruals under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan for compensation and years of service with The Kroger Co. and (ii) (A) who is included in a select group of management employees as provided in ERISA Sections 201(2), 301(a)(3), and 401(a)(1); or (B) who has an annualized Base Salary (including amounts paid by The Kroger Co.) excluding commission compensation that equals or exceeds the amount described in Code Section 414(q)(1)(B)(i) in effect for the Plan Year preceding the Plan Year of eligibility (i.e., $120,000 for the 2016 Calendar Year).  Nothing in this paragraph shall limit an

5


 

Eligible Employee who becomes an employee of The Kroger Co. from receiving any Make-Up ARC Contribution or Matching Contribution due to the employee under the terms of the Plan in the year of transition to The Kroger Co.

1.24      ERISA : means the Employee Retirement Income Security Act of 1974, as amended.

1.25      Fiscal Year : means effective as of January 28, 2014, the consecutive 52 or 53 week period ending on the Tuesday following the Saturday closest to January 31 each year.  The Controlling Company experienced a short fiscal year for the period October 1, 2013 through February 4, 2014.

1.26      Harris Teeter Supermarkets, Inc. Employees’ Pension Plan : means the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan (f/k/a the Ruddick Corporation Employees’ Pension Plan).

1.27      Harris Teeter Supermarkets, Inc. Retirement and Savings Plan : means the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan (f/k/a the Ruddick Retirement and Savings Plan).

1.28      In-Service Subaccount : means, for purposes of distribution, the portion of a Participant’s Account which is distributable in accordance with the terms of Section 5.3.

1.29      In-Service Distribution Date : means that date elected by a Participant in accordance with Section 5.3.

1.30      Incentive Compensation Payment : means the amount payable to a Participant under an incentive compensation plan sponsored by a Participating Company or an Affiliate and designated as eligible for deferral under the Plan.  Incentive Compensation Payments will be considered “performance based compensation” for purposes of Code Section 409A and related regulations or similar guidance.  Incentive Compensation Payments include amounts paid by a Participating Company in cash under the 2013 Harris Teeter Merger Cash Bonus Plan and certain long-term cash bonus plans sponsored by The Kroger Co. as determined by the Administrative Committee, but only for purposes of Deferral Contributions under Section 3.2 and not for purposes of Matching Contributions under Section 3.5 or any make-up contributions under Section 3.7 or Section 3.8. 

1.31      Incentive Compensation Payment Election : means a written, electronic or other form of election pursuant to which a Participant may elect to defer under the Plan all or a portion of his Incentive Compensation Payments.

1.32      Investment Election : means an election, made in such form as the Administrative Committee may direct, pursuant to which a Participant may elect the Investment Funds in which the amounts credited to his Account will be deemed to be invested.

1.33      Investment Funds : means the investment funds selected from time to time by the Administrative Committee for purposes of determining the rate of return on amounts deemed invested pursuant to the terms of the Plan.

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1.34       Make-Up ARC Contribution: means the amount credited to a Participant’s Account pursuant to Section 3.7 on and after October 1, 2005.

1.35      Make-Up ESOP Contribution : means the amount credited to a Participant’s Account pursuant to Section 3.6.

1.36      Make-Up Pension Contribution : means the amount credited to a Participant’s Account pursuant to Section 3.8.

1.37      Matching Contributions : mean the amount credited to a Participant’s Account pursuant to Section 3.5.

1.38      Nonemployee Director : means an individual who is a member of the Board of Directors of the Controlling Company that participates in the Plan but who is not an employee of the Corporation or any of its Affiliates or subsidiaries (as that term is defined in Code section 424(f)).  For Plan Years beginning on and after January 1, 2011, no Nonemployee Director shall be added as a Participant in the Plan.

1.39      Nonemployee Director Separation From Service Subaccount : means, for purposes of distribution, the portion of a Nonemployee Director’s Account which is distributable in accordance with the terms of Section 5.2.

1.40      Normal Retirement : means Separation From Service, other than on account of death, on or after the date the Participant attains Normal Retirement Age.

1.41      Normal Retirement Age : means age 60.

1.42      Participant : means an Eligible Employee or Nonemployee Director who has been admitted to, and has not been removed from, participation in the Plan pursuant to the provisions of Article II.

1.43      Participating Company : means, the Controlling Company and its Affiliates that are designated by the Controlling Company on Exhibit A hereto, as participating companies herein.  In addition, any other Affiliate in the future may adopt (or be deemed to have adopted pursuant to this Section) the Plan with the consent of the Controlling Company or its delegate, and such Affiliate’s name will be added to Exhibit A.  Unless the Controlling Company specifies otherwise, any company that adopts the Plan by written resolution of its board of directors or other managing body will be deemed accepted as a Participating Company as of the date specified in such resolution.  The Kroger Co. is not a Participating Company under the Plan.

1.44      Plan : means the Harris Teeter Supermarkets, Inc. Flexible Deferral Plan (f/k/a the Ruddick Corporation Flexible Deferral Plan), as contained herein and all amendments hereto.  For tax purposes and purposes of Title I of ERISA, the Plan is intended to be an unfunded, nonqualified deferred compensation plan covering certain designated employees who are within a select group of key management or highly compensated employees.

1.45      Plan Year : means the 12-consecutive-month period ending on December 31 of each year.

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1.46      Retirement Age : means the earlier of the date on which (i) a Participant has attained age 55 and completed 10 Years of Employment or (ii) a Participant has attained age 60.

1.47      Retirement Subaccount : means, for purposes of distribution, the portion of an Eligible Employee’s Account which is distributable in accordance with the terms of Section 5.2.

1.48      Ruddick ESOP : means the Ruddick Employee Stock Ownership Plan which was merged into the Ruddick Savings Plan effective January 1, 2008.

1.49      Separation From Service : means the cessation of a Nonemployee Director’s membership on the board of directors of the Controlling Company that participate in the Plan or the termination of employment of the Participant with the Participating Company and all of its Affiliates that are considered a single employer within the meaning of Code Sections 414(b) and 414(c), provided that the language “at least 50 percent” is used instead of “at least 80 percent” each place it appears in applying Code Sections 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code Section 414(b), and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Code Section 414(c).  Whether a Separation From Service has occurred is determined based on whether the facts and circumstances indicate that the employer and the Participant reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Participant would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the employer if the Participant has been providing services to the employer less than 36 months).

Temporary absences from employment while the Participant is on military leave, sick leave, or other bona fide leave of absence will not be considered a Separation From Service if the period of such leave does not exceed six months, or if longer, so long as the Participant’s right to reemployment with the Participating Company is provided either by statute or by contract.  However, if the period of leave exceeds six months and the Participant’s right to reemployment is not provided either by statute or by contract, a Separation From Service is deemed to occur on the first day immediately following such six-month period.  Notwithstanding the foregoing, where a leave of absence is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six months, and where such impairment causes the Participant to be unable to perform the duties of his or her position of employment or any substantially similar position of employment, a 29-month period of absence may be substituted for such six-month period.

Notwithstanding the foregoing, a Participant who terminates employment with a Participating Company in connection with a store closing in a market containing both Participating Company stores and The Kroger Co. stores shall not have a Separation from Service until the individual remains unemployed by both the Participating Company and Kroger Co., and any Affiliate of either, for at least thirty days. 

 

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1.50      Surviving Spouse : means, with respect to a Participant, the person who is treated as married to such Participant under the laws of the state in which the Participant resides.  The determination of a Participant’s Surviving Spouse will be made as of the date of such Participant’s death.

1.51      Trust or Trust Agreement : means the separate agreement or agreements between the Controlling Company and the Trustee governing the Trust Fund, and all amendments thereto.

1.52      Trust Fund : means the total amount of cash and other property held by the Trustee (or any nominee thereof) at any time under the Trust Agreement.

1.53      Trustee : means the party or parties so designated from time to time pursuant to the terms of the Trust Agreement.

1.54      Unforeseeable Emergency : means an unforeseeable emergency, consistent with Code Section 409A and the regulations thereunder, that would result in severe financial hardship to the Participant resulting from (i) an illness or accident of the Participant, or the Participant’s spouse, Beneficiary or dependent (as defined in Code Section 152(a)) of the Participant, (ii) a loss of the Participant’s property due to casualty, or (iii) other such similar, extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.  The existence of an Unforeseeable Emergency will be determined by the Administrative Committee on the basis of the relevant facts and circumstances of each case, including information supplied by the Participant in accordance with uniform guidelines prescribed from time to time by the Administrative Committee; provided, the Participant will be deemed not to have an Unforeseeable Emergency to the extent that such hardship is or may be relieved:

(i)        Through reimbursement or compensation by insurance or otherwise;

(ii)       By liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; or

(iii)      By cessation of Deferral Contributions under the Plan.

Examples of what are not considered to be Unforeseeable Emergencies include the need to send a Participant’s child to college or the desire to purchase a home.

1.55      Valuation Date : means the first business day of January or July that immediately precedes the date of distribution.

1.56      Years of Employment : means, with respect to a Participant, his total number of “Years of Service” as defined and determined under the terms of the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan.  Provided, that, if not taken into account as “Years of Service” under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan, periods of Disability commencing while such Participant is employed by a Participating Company or an Affiliate also shall be counted under the Plan in determining Years of Employment.

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ARTICLE II

ELIGIBILITY AND PARTICIPATION

2.1        Initial Eligibility Requirements .

(a)        Deferral Contributions .  Each individual who becomes an Eligible Employee or Nonemployee Director will first be eligible to participate in the Plan with respect to Deferral Contributions effective as of the date communicated to the Eligible Employee in writing by the Administrative Committee or its delegate and shall become a Participant upon satisfying the procedures for admission described in Section 2.2 below.  Notwithstanding any other provisions of the Plan to the contrary, Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011.  Employees of The Kroger Co. are not eligible to make Deferral Contributions under the Plan and no Compensation paid by The Kroger Co. shall be considered Base Salary or an Incentive Compensation Payment under this Plan.

(b)        Matching Contributions .  Each Eligible Employee who is eligible to make Deferral Contributions under subsection (a) hereof will be eligible to have Matching Contributions credited to his Account from and after the date that such individual becomes eligible to make Deferral Contributions under subsection (a) hereof.

(c)        Make-Up ESOP Contributions .  Each Eligible Employee who is eligible to share in the allocation of employer  contributions under the Ruddick ESOP will be eligible to have  Make-Up ESOP Contributions credited to his Account from and after the date that such individual becomes eligible to share in the allocation of employer contributions under the Ruddick ESOP.

(d)        Make-Up ARC Contributions .  Each Eligible Employee (i) who is not a participant in the Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan (f/k/a Ruddick Supplemental Executive Retirement Plan), and (ii) who is eligible to share in the allocation of automatic retirement contributions under the Harris Teeter Supermarkets, Inc. Retirement and  Savings Plan will be eligible to have Make-Up ARC Contributions credited to his Account from and after the date that such individual becomes eligible to share in the allocation of automatic retirement contributions under the Harris Teeter Supermarkets, Inc. Retirement and  Savings Plan.

(e)        Make-Up Pension Contributions .  Each Eligible Employee (i) who is not a participant in the Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan and (ii) who incurs a Separation From Service with all Participating Companies and all Affiliates with a vested accrued benefit under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan will be eligible to have a Make-Up Pension Contribution credited to the Participant’s Account as of the date the Participant incurs a Separation From Service.

2.2        Procedure for Admission .

Each Eligible Employee and Nonemployee Director will become a Participant by completing such forms and providing such data in a timely manner, as are required by the

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Administrative Committee as a precondition of participation in the Plan.  Such forms and data may include, without limitation, (i) an election to make Deferral Contributions; (ii) an election as to whether Deferral Contributions will be credited  to the Participant’s Retirement Subaccount, Nonemployee Director Separation From Service Subaccount or an In-Service Subaccount; (iii) an election as to the year In-Service Subaccount payments will begin and as to the number of installment payments (if any) that will be made from the Retirement Subaccount, Nonemployee Director Separation From Service Subaccount and/or In-Service Subaccount; (iv) the Eligible Employee’s or Nonemployee Director’s acceptance of the terms and conditions of the Plan; (v) the Eligible Employee’s or Nonemployee Director’s Investment Election; and (vi) the Eligible Employee’s or Nonemployee Director’s Beneficiary designation.

2.3        Cessation of Eligibility .

(a)         Separation From Service.  Unless otherwise specified by the Administrative Committee, in its sole discretion, each Participant who incurs a Separation From Service with a Participating Company will cease to have any contributions credited to the Participant’s Account under the Plan for or with respect to any period or Compensation payable from and after the date of the Participant’s Separation From Service.  Notwithstanding the foregoing, effective on and after January 1, 2016, a Participant who incurs a Separation From Service with a Participating Company and becomes an employee of The Kroger Co. or an Affiliate of The Kroger Co. may continue to receive a Make-Up Pension Contribution to this Plan to the extent provided in Section 3.8. 

(b)         Removal from Select Group .  If the Administrative Committee determines that the Participant is no longer a member of a select group of key management or highly compensated employees because of reduced duties, responsibilities, incentive compensation ineligibility, compensation level, or for any other reason, the Participant will cease to be eligible to actively participate in the Plan from and after the first day of the following Plan Year.

(c)         Inactive Participation .  If a Participant’s active participation in the Plan ends, the Participant will remain an inactive Participant in the Plan until the earlier of (i) the date the full amount of his vested Account (if any) is distributed from the Plan, or (ii) the date he again becomes an Eligible Employee or Nonemployee Director and recommences active participation in the Plan.  An inactive Participant’s Account will continue to be credited with earnings as provided for in Section 3.10 and the  inactive Participant will be eligible for a Matching Contribution or Make-Up ESOP Contribution if he was an active Participant at any time during the applicable Plan Year.

ARTICLE III

PARTICIPANTS’ ACCOUNTS; DEFERRALS AND CREDITING

3.1        Participants’ Accounts .

(a)         Establishment of Accounts .  The Administrative Committee will establish and maintain an Account on behalf of each Participant.  To the extent provided

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herein, each Account will be credited with (i) Deferral Contributions, (ii) Matching Contributions, (iii) Make-Up ESOP Contributions, (iv) Make-Up ARC Contributions, (v) Make-Up Pension Contributions, and (vi) earnings attributable to such Account, and will be debited by the amount of all distributions.  Each Account of a Participant will be maintained until the value thereof has been distributed to or on behalf of such Participant or his Beneficiary.

(b)         Nature of Contributions and Accounts .  The amounts credited to a Participant’s Account will be represented solely by bookkeeping entries.  Except as provided in Article VII, no monies or other assets will actually be set aside for such Participant, and all payments to a Participant under the Plan will be made from the general assets of the Participating Companies.

(c)         Several Liabilities .  Each Participating Company will be severally (and not jointly) liable for the payment of benefits under the Plan in an amount equal to the total of (i) all undistributed Deferral Contributions withheld from Participant’s Compensation paid or payable by each such Participating Company, (ii) all undistributed Matching Contributions attributable to such Deferral Contributions, (iii) all undistributed Make-Up ESOP Contributions credited for the period such Participant was employed by such Participating Company, (iv) all undistributed Make-Up ARC Contributions credited for the period such Participant was employed by such Participating Company; (v) all undistributed Make-Up Pension Contributions credited for the period such Participant was employed by such Participating Company and (vi) all investment earnings attributable to the amounts described in clauses (i)-(v) hereof.  The Administrative Committee will allocate the total liability to pay benefits under the Plan among the Participating Companies pursuant to this formula, and the Administrative Committee’s determination will be final and binding.

