| Registrant, State of Incorporation, | ||||
| Commission File No. | Address and Telephone Number | I.R.S. Employer Identification No. | ||
|
1-6187
|
Albertson’s, Inc. | 82-0184434 | ||
|
|
Delaware | |||
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|
250 Parkcenter Blvd. | |||
|
|
PO Box 20 | |||
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Boise, Idaho 83726 | |||
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(208) 395-6200 | |||
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||||
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333-132397-01
|
New Albertson’s, Inc. | 20-4057706 | ||
|
|
Delaware | |||
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|
250 Parkcenter Blvd. | |||
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|
PO Box 20 | |||
|
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Boise, Idaho 83726 | |||
|
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(208) 395-6200 | |||
|
Albertson’s, Inc.
|
Yes þ No o | |
|
New Albertson’s, Inc.
|
Yes þ No o |
| Large | Accelerated | Non-Accelerated | ||||
| Accelerated Filer | Filer | Filer | ||||
|
Albertson’s, Inc
|
þ | |||||
|
New Albertson’s, Inc
|
þ |
|
Albertson’s, Inc.
|
Yes o No þ | |
|
New Albertson’s, Inc.
|
Yes o No þ |
| PART I. | ||||||||
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| Item 1. | ||||||||
| 3 | ||||||||
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| 4 | ||||||||
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| 5 | ||||||||
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| 6 | ||||||||
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| 19 | ||||||||
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Financial Statements – New Albertson’s, Inc. (Unaudited)
|
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| 20 | ||||||||
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| 21 | ||||||||
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| 22 | ||||||||
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| 23 | ||||||||
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| 25 | ||||||||
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| Item 2. | 26 | |||||||
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| Item 3. | 31 | |||||||
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| Item 4. | 31 | |||||||
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| PART II | ||||||||
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| 32 | ||||||||
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| Item 1. | 32 | |||||||
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| Item 1A. | 33 | |||||||
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| Item 2. | 34 | |||||||
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| Item 3. | 34 | |||||||
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| Item 4. | 34 | |||||||
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| Item 5. | 34 | |||||||
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| Item 6. | 35 | |||||||
| EXHIBIT 10.4.2 | ||||||||
| EXHIBIT 10.6.5 | ||||||||
| EXHIBIT 10.10.5 | ||||||||
| EXHIBIT 10.13.8 | ||||||||
| EXHIBIT 10.13.9 | ||||||||
| EXHIBIT 10.14.3 | ||||||||
| EXHIBIT 10.15.4 | ||||||||
| EXHIBIT 10.20.7 | ||||||||
| EXHIBIT 10.21.5 | ||||||||
| EXHIBIT 10.30.2 | ||||||||
| EXHIBIT 10.43.1 | ||||||||
| EXHIBIT 10.44.1 | ||||||||
| EXHIBIT 10.45.1 | ||||||||
| EXHIBIT 10.47.1 | ||||||||
| EXHIBIT 10.48.1 | ||||||||
| EXHIBIT 10.49 | ||||||||
| EXHIBIT 10.62.1 | ||||||||
| EXHIBIT 10.64 | ||||||||
| EXHIBIT 10.65 | ||||||||
| EXHIBIT 15.01 | ||||||||
| EXHIBIT 31.1 | ||||||||
| EXHIBIT 31.2 | ||||||||
| EXHIBIT 31.3 | ||||||||
| EXHIBIT 31.4 | ||||||||
| EXHIBIT 32.1 | ||||||||
| EXHIBIT 32.2 | ||||||||
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
(Unaudited)
13 Weeks Ended
May 4,
May 5,
(In millions, except per share data)
2006
2005
$
9,940
$
9,993
7,097
7,183
2,843
2,810
2,462
2,517
381
293
119
132
(1
)
(1
)
263
162
97
55
166
107
1
(7
)
$
167
$
100
$
0.45
$
0.29
—
(0.02
)
0.45
0.27
$
0.44
$
0.29
—
(0.02
)
0.45
0.27
372
370
375
371
*
May not sum due to rounding
Table of Contents
(Unaudited)
Table of Contents
(Unaudited)
Table of Contents
(Dollars in millions, except per share data)
Table of Contents
Table of Contents
13 Weeks Ended
May 4,
May 5,
2006
2005
$
—
$
20
$
(1
)
$
(1
)
3
(11
)
(1
)
5
$
1
$
(7
)
Table of Contents
Balance
Balance
February 2,
May 4,
2006
Additions
Payments
Adjustments
2006
$
2
$
—
$
—
$
—
$
2
10
—
(3
)
—
7
8
—
—
—
8
15
1
(2
)
1
15
$
35
$
1
$
(5
)
$
1
$
32
May 4,
February 2,
2006
2006
$
454
$
464
34
35
37
37
525
536
(151
)
(152
)
374
384
422
422
38
38
460
460
$
834
$
844
Table of Contents
13 Weeks Ended
May 4,
May 5,
2006
2005
$
10
$
9
18
16
(20
)
(16
)
(2
)
(2
)
3
4
(47
)
—
$
(38
)
$
11
May 4,
2006
$
1,267
10
18
(104
)
(36
)
(9
)
1,146
999
41
1
(9
)
1,032
(114
)
55
$
(59
)
Table of Contents
May 4,
2006
$
(128
)
42
27
$
(59
)
May 4,
February 2,
2006
2006
6.35
%
5.75
%
2.98-3.75
2.98-3.75
5.75
5.40-5.45
2.98-3.75
2.98-3.75
8.00
8.00
(1)
Expected long-term return on plan assets is estimated by asset class and is generally based
on historical returns, volatilities and risk premiums. Based upon an individual plan’s asset
allocation, composite return percentiles are developed upon which the plan’s expected
long-term return is based.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
(shares in millions)
13 Weeks Ended
May 4, 2006
May 5, 2005
Basic
Diluted
Basic
Diluted
$
166
$
166
$
107
$
107
1
1
(7
)
(7
)
$
167
$
167
$
100
$
100
372
372
370
370
3
1
375
371
$
0.45
$
0.44
$
0.29
$
0.29
—
—
(0.02
)
(0.02
)
0.45
0.45
0.27
0.27
45
—
24
9
(66
)
(8
)
3
1
$
1,150
$
—
534
177
$
1,684
$
177
$
25.45
$
20.97
66
8
*
May not sum due to rounding
Table of Contents
Weighted
Weighted
Average
Shares under
Average
Remaining
Aggregate
Option
Exercise
Contractual
Intrinsic
(thousands)
Price
Term
Value
34,395
$
28.30
5.8
$
65
459
25.34
(1,345
)
21.75
(1,421
)
32.79
32,088
$
28.33
6.0
$
62
30,805
$
28.33
6.0
$
59
20,451
$
31.43
4.9
$
28
Table of Contents
13 Weeks Ended
May 4, 2006
May 5, 2005
2.26
%
3.39
%
30.50
%
37.60
%
4.92
%
4.00
%
4 - 8
4 - 8
Weighted Average
Stock Units
Grant Date Fair
(thousands)
Value
5,279
$
23.09
140
25.34
(75
)
23.26
(178
)
21.50
5,166
$
23.12
13 Weeks Ended
May 4,
May 5,
2006
2005
$
6
$
—
7
5
(5
)
(2
)
$
8
$
3
Table of Contents
13 Weeks Ended
May 5, 2005
$
100
3
(9
)
$
94
$
0.27
0.25
$
0.27
0.25
Table of Contents
Boise, Idaho
May 31, 2006
Table of Contents
(a wholly owned subsidiary of Albertson’s, Inc.)
(Unaudited)
13 Weeks Ended
(In dollars)
May 4, 2006
$
—
—
—
1,281,747
(1,281,747
)
—
(1,281,747
)
—
$
(1,281,747
)
Table of Contents
(a wholly owned subsidiary of Albertson’s, Inc.)
(Unaudited)
Table of Contents
(a wholly owned subsidiary of Albertson’s, Inc.)
(Unaudited)
13 Weeks Ended
(In dollars)
May 4, 2006
$
(1,281,747
)
(1,281,747
)
1,281,747
1,281,747
—
—
$
—
Table of Contents
(a wholly owned subsidiary of Albertson’s, Inc.)
(Unaudited)
(In dollars)
•
First, Albertsons will become a subsidiary of New Albertsons. This will be effected by
a merger of New Diamond Sub into Albertsons. In this transaction (the “Reorganization
Merger”), stockholders of Albertsons will receive one share of New Albertsons common stock
in exchange for each share of Albertsons common stock that they hold.
•
After the Reorganization Merger, Albertsons will be converted to a limited liability
company (“Albertsons LLC”), and a series of reorganization transactions will occur. The
result of these transactions (the “Albertsons Reorganization”) will be that Albertsons LLC
and its subsidiaries will hold substantially all of the assets of Albertsons’ historical
stand-alone drug store and non-core supermarket businesses, and certain liabilities of
Albertsons’ historical business, while New Albertsons and its other subsidiaries will hold
substantially all of the assets and liabilities of Albertsons’ core supermarket business
(the “Core Business”).
•
After the Albertsons Reorganization, CVS will purchase substantially all of the assets
and assume specified liabilities of the stand-alone drug store business from New
Albertsons, Albertsons LLC and certain of their subsidiaries (the “Stand-alone Drug
Sale”).
Table of Contents
•
Concurrently with the Stand-alone Drug Sale, the Cerberus Group, via AB Acquisition
LLC, a newly formed entity owned by the Cerberus Group, will purchase substantially all of
Albertsons’ non-core supermarket business (the “Non-Core Business”), including the equity
interests in Albertsons LLC, and will assume certain liabilities related to the Non-Core
Business.
•
Finally, Emerald Acquisition Sub, Inc., a wholly owned subsidiary of Supervalu, will
merge into New Albertsons. In this merger, New Albertsons will become a wholly owned
subsidiary of Supervalu, and each outstanding share of New Albertsons common stock will be
converted into the right to receive $20.35 in cash and 0.182 shares of Supervalu common
stock.
Table of Contents
Boise, Idaho
May 31, 2006
Table of Contents
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Dollars in millions, except per share data)
•
First, Albertsons will become a subsidiary of New Albertson’s, Inc. (“New Albertsons”
and formerly, New Aloha Corporation). This will be effected by the merger of a wholly
owned subsidiary of New Albertsons (“New Diamond Sub”) into Albertsons. In this
transaction (the “Reorganization Merger”), stockholders of Albertsons will receive one
share of New Albertsons common stock in exchange for each share of Albertsons common stock
that they hold. New Albertsons was incorporated on December 20, 2005 under the laws of the
State of Delaware and is a wholly owned subsidiary of Albertsons. New Albertsons was
formed to facilitate the series of transactions described herein, whereby Albertsons will
become a wholly owned subsidiary of New Albertsons and upon completion of the
transactions, New Albertsons will become a wholly owned subsidiary of Supervalu.
•
After the Reorganization Merger, Albertsons will be converted to a limited liability
company (“Albertsons LLC”), and a series of reorganization transactions will occur. The
result of these transactions (the “Albertsons Reorganization”) will be that Albertsons LLC
and its subsidiaries will hold substantially all of the assets of Albertsons’ historical
stand-alone drug store and non-core supermarket businesses, and certain liabilities of
Albertsons’ historical business, while New Albertsons and its other subsidiaries will hold
substantially all of the assets and liabilities of Albertsons’ core supermarket business
(the “Core Business”).
•
After the Albertsons Reorganization, CVS will purchase substantially all of the assets
and assume specified liabilities of the stand-alone drug store business from New
Albertsons, Albertsons LLC and certain of their subsidiaries (the “Stand-alone Drug
Sale”).
•
Concurrently with the Stand-alone Drug Sale, the Cerberus Group, via AB Acquisition
LLC, a newly formed entity owned by the Cerberus Group, will purchase substantially all of
Albertsons’ non-core supermarket business (the “Non-Core Business”), including the equity
interests in Albertsons LLC, and will assume certain liabilities related to the Non-Core
Business.
•
Finally, Emerald Acquisition Sub, Inc., a wholly owned subsidiary of Supervalu, will
merge into New Albertsons. In this merger, New Albertsons will become a wholly owned
subsidiary of Supervalu, and each outstanding share of New Albertsons common stock will be
converted into the right to receive $20.35 in cash and 0.182 shares of Supervalu common
stock.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
32
33
34
35
36
Table of Contents
Table of Contents
Total Number Of
Maximum Number
Shares (Or
(Or Approximate
Units) Purchased
Dollar Value) Of
As Part Of
Shares (Or Units)
Total Number
Publicly
That May Yet Be
of Shares (Or
Average Price
Announced
Purchased Under
Units)
Paid Per Share
Plans Or
The Plans Or
Period
Purchased
(Or Unit)
Programs
Programs
2,740
(1)
$
25.74
—
—
14,419
(1)
25.37
—
—
18,587
(1)
25.33
—
—
(1)
Represents shares surrendered or deemed surrendered to the Company to satisfy tax
withholding obligations in connection with the vesting of stock units under employee stock
based compensation plans.
Table of Contents
3.01
Certificate of Incorporation of New Albertson’s, Inc. (f/k/a New Aloha Corporation) is
incorporated herein by reference to Exhibit 3.01 of Form S-4 (Registration No.
333-132397) filed with the SEC on April 18, 2006.
3.02
By-Laws of New Albertson’s, Inc. (f/k/a New Aloha Corporation) is incorporated herein by
reference to Exhibit 3.02 of Form S-4 (Registration No. 333-132397) filed with the SEC
on April 18, 2006.
10.4.2
Amendment No. 2 to Employment Agreement between the Company and Lawrence R. Johnston*
10.6.5
Amendment to Executive Deferred Compensation Plan*
10.10.5
Amendment to 2000 Deferred Compensation Plan*
10.13.8
Second Amendment to Executive Pension Makeup Plan*
10.13.9
Third Amendment to Executive Pension Makeup Plan*
10.14.3
Amendment to Executive ASRE Makeup Plan*
10.15.4
Amendment to Senior Executive Deferred Compensation Plan*
10.20.7
Amendment to 1990 Deferred Compensation Plan*
10.21.5
Amendment to Non-Employee Director’s Deferred Compensation Plan*
10.30.2
Amendment to American Stores Company Supplemental Executive Retirement Plan*
10.43.1
Form of Amendment to Change of Control Severance Agreement for Executive Vice Presidents*
10.44.1
Form of Amendment to Change of Control Severance Agreement for Senior Vice Presidents
and Group Vice Presidents*
10.45.1
Form of Amendment to Change of Control Severance Agreement for Vice Presidents*
10.47.1
Amendment No. 1 to Long-Term Incentive Plan*
10.48.1
Form of Director and Officer Indemnification Agreement*
10.49
Form of Officer Indemnification Agreement*
10.62.1
Amendment No. 1 to Change in Control Severance Benefit Trust*
10.64
RSU Trust*
10.65
Amendment to Albertson’s, Inc. 2005 Deferred Compensation Plan*
15.01
Letter re: Unaudited Interim Financial Statements of Albertson’s, Inc.
31.1
Certification of CEO Regarding Albertson’s, Inc. Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2
Certification of CFO Regarding Albertson’s, Inc. Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.3
Certification of CEO Regarding New Albertson’s, Inc. Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
Table of Contents
31.4
Certification of CFO Regarding New Albertson’s, Inc. Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002 Regarding Albertson’s, Inc.
32.2
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002 Regarding New Albertson’s, Inc.
*
Identifies management contracts or compensatory plans or arrangements required to be filed as an
exhibit hereto.
Table of Contents
37
ALBERTSON’S, INC.
/s/ Felicia D. Thornton
Executive Vice President
and Chief Financial Officer
Exhibit 10.4.2
ALBERTSON'S, INC.
AMENDMENT NO. 2 TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2 to the Employment Agreement by and between Lawrence R. Johnston (the "Executive") and Albertson's, Inc. (the "Company") is entered into as of May 18, 2006.
WHEREAS, the Company and the Executive entered into that certain Employment Agreement dated April 23, 2001 and that certain Amendment to Employment Agreement dated July 19, 2001 ("Amendment No. 1" and, collectively, the "Agreement"); and
WHEREAS, the Company and the Executive wish to make certain amendments to the Agreement as set forth below.
NOW THEREFORE, in consideration of the agreements set forth herein, the parties agree as follows:
1. Capitalized terms used herein and not otherwise specifically defined herein shall have the same meaning given to such terms in the Agreement.
2. The phrase "received under the Annual Bonus Plan" is hereby inserted into the second sentence of Sub-section 5(f)(i), immediately following the words "actual bonus".
3. The following Sub-section (v) is hereby added to the end of Sub-section 5(f) of the Agreement:
"(v) Notwithstanding any other provision of the Agreement, in lieu of any
payment of the Retirement Benefit pursuant to Section 5(f)(i) through (iv) or
Section 7(a)(viii), the Executive shall have the ability to elect prior to April
30, 2006 to receive in a lump sum in cash:
(A) upon the later of the effective time of a Change of Control or January 1, 2007, an amount (the "First Retirement Benefit Payment") equal to the present value of the Retirement Benefit accrued through the date of payment, assuming that the Retirement Benefit would commence to be paid on such payment date, with such present value to be determined on the basis of the applicable mortality table prescribed in Section 417(e)(3)(A)(ii)(I) of the Code and the then prevailing PBGC rate for immediate annuities; and
(B) upon the Executive's termination of employment or as soon thereafter as may be permitted in compliance with Section 409A of the Code, an amount equal to the excess of (1) the present value of the Retirement Benefit, determined on the basis set forth in (A) above as of the effective date of the Executive's termination of employment as set forth in the next sentence of this Section 5(f)(v)(B), over (2) the amount of the First Retirement Benefit Payment, increased by interest at the rate of 2.75% (the PBGC rate for immediate annuities in March, 2006) from the date immediately following the date of the First Retirement Benefit Payment until the effective date of the Executive's termination of
employment. The calculation of the amount described in clause (B)(1) of this Section 5(f)(v) shall be determined on the basis of or by reference to the Retirement Benefit that would be determined under and payable to the Executive as a life annuity under Sections 5(f)(i) through (iv) but for this subparagraph (v)."
4. Section 7(a)(iv) to the Agreement is hereby deleted in its entirety and replaced with the following:
"(iv) (A) For any welfare benefits, fringe benefits and employee perquisites to which the Executive is entitled prior to the Date of Termination that are considered to be "reimbursement arrangements" within the meaning of Proposed Treasury Regulation Section 1.409A-1(b)(9)(iv)(A) or any successor provision: for the three year period commencing on the Date of Termination, continued participation in such welfare benefit plans, fringe benefits, and employee perquisites; provided, however, that if the Company determines that the provision of any benefit under this Section 7(a)(iv)(A)(1) is likely to result in negative tax consequences to the Executive, the Company will use its reasonable best efforts to make other arrangements to provide a substantially similar benefit to the Executive that does not have such negative tax consequences, which may include, making a lump sum payment or payments, at the earliest time or times permitted under Section 409A of the Code, in an amount equal to the present value of any such benefits that, if provided, would result in negative tax consequences to the Executive and/or with respect to health plan coverage, providing such benefit through insurance coverage on the Executive's behalf.
(B) For any welfare benefits, fringe benefits and employee perquisites to which the Executive is entitled prior to the Date of Termination that are not considered to be "reimbursement arrangements" covered under Proposed Treasury Regulation Section 1.409A-1(b)(9)(iv)(A) or any successor provision, a lump sum payment or payments in an amount equal to the present value of the continuation of such benefits for three years following the Date of Termination. Such payment or payments shall be made at the earliest time or times permitted under Section 409A of the Code."
