Company Name: Walgreen Co.
Public Availability Date: October 8, 2004Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER [INQUIRY LETTER]
August 25, 2004 U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, N.W.
Washington D.C. 20549 Re: Walgreen Co.
Commission File No. 001-00604 Ladies and Gentlemen:
This letter is to inform you of the intention of Walgreen Co. ("Walgreens") to
omit from its proxy statement and form of proxy (its "Proxy Materials") for its
2005 Annual Meeting of Shareholders (the "Annual Meeting") a shareholder
proposal ("the "Proposal") and statement in support thereof (the "Supporting
Statement") received from the Board of Trustees of the International Brotherhood
of Electrical Workers' Pension Benefit Fund (the "Proponent"). The Proposal
states: BE IT RESOLVED: That the stockholders of Walgreen ("Company"), request the Board
of Directors to redeem the shareholder rights plan that was adopted in 1986 and
renewed in 1996; unless such issuance is approved by a majority vote of
shareholders, to be held as soon as may be practicable. The Proponent's letter, dated July 28, 2004, setting forth the Proposal and
Supporting Statement is attached hereto as Attachment 1. Pursuant to Rule 14a-8(j), enclosed are six (6) copies of this letter and its
attachments. Also in accordance with Rule 14a-8(j), a copy of this letter and
its attachments is being mailed on this date to the Proponent, informing it of
Walgreens' intention to omit the Proposal and Supporting Statement from the 2005
Proxy Materials. Walgreens tentatively expects to mail its definitive 2005 Proxy
Materials on or about November 24, 2004. Accordingly, pursuant to Rule 14a-8(j),
this letter is being filed with the Securities and Exchange Commission (the
"Commission") more than 80 calendar days before Walgreens files its definitive
2005 Proxy Materials with the Commission. We hereby respectfully request that the Staff of the Division of Corporation
Finance (the "Staff") concur in our opinion that the Proposal and the Supporting
Statement may be excluded from the 2005 Proxy Materials on the basis set forth
below. Walgreens believes that the Proposal and the Supporting Statement may properly
be excluded from the 2005 Proxy Materials because the Proposal and Supporting
Statement were not submitted on a timely basis pursuant to Rule 14a-8(e)(2),
which provides, in relevant part, that "[a] proposal must be received at the
company's principal executive offices not less than 120 calendar days before the
date of the company's proxy statement released to shareholders in connection
with the previous year's annual meeting." Walgreens' 2004 Proxy Statement was
dated and was released to shareholders on November 25, 2003, and the 120-day
deadline for receipt of shareholder proposals for inclusion in the 2005 proxy
materials was July 28, 2004. The 2004 Proxy Statement contained the following
statement on page 17 (copy enclosed as Attachment 2): "For proposals to be
considered for inclusion in the proxy statement for the 2005 Annual Meeting they
must be received by the Company no later than July 28, 2004."
The Proposal was submitted to Walgreens via U.S. Mail, with a postmark of July
29, 2004. Walgreens received the Proposal on August 2, 2004, which was clearly
after the July 28 deadline. This is confirmed by a statement from Yvonne Meyer,
my executive administrative assistant (copy enclosed as Attachment 3). The cover
letter from the Proponent which accompanied the proposal (see Attachment 1) is
dated July 28, 2004, and wording in bold letters on the top of the cover letter
states "Via Fax and U.S. Mail." I contacted a representative of the Proponent by
telephone to discuss the untimeliness of the Proposal, and he stated that the
fax number used for delivery on July 28, 2004 was (847) 914-2654. This number is
not a fax number at Walgreens' principal executive offices; in fact, it is the
telephone number of Teri Haga, a banking analyst with Walgreens (copy of
relevant entry in telephone directory enclosed as Attachment 4). The Proponent
has been unable to provide Walgreens with any evidence proving a date of
delivery on or before the deadline set out in Walgreens' November 25, 2003 proxy
materials. The Staff has consistently held that proposals received after the deadline
provided by Rule 14a-8(e)(2) are not timely filed and may properly be omitted
from a company's proxy materials. See, e.g., COMSAT Corporation (January 25,
1996); Eli Lilly and Company (January 12, 1995), Wal-Mart Stores, Inc. (January
27, 2004). The deadline for receiving shareholder proposals is strictly
interpreted. The Staff has applied this position even when the proposal is
received one day after the required date. See, e.g., General Elec. Co. (December
22, 1997); Bindley Western Indus., Inc. (February 21, 1997); Rockwell Int'l
Corp. (November 24, 1989). Walgreens believes that the Proponent had ample
notice and opportunity to comply with the procedural requirements of Rule
14a-8(e)(2). For the reason set forth above, we hereby respectfully request that the Staff
confirm that it will not recommend enforcement action if the Proposal and its
Supporting Statement are excluded from Walgreens' 2005 Proxy Materials.