(d)         General Creditors .  Any assets which may be acquired by a Participating Company in anticipation of its obligations under the Plan will be part of the general assets of such Participating Company. A Participating Company’s obligation to pay benefits under the Plan constitutes a mere promise of such Participating Company to pay such benefits, and a Participant or Beneficiary will be and remain no more than an unsecured, general creditor of such Participating Company.

3.2        Deferral Contributions .

(a)         Eligible Employee Deferral Contributions .  Except as provided in subsection (c) hereof, each Eligible Employee who is or becomes eligible to participate in the Plan for all or any portion of a Plan Year may elect to have Deferral Contributions made on his behalf for such Plan Year by completing and delivering to the Administrative Committee (or its designee) a Base Salary Election and/or Incentive Compensation Payment Election setting forth the terms of his election; provided, the Administrative Committee may allow or require separate or combined deferral elections for any or all of the elections set forth in subsections (i) or (ii) hereof.

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(i)         Base Salary Election .  A Base Salary Election will provide for the reduction of an Eligible Employee’s Base Salary in accordance with the terms and conditions set forth in Section 3.3 (a) – (c) below.

(ii)        Incentive Compensation Payment Election . An Incentive Compensation Payment Election will provide for the reduction of an Eligible Employee’s Incentive Compensation Payment in accordance with the terms and conditions set forth in Section 3.3(d) below.

(b)         Nonemployee Director Deferral Contributions .  Except as provided in subsection (c) hereof, each Nonemployee Director who is or becomes eligible to participate in the Plan for all or any portion of a Plan Year beginning on or after January 1, 2010 may elect to have Deferral Contributions of all or any portion of his Director Fees for a Plan Year made on his behalf for such Plan Year by completing and delivering to the Administrative Committee (or its designee) a Director Fees Election setting forth the terms of his election.  Notwithstanding any other provisions of the Plan to the contrary, Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011.

(c)         Minimum Deferrals .  The Administrative Committee may, in its sole discretion, establish a minimum dollar amount and/or percentage of Compensation that Participants will be permitted to defer under the Plan.

3.3        Procedure for Elections .  Subject to any modifications, additions or exceptions that the Administrative Committee, in its sole discretion, deems necessary, appropriate or helpful, the following terms will apply to Base Salary, Incentive Compensation Payment and Director Fees Elections:

(a)         Effective Date .

(i)        Base Salary Election in First Year of Eligibility .  A Participant’s Base Salary Election in the Participant’s first year of eligibility will be effective for the first regular paycheck paid after the date the Base Salary Election is submitted and becomes effective.  To be effective, a Participant’s initial Base Salary Election must be made within 30 days after the date the employee receives written notice of his eligibility to participate in the Plan pursuant to Section 2.1 and will apply to Compensation paid for services to be performed subsequent to the election.  If an Eligible Employee fails to submit an initial Base Salary Election in a timely manner, he will be deemed to have elected not to participate in the Plan for that Plan Year with respect to his Base Salary.

(ii)       Subsequent Base Salary Election .  A Participant’s Base Salary Election for any Plan Year after the first year of eligibility must be made annually on or before the last day of the Plan Year (or an earlier date determined by the Administrative Committee) immediately preceding the Plan Year for which he desires to participate and in which such Base Salary to be deferred is paid.

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(b)        Termination .  Each Participant’s Base Salary Election will remain in effect for all Base Salary paid during the current Plan Year until the earliest of (i) the date the Participant becomes Disabled, or (ii) the date the Participant receives a withdrawal for an Unforeseeable Emergency under Section 5.9  If a Participant is transferred from the employment of one Participating Company to the employment of another Participating Company, his Base Salary Election with the first Participating Company will remain in effect and will apply to his Base Salary from the second Participating Company until the earliest of those events set forth in the preceding sentence.

(c)        Amount .  A Participant may elect to defer his Base Salary in 1% increments, up to a maximum of 50% (or such other maximum percentage and/or amount, if any, established by the Administrative Committee from time-to-time).

(d)        Incentive Compensation Payment Election .  An Eligible Employee may annually complete and deliver to the Administrative Committee an Incentive Compensation Payment Election with respect to Incentive Compensation Payments to be earned during a Fiscal Year in accordance with this Section.  The following terms will apply to Incentive Compensation Payment Elections applicable to Incentive Compensation Payments earned in Fiscal Years beginning after January 1, 2016:

(i)         No Incentive Compensation Payment Election in First Year of Eligibility .  An Eligible Employee may not make an Incentive Compensation Payment election to defer Incentive Compensation earned in the Fiscal Year in which the individual first becomes an Eligible Employee.  A Participant’s initial Incentive Compensation Payment Election will be effective for the Incentive Compensation Payments earned during the Fiscal Year that begins after the Eligible Employee becomes a Participant in accordance with Section 2.1. 

(ii)        Effective Date for Incentive Compensation Payment Elections .  A Participant’s Incentive Compensation Payment Election with respect to Incentive Compensation Payments earned during any Fiscal Year must be made annually at least six months prior to the end of the Fiscal Year in which the Incentive Compensation Payment to be deferred is earned (or an earlier date determined by the Administrative Committee).  If an Eligible Employee fails to submit an annual Incentive Compensation Payment Election for a Fiscal Year in a timely manner, he will be deemed to have elected not to participate in the Plan with respect to Incentive Compensation Payments earned during such Fiscal Year.

(iii)       Amount .  An Eligible Employee may elect to defer his Incentive Compensation Payments in 1% increments, up to a maximum of 90% (or such other maximum percentage and/or amount, if any, established by the Administrative Committee from time to time).

(iv)       Termination .        A Participant’s annual Incentive Compensation Payment Election will terminate on (i) the date the Participant becomes Disabled, or (ii) the date the Participant receives a withdrawal for an Unforeseeable Emergency under Section 5.9.  If a Participant is transferred from the employment

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of one Participating Company to the employment of another Participating Company, his Incentive Compensation Payment Election with the first Participating Company will remain in effect and will apply to his Incentive Compensation Payment from the second Participating Company until the earliest of those events set forth in the preceding sentence.

(e)        Director Fees Election .  Notwithstanding any other provisions of the Plan to the contrary, Participants may not elect to defer Director Fees under the Plan for Plan Years beginning on and after January 1, 2011.  The provisions of this Section are retained for historical purposes.

(i)         Initial Director Fees Election .  A Participant’s initial Director Fees Election will be effective for the first Director Fee that becomes payable after the date the Director Fees Election is submitted and becomes effective.  To be effective, a Participant’s initial Director Fees Election must be made before the first day of the Plan Year for which Director Fees Deferral Contributions will be made; or, if later, within 30 days after the date on which his participation becomes effective pursuant to Section 2.1 and with respect to Director Fees paid for services to be performed subsequent to the election.  If a Nonemployee Director fails to submit an initial Director Fees Election in a timely manner, he will be deemed to have elected not to participate in the Plan for that Plan Year with respect to his Director Fees.

(ii)        Subsequent Director Fees Election .  A Participant’s Director Fees Election for any subsequent Plan Year must be made annually on or before the last day of the Plan Year (or an earlier date determined by the Administrative Committee) immediately preceding the Plan Year for which he desires to participate and in which such Director Fees to be deferred is paid.

(iii)        Amount .  A Nonemployee Director may elect to defer all or any portion of the annual retainer fee, such additional annual retainer fee as may be payable to a committee chairperson, and meeting fees (board and committee meetings).

(iv)        Termination .        A Participant’s annual Director Fees Election will terminate on (i) the date the Participant becomes Disabled, or (ii) the date the Participant receives a withdrawal for an Unforeseeable Emergency under Section 5.9.

3.4        Crediting of Deferral Contributions .

For each Plan Year that a Participant has a Base Salary Election and/or Incentive Compensation Payment Election or a Director Fees Election in effect, the Administrative Committee will credit the amount of such Participant’s Deferral Contributions to his Account on, or as soon as practicable after, the Valuation Date used to determine the amount that would have been paid to him but for his election hereunder.

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3.5        Matching Contributions .

For each Plan Year, as soon as administratively feasible following the earlier of (i) the last day of the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan plan year that occurs during the Plan Year (or such other date as determined by the Administrative Committee) or (ii) a Change in Control, the Retirement Subaccount of each Participant will be credited with a Matching Contribution, provided it is greater than zero, in an amount equal to the product of (i) and (ii) below where,

(i)        Equals the lesser of (A) or (B) where,

(A)      Equals the difference between (1) and (2) where,

(1)       Equals the product of

(a)        The Participant’s Compensation for the Plan Year, times

(b)        The maximum percentage of compensation on which matching contributions are based under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan as of the last day of the applicable Plan Year; and

(2)       Equals the greater of (x) and (y) where (x) equals the lesser of (I) the maximum amount of compensation deferrals that could have been made to the Participant’s account and matched under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for such Plan Year taking into account the Code Section 401(a)(17) compensation limit applicable to compensation under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan and (II) the maximum amount of compensation deferrals that could have been made to the Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for such Plan Year as set by the Retirement Plan Committee  (whether or not eligible for a matching contribution) determined as of the beginning of the Plan Year ( i.e. , $6,000 for the 2003 Plan Year, $8,000 for the 2004 Plan Year, $9,000 for the 2005 and 2006 Plan Years, $12,000 for the 2007 Plan Year, $13,000 for the 2008 and 2009 Plan Years, $14,000 for the 2010 and 2011 Plan Years, $14,500 for the 2012, 2013 and 2014 Plan Years and $12,250 for the 2015 Plan Year) and (y) equals the actual amount of compensation deferrals that were made to the Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for which the Participant received a matching contribution under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for the Plan Year; and

(B)       Equals the Participant’s Deferral Contributions for the Plan Year; and

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(ii)       Equals the matching contribution percentage applicable to elective deferrals under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan as of the last day of the Plan Year (i.e., 50% for the 2016 Plan Year); provided that, any compensation deferrals made by the Participant to the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan that are not eligible for a matching contribution under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan solely due to the Participant’s compensation under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan exceeding the compensation limit of Code Section 401(a)(17), shall  be eligible for a matching contribution under this Plan based on the matching contribution percentage  in Section 3.5(ii) above; provided further that, in no event will the Matching Contribution made to a Participant’s Account under this Plan, when added to the matching contribution made to such Participant’s account in the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan, exceed the product of the Participant’s Compensation for the Plan Year, times the maximum percentage of compensation on which matching contributions are based under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan as of the last day of the applicable Plan Year.

Notwithstanding the above, each Participant who was eligible for a matching contribution under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan and was also an employee of American & Efird, Inc. for the period of January 1, 2009 through March 31, 2009, shall receive a Matching Contribution under this Plan during 2010 equal to 25% of the amount determined under the formula in paragraph one of this Section 3.5 as if the matching contribution under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan was applicable for the entire Plan Year.  For each Plan Year beginning on or after January 1, 2010, if a Participant is entitled to a matching contribution under the Retirement Savings Plan for less than the entire Plan Year due to the employer’s suspension of the matching contribution, the Participant shall receive a Matching Contribution under this Plan for such Plan Year determined by multiplying (1) the amount determined under the formula in paragraph one of this Section 3.5 as if the matching contribution under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan were applicable for the entire Plan Year, times (2) a fraction equal to the number of full calendar months for which the matching contribution applied during such Plan Year under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan divided by 12.

3.6        Make-Up ESOP Contributions .

For each Plan Year, as soon as administratively feasible following the earlier of (i) the date the annual employer contribution is credited to a Participant’s account under the Ruddick ESOP during the Plan Year (or such other date as determined by the Administrative Committee) or (ii) the date of a Change in Control, the Retirement Subaccount of each Participant will be credited with a Make-Up ESOP Contribution in an amount equal to the difference between the amount determined pursuant to subsection (i) hereof and the amount determined pursuant to the terms of subsection (ii) hereof, as follows:

(i)        The total amount of employer contributions that would have been credited to the Participant’s account under the Ruddick ESOP for such Plan Year if the employer contributions credited to his account were determined based on his Adjusted ESOP

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Compensation rather than the applicable definition of compensation under the Ruddick ESOP; minus

(ii)       The total amount of employer contributions that were actually made to the Participant’s account under the Ruddick ESOP for such Plan Year.

Notwithstanding anything to the contrary herein, as a result of the freezing of the Ruddick ESOP that became effective October 1, 2005, no Make-Up ESOP Contributions will be credited to a Participant’s Account for the period from October 1, 2005 through December 31, 2005, or for Plan Years thereafter.

3.7        Make-Up ARC Contributions .

Effective beginning October 1, 2005, and for each Plan Year thereafter, as soon as administratively feasible following the earlier of (i) the date the automatic retirement contributions are credited to a Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan during the Plan Year (or such other date as determined in the sole discretion of the Administrative Committee) or (ii) the date of a Change in Control, the Retirement Subaccount of each Participant will be credited with a Make-Up ARC Contribution in an amount equal to the difference between the amount determined pursuant to subsection (i) hereof and the amount determined pursuant to the terms of subsection (ii) hereof, as follows:

(i)        The total amount of automatic retirement contributions that would have been credited to the Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for such Plan Year if the automatic retirement contributions credited to his account were determined based on his Adjusted ARC Compensation rather than the applicable definition of compensation under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan; minus

(ii)       The total amount of automatic retirement contributions that were actually made to the Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for such Plan Year.

Notwithstanding the above, a Participant shall not be eligible to receive a Make-Up ARC Contribution for a Plan Year if the Participant is also a participant in the Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan for all or a portion of that Plan Year.

3.8        Make-Up Pension Contributions .

As soon as administratively feasible following the earlier of (i) the Participant’s Separation From Service for any reason with a vested accrued benefit under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan (or such other date as determined by the Administrative Committee) or (ii) a Change in Control, the Retirement Subaccount of the Participant will be credited with a Make-Up Pension Contribution in an amount equal to the difference between the amount determined pursuant to subsection (i) hereof and the total amounts determined pursuant to the terms of subsections (ii), (iii) and (iv) hereof, as follows:

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(i)        The actuarial lump sum value, as defined in subsection (v), of the benefit that would be payable to the Participant or Beneficiary under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan as of his earliest benefit commencement date under such plan if his benefits were to be determined based on his Adjusted Pension Compensation rather than the applicable definition of compensation under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan; minus

(ii)       The actuarial lump sum value, as defined in subsection (v), of the benefit that will actually be payable to the Participant or Beneficiary under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan as of his earliest benefit commencement date under such plan; minus

(iii)      The actuarial lump sum value, as defined in subsection (v), of the automatic retirement contributions that were paid to the Participant under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan plus any company automatic contributions that were paid to the Participant under The Kroger Co. 401(k) Retirement Savings Account Plan, to the extent such automatic contributions are included in the Offset Amount (as defined in the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan) in determining the Participant’s benefit under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan; minus

(iv)      The actuarial lump sum value, as defined in subsection (v), of an amount equal to the difference between the amount determined pursuant to subsection A hereof and the amount determined pursuant to the terms of subsection B hereof, as follows:

(A)        The total amount of automatic retirement contributions that would have been credited to the Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for such Plan Year if the automatic contributions credited to his account(s) were determined based upon compensation as defined under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan for purposes of automatic retirement contributions without excluding any Deferral Contribution that the Participant elects to make under the Plan; minus

(B)        The total amount of automatic retirement contributions that were actually made to the Participant’s account under the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan.

