UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 13, 2022
Albertsons Companies, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware | 001-39350 | 47-4376911 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
250 Parkcenter Blvd.
Boise, Idaho 83706
(Address of principal executive office and zip code)
(208) 395-6200
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Class A common stock, $0.01 par value | ACI | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 | Entry into a Material Definitive Agreement. |
As disclosed on a Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on October 14, 2022, on October 13, 2022, Albertsons Companies, Inc. (the “Company”) entered into an agreement and plan of merger (the “Merger Agreement”) by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc.
On October 13, 2022, in connection with the Merger Agreement, entities affiliated with the Company’s five largest stockholders, Cerberus Capital Management, L.P. (“Cerberus”), Schottenstein Stores Corp. (“Jubilee Limited Partnership”), Lubert-Adler Partners (“Lubert-Adler”), Kimco Realty Corporation (“Kimco”) and Klaff Realty, L.P. (“Klaff”), (each a “Sponsor” and collectively, the “Sponsors”) entered into lock-up agreements, each substantially similar in form and substance (the “Lock-Up Agreements”) pursuant to which each Sponsor, subject to certain exceptions, agreed to restrictions on its ability to sell or transfer shares of the Company’s Class A Common Stock (“Common Stock”) that it owns through the earliest of (i) the valid termination of the Merger Agreement, (ii) HPS Investment Partners, LLC (“HPS”) and its affiliates having beneficial ownership of fewer than 500 shares of Series A Convertible Preferred Stock (“Preferred Stock”) of the Company, (iii) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the SEC, plus, if applicable, the Early Filing Period (as defined in the Lock-Up Agreements) and (iv) 210 days after the date of the Merger Agreement (the “Lock-Up Period”), provided, that the Lock-Up Agreement with Kimco allows for it to sell 12 million shares of Common Stock during the Lock-Up Period and the Lock-Up Agreement with Jubilee Limited Partnership allows for it to sell approximately 30 million shares of Common Stock during the Lock-Up Period. During the Lock-Up Period, each Sponsor agreed not to effect a demand registration or piggyback registration with respect to any Restricted Shares (as defined in the Lock-Up Agreements) under that certain Registration Rights Agreement dated June 9, 2020 by and among the Company and the other parties thereto.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the Lock-Up Agreements entered into with each respective Sponsor, which are filed as Exhibits 10.1-10.5 hereto and incorporated by reference herein.
Furthermore, on October 13, 2022, the Company and HPS entered into a short-term lock-up agreement (the “Preferred Stock Lock-Up Agreement”). Pursuant to the Preferred Stock Lock-Up Agreement, HPS agreed to restrictions on its ability to sell or transfer shares of the Company’s Preferred Stock and Common Stock during the 30 days prior to (i) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the SEC, plus, if applicable, the Early Filing Period (as defined in the Lock-Up Agreements) and (ii) 210 days after the date of the Merger Agreement.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the Preferred Stock Lock-Up Agreement, which is filed as Exhibit 10.6 hereto and incorporated by reference herein.
Item 8.01. | Other Events |
On October 14, 2022, the Company issued a press release announcing that the Board of Directors of the Company declared a special cash dividend in connection with the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Albertsons Companies, Inc. (Registrant) | ||||||
Dated: October 17, 2022 | By: | /s/ Juliette W. Pryor | ||||
Name: | Juliette W. Pryor | |||||
Title: | Executive Vice President, General Counsel and Secretary |
Exhibit 10.1
Execution Version
LOCK-UP AGREEMENT
This Lock-Up Agreement (the Agreement) is entered into by and between Albertsons Companies, Inc. (the Company) and each undersigned investor (each, an Investor) as of October 13, 2022.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger dated as of the date hereof by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc., (as may be amended, supplemented or modified from time to time, the Merger Agreement); and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, parties hereto desire to provide for a new lock-up period as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Company and each Investor, intending to be legally bound, hereby agree as follows:
1. | Each Investor hereby agrees that, during the Lock-Up Period set forth below, such Investor will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of (collectively, Transfer) any shares of Class A Common Stock, par value $0.01 per share (the Shares), of the Company, or any options or warrants to purchase any Shares, or any securities convertible into, exchangeable for or that represent the right to receive Shares, owned directly by such Investor (including holding as a custodian) or with respect to which such Investor has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (Beneficial Ownership) as of the date hereof (or acquired from the Company in exchange for or with respect to such securities) (collectively, and for so long as such Shares are subject to the terms of this Agreement, the Restricted Shares), except as set forth in this Agreement. |
2. | The foregoing restriction is expressly agreed to preclude each Investor from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Restricted Shares even if such Shares would be disposed of by someone other than such Investor. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option or forward sale or similar contract) with respect to any of the Restricted Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. |
3. | The Lock-Up Period shall commence as of the date hereof and expire the earliest of (i) the valid termination of the Merger Agreement pursuant to its terms, (ii) HPS Investment Partners, LLC and its Affiliates (HPS) having Beneficial Ownership of, fewer than 500 shares of Series A Convertible Preferred Stock, par value $0.01, of the Company (Preferred Stock), (iii) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the Securities and Exchange Commission, plus, if applicable, the Early Filing Period and (iv) 210 days after the date of the Merger Agreement. The Early Filing Period shall be the period, if any, beginning on the date of filing of the Company Information Statement in definitive form with the Securities and Exchange Commission and ending on the 90th day following the date of the Merger Agreement. With respect to clauses (iii) and (iv) above, the applicable Lock-Up Period shall expire at 11:59 PM, New York City Time, on such date of expiration. |
4. | Each Investor may Transfer all or any portion of the Restricted Shares during the Lock-Up Period as follows: (i) as a bona fide gift or gifts; provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of such Investor or any member of the immediate family of such Investor; provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any Affiliate of such Investor or any investment fund or other entity controlled or managed by such Investor or its Affiliates, (but in each case under this clause (iii), not including a portfolio company); provided that such person agrees to be bound in writing by the restrictions set forth herein, (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above; provided that such person agrees to be bound in writing by the restrictions set forth herein, (v) pursuant to an order of a court or regulatory agency, (vi) pursuant to the pledge, hypothecation or other granting of a security interest in the Restricted Shares to one or more banks or financial institutions as bona fide collateral or security for any loan, advance or extension of credit and any transfer upon foreclosure upon such Shares or thereafter, (vii) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares that constitutes a change of control of the Company (provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed or Restricted Shares are not purchased thereunder, the Restricted Shares not purchased shall remain subject to the provisions of this Agreement), and (viii) to a bank or brokerage account in the name of such Investor, or an Affiliate of such Investor, provided that such Investor provides a written certification to the Company that such Investor or Affiliate thereof has sole control over the transactions in any such bank or brokerage account and acknowledgment that any Shares so transferred shall remain subject to this Agreement in accordance with the terms hereof. To facilitate the transfer contemplated by clause (viii), at the written request of such Investor, the Company shall instruct, and use its reasonable best efforts to cause, the Companys transfer agent to cause Shares of such Investor held in registered form on the books and records of the transfer agent to be transferred on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (DWAC) or the Direct Registration System (DRS) to the designated accounts of such Investor, as applicable, at one or more brokerage firms designated by such Investor. For purposes of this Agreement immediate family shall mean any relationship by blood, marriage or adoption, not more remote |
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than first cousin. Each Investor also agrees and consents to the continued status of the stop transfer instructions with the Companys transfer agent and registrar against the transfer of the Restricted Shares except in compliance with the foregoing restrictions. Each Investor now has, and, except as contemplated by clauses (i)-(viii) above and for Restricted Shares otherwise Transferred in accordance herewith, for the duration of this Agreement will have, good and valuable title to the Restricted Shares. For purposes of this Agreement, Affiliate shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof. |
5. | Each Investor party to that certain Registration Rights Agreement by and among the Company and certain parties thereto, dated June 9, 2020 (as amended, the Registration Rights Agreement), agrees not to exercise any demand registration rights or piggyback registration rights as contemplated under Article II of the Registration Rights Agreement with respect to any Restricted Shares during the Lock-Up Period. |
6. | Each Investor understands that HPS has separately agreed with the Company it will not Transfer any shares of Common Stock or Preferred Stock that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of the definition thereof; provided that HPS may Transfer such shares pursuant to clauses (i) through (viii) of Section 4 to the same extent that an Investor is permitted to Transfer Restricted Shares during the Lock-Up Period pursuant to such clauses. The Company agrees to enforce and, without the prior consent of the Investors, not amend, supplement, waive or modify such restriction on Transfer on the part of HPS. |
7. | [Reserved] |
8. | The agreements and commitments of each Investor herein shall be several and not joint and not with or to, or for the benefit of, any other Investor hereto. |
9. | This Agreement may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) each Sponsor Lock-Up Party. Sponsor Lock-Up Party means each Investor, Klaff Realty, L.P., Lubert-Adler Partners, L.P., Jubilee ABS Holding LLC, and Kimco Realty Corporation, and their respective Affiliates, who have entered into a lock-up agreement on the date first written above in form and substance similar to this Agreement. |
10. | Other than with respect to any agreement between the Company and HPS, in the event that any Sponsor Lock-Up Party or any other holder of Shares subject to a similar lock-up or other agreement other than an Investor is permitted by the Company to sell or otherwise transfer or dispose of any such Shares (whether in one or multiple releases), then the same percentage of such Shares held by each Investor shall be immediately, irrevocably and fully released on the same terms from any remaining lock-up and other restrictions set forth herein without any further action by the Investors or the Company. |
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11. | Upon execution, this Agreement shall supersede the Lock-Up Agreement, dated June 21, 2022, as amended by Amendment No.1 dated September 9, 2022, and this Agreement and the Registration Rights Agreement shall contain the entire understanding of the parties with respect to the matters covered herein. |
[Remainder of the page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
ALBERTSONS COMPANIES, INC. | ||
By: | /s/ Juliette Pryor | |
Name: | Juliette Pryor | |
Title: | EVP and General Counsel |
[Signature Page to Company Lock-Up Agreement]
CERBERUS:
CERBERUS ICEBERG LLC | ||
By: | CERBERUS PARTNERS, L.P., its Management Member | |
By: | CERBERUS ASSOCIATES, L.L.C., its General Partner | |
By:/s/ Mark A. Neporent | ||
Mark A. Neporent | ||
Name | ||
COO / Sr. Legal Counsel | ||
Title |
[Signature Page to Company Lock-Up Agreement]
CERBERUS ALBERTSONS INCENTIVE LLC | ||
By: | CERBERUS CAPITAL MANAGEMENT, L.P., its Managing Member | |
By:/s/ Mark A. Neporent | ||
Mark A. Neporent | ||
Name | ||
COO / Sr. Legal Counsel | ||
Title |
[Signature Page to Company Lock-Up Agreement]
Exhibit 10.2
LOCK-UP AGREEMENT
This Lock-Up Agreement (the Agreement) is entered into by and between Albertsons Companies, Inc. (the Company) and each undersigned investor (each, an Investor) as of October 13, 2022.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger dated as of the date hereof by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc., (as may be amended, supplemented or modified from time to time, the Merger Agreement); and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, parties hereto desire to provide for a new lock-up period as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Company and each Investor, intending to be legally bound, hereby agree as follows:
1. | Each Investor hereby agrees that, during the Lock-Up Period set forth below, such Investor will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of (collectively, Transfer) any shares of Class A Common Stock, par value $0.01 per share (the Shares or the Common Stock), of the Company, or any options or warrants to purchase any Shares, or any securities convertible into, exchangeable for or that represent the right to receive Shares, owned directly by such Investor (including holding as a custodian) or with respect to which such Investor has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (Beneficial Ownership) as of the date hereof (or acquired from the Company in exchange for or with respect to such securities) (collectively, and for so long as such Shares are subject to the terms of this Agreement, the Restricted Shares), except as set forth in this Agreement. |
2. | The foregoing restriction is expressly agreed to preclude each Investor from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Restricted Shares even if such Shares would be disposed of by someone other than such Investor. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option or forward sale or similar contract) with respect to any of the Restricted Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. |
3. | The Lock-Up Period shall commence as of the date hereof and expire upon the earliest of (i) the valid termination of the Merger Agreement pursuant to its terms, (ii) HPS Investment Partners, LLC and its Affiliates (HPS) having Beneficial Ownership of, fewer than 500 shares of Series A Convertible Preferred Stock, par value $0.01, of the Company (Preferred Stock), (iii) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the Securities and Exchange Commission, plus, if applicable, the Early Filing Period and (iv) 210 days after the date of the Merger Agreement. The Early Filing Period shall be the period, if any, beginning on the date of filing of the Company Information Statement in definitive form with the Securities and Exchange Commission and ending on the 90th day following the date of the Merger Agreement. With respect to clauses (iii) and (iv) above, the applicable Lock-Up Period shall expire at 11:59 PM, New York City Time, on such date of expiration. |
