AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 28, 2002
REGISTRATION NO. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 Pleasanton, California 94588 (I.R.S. Employer
of incorporation or Identification No.)
organization) (Address, including Zip
Code, of Principal
Executive Offices)
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THE 2002 RESTATEMENT OF
THE SAFEWAY 401(K) SAVINGS PLAN AND TRUST
(Full title of the plan)
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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
Proposed Maximum
Title Of Amount Maximum Aggregate Amount Of
Securities To To Be Offering Price Offering Registration
Be Registered (1) Registered Per Share(2) Price (2) Fee
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Common Stock, $0.01
par value
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The 2002 700,000 $44.21 $30,947,000 $2,848.00
Restatement of The
Safeway 401(k)
Savings Plan and
Trust
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to The 2002 Restatement of The
Safeway 401(k) Savings Plan and Trust, described herein.
(2) Estimated for the purpose of calculating the registration fee pursuant
to Rule 457(c) for the shares registered hereunder (the average ($44.21)
of the high ($44.60) and low ($43.81) prices for the Registrant's Common
Stock quoted on the New York Stock Exchange on March 27, 2002).
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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").
II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We incorporate by reference the following documents we or The 2002
Restatement of The Safeway 401(k) Savings Plan and Trust (the "Plan") filed with
the Commission pursuant to Section 13 of the Exchange Act (Commission file
number 1-00041):
- Safeway's Annual Report on Form 10-K for the fiscal year ended
December 29, 2001;
- The Plan's Annual Report on Form 11-K for the fiscal year ended
December 31, 2000;
- Description of Safeway's common stock contained in its
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 Safeway 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.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Delaware General Corporation Law, the Registrant's
Restated Certificate of Incorporation provides that a director of the Registrant
will not be personally liable to the Registrant or its 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 the Registrant or its 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 the Registrant's bylaws, under certain circumstances, provide for
the indemnification of the Registrant's 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 the Registrant's 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 or on behalf of the Registrant, to which
he was a party
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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 the Registrant's best interest and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. If the action is brought by or on behalf of the
Registrant, 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 the Registrant's 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 the
Registrant 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 the Registrant 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 the
Registrant's 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 the
stockholders. To the extent that a director, officer, employee or agent of the
Registrant 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 the Registrant 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 the
Registrant as authorized by the Registrant's bylaws. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the Registrant's board of directors deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Section 13 of the Registrant's bylaws is not deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, 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 the Registrant's
bylaws is not paid in full within ninety (90) days after a written claim
therefor has been received by the Registrant, 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, the Registrant has the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
The Registrant's board of directors may authorize, by a vote of a
majority of a quorum of the Registrant's board of directors, the Registrant to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Registrant, or is or was serving at
the request of the Registrant 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 the Registrant
would have the power to indemnify him against such liability under the
provisions of Section 13 of the Registrant's bylaws. The Registrant's board of
directors may authorize the Registrant to enter into a contract with any person
who is or was a director, officer, employee or agent of the Registrant or is or
was serving at the request of the Registrant 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 the
Registrant's board of directors so determines, greater than those provided for
in Section 13 of the Registrant's bylaws.
The Registrant has also purchased insurance for its directors and
officers for certain losses arising from claims or charges made against them in
their capacities as directors and officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
4.1 The 2002 Restatement of The Safeway 401(k) Savings Plan and
Trust.
5.1 The 2002 Restatement of The Safeway 401(k) Savings Plan and
Trust Internal Revenue Service Determination letter (see Item
9(d)).
23.1 Consent of Deloitte & Touche LLP.
24.1 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 this 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.
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(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 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(a) 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 28th day of
March 2002.
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 March 28, 2002.
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
Vasant M. Prabhu and Principal Accounting Officer)
/s/ JAMES H. GREENE, JR. Director
------------------------------------------
James H. Greene, Jr.
/s/ PAUL HAZEN Director
------------------------------------------
Paul Hazen
/s/ HECTOR LEY LOPEZ Director
------------------------------------------
Hector Ley Lopez
Director
------------------------------------------
Robert I. MacDonnell
/s/ PETER A. MAGOWAN Director
------------------------------------------
Peter A. Magowan
/s/ GEORGE R. ROBERTS Director
------------------------------------------
George R. Roberts
Director
------------------------------------------
Rebecca A. Stirn
Director
------------------------------------------
William Y. Tauscher
Pursuant to the requirements of the Securities and Exchange Act of 1933,
as amended, the Benefits Plan Committee of Safeway Inc. has caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the city of Pleasanton, California on March 28, 2002.
THE 2002 RESTATEMENT OF
THE SAFEWAY 401(K) SAVINGS PLAN AND TRUST
By: /S/ DICK W. GONZALES
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Name: Dick W. Gonzales
Title: Benefits Plan Committee
Chairman
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
--------------------------------------
Name: Gerri Burruel
Title: Benefits Plan Committee Member
By: /S/ MELISSA C. PLAISANCE
--------------------------------------
Name: Melissa C. Plaisance
Title: Benefits Plan Committee Member
By: /S/ VASANT M. PRABHU
--------------------------------------
Name: Vasant M. Prabhu
Title: Benefits Plan Committee Member
By: /S/ KARL SCHROEDER
--------------------------------------
Name: Karl Schroeder
Title: Benefits Plan Committee Member
INDEX TO EXHIBITS
4.1 The 2002 Restatement of The Safeway 401(k) Savings Plan and
Trust.
5.1 The 2002 Restatement of The Safeway 401(k) Savings Plan and
Trust Internal Revenue Service Determination letter (see Item
9(d)).
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (incorporated by reference in the signature
page to the Registration Statement).