The reduction under this subsection (iv), however, shall apply only to the extent that Make-Up ARC Contributions are relevant to automatic retirement contributions that are included in the Offset Amount (as defined in the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan) in determining the Participant’s benefit under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan.

(v)        For the purposes of subsections (i) and (ii) of this Section 3.8, actuarial lump sum value shall be defined as the present value of the retirement benefit payable as a single life annuity at the assumed commencement date (determined using the Harris

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Teeter Supermarkets, Inc. Employees’ Pension Plan’s early retirement reduction factors, if applicable) calculated using the interest rate and mortality table that would be used to determine the amount of an involuntary lump sum payment under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan based on that plan’s definition of Actuarial Equivalent for such purpose.  For purposes of subsections (iii) and (iv) of this Section 3.8, actuarial lump sum value shall be defined as the present value of the retirement benefit payable as a single life annuity at the assumed commencement date (determined using the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan’s early retirement reduction factors, if applicable) and calculated using the applicable mortality table described in the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan definition of Actuarial Equivalent, but the applicable interest rate shall be the Moody’s Baa long term corporate bond rate (not to exceed 8.5%) adjusted each October 1 based on the average daily rates for the immediately preceding month of August.

The foregoing notwithstanding, with respect to the Change in Control that took place due to the merger involving The Kroger Co. and Harris Teeter Supermarkets, Inc. on January 28, 2014 (“Kroger Merger”), a Participant who had a vested accrued benefit under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan (“Pension Plan”) on the date of the Kroger Merger and who has a vested accrued benefit under the Pension Plan on the date of the Participant’s Separation From Service will be credited with a Make-Up Pension Contribution as soon as administratively feasible following the Participant’s Separation From Service, and such Make-Up Pension Contribution shall be computed as the greater of (1) the amount that would have been credited as of the date of Separation From Service or (2) the amount that would have been credited as of the date of the Kroger Merger plus earnings thereon credited based upon the applicable interest rate described in subsection (v) of this Section 3.8

Notwithstanding the above, a Participant shall not be eligible to receive a Make-Up Pension Contribution for a Plan Year if the Participant is also a participant in the Harris Teeter Supermarkets, Inc. Supplemental Executive Retirement Plan for all or a portion of the Plan Year.

3.9        Debiting of Distributions .

As of each Valuation Date, the Administrative Committee will debit each Participant’s Account for any amount distributed from such Account since the immediately preceding Valuation Date.

3.10       Crediting of Earnings .

As of each Valuation Date, the Administrative Committee will credit to each Participant’s Account the amount of earnings and/or losses applicable thereto for the period since the immediately preceding Valuation Date.  Such crediting of earnings and/or losses will be effected as of each Valuation Date, as follows:

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(a)         Rate of Return . The Administrative Committee will first determine a rate of return for the period since the immediately preceding Valuation Date for each of the Investment Funds;

(b)         Amount Invested . The Administrative Committee next will determine the amount of (i) each Participant’s Account that was deemed invested in each Investment Fund as of the immediately preceding Valuation Date; minus (ii) the amount of any distributions debited from the amount determined in clause (i) since the immediately preceding Valuation Date; and

(c)         Determination of Amount . The Administrative Committee will then apply the rate of return for each Investment Fund for such Valuation Date (as determined in subsection (a) hereof) to the amount of the Participant’s Account deemed invested in such Investment Fund for such Valuation Date (as determined in subsection (b) hereof), and the total amount of earnings and/or losses resulting therefrom will be credited to such Participant’s Account as of the applicable Valuation Date.

3.11      Value of Account .

The value of a Participant’s Account as of any date will be equal to the aggregate value of all contributions and all investment earnings deemed credited to his Account as of such date, determined in accordance with this Article III.

3.12      Vesting .

(a)         Deferral Contributions .  A Participant will at all times be fully vested in his Deferral Contributions and the earnings credited to his Account with respect to such Deferral Contributions.

(b)         Matching Contributions .  Except as provided in subsection (f) hereto, any Matching Contributions credited to a Participant’s Account and the earnings credited with respect thereto will be vested to the same extent that any matching contributions credited to a Participant’s account in the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan are (or would be) vested.

(c)         Make-Up ESOP Contributions . Except as provided in subsection (f) hereto, any Make-Up ESOP Contributions credited to a Participant’s Account and the earnings credited with respect thereto will be vested to the same extent that any employer contributions credited to a Participant’s account in the Ruddick ESOP are vested.

(d)         Make-Up ARC Contributions .  Except as provided in subsection (f) hereto, (i) the amount of any Make-Up ARC Contributions computed with respect to the “FDP Deferral Component” (as defined in Section 1.3(i) hereof) credited to a Participant’s Account and the earnings credited with respect thereto will be vested to the same extent that any automatic retirement contributions credited to a Participant’s account in the Harris Teeter Supermarkets, Inc. Retirement and Savings Plan are vested, and (ii) the amount of any Make-Up ARC Contributions computed with respect to the “Excess Considered Pay Component” (as defined in Section 1.3(ii) hereof) credited to a

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Participant’s Account and the earnings credited with respect thereto will become vested upon a Participant’s attainment of Retirement Age, or upon the death or Disability of the Participant while employed by a Participating Company or an Affiliate and will be subject to reduction for commencement of benefit payments prior to the Participant attaining age 60 as described in Section 5.2(b) hereof.

(e)         Make-Up Pension Contributions .  Except as provided in subsection (f) hereto, any Make-Up Pension Contributions credited to a Participant’s Account and the investment earnings (if any) attributable thereto will be vested to the same extent that a Participant’s retirement benefit under the Harris Teeter Supermarkets, Inc. Employees’ Pension Plan is vested.

(f)         Change in Control .  If a Change in Control occurs, all Participants involved in such Change in Control (as described in the applicable “Change in Control” definition) will be immediately 100% vested in the Matching, Make-Up ESOP, Make-Up ARC and Make-Up Pension Contributions credited to their Accounts and the investment earnings (if any) attributable thereto as of the date of such Change in Control.

3.13      Notice to Participants of Account Balances .

At least once for each Plan Year, the Administrative Committee will cause a written statement of a Participant’s Account balance to be distributed to the Participant.

3.14      Good Faith Valuation Binding .

In determining the value of the Accounts, the Administrative Committee will exercise its best judgment, and all such determinations of value (in the absence of bad faith) will be binding upon all Participants and their Beneficiaries.

3.15      Errors and Omissions in Accounts .

If an error or omission is discovered in the Account of a Participant or in the amount of a Participant’s deferrals, the Administrative Committee, in its sole discretion, will cause appropriate, equitable adjustments to be made as soon as administratively practicable following the discovery of such error or omission.

ARTICLE IV

INVESTMENT FUNDS

4.1       Selection by Administrative Committee .

From time to time, the Administrative Committee will select two or more Investment Funds for purposes of determining the rate of return on amounts deemed invested in such Investment Funds in accordance with the terms of the Plan.  The Administrative Committee may change, add or remove Investment Funds on a prospective basis at any time(s) and in any manner it deems appropriate.

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4.2        Participant Direction of Deemed Investments .

Each Participant generally may direct the manner in which his Account will be deemed invested in and among the Investment Funds by making an Investment Election in accordance with the following terms:

(a)         Nature of Participant Direction .  The selection of Investment Funds by a Participant will be for the sole purpose of determining the rate of return to be credited to his Account, and will not be treated or interpreted in any manner whatsoever as a requirement or direction to actually invest assets in any Investment Fund or any other investment media.  The Plan, as an unfunded, nonqualified deferred compensation plan, at no time will have any actual investment of assets relative to the benefits or Accounts hereunder.

(b)         Investment of Contributions .  Each Participant may make an Investment Election prescribing the percentage of the future contributions that will be deemed invested in each Investment Fund.  An initial Investment Election of a Participant will be made as of the date the Participant commences participation in the Plan and will apply to all contributions credited to such Participant’s Account after such date.  Such Participant may make subsequent Investment Elections as of any Valuation Date, and each such election will apply to all such specified contributions credited to such Participant’s Account after the Administrative Committee (or its designee) has a reasonable opportunity to process such election pursuant to such procedures as the Administrative Committee may determine from time-to-time.  Any Investment Election made pursuant to this subsection with respect to future contributions will remain effective until changed by the Participant.  In the event a Participant never makes an Investment Election or makes an incomplete or insufficient Investment Election in some manner, the Administrative Committee shall direct the investment of the Participant’s Account.

(c)         Investment of Existing Account Balances .  Each Participant may make an Investment Election prescribing the percentage of his existing Account balance that will be deemed invested in each Investment Fund.  Such Participant may make such Investment Elections as of any Valuation Date, and each such election will be effective after the Administrative Committee (or its designee) has a reasonable opportunity to process such election.  Each such election will remain in effect until changed by such Participant.

(d)         Administrative Committee Discretion .  The Administrative Committee will have complete discretion to adopt and revise procedures to be followed in making Investment Elections.  Such procedures may include, but are not limited to, the process of making elections, the permitted frequency of making elections, the incremental size of elections, the deadline for making elections and the effective date of such elections.  Any procedures adopted by the Administrative Committee that are inconsistent with the deadlines or procedures specified in this Section will supersede such provisions of this Section without the necessity of a Plan amendment.

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ARTICLE V

PAYMENT OF ACCOUNT BALANCES

5.1        Distributions Subaccounts .

(a)         Generally .  For purposes of determining the timing and form of distribution, a Participant’s Account shall be allocated among Retirement, In-Service and Nonemployee Director Separation From Service Subaccounts. A Participant may have only one Retirement Subaccount or Nonemployee Director Separation From Service Subaccount and up to ten (10) In-Service Subaccounts.

(b)         Matching, Make-Up ESOP, Make-Up ARC and Make-Up Pension Contributions .  All Matching, Make-Up ESOP, Make-Up ARC and Make-Up Pension Contributions shall be allocated to the Retirement Subaccount. The Retirement Subaccount may include a Matching Contribution subaccount, Make-Up ESOP Contribution subaccount, Make-Up ARC Contribution subaccount, Make-Up Pension Contribution subaccount, Deferral Contribution subaccount, and any other subaccount established from time to time under such Retirement Subaccount, all of which may have different attributes, including vesting schedule and distribution options.

(c)         Deferral Contributions .  Each Participant may direct the manner in which his Deferral Contributions will be allocated among his Retirement Subaccount or Nonemployee Director Separation From Service Subaccount and any In-Service Subaccount.  In the event a Participant fails to make an election regarding such allocation or makes an incomplete or insufficient election in some manner, his Deferral Contributions shall be allocated to his Retirement Subaccount or Nonemployee Director Separation From Service Subaccount.

5.2        Retirement Subaccount or Nonemployee Director Separation From Service Subaccount .

(a)         General Rule Concerning Payments .

(i)         Retirement Subaccount .  Upon Separation From Service, after attaining Retirement Age, a Participant will be entitled to begin receiving a distribution of the total of (i) the vested amount credited to his Retirement Subaccount, except for Make-Up ARC Contributions, determined as of the Valuation Date on which such distribution is based; plus (ii) the vested amount of Deferral, Matching, Make-Up ESOP and Make-Up Pension Contributions to be credited to his Retirement Subaccount since such Valuation Date; plus (iii) any accrued but uncredited earnings.  Upon Separation From Service for any reason other than death or Disability and before his Retirement Age, a Participant will receive a single lump sum distribution of the total of (i) the vested amount credited to his Retirement Account, except for Make-Up ARC Contributions, determined as of the Valuation Date on which such distribution is based; plus (ii) the vested amount of Deferral, Matching, Make-Up ESOP and Make-Up Pension Contributions made since such Valuation Date; plus (iii) any accrued but  

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uncredited earnings.  For purposes of this subsection, the “Valuation Date on which such distribution is based” refers to the Valuation Date established for such purpose by administrative practice, even if actual payment is made or commenced at a later date due to delays in valuation, administration or any other procedure.

(ii)        Nonemployee Director Separation From Service Subaccount .  Upon Separation From Service at any age, unless he otherwise elects to receive his distribution in installments under Section 5.2(d), a Participant will receive a single lump sum distribution of the total of (i) his Nonemployee Director Separation From Service Subaccount; plus (ii) any accrued but uncredited earnings.

(b)         Special Rule Concerning Payments of Make-Up ARC Contributions .  Upon Separation From Service, after attaining Retirement Age, a Participant will be entitled to begin receiving a distribution of (i) his vested Make-Up ARC Contributions credited to his Retirement Subaccount, determined as of the Valuation Date on which such distribution is based; plus (ii) the vested Make-Up ARC Contributions to be credited to his Retirement Subaccount since such Valuation Date; plus (iii) any accrued but uncredited earnings.  Upon Separation From Service for any reason other than death or Disability and before his Retirement Age, the Participant is not entitled to receive a distribution of his Make-Up ARC Contributions (which are not vested) and such unvested Make-Up ARC Contributions will be forfeited.  For purposes of this subsection, the “Valuation Date on which such distribution is based” refers to the Valuation Date established for such purpose by administrative practice, even if actual payment is made or commenced at a later date due to delays in valuation, administration or any other procedure.

For purposes of this subsection (b), if a Participant begins receiving a distribution of his Excess Considered Pay component of his Make-Up ARC Contributions after Early Retirement but before Normal Retirement, the amount of his Excess Considered Pay component of his Early Retirement benefit will be reduced by 0.4167% per month (5% per year) for each month by which the Participant’s commencement of distribution precedes the month in which the Participant will attain Normal Retirement Age.  However, if a Participant begins receiving a distribution of his Make-Up ARC Contributions after attaining Normal Retirement Age, the amount of his Normal Retirement benefit will be unreduced.

(c)         Timing of Distribution .  The vested amount payable to a Participant under this Section 5.2 will begin to be distributed as follows:

(i)        If the Separation From Service occurs on or after January 1 and on or before June 30 of a Plan Year, the lump sum or initial installment payment will be distributed on January 1 of the next Plan Year or as soon as administratively practicable thereafter.

(ii)       If the Separation From Service occurs on or after July 1 and on or before December 31 of a Plan Year, the lump sum or initial installment payment

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will be distributed on July 1 of the next Plan Year or as soon as administratively practicable thereafter.

Subsequent annual installment payments, if any, will be made on each succeeding January 1, or as soon as administratively practicable thereafter.  Notwithstanding the preceding, a Participant may elect to delay the payment of benefits hereunder in accordance with the subsequent election requirements of Code Section 409A(a)(4)(C) (as described in subsection (d)(ii) hereof).