4. | Each Investor may Transfer all or any portion of the Restricted Shares during the Lock-Up Period as follows: (i) as a bona fide gift or gifts; provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of such Investor or any member of the immediate family of such Investor; provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any Affiliate of such Investor or any investment fund or other entity controlled or managed by such Investor or its Affiliates (but in each case under this clause (iii), not including a portfolio company); provided that such person agrees to be bound in writing by the restrictions set forth herein, (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above; provided that such person agrees to be bound in writing by the restrictions set forth herein, (v) pursuant to an order of a court or regulatory agency, (vi) pursuant to the pledge, hypothecation or other granting of a security interest in the Restricted Shares to one or more banks or financial institutions as bona fide collateral or security for any loan, advance or extension of credit and any transfer upon foreclosure upon such Shares or thereafter, (vii) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares that constitutes a change of control of the Company (provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed or Restricted Shares are not purchased thereunder, the Restricted Shares not purchased shall remain subject to the provisions of this Agreement), (viii) to a bank or brokerage account in the name of such Investor, or an Affiliate of such Investor, provided that such Investor provides a written certification to the Company that such Investor or Affiliate thereof has sole control over the transactions in any such bank or brokerage account and acknowledgment that any Shares so transferred shall remain subject to this Agreement in accordance with the terms hereof; or (ix) in addition to Transfers otherwise permitted hereunder, and notwithstanding anything to the contrary herein, the undersigned Investor may, in its sole discretion, Transfer, without restriction or limitation, up to 30,290,647 Restricted Shares. For the avoidance of doubt, any Restricted Shares Transferred pursuant to (a) clause (ix) of this Section 4 or (b) any other clause of this Section 4 that does not otherwise restrict the Transfer of such Restricted Shares, shall, from and after such Transfer, no longer be subject to any of the restrictions set forth in Section 1 of this Agreement (such Shares, Unrestricted Shares). To facilitate the transfer contemplated by clause (viii), at the written request of such Investor, the |
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Company shall instruct, and use its reasonable best efforts to cause, the Companys transfer agent to cause Shares of such Investor held in registered form on the books and records of the transfer agent to be transferred on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (DWAC) or the Direct Registration System (DRS) to the designated accounts of such Investor, as applicable, at one or more brokerage firms designated by such Investor. For purposes of this Agreement immediate family shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Each Investor also agrees and consents to the continued status of the stop transfer instructions with the Companys transfer agent and registrar against the transfer of the Restricted Shares except in compliance with the foregoing restrictions. Each Investor now has, and, except as contemplated by clauses (i)-(ix) above and for Restricted Shares otherwise Transferred in accordance herewith, for the duration of this Agreement will have, good and valuable title to the Restricted Shares. For purposes of this Agreement, Affiliate shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof. |
5. | Each Investor party to that certain Registration Rights Agreement by and among the Company and certain parties thereto, dated June 9, 2020 (as amended, the Registration Rights Agreement), agrees not to exercise any demand registration rights or piggyback registration rights as contemplated under Article II of the Registration Rights Agreement with respect to any Restricted Shares during the Lock-Up Period. |
6. | Each Investor understands that HPS has separately agreed with the Company it will not Transfer any shares of Common Stock or Preferred Stock that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of Section 3; provided that HPS may Transfer such shares pursuant to clauses (i) through (viii) of Section 4 to the same extent that an Investor is permitted to Transfer Restricted Shares during the Lock-Up Period pursuant to such clauses. The Company agrees to enforce and, without the prior consent of the Investors, not amend, supplement, waive or modify, such restriction on Transfer on the part of HPS. |
7. | Each of the Investors agrees that it will not Transfer any Restricted Shares that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of Section 3 of this Agreement; provided that the foregoing restriction shall not apply to any Transfer of shares pursuant to clauses (i) through (ix) of Section 4 and any Transfer pursuant to Section 10; provided, further, that for the avoidance of doubt, notwithstanding anything to the contrary herein, any Investor may freely Transfer, without restriction or limitation, any Unrestricted Shares. |
8. | The agreements and commitments of each Investor herein shall be several and not joint and not with or to, or for the benefit of, any other Investor hereto. |
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9. | This Agreement may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) each Sponsor Lock-Up Party. Sponsor Lock-Up Party means each Investor, Cerberus Capital Management, L.P., Klaff Realty, L.P., Lubert-Adler Partners, L.P., Jubilee ABS Holding LLC, and Kimco Realty Corporation, and their respective Affiliates, who have entered into a lock-up agreement on the date first written above in form and substance similar to this Agreement. |
10. | Other than with respect to any agreement between the Company and HPS, in the event that any Sponsor Lock-Up Party or any other holder of Shares subject to a similar lock-up or other agreement other than an Investor is permitted by the Company to sell or otherwise transfer or dispose of any such Shares (whether in one or multiple releases), then the same percentage of such Shares held by each Investor shall be immediately, irrevocably and fully released on the same terms from any remaining lock-up and other restrictions set forth herein without any further action by the Investors or the Company. |
11. | Upon execution, this Agreement shall supersede the Lock-Up Agreement, dated June 21, 2022, as amended by Amendment No.1 effective September 9, 2022, and this Agreement and the Registration Rights Agreement shall contain the entire understanding of the parties with respect to the matters covered herein. |
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
ALBERTSONS COMPANIES, INC. | ||
By: | /s/ Juliette Pryor | |
Name: | Juliette Pryor | |
Title: | EVP and General Counsel | |
Schottenstein | ||
INVESTOR: | ||
By: |
JUBILEE ABS HOLDING LLC | |
By:/s/ Ben Kraner | ||
Ben Kraner | ||
Name | ||
Manager | ||
Title |
[Signature Page to Company Lock-Up Agreement]
Exhibit 10.3
Execution Version
LOCK-UP AGREEMENT
This Lock-Up Agreement (the Agreement) is entered into by and between Albertsons Companies, Inc. (the Company) and each undersigned investor (each, an Investor) as of October 13, 2022.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger dated as of the date hereof by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc., (as may be amended, supplemented or modified from time to time, the Merger Agreement); and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, parties hereto desire to provide for a new lock-up period as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Company and each Investor, intending to be legally bound, hereby agree as follows:
