S-8
Registration No. 333-______
As filed with the Securities and Exchange Commission on April 27, 2009
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
SUPERVALU INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation or organization)
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41-0617000
(I.R.S. Employer
Identification No.) |
11840 Valley View Road
Eden Prairie, Minnesota 55344
(Address of principal executive offices,
including zip code)
SUPERVALU INC. 2007 STOCK PLAN
(Full title of the plan)
Burt M. Fealing
Vice President, Corporate Secretary and Chief Securities Counsel
SUPERVALU INC.
11840 Valley View Road
Eden Prairie, Minnesota 55344
(952) 828-4000
(Name, address and telephone number,
including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed maximum |
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Proposed maximum |
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to be |
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offering price per |
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aggregate offering |
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Amount of |
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Title of securities to be registered |
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registered(1)(2) |
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share |
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price(3) |
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registration fee |
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Options to purchase
shares of common
stock, par value
$1.00 per share |
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3,500,000 |
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N/A |
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$ |
14,532,700 |
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$ |
810.93 |
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(1) |
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Represents options to purchase 3,500,000 shares of common stock of SUPERVALU INC. that may be
granted under the SUPERVALU INC. 2007 Stock Plan. |
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(2) |
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Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration
statement also covers any additional options that become issuable under the SUPERVALU INC.
2007 Stock Plan pursuant to its antidilution provisions. |
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(3) |
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Calculated solely for the purpose of this offering based on the estimated value of the
options on April 20, 2009. |
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed with the Securities and Exchange Commission (the
SEC) by SUPERVALU INC. (SUPERVALU or the Company) are incorporated by reference in this
registration statement:
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(a) |
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The Companys Annual Report on Form 10-K for the year ended February 28, 2009;
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(b) |
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The description of the Companys common stock and preferred stock purchase
rights contained in any registration statement or report filed by the Company under the
Securities Exchange Act of 1934, as amended (the Exchange Act), including any
amendment or report filed for the purpose of updating such description. |
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which deregisters all
securities remaining unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the respective dates of filing of such documents.
Item 4. Description of Securities.
Options to Purchase Shares of Common Stock
The securities being registered pursuant to the SUPERVALU INC. 2007 Stock Plan represent
options to purchase shares of the Companys common stock. The holder of an option is entitled to
purchase a certain number of shares of the Companys common stock at a specified purchase price
during a specified time period not longer than seven years from the date of grant, all as
determined by the Executive Personnel and Compensation Committee (the Committee) of SUPERVALUs
Board of Directors. The purchase price is determined by the Committee and may not be less than
100% of the fair market value of the Companys common stock on the date of grant, except as
follows. The Committee may grant options with a purchase price of less than 100% of the fair
market value of our common stock on the date of grant if (a) the Committee determines it is
necessary or appropriate to satisfy applicable legal or regulatory requirements of a foreign
jurisdiction or (b) the Committee grants the option in substitution for a stock option previously
granted by an entity that is acquired by or merged with the Company or an affiliate. Unless
otherwise determined by the Committee, the fair market value of the Companys common stock on a
given date will be the closing price of such common stock as reported on the New York Stock
Exchange (NYSE) on that date or the next date that the NYSE is open for trading. The Committee
is not permitted to reprice, adjust or amend the purchase price of any outstanding option, whether
through amendment, cancellation and replacement grant, or any other means without stockholder
approval of an amendment to the Plan. Options vest and become exercisable in accordance with the
vesting schedule established by the Committee and set forth in the award agreement and terms and
conditions. Options may be designated as incentive stock options which are intended to meet the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended, or as non-qualified
(non-incentive) stock options, which are not intended to meet the requirements of Section 422. The
tax treatment of incentive stock options differs from that of non-qualified stock options.
Currently, 4,062,897 options are outstanding under the SUPERVALU INC. 2007 Stock Plan.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended (the DGCL), provides that,
under certain circumstances, a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at its request in such capacity in another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had no reasonable
cause to believe the persons conduct was unlawful.
In accordance with the DGCL, Article Eighth of SUPERVALUs Restated Certificate of
Incorporation provides that a director shall not be liable to SUPERVALU or its stockholders for
monetary damages for a breach of the directors fiduciary duty except:
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for any breach of the directors duty of loyalty to SUPERVALU or its stockholders, |
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for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, |
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under Section 174 of the DGCL providing for liability of directors for unlawful
dividends or unlawful stock repurchases or redemptions, |
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for any transaction from which the director derived an improper personal benefit, or |
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for any act or omission occurring prior to the date when said Article Eighth became
effective. |
SUPERVALUs Restated Bylaws provide that SUPERVALU will indemnify any director or officer of
SUPERVALU and may indemnify any employee or agent of SUPERVALU in the discretion of the board of
directors for such liabilities in such manner under such circumstances and to such extent as
permitted by Section 145 of the DGCL or its successor.