(d)         Form of Distribution .  The benefit payable to a Participant under this Section will be paid in the form of a single lump sum payment, unless the Participant elects, in accordance with the initial election requirements of Code Section 409A(a)(4)(B) or the subsequent election requirements of Code Section 409A(a)(4)(C) (as described in subsection (d)(ii) hereof), to receive annual installment payments (which will be considered a “single payment” for purposes of the Code Section 409A requirements regarding subsequent elections) of his Retirement Subaccount (or any subaccount(s) created thereunder) or Nonemployee Director Separation From Service Subaccount.  The Retirement Subaccount, any subaccount(s) created thereunder, and a Nonemployee Director Separation From Service Subaccount may be treated as separate subaccounts and may have different distribution elections and attributes.  Any change to the distribution election for any such subaccount may only be made in accordance with Section 409A, subject to the following terms and conditions:

(i)         Length of Installment Payments .  The installment payments of all or a portion of the Participant's benefit will be made in substantially equal annual installments (adjusted for investment income between payments in the manner described in Section 3.10) over a period of not less than 2 years and not more than 15 years.  The initial value of the obligation for the installment payments will be equal to the amount of the Participant’s Retirement Subaccount (or any subaccount created thereunder) or Nonemployee Director Separation From Service Subaccount  balance calculated in accordance with the terms of subsection (a) or (b) hereof.

(ii)        Participant Election .  A Participant may designate and from time to time may redesignate for each and every Retirement Subaccount (or any subaccount created thereunder) or Nonemployee Director Separation From Service Subaccount the number of years over which such installment payments would be made upon his Separation From Service after attaining Retirement Age or, for a Nonemployee Director, upon his Separation From Service; provided however, that if the Participant makes an election less than 12 months prior to Separation From Service, such election will not be effective and the previous election (if any) will apply; provided further, the Participant cannot redesignate the number of years after payments have begun.  Moreover, the first payment with respect to any such election to change the form of payment or to delay payment will be delayed to a date that is at least 5 years from the date the first payment would otherwise have commenced.  In the event a Participant fails to make an election regarding the number of annual installment payments he is to receive in

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the event of his Retirement or, for a Nonemployee Director, his Separation From Service, or makes an incomplete or insufficient election in some manner, his benefit will be payable in the form of a single lump sum payment.  Installment payments will be made on January 31 of each applicable Plan Year.

(iii)        Payments Following Death .  If a Participant dies after payment of his benefit from the Plan has begun, but before his entire benefit has been distributed, the remaining amount of his Retirement or Nonemployee Director Separation From Service Subaccount balance will be distributed to the Participant’s designated Beneficiary in the form of a single lump sum payment.

5.3        In-Service Subaccounts .

(a)         General Rule .  A Participant may elect to allocate his Deferral Contributions to one or more, but no more than ten (10), In-Service Subaccounts.  In accordance with the terms of subsections (b), (c) and (d) hereof, a Participant will be entitled to receive or begin receiving a distribution of an In-Service Subaccount equal to (i) the entire amount credited to such In-Service Subaccount, determined as of the Valuation Date on which such distribution is based;  plus (ii) the amount of Deferral Contributions made since such Valuation Date; plus (iii) any accrued but uncredited earnings.  For purposes of this subsection, the “Valuation Date on which such distribution is based” refers to the Valuation Date established for such purpose by administrative practice, even if actual payment is made or commenced at a later date due to delays in valuation, administration or any other procedure.

(b)         Timing of Distribution

(i)         General Rule .  The Participant’s In-Service Subaccount will be or will commence to be distributed to him on the applicable In-Service Distribution Date.

(ii)        Election by Participant .  A Participant may elect to have his In-Service Subaccount paid or commenced on January 1, or as soon as administratively practicable thereafter, of any year specified in such election; provided, however, the commencement date shall be no earlier than January 1 of the first calendar year following the Plan Year of deferral.  Such date will be known as the In-Service Distribution Date for the applicable In-Service Subaccount.  Such election must be made at the time the Participant elects to make his Deferral Contributions which are to be allocated to the In-Service Subaccount.  Effective beginning January 1, 2008, if a Participant does not make an election hereunder for the first Plan Year in which his In-Service Subaccount is credited with Deferral Contributions, he will be deemed to have elected as the commencement date the January 1, or as soon as administratively practicable thereafter, of the first calendar year following the Plan Year of deferral.  Distributions otherwise scheduled to be made on January 1 under this Section 5.3(b)(ii) shall be made on January 1 or as soon as administratively practicable thereafter.

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(iii)        Modifications of In-Service Distribution Date .  At least one year prior to any In-Service Distribution Date (as determined in accordance with subsection (b)(i) or (b)(ii) hereof), a Participant may make an election (subject to Section 5.3(a)) to delay the payment (or commencement) of his In-Service Subaccount payable on such date to a later date; provided, however, that the first payment with respect to any such election to delay payment will be delayed to a date that is at least 5 years from the date the first payment would otherwise have commenced.  A Participant may make an election pursuant to this subsection more than once.

(c)         Form of Distribution . A Participant’s In-Service Account will be paid in the form of a single lump sum distribution; provided, however, a Participant may elect at the time he makes an election under Section 5.3(b)(ii) with respect to the In-Service Distribution Date, to have such In-Service Subaccount balance paid in the form of annual installment payments.  The following terms and conditions will apply to installment payments made under the Plan (which will be considered a “single payment” for purposes of the Code Section 409A requirements regarding subsequent elections):

(i)         Length of Installment Payments.  The installment payments of all or a portion of the Participant’s benefit will be made in substantially equal annual installments (adjusted for investment income between payments in the manner described in Section 3.10) over any period of not less than 2 years and not more than 15 years.  The initial value of the obligation for the installment payments will be equal to the amount of the Participant’s In-Service Subaccount balance calculated in accordance with the terms of Section 5.3(a).

(ii)        Participant Election .  A Participant will designate and from time to time may redesignate the number of years over which such installment payments will be made; provided however, that if the Participant makes an election less than 12 months prior to the In-Service Distribution Date, such election will not be effective and the previous election (if any) will apply; provided further, the Participant cannot redesignate the number of years after payments have begun.  Moreover, a Participant may change the form of payment of his In-Service Subaccount before payments have begun; provided, however, that the first payment with respect to any such election to change the form of payment will be delayed to a date that is at least 5 years from the date the first payment would otherwise have commenced.  Installment payments will be made on January 1 of each applicable Plan Year or as soon as administratively practicable thereafter.  In the event a Participant fails to make an election regarding the number of annual installment payments he is to receive or makes an incomplete or insufficient election in some manner, his benefit will be payable in the form of a single lump sum payment.

(iii)        Payments Following Death .  If a Participant dies after payment of his benefit from the In-Service Subaccount has begun, but before his entire In-Service Subaccount has been distributed, the remaining amount of his In-Service

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Subaccount balance will be distributed to the Participant’s designated Beneficiary in the form of a single lump sum payment.

(d)         Separation From Service .  Notwithstanding anything herein to the contrary, upon an Eligible Employee’s Separation From Service prior to his Retirement Age, any In-Service Subaccount will be payable in the form of a single lump sum payment as follows:

(i)        If the Separation From Service occurs on or after January 1 and on or before June 30 of a Plan Year, the lump sum payment will be distributed on January 1 of the next Plan Year or as soon as administratively practicable thereafter.

(ii)       If the Separation From Service occurs on or after July 1 and on or before December 31 of a Plan Year, the lump sum payment will be distributed on July 1 of the next Plan Year or as soon as administratively practicable thereafter.

Upon an Eligible Employee’s Separation From Service on or after his Retirement Age or upon a Nonemployee Director’s Separation From Service at any age, (A) any In-Service Subaccount from which payments commenced prior to the Participant’s Separation From Service shall continue to be paid in accordance with the elections applicable to such subaccount, and (B) an In-Service Subaccount from which payments have not yet begun shall be transferred to the Participant’s Retirement or Nonemployee Director Separation From Service Subaccount and paid in accordance with the terms thereof.

5.4        Disability Benefits .

(a)         General Rule Concerning Payments .  If a Participant becomes Disabled, he will be entitled to begin receiving a distribution of the total of (i) the entire vested amount credited to his Account, determined as of the Valuation Date on which such distribution is based; plus (ii) the vested amount of Deferral, Matching, Make-Up ESOP, Make-Up ARC and Make-Up Pension Contributions made since such Valuation Date; plus (iii) any accrued but uncredited earnings.  For purposes of this subsection, the “Valuation Date on which such distribution is based” refers to the Valuation Date established for such purpose by administrative practice, even if actual payment is made or commenced at a later date due to delays in valuation, administration or any other procedure.

(b)         Timing of Distribution .  The vested benefit payable to a Participant under this Section will commence to be distributed 60 days after the date the Participant becomes Disabled.

(c)         Form of Distribution .  The benefit payable to a Participant under this Section will be paid in the form of a single lump sum payment, unless the Participant elects to receive annual installment payments (which will be considered a “single payment” for purposes of the Code Section 409A requirements regarding subsequent elections), subject to the following terms and conditions:

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(i)         Length of Installment Payments .  The installment payments will be made in substantially equal annual installments (adjusted for investment income between payments in the manner described in Section 3.10) over a period of not less than 2 years and not more than 15 years.  The initial value of the obligation for the installment payments will be equal to the amount of the Participant’s Account balance calculated in accordance with the terms of Section 5.4(a).

(ii)        Participant Election .  A Participant will designate and from time to time may redesignate the number of years over which such installment payments would be made if he were to become Disabled; provided, however, that if the Participant makes an election less than 12 months prior to becoming Disabled, such election will not be effective and the previous election (if any) will apply; provided further, the Participant cannot redesignate the number of years after payments have begun.  Installment payments will be made on January 1 of each applicable year or as soon as administratively practicable thereafter.  Effective beginning January 1, 2008, in the event a Participant fails to make an election regarding the number of annual installment payments he is to receive in the event of his Disability or makes an incomplete or insufficient election in some manner, his benefit will be payable in the form of a single lump sum payment.

(iii)       Payments Following Death .  If a Participant dies after payment of his benefit from the Plan has begun, but before his entire benefit has been distributed, the remaining amount of his Account balance will be distributed to the Participant’s designated Beneficiary in the form of a single lump sum payment.

5.5        Death Benefits .

If a Participant dies before payment of his benefit from the Plan is made or commenced, the Beneficiary or Beneficiaries designated by such Participant in his latest beneficiary designation form filed with the Administrative Committee will be entitled to receive a distribution of the total of (i) the entire vested amount credited to such Participant’s Account, determined as of the Valuation Date on which such distribution is based; plus (ii) the vested amount of Deferral, Matching, Make-Up ESOP, Make-Up ARC and Make-Up Pension Contributions made since such Valuation Date; plus (iii) any accrued but uncredited earnings.  For purposes of this Section, the “Valuation Date on which such distribution is based” refers to the Valuation Date established for such purpose by administrative practice, even if actual payment is made or commenced at a later date due to delays in valuation, administration or any other procedure.  The benefit will be distributed to such Beneficiary or Beneficiaries within 60 days following the date of the Participant’s death, in the form of a single lump sum payment in cash as prescribed in Section 5.8.

5.6        Change in Control .

Subject to Section 9.2, any Participant who is involved with a Change in Control (as described in Section 1.13) will receive or continue to receive a distribution of his then fully

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vested Account (or the remainder thereof) payable under the applicable provisions of Sections 5.2, 5.3, 5.4 or 5.5.

5.7        Mandatory Cash-Out .

Notwithstanding anything in Sections 5.2, 5.4, 5.5, or 5.6 to the contrary, any Participant whose Account as of the date his benefit is scheduled to be paid or commence to be paid is less than $25,000, such benefit will be paid in a single lump sum payment.

5.8        Form of Assets .

All distributions will be made in the form of cash in U.S. dollars.

5.9        Withdrawals for Unforeseeable Emergency .

Upon receipt of (i) an application for an emergency withdrawal from a Participant who has not yet received distribution of his entire Account and (ii) the Administrative Committee’s decision, made in its sole discretion, that a Participant has suffered an Unforeseeable Emergency, the Administrative Committee will cause the Controlling Company to pay a distribution to such Participant.  Such distribution will be paid in a single-sum payment, in cash as prescribed in Section 5.8, as soon as administratively feasible after the Administrative Committee determines that the Participant has incurred an Unforeseeable Emergency.  The amount of such single-sum payment will be limited to the vested amount of the Participant’s Account that is reasonably necessary to meet the Participant’s requirements resulting from the Unforeseeable Emergency.  The amount of such distribution will reduce the Participant’s Account balance as provided in Section 3.9.  In addition, the Participant receiving such distribution will immediately cease to make Deferral Contributions and will not be eligible to resume Deferral Contributions until the first day of the Plan Year beginning after the date of the distribution.

5.10      Beneficiary Designation .

(a)         General .  Participants will designate and from time to time may redesignate their Beneficiaries in such form and manner as the Administrative Committee may determine.

(b)        No Designation or Designee Dead or Missing.  In the event that:

(1)        a Participant dies without designating a primary or contingent Beneficiary;

(2)        none of the primary or contingent Beneficiaries designated by a Participant survive the Participant by 60 days; or

(3)        the Beneficiary designated by a Participant cannot be located by the Administrative Committee within 1 year from the date benefits are to be paid to such person;

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then, in any of such events, the Beneficiary of such Participant with respect to any benefits that remain payable under the Plan will be the Participant’s Surviving Spouse, if any, and if not, the estate of the Participant.

(c)         Multiple Primary Beneficiaries .  If a Participant names more than one primary Beneficiary and a primary Beneficiary does not survive the Participant by 60 days, the portion of the Participant’s Account that would have been distributed to such primary Beneficiary will be distributed as elected by the Participant; provided, if the Participant fails to make such an election, the portion of his Account that would have been distributed to such primary Beneficiary will be distributed to the Participant’s Surviving Spouse, if any, and if not, the estate of the Participant.

(d)         Forfeiture of Benefits In the Case of Murder or Manslaughter .  Notwithstanding anything to the contrary in the Plan, no distribution of benefits will be made under any provision of the Plan to any individual who is convicted of, or pleads guilty to, murder, felony murder or voluntary manslaughter of a Participant with respect to whom such distribution would otherwise be payable.  For purposes of the Plan, any such individual will be deemed to have predeceased the Participant (and thus will not be considered a Beneficiary).  The Administrative Committee may withhold distribution of benefits otherwise payable under the Plan for such period of time as is necessary or appropriate under the circumstances to make a determination with regard to the application of this subsection (d).

5.11      Offset for Obligations to the Company .

Notwithstanding anything herein to the contrary, if a Participant or Beneficiary has any outstanding obligation to any Affiliate (whether or not such obligation is related to the Plan), the Administrative Committee may cause the Account balance of such Participant or Beneficiary to be reduced and offset by, and to be applied to satisfy, the amount of such obligation, provided the obligation was incurred in the ordinary course of the service relationship between the Participant and the Affiliate, the entire amount of reduction in any of the Participant’s taxable years does not exceed $5,000, and the reduction is made at the same time and in the same amount as the obligation would otherwise have been due and collected from the Participant.

5.12      Taxes .

If the whole or any part of any Participant’s or Beneficiary’s benefit hereunder will become subject to any income, employment or other state, local or foreign tax which the Participating Company will be required to pay or withhold, the Participating Company will have the full power and authority, to the extent provided under Code Section 409A and applicable regulations, to withhold and pay such tax out of any monies or other property in its hand for the account of the Participant or Beneficiary whose interests hereunder are so affected (including, without limitation, by reducing and offsetting the Participant’s or Beneficiary’s Account balance).  Prior to making any payment, the Participating Company may require such releases or other documents from any lawful taxing authority as it deems necessary.

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5.13      Acceleration of Payment .