1. | Each Investor hereby agrees that, during the Lock-Up Period set forth below, such Investor will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of (collectively, Transfer) any shares of Class A Common Stock, par value $0.01 per share (the Shares), of the Company, or any options or warrants to purchase any Shares, or any securities convertible into, exchangeable for or that represent the right to receive Shares, owned directly by such Investor (including holding as a custodian) or with respect to which such Investor has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (Beneficial Ownership) as of the date hereof (or acquired from the Company in exchange for or with respect to such securities) (collectively, and for so long as such Shares are subject to the terms of this Agreement, the Restricted Shares), except as set forth in this Agreement. |
2. | The foregoing restriction is expressly agreed to preclude each Investor from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Restricted Shares even if such Shares would be disposed of by someone other than such Investor. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option or forward sale or similar contract) with respect to any of the Restricted Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. |
3. | The Lock-Up Period shall commence as of the date hereof and expire the earliest of (i) the valid termination of the Merger Agreement pursuant to its terms, (ii) HPS Investment Partners, LLC and its Affiliates (HPS) having Beneficial Ownership of, fewer than 500 shares of Series A Convertible Preferred Stock, par value $0.01, of the Company (Preferred Stock), (iii) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the Securities and Exchange Commission, plus, if applicable, the Early Filing Period and (iv) 210 days after the date of the Merger Agreement. The Early Filing Period shall be the period, if any, beginning on the date of filing of the Company Information Statement in definitive form with the Securities and Exchange Commission and ending on the 90th day following the date of the Merger Agreement. With respect to clauses (iii) and (iv) above, the applicable Lock-Up Period shall expire at 11:59 PM, New York City Time, on such date of expiration. |
4. | Each Investor may Transfer all or any portion of the Restricted Shares during the Lock-Up Period as follows: (i) as a bona fide gift or gifts; provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of such Investor or any member of the immediate family of such Investor; provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any Affiliate of such Investor or any investment fund or other entity controlled or managed by such Investor or its Affiliates, (but in each case under this clause (iii), not including a portfolio company); provided that such person agrees to be bound in writing by the restrictions set forth herein, (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above; provided that such person agrees to be bound in writing by the restrictions set forth herein, (v) pursuant to an order of a court or regulatory agency, (vi) pursuant to the pledge, hypothecation or other granting of a security interest in the Restricted Shares to one or more banks or financial institutions as bona fide collateral or security for any loan, advance or extension of credit and any transfer upon foreclosure upon such Shares or thereafter, (vii) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares that constitutes a change of control of the Company (provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed or Restricted Shares are not purchased thereunder, the Restricted Shares not purchased shall remain subject to the provisions of this Agreement), and (viii) to a bank or brokerage account in the name of such Investor, or an Affiliate of such Investor, provided that such Investor provides a written certification to the Company that such Investor or Affiliate thereof has sole control over the transactions in any such bank or brokerage account and acknowledgment that any Shares so transferred shall remain subject to this Agreement in accordance with the terms hereof. To facilitate the transfer contemplated by clause (viii), at the written request of such Investor, the Company shall instruct, and use its reasonable best efforts to cause, the Companys transfer agent to cause Shares of such Investor held in registered form on the books and records of the transfer agent to be transferred on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (DWAC) or the Direct Registration System (DRS) to the designated accounts of such Investor, as applicable, at one or more brokerage firms designated by such Investor. For purposes of this Agreement immediate family shall mean any relationship by blood, marriage or adoption, not more remote |
2
than first cousin. Each Investor also agrees and consents to the continued status of the stop transfer instructions with the Companys transfer agent and registrar against the transfer of the Restricted Shares except in compliance with the foregoing restrictions. Each Investor now has, and, except as contemplated by clauses (i)-(viii) above and for Restricted Shares otherwise Transferred in accordance herewith, for the duration of this Agreement will have, good and valuable title to the Restricted Shares. For purposes of this Agreement, Affiliate shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof. |
5. | Each Investor party to that certain Registration Rights Agreement by and among the Company and certain parties thereto, dated June 9, 2020 (as amended, the Registration Rights Agreement), agrees not to exercise any demand registration rights or piggyback registration rights as contemplated under Article II of the Registration Rights Agreement with respect to any Restricted Shares during the Lock-Up Period. |
6. | Each Investor understands that HPS has separately agreed with the Company it will not Transfer any shares of Common Stock or Preferred Stock that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of the definition thereof; provided that HPS may Transfer such shares pursuant to clauses (i) through (viii) of Section 4 to the same extent that an Investor is permitted to Transfer Restricted Shares during the Lock-Up Period pursuant to such clauses. The Company agrees to enforce and, without the prior consent of the Investors, not amend, supplement, waive or modify such restriction on Transfer on the part of HPS. |
7. | [Reserved] |
8. | The agreements and commitments of each Investor herein shall be several and not joint and not with or to, or for the benefit of, any other Investor hereto. |
9. | This Agreement may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) each Sponsor Lock-Up Party. Sponsor Lock-Up Party means each Investor, Cerberus Capital Management, L.P., Klaff Realty, L.P., Jubilee ABS Holding LLC, and Kimco Realty Corporation, and their respective Affiliates, who have entered into a lock-up agreement on the date first written above in form and substance similar to this Agreement. |
10. | Other than with respect to any agreement between the Company and HPS, in the event that any Sponsor Lock-Up Party or any other holder of Shares subject to a similar lock-up or other agreement other than an Investor is permitted by the Company to sell or otherwise transfer or dispose of any such Shares (whether in one or multiple releases), then the same percentage of such Shares held by each Investor shall be immediately, irrevocably and fully released on the same terms from any remaining lock-up and other restrictions set forth herein without any further action by the Investors or the Company. |
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11. | Upon execution, this Agreement shall supersede the Lock-Up Agreement, dated June 21, 2022, as amended by Amendment No.1 dated September 9, 2022, and this Agreement and the Registration Rights Agreement shall contain the entire understanding of the parties with respect to the matters covered herein. |
[Remainder of the page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
ALBERTSONS COMPANIES, INC. | ||
By: | /s/ Juliette Pryor | |
Name: | Juliette Pryor | |
Title: | EVP and General Counsel |
[Signature Page to Company Lock-Up Agreement]
[Signature Page to Company Lock-Up Agreement]
LUBERT-ADLER REAL ESTATE FUND VI, L.P.