Walgreens reserves the right to submit to the Staff additional bases upon which
the Proposal may be omitted if the Staff disagrees with Walgreens' conclusion
that the Proposal can be omitted based on its untimely submission. Should you
disagree with the conclusions set forth in this letter, we would appreciate the
opportunity to confer with you prior to the issuance of the Staff's response.
Please acknowledge receipt of this letter by date-stamping the accompanying
acknowledgement copy and returning it to the undersigned in the self-addressed
postage pre-paid envelope provided. Please do not hesitate to call me at (847)
914-3004 if you require additional information or wish to discuss this
submission further. Very truly yours,
/s/ Julian A. Oettinger
Senior Vice President, General
Counsel and Secretary [INQUIRY LETTER]
September 2, 2004 U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, N.W.
Washington D.C. 20549 Re: Walgreen Co.
Commission File No. 001-00604 Ladies and Gentlemen:
This letter is to supplement the previous letter of Walgreen Co. ("Walgreens")
to the Staff of the Division of Corporation Finance (the "Staff") dated August
25, 2004 (the "August 25 Letter"), which informed the Staff of Walgreens'
intention to omit from its proxy statement and form of proxy (its "Proxy
Materials") for its 2005 Annual Meeting of Shareholders a shareholder proposal
(the "Proposal") and statement in support thereof (the "Supporting Statement")
received from the Board of Trustees of the International Brotherhood of
Electrical Workers' Pension Benefit Fund (the "Proponent").
Pursuant to Rule 14a-8(j), enclosed are six (6) copies of this letter and its
attachments. Also in accordance with Rule 14a-8(j), a copy of this letter and
its attachments is being mailed on this date to the Proponent.
As stated in the August 25 Letter, Walgreens believes that the Proposal and the
Supporting Statement may properly be excluded from the 2005 Proxy Materials
because the Proposal and Supporting Statement were not submitted on a timely
basis pursuant to Rule 14a-8(e)(2). We hereby respectfully request that the
Staff concur in our opinion that the Proposal and the Supporting Statement may
also be excluded from the 2005 Proxy Materials because the Proponent has not
demonstrated its eligibility to submit a proposal pursuant to Rule 14a-8(b) and
Rule 14a-8(f). Rule 14a-8(b)(1) requires, among other things, that to be eligible to submit a
proposal, the proponent "must have continuously held at least $2,000 in market
value, or 1%, of the company's securities entitled to be voted on the proposal
at the meeting for at least one year" prior to the date on which the proponent
submitted the proposal. Rule 14a-8(b)(2)(i) requires that any proponent who is
not a registered owner must present a written statement from the record holder
with respect to the proponent's ownership of the required shares on the date the
Proposal was submitted and continuously for the prior year. The Proponent
indicated in its cover letter to the Proposal and Supporting Statement (see
Attachment 1), which was received by Walgreens on August 2, 2004, that it is a
beneficial holder of 30,700 shares of Walgreens common stock and that the record
holder of the stock would provide the appropriate verification of the
Proponent's beneficial ownership by separate letter. Walgreens has not received
this letter. In light of the deficiencies in the Proposal and in accordance with the
provisions of Rule 14a-8(f), on August 16, 2004, Walgreens sent a letter to the