The time or schedule of payment of a benefit under the Plan may be accelerated upon such events and conditions as the IRS may permit in generally applicable published regulatory or other guidance under Code Section 409A, including, without limitation, payment to a person other than the Participant to the extent necessary to fulfill the terms of a domestic relations order (as defined in Code Section 414(p)(1)(B)), payment of FICA tax and income tax on wages imposed on any amounts under this Plan, or payment of the amount required to be included in income for the Participant as a result of failure of the Plan to meet the requirements of Code Section 409A with respect to the Participant.

5.14      Delay of Payment .

The Administrative Committee may delay payment of a benefit hereunder upon such events and conditions as the IRS may permit in generally applicable published regulatory or other guidance under Code Section 409A, including, without limitation, payments that the Administrative Committee reasonably anticipates will be subject to the application of Code Section 162(m), or will violate Federal securities laws or other applicable law.

5.15      Participant’s Right to Cancel Deferrals or Terminate Participation in Plan by December 31, 2005 .

At any time on or before December 31, 2005, a Participant has the right to cancel participation in the Plan, or to cancel an outstanding deferral election with regard to amounts subject to Code Section 409A, provided that the amounts subject to the termination or cancellation are includible in the income of the Participant in the calendar year 2005 or, if later, in the taxable year in which the amounts are earned and vested.

5.16      Participant’s Right to Change Payment Elections by November 30, 2008 .

Subject to any administrative limitation determined in the sole and absolute discretion of the Administrative Committee that establishes an earlier deadline, at any time on or before November 30, 2008, a Participant has the right to make new payment elections with respect to both the timing and form of benefits payable under the Plan, and any such election will not be treated as a change in the form and timing of a payment under Code Section 409A(a)(4) or an acceleration of a payment under Code Section 409A(a)(3), provided that this Section and any related election applies only to amounts that would not otherwise be payable during the year in which such election is made and does not cause an amount to be paid in the year of election that would not otherwise be payable in such year.

ARTICLE VI

CLAIMS

6.1       Presentation of Claims .  

Any Participant or Beneficiary of a deceased Participant (such Participant or Beneficiary being referred to below as a “Claimant”) may deliver to the Administrative Committee a written

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claim for a determination with respect to the amounts distributable to such Claimant from the Plan.  The claim must state with particularity the determination desired by the Claimant.

6.2       Claims Procedure .  

The Administrative Committee shall notify any person or entity that makes a claim against the Plan in writing, within 90 days of Claimant’s written application for benefits, of his or her eligibility or noneligibility for benefits under the Plan.  If the Administrative Committee determines that the Claimant is not eligible for benefits or full benefits, the notice shall set forth (1) the specific reasons for such denial, (2) a specific reference to the provisions of the Plan on which the denial is based, (3) a description of any additional information or material necessary for the Claimant to perfect his or her claim, and a description of why it is needed, and (4) an explanation of the Plan’s claims review procedure and other appropriate information as to the steps to be taken if the Claimant wishes to have the claim reviewed.  If the Administrative Committee determines that there are special circumstances requiring additional time to make a decision, the Administrative Committee shall notify the Claimant of the special circumstances and the date by which a decision is expected to be made, and may extend the time for up to an additional 90 days.

6.3       Review Procedure .

If the Claimant is determined by the Administrative Committee not to be eligible for benefits, or if the Claimant believes that he or she is entitled to greater or different benefits, the Claimant shall have the opportunity to have such claim reviewed by the Administrative Committee by filing a petition for review with the Administrative Committee within 60 days after receipt of the notice issued by the Administrative Committee.  Said petition shall state the specific reasons which the Claimant believes entitle him or her to benefits or to greater or different benefits.  Within 60 days after receipt by the Administrative Committee of the petition, the Administrative Committee shall afford the Claimant (and counsel, if any) an opportunity to present his or her position to the Administrative Committee verbally or in writing.  Claimant (or counsel) shall have the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits, and shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s claim.  The review shall take into account all comments, documents, records, and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.  The Administrative Committee shall notify the Claimant of its decision in writing within the 60-day period, stating specifically the basis of its decision, written in a manner calculated to be understood by the Claimant and the specific provisions of the Plan on which the decision is based.  If, because of the need for a hearing, the 60-day period is not sufficient, the decision may be deferred for up to another 60 days at the election of the Administrative Committee, but notice of this deferral shall be given to the Claimant.

6.4       Special Procedures Applicable to Disability Benefits .

If a claim for benefits under the Plan is contingent on a determination by the Administrative Committee (or its designee) that the Participant suffers from a Disability, the

34


 

Claimant shall receive a written response to the initial claim from the Administrative Committee within 45 days, rather than 90 days.  If special circumstances require an extension, the Administrative Committee shall notify the Claimant within the 45-day processing period that additional time is needed.  If the Administrative Committee requests additional information so it can process the claim, the Claimant will have at least 45 days in which to provide the information.  Otherwise, the initial extension cannot exceed 30 days.  If circumstances require further extension, the Administrative Committee will again notify the Claimant, this time before the end of the initial 30-day extension.  The notice will state the date a decision can be expected.  In no event will a decision be postponed beyond an additional 30 days after the end of the first 30-day extension.  The Claimant may request a review of the Administrative Committee’s decision regarding the Disability claim within 180 days, rather than 60 days.  The review must be conducted by a fiduciary different from the fiduciary who originally denied the claim, and the fiduciary also cannot be subordinate to the fiduciary who originally denied the claim.  If the original denial of the claim was based on a medical judgment, the reviewing fiduciary must consult with an appropriate health care professional who was not consulted on the original claim and who is not subordinate to someone who was  The review must identify the medical or vocational experts consulted on the original claim.  The Claimant may request, in writing, a list of those medical or vocational experts.  The Claimant will receive notice of the reviewing fiduciary’s final decision regarding the Disability claim within 45 days, rather than 60 days, of the request for review.

6.5       Legal Action .

A Claimant’s compliance with the foregoing provisions of this Article VI is a mandatory prerequisite to a Claimant’s right to commence any legal action with respect to any claim for benefits under this Plan.

6.6       Satisfaction of Claims .

Any payment to a Participant or Beneficiary will to the extent thereof be in full satisfaction of all claims hereunder against the Administrative Committee and the Participating Companies, any of whom may require such Participant or Beneficiary, as a condition to such payment, to execute a receipt and release therefore in such form as will be determined by the Administrative Committee or the Participating Companies.  If receipt and release is required but the Participant or Beneficiary (as applicable) does not provide such receipt and release in a timely enough manner to permit a timely distribution in accordance with the general timing of distribution provisions in the Plan, the payment of any affected distribution may be delayed until the Administrative Committee or the Participating Companies receive a proper receipt and release.

ARTICLE VII

SOURCE OF FUNDS; TRUST

7.1       Source of Funds .

Except as provided in this Section 7.1 and Section 7.2 (relating to the Trust), each Participating Company will provide the benefits described in the Plan from its general assets. 

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However, to the extent that funds in such Trust allocable to the benefits payable under the Plan are sufficient, the Trust assets may be used to pay benefits under the Plan.  If such Trust assets are not sufficient to pay all benefits due under the Plan, then the appropriate Participating Company will have the obligation, and the Participant or Beneficiary, who is due such benefits, will look to such Participating Company to provide such benefits.  The Controlling Company intends to enter into a guaranty agreement to guarantee Plan Obligations owed by the respective Participating Companies to Plan Participants incurred during such time that the Controlling Company owned, directly or indirectly, in the aggregate a majority or the ownership interest in such Participating Company.

7.2       Trust .

(a)         Establishment .  To the extent determined by the Controlling Company, the Participating Companies will transfer the funds necessary to fund benefits accrued hereunder to the Trustee to be held and administered by the Trustee pursuant to the terms of the Trust Agreement.  Except as otherwise provided in the Trust Agreement, each transfer into the Trust Fund will be irrevocable as long as a Participating Company has any liability or obligations under the Plan to pay benefits, such that the Trust property is in no way subject to use by the Participating Company; provided, it is the intent of the Controlling Company that the assets held by the Trust are and will remain at all times subject to the claims of the general creditors of the Participating Companies.

(b)         Distributions .  Pursuant to the Trust Agreement, the Trustee will make payments to Plan Participants and Beneficiaries in accordance with a payment schedule provided by the Participating Company.  The Participating Company will make provisions for the reporting and withholding of any federal, state or local taxes that may be required to be withheld with respect to the payment of benefits pursuant to the terms of the Plan and will pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by the Participating Company.

(c)         Status of the Trust .  No Participant or Beneficiary will have any interest in the assets held by the Trust or in the general assets of the Participating Companies other than as a general, unsecured creditor.  Accordingly, a Participating Company will not grant a security interest in the assets held by the Trust in favor of the Participants, Beneficiaries or any creditor.

(d)         Change in Control .  Notwithstanding anything in this Article VII to the contrary, in the event of a Change in Control, each of the Participating Companies with obligations to Participants (or their Beneficiaries) who are deemed involved with such Change in Control will immediately transfer to the Trustee an amount equal to the aggregate of all benefit amounts (determined as of the latest Valuation Date coinciding with or preceding the date the Change in Control occurs) of all such Participants and Beneficiaries for which such Participating Company is liable for payment in accordance with the terms of Section 3.1(c).  The funds so transferred will be held and administered by the Trustee pursuant to the terms of the Trust Agreement and the foregoing provisions of this Section 7.2.

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ARTICLE VIII

ADMINISTRATIVE COMMITTEE

8.1        Appointment of Administrative Committee .

(a)         Administrative Committee . The Board appoints individuals to serve as members of the Administrative Committee.  The Controlling Company has the right to remove any member of such committee at any time.  A member may resign at any time by written resignation delivered to the remaining members of the Administrative Committee (if any), and if none, to the Board.  If a vacancy in the Administrative Committee should occur, a successor may be appointed by the Controlling Company, and the Controlling Company may appoint additional members.  (See subsection (b) hereof regarding the specified persons who may act for the Controlling Company in naming committee members hereunder).

(b)         Appointments by Controlling Company .  The appointment and removal authority and responsibilities assigned to the Controlling Company in this Section 8.1 and Section 8.4(a) may be exercised at any time by either the Board or the individual(s) who are serving as member(s) of the Administrative Committee at such time; provided, if there is any dispute over any appointment or removal of a committee member, the Board will act to resolve such dispute.  In making such appointments and removals, the Administrative Committee members will be acting on behalf of the Controlling Company and not in their capacity as plan fiduciaries.

8.2        Administration Generally .

The Plan will be administered by the Administrative Committee.  The Administrative Committee may establish such policies and procedures as it deems helpful with respect to the operation and administration of the Plan.  All administrative and investment decisions ultimately will be made by and will require the approval of the Administrative Committee, except as delegated by the Administrative Committee or the Plan pursuant to this Article VIII.

8.3        Organization of Administrative Committee .

The Administrative Committee may elect a Chairman and a Secretary from among its members.  In addition to those powers set forth elsewhere in the Plan, the Administrative Committee, by formal action or through its practices, may appoint such agents, who need not be members of such Administrative Committee, as it may deem necessary for the effective performance of its duties and may delegate to such agents such powers and duties, whether ministerial or discretionary, as the Administrative Committee may deem expedient or appropriate.  The Administrative Committee will act by majority vote.

8.4         Powers and Responsibility of Administrative Committee .

The Administrative Committee will have complete control of the administration of the Plan hereunder, with all powers necessary to accomplish that purpose, including (but not limited to) the following:

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(a)       to appoint and remove members of the Administrative Committee;

(b)       to appoint a Trustee hereunder;

(c)       to construe the Plan and to determine all questions that will arise thereunder;

(d)       to have all powers elsewhere herein conferred upon it;

(e)       to decide all questions relating to the eligibility of employees or Nonemployee Directors to participate in the Plan;

(f)        to determine the benefits of the Plan to which any Participant or Beneficiary may be entitled;

(g)       to maintain and retain records relating to Participants and Beneficiaries;

(h)       to prepare and furnish to Participants all information required under federal law or provisions of the Plan to be furnished to them;

(i)        to provide directions to the Trustee with respect to methods of benefit payment, and all other matters where called for in the Plan or requested by the Trustee;

(j)        to engage assistants and professional advisors;

(k)       to provide procedures for determination of claims for benefits;

(l)        to amend the Plan at any time and from time to time as provided for in Section 9.1; and

(m)      to delegate any recordkeeping or other administerial duties hereunder to any other person or third party.

8.5        Records of Committee .

(a)         Notices and Directions .  Any notice, direction, order, request, certification or instruction of the Administrative Committee to the Trustee will be in writing signed by a member of the Administrative Committee (or such other media or format to which the Administrative Committee and Trustee may agree).  The Trustee and every other person will be entitled to rely conclusively upon any and all such proper notices, directions, orders, requests, certifications and instructions received from the Administrative Committee and reasonably believed to be properly executed, and will act and be fully protected in acting in accordance with any such directions that are proper.

(b)         Records of Administrative Committee .  All acts and determinations of the Administrative Committee will be duly recorded by its Secretary or under his supervision, and all such records, together with such other documents as may be

38


 

necessary for the administration of the Plan, will be preserved in the custody of such Secretary.

8.6        Construction of the Plan .

The Administrative Committee will take such steps as are considered necessary and appropriate to remedy any inequity that results from incorrect information received or communicated in good faith or as the consequence of an administrative error.  The Administrative Committee, in its sole and full discretion, will interpret the Plan and will determine the questions arising in the administration, interpretation and application of the Plan.  The Administrative Committee will endeavor to act, whether by general rules or by particular decisions, to treat all similarly-situated Participants uniformly, unless it otherwise deems necessary.  The Administrative Committee will correct any defect, reconcile any inconsistency or supply any omission with respect to the Plan.

8.7        Direction of Trustee .

The Administrative Committee will have the power to provide the Trustee with general investment policy guidelines and directions to assist the Trustee respecting investments made in compliance with, and pursuant to, the terms of the Plan.

8.8        Indemnification .

The Administrative Committee and each member of the Administrative Committee will be indemnified by the Participating Companies against judgment amounts, settlement amounts (other than amounts paid in settlement to which the Participating Companies do not consent) and expenses, reasonably incurred by the Administrative Committee or him in connection with any action to which the committee or he may be a party (by reason of his service as a member of the Administrative Committee) except in relation to matters as to which the committee or he will be adjudged in such action to be personally guilty of gross negligence or willful misconduct in the performance of its or his duties.  The foregoing right to indemnification will be in addition to such other rights as the Administrative Committee or each Administrative Committee member may enjoy as a matter of law or by reason of insurance coverage of any kind.  Rights granted hereunder will be in addition to and not in lieu of any rights to indemnification to which the Administrative Committee or each Administrative Committee member may be entitled pursuant to the by-laws or other organizational rules of the Controlling Company.  Service on the Administrative Committee will be deemed in partial fulfillment of an Administrative Committee member’s function as an employee or officer of the Controlling Company or any Participating Company, if he serves in such other capacity as well.

ARTICLE IX

AMENDMENT AND TERMINATION

9.1        Amendments .

The Administrative Committee will have the right, in its sole discretion, to amend the Plan in whole or in part at any time and from time to time; provided, any amendment that may

39


 

result in significantly increased expenses under the Plan must be approved by the Board.  Any amendment will be in writing and executed by a duly authorized member of the Administrative Committee.  An amendment to the Plan may modify its terms in any respect whatsoever, and may include, without limitation, a permanent or temporary freezing of the Plan such that the Plan will remain in effect with respect to existing Account balances without permitting any new contributions; provided, no such action may reduce the amount already credited to a Participant’s Account without the affected Participant’s written consent.  All Participants and Beneficiaries will be bound by such amendment.