By: Lubert-Adler Group VI, L.P., its general partner
By: Lubert-Adler Group VI, LLC, its general partner | ||
By: | /s/ Ryan Forry | |
Ryan Forry | ||
Name | ||
COO | ||
Title | ||
LUBERT-ADLER REAL ESTATE FUND VI-A, L.P.
By: Lubert-Adler Group VI, L.P., its general partner
By: Lubert-Adler Group VI, LLC, its general partner | ||
By: | /s/ Ryan Forry | |
Ryan Forry | ||
Name | ||
COO | ||
Title |
[Signature Page to Company Lock-Up Agreement]
LUBERT-ADLER REAL ESTATE FUND VI-B, L.P.
By: Lubert-Adler Group VI-B, L.P., its general partner
By: Lubert-Adler Group VI-B, LLC, its general partner | ||
By: | /s/ Ryan Forry | |
Ryan Forry | ||
Name | ||
COO | ||
Title | ||
L-A SATURN ACQUISITION, L.P.
By: L-A Group Saturn, LLC, its general partner | ||
By: | /s/ Ryan Forry | |
Ryan Forry | ||
Name | ||
COO | ||
Title | ||
L-A ASSET MANAGEMENT SERVICES, L.P.
By: Lubert-Adler GP West, LLC, its General Partner | ||
By: | /s/ Ryan Forry | |
Ryan Forry | ||
Name | ||
COO | ||
Title |
[Signature Page to Company Lock-Up Agreement]
Exhibit 10.4
Execution Version
LOCK-UP AGREEMENT
This Lock-Up Agreement (the Agreement) is entered into by and between Albertsons Companies, Inc. (the Company) and each undersigned investor (each, an Investor) as of October 13, 2022.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger dated as of the date hereof by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc., (as may be amended, supplemented or modified from time to time, the Merger Agreement); and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, parties hereto desire to provide for a lock-up period as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Company and each Investor, intending to be legally bound, hereby agree as follows:
1. | Each Investor hereby agrees that, during the Lock-Up Period set forth below, such Investor will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of (collectively, Transfer) any shares of Class A Common Stock, par value $0.01 per share (the Shares), of the Company, or any options or warrants to purchase any Shares, or any securities convertible into, exchangeable for or that represent the right to receive Shares, owned directly by such Investor (including holding as a custodian) or with respect to which such Investor has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (Beneficial Ownership) as of the date hereof (or acquired from the Company in exchange for or with respect to such securities) (collectively, and for so long as such Shares are subject to the terms of this Agreement, the Restricted Shares), except as set forth in this Agreement. |
2. | The foregoing restriction is expressly agreed to preclude each Investor from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Restricted Shares even if such Shares would be disposed of by someone other than such Investor. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option or forward sale or similar contract) with respect to any of the Restricted Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. |
3. | The Lock-Up Period shall commence as of the date hereof and expire upon the earliest of (i) the valid termination of the Merger Agreement pursuant to its terms, (ii) HPS Investment Partners, LLC and its Affiliates (HPS) having Beneficial Ownership of, fewer than 500 shares of Series A Convertible Preferred Stock, par value $0.01, of the Company (Preferred Stock), (iii) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the Securities and Exchange Commission, plus, if applicable, the Early Filing Period and (iv) 210 days after the date of the Merger Agreement. The Early Filing Period shall be the period, if any, beginning on the date of filing of the Company Information Statement in definitive form with the Securities and Exchange Commission and ending on the 90th day following the date of the Merger Agreement. With respect to clauses (iii) and (iv) above, the applicable Lock-Up Period shall expire at 11:59 PM, New York City Time, on such date of expiration. |
4. | Each Investor may Transfer all or any portion of the Restricted Shares during the Lock-Up Period as follows: (i) as a bona fide gift or gifts; provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of such Investor or any member of the immediate family of such Investor; provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any Affiliate of such Investor or any investment fund or other entity controlled or managed by such Investor or its Affiliates, (but in each case under this clause (iii), not including a portfolio company); provided that such person agrees to be bound in writing by the restrictions set forth herein, (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above; provided that such person agrees to be bound in writing by the restrictions set forth herein, (v) pursuant to an order of a court or regulatory agency, (vi) pursuant to the pledge, hypothecation or other granting of a security interest in the Restricted Shares to one or more banks or financial institutions as bona fide collateral or security for any loan, advance or extension of credit and any transfer upon foreclosure upon such Shares or thereafter, (vii) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares that constitutes a change of control of the Company (provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed or Restricted Shares are not purchased thereunder, the Restricted Shares not purchased shall remain subject to the provisions of this Agreement), (viii) to a bank or brokerage account in the name of such Investor, or an Affiliate of such Investor, provided that such Investor provides a written certification to the Company that such Investor or Affiliate thereof has sole control over the transactions in any such bank or brokerage account and acknowledgment that any Shares so transferred shall remain subject to this Agreement in accordance with the terms hereof; or (ix) in addition to Transfers otherwise permitted hereunder, and notwithstanding anything to the contrary herein, the undersigned Investor may, in its sole discretion, Transfer, without restriction or limitation, up to 12,000,000 Restricted Shares. For the avoidance of doubt, any Restricted Shares Transferred pursuant to clause (ix) of this Section 4 and any other clause of this Section 4 that does not otherwise restrict the Transfer of such Restricted Shares, shall from and after such Transfer no longer be subject to any of the restrictions set forth in Section 1 of this Agreement (such Shares, Unrestricted Shares). To facilitate the transfer contemplated by clause (viii), at the written request of such Investor, the Company shall instruct, and use its reasonable best efforts to cause, the Companys |
2