5. The following new Section 7(a)(ix) is hereby added to the end of Section 7(a) of the Agreement:
"(ix) Notwithstanding anything to the contrary contained herein, if any lump sum payment under this Section 7(a) constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amounts described in this Section 7(a) upon the earlier of (1) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (2) the Executive's death."
6. The phrase "or benefits consulting," is hereby inserted immediately following the words "accounting" wherever such words appear in Section 7(c).
7. The following provision is hereby added to the end of Section 8(d)(iii) of the Agreement:
"Notwithstanding anything in the foregoing to the contrary, the Executive may make recommendations and referrals on behalf of employees who (i) have been identified as not receiving an offer of employment by the expected surviving entity (or an affiliate thereof) in a Change in Control transaction or (ii) have declined to accept such an offer; provided that the Executive may not make such a recommendation or referral to a Competitor of the Company."
8. The following new Section 24 is hereby added to the Agreement:
"Section 24. SECTION 409A OF THE CODE. To the extent applicable, it is
intended that this Agreement comply with the provisions of Section 409A of the
Code. This Agreement shall be administered in a manner consistent with this
intent, and any provision that would cause the Agreement to fail to satisfy
Section 409A of the Code shall have no force and effect unless and until such
provision is amended to comply with Section 409A of the Code (which amendment
may be retroactive to the extent permitted by Section 409A of the Code and may
be made by the Company without the consent of the Executive). Any amendment to
the timing and receipt of any payment or benefit provided hereunder shall be
effected in a manner that is intended to be in compliance with Section 409A of
the Code. Any reference in this Agreement to Section 409A of the Code will also
include any proposed, temporary or final regulation, or any other guidance,
promulgated with respect to such section by the U.S. Department of the Treasury
or the Internal Revenue Service. To the extent that any payment required to be
made under this Agreement is delayed in order to avoid negative tax consequences
under Section 409A of the Code, the Company will pay interest on the amount of
such payment during the time that such payment is delayed at an annualized rate
of interest equal to 6.2%."
9. Except as amended herein, the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Name: John R. Sims
Title: Executive Vice President &
General Counsel
/s/ Lawrence R. Johnston
----------------------------------------
Lawrence R. Johnston
|
Exhibit 10.6.5
AMENDMENT TO THE
ALBERTSON'S, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. Executive Deferred Compensation Plan (the "Plan") was established December 5, 1983 and was further amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. The definition of "Change in Control" contained in Article I of the Plan is hereby amended to read as follows:
"Change in Control" shall mean the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then-outstanding Voting Stock of Albertson's, Inc. (the "Company"); provided, however, that:
(1) for purposes of this Section 1(i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of securities entitled to vote generally in the election of directors of the Company ("Voting Stock") directly from the Company that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company by the Company or any subsidiary, (C) any acquisition of Voting Stock of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any subsidiary, and (D) any acquisition of Voting Stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of Section 1(iii) below;
(2) if any Person acquires beneficial ownership of 20% or more of combined voting power of the then-outstanding Voting Stock of the Company as a result of a transaction described in clause (1)(A) of Section
1(i) and such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than in an acquisition directly from the Company that is approved by a majority of the Incumbent Directors or other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally, such subsequent acquisition shall be treated as a Change in Control;
(3) a Change in Control will not be deemed to have occurred if a Person acquires beneficial ownership of 20% or more of the Voting Stock of the Company as a result of a reduction in the number of shares of Voting Stock of the Company outstanding unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally; and
(4) if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 20% or more of the Voting Stock of the Company inadvertently, and such Person divests as promptly as practicable a sufficient number of shares so that such Person beneficially owns less than 20% of the Voting Stock of the Company, then no Change in Control shall have occurred as a result of such Person's acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation, or other transaction (each, a "Business Combination"), unless, in each case, immediately following such Business Combination (A) all or substantially all of the individuals and entities who were the beneficial owners of Voting Stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more
than 60% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries), (B) no Person (other than the Company, such entity resulting from such Business Combination, or any employee benefit plan (or related trust) sponsored or maintained by the Company, any Subsidiary or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination, and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 1(iii).
An "Incumbent Director" shall mean the individuals who, as of the date hereof, are Directors of the Company and any individual becoming a Director subsequent to the date hereof whose election, nomination for election by the Company's shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual's election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
2. Effective as of the date of adoption of this Amendment, a new Section 6.09 is hereby added to the Plan, immediately following Section 6.08, to read as follows:
6.10 Special Election. Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
3. A new Section 8.04 is hereby added to the Plan, immediately following
Section 8.03, to read as follows:
8.04 Code Section 409A. It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by the Employer at any time to the extent determined necessary or desirable, at the Employer's discretion, in light of Code Section 409A, without regard to any restrictions on the Employer's ability to amend the Plan under any other provision of the Plan.
4. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.10.5
SIXTH AMENDMENT TO THE
ALBERTSON'S, INC. 2000 DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. 2000 Deferred Compensation Plan (the "Plan") was established effective January 1, 2000, and has previously been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. A new Section 6.10 is hereby added to the Plan, immediately following
Section 6.9, to read as follows:
6.10 Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
2. A new Section 9.3 shall be added, immediately following Section 9.2, to read as follows:
9.3 It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by the Board, the Committee or their duly authorized delegates at any time to the extent determined necessary or desirable, at their discretion, in light of Code Section 409A, without regard to any restrictions on the ability to amend the Plan under any other provision of the Plan.
3. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.13.8
SECOND AMENDMENT TO THE
ALBERTSON'S, INC. EXECUTIVE PENSION MAKEUP PLAN
WHEREAS, Albertson's, Inc. maintains the Albertson's, Inc. Executive Pension MakeUp Plan (the "Plan") which was amended and restated effective December 1, 2002, and was further amended;
WHEREAS, the Albertson's Salaried Employees' Pension Plan was merged with and into the Albertson's Employees' Corporate Pension Plan, effective December 31, 2004;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified)
1. Article I of the Plan is hereby amended by adding a definition of "Change in Control" thereto, immediately following "Beneficiary", to read as follows:
"Change in Control" shall mean the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then-outstanding Voting Stock of Albertson's, Inc. (the "Company"), provided, however, that:
(1) for purposes of this Section 1(i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of securities entitled to vote generally in the election of directors of the Company ("Voting Stock") directly from the Company that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company by the Company or any subsidiary, (C) any acquisition of Voting Stock of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any subsidiary, and (D) any acquisition of Voting Stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of Section 1(iii) below;
(2) if any Person acquires beneficial ownership of 20% or
more of combined voting power of the then-outstanding Voting Stock of
the Company as a result of a transaction described in clause (1)(A) of
Section 1(i) and such Person thereafter becomes the beneficial owner
of any additional shares of Voting Stock of the Company representing
1% or more of the then-outstanding Voting Stock of the Company, other
than in an acquisition directly from the Company that is approved by a
majority of the Incumbent Directors or other than as a result of a
stock dividend, stock split or similar transaction effected by the
Company in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3) a Change in Control will not be deemed to have occurred if a Person acquires beneficial ownership of 20% or more of the Voting Stock of the Company as a result of a reduction in the number of shares of Voting Stock of the Company outstanding unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally; and
(4) if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 20% or more of the Voting Stock of the Company inadvertently, and such Person divests as promptly as practicable a sufficient number of shares so that such Person beneficially owns less than 20% of the Voting Stock of the Company, then no Change in Control shall have occurred as a result of such Person's acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation, or other transaction (each, a "Business Combination"), unless, in each case, immediately following such Business Combination (A) all or substantially all of the individuals and entities who were the beneficial owners of Voting Stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries), (B) no Person (other than the Company, such entity resulting from such Business Combination, or any employee benefit plan (or related trust) sponsored or maintained by the Company, any Subsidiary or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination, and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 1(iii).
2. Article I of the Plan is hereby amended by adding a definition of "Incumbent Director" thereto, immediately following "Employer", to read as follows:
An "Incumbent Director" shall mean the individuals who, as of the date hereof, are Directors of the Company and any individual becoming a Director subsequent to the date hereof whose election, nomination for election by the Company's shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual's election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
3. Effective as of the adoption of this Amendment, a new Section 4.04 is hereby added to the Plan, immediately following Section 4.03, to read as follows:
4.04 Special Election. Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum payment in cash (payable
from an applicable trust or from general corporate assets) in an amount equal to the present value of such Participant's vested accrued benefit under the Plan, determined as of the date of the distribution and payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's accrued benefit under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum. The amount of any such Special Election Lump Sum shall be determined as of the date of the distribution using, in lieu of any actuarial factors set forth in the Plan for calculating a lump sum or any other purpose, the following actuarial factors: an interest rate equal to the average yield to maturity for 30-year U. S. Government Bonds as of the date of the distribution, and unloaded 94 GAR mortality rates, blended 50% male and 50% female, projected to 2002.
4. A new Section 5.04 is hereby added to the Plan, immediately following
Section 5.03, to read as follows:
5.04 Code Section 409A. It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended at any time by the Employer to the extent necessary or desirable by the Employer, at the Employer's discretion, in light of Code Section 409A, without regard to any restrictions on the Employer's ability to amend the Plan under any other provision of the Plan.
5. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.13.9
THIRD AMENDMENT TO THE
ALBERTSON'S, INC. EXECUTIVE PENSION MAKEUP PLAN
WHEREAS, Albertson's, Inc. maintains the Albertson's, Inc. Executive Pension MakeUp Plan (the "Plan") which was amended and restated effective December 1, 2002, and was further amended;
WHEREAS, the Albertson's Salaried Employees' Pension Plan was merged with and into the Albertson's Employees' Corporate Pension Plan, effective December 31, 2004;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified)
1. A new Section 3.06 is hereby added to the Plan, immediately following
Section 3.05, to read as follows:
3.06 Cessation of Benefit Accruals. Effective as of May 28, 2006 ("Cessation Date"), notwithstanding any other provision of the Plan, (i) no person shall become eligible to participate in the Plan on or after the Cessation Date, and (ii) all benefit accruals under the Plan shall cease. In furtherance of the foregoing, no compensation earned after the Cessation Date shall be taken into account for purposes of calculating a benefit under the Plan, and no service on or after the Cessation Date shall be counted as credited service under the Plan. Each Participant's Accrued Benefit under the Plan shall become fully vested as of the Cessation Date.
2. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 11th day of May, 2006.
ALBERTSON'S, INC.
Exhibit 10.14.3
FOURTH AMENDMENT TO THE
ALBERTSON'S, INC. EXECUTIVE ASRE MAKEUP PLAN
WHEREAS, the Albertson's, Inc. Executive ASRE MakeUp Plan (the "Plan") was effective September 26, 1999, and has previously been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. A new Section 5.2 is hereby added to the Plan, immediately following
Section 6.8, to read as follows:
5.2 Notwithstanding any provision of the Plan, the Company shall make a contribution pursuant to Section 5.1 for the Plan Year in which occurs the Effective Time as defined in the Agreement and Plan of Merger by and among Albertson's, Inc., New Aloha Corporation, New Diamond Sub., Inc., SUPERVALU INC., and Emerald Acquisition Sub, Inc., dated January 22, 2006 ("Effective Time"), on behalf of each Participant who is an Employee as of the Effective Time in an amount equal to the product of (i) the amount allocated to such Participant's Account for the 2005 Plan Year under Section 5.1, multiplied by (ii) a fraction, the numerator of which is the number of days in the Plan Year containing the Effective Time which precede such Effective Time, and the denominator of which is 365, provided that the aggregate amount of such contribution shall not exceed $2.5 million and provided that such contribution shall be made immediately prior to the Effective Time.
2. A new Section 6.9 is hereby added to the Plan, immediately following
Section 6.8, to read as follows:
6.9 Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as
practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum. The unvested Account balance of each Participant in the Plan as of the effective date of the Merger shall be fully vested.
3. A new Section 9.3 is hereby added to the Plan, immediately following
Section 9.2, to read as follows:
9.3 It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by the Board, the Committee or their duly authorized delegates at any time to the extent determined necessary or desirable, at their discretion, in light of Code Section 409A, without regard to any restrictions on their ability to amend the Plan under any other provision of the Plan.
4. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.15.4
AMENDMENT TO THE
ALBERTSON'S, INC. SENIOR EXECUTIVE DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. Senior Executive Deferred Compensation Plan (the "Plan") was established effective December 5, 1983, and has previously been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. The definition of "Change in Control" contained in Article I of the Plan is hereby amended to read as follows:
"Change in Control" shall mean the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then-outstanding Voting Stock of Albertson's, Inc. (the "Company"); provided, however, that:
(1) for purposes of this Section 1(i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of securities entitled to vote generally in the election of directors of the Company ("Voting Stock") directly from the Company that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company by the Company or any subsidiary, (C) any acquisition of Voting Stock of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any subsidiary, and (D) any acquisition of Voting Stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of Section 1(iii) below;
(2) if any Person acquires beneficial ownership of 20% or
more of combined voting power of the then-outstanding Voting Stock of
the Company as a result of a transaction described in clause (1)(A) of
Section 1(i) and such Person thereafter becomes the beneficial owner
of any additional shares of Voting Stock of the Company representing
1% or more of the then-outstanding Voting Stock of the Company, other
than in an acquisition directly from the Company that is approved by a
majority of the Incumbent Directors or other than as a result of a
stock dividend, stock split or similar transaction effected by the
Company in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3) a Change in Control will not be deemed to have occurred if a Person acquires beneficial ownership of 20% or more of the Voting Stock of the Company as a result of a reduction in the number of shares of Voting Stock of the Company outstanding unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally; and
(4) if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 20% or more of the Voting Stock of the Company inadvertently, and such Person divests as promptly as practicable a sufficient number of shares so that such Person beneficially owns less than 20% of the Voting Stock of the Company, then no Change in Control shall have occurred as a result of such Person's acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation, or other transaction (each, a "Business Combination"), unless, in each case, immediately following such Business
Combination (A) all or substantially all of the individuals and entities who were the beneficial owners of Voting Stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries), (B) no Person (other than the Company, such entity resulting from such Business Combination, or any employee benefit plan (or related trust) sponsored or maintained by the Company, any Subsidiary or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination, and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 1(iii).
An "Incumbent Director" shall mean the individuals who, as of the date hereof, are Directors of the Company and any individual becoming a Director subsequent to the date hereof whose election, nomination for election by the Company's shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual's election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
2. A new Section 6.08 is hereby added to the Plan, immediately following
Section 6.07, to read as follows:
6.08 Special Election. Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
3. A new Section 8.04 is hereby added to the Plan, immediately following
Section 8.03, to read as follows:
8.04 Code Section 409A. It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by the Employer at any time to the extent determined necessary or desirable, at the Employer's discretion, in light of Code Section 409A, without regard to any restrictions on the Employer's ability to amend the Plan under any other provision of the Plan.
4. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.20.7
AMENDMENT TO THE
ALBERTSON'S, INC. 1990 DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. 1990 Deferred Compensation Plan (the "Plan") was established effective January 1, 1990, and has previously been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. A new Section 6.10 is hereby added to the Plan, immediately following
Section 6.9, to read as follows:
6.10 Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
2. A new Section 10.3 is hereby added to the Plan, immediately following
Section 10.2, to read as follows:
10.2 It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by the Board, the Committee or their duly authorized delegates at any time to the extent determined necessary or desirable, at their discretion, in light of Code Section 409A, without regard to any restrictions on their ability to amend the Plan under any other provision of the Plan.
3. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President &
General Counsel
|
Exhibit 10.21.5
FIFTH AMENDMENT TO THE
ALBERTSON'S, INC. NON-EMPLOYEES DIRECTORS' DEFERRED
COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. Non-Employees Directors' Deferred Compensation Plan (the "Plan") was established effective January 1, 1990, and has previously been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. A new Section 6.10 is hereby added to the Plan, immediately following
Section 6.9, to read as follows:
6.10 Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
2. A new Section 10.03 is hereby added to the Plan, immediately following
Section 10.02, to read as follows:
10.03 It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by the Board, the Committee or their duly authorized delegates at any time to the extent determined necessary or desirable, at their discretion, in light of Code Section 409A, without
regard to any restrictions on their ability to amend the Plan under any other provision of the Plan.
3. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.30.2
SIXTH AMENDMENT TO THE
AMERICAN STORES COMPANY SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN (SERP)
WHEREAS, the American Stores Company Supplemental Executive Retirement Plan (SERP) was amended and restated effective January 1, 1994, and has previously been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. A new Section 6.06 is hereby added to the Plan, immediately following
Section 6.06, to read as follows:
For purposes of this Section 6.06, "Change in Control" shall mean the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then-outstanding Voting Stock of Albertson's, Inc. (the "Parent"); provided, however, that:
(1) for purposes of this Section 1(i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of securities entitled to vote generally in the election of directors of the Parent ("Voting Stock") directly from the Parent that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Parent by the Parent or any subsidiary, (C) any acquisition of Voting Stock of the Parent by any employee benefit plan (or related trust) sponsored or maintained by the Parent or any subsidiary, and (D) any acquisition of Voting Stock of the Parent by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of Section 1(iii) below;
(2) if any Person acquires beneficial ownership of 20% or
more of combined voting power of the then-outstanding Voting Stock of
the Parent as a result of a transaction described in clause (1)(A) of
Section 1(i) and such Person thereafter becomes the beneficial owner
of any additional shares of Voting Stock of the Parent representing 1%
or more of the then-outstanding Voting Stock of the Parent, other than
in an acquisition directly from the Parent that is approved by a
majority of the Incumbent Directors or other than as a result of a
stock dividend, stock split or similar transaction effected by the
Parent in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3) a Change in Control will not be deemed to have occurred if a Person acquires beneficial ownership of 20% or more of the Voting Stock of the Parent as a result of a reduction in the number of shares of Voting Stock of the Parent outstanding unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Parent representing 1% or more of the then-outstanding Voting Stock of the Parent, other than as a result of a stock dividend, stock split or similar transaction effected by the Parent in which all holders of Voting Stock are treated equally; and
(4) if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 20% or more of the Voting Stock of the Parent inadvertently, and such Person divests as promptly as practicable a sufficient number of shares so that such Person beneficially owns less than 20% of the Voting Stock of the Parent, then no Change in Control shall have occurred as a result of such Person's acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Parent or the acquisition of assets of another corporation, or other transaction (each, a "Business Combination"), unless, in each case, immediately following such Business Combination (A) all or substantially all of the individuals
and entities who were the beneficial owners of Voting Stock of the Parent immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns the Parent or all or substantially all of the Parent's assets either directly or through one or more subsidiaries), (B) no Person (other than the Parent, such entity resulting from such Business Combination, or any employee benefit plan (or related trust) sponsored or maintained by the Parent, any Subsidiary or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination, and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or
(iv) approval by the shareholders of the Parent of a complete
liquidation or dissolution of the Parent, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 1(iii).
An "Incumbent Director" shall mean the individuals who, as of the date hereof, are Directors of the Parent and any individual becoming a Director subsequent to the date hereof whose election, nomination for election by the Parent's shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Parent in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual's election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
Special Election. Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
2 A new Section 12.10 is hereby added to the Plan, immediately following
Section 12.09, to read as follows:
12.10 It is intended that the Plan shall be operated in good faith compliance with Section 409A of the Internal Revenue Code ("Code") and may be amended by Albertson's, Inc. at any time to the extent determined necessary or desirable, at the discretion of Albertson's, Inc., in light of Code Section 409A, without regard to any restrictions on the ability of Albertson's, Inc. to amend the Plan under any other provision of the Plan.
3. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
|
Exhibit 10.43.1
ALBERTSON'S, INC.
AMENDMENT NO. 1 TO
CHANGE OF CONTROL SEVERANCE AGREEMENT
(FOR EXECUTIVE VICE PRESIDENTS)
THIS AMENDMENT to the Change of Control Severance Agreement by and between Albertson's, Inc. (the "Company") and _____________________ (the "Executive") is entered into as of ____________________.