9.2        Termination of Plan .  

The Controlling Company expects to continue the Plan but reserves the right to discontinue and terminate the Plan at any time, for any reason.  Any action to terminate the Plan will be taken by the Board in the form of a written Plan amendment executed by a duly authorized officer of the Controlling Company.  Such termination will be binding on all Participants and Beneficiaries.

If the Plan is terminated, each Participant will become 100% vested in his Account, which will be distributed in a single lump sum after the date the Plan is terminated if and to the extent such distribution is permitted under Code Section 409A and the regulations thereunder.  Accordingly, payment of a Participant’s benefits may be made hereunder in accordance with one of the following:

(a)        termination of the Plan within twelve (12) months of a corporate dissolution taxed under Code Section 331 or with the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), as provided in Treasury Regulation Section 1.409A-3(j)(4)(ix)(A); or

(b)        within the thirty (30) days preceding or the twelve (12) months following a Change in Control, provided that all substantially similar arrangements are also terminated, as provided in Treasury Regulations Section 1.409A-3(j)(4)(ix)(B); or

(c)        the termination of the Plan, provided the termination does not occur proximate to a downturn in the financial health of the Participating Company, if all arrangements that would be aggregated with the Plan under Treasury Regulation Section 1.409A-1(c) are terminated, no payments other than payments that would be payable under the terms of the Plan if the termination had not occurred are made within twelve (12) months of the Plan termination, all payments are made within twenty-four (24) months of the Plan termination, and no new arrangement that would be aggregated with the Plan under Treasury Regulation Section 1.409A-1(c) is adopted within three (3) years following the Plan termination, as provided in Treasury Regulation Section 1.409A-3(j)(4)(ix)(C).

(d)        such other events and conditions as the IRS may prescribe in generally applicable published guidance under Code Section 409A.

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The termination of the Plan shall not adversely affect any Participant or Beneficiary who has become entitled to the payment of any benefits under the Plan as of the date of termination.  The amount of any such distribution will be determined as of the date of Plan termination.

9.3        Authorization and Delegation to the Administrative Committee and Controlling Company .

Each Affiliate which is or hereafter becomes a Participating Company irrevocably authorizes and empowers the Administrative Committee and the Board to:

(a)        amend or terminate the Plan without further action by the Participating Company as provided in Sections 9.1 and 9.2; and

(b)        perform such other acts and do such other things as the Administrative Committee and the Board are expressly directly authorized or permitted to perform or do in the Plan.

ARTICLE X

MISCELLANEOUS

10.1      Taxation .

It is the intention of the Controlling Company that the benefits payable hereunder will not be deductible by the Participating Companies nor taxable for federal income tax purposes to Participants or Beneficiaries until such benefits are paid by the Participating Company, or the Trust, as the case may be, to such Participants or Beneficiaries.  Each Participant will be taxed for purposes of the Federal Insurance Contributions Act (“FICA”) as of the later of (i) the date that contributions are credited to the Participant’s Accounts; and (ii) the date that such amounts become vested.  When benefits are paid hereunder, it is the intention of the Controlling Company that they will be deductible by the Participating Companies under Code Section 162.

10.2      No Employment Contract .

Nothing herein contained is intended to be nor will be construed as constituting a contract or other arrangement between a Participating Company or any Affiliate and any Participant to the effect that the Participant will be employed by the Participating Company or Affiliate for any specific period of time.

10.3      Headings .

The headings of the various articles and sections in the Plan are solely for convenience and will not be relied upon in construing any provisions hereof.  Any reference to a section will refer to a section of the Plan unless specified otherwise.

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10.4       Gender and Number .

Use of any gender in the Plan will be deemed to include all genders when appropriate, and use of the singular number will be deemed to include the plural when appropriate, and vice versa in each instance.

10.5       Assignment of Benefits .

The right of a Participant or his Beneficiary to receive payments under the Plan may not be anticipated, alienated, sold, assigned, transferred, pledged, encumbered, attached or garnished by creditors of such Participant or Beneficiary, except by will or by the laws of descent and distribution and then only to the extent permitted under the terms of the Plan.

10.6       Legally Incompetent .

The Administrative Committee, in its sole discretion, may direct that payment to be made to an incompetent or disabled person, whether because of minority or mental or physical disability, be made instead to the guardian of such person or to the person having custody of such person, without further liability on the part of the Participating Company for the amount of such payment to the person on whose account such payment is made.

10.7       Governing Law .

The Plan will be construed, administered and governed in all respects in accordance with applicable federal law (including ERISA) and, to the extent not preempted by federal law, in accordance with the laws of the State of North Carolina.  If any provisions of this instrument will be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof will continue to be fully effective.

10.8       Exclusive Benefit .  

The benefits payable hereunder will be the exclusive benefit payable to any Participant under the Plan.

IN WITNESS WHEREOF , the Controlling Company has caused the Plan to be executed by its duly authorized officer this 10 th day of October, 2016 effective as of January 1, 2016.

 

HARRIS TEETER SUPERMARKETS, INC.

 

 

By:

/s/ Christine S. Wheatley

 

 

 

 

Its:

Vice President and Secretary

 

 

 

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EXHIBIT A

PARTICIPATING COMPANIES

(See Section 1.43)

 

Company Names

    

Effective Date

 

 

 

American & Efird, Inc.

 

August 16, 2002 (sold in 2011)

 

 

 

Harris Teeter, LLC (f/k/a Harris Teeter, Inc.)

 

August 16, 2002

 

 

A-1


EXHIBIT 10.5

THE KROGER CO.

EMPLOYEE PROTECTION PLAN

(as amended and restated effective January 13, 2017)

The Kroger Co. Employee Protection Plan, as set forth herein, is intended to assist The Kroger Co. and its affiliates in attracting and retaining key employees and enhance the long-term stability of The Kroger Co.’s work environment by providing for the protection of covered employees in connection with a Change in Control as set forth herein.

ARTICLE I

DEFINITIONS

1.1         “ Affiliate ” means a corporation, partnership, business trust, limited liability company, or other form of business organization at least 50% of the total combined voting power of all classes of stock or other equity interests of which is owned by Kroger, either directly or indirectly.

1.2         “ Annual Base Salary ” means an Eligible Employee’s annual base salary in effect immediately preceding a Change in Control (or if greater, immediately preceding the Eligible Employee’s Termination of Employment).

1.3         “ Annual Pay ” means the sum of an Eligible Employee’s Annual Base Salary plus the Eligible Employee’s Bonus.

1.4         “ Board ” means the Board of Directors of Kroger.

1.5         “ Bonus ” means the Eligible Employee’s annual bonus potential amount at target level for the year immediately preceding a Change in Control (or if greater, immediately preceding the Eligible Employee’s Termination of Employment).

1.6         “ Cause ” means an Eligible Employee’s:

(a)    failure to substantially perform the Eligible Employee’s duties (other than by reason of disability) with respect to Kroger or an Affiliate,

(b)    breach of fiduciary duty to Kroger or an Affiliate,

(c)    dishonesty, fraud, alcohol or illegal drug abuse, or misconduct with respect to the business or affairs of Kroger or an Affiliate,

(d)    willful violation of the policies of Kroger or an Affiliate after receiving written notice of such violation, or


 

 

(e)    conviction of a felony or crime involving moral turpitude.

All determinations of Cause hereunder shall be made by the Plan Administrator and shall be binding for all purposes hereunder.

1.7        “Change in Control” means, and shall be deemed to have occurred, if:

(a)    any Person, excluding Kroger, any of its Affiliates and any employee benefit plan of Kroger or any of its Affiliates, is or becomes the “beneficial owner” (as defined in Rules 13d‑3 and 13d‑5 under the Exchange Act), directly or indirectly, of securities of Kroger representing 20% or more of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors;

(b)    consummation of a reorganization, merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, individuals and entities that were the beneficial owners of outstanding voting securities entitled to vote generally in the election of directors of Kroger immediately prior to such Business Combination beneficially own, directly or indirectly, at least 60% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors resulting from such Business Combination (including, without limitation, an entity which, as a result of such transaction, owns all or substantially all of the Company or its assets either directly or through one or more subsidiaries or affiliates) in substantially the same proportions as their ownership of such securities immediately prior to such Business Combination;

(c)    during any period of twenty-four (24) consecutive months, individuals who, at the beginning of such period, constitute the Board (the “Incumbent Directors”) cease for any reason (including without limitation, as a result of a tender offer, proxy contest, merger or similar transaction) to constitute at least a majority thereof; provided that, any individual becoming a director of Kroger whose appointment or election by the Board or nomination for election by Kroger’s shareholders was approved or recommended by a vote of at least two-thirds of the Incumbent Directors shall also be considered an Incumbent Director; or

(d)    the consummation of a complete liquidation or dissolution of the Company.

Notwithstanding the foregoing, to the extent necessary to comply with Section 409A of the Code with respect to the payment of “nonqualified deferred compensation,” “Change of Control” shall be limited to a “change in control event” as defined under Section 409A of the Code.

2


 

 

1.7         “ Code ” means the Internal Revenue Code of 1986, as amended.

1.8         “ Company ” means Kroger and its Affiliates.

1.9         “ Coverage Period ” means the period commencing on the date on which a Change in Control occurs and ending on the second anniversary thereof.

1.10       “ Eligible Employee ” means any employee of the Company who has, prior to a Change in Control, (a) completed at least one Year of Service and (b) as of the date of a Change in Control, is employed (i)  as an exempt employee under the Fair Labor Standards Act, or (ii) in a non-bargaining unit administrative or technical support personnel position in a corporate, division, manufacturing, field, or logistics office, and is a non-exempt employee under the Fair Labor Standards Act.

1.11       “ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.

1.12       “ Good Reason ” means:

(a)    with respect to an Eligible Employee, and, in all cases without the written consent of the Eligible Employee:

(i)    A material diminution in the Eligible Employee’s base compensation;

(ii)    A material diminution in the Eligible Employee’s authority, duties, or responsibilities;

(iii)    A material change in the geographic location at which the Eligible Employee must perform services (for purposes of this Plan, this shall be deemed to occur if and only if the Eligible Employee’s principal place of work is relocated more than 50 miles from the Eligible Employee’s principal place of work immediately before a Change in Control); or

(iv)    Any other action or inaction that constitutes a material breach by Kroger of Section 2.1 hereof.

(b)    An Eligible Employee shall not have Good Reason for a Termination of Employment unless:

(i)    the condition constituting Good Reason occurs during the Coverage Period;

(ii)    the Eligible Employee provides written notice to the Plan Administrator of the existence of the condition constituting Good Reason within 90 days

3


 

 

of the initial existence of the condition constituting Good Reason and the Company is given 30 days to cure such condition; and

(iii)    the Eligible Employee incurs a Termination of Employment no later than 120 days following the end of the Coverage Period.

1.13       “ Kroger ” means The Kroger Co. and any successor thereto. The term successor shall include, without limitation, the surviving entity following any Business Combination.

1.14       “ Monthly Pay ” or “ Month’s Pay ” means Annual Pay divided by twelve.

1.15       “ Person ” means an individual, corporation, partnership, association, trust, unincorporated organization, limited liability company or other legal entity. All references to Person shall include an individual Person or group (as defined in Rule 13d‑5 under the Exchange Act) of persons.

1.16       “ Plan ” means The Kroger Co. Employee Protection Plan, as set forth herein, as amended from time to time.

1.17       “ Plan Administrator ” means the Compensation Committee of the Board.

1.18       “ Severance Benefit ” means:

(a)    With respect to an Eligible Employee who is non-exempt under the Fair Labor Standards Act, an amount equal to the Eligible Employee’s Monthly Pay multiplied by the Eligible Employee’s total Years of Service not in excess of six years.

(b)    With respect to an Eligible Employee who is exempt under the Fair Labor Standards Act, an amount equal to the Eligible Employee’s Monthly Pay multiplied by the Eligible Employee’s total Years of Service not in excess of twelve years.

(c)    With respect to an Eligible Employee described in Section 1.18(b) above, the benefit provided under Section 1.18(b) will be increased by the number of months corresponding to the Eligible Employee’s pay level as set forth below:

 

 

 

Pay Level

    

Additional Months Pay

12 or 13

 

1

14 or 15

 

2

31

 

3

32

 

4

33

 

5

34

 

6

35

 

7

36

 

8

37

 

9

38

 

10

39

 

11

Higher Pay Levels

 

12

 

4


 

 

1.19       “ Termination of Employment ” means an Eligible Employee’s termination of employment with the Company. In no event shall an Eligible Employee’s employment with the Company be treated as having terminated for purposes of this Plan unless such termination of employment constitutes a “separation from service” (within the meaning of Section 409A of the Code) with the Company.

1.20       “ Year of Service ” means, for purposes of this Plan, the total number of whole years during which an Employee was employed by the Company (including service with an entity prior to the date it became an Affiliate), including any periods during which an employee was on vacation or authorized leave of absence.

ARTICLE II

BENEFITS AND RIGHTS

2.1          Continued Benefits During the Coverage Period . During the Coverage Period, the Company shall provide each Eligible Employee, while employed by the Company, with employee benefits, perquisites and fringe benefits that, in the aggregate, are no less favorable than those provided to the Eligible Employee immediately prior to the Change in Control.

2.2          Benefits Upon Involuntary Termination of Employment . If an Eligible Employee’s employment is terminated during the Coverage Period by the Company without Cause or by the Eligible Employee for Good Reason, the Eligible Employee shall be entitled to the following benefits:

(a)     Severance Benefits . Kroger shall pay to the Eligible Employee the Eligible Employee’s Severance Benefit, calculated in accordance with Section 1.18 hereof. The Severance Benefit shall be paid in one lump sum payment to be paid no later than two weeks following the Eligible Employee’s Termination of Employment.

(b)     Vacation . Kroger shall pay to the Eligible Employee no later than two weeks following the Eligible Employee’s Termination of Employment a lump sum amount equal to the value of the Eligible Employee’s accrued and unpaid vacation (including “banked” vacation), if any, as of the Eligible Employee’s Termination of Employment.

(c)     Continued Health Care Insurance . Immediately following the Eligible Employee’s Termination of Employment, Kroger shall provide to the Eligible Employee health care coverage that is substantially similar to the coverage provided to

5


 

 

the Eligible Employee and at the contribution level being then made by the Eligible Employee immediately prior to the Change in Control. Such health care coverage shall be provided through a third-party insurance policy and shall continue until the earlier of: (i) the expiration of a number of months equal to the months of the Eligible Employee’s Severance Benefit under Section 1.18,   and (ii) the date the Eligible Employee is employed by a subsequent employer and is eligible by reason of such employment to receive substantially similar health care coverage. Upon termination of such coverage, the Eligible Employee shall be entitled to continuation of health care coverage under such terms as state or federal law may provide as if his or her Termination of Employment occurred on the last day of health care coverage provided by this Section 2.2(c).