transfer agent to cause Shares of such Investor held in registered form on the books and records of the transfer agent to be transferred on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (DWAC) or the Direct Registration System (DRS) to the designated accounts of such Investor, as applicable, at one or more brokerage firms designated by such Investor. For purposes of this Agreement immediate family shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Each Investor also agrees and consents to the continued status of the stop transfer instructions with the Companys transfer agent and registrar against the transfer of the Restricted Shares except in compliance with the foregoing restrictions. Each Investor now has, and, except as contemplated by clauses (i)-(ix) above and for Restricted Shares otherwise Transferred in accordance herewith, for the duration of this Agreement will have, good and valuable title to the Restricted Shares. For purposes of this Agreement, Affiliate shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof. |
5. | Each Investor party to that certain Registration Rights Agreement by and among the Company and certain parties thereto, dated June 9, 2020 (as amended, the Registration Rights Agreement), agrees not to exercise any demand registration rights or piggyback registration rights as contemplated under Article II of the Registration Rights Agreement with respect to any Restricted Shares during the Lock-Up Period. |
6. | Each Investor understands that HPS has separately agreed with the Company it will not Transfer any shares of Common Stock or Preferred Stock that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of the definition thereof; provided that HPS may Transfer such shares pursuant to clauses (i) through (viii) of Section 4 to the same extent that an Investor is permitted to Transfer Restricted Shares during the Lock-Up Period pursuant to such clauses. The Company agrees to enforce and, without the prior consent of the Investors, not amend, supplement, waive or modify such restriction on Transfer on the part of HPS. |
7. | Each of the Investors agrees that it will not Transfer any Restricted Shares that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of Section 3 of this Agreement; provided that the foregoing restriction shall not apply to any Transfer of shares pursuant to clauses (i) through (ix) of Section 4 and any Transfer pursuant to Section 10; provided, further, that for the avoidance of doubt, notwithstanding anything to the contrary herein, any Investor may freely Transfer, without restriction or limitation, any Unrestricted Shares. |
8. | The agreements and commitments of each Investor herein shall be several and not joint and not with or to, or for the benefit of, any other Investor hereto. |
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9. | This Agreement may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) each Sponsor Lock-Up Party. Sponsor Lock-Up Party means each Investor, Cerberus Capital Management, L.P., Klaff Realty, L.P., Lubert-Adler Partners, L.P. and Jubilee ABS Holding LLC, and their respective Affiliates, who have entered into a lock-up agreement on the date first written above in form and substance similar to this Agreement. |
10. | Other than with respect to any agreement between the Company and HPS, in the event that any Sponsor Lock-Up Party or any other holder of Shares subject to a similar lock-up or other agreement other than an Investor is permitted by the Company to sell or otherwise transfer or dispose of any such Shares (whether in one or multiple releases), then the same percentage of such Shares held by each Investor shall be immediately, irrevocably and fully released on the same terms from any remaining lock-up and other restrictions set forth herein without any further action by the Investors or the Company. |
11. | Upon execution, this Agreement and the Registration Rights Agreement shall contain the entire understanding of the parties with respect to the matters covered herein. |
[Remainder of the page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
ALBERTSONS COMPANIES, INC. | ||
By: | /s/ Juliette Pryor | |
Name: | Juliette Pryor | |
Title: | EVP and General Counsel | |
KIMCO Investors | ||
KRSX MERGE LLC | ||
By: | /s/ Raymond Edwards | |
Name | Raymond Edwards | |
Title | Exec VP |
KRS ABS, LLC | ||
By: Kimsouth Realty Inc., its sole member | ||
By: | /s/ Raymond Edwards | |
Name | Raymond Edwards | |
Title | Exec VP |
[Signature Page to Company Lock-Up Agreement]
Exhibit 10.5
Execution Version
LOCK-UP AGREEMENT
This Lock-Up Agreement (the Agreement) is entered into by and between Albertsons Companies, Inc. (the Company) and each undersigned investor (each, an Investor) as of October 13, 2022.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger dated as of the date hereof by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc., (as may be amended, supplemented or modified from time to time, the Merger Agreement); and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, parties hereto desire to provide for a new lock-up period as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Company and each Investor, intending to be legally bound, hereby agree as follows:
1. | Each Investor hereby agrees that, during the Lock-Up Period set forth below, such Investor will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of (collectively, Transfer) any shares of Class A Common Stock, par value $0.01 per share (the Shares), of the Company, or any options or warrants to purchase any Shares, or any securities convertible into, exchangeable for or that represent the right to receive Shares, owned directly by such Investor (including holding as a custodian) or with respect to which such Investor has beneficial ownership within the rules and regulations of the Securities and Exchange Commission (Beneficial Ownership) as of the date hereof (or acquired from the Company in exchange for or with respect to such securities) (collectively, and for so long as such Shares are subject to the terms of this Agreement, the Restricted Shares), except as set forth in this Agreement. |
2. | The foregoing restriction is expressly agreed to preclude each Investor from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Restricted Shares even if such Shares would be disposed of by someone other than such Investor. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option or forward sale or similar contract) with respect to any of the Restricted Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. |
3. | The Lock-Up Period shall commence as of the date hereof and expire the earliest of (i) the valid termination of the Merger Agreement pursuant to its terms, (ii) HPS Investment Partners, LLC and its Affiliates (HPS) having Beneficial Ownership of, fewer than 500 shares of Series A Convertible Preferred Stock, par value $0.01, of the Company (Preferred Stock), (iii) 120 days after the date of filing of the Company Information Statement (as defined in the Merger Agreement) in definitive form with the Securities and Exchange Commission, plus, if applicable, the Early Filing Period and (iv) 210 days after the date of the Merger Agreement. The Early Filing Period shall be the period, if any, beginning on the date of filing of the Company Information Statement in definitive form with the Securities and Exchange Commission and ending on the 90th day following the date of the Merger Agreement. With respect to clauses (iii) and (iv) above, the applicable Lock-Up Period shall expire at 11:59 PM, New York City Time, on such date of expiration. |
