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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SAFEWAY INC.
(Exact name of registrant as specified in its charter)
DELAWARE 5918 Stoneridge Mall Road 94-3019135
(State or other jurisdiction of Pleasanton, California (I.R.S. Identification Number)
incorporation or organization) 94588
(Address of principal executive
offices) (Zip)
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THE 2001 RESTATEMENT
OF
THE VONS COMPANIES, INC.
PHARMACISTS' 401(k) PLAN AND TRUST
(Full titles of the plans)
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Robert A. Gordon, Esq.
Senior Vice President And General Counsel
SAFEWAY INC.
5918 Stoneridge Mall Road
Pleasanton, California 94588
(925) 467-3000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Scott R. Haber, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
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Calculation of Registration Fee
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Proposed Amount
Title of Proposed Maximum of
Securities Amount Maximum Aggregate Regis-
to be to be Offering Price Offering tration
Registered(1) Registered Per Share(2) Price(2) Fee(2)
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Common Stock,
$0.01 par value issuable
under The 2001 Restatement
of the Vons Companies, Inc.
Pharmacists' 401(k) Plan
and Trust 100,000 $47.42 $4,742,000.00 $1,186.00
=====================================================================================================================
(1) In addition, pursuant to Rule 416(c), this registration statement
also covers an indeterminate amount of interests to be offered or
sold pursuant to The 2001 Restatement of the Vons Companies, Inc.
Pharmacists' 401(K) Plan and Trust (the "Plan"), described herein.
(2) Estimated for the purpose of calculating the registration fee
pursuant to Rule 457(c) for the shares registered hereunder (the
average ($47.42) of the high ($48.68) and low ($46.15) prices for the
Company's Common Stock quoted on the New York Stock Exchange on
June 26, 2001).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed with the Commission are incorporated herein
by reference:
- Safeway's Annual Report on Form 10-K for the fiscal year ended December
30, 2000;
- Safeway's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 24, 2001;
- Safeway's Current Reports on Form 8-K dated January 26, 2001, January
31, 2001, March 5, 2001 and March 7, 2001;
- Description of our common stock contained in our registration statement
on Form 8-A filed with the Commission on February 20, 1990, including the
amendment on Form 8 dated March 26, 1990; and
- All documents filed by us or the Plan with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold.
Information that we or the Plan file later with the Commission will
automatically update and supersede this information.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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As permitted by the Delaware General Corporation Law, our Restated
Certificate of Incorporation provides that a director of Safeway Inc. will not
be personally liable to us or our stockholders for monetary damages for any
breach of fiduciary duty as a director, except for liability (i) for breach of
the duty of loyalty to us or our stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (governing
distributions to stockholders), or (iv) for any transaction for which a director
derives an improper personal benefit. In addition, Section 145 of the Delaware
General Corporation law and Article III, Section 13 of our bylaws, under certain
circumstances, provide for the indemnification of our officers, directors,
employees and agents against liabilities which they may incur in such
capacities. A summary of the circumstances in which such indemnification is
provided for is contained herein, but that description is qualified in its
entirety by reference to Article III, Section 13 of our bylaws.
In general, any officer, director, employee or agent will be indemnified
against expenses, including attorney's fees, fines, settlements or judgments,
which were actually and reasonably incurred, in connection with a legal
proceeding, other than one brought by us or on our behalf, to which he was a
party as a result of such relationship, if he acted in good faith, and in the
manner he believed to be in or not opposed to our best interest and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct
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was unlawful. If the action is brought by us or on our behalf, the person to be
indemnified must have acted in good faith and in a manner he reasonably believed
to be in or not opposed to our best interest, but no indemnification will be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to us unless and only to the extent that the Court of
Chancery of Delaware, or the court in which such action was brought, determines
upon application that, despite adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expense which such Court of Chancery or such other court
shall deem proper.
Any indemnification under the previous paragraphs (unless ordered by a
court) will be made by us only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper under the circumstances because he has met the applicable standard of
conduct set forth above. Such determination will be made (i) by our board of
directors by a majority vote of a quorum of disinterested directors who were not
parties to such actions, (ii) if such quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by our stockholders. To the extent that
one of our directors, officers employees or agents is successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in the
previous paragraph, he will be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by us in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by us as
authorized by our bylaws. Such expenses incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as our board of directors
deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Section 13 of our bylaws is not deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. If a claim for
indemnification or payment of expenses under Section 13 of our bylaws is not
paid in full within ninety (90) days after a written claim therefor has been
received by us, the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action, we have the burden of
proving that the claimant was not entitled to the requested indemnification or
payment of expenses under applicable law.