(d)     Continued Group Term Life Insurance . Immediately following the Eligible Employee’s Termination of Employment, Kroger shall provide to the Eligible Employee at no cost to the Eligible Employee, term life insurance coverage that is substantially similar to the coverage provided immediately prior to the Change in Control. Such term life insurance shall be provided through a third-party insurance policy, at the election of the Company, shall be through the Company or individually issued policies, and shall continue until the earlier of: (i) a period of six months following the Eligible Employee’s Termination of Employment, and (ii) the date the Eligible Employee is employed by a subsequent employer and is eligible by reason of such employment to receive substantially similar group term life insurance coverage. In no event shall the taxable value of the benefit provided pursuant to this Section 2.2(d) exceed the amount set forth in Treasury Regulation Section 1.409A‑1(b)(9)(iii).

(e)     Outplacement Assistance .

(i)    Kroger shall reimburse the Eligible Employee for outplacement assistance expenses incurred during the first six months following the Employee’s Termination of Employment up to the amount provided in Section 2.2(e)(ii) hereof. Claims for reimbursement must be made no later than six months following the end of the six-month period and shall be accompanied by such documentation evidencing outplacement assistance expenses as Kroger may reasonably require. Kroger shall reimburse the Eligible Employee no later than 30 days following the receipt of such reimbursement request.

(ii)    The maximum amount of reimbursable outplacement expenses is as follows:

(A)    If the Eligible Employee is non-exempt under the Fair Labor Standards Act, the maximum amount is $5,000; and

(B)    If the Eligible Employee is exempt under the Fair Labor Standards Act, the maximum amount is $10,000.

2.3          Certain Terminations of Employment . In the event an Eligible Employee’s employment is terminated by the Company for Cause or an Eligible

6


 

 

Employee voluntarily terminates employment with the Company other than for Good Reason, the Eligible Employee shall not be entitled to any payments or benefits under the Plan.

2.4          Golden Parachute Provisions . In the event that it is determined that any payments or benefits received or to be received by an Eligible Employee in connection with a Change in Control or the Termination of Employment (whether pursuant to the terms of the Plan or any other plan, arrangement or agreement with Kroger, any Person whose actions result in a Change in Control or any Person affiliated with Kroger or such Person) would constitute parachute payments within the meaning of Section 280G of the Code and would, but for this Section 2.4, be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes  (the “ Excise Tax ”), then the amounts of any such payments or benefits pursuant to the terms of the Plan and such other arrangements shall be either (i) paid in full or (ii) reduced to the minimum extent necessary to ensure that no portion of the payments or benefits is subject to the Excise Tax, whichever of the foregoing (i) or (ii) results in the Eligible Employee’s receipt on an after-tax basis of the greatest amount of payments and benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax, which if applicable, shall be borne by the Eligible Employee). Any such reduction shall be made by Kroger in its sole discretion consistent with the requirements of Section 409A of the Code. Any determination required under this Section 2.4 shall be made in writing in good faith by a nationally recognized public accounting firm selected by Kroger. Kroger and the Eligible Employee shall provide the accounting firm with such information and documents as the accounting firm may reasonably request in order to make a determination under this Section 2.4.

2.5          Mitigation . An Eligible Employee shall not be required to mitigate damages or the amount of the Eligible Employee’s benefits by seeking or accepting other employment, nor shall the amount of such benefits be reduced by the amount of any payments required to be made by Kroger outside of the Plan or by the amount of any compensation earned by such Eligible Employee in any subsequent employment.

2.6          Reduction of Benefits by Other Required Benefits . Notwithstanding any other provision of this Plan to the contrary, the Severance Benefits provided under Section 2.2(a) hereof shall be reduced by the amount of any severance payments made pursuant to a written employment agreement between the Company or any Affiliate and an Eligible Employee. For purposes of this Section 2.6, payments made pursuant to a stock appreciation right, limited stock appreciation right, stock option or stock incentive agreement, restricted stock or performance unit agreement, payments under any employee benefit plan or arrangement providing benefits for more than one employee, whether a qualified or non-qualified plan, payments of deferred compensation, and payments under any other arrangement between Kroger or any Affiliate and any group of employees of Kroger or any Affiliate shall not be deemed “severance payments made pursuant to a written employment agreement.”

7


 

 

ARTICLE III

SUCCESSOR TO COMPANY OR AN AFFILIATE

In addition to any obligations imposed by law upon any successor to Kroger, Kroger shall be obligated to require any successor or transferee (whether direct or indirect, by reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or an Affiliate) to expressly assume its (and/or the relevant Affiliate’s) obligations under this Plan with respect to the persons employed in connection with the business and assets so transferred, in the same manner and to the same extent that Kroger (or the Affiliate) would be required to perform if no such succession had taken place. It is intended that any such successor or transferee shall be bound to the provisions of this Plan whether or not Kroger shall have complied with the foregoing provisions of this Article III.

ARTICLE IV

LEGAL FEES AND ARBITRATION

4.1          Legal Fees .

(a)    Kroger shall reimburse each Eligible Employee for all reasonable legal fees, costs of litigation, and other expenses actually incurred by the Eligible Employee if the Eligible Employee, either alone or as part of a class of Eligible Employees, prevails in any legal action arising from Kroger’s refusal to provide any benefit or payment to which the Eligible Employee becomes entitled under this Plan, or as a result of Kroger’s contesting the validity, enforceability or interpretation of the Plan. For the purposes of this Section 4.1, an Eligible Employee will be deemed to prevail in a legal action upon the execution of a binding legal settlement agreement between Kroger and the Eligible Employee (or a class of Eligible Employees that includes the Eligible Employee) or upon the issuance of a final non-appealable judgment, in either case which provides for the Eligible Employee to receive either a monetary recovery or any benefits described in Article II hereof. Kroger may require the Eligible Employee to provide documentation evidencing that the Eligible Employee has incurred legal fees, costs of litigation, or other related expenses.

(b)    Claims for reimbursement must be made no later than December 31 of the year in which the Eligible Employee is deemed to prevail in the legal action, or if later, 45 days after the date such Eligible Employee is deemed to prevail in the legal action and shall be accompanied by such documentation evidencing the legal fees and other expenses as Kroger may reasonably require. Kroger shall reimburse the Eligible Employee by a lump sum payment no later than 30 days following the receipt of such reimbursement request.

8


 

 

4.2          Arbitration . Each Eligible Employee shall have the right to elect (in lieu of litigation) to have any dispute or controversy arising under or in connection with the Plan settled by arbitration, conducted before a panel of three arbitrators sitting in a location selected by the Eligible Employee within 50 miles from the location of his or her principal employment location, in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the award of the arbitrator in any court having jurisdiction. Kroger shall pay any fees and expenses associated with the arbitration and, if the Eligible Employee prevails, Kroger shall pay his or her attorney’s fees as provided in Section 4.1.

ARTICLE V

PLAN ADMINISTRATION

5.1          Authority to Plan Administrator . The Plan shall be interpreted, administered and operated by the Plan Administrator, subject to the express provisions of the Plan.

5.2          Delegation of Duties . The Plan Administrator may delegate any of its duties hereunder to such person or persons from time to time as it may designate.

5.3          Engagement of Third Parties . The Plan Administrator is empowered, on behalf of the Plan, to engage accountants, legal counsel and such other personnel as it deems necessary or advisable to assist it in the performance of its duties under the Plan. The functions of any such persons engaged by the Plan Administrator shall be limited to the specified services and duties for which they are engaged, and such persons shall have no other duties, obligations or responsibilities under the Plan. Such persons shall exercise no discretionary authority or discretionary control respecting the management of the Plan. All reasonable expenses hereof shall be borne by Kroger.

ARTICLE VI

CLAIMS

6.1          Claims Procedure . Claims for benefits under the Plan shall be filed with the Plan Administrator. If any Employee or other payee claims to be entitled to a benefit under the Plan and the Plan Administrator determines that such claim should be denied in whole or in part, the Plan Administrator shall notify such person of its decision in writing. Such notification will be written in a manner calculated to be understood by such person and will contain (a) specific reasons for the denial, (b) specific reference to pertinent Plan provisions, (c) a description of any additional material or information necessary for such person to perfect such claim and an explanation of why such material or information is necessary, and (d) information as to the steps to be taken if the person wishes to submit a request for review. Such notification will be given within 60 days after the claim is received by the Plan Administrator.

6.2          Time to File Claim . A claim for a benefit under Section 6.1 shall be filed no later than 60 days after the latest date on which such benefit could have been timely

9


 

 

paid hereunder assuming the Eligible Employee or other payee were entitled to the benefit. For purposes of clarity, such latest date shall be deemed to occur after any notice or cure period has expired pursuant to Sections 1.12(b) (ii) or (iii).

6.3          Review Procedure . Within 60 days after the date on which a person receives a written notice of a denied claim such person (or his duly authorized representative) may (a) file a written request with the Plan Administrator for a review of his denied claim and of pertinent documents and (b) submit written issues and comments to the Plan Administrator. The Plan Administrator will notify such person of its decision in writing. Such notification will be written in a manner calculated to be understood by such person and will contain specific reasons for the decision as well as specific references to pertinent Plan provisions. The decision on review will be made within 60 days after the request for review is received by the Plan Administrator.

6.4          Claims and Review Procedures Not Mandatory . The claims procedure and review procedure provided for in this Article VI are provided for the use and benefit of Eligible Employees who may choose to use such procedures, but compliance with the provisions of this Article VI are not mandatory for any Eligible Employee claiming benefits under the Plan. It shall not be necessary for any Eligible Employee to exhaust these procedures and remedies prior to bringing any legal claim or action, or asserting any other demand, for payments or other benefits to which such Eligible Employee claims entitlement hereunder.

ARTICLE VII

AMENDMENT AND TERMINATION

The Plan may be amended or terminated by the Board at any time; provided, however, that the Plan may not be terminated or amended in a manner adverse to the interests of any Eligible Employee (without the consent of the Eligible Employee) during the Coverage Period. Upon the expiration of the Coverage Period, the Plan may not be amended in any manner that would adversely affect the rights of any Eligible Employee to receive any and all payments or benefits pursuant to Article II hereof by reason of a Termination of Employment during the Coverage Period, and Kroger’s obligations to make such payments and provide such benefits shall survive any termination of the Plan.

ARTICLE VIII

MISCELLANEOUS

8.1          No Right to Continued Employment . Nothing in the Plan shall be deemed to give any Eligible Employee the right to be retained in the employ of the Company, or to interfere with the right of Kroger or any Affiliate to discharge him or her at any time and for any lawful reason, with or without notice, subject to the terms of this Plan.

8.2          No Assignment of Benefits . Except as otherwise provided herein or by law, no right or interest of any Eligible Employee under the Plan shall be assignable or transferable, in whole or in part, either directly or by operation of law or otherwise,

10


 

 

including without limitation by execution, levy, garnishment, attachment, pledge or in any manner; no attempted assignment or transfer thereof shall be effective; and no right or interest of any Eligible Employee under the Plan shall be liable for, or subject to, any obligation or liability of such Eligible Employee.

8.3          Death . This Plan shall inure to the benefit of and be enforceable by an Eligible Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If an Eligible Employee shall die while any amount would still be payable to the Eligible Employee hereunder (other than amounts which, by their terms, terminate upon the death of the Eligible Employee), all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Plan to the executors, personal representatives or administrators of the Eligible Employee’s estate.

8.4          Enforceability . If any provision of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Plan shall be construed and enforced as if such provisions had not been included.

8.5          Modification, Waiver . After a Change in Control, no right of any Eligible Employee under this Plan may be released, modified, waived or discharged by an Eligible Employee unless such release, waiver, modification or discharge is agreed to in writing signed by the Eligible Employee. A waiver by an Eligible Employee at any time of any breach of the terms of this Plan or of compliance with any condition or provision of this Plan to be performed by Kroger shall not be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.

8.6          Withholding Taxes . All payments made and benefits provided hereunder shall be subject to all applicable federal, state, local and foreign tax withholding requirements.

8.7          Headings . The headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan, and shall not be employed in the construction of the Plan.

8.8          Notices . Any notice or other communication required or permitted pursuant to the terms hereof shall be deemed to have been duly given when delivered or mailed by United States Mail, first class, postage prepaid, addressed to the intended recipient at his, her or its last known address.

8.9          Governing Law . This Plan shall be construed and enforced according to the laws of the State of Ohio to the extent not preempted by Federal law, which shall otherwise control.

11


 

 

IN WITNESS WHEREOF , The Kroger Co. has caused the Plan to be duly adopted as of the 13 th day of January, 2017.

 

 

 

 

THE KROGER CO.

 

 

 

 

By:

/s/ Christine S. Wheatley

 

Christine S. Wheatley

 

Group Vice President, Secretary and General Counsel

 

12


EXHIBIT 12.1

 

SCHEDULE OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES FOR THE KROGER CO. AND CONSOLIDATED SUBSIDIARY COMPANIES FOR THE FIVE FISCAL YEARS ENDED JANUARY 28, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

January 28,

 

January 30,

 

January 31,

 

February 1,

 

February 2,

 

 

    

2017

    

2016

    

2015

    

2014

    

2013

 

 

 

(52 weeks)

 

(52 weeks)

 

(52 weeks)

 

(52 weeks)

 

(53 weeks)

 

 

 

 

 

Earnings:

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Earnings before tax expense

 

$

2,914

 

$

3,094

 

$

2,649

 

$

2,282

 

$

2,302

 

Fixed charges

 

 

1,037

 

 

903

 

 

896

 

 

797

 

 

823

 

Capitalized interest

 

 

(13)

 

 

(9)

 

 

(5)

 

 

(5)

 

 

(3)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pre-tax earnings before fixed charges

 

$

3,938

 

$

3,988

 

3,540

 

$

3,074

 

$

3,122

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed charges:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest

 

$

535

 

$

491

 

$

493

 

$

448

 

$

465

 

Portion of rental payments deemed to be interest

 

 

502

 

 

412

 

 

403

 

 

349

 

 

358

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total fixed charges

 

$

1,037

 

$

903

 

$

896

 

$

797

 

$

823

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ratio of earnings to fixed charges

 

 

3.8

 

 

4.4

 

 

4.0

 

 

3.9

 

 

3.8

 

 

 

1


EXHIBIT 21.1

 

SUBSIDIARIES OF THE KROGER CO.

 

84.51 LLC [Ohio]

84.51 HQ Building Company, LLC [Ohio]

Agri-Products, Inc. [Arkansas]

Alpha Beta Company [California]

Ansonborough Square Investors I, LLC [Delaware]

Ansonborough Square Retail, LLC [South Carolina]

Ardrey Kell Investments, LLC [North Carolina]

Bay Area Warehouse Stores, Inc. [California]

Beech Tree Holdings, LLC [Delaware]

Bell Markets, Inc. [California]

Bluefield Beverage Company [Ohio]

Brier Creek Arbors Drive Retail, LLC [North Carolina]

Cala Co. [Delaware]

Cala Foods, Inc. [California]

CB&S Advertising Agency, Inc. [Oregon]

Country Oven, Inc. [Ohio]

Crawford Stores, Inc. [California]

Creedmoor Retail, LLC [North Carolina]

Dillon Companies, Inc. [Kansas]

Also Doing Business As:

Baker’s Supermarkets

City Market

Dillon Food Stores

Dillon Stores Division, Inc.