4. | Each Investor may Transfer all or any portion of the Restricted Shares during the Lock-Up Period as follows: (i) as a bona fide gift or gifts; provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of such Investor or any member of the immediate family of such Investor; provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any Affiliate of such Investor or any investment fund or other entity controlled or managed by such Investor or its Affiliates, (but in each case under this clause (iii), not including a portfolio company); provided that such person agrees to be bound in writing by the restrictions set forth herein, (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above; provided that such person agrees to be bound in writing by the restrictions set forth herein, (v) pursuant to an order of a court or regulatory agency, (vi) pursuant to the pledge, hypothecation or other granting of a security interest in the Restricted Shares to one or more banks or financial institutions as bona fide collateral or security for any loan, advance or extension of credit and any transfer upon foreclosure upon such Shares or thereafter, (vii) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares that constitutes a change of control of the Company (provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed or Restricted Shares are not purchased thereunder, the Restricted Shares not purchased shall remain subject to the provisions of this Agreement), and (viii) to a bank or brokerage account in the name of such Investor, or an Affiliate of such Investor, provided that such Investor provides a written certification to the Company that such Investor or Affiliate thereof has sole control over the transactions in any such bank or brokerage account and acknowledgment that any Shares so transferred shall remain subject to this Agreement in accordance with the terms hereof. To facilitate the transfer contemplated by clause (viii), at the written request of such Investor, the Company shall instruct, and use its reasonable best efforts to cause, the Companys transfer agent to cause Shares of such Investor held in registered form on the books and records of the transfer agent to be transferred on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (DWAC) or the Direct Registration System (DRS) to the designated accounts of such Investor, as applicable, at one or more brokerage firms designated by such Investor. For purposes of this Agreement immediate family shall mean any relationship by blood, marriage or adoption, not more remote |
2
than first cousin. Each Investor also agrees and consents to the continued status of the stop transfer instructions with the Companys transfer agent and registrar against the transfer of the Restricted Shares except in compliance with the foregoing restrictions. Each Investor now has, and, except as contemplated by clauses (i)-(viii) above and for Restricted Shares otherwise Transferred in accordance herewith, for the duration of this Agreement will have, good and valuable title to the Restricted Shares. For purposes of this Agreement, Affiliate shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof. |
5. | Each Investor party to that certain Registration Rights Agreement by and among the Company and certain parties thereto, dated June 9, 2020 (as amended, the Registration Rights Agreement), agrees not to exercise any demand registration rights or piggyback registration rights as contemplated under Article II of the Registration Rights Agreement with respect to any Restricted Shares during the Lock-Up Period. |
6. | Each Investor understands that HPS has separately agreed with the Company it will not Transfer any shares of Common Stock or Preferred Stock that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-Up Period pursuant to clause (iii) or (iv) of the definition thereof; provided that HPS may Transfer such shares pursuant to clauses (i) through (viii) of Section 4 to the same extent that an Investor is permitted to Transfer Restricted Shares during the Lock-Up Period pursuant to such clauses. The Company agrees to enforce and, without the prior consent of the Investors, not amend, supplement, waive or modify such restriction on Transfer on the part of HPS. |
7. | [Reserved] |
8. | The agreements and commitments of each Investor herein shall be several and not joint and not with or to, or for the benefit of, any other Investor hereto. |
9. | This Agreement may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) each Sponsor Lock-Up Party. Sponsor Lock-Up Party means each Investor, Cerberus Capital Management, L.P., Lubert-Adler Partners, L.P., Jubilee ABS Holding LLC, and Kimco Realty Corporation, and their respective Affiliates, who have entered into a lock-up agreement on the date first written above in form and substance similar to this Agreement. |
10. | Other than with respect to any agreement between the Company and HPS, in the event that any Sponsor Lock-Up Party or any other holder of Shares subject to a similar lock-up or other agreement other than an Investor is permitted by the Company to sell or otherwise transfer or dispose of any such Shares (whether in one or multiple releases), then the same percentage of such Shares held by each Investor shall be immediately, irrevocably and fully released on the same terms from any remaining lock-up and other restrictions set forth herein without any further action by the Investors or the Company. |
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11. | Upon execution, this Agreement shall supersede the Lock-Up Agreement, dated June 21, 2022, as amended by Amendment No.1 dated September 9, 2022, and this Agreement and the Registration Rights Agreement shall contain the entire understanding of the parties with respect to the matters covered herein. |
[Remainder of the page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
ALBERTSONS COMPANIES, INC. | ||
By: | /s/ Juliette Pryor | |
Name: | Juliette Pryor | |
Title: | EVP and General Counsel |
KLAFF: | ||
KLA A MARKETS, LLC | ||
By: | /s/ Hersch Klaff | |
Hersch Klaff | ||
Name | ||
President | ||
Title
K-SATURN, LLC | ||
By: | /s/ Hersch Klaff | |
Hersch Klaff | ||
Name | ||
President | ||
Title |
[Signature Page to Company Lock-Up Agreement]
A-S KLAFF EQUITY, LLC | ||
By: | /s/ Hersch Klaff | |
Hersch Klaff | ||
Name | ||
President | ||
Title | ||
KLAFF-W LLC | ||
By: | /s/ Hersch Klaff | |
Hersch Klaff | ||
Name | ||
President | ||
Title |
[Signature Page to Company Lock-Up Agreement]
Exhibit 10.6
Execution Version
SHORT-TERM LOCK-UP AGREEMENT
This Short-Term Lock-Up Agreement (the Agreement) is entered into by and between Albertsons Companies, Inc. (the Company) and HPS Investment Partners, LLC (HPS) as of October 13, 2022.