Our board of directors may authorize us, by a vote of a majority of a
quorum of our board of directors, to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of ours, or
is or was serving at our request as a director, officer, employee or agent of
another corporation partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not we would have the
power to indemnify him against such liability under the provisions of Section 13
of our bylaws. Our board of directors may authorize us to enter into a contract
with any person who is or was a director, officer, employee or agent of ours or
is or was serving at our request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
providing for indemnification rights equivalent to or, if our board of directors
so determines, greater than those provided for in Section 13 of our bylaws.
We have also purchased insurance for our directors and officers for certain
losses arising from claims or charges made against them in their capacities as
our directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
4.1 The 2001 Restatement of the Vons Companies, Inc. Pharmacists' 401(k)
Plan and Trust.
5.1 Internal Revenue Service Determination letter (see Item 9(d)).
23.1 Consent of Deloitte & Touche LLP.
24 Power of Attorney. (Incorporated by reference in the signature
page to the Registration Statement).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
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counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) Pursuant to Item 8(b) of Form S-8, in lieu of an Internal Revenue Service
("IRS") determination letter that the Plan is qualified under Section 401 of the
Internal Revenue Code, the undersigned registrant hereby undertakes that it has
submitted the Plan and any amendments thereto, and will submit any future
amendments, to the IRS in a timely manner and will make all changes required by
the IRS to qualify the Plan.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pleasanton, State of California on this 25th day of
June 2001.
SAFEWAY INC.
By: /s/ Robert A. Gordon
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Robert A. Gordon
Senior Vice President and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Robert A. Gordon with full
power of substitution and full power to act without the other, such person's
true and lawful attorney-in-fact and agent to act for such person in such
person's name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully, to all intents
and purposes, as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 25, 2001.
Signature Title
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/s/ Steven A. Burd Chairman, President and Chief Executive Officer
--------------------------------------------------- (Principal Executive Officer)
Steven A. Burd
/s/ Vasant M. Prabhu Executive Vice President and Chief Financial Officer
--------------------------------------------------- (Principal Financial Officer and Principal Accounting
Vasant M. Prabhu Officer)
/s/ James H. Greene, Jr. Director
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James H. Greene, Jr.
/s/ Paul Hazen Director
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Paul Hazen
/s/ Hector Ley Lopez Director
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Hector Ley Lopez
/s/ Robert I. MacDonnell Director
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Robert I. MacDonnell
/s/ Peter A. Magowan Director
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Peter A. Magowan
/s/ George R. Roberts
-------------------------------------------------- Director
George R. Roberts
/s/ Rebecca A. Stirn Director
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Rebecca A. Stirn
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/s/ William Y. Tauscher Director
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William Y. Tauscher
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Pursuant to the requirements of the Securities and Exchange Act of 1933, as
amended, the Benefit Plan Committee has caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized in the city
of Pleasanton, California on June 25, 2001.
THE VONS COMPANIES, INC. PHARMACISTS' 401(K)
PLAN AND TRUST
By: /s/ David F. Bond
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Name: David F. Bond
Title: Benefits Plan Committee Member
By: /s/ Michael J. Boylan
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Name: Michael J. Boylan
Title: Benefits Plan Committee Member
By: /s/ Gerri Burruel
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Name: Gerri Burruel
Title: Benefits Plan Committee Member
By: /s/ David F. Faustman
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Name: David F. Faustman
Title: Benefits Plan Committee Member
By: /s/ Dick W. Gonzales
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Name: Dick W. Gonzales
Title: Benefits Plan Committee Member
By: /s/ Melissa C. Plaisance
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Name: Melissa C. Plaisance
Title: Benefits Plan Committee Member
By: /s/ Karl Shroeder
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Name: Karl Shroeder
Title: Benefits Plan Committee Member
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INDEX TO EXHIBITS
Exhibit
4.1 The 2001 Restatement of the Vons Companies, Inc. Pharmacists' 401(k)
Plan and Trust.
5.1 Internal Revenue Service Determination letter (see Item 9(d)).
23.1 Consent of Deloitte & Touche LLP.
24 Power of Attorney. (Incorporated by reference in the signature page
to the Registration Statement).