WHEREAS, the Company and the Executive have previously entered into a Change of Control Severance Agreement (the "Agreement"); and
WHEREAS, the Company and the Executive wish to make certain amendments to the Agreement as set forth below.
NOW THEREFORE, in consideration of the agreements set forth herein, the parties agree as follows:
1. Capitalized terms used herein and not otherwise specifically defined herein shall have the same meaning given to such terms in the Agreement.
2. A new defined term "Annual Incentive Plan" is hereby inserted at the beginning of Section 1 of the Agreement as a new Sub-section (aa) as follows:
"(aa) "Annual Incentive Plan" means a plan providing for an annual bonus or incentive, in addition to Base Pay, made or to be made in regard to services rendered to the Company or a Subsidiary, or any successor thereto. "Annual Incentive Plan" does not include any Long-Term Incentive Plan or any stock option, stock appreciation, stock purchase, restricted stock or similar plan, program, arrangement or grant, whether or not provided under an arrangement described in the preceding sentence."
3. A new defined term "Long-Term Incentive Plan" is hereby inserted after the definition of "Incumbent Directors" in Section 1 of the Agreement as a new Sub-section (jj) as follows:
"(jj) "Long-Term Incentive Plan" means the Albertson's, Inc. 2004 Long-Term Incentive Plan and any other multi-year or multi-performance period cash bonus or cash incentive plan that provides incentive compensation payable in cash in regard to services rendered to the Company or a Subsidiary or any successor thereto. "Long-Term Incentive Plan" does not include any Annual Incentive Plan or any stock option, stock appreciation, stock purchase, restricted stock or similar plan, program, arrangement or grant, whether or not provided under an arrangement described in the preceding sentence."
4. The phrase "or any Subsidiary" is hereby added to the end of the definition of "Welfare Benefits" in Section 1(q) of the Agreement.
5. Sub-section (a) of Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
"(a) If, following the occurrence of a Change in Control, the Company or a Subsidiary terminates the Executive's employment during the Severance Period other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or if the Executive terminates employment pursuant to Section 3(b), provided that the Executive executes a release substantially in the form typically executed by senior executives of the Company in connection with employment terminations prior to the Change in Control, the Company will pay to the Executive the lump sum amounts described in Annex A within five business days after the Termination Date and will continue to provide to the Executive the benefits described on Annex A for the periods described therein; provided, however, that if any lump sum payment constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amounts described in Annex A upon the earlier of (A) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (B) the Executive's death."
6. Sub-section (c) of Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
"(c) Unless otherwise expressly provided by the applicable Annual Incentive Plan, after the occurrence of a Change in Control, the Company will pay in cash to the Executive a lump sum amount equal to the value of the Executive's annual bonus for the performance period that includes the date on which the Change in Control occurred, disregarding any applicable vesting requirements; provided that such amount will be equal to the product of (i) the target bonus percentage as approved by the Management Development/Compensation Committee of the Board under the applicable Annual Incentive Plan in effect immediately prior to the Change in Control (and not any maximum incentive compensation award that may be provided under any annual incentive plan applicable to "covered employees" of the Company (within the meaning of Section 162(m) of the Code or any successor provision)) or, if no such percentage is specified, the target bonus percentage that would be applicable immediately prior to the Change in Control based upon the Executive's salary grade, job classification and title, in either event, multiplied by (ii) Base Pay, but prorated to base payment only on the portion of the Executive's service that had elapsed during the applicable performance period through the Change in Control. Any such payment will be made within five business days after the Change in Control; provided, however, that if this lump sum payment constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amount described in this Sub-section (c) upon the earlier of (A) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (B) the Executive's death."
7. Paragraph 1 of Annex A of the Agreement is hereby deleted in its entirety and replaced with the following:
"(1) A lump sum payment in an amount equal to three times the sum of (A) Base Pay (at the highest rate in effect for any period within three years prior to the Termination Date), plus (B) the "target annual bonus amount" (which, for this purpose, means the product of the Executive's target bonus percentage as approved by the Management Development/ Compensation Committee of the Board under the applicable Annual Incentive Plan in effect immediately prior to the Change in Control (and not any maximum incentive compensation award that may be provided under any annual incentive plan applicable to "covered employees" of the Company (within the meaning of Section 162(m) of the Code or any successor provision)) or, if the applicable Annual Incentive Plan does not specify such percentage, the target bonus percentage that would be applicable immediately prior to the Change in Control based upon the Executive's salary grade, job classification and title, in either event, multiplied by Base Pay)."
8. Paragraphs 2 through 4 of Annex A to the Agreement are hereby deleted in their entirety and replaced with the following:
"(2) For a period of 36 months following the Termination Date (the
"Continuation Period"), the Company will arrange to provide the Executive with
Welfare Benefits substantially similar to those that the Executive was receiving
or entitled to receive immediately prior to the Termination Date (or, if
greater, immediately prior to the reduction, termination or denial described in
Section 1(h)(ii)). In the case of group health plan coverage, the first 18
months of the Continuation Period shall be considered to be the period during
which the Executive shall be eligible for continuation coverage under Section
4980B of the Code, and the Company shall reimburse the Executive for the amount
of the premiums for such continuation coverage that exceeds the amount that the
Executive paid for participation in such group health plans prior to the
Termination Date. In addition, the Executive (and the Executive's dependents)
will be permitted to continue coverage under the Company's group health plans
following the end of the Continuation Period (as if the end of the Continuation
Period was the termination of the Executive's employment with the Company) on
the same basis (including with respect to cost and length of continued coverage)
that other employees of the Company who are not parties to agreements similar to
this Agreement (and their dependents) are permitted to continue coverage under
the Company's group health plans under Section 4980B of the Code following a
"qualifying event" with respect to any such employee or dependent. If and to the
extent that any benefit described in this Paragraph 2 is not or cannot be paid
or provided under any policy, plan, program or arrangement of the Company or any
Subsidiary, as the case may be, then the Company will itself pay or provide for
the payment to the Executive, the Executive's dependents and beneficiaries, of
such Welfare Benefits along with, in the case of any benefit described in this
Paragraph 2 which is subject to tax because it is not or cannot be paid or
provided under any such policy, plan, program or arrangement of the Company or
any Subsidiary, an additional amount such that after payment by the Executive,
or the Executive's dependents or beneficiaries, as the case may be, of all taxes
so imposed, the recipient retains an amount equal to such taxes. Notwithstanding
the foregoing, (A) if the Company determines that the provision of Welfare
Benefits under this Paragraph 2 is likely to result in negative tax consequences
to the Executive, the Company will use its reasonable best efforts to make other
arrangements to provide a substantially similar benefit to the Executive that
does not have such negative tax consequences, which may include, making a lump
sum payment at the earliest time permitted under Section 409A of the Code, in an
amount equal to the Company's reasonable determination of the present value of
any such benefits that, if provided, would result in negative tax consequences
to the
Executive and/or with respect to health plan coverage, providing such benefit through insurance coverage on the Executive's behalf; and (B) if the benefits to be provided under this Paragraph 2 are subject to Section 409A of the Code and are not considered to be "reimbursement arrangements" within the meaning of Proposed Treasury Regulation 1.409A-1(b)(9)(iv)(A) or any successor provision, the Company shall pay to the Executive at the earliest time or times permitted under Section 409A of the Code, in a lump sum, an amount or amounts equal to the Company's reasonable determination of the present value of the continuation of such benefits for 36 months following the Termination Date. For purposes of the calculation of service or age to determine the Executive's eligibility for benefits under any life insurance plan or policy, the Executive shall be considered to have remained actively employed on a full-time basis through the end of the 36th month following the Termination Date. If (i) upon the Termination Date, the Executive is not eligible for retiree medical benefits under the Company's retiree medical plan and (ii) the Executive would be eligible for retiree medical benefits under the Company's retiree medical plan if the Executive was considered to have remained employed on a full-time basis through the end of the 36th month following the Termination Date, then the Company will make arrangements to provide the Executive and the Executive's eligible dependents with benefits substantially similar to the retiree medical benefits provided under the Company's retiree medical benefit plan, which may include providing such benefits through insurance coverage on the Executive's behalf. Without otherwise limiting the purposes or effect of Section 6 or this Paragraph 2, if the Executive is receiving Welfare Benefits pursuant to this Paragraph 2, such Welfare Benefits will be reduced to the extent comparable welfare benefits are actually received by the Executive from another employer during the Continuation Period following the Executive's Termination Date, and any such benefits actually received by the Executive will be reported by the Executive to the Company.
(3) Outplacement services by a firm selected by the Executive, at the expense of the Company in an amount up to $50,000; provided, however, that all such outplacement services must be completed, and all payments by the Company must be made, by December 31 of the second calendar year following the calendar year in which the Termination Date occurs.
(4) If the Executive was relocated at the request of the Company (including but not limited to as a result of initial hire) within five years of the Executive's Termination Date, a lump sum payment, equal in value to the reimbursement of relocation expenses, which the parties agree is $100,000, payable at the earliest time permitted under Section 409A of the Code."
9. The following new Section 18 is hereby added to the Agreement:
"18. Section 409A of the Code.
(a) To the extent applicable, it is intended that this Agreement comply
with the provisions of Section 409A of the Code. This Agreement shall be
administered in a manner consistent with this intent, and any provision that
would cause the Agreement to fail to satisfy Section 409A of the Code shall have
no force and effect unless and until such provision is amended to comply with
Section 409A of the Code (which amendment may be retroactive to the extent
permitted by Section 409A of the Code and may be made by the Company without the
consent of the Executive); (ii) any amendment to the timing and receipt of any
payment or benefit provided hereunder shall be effected in a manner that is
intended to be in compliance
with Section 409A of the Code. Any reference in this Agreement to Section 409A of the Code will also include any proposed, temporary or final regulation, or any other guidance, promulgated with respect to such section by the U.S. Department of the Treasury or the Internal Revenue Service.
(b) To the extent that any payment required to be made under this Agreement is delayed in order to avoid negative tax consequences under Section 409A of the Code, the Company will pay interest on the amount of such payment during the time that such payment is delayed at an annualized rate of interest equal to 6.2%."
10. Except as amended herein, the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.
ALBERTSON'S, INC.
Exhibit 10.44.01
ALBERTSON'S, INC.
AMENDMENT NO. 1 TO
CHANGE OF CONTROL SEVERANCE AGREEMENT
(FOR SENIOR VICE PRESIDENTS AND GROUP VICE PRESIDENTS)
THIS AMENDMENT to the Change of Control Severance Agreement by and between Albertson's, Inc. (the "Company") and _____________________ (the "Executive") is entered into as of ____________________.
WHEREAS, the Company and the Executive have previously entered into a Change of Control Severance Agreement (the "Agreement"); and
WHEREAS, the Company and the Executive wish to make certain amendments to the Agreement as set forth below.
NOW THEREFORE, in consideration of the agreements set forth herein, the parties agree as follows:
1. Capitalized terms used herein and not otherwise specifically defined herein shall have the same meaning given to such terms in the Agreement.
2. A new defined term "Annual Incentive Plan" is hereby inserted at the beginning of Section 1 of the Agreement as a new Sub-section (aa) as follows:
"(aa) "Annual Incentive Plan" means a plan providing for an annual bonus or incentive, in addition to Base Pay, made or to be made in regard to services rendered to the Company or a Subsidiary, or any successor thereto. "Annual Incentive Plan" does not include any Long-Term Incentive Plan or any stock option, stock appreciation, stock purchase, restricted stock or similar plan, program, arrangement or grant, whether or not provided under an arrangement described in the preceding sentence."
3. A new defined term "Long-Term Incentive Plan" is hereby inserted after the definition of "Incumbent Directors" in Section 1 of the Agreement as a new Sub-section (ii) as follows:
"(ii) "Long-Term Incentive Plan" means the Albertson's, Inc. 2004 Long-Term Incentive Plan and any other multi-year or multi-performance period cash bonus or cash incentive plan that provides incentive compensation payable in cash in regard to services rendered to the Company or a Subsidiary or any successor thereto. "Long-Term Incentive Plan" does not include any Annual Incentive Plan or any stock option, stock appreciation, stock purchase, restricted stock or similar plan, program, arrangement or grant, whether or not provided under an arrangement described in the preceding sentence."
4. The phrase "or any Subsidiary" is hereby added to the end of the definition of "Welfare Benefits" in Section 1(p) of the Agreement.
5. Sub-section (a) of Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
"(a) If, following the occurrence of a Change in Control, the Company or a Subsidiary terminates the Executive's employment during the Severance Period other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or if the Executive terminates employment pursuant to Section 3(b), provided that the Executive executes a release substantially in the form typically executed by senior executives of the Company in connection with employment terminations prior to the Change in Control, the Company will pay to the Executive the lump sum amounts described in Annex A within five business days after the Termination Date and will continue to provide to the Executive the benefits described on Annex A for the periods described therein; provided, however, that if any lump sum payment constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amounts described in Annex A upon the earlier of (A) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (B) the Executive's death."
6. Sub-section (c) of Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
"(c) Unless otherwise expressly provided by the applicable Annual Incentive Plan, after the occurrence of a Change in Control, the Company will pay in cash to the Executive a lump sum amount equal to the value of the Executive's annual bonus for the performance period that includes the date on which the Change in Control occurred, disregarding any applicable vesting requirements; provided that such amount will be equal to the product of (i) the target bonus percentage under the applicable Annual Incentive Plan in effect immediately prior to the Change in Control times (ii) Base Pay, but prorated to base payment only on the portion of the Executive's service that had elapsed during the applicable performance period through the Change in Control. Any such payment will be reduced by any interim annual bonus payments made under the applicable Annual Incentive Plan during the applicable performance period and will be made within five business days after the Change in Control; provided, however, that if this lump sum payment constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amounts described in this Sub-section (c) upon the earlier of (A) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (B) the Executive's death."
7. Paragraph 1 of Annex A of the Agreement is hereby deleted in its entirety and replaced with the following:
"(1) A lump sum payment in an amount equal to two times the sum of (A) Base Pay (at the highest rate in effect for any period within three years prior to the Termination Date), plus (B) the "target annual bonus amount" (which, for this purpose, means the product of the
Executive's target bonus percentage under the applicable Annual Incentive Plan in effect immediately prior to the Change in Control times Base Pay)."
8. Paragraphs 2 through 4 of Annex A to the Agreement are hereby deleted in their entirety and replaced with the following:
"(2) For a period of 24 months following the Termination Date (the
"Continuation Period"), the Company will arrange to provide the Executive with
Welfare Benefits substantially similar to those that the Executive was receiving
or entitled to receive immediately prior to the Termination Date (or, if
greater, immediately prior to the reduction, termination or denial described in
Section 1(g)(ii)). In the case of group health plan coverage, the first 18
months of the Continuation Period shall be considered to be the period during
which the Executive shall be eligible for continuation coverage under Section
4980B of the Code, and the Company shall reimburse the Executive for the amount
of the premiums for such continuation coverage that exceeds the amount that the
Executive paid for participation in such group health plans prior to the
Termination Date. In addition, the Executive (and the Executive's dependents)
will be permitted to continue coverage under the Company's group health plans
following the end of the Continuation Period (as if the end of the Continuation
Period was the termination of the Executive's employment with the Company) on
the same basis (including with respect to cost and length of continued coverage)
that other employees of the Company who are not parties to agreements similar to
this Agreement (and their dependents) are permitted to continue coverage under
the Company's group health plans under Section 4980B of the Code following a
"qualifying event" with respect to any such employee or dependent. If and to the
extent that any benefit described in this Paragraph 2 is not or cannot be paid
or provided under any policy, plan, program or arrangement of the Company or any
Subsidiary, as the case may be, then the Company will itself pay or provide for
the payment to the Executive, the Executive's dependents and beneficiaries, of
such Welfare Benefits along with, in the case of any benefit described in this
Paragraph 2 which is subject to tax because it is not or cannot be paid or
provided under any such policy, plan, program or arrangement of the Company or
any Subsidiary, an additional amount such that after payment by the Executive,
or the Executive's dependents or beneficiaries, as the case may be, of all taxes
so imposed, the recipient retains an amount equal to such taxes. Notwithstanding
the foregoing, (A) if the Company determines that the provision of Welfare
Benefits under this Paragraph 2 is likely to result in negative tax consequences
to the Executive, the Company will use its reasonable best efforts to make other
arrangements to provide a substantially similar benefit to the Executive that
does not have such negative tax consequences, which may include, making a lump
sum payment at the earliest time permitted under Section 409A of the Code, in an
amount equal to the Company's reasonable determination of the present value of
any such benefits that, if provided, would result in negative tax consequences
to the Executive and/or with respect to health plan coverage, providing such
benefit through insurance coverage on the Executive's behalf; and (B) if the
benefits to be provided under this Paragraph 2 are subject to Section 409A of
the Code and are not considered to be "reimbursement arrangements" within the
meaning of Proposed Treasury Regulation 1.409A-1(b)(9)(iv)(A) or any successor
provision, the Company shall pay to the Executive, at the earliest time or times
permitted under Section 409A of the Code, in a lump sum, an amount or amounts
equal to the Company's reasonable determination of the present value of the
continuation of such benefits for 24 months following the Termination Date. For
purposes of the calculation of service or age to determine the Executive's
eligibility for benefits under any life insurance plan or policy, the
Executive shall be considered to have remained actively employed on a full-time basis through the end of the 24th month following the Termination Date. If (i) upon the Termination Date, the Executive is not eligible for retiree medical benefits under the Company's retiree medical plan and (ii) the Executive would be eligible for retiree medical benefits under the Company's retiree medical plan if the Executive was considered to have remained employed on a full-time basis through the end of the 24th month following the Termination Date, then the Company will make arrangements to provide the Executive and the Executive's eligible dependents with benefits substantially similar to the retiree medical benefits provided under the Company's retiree medical benefit plan, which may include providing such benefits through insurance coverage on the Executive's behalf. Without otherwise limiting the purposes or effect of Section 6 or this Paragraph 2, if the Executive is receiving Welfare Benefits pursuant to this Paragraph 2, such Welfare Benefits will be reduced to the extent comparable welfare benefits are actually received by the Executive from another employer during the Continuation Period following the Executive's Termination Date, and any such benefits actually received by the Executive will be reported by the Executive to the Company.
(3) Outplacement services by a firm selected by the Executive, at the expense of the Company in an amount up to $10,000; provided, however, that all such outplacement services must be completed, and all payments by the Company must be made, by December 31 of the second calendar year following the calendar year in which the Termination Date occurs.
(4) If the Executive was relocated at the request of the Company (including but not limited to as a result of initial hire) within five years of the Executive's Termination Date, a lump sum payment, equal in value to the reimbursement of relocation expenses, which the parties agree is $50,000, payable at the earliest time permitted under Section 409A of the Code."
9. The following new Section 18 is hereby added to the Agreement:
"18. Section 409A of the Code.
(a) To the extent applicable, it is intended that this Agreement comply
with the provisions of Section 409A of the Code. This Agreement shall be
administered in a manner consistent with this intent, and any provision that
would cause the Agreement to fail to satisfy Section 409A of the Code shall have
no force and effect unless and until such provision is amended to comply with
Section 409A of the Code (which amendment may be retroactive to the extent
permitted by Section 409A of the Code and may be made by the Company without the
consent of the Executive). Any amendment to the timing and receipt of any
payment or benefit provided hereunder shall be effected in a manner that is
intended to be in compliance with Section 409A of the Code. Any reference in
this Agreement to Section 409A of the Code will also include any proposed,
temporary or final regulation, or any other guidance, promulgated with respect
to such section by the U.S. Department of the Treasury or the Internal Revenue
Service.