In addition, SUPERVALUs Restated Bylaws provide that SUPERVALU will indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative, including an
action by or in the right of SUPERVALU, by reason of the fact that such person is or was a director
or officer of SUPERVALU, or is or was serving at the request of SUPERVALU as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding (even if such
wrongful act arose out of neglect or breach of duty not involving willful misconduct), so long as
such person did not act out of personal profit or advantage which was undisclosed to SUPERVALU and
such person acted in a manner he or she reasonably believed to be in or not opposed to the best
interests of SUPERVALU and, with respect to any criminal action or proceeding, such person had no
reasonable cause to believe his or her conduct was unlawful.
Further, SUPERVALUs Restated Bylaws provide that SUPERVALU will pay expenses incurred by any
person entitled to indemnification in defending a civil or criminal action, suit or proceeding in
advance of the final disposition of such action, provided that a determination has not been made by
an independent legal counsel (who may be the regular counsel for SUPERVALU) in a written opinion
that it is reasonably likely that the person has not met the applicable standards of conduct for
indemnification and provided that SUPERVALU has received an undertaking by or on behalf of the
person to repay such expenses unless it shall ultimately be determined that such person is entitled
to be indemnified by SUPERVALU.
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Finally, SUPERVALUs Restated Bylaws provide that SUPERVALU may, to the fullest extent
permitted by applicable law from time to time in effect, indemnify any and all persons whom
SUPERVALU shall have power to indemnify under said law from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said law, if and whenever the
board of directors of SUPERVALU deems it to be in the best interest of the corporation to do so.
SUPERVALU maintains directors and officers liability insurance that covers certain
liabilities and expenses of our directors and officers and that covers SUPERVALU for reimbursement
of payments to our directors and officers in respect of such liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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4.1
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Restated Certificate of Incorporation (incorporated by reference to
Exhibit (3)(i) to the Companys Annual Report on Form 10-K for the
year ended February 28, 2004). |
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4.2
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Restated Bylaws, as amended (incorporated by reference to Exhibit 3.1
to the Companys Current Report on Form 8-K filed with the SEC on
December 3, 2008). |
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4.3
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Rights Agreement dated as of April 12, 2000, between the Company and
Wells Fargo Bank Minnesota, N.A. (formerly Norwest Bank Minnesota,
N.A.), as Rights Agent, including as Exhibit B the forms of Rights
Certificate and Election to Exercise (incorporated by reference to
Exhibit 4.1 to the Companys Current Report on Form 8-K filed with
the SEC on April 17, 2000). |
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5.1
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Opinion of Dorsey & Whitney LLP. |
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23.1
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Consent of Dorsey & Whitney LLP (included in Exhibit 5.1). |
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23.2
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Consent of KPMG LLP. |
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24.1
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Power of Attorney. |
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 of 1933, as amended (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 SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration statement; and
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(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) above do not apply if the
information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC 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 registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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 SEC
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Eden Prairie, State of Minnesota, on
April 24, 2009.
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SUPERVALU INC.
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By: |
/s/ Jeffrey Noddle
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Jeffrey Noddle |
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Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated on April 24, 2009.
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Signature |
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Title |
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/s/ Jeffrey Noddle
Jeffrey Noddle
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Chairman of the Board, Chief Executive
Officer and Director (principal executive
officer) |
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/s/ Pamela K. Knous
Pamela K. Knous
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Executive Vice President and
Chief Financial Officer
(principal financial and accounting officer) |
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Director |
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A. Gary Ames |
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Director |
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Irwin Cohen |
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Director |
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Ronald E. Daly |
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Director |
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Lawrence A. Del Santo |
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Director |
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Susan E. Engel |
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Director |
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Philip L. Francis |
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Director |
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Edwin C. Gage |
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II-5
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Signature |
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Title |
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Director |
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Garnett L. Keith, Jr. |
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Director |
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Charles M. Lillis |
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Director |
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Marissa T. Peterson |
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Director |
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Steven S. Rogers |
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Director |
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Wayne C. Sales |
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Director |
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Kathi P. Seifert |
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*By: |
Burt M. Fealing
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Attorney-in-Fact |
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II-6
EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
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4.1
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Restated Certificate of Incorporation (incorporated by reference
to Exhibit (3)(i) to the Companys Annual Report on Form 10-K for
the year ended February 28, 2004). |
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4.2
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Restated Bylaws, as amended (incorporated by reference to Exhibit
3.1 to the Companys Current Report on Form 8-K filed with the SEC
on December 3, 2008). |
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4.3
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Rights Agreement dated as of April 12, 2000, between the Company
and Wells Fargo Bank Minnesota, N.A. (formerly Norwest Bank
Minnesota, N.A.), as Rights Agent, including as Exhibit B the
forms of Rights Certificate and Election to Exercise (incorporated
by reference to Exhibit 4.1 to the Companys Current Report on
Form 8-K filed with the SEC on April 17, 2000). |
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5.1
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Opinion of Dorsey & Whitney LLP. |
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23.1
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Consent of Dorsey & Whitney LLP (included in Exhibit 5.1). |
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23.2
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Consent of KPMG LLP. |
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24.1
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Power of Attorney. |