Proponent via facsimile, overnight mail service and certified mail (see
Attachment 2) (the "Rule 14a-8(f) Letter"), notifying the Proponent that the
Proposal did not comply with the provisions of Rule 14a-8 and requesting that
the Proponent provide adequate proof of the Fund's beneficial ownership of
Walgreen Co. stock. The Rule 14a-8(f) Letter requested that the Proponent's
response be postmarked, or transmitted electronically, no later than 14 days
from the date the Proponent received Walgreens' letter. As of the date hereof,
Walgreens has not received such proof from the Proponent. Due to the Proponent's failure to rectify the deficiency of the Proposal
regarding proof of stock ownership within 14 calendar days of its receipt of
Walgreens' Rule 14a-8(f) Letter, Walgreens believes that it may exclude the
Proposal and Supporting Statement from its 2005 Proxy Materials for failure to
comply with the eligibility requirements of Rule 14a-8(b). See Section C.1.c. of
the Division of Corporation Finance: Staff Legal Bulletin No. 14 (Shareholder
Proposals) (July 13, 2001). See also Catalyst Semiconductor, Inc. (June 14,
2002) (permitting exclusion because of proponent's failure to provide within 14
days of the company's request sufficient evidence of "minimum ownership
requirement for the one-year period required by Rule 14a-8(b)"), Merrill Lynch &
Co., Inc. (January 27, 2003). For the reasons set forth above and in the August 25 Letter, we hereby
respectfully request that the Staff confirm that it will not recommend
enforcement action if the Proposal and its Supporting Statement are excluded
from Walgreens' 2005 Proxy Materials. Walgreens reserves the right to submit to
the Staff additional bases upon which the Proposal may be omitted if the Staff
disagrees with Walgreens' conclusion that the Proposal can be omitted based on
the reasons set forth above and in the August 25 Letter. Should you disagree
with the conclusions set forth in this letter, we would appreciate the
opportunity to confer with you prior to the issuance of the Staff's response.
Please acknowledge receipt of this letter by date-stamping the accompanying
acknowledgement copy and returning it to the undersigned in the self-addressed
postage pre-paid envelope provided. Please do not hesitate to call me at (847)
914-3004 if you require additional information or wish to discuss this
submission further. Very truly yours,
/s/ Julian A. Oettinger
Senior Vice President, General
Counsel and Secretary [INQUIRY LETTER]
September 14, 2004 U.S. Securities and Exchange Commission
Division of Corporate Finance
Office of the Chief Counsel
450 Fifth Street, NW
Washington, D.C. 20549 RE: Walgreens Co.
Commission File No. 001-00604 Ladies and Gentlemen:
I am writing on behalf of the Board of Trustees of the International Brotherhood
of Electrical Workers' Pension Benefit Fund ("Proponent") to respond to the
letters submitted by Walgreens Co. ("Walgreens") on August 25, 2004 and
September 2, 2004, stating its intent to omit the Proponent's shareholder
proposal from its proxy materials for its 2005 annual meeting.
Pursuant to Rule 14a-8(j), enclosed are six copies of this letter and its
attachments. Also in accordance with Rule 14a-8(j), a copy of this letter and
its attachments are being mailed to Walgreens. Walgreens argues in its letters that the Proponent's shareholder proposal can be
omitted from its proxy materials because the Proponent did not submit in a
timely fashion (1) its proposal and (2) its proof of share ownership.