(b) To the extent that any payment required to be made under this Agreement is delayed in order to avoid negative tax consequences under Section 409A of the Code, the Company will pay interest on the amount of such payment during the time that such payment is delayed at an annualized rate of interest equal to 6.2%."
10. Except as amended herein, the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.
ALBERTSON'S, INC.
Exhibit 10.45.1
ALBERTSON'S, INC.
AMENDMENT NO. 1 TO
CHANGE OF CONTROL SEVERANCE AGREEMENT
(FOR VICE PRESIDENTS)
THIS AMENDMENT to the Change of Control Severance Agreement by and between Albertson's, Inc. (the "Company") and _____________________ (the "Executive") is entered into as of ____________________.
WHEREAS, the Company and the Executive have previously entered into a Change of Control Severance Agreement (the "Agreement"); and
WHEREAS, the Company and the Executive wish to make certain amendments to the Agreement as set forth below.
NOW THEREFORE, in consideration of the agreements set forth herein, the parties agree as follows:
1. Capitalized terms used herein and not otherwise specifically defined herein shall have the same meaning given to such terms in the Agreement.
2. A new defined term "Annual Incentive Plan" is hereby inserted at the beginning of Section 1 of the Agreement as a new Sub-section (aa) as follows:
"(aa) "Annual Incentive Plan" means a plan providing for an annual bonus or incentive, in addition to Base Pay, made or to be made in regard to services rendered to the Company or a Subsidiary, or any successor thereto. "Annual Incentive Plan" does not include any Long-Term Incentive Plan or any stock option, stock appreciation, stock purchase, restricted stock or similar plan, program, arrangement or grant, whether or not provided under an arrangement described in the preceding sentence."
3. A new defined term "Long-Term Incentive Plan" is hereby inserted after the definition of "Incumbent Directors" in Section 1 of the Agreement as a new Sub-section (ii) as follows:
"(ii) "Long-Term Incentive Plan" means the Albertson's, Inc. 2004 Long-Term Incentive Plan and any other multi-year or multi-performance period cash bonus or cash incentive plan that provides incentive compensation payable in cash in regard to services rendered to the Company or a Subsidiary or any successor thereto. "Long-Term Incentive Plan" does not include any Annual Incentive Plan or any stock option, stock appreciation, stock purchase, restricted stock or similar plan, program, arrangement or grant, whether or not provided under an arrangement described in the preceding sentence."
4. The phrase "or any Subsidiary" is hereby added to the end of the definition of "Welfare Benefits" in Section 1(p) of the Agreement.
5. Sub-section (a) of Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
"(a) If, following the occurrence of a Change in Control, the Company or a Subsidiary terminates the Executive's employment during the Severance Period other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or if the Executive terminates employment pursuant to Section 3(b), provided that the Executive executes a release substantially in the form typically executed by senior executives of the Company in connection with employment terminations prior to the Change in Control, the Company will pay to the Executive the lump sum amounts described in Annex A within five business days after the Termination Date and will continue to provide to the Executive the benefits described on Annex A for the periods described therein; provided, however, that if any lump sum payment constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amounts described in Annex A upon the earlier of (A) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (B) the Executive's death."
6. Sub-section (c) of Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
"(c) Unless otherwise expressly provided by the applicable Annual Incentive Plan, after the occurrence of a Change in Control, the Company will pay in cash to the Executive a lump sum amount equal to the value of the Executive's annual bonus for the performance period that includes the date on which the Change in Control occurred, disregarding any applicable vesting requirements; provided that such amount will be equal to the product of (i) the target bonus percentage under the applicable Annual Incentive Plan in effect immediately prior to the Change in Control times (ii) Base Pay, but prorated to base payment only on the portion of the Executive's service that had elapsed during the applicable performance period through the Change in Control. Any such payment will reduced by any interim annual bonus payments made under the Annual Incentive Plan during the applicable performance period and will be made within five business days after the Change in Control; provided, however, that if this lump sum payment constitutes a "deferral of compensation" under Section 409A of the Code, the Executive will receive payment of the lump sum amounts described in this Sub-section (c) upon the earlier of (A) six months following the Executive's "separation from service" with the Company (as such phrase is defined in Section 409A of the Code) or (B) the Executive's death."
7. Paragraph 1 of Annex A of the Agreement is hereby deleted in its entirety and replaced with the following:
"(1) A lump sum payment in an amount equal to one times the sum of (A) Base Pay (at the highest rate in effect for any period within three years prior to the Termination Date), plus (B) the "target annual bonus amount" (which, for this purpose, means the product of the Executive's target bonus percentage under the applicable Annual Incentive Plan in effect immediately prior to the Change in Control times Base Pay)."
8. Paragraphs 2 through 4 of Annex A to the Agreement are hereby deleted in their entirety and replaced with the following:
"(2) For a period of 12 months following the Termination Date (the
"Continuation Period"), the Company will arrange to provide the Executive with
Welfare Benefits substantially similar to those that the Executive was receiving
or entitled to receive immediately prior to the Termination Date (or, if
greater, immediately prior to the reduction, termination or denial described in
Section 1(g)(ii)). In the case of group health plan coverage, the Continuation
Period shall be considered to be a period during which the Executive shall be
eligible for continuation coverage under Section 4980B of the Code, and the
Company shall reimburse the Executive for the amount of the premiums for such
continuation coverage that exceeds the amount that the Executive paid for
participation in such group health plans prior to the Termination Date. The
Executive and the Executive's dependents shall also be eligible for continuation
coverage under the Company's group health plans pursuant to Section 4980B of the
Code following the Continuation Period for such period of time as is required by
Section 4980B of the Code. In addition, the Executive (and the Executive's
dependents) will be permitted to continue coverage under the Company's group
health plans following the end of the period described in the preceding sentence
(as if the end of such period was the termination of the Executive's employment
with the Company) on the same basis (including with respect to cost and length
of continued coverage, but measuring length of coverage from the end of the
Continuation Period) that other employees of the Company who are not parties to
agreements similar to this Agreement (and their dependents) are permitted to
continue coverage under the Company's group health plans under Section 4980B of
the Code following a "qualifying event" with respect to any such employee or
dependent. If and to the extent that any benefit described in this Paragraph 2
is not or cannot be paid or provided under any policy, plan, program or
arrangement of the Company or any Subsidiary, as the case may be, then the
Company will itself pay or provide for the payment to the Executive, the
Executive's dependents and beneficiaries, of such Welfare Benefits along with,
in the case of any benefit described in this Paragraph 2 which is subject to tax
because it is not or cannot be paid or provided under any such policy, plan,
program or arrangement of the Company or any Subsidiary, an additional amount
such that after payment by the Executive, or the Executive's dependents or
beneficiaries, as the case may be, of all taxes so imposed, the recipient
retains an amount equal to such taxes. Notwithstanding the foregoing, (A) if the
Company determines that the provision of Welfare Benefits under this Paragraph 2
is likely to result in negative tax consequences to the Executive, the Company
will use its reasonable best efforts to make other arrangements to provide a
substantially similar benefit to the Executive that does not have such negative
tax consequences, which may include, making a lump sum payment at the earliest
time permitted under Section 409A of the Code, in an amount equal to the
Company's reasonable determination of the present value of any such benefits
that, if provided, would result in negative tax consequences to the Executive
and/or with respect to health plan coverage, providing such benefit through
insurance coverage on the Executive's behalf; and (B) if the benefits to be
provided under this Paragraph 2 are subject to Section 409A of the Code and are
not considered to be "reimbursement arrangements" within the meaning of Proposed
Treasury Regulation 1.409A-1(b)(9)(iv)(A) or any successor provision, the
Company shall pay to the Executive, at the earliest time or times permitted
under Section 409A of the Code, in a lump sum, an amount or amounts equal to the
Company's reasonable determination of the present value of the continuation of
such benefits for 12 months following the Termination Date. For purposes of the
calculation of service or age to determine the
Executive's eligibility for benefits under any life insurance plan or policy,
the Executive shall be considered to have remained actively employed on a
full-time basis through the end of the 12th month following the Termination
Date. If (i) upon the Termination Date, the Executive is not eligible for
retiree medical benefits under the Company's retiree medical plan and (ii) the
Executive would be eligible for retiree medical benefits under the Company's
retiree medical plan if the Executive was considered to have remained employed
on a full-time basis through the end of the 12th month following the Termination
Date, then the Company will make arrangements to provide the Executive and the
Executive's eligible dependents with benefits substantially similar to the
retiree medical benefits provided under the Company's retiree medical benefit
plan, which may include providing such benefits through insurance coverage on
the Executive's behalf. Without otherwise limiting the purposes or effect of
Section 6 or this Paragraph 2, if the Executive is receiving Welfare Benefits
pursuant to this Paragraph 2, such Welfare Benefits will be reduced to the
extent comparable welfare benefits are actually received by the Executive from
another employer during the Continuation Period following the Executive's
Termination Date, and any such benefits actually received by the Executive will
be reported by the Executive to the Company.
(3) Outplacement services by a firm selected by the Executive, at the expense of the Company in an amount up to $10,000; provided, however, that all such outplacement services must be completed, and all payments by the Company must be made, by December 31 of the second calendar year following the calendar year in which the Termination Date occurs.
(4) If the Executive was relocated at the request of the Company (including but not limited to as a result of initial hire) within five years of the Executive's Termination Date, a lump sum payment, equal in value to the reimbursement of relocation expenses, which the parties agree is $50,000, payable at the earliest time permitted under Section 409A of the Code."
9. The following new Section 18 is hereby added to the Agreement:
"18. Section 409A of the Code.
(a) To the extent applicable, it is intended that this Agreement comply
with the provisions of Section 409A of the Code. This Agreement shall be
administered in a manner consistent with this intent, and any provision that
would cause the Agreement to fail to satisfy Section 409A of the Code shall have
no force and effect unless and until such provision is amended to comply with
Section 409A of the Code (which amendment may be retroactive to the extent
permitted by Section 409A of the Code and may be made by the Company without the
consent of the Executive). Any amendment to the timing and receipt of any
payment or benefit provided hereunder shall be effected in a manner that is
intended to be in compliance with Section 409A of the Code. Any reference in
this Agreement to Section 409A of the Code will also include any proposed,
temporary or final regulation, or any other guidance, promulgated with respect
to such section by the U.S. Department of the Treasury or the Internal Revenue
Service.
(b) To the extent that any payment required to be made under this Agreement is delayed in order to avoid negative tax consequences under Section 409A of the Code, the
Company will pay interest on the amount of such payment during the time that such payment is delayed at an annualized rate of interest equal to 6.2%."
10. Except as amended herein, the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.
ALBERTSON'S, INC.
Exhibit 10.47.01
AMENDMENT NO. 1
TO THE
ALBERTSONS
LONG-TERM INCENTIVE PLAN
This Amendment is made by Albertson's, Inc., a Delaware corporation (the "Company" or the "Employer").
RECITALS:
A. The Company has established the Long-Term Incentive Plan, effective February 1, 2003 (the "Plan");
B. The Board of Directors of the Company or the Management Development/
Compensation Committee of the Board of Directors of the Company, pursuant to
Section XI of the Plan, retains the right to amend the Plan; and
C. The Company has determined that it is advisable to amend the Plan in the manner hereinafter set forth.
AMENDMENT
The Plan is hereby amended as follows:
1. Section VIII of the Plan is hereby amended by the addition of the following provisions immediately following the end of such Section VIII:
"Notwithstanding anything to the contrary contained in this Plan, if a
Participant's employment with the Company and its subsidiaries is
terminated by the Company or any subsidiary without "Cause" or by the
Participant for "Good Reason" (as such terms are defined in the Company's
form of Change of Control Severance Agreement applicable to executive
officers of the Company) during the two-year period following a Change in
Control, the Participant will be entitled to receive payment of the target
Long-term Incentive Compensation Award for all Award Periods in effect at
the time of such termination of service, prorated based on the ratio of the
number of weeks of participation during such Award Period until the
occurrence of the Change in Control to the aggregate number of weeks in
such Award Period. Payment of the prorated Long-term Incentive Compensation
Awards pursuant to the preceding sentence will be made within five business
days of the Participant's termination of employment; provided, however,
that if this payment would constitute a "deferral of compensation" under
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"),
the Participant will receive such payment upon the earlier of: (A) six
months following the Participant's "separation from service" with the
Company (as such phrase is defined in Section 409A of the Code) or (B) the
Participant's death. If a Participant remains employed with the Company
until the end of the fiscal year in which the Change in Control occurs, the
minimum Long-term Incentive Compensation Award for any such
Participant for any Award Period ending at the close of the fiscal year in which the Change in Control occurs will be no less than such Participant's target Long-term Incentive Compensation Award for such Award Period, prorated on the basis of the ratio of the number of weeks during the Award Period until the occurrence of the Change in Control to the aggregate number of weeks in such Award Period."
IN WITNESS WHEREOF, this instrument has been duly executed by the undersigned on this 26th day of May, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Name: John R. Sims
Title: Executive Vice President &
General Counsel
|
Exhibit 10.48.1
DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
THIS DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT, dated as of _________ (this "Agreement"), is made by and between Albertson's, Inc., a Delaware corporation (the "Company"), and ______________ ("Indemnitee").
RECITALS
A. It is important to the Company to attract and retain as directors and officers the most capable persons reasonably available.
B. Indemnitee is a director and officer of the Company.
C. Both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of companies in today's environment.
D. The Company's Restated Certificate of Incorporation and By-laws (the "Constituent Documents") provide that the Company will indemnify its directors and officers and the Company's By-laws provide that the Company will advance expenses in connection therewith, and Indemnitee's willingness to serve as a director and officer of the Company is based in part on Indemnitee's reliance on such provisions.
E. In recognition of Indemnitee's need for substantial protection against personal liability in order to enhance Indemnitee's continued service to the Company in an effective manner, and Indemnitee's reliance on the aforesaid provisions of the Constituent Documents, and to provide Indemnitee with express contractual indemnification (regardless of, among other things, any amendment to or revocation of such provisions or any change in the composition of the Company's Board of Directors (the "Board") or any acquisition or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancement of Expenses (as defined in Section 1(c)) to Indemnitee as set forth in this Agreement and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers' liability insurance policies.
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:
() "AFFILIATE" has the meaning given to that term in Rule 405 under the Securities Act of 1933, provided, however, that for purposes of this Agreement the Company and its subsidiaries will not be deemed to constitute Affiliates of Indemnitee or the Indemnitee.
() "CLAIM" means any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted, made or conducted by the Company or any other party, including without limitation any governmental entity, that Indemnitee determines might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other.
() "EXPENSES" includes attorneys' and experts' fees, expenses and charges and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim.
() "INDEMNIFIABLE LOSSES" means any and all Expenses, damages, losses, liabilities, judgments, fines, penalties and amounts paid in settlement (including without limitation all interest, assessments and other charges paid or payable in connection with or in respect of any of the foregoing) (collectively, "Losses") relating to, resulting from or arising out of any act or failure to act by the Indemnitee, or his or her status as any person referred to in clause (i) of this sentence, (i) in his or her capacity as a director, officer, employee or agent of the Company, any of its Affiliates or any other entity as to which the indemnitee is or was serving at the request of the Company as a director, officer, employee, member, manager, trustee or agent of another corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise, whether or not for profit and (ii) in respect of any business, transaction or other activity of any entity referred to in clause (i) of this sentence.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify and hold harmless Indemnitee, to the fullest extent permitted by the laws of the State of Delaware in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, against all Indemnifiable Losses relating to, resulting from or arising out of any Claim. The failure by Indemnitee to notify the Company of such Claim will not relieve the Company from any liability hereunder unless, and only to the extent that, the Company did not otherwise learn of the Claim and such failure results in forfeiture by the Company of substantial defenses, rights or insurance coverage. Except as provided in Section 17, however, Indemnitee will not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by Indemnitee, the Company will advance within two business days of such request any and all Expenses to Indemnitee which Indemnitee determines reasonably likely to be payable, provided, however, that Indemnitee will return, without interest, any such advance which remains unspent at the final conclusion of the Claim to which the advance related.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the generality or effect of the foregoing, the Company will indemnify Indemnitee against and, if requested by Indemnitee, will within two business days of such request advance to Indemnitee, any and all attorneys' fees and other Expenses paid or incurred by Indemnitee in connection with any Claim asserted or brought by Indemnitee for (i) indemnification or advance payment of Expenses by the Company under this Agreement or any other agreement or under any provision of the Company's Constituent Documents now or hereafter in effect relating to Claims for Indemnifiable Losses and/or (ii) recovery under any directors' and officers' liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be.
4. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Indemnifiable Loss but not for all of the total amount thereof, the Company will nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Loss or in defense of any issue or matter therein, including without limitation dismissal without prejudice, Indemnitee will be indemnified against all Expenses incurred in connection therewith. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, there will be a presumption that Indemnitee is so entitled, which presumption the Company may overcome only by its adducing clear and convincing evidence to the contrary.
5. NO OTHER PRESUMPTION. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
6. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will be in addition to any other rights Indemnitee may have under the Constituent Documents, or the substantive laws of the Company's jurisdiction of incorporation, any other contract or otherwise, including specifically the Employment Agreement between the Company and Indemnitee dated April 23, 2001 and amended July 19, 2001 (collectively, "Other Indemnity Provisions"); provided, however, that (i) to the extent that Indemnitee otherwise would have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be deemed to have such greater right hereunder and (ii) to the extent that any change is made to any Other Indemnity Provision which permits any greater right to indemnification than that provided under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect of which would be to deny, diminish or encumber Indemnitee's right to indemnification under this Agreement or any Other Indemnity Provision.
7. LIABILITY INSURANCE AND FUNDING. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee will be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any director or officer of the Company. The Company may, but will not be required to, create a trust fund, grant a security interest or use other means, including without limitation a letter of credit, to ensure the payment of such amounts as may be necessary to satisfy its obligations to indemnify and advance expenses pursuant to this Agreement.
8. SUBROGATION. In the event of payment under this Agreement, the Company will be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee's successors). The Indemnitee will execute all papers reasonably required to evidence such rights of recovery (all of Indemnitee's reasonable Expenses, including attorneys' fees and charges, related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Company).
9. NO DUPLICATION OF PAYMENTS. The Company will not be liable under this Agreement to make any payment in connection with any Indemnifiable Loss made against Indemnitee to the extent Indemnitee has otherwise actually received payment (net of Expenses incurred in connection therewith) under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise of the amounts otherwise indemnifiable hereunder.
10. DEFENSE OF CLAIMS. The Company will be entitled to participate in the defense of any Claim or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee, provided that in the event that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (ii) the named parties in any such Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (iii) any such representation by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Claim) at the Company's expense. The Company will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Claim.
11. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to Indemnitee and his or her counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any person acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the "Company" for purposes of this Agreement), but will not otherwise be assignable or delegatable by the Company.
() This Agreement will inure to the benefit of and be enforceable by the Indemnitee's personal or legal representatives, executors, administrators, successors, heirs, distributees, legatees and other successors.
() This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign or delegate this Agreement
or any rights or obligations hereunder except as expressly provided in Sections
11(a) and 11(b). Without limiting the generality or effect of the foregoing,
Indemnitee's right to receive payments hereunder will not be assignable, whether
by pledge, creation of a security interest or otherwise, other than by a
transfer by the Indemnitee's will or by the laws of descent and distribution,
and, in the event of any attempted assignment or transfer contrary to this
Section 11(c), the Company will have no liability to pay any amount so attempted
to be assigned or transferred.
12. NOTICES. For all purposes of this Agreement, all communications, including without limitation notices, consents, requests or approvals, required or permitted to be given hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid or one business day after having been sent for next-day delivery by a nationally recognized overnight courier service, addressed to the Company (to the attention of the Secretary of the Company) and to the Indemnitee at the addresses shown on the signature page hereto, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.