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger dated October 13, 2022 by and among the Company, The Kroger Corp. and Kettle Merger Sub, Inc., (as may be amended, supplemented or modified from time to time, the Merger Agreement);
WHEREAS, in connection with the Merger Agreement, the Company and the investors set forth on Annex A have entered into lock-up agreements, dated as of October 13, 2022 (collectively, the Investor Lock-Up Agreements); and
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, parties hereto desire to provide for a short-term lock-up, agreements with respect to matters contained in the Investor Lock-Up Agreements and other matters as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Company and HPS, intending to be legally bound, hereby agree as follows:
1. | Any terms not defined herein shall have the meaning set forth in the Investor Lock-Up Agreement. |
2. | The Investor Lock-Up Agreements may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) HPS. |
3. | This Agreement may be amended, supplemented or otherwise modified, or any provision waived, only by a written instrument executed by (i) the Company and (ii) HPS. |
4. | HPS agrees that it shall not Transfer any shares of Preferred Stock or shares of Common Stock that it has Beneficial Ownership of during the 30-day period immediately prior to the expiration of the Lock-up Period pursuant to Section 3, clause (iii) or (iv) of the Investor Lock-Up Agreements; provided that HPS may Transfer such shares during such 30-day period pursuant to clauses (i) through (viii) of Section 4 of the Investor Lock-Up Agreements to the same extent that an Investor is permitted to Transfer shares of Common Stock during the Lock-up Period pursuant to such clauses. |
5. | This Agreement shall automatically terminate without any action of the Company or HPS upon the termination or expiration of the Lock-Up Period set forth in the Investor Lock-Up Agreements. |
6. | The Agreement shall contain the entire understanding of the parties with respect to the matters covered herein. |
7. | The Company agrees to enforce the restrictions on Transfer on each Investor pursuant to their respective Investor Lock-Up Agreement. |
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2
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.
ALBERTSONS COMPANIES, INC. | ||
By: | /s/ Juliette Pryor | |
Name: | Juliette Pryor | |
Title: | EVP and General Counsel | |
HPS: | ||
HPS INVESTMENT PARTNERS, LLC | ||
By: | /s/ Shant Babikian | |
Shant Babikian | ||
Name | ||
Managing Director | ||
Title |
[Signature Page to Short Term Lock-Up Agreement]
ANNEX A
Kimco Realty Corp.
Schottenstein Stores Corp. (Jubilee ABS Holding LLC)
Cerberus Capital Management, L.P.
Klaff Realty, L.P
Lubert-Adler Partners, L.P.
Exhibit 99.1
Investor Relations Contact:
investor-relations@albertsons.com
Albertsons Companies Announces Special Dividend in Connection with
Signing of Merger Agreement
October 14, 2022 - Boise, ID - Albertsons Companies, Inc. (NYSE: ACI) (the Company) today announced its Board of Directors has declared a special cash dividend of $6.85 per share of Class A common stock (the Special Dividend). The Special Dividend is payable on November 7, 2022, to stockholders of record as of the close of business on October 24, 2022. The Special Dividend has been declared in connection with the Company entering into an Agreement and Plan of Merger, dated October 13, 2022 by and among the Company, The Kroger Co. and Kettle Merger Sub, Inc. (the Merger Agreement). Details regarding the Merger Agreement and the transactions contemplated by the Merger Agreement can be found in the combined press release issued by the Company and The Kroger Co. on October 14, 2022.
About Albertsons Companies
Albertsons Companies is a leading food and drug retailer in the United States. As of June 18, 2022, the Company operated 2,273 retail food and drug stores with 1,720 pharmacies, 402 associated fuel centers, 22 dedicated distribution centers and 19 manufacturing facilities. The Company operates stores across 34 states and the District of Columbia with 24 banners including Albertsons, Safeway, Vons, Jewel-Osco, Shaws, Acme, Tom Thumb, Randalls, United Supermarkets, Pavilions, Star Market, Haggen, Carrs, Kings Food Markets and Balduccis Food Lovers Market. The Company is committed to helping people across the country live better lives by making a meaningful difference, neighborhood by neighborhood. In 2021, along with the Albertsons Companies Foundation, the Company contributed nearly $200 million in food and financial support, including approximately $40 million through our Nourishing Neighbors Program to ensure those living in our communities have enough to eat.
Important Notice Regarding Forward-Looking Statements
This press release contains certain forward-looking statements. Statements that are not historical facts, including statements regarding the Companys expectations, perspectives and projected financial performance, are forward looking statements. The words expect, believe, estimate, intend, plan and similar expressions, when related to the Company and its subsidiaries, indicate forward-looking statements. The forward-looking statements are based on the Companys current expectations and involve risks and uncertainties. The Company cautions that actual results could differ materially from the expectations described in the forward-looking statements. These risks and uncertainties that could cause actual results to differ materially from those expressed or implied in the forward-looking statements include those related to the COVID-19 pandemic, about which there are still many unknowns, including the duration of the pandemic and the extent of its impact. The Company also cautions that undue reliance should not be placed on any of the forward-looking statements, which speak only as of the date of this release. The Company undertakes no responsibility to update any of these forward-looking statements to reflect events or circumstances after the date of this report or to reflect actual outcomes. Certain potential factors that could affect our business and financial results and cause actual results to differ materially from those expressed or implied in any forward-looking statements are described in the Risk Factors section or other sections in our Annual Report on Form 10-K filed with the U.S. Securities and Exchange Commission (the SEC) on April 26, 2022, and in reports subsequently filed with the SEC and available at the SECs website at www.sec.gov.
Additional Information and Where to Find It
The Company will prepare an information statement on Schedule 14C for its stockholders with respect to the approval of the transaction referenced herein. When completed, the information statement will be mailed to the Companys stockholders. You may obtain copies of all documents filed by the Company with the SEC regarding this transaction, free of charge, at the SECs website, www.sec.gov or from the Companys website at https://www.albertsonscompanies.com/investors/overview/.