Food 4 Less

Gerbes Supermarkets

Inter-American Products

King Soopers

Peyton’s Fountain

Dillon Real Estate Co., Inc. [Kansas]

Distribution Trucking Company [Oregon]

Dotto, Inc. [Indiana]

Edgewood Plaza Holdings, LLC [Ohio]

Embassy International, Inc. [Ohio]

Farmacia Doral, Inc. [Puerto Rico]

FM, Inc. [Utah]

FMJ, Inc. [Delaware]

Also Doing Business As:

FMJ Ecommerce

Fred Meyer Jewelers Mail Order

fredmeyerjewelers.com

littmanjewelers.com

Food 4 Less GM, Inc. [California]

Food 4 Less Holdings, Inc. [Delaware]

Food 4 Less Merchandising, Inc. [California]

Food 4 Less of California, Inc. [California]

Food 4 Less of Southern California, Inc. [Delaware]

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

1


 

Fred Meyer, Inc. [Delaware]

Fred Meyer Jewelers, Inc. [California]

Also Doing Business As:

Fred Meyer Jewelers

Littman Jewelers

Fred Meyer Stores, Inc. [Ohio]

Also Doing Business As:

Fred Meyer

Inter-American Products

QFC

Quality Food Centers

Swan Island Dairy

Glendale/Goodwin Realty I, LLC [Ohio]

Grubstake Investments, LLC [Oregon]

Harris Teeter, LLC [North Carolina]

Harris Teeter Properties, LLC [North Carolina]

Harris-Teeter Services, Inc. [North Carolina]

Harris Teeter Supermarkets, Inc. [North Carolina]

Healthy Options Inc. [Delaware]

Also Doing Business As:

Postal Prescription Services

Henpil, Inc. [Texas]

Hood-Clayton Logistics LLC [Georgia]

HT Fuel DE, LLC [Delaware]

HT Fuel MD, LLC [Maryland]

HT Fuel NC, LLC [North Carolina]

HT Fuel SC, LLC [North Carolina]

HT Fuel VA, LLC [Virginia]

HTGBD, LLC [North Carolina]

HTP Bluffton, LLC [North Carolina]

HTP Plaza LLC [North Carolina]

HTP Relo, LLC [North Carolina]

HTPS, LLC [North Carolina]

HTTAH, LLC [North Carolina]

Hughes Markets, Inc. [California]

Hughes Realty, Inc. [California]

Infusion Solutions of Puerto Rico, LLC [Puerto Rico]

Inter-American Foods, Inc. [Ohio]

Inter-American Products, Inc. [Ohio]

IRP, LLC [Wisconsin]

I.T.A., Inc. [Wisconsin]

ITAC 119, LLC [North Carolina]

ITAC 265, LLC [North Carolina]

Jondex Corp. [Wisconsin]

Jubilee Carolina, LLC [North Carolina]

Junior Food Stores of West Florida, Inc. [Florida]

Also Doing Business As:

Kwik Shop

Kwik Shop Market

Tom Thumb Food Stores

J.V. Distributing, Inc. [Michigan]

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

2


 

KCDE-2 LLC [Ohio]

KCDE-3 LLC [Ohio]

KCDE-4 LLC [Ohio]

KCDE-5 LLC [Ohio]

KCDE – 2012, LLC [Ohio]

KCDE – 2013, LLC [Ohio]

Kee Trans, Inc. [Wisconsin]

Kessel FP, L.L.C. [Michigan]

Kessel RCD, L.L.C. [Michigan]

Kessel Saginaw, L.L.C. [Michigan]

KGO LLC [Ohio]

Kiosk Medicine Kentucky, LLC [Kentucky]

Also Doing Business As:

The Little Clinic

Kirkpatrick West Retail, LLC [Virginia]

KPF Insurance Services LLC [Ohio]

KPF, LLC [Delaware]

KPS, LLC [Ohio]

KRGP Inc. [Ohio]

KRLP Inc. [Ohio]

Kroger 017 Operator, Inc. [Ohio]

Kroger 509 Operator, Inc. [Ohio]

The Kroger Co. of Michigan [Michigan]

Also Doing Business As:

Inter-American Products

Kessel Food Markets

Kessel Pharmacies

Kroger

Kroger Fresh Fare

Kroger Community Development Entity, LLC [Ohio]

Kroger Dedicated Logistics Co. [Ohio]

Also Doing Business As:

KDL

Kroger G.O. LLC [Ohio]

Kroger Limited Partnership I [Ohio]

Also Doing Business As:

Chef’s Choice Catering

Foods Plus

Gene Maddy Drugs

Inter-American Products

JayC Food Stores

Kentucky Distribution Center

Kroger Food Stores

Kroger Marketplace

Owen’s Supermarket

Pay Less Super Markets

Peyton’s Southeastern

Queen City Centre

Ruler Discount Foods

Ruler Foods

Scott’s Food & Pharmacy

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

3


 

Kroger Limited Partnership II [Ohio]

Also Doing Business As:

Country Oven Bakery

Crossroad Farms Dairy

Inter-American Products

K. B. Specialty Foods

Kenlake Foods

Pace Dairy of Indiana

Peyton’s Northern

Winchester Farms Dairy

Kroger Management Co. [Michigan]

Kroger Management – Corryville, LLC [Ohio]

Kroger Management – NMTC Athens I, LLC [Ohio]

Kroger Management – NMTC Champaign I, LLC [Ohio]

Kroger Management – NMTC Champaign II, LLC [Ohio]

Kroger Management – NMTC Cincinnati I, LLC [Ohio]

Kroger Management – NMTC Columbus I, LLC [Ohio]

Kroger Management – NMTC Dallas I, LLC [Ohio]

Kroger Management – NMTC Danville I, LLC [Ohio]

Kroger Management – NMTC Griffin I, LLC [Ohio]

Kroger Management – NMTC Houston I, LLC [Ohio]

Kroger Management – NMTC Logansport I, LLC [Ohio]

Kroger Management – NMTC Missouri I, LLC [Ohio]

Kroger Management – NMTC Oak Ridge I, LLC [Ohio]

Kroger Management – NMTC Olney I, LLC [Ohio]

Kroger Management – NMTC Omaha I, LLC [Ohio]

Kroger Management – NMTC Portsmouth I, LLC [Ohio]

Kroger Management – NMTC Starkville I, LLC [Ohio]

Kroger Management – NMTC Topeka I, LLC [Ohio]

Kroger Management – NMTC Warrenton I, LLC [Ohio]

Kroger MC Holdings, LLC [Ohio]

Kroger MTL Management, LLC [Ohio]

Kroger Prescription Plans, Inc. [Ohio]

Kroger Specialty Infusion AL, LLC [Alabama]

Kroger Specialty Infusion CA, LLC [California]

Kroger Specialty Infusion Holdings, Inc. [Delaware]

Kroger Specialty Infusion TX, LLC [Texas]

Kroger Specialty Pharmacy CA, LLC [Delaware]

Kroger Specialty Pharmacy CA 2 LLC [Delaware]

Kroger Specialty Pharmacy FL 2 LLC [Delaware]

Kroger Specialty Pharmacy Holdings, Inc. [Delaware]

Kroger Specialty Pharmacy Holdings I, Inc. [Delaware]

Kroger Specialty Pharmacy Holdings 2, Inc. [Delaware]

Kroger Specialty Pharmacy Holdings 3, Inc. [Delaware]

Kroger Specialty Pharmacy, Inc. [Florida]

Kroger Specialty Pharmacy LA, LLC [Louisiana]

 

 

 

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

4


 

Kroger Texas L.P. [Ohio]

Also Doing Business As:

America’s Beverage Company

Inter-American Products

Kroger

Vandervoort Dairy Foods Company

KR Plaza Holdings, LLC [Delaware]

Kwik Shop, Inc. [Kansas]

The Little Clinic LLC [Delaware]

The Little Clinic Management Services LLC [Delaware]

The Little Clinic of Arizona LLC [Delaware]

The Little Clinic of Colorado LLC [Delaware]

The Little Clinic of IN LLC [Delaware]

The Little Clinic of Kansas LLC [Delaware]

The Little Clinic of Mississippi LLC [Delaware]

The Little Clinic of Ohio LLC [Ohio]

The Little Clinic of Tennessee LLC [Delaware]

The Little Clinic of TX LLC [Delaware]

The Little Clinic of VA LLC [Delaware]

Local Mkt LLC [Ohio]

Main & Vine LLC [Ohio]

Matthews Property 1, LLC [North Carolina]

Mega Marts, LLC [Wisconsin]

Also Doing Business As:

Metro Market

Pick ‘n Save

Michigan Dairy, L.L.C. [Michigan]

Mini Mart, Inc. [Wyoming]

Also Doing Business As:

Loaf ‘N Jug

Pace Dairy Foods Company [Ohio]

Paramount Logistics, LLC [Ohio]

Pay Less Super Markets, Inc. [Indiana]

Peyton’s-Southeastern, Inc. [Tennessee]

Also Doing Business As:

Peyton’s Mid-South Company

Pontiac Foods, Inc. [South Carolina]

Queen City Assurance, Inc. [Vermont]

Quik Stop Markets, Inc. [California]

Ralphs Grocery Company [Ohio]

Also Doing Business As:

Food 4 Less

Food 4 Less Midwest

Foods Co.

Inter-American Products

Ralphs

Ralphs Fresh Fare

Ralphs Marketplace

RBF, LLC [Wisconsin]

Rocket Newco, Inc. [Texas]

Roundy’s Acquisition Corp. [Delaware]

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

5


 

Roundy’s Illinois, LLC [Wisconsin]

Also Doing Business As:

Mariano’s

Roundy’s, Inc. [Delaware]

Roundy’s Supermarkets, Inc. [Wisconsin]

Second Story, Inc. [Washington]

Shop-Rite, LLC [Wisconsin]

Also Doing Business As:

Metro Market

Pick ‘n Save

Smith’s Beverage of Wyoming, Inc. [Wyoming]

Smith’s Food & Drug Centers, Inc. [Ohio]

Also Doing Business As:

Fry’s Food Stores

Fry’s Marketplace

Fry’s Mercado

Inter-American Products

Peyton’s Phoenix

Smith’s Express

Smith’s Food & Drug Stores

Smith’s Fuel Centers

Smith’s Marketplace

Southern Ice Cream Specialties, Inc. [Ohio]

Stallings Investors I, LLC [North Carolina]

Sunrise R&D Holdings, LLC [Ohio]

THGP Co., Inc. [Pennsylvania]

THLP Co., Inc. [Pennsylvania]

TH Midwest, Inc. [Ohio]

Also Doing Business As:

Turkey Hill Minit Markets

TLC Corporate Services LLC [Delaware]

TLC Immunization Clinic LLC [Delaware]

TLC of Georgia LLC [Delaware]

Also Doing Business As:

The Little Clinic

Topvalco, Inc. [Ohio]

Turkey Hill, L.P. [Pennsylvania]

Also Doing Business As:

Inter-American Products

Turkey Hill Dairy, Inc.

Turkey Hill Minit Markets

Ultimate Mart, LLC [Wisconsin]

Also Doing Business As:

Copps

Pick ‘n Save

Ultra Mart Foods, LLC [Wisconsin]

Also Doing Business As:

Pick ‘n Save

 

 

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

6


 

Vine Court Assurance Incorporated [Vermont]

Vitacost.com, Inc. [Delaware]

Woodmont Holdings, LLC [North Carolina]

You Technology, LLC [Ohio]

 

 

 

 

 

 

 

 

 


[ ] Brackets indicate state or country of incorporation or organization and do not form part of corporate name.

 

7


EXHIBIT 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in the Registration Statements on Forms S-3 (No. 333-215085) and S-8 (Nos. 033-55501, 333-27211, 333-78935, 333-91354, 333-126076, 333-151967, 333-164951, 333-175086, 333-185446, 333-197711, 333-197712, 333-206531 and 333-206532) of The Kroger Co. of our report dated March 28, 2017 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.

 

 

 

 

/s/ PricewaterhouseCoopers LLP

 

PricewaterhouseCoopers LLP

 

Cincinnati, Ohio

 

March 28, 2017

 

 

1


EXHIBIT 24.1

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors of THE KROGER CO. (the “Company”) hereby makes, constitutes and appoints Christine S. Wheatley and Stacey M. Heiser, or either of them, his or her true and lawful attorneys-in-fact to sign and execute for and on his or her behalf the Company’s annual report on Form 10‑K, and any and all amendments thereto, to be filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended, in such form as they, or either of them, may approve and to do any and all other acts which said attorneys-in-fact, or either of them, may deem necessary or desirable to enable the Company to comply with said Act or the rules and regulations thereunder.

IN WITNESS WHEREOF, the undersigned directors have hereunto set their hands as of the 9 th  day of March 2017.

 

 

 

 

/s/ Nora A. Aufreiter

    

/s/ Clyde R. Moore

Nora A. Aufreiter

 

Clyde R. Moore

 

 

 

 

 

 

/s/ Robert D. Beyer

 

/s/ Susan M. Phillips

Robert D. Beyer

 

Susan M. Phillips

 

 

 

 

 

 

/s/ Anne Gates

 

/s/ James A. Runde

Anne Gates

 

James A. Runde

 

 

 

 

 

 

/s/ Susan J. Kropf

 

/s/ Ronald L. Sargent

Susan J. Kropf

 

Ronald L. Sargent

 

 

 

 

 

 

/s/ W. Rodney McMullen

 

/s/ Bobby S. Shackouls

W. Rodney McMullen

 

Bobby S. Shackouls

 

 

 

 

 

 

/s/ Jorge P. Montoya

 

/s/ Mark S. Sutton

Jorge P. Montoya

 

Mark S. Sutton

 


EXHIBIT 31.1

 

CERTIFICATION

 

I, W. Rodney McMullen, certify that:

 

1. I have reviewed this annual report on Form 10-K of The Kroger Co.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

 

Date: March 28, 2017

 

 

/s/ W. Rodney McMullen

 

W. Rodney McMullen

 

Chairman of the Board and

 

Chief Executive Officer

 

(principal executive officer)

 

1


EXHIBIT 31.2

 

CERTIFICATION

 

I, J. Michael Schlotman, certify that:

 

1. I have reviewed this annual report on Form 10-K of The Kroger Co.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

 

Date: March 28, 2017

 

 

/s/ J. Michael Schlotman

 

J. Michael Schlotman

 

Executive Vice President and

 

Chief Financial Officer

 

(principal financial officer)

 

1


EXHIBIT 32.1

 

CERTIFICATIONS

 

NOTE: The referenced officers, based on their knowledge, furnish the following certification, pursuant to 18 U.S.C. §1350.

 

We, W. Rodney McMullen, Chief Executive Officer and Chairman of the Board, and J. Michael Schlotman, Executive Vice President and Chief Financial Officer, of The Kroger Co. (the “Company”), do hereby certify in accordance with 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

1. The Annual Report on Form 10-K of the Company for the period ending January 28, 2017 (the “Periodic Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. §78m or 78o(d)); and

 

2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

Dated:  March 28, 2017

/s/ W. Rodney McMullen

 

W. Rodney McMullen

 

Chairman of the Board and Chief Executive Officer

 

 

 

/s/ J. Michael Schlotman

 

J. Michael Schlotman

 

Executive Vice President and Chief Financial Officer

 

A signed original of this written statement as required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to The Kroger Co., and will be retained by The Kroger Co. and furnished to the SEC or its staff upon request.

 

1