13. GOVERNING LAW. The validity, interpretation, construction and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware, without giving effect to the principles of conflict of laws of such State. Each party consents to non-exclusive jurisdiction of any Delaware state or federal court or any court in any other jurisdiction in which a Claim is commenced by a third person for purposes of any action, suit or proceeding hereunder, waives any objection to venue therein or any defense based on forum non conveniens or similar theories and agrees that service of process may be effected in any such action, suit or proceeding by notice given in accordance with Section 12.
14. VALIDITY. If any provision of this Agreement or the application of any provision hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal.
15. MISCELLANEOUS. No provision of this Agreement may be waived, modified or discharged unless such waiver, modification or discharge is agreed to in writing signed by Indemnitee and the Company. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party that are not set forth expressly in this Agreement. References to Sections are to references to Sections of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same agreement.
17. LEGAL FEES AND EXPENSES. It is the intent of the Company that the Indemnitee not be required to incur legal fees and or other Expenses associated with the interpretation, enforcement or defense of Indemnitee's rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. Accordingly, without limiting the generality or effect of
any other provision hereof, if it should appear to the Indemnitee that the
Company has failed to comply with any of its obligations under this Agreement or
in the event that the Company or any other person takes or threatens to take any
action to declare this Agreement void or unenforceable, or institutes any
litigation or other action or proceeding designed to deny, or to recover from,
the Indemnitee the benefits provided or intended to be provided to the
Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from
time to time to retain counsel of Indemnitee's choice, at the expense of the
Company as hereafter provided, to advise and represent the Indemnitee in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Indemnitee's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Indemnitee agree that a confidential relationship
shall exist between the Indemnitee and such counsel. Without respect to whether
the Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any
and all attorneys' and related fees and expenses incurred by the Indemnitee in
connection with any of the foregoing.
18. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement will be interpreted in favor of, or against, either of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof.
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized representative to execute this Agreement as of the date first above written.
ALBERTSON'S, INC.
250 Parkcenter Boulevard
Boise, Idaho 83706
[INDEMNITEE]
Exhibit 10.49
OFFICER INDEMNIFICATION AGREEMENT
THIS OFFICER INDEMNIFICATION AGREEMENT, dated as of _____________ (this "Agreement"), is made by and between Albertson's, Inc., a Delaware corporation (the "Company"), and the undersigned ("Indemnitee").
RECITALS
A. It is important to the Company to attract and retain as officers the most capable persons reasonably available.
B. Indemnitee is an officer of the Company.
C. Both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against officers of companies in today's environment.
D. The Company's Restated Certificate of Incorporation and By-laws (the "Constituent Documents") provide that the Company will indemnify its officers and the Company's By-laws provide that the Company will advance expenses in connection therewith, and Indemnitee's willingness to serve as an officer of the Company is based in part on Indemnitee's reliance on such provisions.
E. In recognition of Indemnitee's need for substantial protection against personal liability in order to enhance Indemnitee's continued service to the Company in an effective manner, and Indemnitee's reliance on the aforesaid provisions of the Constituent Documents, and to provide Indemnitee with express contractual indemnification (regardless of, among other things, any amendment to or revocation of such provisions or any change in the composition of the Company's Board of Directors (the "Board") or any acquisition or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancement of Expenses (as defined in Section 1(c)) to Indemnitee as set forth in this Agreement and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company's directors' and officers' liability insurance policies.
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:
(a) "AFFILIATE" has the meaning given to that term in Rule 405 under the Securities Act of 1933, provided, however, that for purposes of this Agreement the Company and its subsidiaries will not be deemed to constitute Affiliates of Indemnitee or the Indemnitee.
(b) "CLAIM" means any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted, made or conducted by the Company or any other party, including without limitation any governmental entity, that Indemnitee determines might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other.
(c) "EXPENSES" includes attorneys' and experts' fees, expenses and charges and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses, damages, losses, liabilities, judgments, fines, penalties and amounts paid in settlement (including without limitation all interest, assessments and other charges paid or payable in connection with or in respect of any of the foregoing) (collectively, "Losses") relating to, resulting from or arising out of any act or failure to act by the Indemnitee, or his or her status as any person referred to in clause (i) of this sentence, (i) in his or her capacity as a director, officer, employee or agent of the Company, any of its Affiliates or any other entity as to which the indemnitee is or was serving at the request of the Company as a director, officer, employee, member, manager, trustee or agent of another corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise, whether or not for profit and (ii) in respect of any business, transaction or other activity of any entity referred to in clause (i) of this sentence.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify and hold harmless Indemnitee, to the fullest extent permitted by the laws of the State of Delaware in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, against all Indemnifiable Losses relating to, resulting from or arising out of any Claim. The failure by Indemnitee to notify the Company of such Claim will not relieve the Company from any liability hereunder unless, and only to the extent that, the Company did not otherwise learn of the Claim and such failure results in forfeiture by the Company of substantial defenses, rights or insurance coverage. Except as provided in Section 17, however, Indemnitee will not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by Indemnitee, the Company will advance within two business days of such request any and all Expenses to Indemnitee which Indemnitee determines reasonably likely to be payable, provided, however, that Indemnitee will return, without interest, any such advance which remains unspent at the final conclusion of the Claim to which the advance related.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the generality or effect of the foregoing, the Company will indemnify Indemnitee against and, if requested by Indemnitee, will within two business days of such request advance to Indemnitee, any and all attorneys' fees and other Expenses paid or incurred by Indemnitee in connection with any Claim asserted or brought by Indemnitee for (i) indemnification or advance payment of Expenses by the Company under this Agreement or any other agreement or under any provision of the Company's Constituent Documents now or hereafter in effect relating to Claims for Indemnifiable Losses and/or (ii) recovery under any directors' and officers' liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be.
4. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Indemnifiable Loss but not for all of the total amount thereof, the Company will nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Loss or in defense of any issue or matter therein, including without limitation dismissal without prejudice, Indemnitee will be indemnified against all Expenses incurred in connection therewith. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, there will be a presumption that Indemnitee is so entitled, which presumption the Company may overcome only by its adducing clear and convincing evidence to the contrary.
5. NO OTHER PRESUMPTION. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.
6. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will be in addition to any other rights Indemnitee may have under the Constituent Documents, or the substantive laws of the Company's jurisdiction of incorporation, any other contract or otherwise (collectively, "Other Indemnity Provisions"); provided, however, that (i) to the extent that Indemnitee otherwise would have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be deemed to have such greater right hereunder and (ii) to the extent that any change is made to any Other Indemnity Provision which permits any greater right to indemnification than that provided under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect of which would be to deny, diminish or encumber Indemnitee's right to indemnification under this Agreement or any Other Indemnity Provision.
7. LIABILITY INSURANCE AND FUNDING. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee will be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any officer of the Company. The Company may, but will not be required to, create a trust fund, grant a security interest or use other means, including without limitation a letter of credit, to ensure the payment of such amounts as may be necessary to satisfy its obligations to indemnify and advance expenses pursuant to this Agreement.
8. SUBROGATION. In the event of payment under this Agreement, the Company will be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee's successors). The Indemnitee will execute all papers reasonably required to evidence such rights or recovery (all of Indemnitee's reasonable Expenses, including attorneys' fees and charges, related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Company).
9. NO DUPLICATION OF PAYMENTS. The Company will not be liable under this Agreement to make any payment in connection with any Indemnifiable Loss made against
Indemnitee to the extent Indemnitee has otherwise actually received payment (net of Expenses incurred in connection therewith) under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise of the amounts otherwise indemnifiable hereunder.
10. DEFENSE OF CLAIMS. The Company will be entitled to participate in the defense of any Claim or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee, provided that in the event that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (ii) the named parties in any such Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (iii) any such representation by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Claim) at the Company's expense. The Company will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Claim.
11. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to Indemnitee and his or her counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any person acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the "Company" for purposes of this Agreement), but will not otherwise be assignable or delegatable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by the Indemnitee's personal or legal representatives, executors, administrators, successors, heirs, distributees, legatees and other successors.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign or delegate this Agreement
or any rights or obligations hereunder except as expressly provided in Sections
11(a) and 11(b). Without limiting the generality or effect of the foregoing,
Indemnitee's right to receive payments hereunder will not be assignable, whether
by pledge, creation of a security interest or otherwise, other than by a
transfer by the Indemnitee's will or by the laws of descent and distribution,
and, in the event of any attempted assignment or transfer contrary to this
Section 11(c), the Company will have no liability to pay any amount so attempted
to be assigned or transferred.
12. NOTICES. For all purposes of this Agreement, all communications, including without limitation notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid or one business day after having been sent for next-day delivery by a nationally recognized overnight courier service, addressed to the Company (to the attention of the Secretary of the Company) and to the Indemnitee at the addresses shown on the signature page hereto, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.
13. GOVERNING LAW. The validity, interpretation, construction and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware, without giving effect to the principles of conflict of laws of such State. Each party consents to non-exclusive jurisdiction of any Delaware state or federal court or any court in any other jurisdiction in which a Claim is commenced by a third person for purposes of any action, suit or proceeding hereunder, waives any objection to venue therein or any defense based on forum non conveniens or similar theories and agrees that service of process may be effected in any such action, suit or proceeding by notice given in accordance with Section 12.
14. VALIDITY. If any provision of this Agreement or the application of any provision hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal.
15. MISCELLANEOUS. No provision of this Agreement may be waived, modified or discharged unless such waiver, modification or discharge is agreed to in writing signed by Indemnitee and the Company. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party that are not set forth expressly in this Agreement. References to Sections are to references to Sections of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same agreement.
17. LEGAL FEES AND EXPENSES. It is the intent of the Company that the Indemnitee not be required to incur legal fees and or other Expenses associated with the interpretation, enforcement or defense of Indemnitee's rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. Accordingly, without limiting the generality or effect of any other provision hereof, if it should appear to the Indemnitee that the Company has failed to comply with any of its obligations under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from time to time to retain counsel of Indemnitee's choice, at the expense of the Company as hereafter provided, to advise and represent the Indemnitee in connection with any such interpretation, enforcement or defense, including without limitation the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer, stockholder or other person affiliated with the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to the Indemnitee's entering into an attorney-client relationship with such counsel, and in that connection the Company and the Indemnitee agree that a confidential relationship shall exist between the Indemnitee and such counsel. Without respect to whether the Indemnitee prevails, in whole or in part, in connection with any of the foregoing, the Company will pay and be solely financially responsible for any and all attorneys' and related fees and expenses incurred by the Indemnitee in connection with any of the foregoing.
18. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement will be interpreted in favor of, or against, either of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof.
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized representative to execute this Agreement as of the date first above written.
ALBERTSON'S, INC.
250 Parkcenter Boulevard
Boise, Idaho 83706
Exhibit 10.62.1
AMENDMENT NO. 1
TO THE
ALBERTSON'S, INC.
CHANGE IN CONTROL SEVERANCE BENEFIT TRUST
This Amendment is made by Albertson's, Inc., a Delaware corporation (the "Company" or the "Employer").
RECITALS:
A. The Company has established the Change in Control Severance Benefit Trust, pursuant to a Trust Agreement, dated August 1, 2004 (the "Trust Agreement");
B. The Company, pursuant to Section 6.01 of the Trust Agreement, retains the right to amend the Trust Agreement;
C. The Company hereby certifies to the Trustee under the Trust Agreement that the Trust has not become irrevocable; and
D. The Company has determined that it is advisable to amend the Trust Agreement in the manner hereinafter set forth.
AMENDMENT
The Trust Agreement is hereby amended as follows:
1. The phrase "Management Compensation Group, Northwest, LLC, a Delaware limited liability company" is hereby replaced with "a committee comprised of the individuals set forth on Exhibit "E" to this Agreement" in the opening paragraph to the Trust Agreement.
2. The phrase "the Employer" wherever it appears in the definition of "Change in Control" is hereby replaced with "Albertson's, Inc."
3. The definition of "Employer" is hereby replaced with the following:
""Employer" shall mean Albertson's, Inc., a corporation organized and existing under the laws of the State of Delaware, or after the Effective Time (as such term is defined in the Agreement and Plan of Merger, dated January 22, 2006, by and among Albertson's, Inc., New Aloha Corporation, New Diamond Sub, Inc., SUPERVALU INC., and Emerald Acquisition Sub, Inc.), SUPERVALU INC., or its successor or successors."
4. The definition of "Incumbent Directors" is hereby replaced with the following:
""Incumbent Directors" shall mean the individuals who, as of the date hereof, are directors of Albertson's, Inc. and any individual becoming a director subsequent to the date hereof whose
election, nomination for election by Albertson's, Inc.'s shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of Albertson's, Inc. in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual's election or appointment to the board of directors of Albertson's, Inc. occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the board of directors of Albertson's, Inc."
5. The last sentence of the definition of Interest Crediting Rate is hereby deleted and replaced by the following:
"The prime rate in effect on the first day of a calendar month shall be used as the prime rate for the entire month."
6. The term "Potential Change in Control" and its corresponding definition is hereby deleted in its entirety.
7. The definition of "Retention Amount" is hereby amended to read "Retention Amount shall mean $75,000."
8. The phrase "the Employer" where it appears in the definition of "Subsidiary" is hereby replaced with "Albertson's, Inc."
9. Section 2.02 is hereby amended by changing the reference to "Section 4.17(d)" in the third sentence thereof to "Section 4.18(d)".
10. Section 2.03 of the Trust Agreement is hereby amended by (a) replacing "Management Compensation Group, Northwest, LLC, a Delaware limited liability company" with "a committee comprised of the individuals set forth on Exhibit "E" to this Agreement, which committee has certified that it is capable of performing the duties of Recordkeeper hereunder" and (b) replacing the last sentence of such Section with the following: "Action by such committee shall be by written certificate signed by a majority of its members. Any member of such committee may resign after providing not less than 30 days' notice in writing to the other members of the Recordkeeper and to the Trustee. In the event of the resignation, death or incapacity of a member of the Recordkeeper, the remaining members may (but need not) designate a replacement member, who shall become a member upon accepting such designation in writing, with a copy to the Employer and the Trustee."
11. Section 3.01(b) of the Trust Agreement is hereby amended to read as follows:
"(b) Within 30 days following the occurrence of a Change in Control, if the then Value of the Trust Fund is less than $50 million, the Employer shall contribute cash to the Trust in an amount such that, taking into account such contribution and the then Value of the Trust Fund, the total Value of the Trust Fund equals $50 million; provided, however, that if,
following a Change in Control but prior to such contribution, the Employer makes any payment required under a Participant's Agreement from assets outside the Trust, "$50 million" in this sentence shall be reduced by the lesser of (i) the amount of such payment or (ii) $35 million. In determining whether the Employer has made any payment from assets outside the Trust, the Trustee shall rely on a certification from the Administrator that the Employer has made such payments."
12. Section 3.03(a) of the Trust Agreement is hereby amended by deleting the phrase "or Potential Change in Control" where it appears therein.
13. Section 3.04 of the Trust Agreement is hereby amended by (a) changing the reference to "Section 4.06" in the first sentence thereof to "Section 4.07"; (b) deleting the remainder of the Section following the first sentence and (c) by changing the title of such Section to "Contributions Irrevocable".
14. Section 3.05 of the Trust Agreement is hereby amended by deleting the phrase "or a Potential Change in Control" where it appears therein.
15. The fourth sentence of Section 4.05(a) of the Trust Agreement is hereby deleted and replaced with the following:
"Upon the receipt of such certified statement and subject to Section 4.07, the Trustee shall liquidate such Trust assets as may be available and necessary to pay or provide the benefits set forth in such certification and shall make or commence cash distributions from the Trust Fund in accordance therewith to the person or persons so indicated and to the appropriate taxing authorities with respect to taxes required to be withheld; provided however that the Trustee shall not be required to make any distribution which would reduce the value of the assets of the Trust Fund to less than the Retention Amount.. On a quarterly basis, based on the most recent certification by the Recordkeeper of the Value of Total Accrued Benefits received by the Trustee, the Trustee shall determine whether the Value of the Trust Fund is less than the Minimum Funding Obligation plus the Retention Amount. If the Value of the Trust Fund is less than the Minimum Funding Obligation plus the Retention Amount, the Trustee shall promptly inform the Employer of that fact and the Employer shall promptly contribute additional cash to the Trust such that the Value of the Trust Fund is no longer less than the Minimum Funding Obligation plus the Retention Amount. The Employer shall furnish the Trustee with the applicable rates for tax withholding and the Trustee shall be entitled to rely on such information."
16. Section 4.04 of the Trust Agreement is amended to read as follows:
"Trustee's preferred money market fund for its automatic cash sweep is currently the AIM Short-Term Investment Company Liquid Assets Portfolio. AIM, the manager of this portfolio, is an affiliate of Trustee. Employer acknowledges and agrees that the Trust is responsible for the fund's fees and expenses on any cash invested in any such affiliated fund (in the same manner and to the same extent as any other holder of shares in such fund) in addition to Trustee's compensation set forth in Section 4.08."
17. Section 4.05(a) of the Trust Agreement is amended by adding the phrase "as may be reasonably acceptable to the Trustee" after the phrase "Exhibit C" in the first sentence.
18. Section 4.05(a) of the Trust Agreement is hereby amended by adding the following immediately after the last sentence of such Section:
"For purposes of this Trust, "Minimum Funding Obligation" shall mean the lesser of (1) $15 million or (2) 1.3 times the then Value of Total Accrued Benefits. In addition to the other requirements of the Recordkeeper set forth in this Section, the Recordkeeper shall provide the Trustee with the Value of the Total Accrued Benefits as promptly as reasonably practicable following the end of each calendar quarter."
19. Section 4.05(b) of the Trust Agreement is hereby amended by replacing the phrase "Section 4.05(b)" with the phrase "Section 4.05" in the last sentence thereof.
20. Section 4.05(c) of the Trust Agreement is hereby amended to read as follows:
"If, following a Change in Control, the payments to be made from the Trust to a Participant exceed the Value of the Trust Fund plus the Retention Amount, and if the Employer does not otherwise provide the accrued benefits to the Participant outside of the Trust, the unpaid benefits shall constitute a Deficiency Amount, and shall accrue interest from the date payment would otherwise have been made, until paid, at the Interest Crediting Rate. Employer shall pay any Deficiency Amounts as soon as practicable from assets outside the Trust. In determining whether the Employer has made any payment from assets outside the Trust, the Trustee shall rely on a certification from the Administrator that the Employer has made such payments."
21. The second sentence of Section 4.09 of the Trust Agreement is hereby deleted and replaced with the following:
"Without limiting the generality of the foregoing, the Trustee shall have no responsibility, obligation or duty (a) with respect to any action required by any Agreement or this Trust to be taken by the Employer, the Recordkeeper, the Insurance Adviser, the Real Estate Adviser or any other Expert, any employee, Participant, beneficiary or any other person and (b) to enforce any of the Employer's obligations to make contributions to the Trust. The Recordkeeper shall have no responsibility, obligation or duty with respect to any action required by any Agreement or this Trust to be taken by the Employer, the Trustee, any employee, participant, beneficiary or any other person."
22. Section 4.10 of the Trust Agreement is hereby amended by replacing the phrase "15 days" in the first sentence with the phrase "30 days."
23. Section 4.15(g) of the Trust Agreement is hereby amended by deleting the following from such Section: "which person(s) must be independent from the Employer and must be a certified consulting actuary or firm of actuaries or certified public accountant or firm of certified public accountants" where it appears (in two places) therein and substituting in each
of such places "which person(s) must certify that it/they are capable of performing the duties of Recordkeeper hereunder".