Timely Submission of Proposal The deadline for Proponent filing a proposal was July 28, 2004. Attached as
Exhibits A, B and C are copies of the proposal, a cover letter, and fax
confirmation showing that the materials were faxed to Walgreens on July 28,
2004, to fax number 847-914-2654. Also attached as Exhibits D, E, F, G, H and I
are copies of the listing for Walgreens in Yahoo.com, Forbes.com,
investorsedge.com, investor.news.com, buyandhold.com and globalstock.ru. Each
site gives the fax number for Walgreens' corporate headquarters as 847-914-2654.
The Proponent submits that this is proof that it did indeed submit its proposal
in a timely fashion per the fax number listed for its corporate headquarters.
Proof of Share Ownership Pursuant to Rule 14a-8(f), Walgreens had 14 days from the date it received the
proposal to request proof of ownership. As shown in the preceding paragraph, the
proposal was faxed to Walgreens on July 28, 2004. Thus Walgreens had until
August 11, 2004 to request proof of ownership. The letters and documents already
submitted in this matter by Walgreens admit that it did not request proof of
ownership until August 16, 2004. Therefore, its own request for ownership was
not made in a timely matter and it is irrelevant and immaterial when Proponent
supplied it. Conclusion Walgreens arguments are technical and procedural in nature. There is no doubt
that it received Proponent's proposal on July 28, 2004 as per the fax
confirmation. Likewise, there is no doubt that Proponent has supplied proof of
ownership. Rule 14a-8(f) provides that failure to cure defects of elgibility or to respond
in a timely manner "may" result in exclusion of the proposal. Under the
circumstances, the Proponent respectfully submits that the Commission should
exercise its discretion and deny the relief sought by Walgreens.
Very Truly Yours, /s/
Jerry J. O'Connor
Trustee JOC:daw Attachments
Copy to Julian A. Oettinger [INQUIRY LETTER]
September 27, 2004 U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
450 Fifth Street, N.W.
Washington D.C. 20549 Re: Walgreen Co.
Commission File No. 001-00604 Ladies and Gentlemen:
This letter is being sent in response to the letter submitted to the Staff of
the Division of Corporation Finance (the "Staff") by the Board of Trustees of
the International Brotherhood of Electrical Workers' Pension Benefit Fund (the
"Proponent"), dated September 14, 2004 (the "September 14 Letter"). The
September 14 Letter was submitted in response to the letters submitted to the
Staff by Walgreen Co. ("Walgreens"), dated August 25, 2004 (the "August 25
Letter") and September 2, 2004 (the "September 2 Letter"). Both the August 25
Letter and the September 2 Letter informed the Staff of Walgreens' intention to
omit from its proxy statement and form of proxy (its "Proxy Materials") for its
2005 Annual Meeting of Shareholders a shareholder proposal (the "Proposal") and
statement in support thereof (the "Supporting Statement") received from the
Proponent. Pursuant to Rule 14a-8(j), enclosed are six (6) copies of this letter and its
attachments. Also in accordance with Rule 14a-8(j), a copy of this letter and
its attachments are being mailed on this date to the Proponent.
Timely Submission of Proposal In the September 14 Letter, the Proponent argues that the Proposal and
Supporting Statement were faxed to Walgreens on July 28, 2004 to fax number
847-914-2654. As stated in the August 25 Letter, this number is not a fax number
at Walgreens' principal executive offices; in fact, it is the telephone number
of Teri Haga, a banking analyst with Walgreens (copy of relevant entry in
telephone directory enclosed as Attachment 1). Furthermore, according to a
Walgreens Telecommunications Technician, this number has been a telephone number
since at least March 14, 2001 (see Attachment 2). The undersigned, who was the
addressee on the fax cover sheet, never received this facsimile, and to the best
of our knowledge, no one else at Walgreens' principal executive offices received
this facsimile. The Proponent also attached several copies of third-party websites to its
September 14 Letter, which set forth the fax number for Walgreens' corporate
headquarters as 847-914-2654. Walgreens has not publicized 847-914-2654 as the
fax number for its corporate headquarters, and did not provide this fax number
to the third-party websites. Walgreens has no duty to correct third-party
information. In fact, Walgreens' Investor Relations website clearly states the
corporate fax number to be 847-914-2804 (see Attachment 3). Copies of
third-party websites which state 847-914-2804 to be the fax number for Walgreens
(including Forbes.com, Hoovers.com, CBS.Marketwatch.com, money.cnn.com,
Zacks.com, and Business.com) are attached as Attachment 4.