24. Section 4.17 of the Trust Agreement is hereby amended by (1) deleting the phrase "Potential Change in Control or a" wherever it appears therein, (2) changing the word "terms" in the first sentence thereof to "term", and (3) adding the following at the end thereof:
"; provided, however, that no notice from the Trustee is required if the Employer has notified Participants of the occurrence of a Change in Control or has otherwise publicly disclosed in a press release or filing with the Securities and Exchange Commission that a Change in Control has occurred."
25. The first sentence of Section 6.02 of the Trust Agreement is hereby amended to read as follows:
"Upon the occurrence of a Change in Control, the Trust shall automatically
be and become irrevocable without any further act or deed by any person or
entity; provided that the Trust shall nonetheless terminate upon the
earliest of (a) the payment of all amounts due Participants under the
Agreements, as determined by the Recordkeeper, (b) the Administrator
provides its express written consent to the termination of the Trust, and
(c) the later of (i)the first date on which the Minimum Funding Obligation
does not exceed $1 million and (ii) the sixth anniversary of the first date
on which a Change in Control occurs."
26. Section 6.02 of the Trust Agreement is hereby amended by changing the phrase "Section 4.16" in the third sentence thereof to "Section 4.17".
27. Section 7.07 of the Trust Agreement is hereby amended to read with regard to the addresses set forth therein as follows:
If to Employer prior to the Effective
Time, to: Albertson's, Inc.
250 Park Center Blvd.
Boise, Idaho 83726
Attention: Corporate Secretary
If to Employer after the Effective SUPERVALU Inc.
Time, to: 11840 Valley View Road
Eden Prairie, Minnesota 55344
Attention: Corporate Secretary
If to Trustee, to: Atlantic Trust Company, N.A.
1330 Avenue of the Americas
30th Floor
New York, New York 10019
Attention: Chief Fiduciary
Officer - NY Office
and
Hughes, Hubbard and Reed LLP
One Battery Park Plaza
New York, New York 10004-1482
Attention: Javier Hernandez, Esq.
If to Recordkeeper, to: RECORDKEEPER FOR ALBERTSON'S,
INC. CHANGE IN CONTROL
SEVERANCE BENEFIT TRUST
C/O SUPERVALU INC.
11840 Valley View Road
Eden Prairie, Minnesota 55344
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28. Exhibit "D" to the Trust Agreement is hereby replaced with the names of the following individuals: Mike Plecki, Dave Pylipow and Kevin Tripp
29. A new Exhibit "E" is hereby added to the end of the Trust Agreement, as attached to this Amendment.
IN WITNESS WHEREOF, this instrument has been duly executed by the undersigned and has been delivered to the Trustee of the Trust on this 31st day of May, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Name: John R. Sims
----------------------------------
Title: Executive Vice President &
General Counsel
---------------------------------
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EXHIBIT "E"
LIST OF MEMBERS OF THE RECORDKEEPER
1. Mike Plecki
2. Dave Pylipow
3. Kevin Tripp
Exhibit 10.64
ALBERTSON'S, INC.
RESTRICTED STOCK UNITS TRUST
.
.
.
ALBERTSON'S, INC.
RESTRICTED STOCK UNITS TRUST
ARTICLE I DEFINITIONS................................................ 2
ARTICLE II NAME AND ESTABLISHMENT OF TRUST............................ 4
Section 2.1 Name and Purpose....................................... 4
Section 2.2 Appointment of Trustee; Acceptance..................... 4
Section 2.3 Appointment of Recordkeeper, Acceptance................ 4
Section 2.4 Grantor Trust.......................................... 4
ARTICLE III PROVISIONS RELATING TO THE EMPLOYER........................ 4
Section 3.1 Contributions.......................................... 4
Section 3.2 Contributions Irrevocable.............................. 5
Section 3.3 Certain Employer Notices............................... 5
Section 3.4 Action by Employer..................................... 5
Section 3.5 Employer Liability..................................... 5
ARTICLE IV PROVISIONS RELATING TO TRUSTEE AND RECORDKEEPER............ 5
Section 4.1 Receiving Contributions................................ 5
Section 4.2 Management and Control of Trust Assets................. 5
Section 4.3 Investment of Trust Assets............................. 5
Section 4.4 Distribution of Trust Assets; Limitations.............. 6
Section 4.5 Protection of Trustee.................................. 7
Section 4.6 Creditors of Employer.................................. 7
Section 4.7 Compensation and Expenses.............................. 7
Section 4.8 Limitation of Administrative Duties.................... 8
Section 4.9 Accountings............................................ 8
Section 4.10 General Management Powers.............................. 8
Section 4.11 Liability for Breach of Fiduciary Duty................. 10
Section 4.12 Consultation and Indemnification....................... 10
Section 4.13 Resignation and Removal................................ 11
Section 4.14 Duties of the Recordkeeper............................. 13
Section 4.15 Determinations by the Trustee; Notices................. 13
Section 4.16 Rights of Trustee...................................... 14
Section 4.17 Priority of Distribution and Liquidation of
Trust Assets........................................ 14
ARTICLE V GENERAL ADMINISTRATIVE PROVISIONS.......................... 14
Section 5.1 Exchange of Information by the Employer and the
Trustee............................................. 14
Section 5.2 Information to the Recordkeeper and Trustee............ 15
Section 5.3 Mistake of Fact........................................ 15
Section 5.4 Taxes.................................................. 15
Section 5.5 Voting of SUPERVALU INC. Stock......................... 15
Section 5.6 Investment Company Act................................. 16
ARTICLE VI AMENDMENT AND TERMINATION.................................. 16
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TABLE OF CONTENTS
(continued)
PAGE
----
Section 6.1 Right to Amend......................................... 16
Section 6.2 Termination of Trust and Reversion of Assets........... 16
ARTICLE VII MISCELLANEOUS PROVISIONS................................... 17
Section 7.1 Entire Agreement....................................... 17
Section 7.2 Successors............................................. 17
Section 7.3 Headings............................................... 17
Section 7.4 Controlling Law........................................ 17
Section 7.5 Third-Party Inquiries.................................. 17
Section 7.6 Courts; Arbitration.................................... 17
Section 7.7 Addresses For Communications........................... 18
Section 7.8 Waiver of Notice....................................... 19
Section 7.9 Accounting Period...................................... 19
Section 7.10 Interest in the Trust Fund............................. 19
Section 7.11 Counterparts........................................... 19
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ALBERTSON'S, INC. RESTRICTED STOCK UNITS TRUST
THIS TRUST AGREEMENT is made and entered into the ____ day of _____________, 2006 by and between ALBERTSON'S, INC., a Delaware corporation, as grantor, Atlantic Trust Company, N.A., a national trust company, as trustee, and MullinTBG, Inc., as recordkeeper.
WITNESSETH:
WHEREAS, Albertson's, Inc. has granted deferred and deferrable restricted stock units under its Amended and Restated 1995 Stock-Based Incentive Plan and 2004 Equity and Performance Incentive Plan (collectively, the "Plans"); and
WHEREAS, Albertson's, Inc. has entered into an Agreement and Plan of Merger with New Aloha Corporation, New Diamond Sub, Inc., SUPERVALU INC., and Emerald Acquisition Sub Inc., dated as of January 22, 2006 (the "Merger Agreement"), which provides that each restricted stock unit that is outstanding as of immediately prior to the effective time (the "Effective Time") of the merger contemplated by the Merger Agreement, other than restricted stock units granted in January 2006 (the "January 2006 RSUs"), will entitle the holder thereof to receive the Per Share Merger Consideration (as defined in the Merger Agreement); and
WHEREAS, in order to comply with Section 409A of the Code (as defined below), payment for the restricted stock units outstanding as of immediately prior to the Effective Time may have to be delayed until some time after the Effective Time;
WHEREAS, Albertson's, Inc. wishes to establish a grantor trust (the "Trust") for the purpose of accumulating assets to assist it in fulfilling its obligations under the Plans and individual agreements relating to the restricted stock units outstanding as of immediately prior to the Effective Time, other than the January 2006 RSUs (the "RSUs"), to which Trust Albertson's, Inc. shall make contributions in the amounts determined in accordance with the terms of the Plans, the RSUs, the Merger Agreement and this trust agreement; and
WHEREAS, Albertson's, Inc. desires the Trustee to hold and administer all funds and other property contributed by Albertson's, Inc., and the Trustee is willing to hold and administer such funds pursuant to the terms of this trust agreement; and
WHEREAS, Albertson's, Inc. desires that the assets of the Trust shall be available to satisfy the claims of the general creditors of Albertson's, Inc. in case of insolvency or bankruptcy;
NOW, THEREFORE, in consideration of the promises, covenants, agreements, terms, obligations and duties herein set forth, the Trust to be named the "Albertson's, Inc. Restricted Stock Units Trust" is hereby established effective from and after the date first above written, and the parties do hereby covenant and agree, as follows:
ARTICLE I
DEFINITIONS
The following words and phrases are used in this trust agreement and shall have the meaning set forth in this Article unless a different meaning is clearly required by the context:
"Application" shall mean a written application from a Participant or a beneficiary of a deceased Participant received by the Recordkeeper requesting a payment from the Trust by reason of a benefit being due to such Participant or beneficiary under the Plan.
"Board of Directors" shall mean the Board of Directors of the Employer.
"Code" shall mean the Internal Revenue Code of 1986, as from time to time amended. Reference to a section of the Code shall include that section and any comparable section or any future legislation that amends, supplements or supersedes said section.
"Deficiency Amount" shall mean, with respect to each Participant and beneficiary of a deceased Participant, the amount of unpaid benefits, if any, and interest thereon, determined in accordance with Section 4.4(c).
"Effective Time" shall have the meaning set forth in the recitals hereto.
"Employer" shall mean Albertson's, Inc., a corporation organized and existing under the laws of the State of Delaware, or, after the Effective Time, SUPERVALU INC. or its successor or successors.
"Expert" shall mean the Recordkeeper and any consultant, adviser, engineer, accountant, appraiser, actuary or other expert hired or retained by the Trustee to provide advice or to make or assist in making any determination hereunder.
"Expert's Certificate" shall mean a certificate signed by an Expert or, if the Expert is a corporation or partnership, by two of its executive officers or partners.
"Interest Crediting Rate" shall mean an annualized rate of interest equal to the "prime rate" (or, if there is more than one such rate, the highest such rate) as set forth from time to time during the relevant period in the Wall Street Journal "Money Rates" column. The prime rate in effect on the first day of a calendar month shall be used as the prime rate for the entire month.
"Investment Company Act" shall have the meaning set forth in Section 5.5.
"January 2006 RSUs" shall have the meaning set forth in the recitals hereto.
"Majority Participants" shall mean at any time Participants who hold more than 66-2/3% of the RSUs. For purposes of determining "Majority Participants," "Participants" shall include persons then considered Participants under the Plan and beneficiaries of deceased Participants, and the Trustee shall be entitled to rely on the determination of the Recordkeeper as to whether
or not a Participant or beneficiary of a deceased Participant or a group of Participants or beneficiaries of deceased Participants constitute "Majority Participants".
"Merger Agreement" shall have the meaning set forth in the recitals hereto.
"Obligations" shall have the meaning set forth in Section 2.1.
"Opinion of Counsel" shall mean a written opinion from legal counsel acceptable to the Trustee. Such counsel may but need not be legal counsel regularly retained by the Employer or the Trustee.
"Participant" shall mean an individual holding RSUs.
"Plans" shall have the meaning set forth in the recitals hereto.
"Recordkeeper" shall mean the person or persons from time to time serving as recordkeeper with respect to the Trust.
"Retention Amount" shall mean $75,000.00.
"RSUs" shall have the meaning set forth in the recitals hereto.
"Trust" shall mean the trust set forth in and created by this document, and all subsequent amendments thereto.
"Trust Fund" shall mean all assets held by the Trustee under the Trust.
"Trust Year" shall mean the fiscal year of the Employer.
"Trustee" shall mean the person or persons from time to time serving as trustee of the Trust.
"Value of Accrued Benefits" shall mean at any time with respect to a Participant or beneficiary of a deceased Participant an amount equal to the value of his or her benefit under the RSUs, which shall be equal to, for each RSU held by a Participant, the Per Share Merger Consideration plus any earnings accrued on the cash portion of the Per Share Merger Consideration from the Effective Time until the date immediately preceding the date of calculation of such Value.
"Value of the Trust Fund" shall mean at any time an amount equal to the then total of the fair market value of all assets of the Trust Fund, each as determined by the Trustee.
In this agreement the singular includes the plural and the plural the singular; words importing any gender include any other gender; and references to "days" shall mean calendar days, unless otherwise specified.
ARTICLE II
NAME AND ESTABLISHMENT OF TRUST
Section 2.1 Name and Purpose. The name of the Trust shall be the "Albertson's, Inc. Restricted Stock Unit Trust". This Trust is established in accordance with the Merger Agreement (including any Disclosure Letter related thereto) for the purpose of holding, investing and distributing assets as a reserve for the discharge of the Employer's obligations to pay the Per Share Merger Consideration (as defined in the Merger Agreement) to each Participant (or beneficiary of a deceased Participant) for each RSU outstanding at the Effective Time plus any earnings on the cash portion of the Per Share Merger Consideration from the Effective Time until payment (the "Obligations").
Section 2.2 Appointment of Trustee; Acceptance. The Employer hereby appoints Atlantic Trust Company, N.A., a national trust company, as sole Trustee for the Trust. The Trustee hereby accepts the appointment as Trustee under the Trust. In accepting such appointment, the Trustee agrees to act solely as trustee hereunder and not in its individual capacity; and all persons having any claim against the Trustee by reason of the transactions contemplated hereby shall look only to the Trust Fund for payment or satisfaction thereof, except to the extent otherwise provided in Section 4.16(d) hereof.
Section 2.3 Appointment of Recordkeeper, Acceptance. The Employer hereby appoints MullinTBG, Inc., as its Recordkeeper under this Trust. The Recordkeeper hereby accepts the appointment as Recordkeeper under the Trust.
Section 2.4 Grantor Trust. The Trust is intended to be a grantor trust, within the meaning of Section 671 of the Code, and shall be construed accordingly. The Employer, therefore, agrees that all income, deductions and credits of this Trust belong to it as owner for income tax purposes and will be included on the Employer's income tax returns.
ARTICLE III
PROVISIONS RELATING TO THE EMPLOYER
Section 3.1 Contributions. Immediately upon the Effective Time, the Employer shall (a) deliver to the Trustee 1,112,000 shares of SUPERVALU INC. common stock and (b) contribute cash to the trust in an amount equal to $125 million, in order to fund all or a portion of its Obligations; provided, however, that if, upon or within 30 days after the Effective Time the Employer makes any payment required to satisfy the Obligations from assets outside the Trust, the Trustee shall reimburse the Employer with such number of shares of SUPERVALU INC. common stock and cash equal to such payment (and in such event the Trustee shall not be responsible for tax withholding and reporting with respect to such payment). In determining whether the Employer has made any payment of Obligations from assets outside the Trust and the amount of such payment, the Trustee shall rely on a certification from the Employer of the amount paid by the Employer. All Employer contributions and all investments thereof, together with all accumulations, accruals, earnings and income with respect thereto, shall be held by the Trustee in trust hereunder as the Trust Fund.
Section 3.2 Contributions Irrevocable. Subject to Sections 4.6 and 6.2, Employer contributions shall be irrevocable upon the Effective Time.
Section 3.3 Certain Employer Notices. The Employer hereby agrees to give prompt notice to the Trustee and the Recordkeeper of the occurrence of the Effective Time.
Section 3.4 Action by Employer. Whenever the Employer is permitted or required to perform any act hereunder, it shall be done and performed by an officer or other delegate duly authorized by the Employer. At the time of execution of this trust agreement, the Employer shall file with the Trustee and the Recordkeeper a certified list of the names and specimen signatures of any person authorized to act for the Employer. The Employer shall promptly notify the Trustee and the Recordkeeper of the addition or deletion of any person's name to or from such list, respectively. Until receipt of notice that any person is no longer authorized so to act, the Trustee or the Recordkeeper may continue to rely on the authority of the person. All certifications, notices and directions by any such authorized person or persons to the Trustee or the Recordkeeper shall be in writing signed by such person or persons. The Trustee and the Recordkeeper may rely on any such certification, notice or direction purporting to have been signed by or on behalf of such person or persons.
Section 3.5 Employer Liability. Nothing in this trust agreement shall relieve the Employer of its liabilities regarding payment of the RSUs except to the extent such liabilities are met by the application of Trust assets.
ARTICLE IV
PROVISIONS RELATING TO TRUSTEE AND RECORDKEEPER
Section 4.1 Receiving Contributions. The Trustee shall receive and accept contributions from the Employer in accordance with this trust agreement as a reserve for the discharge of the Employer's Obligations to Participants and beneficiaries of deceased Participants entitled to benefits pursuant to the RSUs.
Section 4.2 Management and Control of Trust Assets. The Trustee shall have exclusive authority and discretion to manage and control all assets in the Trust Fund, except as may otherwise be provided herein.
Section 4.3 Investment of Trust Assets. The Trustee shall promptly invest and re-invest the cash portion of the assets of the Trust Fund in
the AIM Government and Agency Portfolio (or a money market fund with similar investments). AIM, the manager of this portfolio, is an affiliate of Trustee. Employer acknowledges and agrees that the Trust is responsible for the fund's fees and expenses on any cash invested in any such affiliated fund (in the same manner and to the same extent as any other holder of shares in such fund) in addition to the Trustee's compensation set forth in this Trust. The shares of SUPERVALU INC. common stock shall at all times remain in the form of SUPERVALU INC. common stock and shall not be liquidated, reinvested or exchanged for other assets, provided that if SUPERVALU INC. common stock is exchanged, converted or otherwise changed into another security by reason of a corporate transaction or similar event, the Trustee shall hold such replacement asset in the Trust Fund.
Section 4.4 Distribution of Trust Assets; Limitations.
(a) At the direction of the Employer to the Recordkeeper prior to the Effective Time or upon the Application of a Participant or beneficiary of a deceased Participant following the Effective Time, the Recordkeeper shall prepare a certification to the Trustee that benefits under the RSUs have become payable, which certification shall be in substantially the form attached hereto as Exhibit "A" as may be reasonably acceptable to the Trustee. Such certification shall include the number of RSUs payable on each payment date, the number of shares and amount of cash to be paid, the terms of payment, and the name, address and social security number of the recipient. The Recordkeeper shall provide a separate certification (with an updated calculation of the cash payable) for each payment date, with the amount payable to each Participant indicated separately. Upon the receipt of such certified statement and subject to Section 4.6, the Trustee shall liquidate such Trust assets as may be available and necessary to pay the benefits set forth in such certification and shall make or commence cash distributions and distributions of SUPERVALU INC. common stock from the Trust Fund in accordance therewith to the person or persons so indicated and to the appropriate taxing authorities with respect to taxes required to be withheld, provided, however, that the Trustee shall not be required to make any distribution which would reduce the value of the cash assets of the Trust Fund described in Section 4.3 to less than the Retention Amount. The Recordkeeper shall also furnish a copy of such certification to the Participant or the beneficiary of a deceased Participant. The Employer shall furnish the Trustee with the applicable rates for tax withholding, and the Trustee shall be entitled to rely on such information. The Trustee shall furnish each Participant or beneficiary of a deceased Participant with the appropriate tax information form evidencing such payment and the amount thereof. The Trustee shall provide the Employer with written confirmation of any payments hereunder within 10 business days after such payments are made or commenced to a Participant or beneficiary of a deceased Participant.
(b) If a Participant is entitled to receive a fractional share of SUPERVALU INC. common stock, the Trustee shall pay to the Participant the cash value of such fractional share from the cash assets in the Trust.
(c) Subject to Section 4.6, the only persons who shall be entitled to payments from this Trust pursuant to this Section 4.4 following the Effective Time shall be Participants and beneficiaries of deceased Participants, and persons who become beneficiaries of such persons. The Trustee shall make distributions pursuant to this Section 4.4 only as directed by the Recordkeeper and shall rely on a certification received from the Recordkeeper for purposes of complying with this Section 4.4.
(d) If payments to be made from the Trust to a Participant plus the Retention Amount exceed the Value of the Trust Fund and if the Employer does not otherwise provide the accrued benefits to the Participant outside of the Trust, the unpaid benefits shall constitute a Deficiency Amount, and the cash portion of the unpaid benefits shall accrue interest from the date payment would otherwise have been made, until paid, at the Interest Crediting Rate. Employer shall pay any Deficiency Amounts as soon as practicable from assets outside the Trust. In determining whether the Employer has made any payment from assets outside the Trust, the Trustee is entitled to rely on a certification from the Employer that the Employer has made such payments.
Section 4.5 Protection of Trustee. The Trustee shall be fully protected in making or refraining from making any payments in accordance with the terms of this trust agreement.
Section 4.6 Creditors of Employer. The Trust Fund shall at all times be subject to the claims of the Employer's general creditors but shall be utilized to satisfy any such claims only in the case of the Employer's bankruptcy or insolvency. The Employer shall be considered "bankrupt" or "insolvent" if the Employer is either unable to pay its debts when due or is subject to a proceeding under the Bankruptcy Code, 11 U.S.C. Section 101, et seq. The Board of Directors and chief executive officer of the Employer are responsible to give written notice to the Trustee and the Recordkeeper of the Employer's bankruptcy or insolvency as soon as practicable following the occurrence of such event. Upon receipt of such notice of the Employer's bankruptcy or insolvency, or in the case of the Trustee's receipt of a written notice from a creditor of the Employer alleging the Employer's bankruptcy or insolvency, the Trustee shall discontinue payments to Participants and beneficiaries of deceased Participants and shall hold the Trust Fund for the benefit of the Employer's general creditors. The Trustee shall resume payments to Participants and beneficiaries of deceased Participants only after it has been notified by the Employer (or has received an Expert's Certificate or Opinion of Counsel stating) that the Employer is no longer bankrupt or insolvent or pursuant to an order of a court of competent jurisdiction. If the Trustee discontinues payments to Participants and beneficiaries of deceased Participants, the first payment following such discontinuance shall include the aggregate of all payments which would have been made to the Participants and beneficiaries of deceased Participants together with interest on the cash portion from the date payment would otherwise have been made, until paid, at the Interest Crediting Rate.
Section 4.7 Compensation and Expenses. The Trustee and the Recordkeeper shall be entitled to receive compensation for services rendered. Such compensation shall be the usual
and customary fees of the Trustee or Recordkeeper in effect from time to time for similar services unless in the case of the Trustee, an amount is agreed upon in writing by the Employer and the Trustee and in the case of the Recordkeeper, the Employer and the Recordkeeper, and shall, unless paid directly by the Employer, be a lien against and paid out of the assets of the Trust Fund, provided, an individual serving as Trustee who receives compensation from the Employer for full-time employment shall not receive additional compensation from the Trust. The Recordkeeper and the Trustee (whether or not the Trustee is a full-time employee of the Employer) shall be reimbursed for any reasonable expenses, including reasonable counsel and Expert fees, incurred by the Recordkeeper or the Trustee in connection with the acceptance or administration of the Trust Fund or Trust and the exercise or performance of any of their respective powers or duties hereunder, and such expenses shall, unless paid directly by the Employer, be a lien against and paid out of the assets of the Trust Fund.
Section 4.8 Limitation of Administrative Duties. Nothing contained in the Merger Agreement (including any Disclosure Letter related thereto), the Plans or the terms of the RSUs, or any other document either expressly or by implication, shall be deemed to impose any responsibilities, obligations or duties on the Trustee or the Recordkeeper other than those set forth herein. Without limiting the generality of the foregoing, the Trustee shall have no responsibility, obligation or duty (a) with respect to any action required by the Merger Agreement (including any Disclosure Letter related thereto), the Plans, the terms of the RSUs, or this Trust to be taken by the Employer, the Recordkeeper, or any other Expert, any employee, Participant, beneficiary or any other person and (b) to enforce any of the Employer's obligations to make contributions to the Trust. The Recordkeeper shall have no responsibility, obligation or duty with respect to any action required by the Merger Agreement (including any Disclosure Letter related thereto), the Plans, the terms of the RSUs or this Trust to be taken by the Employer, the Trustee, any employee, Participant, beneficiary or any other person.
Section 4.9 Accountings. Within 30 days following the close of each Trust Year, the Trustee shall file with the Employer and the Recordkeeper, and with each Participant with respect to each Trust Year ending after the Effective Time, a written statement and accounting setting forth:
(a) A categorized schedule of the assets and liabilities of the Trust Fund, at cost and current value, as of the end of the Trust Year;
(b) A categorized schedule of the receipts, disbursements and other transactions for the Trust Year; and
(c) A description of all assets purchased and sold during the Trust Year.
Such accountings shall be in a form and format usable in preparing and filing returns and reports with the Internal Revenue Service and in accordance with generally accepted accounting principles. Upon receipt of written approval of the accounting from the Employer (or upon the passage of 60 days without written objections having been delivered to the Trustee) such accounting shall be deemed to be approved, and the Trustee shall be released and discharged as to all items, matters and things set forth in such accounting.
Section 4.10 General Management Powers. Subject to Section 4.3, with respect to the Trust Fund the Trustee shall have the following powers, rights and duties in addition to those otherwise vested in the Trustee herein or by law:
(a) To sell, exchange, transfer and otherwise deal with the Trust Fund in such manner, for such consideration and on such terms and conditions as the Trustee shall determine;
(b) To retain in cash so much of the Trust Fund as the Trustee shall from time to time determine and to deposit cash with any depositary;
(c) To register any securities or other property held by it hereunder in its own name or in the name of its nominees with or without the addition of words indicating that such securities are held in a fiduciary capacity, and to hold any securities in bearer form, but the books and records of the Trustee shall at all times show that all such investments are part of the Trust Fund;
(d) To pay all reasonable costs, charges and expenses incurred in the administration of the Trust Fund, including fees for reasonable services rendered to the Trustee by any person, firm or corporation other than the Employer, and all taxes that may be levied or assessed under existing or future laws upon or in respect to the Trust or the Trust Fund or the income thereof;
(e) To employ suitable agents and counsel who may be counsel for the Employer;
(f) To credit and distribute the Trust Fund pursuant to the terms of the trust agreement;
(g) To compromise, contest, arbitrate or abandon claims and demands, all in the Trustee's discretion;
(h) To perform any and all other acts which, in the Trustee's judgment, are necessary or appropriate for the proper management, investment and distribution of the Trust Fund;
(i) To retain any funds or property subject to any dispute (and without liability for the payment of interest) and to refuse to make payment or delivery thereof until final adjudication by a court of competent jurisdiction;
(j) To begin, maintain or defend any litigation necessary in connection with the administration of this Trust and the Trust Fund;
(k) To make such deposits (including certificates of deposit) and open such number of bank accounts (including interest and noninterest bearing accounts) in such bank(s) (including the Trustee, and any bank which is an agent of the Trustee or otherwise a fiduciary with respect to the Trust) in the name of the Trustee, and to make deposits therein in order to facilitate the payment of benefits, as the Trustee shall
determine. The amounts on deposit in each such account shall constitute a part of the Trust Fund until paid out in accordance with the Plan;
(l) To maintain accurate records and accounts of all investments, receipts, disbursements and other transactions of the Trust Fund and to open such records and accounts to the inspection by the Employer and its duly authorized representatives during normal business hours of the Trustee, and to the Participants and their duly authorized representatives following the Effective Time, during normal business hours of the Trustee;
(m) To adopt such rules and regulations for the operation and administration of the Trust as the Trustee shall determine to be necessary and appropriate and in keeping with the terms and purposes of the Trust;
(n) To construe and interpret the terms and provisions of this Trust, and any such construction or interpretation adopted in good faith shall be binding on the Employer, and any employees, dependents and beneficiaries, and their successors, assigns, executors, administrators and/or legal representatives;
(o) To withhold any taxes with respect to the property or income of the Trust Fund or to withhold any amounts otherwise payable from the Trust Fund; and to dispose of any amounts so withheld as determined by the Trustee;
(p) To hold the Trust Fund assets for the benefit of the creditors of the Employer and to deliver assets to satisfy such creditor's claims as directed by a court of competent jurisdiction pursuant to Section 4.6; and
(q) To do any and all other acts and things necessary, proper or advisable to effectuate the purposes of this Trust to the extent the same are permissible under applicable laws.
Section 4.11 Liability for Breach of Fiduciary Duty. Except as provided in
Section 4.16(d), the Trustee shall not be liable for any losses to the Trust
Fund resulting from the breach of any of the responsibilities, obligations or
duties imposed upon the Trustee herein or by applicable laws.
Section 4.12 Consultation and Indemnification.
(a) The Trustee and the Recordkeeper may consult with counsel, and neither the Trustee nor the Recordkeeper shall be deemed imprudent by reason of taking or refraining from taking any action in accordance with an Opinion of Counsel.
(b) The Employer hereby indemnifies the Trustee and holds it harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, claims, demands, costs and expenses of any kind or nature whatsoever, including, without limitation, attorney's fees and disbursements (except those caused by the Trustee's gross negligence or willful misconduct) that may be imposed on, incurred by or asserted against the Trustee in any way relating to or arising out of or in connection with this trust agreement, the acceptance or administration by the Trustee of the Trust or
the Trust Fund, the exercise or performance by the Trustee of any of its powers or duties hereunder and any of the transactions contemplated by this trust agreement, including (but not limited to) distributions to Participants and beneficiaries of deceased Participants payments or reimbursements to the Employer in reliance on a certification of the Employer that it has made such payment of Obligations from assets outside the Trust, and upon the termination of the RSUs or Trust.
(c) The Employer hereby indemnifies the Recordkeeper and holds it harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, claims, demands, costs and expenses of any kind or nature whatsoever, including, without limitation, attorney's fees and disbursements (except those caused by the Recordkeeper's gross negligence or willful misconduct) that may be imposed on, incurred by or asserted against the Recordkeeper in any way relating to or arising out of or in connection with this trust agreement, the exercise or performance by the Recordkeeper of any of its powers or duties hereunder and any of the transactions contemplated by this trust agreement.
(d) Neither the Trustee nor the Recordkeeper shall be required to give any bond or any other security for the faithful performance of their respective duties under this trust agreement, except as such may be required by any law which prohibits the waiver thereof.
(e) The Employer shall assume, at its own expense, the defense of any
action commenced against the Trustee or the Recordkeeper asserting any
claim which would be covered by the indemnities set forth in this Section
4.12. The Trustee and the Recordkeeper shall each have the right to employ
its own counsel in any such action to which it is a party, and the
reasonable fees and expenses of such counsel shall be borne by the
Employer.
(f) The Employer's obligations under this Section 4.12 shall survive the termination of this trust agreement and the resignation or removal of any Trustee.
Section 4.13 Resignation and Removal. The Trustee and/or the Recordkeeper shall resign or be removed and a successor Trustee and/or Recordkeeper appointed according to the following procedures:
(a) The Trustee may be removed by the Employer at any time prior to the Effective Time, with or without cause, and following the Effective Time, with or without cause but only with the written consent of the Majority Participants, upon the giving of not less than 31 days prior written notice. The Trustee may resign upon the giving of not less than 31 days prior written notice to the Employer and all Participants and beneficiaries of deceased Participants. No resignation or removal of the Trustee pursuant to this Section 4.13 shall become effective until the acceptance of appointment by the successor Trustee.
(b) Prior to the Effective Time, the Employer shall fill a vacancy in the office of Trustee as soon as practicable by a written instrument filed with the person(s) appointed to fill the vacancy, which person(s) must be a financial institution that is independent of the Employer, and a copy to the predecessor Trustee and the
Recordkeeper. Following the Effective Time, the Employer shall be entitled to fill a vacancy in the office of Trustee, but only with the consent and approval of the Majority Participants, as evidenced in a written instrument filed with the person(s) appointed to fill the vacancy which person(s) must be a financial institution that is independent of the Employer. If the vacancy in the office of Trustee has not been filled within 20 days following the Trustee's resignation or removal, the Trustee shall have the right to petition a court of competent jurisdiction to appoint a successor Trustee.
(c) The appointment of a successor Trustee shall take effect upon delivery to the Trustee of a written appointment of such successor Trustee, duly executed by the Employer(with the consent of the Majority Participants) or the predecessor Trustee, as the case may be, and a written acceptance by such successor Trustee, duly executed thereby. Except as described in the preceding sentence, a successor Trustee shall succeed to the title to the assets in the Trust Fund without the signing or filing of any document. The resigning or removed Trustee shall execute all documents and do all acts reasonably necessary to vest such title of record in the successor Trustee. A successor Trustee shall have all of the powers conferred by this trust agreement as if originally named Trustee.
(d) Within 60 days after transfer of the assets in the Trust Fund, the resigning or removed Trustee shall render to the Employer a statement and accounting in the form and manner prescribed by Section 4.9. Unless the Employer shall, within 60 days after receipt of such accounting, object in writing delivered to such Trustee, such accounting shall be deemed approved, and the Trustee shall be released and discharged as to all items, matters and things set forth in such accounting.
(e) A successor Trustee shall not be liable or responsible for any acts or defaults of a predecessor Trustee or co-Trustee, or for any losses or expenses resulting from or occasioned by anything done or neglected to be done in the administration of the Trust Fund or Trust prior to its appointment as Trustee, nor shall it be required to inquire into or take notice of the prior administration of the Trust Fund or Trust.
(f) The Recordkeeper may be removed by the Employer at any time prior to the Effective Time, with or without cause, and following the Effective Time, with or without cause but only with the written consent of the Majority Participants, upon the giving of not less than 31 days prior written notice to the Recordkeeper, with a copy to the Trustee. The Recordkeeper may resign on the giving of not less than 31 days prior written notice to the Trustee, the Employer and all Participants and beneficiaries of deceased Participants. No resignation or removal of the Recordkeeper pursuant to this Section 4.13 shall become effective until the acceptance of appointment by the successor Recordkeeper.
(g) Prior to the Effective Time, the Employer shall fill a vacancy in the office of Recordkeeper as soon as practicable by a written instrument filed with the person(s) appointed to fill the vacancy, which person(s) must certify that it/they are capable of performing the duties of Recordkeeper hereunder, and a copy to the predecessor Recordkeeper and the Trustee. Following the Effective Time, the Employer shall be entitled to fill a vacancy in the office of Recordkeeper, but only with the consent and
approval of the Majority Participants, as evidenced in a written instrument filed with the person(s) appointed to fill the vacancy, and such successor Recordkeeper must certify that it is capable of performing the duties of Recordkeeper hereunder. If the vacancy in the office of Recordkeeper has not been filled within 20 days following the Recordkeeper's resignation or removal, the Trustee shall have the right to appoint a successor Recordkeeper. The appointment of a successor Recordkeeper shall take effect upon delivery to the Recordkeeper, with a copy to the Trustee, Employer and all Participants and beneficiaries of deceased Participants, of a written appointment of such successor Recordkeeper, duly executed by the Employer, the Majority Participants or the Trustee, as the case may be, and a written acceptance by such successor Recordkeeper, duly executed thereby. As soon as practicable after the Recordkeeper has resigned or has been removed hereunder, it shall deliver to the successor Recordkeeper all reports, records, documents and other written information in its possession regarding the RSUs, the Trust Fund and the Participants, and thereupon shall be entitled to all unpaid fees, compensation and reimbursements to which it is entitled under this Trust and shall be relieved of all responsibilities and duties under this Trust.
(h) If the Trustee consolidates, merges or converts into, or transfers all or substantially all its trust business or assets to another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.
Section 4.14 Duties of the Recordkeeper. Within 10 days following the close of each Trust Year ending after the Effective Time, the Recordkeeper shall file with the Employer and the Trustee a written statement setting forth for each Participant and beneficiary of a deceased Participant his or her Value of Accrued Benefits as of the last day of such Trust Year. In the event the Employer fails to provide the Recordkeeper with the information necessary to prepare such written statement, the Recordkeeper shall file the written statement based on a good faith estimate of the Value of Accrued Benefits. In addition, the Recordkeeper shall maintain or cause to be maintained all the Participant records required by this Trust and shall perform such other duties and responsibilities necessary or advisable to achieve the objectives of this Trust. Following the Effective Time, the Recordkeeper shall prepare and distribute to the Employer, Participants and beneficiaries of deceased Participants, Participant statements, with respect to payments to Participants and beneficiaries of deceased Participants. In the event that the Employer refuses or neglects to provide updated Participant information, as contemplated herein, the Recordkeeper shall be entitled to rely on the most recent information furnished to it by the Employer. The Recordkeeper shall have no responsibility to verify information provided to it by the Employer; provided, however, no information provided by the Employer following the Effective Time shall reduce any benefit to which a Participant or beneficiary of a deceased Participant was entitled under the RSUs or this Trust as of the Effective Time.
Section 4.15 Determinations by the Trustee; Notices. Within 21 days following receipt by the Trustee of written notice from any Participant or beneficiary of a deceased Participant that such Participant or beneficiary believes the Effective Time has taken place, the Trustee shall determine if the Effective Time has in fact occurred. Within 5 days of making the foregoing determination the Trustee shall give written notice of its determination to the Employer,
Recordkeeper and all Participants and beneficiaries of deceased Participants, which notice shall attach a complete copy of any Opinion of Counsel rendered to the Trustee with regard to the foregoing, a complete copy of any notice to the Trustee alleging that the Effective Time has occurred as well as all materials in the possession of the Trustee which relate to the foregoing determinations; provided, however, that no notice from the Trustee is required if the Employer has notified Participants of the occurrence of the Effective Time or has otherwise publicly disclosed in a press release or filing with the Securities and Exchange Commission that the Effective Time has occurred.
Section 4.16 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper person.
(b) Before the Trustee acts or refrains from acting, and in making any determination with respect to the Effective Time, the Value of the Trust Fund or any other determination hereunder (including but not limited to determinations of the validity of consents of the Majority Participants), the Trustee may require and rely on an Expert's Certificate or an Opinion of Counsel or both covering such matters as the Trustee may reasonably require. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Expert's Certificate or Opinion of Counsel or with the consent of the Majority Participants.
(c) The Trustee may act through agents and Experts and shall not be responsible for the misconduct or negligence of any agent or Expert appointed and retained with due care or with the consent of the Employer or the Majority Participants.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee's conduct does not constitute gross negligence or willful misconduct. The Trustee shall be liable for any action it takes or omits to take and which constitutes gross negligence or willful misconduct.
(e) No provision of this trust agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Section 4.17 Priority of Distribution and Liquidation of Trust Assets. Whenever Trust assets are required to be distributed pursuant to this trust agreement, the Trustee shall pay such distributions with SUPERVALU INC. common stock, as directed by the Recordkeeper, and cash on hand, if any. To the extent cash on hand (not including the Retention Amount) is not sufficient to pay such distributions, the Trustee shall liquidate investments described in Section 4.3.