Accordingly, Walgreens maintains that the Proponent did not submit its Proposal
and Supporting Statement to Walgreens in a timely fashion per the fax number
listed for its corporate headquarters, and therefore the Proposal and the
Supporting Statement may properly be excluded from the 2005 Proxy Materials
because the Proposal and Supporting Statement were not submitted on a timely
basis pursuant to Rule 14a-8(e)(2). Proof of Share Ownership
In its September 14 Letter, the Proponent argues that since the Proposal was
faxed to Walgreens on July 28, 2004, Walgreens had 14 calendar days (until
August 11, 2004) to submit to the Proponent its request for proof of share
ownership. The Proponent argues that since Walgreens did not request proof of
ownership from the Proponent until August 16, 2004, the request was not made in
a timely manner. As stated in its August 25 Letter and September 2 Letter,
Walgreens maintains that the Proponent did not submit its Proposal and
Supporting Statement to Walgreens until August 2, 2004, when the undersigned
received the documents via U.S. Mail. Since August 16, 2004 is 14 calendar days
from the date Walgreens received the Proposal and Supporting Statement, its
request for proof of ownership was submitted in a timely manner. Walgreens did
not receive proof of share ownership from the Proponent until September 3, 2004,
which is beyond the deadline of 14 calendar days from the date Walgreens sent
its request. Therefore, Walgreens maintains that it may exclude the Proposal and
Supporting Statement from its 2005 Proxy Materials for failure to comply with
Rule 14a-8(f) and the eligibility requirements of Rule 14a-8(b).
Conclusion For the reasons set forth above and for the reasons set forth in the August 25
Letter, and in the September 2 Letter, Walgreens hereby respectfully requests
that the Staff confirm that it will not recommend enforcement action if the
Proposal and its Supporting Statement are excluded from Walgreens' 2005 Proxy
Materials. Walgreens reserves the right to submit to the Staff additional bases
upon which the Proposal may be omitted if the Staff disagrees with Walgreens'
conclusion that the Proposal can be omitted based on the reasons set forth above
and for the reasons set forth in the August 25 Letter and in the September 2
Letter. Should you disagree with the conclusions set forth in this letter, we
would appreciate the opportunity to confer with you prior to the issuance of the
Staff's response. Please acknowledge receipt of this letter by date-stamping the accompanying
acknowledgement copy and returning it to the undersigned in the self-addressed
postage pre-paid envelope provided. Please do not hesitate to call me at (847)
914-3004 if you require additional information or wish to discuss this
submission further. Very truly yours,
/s/ Julian A. Oettinger
Senior Vice President, General
Counsel and Secretary [STAFF REPLY LETTER]
October 8, 2004 Response of the Office of Chief Counsel
Division of Corporation Finance
Re: Walgreen Co.
Incoming letter dated August 25, 2004 The proposal relates to a shareholder rights plan.
There appears to be some basis for your view that Walgreens may exclude the
proposal under rule 14a-8(e)(2) because Walgreens did not receive the proposal
before the deadline for submitting proposals. We note in particular your
representation that the transmission number at issue is a telephone number
rather than a facsimile number at Walgreens' principal executive offices.
Accordingly, we will not recommend enforcement action to the Commission if
Walgreens omits the proposal from its proxy materials in reliance on rules
14a-8(e)(2). In reaching this position, we have not found it necessary to
address the alternative basis for omission upon which Walgreens relies.
Sincerely, /s/
Robyn Manos
Special Counsel
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