ARTICLE V
GENERAL ADMINISTRATIVE PROVISIONS
Section 5.1 Exchange of Information by the Employer and the Trustee. The Trustee shall furnish to or on the order of the Employer whatever information relating to the Trust Fund is necessary for the performance by the Employer of its functions with respect to the RSUs or the Obligations or this Trust. The Employer shall furnish to or on the order of the Trustee whatever information relating to the Trust Fund and Participants and beneficiaries of deceased Participants is necessary for the performance by the Trustee of its functions hereunder. The Employer and Trustee may each rely and act upon information so furnished without further inquiry. For purposes of this trust agreement, a certification from the Employer shall mean a written communication signed by a person authorized to act for the Employer stating that the contents of the communication are certified to by the author as being true and accurate.
Section 5.2 Information to the Recordkeeper and Trustee. The Employer shall provide the Recordkeeper with a certified copy of the Plans, a schedule of RSU holdings by Participant and all amendments thereto, payment elections provided to the Employer by the Participants, and all information necessary to determine the benefits payable to or with respect to each Participant, including any benefits payable after each Participant's death and the recipient of the same. The Employer shall regularly, at least annually, or promptly on the request of the Recordkeeper, furnish revised updated information to the Recordkeeper. In addition, promptly after the last day of each calendar year quarter, the Employer agrees to notify the Trustee and Recordkeeper as to those persons who are then Participants or beneficiaries of deceased Participants, which notice shall specify the name, address and social security number of such persons. The Trustee shall be entitled to rely on the latest available written notice from the Employer regarding such information. The Employer shall be responsible for keeping accurate books and records with respect to the employees of the Employer, their compensation and their rights and interests in the Trust Fund and with respect to the RSUs and the Obligations.
Section 5.3 Mistake of Fact. Any misstatement or any other mistake of fact in any certificate, notice or other document filed with the Employer, the Recordkeeper or the Trustee shall be corrected when it becomes known and proper adjustment shall be made by reason thereof; provided, however, the Trustee shall offset any overpayment to any Participant or beneficiary of a deceased Participant against future payments to such Participant or beneficiary but shall have no obligation to seek reimbursement from any Participant, beneficiary of a deceased Participant or other person to whom the Trustee has disbursed amounts from the Trust Fund pursuant to any such certificate, notice or other document.
Section 5.4 Taxes. The Employer may from time to time pay taxes of any and all kinds whatsoever which at any time are levied or assessed upon or become payable in respect of the Trust Fund, the income therefrom or any property forming a part thereof, or any purchase, sale, collateral security or other transaction pertaining thereto. To the extent that any taxes levied or assessed upon the Trust Fund or in respect of such income, property or transaction are not paid by the Employer, the Trustee shall pay such taxes out of the Trust Fund and the Employer, shall reimburse the Trustee for any amounts so paid. The Trustee shall, at the Employers expense, contest the validity of such taxes in any manner deemed appropriate by the Employer or its counsel, but only if the Trustee has received an indemnity bond or other security satisfactory to it to pay all of its fees and expenses with respect to such contest; provided, however, the Trustee shall have no obligation to contest if it receives an Opinion of Counsel to
the effect that there is no reasonable basis in law or fact for such contest. Alternatively, the Employer may itself contest the validity of any such taxes.
Section 5.5 Voting of SUPERVALU INC. Stock. The Trustee will vote the SUPERVALU INC. common stock held in the Trust and may exercise any right appurtenant to such stock, either in person or by general or limited proxy, power of attorney or other instrument.
Section 5.6 Investment Company Act. Notwithstanding any other provision of this trust agreement, the Employer and the Trustee agree that in the event the Trust may be deemed to be an "investment company" as defined under the Investment Company Act of 1940, as amended (the "Investment Company Act"), they shall use their best efforts to take such action as shall be necessary so that either (i) the Trust will qualify for an exemption from the provisions of the Investment Company Act or (ii) the Trust will not be deemed to be such an investment company.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Right to Amend. Prior to the time when the Trust shall become
irrevocable as provided in Section 6.2, this trust agreement may be amended by
an instrument in writing, duly executed by the Employer and delivered to the
Trustee, which instrument shall certify to the Trustee that the Trust has not
become irrevocable. When the Trust shall become irrevocable as provided in
Section 6.2, this trust agreement may not thereafter be amended in whole or part
by the Employer, provided, however, that this trust agreement may nonetheless be
amended by an instrument in writing, duly executed by the Employer, and
delivered to the Trustee and all Participants and beneficiaries of deceased
Participants only (a) with the express written consent of the Majority
Participants on the date of such amendment, (b) as necessary to obtain a
favorable ruling from the Internal Revenue Service with respect to the tax
consequences of the establishment or settlement of the Trust as a grantor trust
within the meaning of Section 671 of the Code, or (c) as necessary to prevent
the Trust from being deemed an "investment company" as defined under the
Investment Company Act or to ensure that the Trust qualifies for an exemption
from the provisions of such act, provided, that the duties, powers and
liabilities of the Trustee shall not be increased without the Trustee's written
consent, and, provided further, that the amount or time of payment of any
benefit hereunder to any Participant or beneficiary of a deceased Participant
may not be reduced, altered or adversely affected without the written consent of
the affected Participant or beneficiary.
Section 6.2 Termination of Trust and Reversion of Assets. Following the occurrence of the Effective Time, the Trust shall be irrevocable; provided that the Trust shall nonetheless terminate upon the earlier of (a) the payment of all Obligations and amounts due Participants and beneficiaries of deceased Participants under the RSUs, as determined by the Recordkeeper, and (b) the date that there are no longer Trust assets in the Trust Fund. At any time prior to the Effective Time, the Trust may be revoked by the Employer by an instrument in writing delivered to the Trustee and accompanied by an Opinion of Counsel stating that the Trust is revocable and that the Effective Time has not occurred. The foregoing to the contrary notwithstanding, if the Trustee has received notice, pursuant to Section 3.3 or Section 4.15, that the Effective Time may have occurred, the Trust may not be revoked until the Trustee has determined that the Effective
Time has not occurred. Upon revocation of the Trust, any and all assets remaining in the Trust Fund after payment of the Trustee's and Recordkeeper's compensation and other expenses of the Trust, shall revert to the Employer and the Trustee shall promptly transfer any such assets to the Employer. Upon termination of the Trust other than by revocation, the Trustee shall pay all Obligations due Participants and beneficiaries of deceased Participants under the RSUs, as determined by the Recordkeeper, and any and all assets remaining in the Trust Fund after payment of the Trustees and Recordkeeper's compensation and other expenses of the Trust, shall revert to the Employer and the Trustee shall promptly transfer any such assets to the Employer. Upon termination of the Trust for whatever reason the Trustee shall prepare and file a final statement and accounting with the Employer and all necessary returns, statements, forms and reports as may be required of the Trustee by law. Upon receipt of written approval of the accounting from the Employer (or upon the passage of 60 days without written objections having been delivered to the Trustee) such accounting shall be deemed approved, and the Trustee shall be released and discharged as to all items, matters and things set forth in such accounting.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Entire Agreement. This trust agreement constitutes the entire understanding and agreement between the parties and supersedes all prior agreements, representations and understandings relating to the subject matter hereof.
Section 7.2 Successors. This trust agreement shall be binding upon all persons entitled to benefits under the RSUs and their respective heirs and personal representatives, upon the Employer, its successors and assigns, and upon the Trustee and its successors.
Section 7.3 Headings. The headings used in this trust agreement are inserted for reference purposes only and shall not be deemed to limit or affect in any way the meaning or interpretation of any of the terms or provisions of this trust agreement.
Section 7.4 Controlling Law. Except to the extent superseded by the laws of the United States of America, the laws of the State of Idaho (other than the choice of law principles thereof) shall govern all questions arising with respect to this trust agreement and the interpretation and validity of its provisions.
Section 7.5 Third-Party Inquiries. No person dealing with the Trustee shall be obliged to see to the application of any money paid or property delivered to the Trustee, or as to whether or not the Trustee has acted pursuant to any authorization required or set forth in this trust agreement.
Section 7.6 Courts; Arbitration. The Employer agrees that by the establishment of this Trust it hereby foregoes any judicial review of certification by the Recordkeeper as to the benefit payable to any person hereunder. If a dispute arises as to the amounts or timing of any such benefits or the persons entitled thereto under the RSUs or this Trust, the Employer agrees that such dispute shall be resolved by binding arbitration proceedings initiated in accordance with the rules of the American Arbitration Association and that the results of such proceedings shall be
conclusive and shall not be subject to judicial review. It is expressly understood and agreed that pending a resolution of any such dispute, payment of benefits shall be made and continued by the Trustee in accordance with the certification by the Recordkeeper and that the Trustee and the Recordkeeper shall have no liability with respect to such payments. The Employer agrees to pay the entire cost of any arbitration or legal proceeding, including the legal fees of the Trustee, the Recordkeeper and the Participant or the beneficiary of any deceased Participant regardless of the outcome of any such proceeding or the party which initiated any such proceeding, and until so paid the expenses thereof shall be a charge on and lien against the Trust Fund. The Employer agrees to pay the foregoing costs as such costs are incurred, but not more frequently than on a monthly basis. Nothing in this Section shall be construed to in any way limit any right or remedy a Participant or beneficiary may have under the Plans or the RSUs.
Section 7.7 Addresses For Communications. All communications, directions, notices and requests required or permitted to be given hereunder shall be in writing and shall be given to the following:
If to Employer prior to the Effective time, to: Albertson's, Inc. 250 Parkcenter Blvd.
Boise, Idaho 83726
Attention: Corporate Secretary
If to Employer after the Effective time, to: SUPERVALU, INC..
11840 Valley View Road
Eden Prairie, Minnesota 55344
Attention: Corporate Secretary
If to Trustee, to: Atlantic Trust Company, N.A.
1330 Avenue of the Americas
30th Floor
New York, New York 10019
Attention: Chief Fiduciary Officer - NY Office and
Hughes, Hubbard and Reed LLP
One Battery Park Plaza
New York, New York 10004-1482
Attention: Javier Hernandez, Esq.
If to Recordkeeper, to: MullinTBG, Inc.
2029 Century Park East
Suite 3700
Los Angeles, CA 90067
Attention: Nancy Hickey
If to a Participant or beneficiary of a deceased Participant, to the last known address of the Participant or beneficiary on the books and records of the Employer, the Trustee or the Recordkeeper; provided, however, the Trustee shall be entitled to rely on the latest available written notice from the Employer regarding the names and addresses of such persons.
Either the Employer, the Recordkeeper or the Trustee shall have the right to specify in writing in the manner above provided, another address to which subsequent communications, directions, notices and requests to such party shall be given. Any communications, directions, notices and requests given hereunder shall be deemed to have been given as of the date received in writing by the party to whom given.
Section 7.8 Waiver of Notice. Any notice required by this trust agreement may be waived by the person entitled thereto.
Section 7.9 Accounting Period. The annual accounting period for this Trust shall be the Trust Year.
Section 7.10 Interest in the Trust Fund. No employee of the Employer, no dependent or personal representative of an employee of the Employer or person claiming through such an employee and no beneficiary under the Plans or the RSUs shall have any right, title or interest in the Trust or Trust Fund at any time prior to satisfaction of all conditions to a right to payment to such beneficiary from the Trust pursuant to the terms of the Plans, the RSUs and the Trust. No benefit, right or interest, if any exists, is transferable or assignable by any employee, dependent or beneficiary and any attempt to effect a transfer or assignment is void. No portion of the Trust Fund shall be subject to attachment, garnishment, levy of execution, bankruptcy proceedings or other legal process of any creditor of any of the Participants or beneficiaries. Notwithstanding any other provision of this Trust to the contrary, the Trust Fund shall at all times remain subject to claims of creditors of the Employer in the event the Employer is adjudicated to be bankrupt or insolvent as provided herein.
Section 7.11 Counterparts. This trust agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall together constitute only one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this trust agreement to be executed the day and year first above written.
EMPLOYER:
ALBERTSON'S, INC.
/s/ John R. Sims
----------------------------------------
By: John R. Sims
------------------------------------
Its: Executive Vice President &
General Counsel
-----------------------------------
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TRUSTEE:
ATLANTIC TRUST COMPANY, N.A.
RECORDKEEPER:
MULLINTBG, INC.
EXHIBIT "A"
FORM OF CERTIFICATE TO THE TRUSTEE
CERTIFICATE
[Date]
To: [Name and Address of the Trustee]
Ladies and Gentlemen:
1. The undersigned, a duly authorized officer of [Recordkeeper] (in such
capacity the "Recordkeeper"), as Recordkeeper under that certain Albertson's,
Inc. Restricted Stock Unit Trust (the "Trust"), dated the ____ day of
________________, 2006, between Albertson's, Inc.,
[___________________________], as trustee, and [__________________________] as
recordkeeper, HEREBY CERTIFIES as follows with respect to Section 4.4(a) of the
Trust.
2. Benefits have become payable under the Albertson's, Inc. RSUs, as defined in the Trust.
3. The name, address and social security number of the recipient of such benefits are as follows:
Name: ___________________________
Address: ________________________
Social Security Number: _________
4. The number of RSUs payable, the number of SUPERVALU INC. common shares, the amount of cash to be paid and the terms of payment are as follows:
Number of RSUs: _________________
Number of SUPERVALU INC.
shares to be paid: ___________
Cash to be paid: ________________
Terms of Payment: [Specify payment dates, number of payments, and any other relevant information]
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
[___] day of [_______________], [____].
[Recordkeeper]
Exhibit 10.65
AMENDMENT TO THE
ALBERTSON'S, INC. 2005 DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. 2005 Deferred Compensation Plan was established for compensation earned in 2005;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the authority to amend the Plan to its Management Development/Compensation Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted effective as of the adoption date of this Amendment (unless another effective date is expressly specified):
1. The Plan is hereby amended by adding the following paragraphs thereto to read as follows:
"Change in Control" shall mean the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then-outstanding Voting Stock of Albertson's, Inc. (the "Company"); provided, however, that:
(1) for purposes of this Section 1(i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of securities entitled to vote generally in the election of directors of the Company ("Voting Stock") directly from the Company that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company by the Company or any subsidiary, (C) any acquisition of Voting Stock of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any subsidiary, and (D) any acquisition of Voting Stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B) and (C) of Section 1(iii) below;
(2) if any Person acquires beneficial ownership of 20% or
more of combined voting power of the then-outstanding Voting Stock of
the Company as a result of a transaction described in clause (1)(A) of
Section 1(i) and such Person thereafter becomes the beneficial
owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than in an acquisition directly from the Company that is approved by a majority of the Incumbent Directors or other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally, such subsequent acquisition shall be treated as a Change in Control;
(3) a Change in Control will not be deemed to have occurred if a Person acquires beneficial ownership of 20% or more of the Voting Stock of the Company as a result of a reduction in the number of shares of Voting Stock of the Company outstanding unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company representing 1% or more of the then-outstanding Voting Stock of the Company, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally; and
(4) if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 20% or more of the Voting Stock of the Company inadvertently, and such Person divests as promptly as practicable a sufficient number of shares so that such Person beneficially owns less than 20% of the Voting Stock of the Company, then no Change in Control shall have occurred as a result of such Person's acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation, or other transaction (each, a "Business Combination"), unless, in each case, immediately following such Business Combination (A) all or substantially all of the individuals and entities who were the beneficial owners of Voting Stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries), (B) no Person (other than the Company, such entity resulting from such Business Combination, or any employee benefit plan (or related trust) sponsored or maintained by the Company, any Subsidiary or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Combination, and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 1(iii).
An "Incumbent Director" shall mean the individuals who, as of the date hereof, are Directors of the Company and any individual becoming a Director subsequent to the date hereof whose election, nomination for election by the Company's shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual's election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
Notwithstanding any other provision of the Plan, each Participant shall have the right to elect, prior to May 22, 2006, in accordance with procedures established under the Plan, to receive a lump sum in cash (payable from an
applicable trust or from general corporate assets) such Participant's vested account balance under such Plan as of the date of the distribution, payable as soon as practicable on or after (but no later than 30 days after) January 1, 2007, or, if later, the effective date of a Change in Control ("Special Election Lump Sum"), provided that such election shall not prevent the payment or commencement of a Participant's account balance under the Plan on a scheduled distribution date that occurs prior to the payment of any such Special Election Lump Sum.
It is intended that the Plan shall be operated in good faith
compliance with Section 409A of the Internal Revenue Code ("Code") and
may be amended by the Company at any time to the extent determined
necessary or desirable, at the Company's discretion, in light of Code
Section 409A, without regard to any restrictions on the Company's
ability to amend the Plan under any other provision of the Plan.
2. Except as provided herein, the Plan shall remain in full force and effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
------------------------------------
Its: Executive Vice President & General
Counsel
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EXHIBIT 15.01
May 31, 2006
Albertson's, Inc.
Boise, Idaho
We have made reviews, in accordance with the standards of the Public Company Accounting Oversight Board (United States), of the unaudited interim financial information of Albertson's, Inc. and subsidiaries and of New Albertson's, Inc. and subsidiary, both for the thirteen-week periods ended May 4, 2006 and May 5, 2005, as indicated in our reports dated May 31, 2006; because we did not perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which are included in your Quarterly Report on Form 10-Q for the thirteen week period ended May 4, 2006, is incorporated by reference in Registration Statement Nos. 333-54998 and 333-113995 on Form S-3 and Registration Statement Nos. 33-59803, 333-121020, 333-82157, 333-82161, 333-87773, 333-73194 and 333-63019 on Form S-8.
We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLP ------------------------------------- Boise, Idaho |
EXHIBIT 31.1
ALBERTSON'S, INC.
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, Lawrence R. Johnston, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Albertson's, Inc.;
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 officers 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 officers 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: May 31, 2006 /s/ Lawrence R. Johnston
----------------------------------------
Lawrence R. Johnston
Chairman of the Board, Chief
Executive Officer and President
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EXHIBIT 31.2
ALBERTSON'S, INC.
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, Felicia D. Thornton, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Albertson's, Inc.;
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 officers 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 officers 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: May 31, 2006 /s/ Felicia D. Thornton
----------------------------------------
Felicia D. Thornton
Executive Vice President
and Chief Financial Officer
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EXHIBIT 31.3
NEW ALBERTSON'S, INC.
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, Lawrence R. Johnston, certify that:
1. I have reviewed this quarterly report on Form 10-Q of New Albertson's, Inc.;
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 officers 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 officers 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.
/s/ Lawrence R. Johnston
Date: May 31, 2006 ----------------------------------------
Lawrence R. Johnston
Chairman of the Board, Chief
Executive Officer and President
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EXHIBIT 31.4
NEW ALBERTSON'S, INC.
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, Felicia D. Thornton, certify that:
1. I have reviewed this quarterly report on Form 10-Q of New Albertson's, Inc.;
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 officers 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 officers 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.
/s/ Felicia D. Thornton
Date: May 31, 2006 ----------------------------------------
Felicia D. Thornton
Executive Vice President
and Chief Financial Officer
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EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Albertson's, Inc. (the "Company") for the period ended May 4, 2006 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), we, Lawrence R. Johnston and Felicia D. Thornton, Chief Executive Officer and Chief Financial Officer, respectively, of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to our knowledge:
(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report.
May 31, 2006
/s/ Lawrence R. Johnston ------------------------------------- Lawrence R. Johnston Chief Executive Officer /s/ Felicia D. Thornton ------------------------------------- Felicia D. Thornton Chief Financial Officer |
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of New Albertson's, Inc. (the "Company") for the period ended May 4, 2006 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), we, Lawrence R. Johnston and Felicia D. Thornton, Chief Executive Officer and Chief Financial Officer, respectively, of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to our knowledge:
(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report.
May 31, 2006
/s/ Lawrence R. Johnston ------------------------------------- Lawrence R. Johnston Chief Executive Officer /s/ Felicia D. Thornton ------------------------------------- Felicia D. Thornton Chief Financial Officer |