Stockholders' Agreement - Kathryn Albertson, Albertson's Inc. and Alscott LP #1
STOCKHOLDERS' AGREEMENT
This Agreement (the "Stockholders' Agreement"), dated as of
February 2nd, 1996, is by and among KATHRYN ALBERTSON, ALBERTSON'S, INC., a
Delaware corporation (the "Corporation"), and Alscott Limited Partnership #1, a
Texas limited partnership (the "Partnership").
RECITALS
WHEREAS, the Corporation and Kathryn Albertson entered into an
agreement, dated December 31, 1979 (the "Old Agreement"), pursuant to which
Kathryn Albertson granted to the Corporation, among other things, a right of
first refusal to the shares of common stock of the Corporation ("Common Stock")
owned or thereafter acquired by her; and
WHEREAS, on August 3, 1995, Kathryn Albertson and Alscott
Limited Partnership #2, a Texas Limited Partnership, entered into an
agreement(the "Contribution Agreement"), pursuant to which Kathryn Albertson
contributed 20,840,446 shares of Common Stock owned by her to Alscott Limited
Partnership #2, and, in August of 1995, an additional 2,000 shares of Common
Stock were contributed to Alscott Limited Partnership #2 as a result of the
exercise of a stock option pursuant to the Albertson's, Inc. 1995 Stock Option
Plan for Non-Employee Directors by Kathryn Albertson. Effective January 1,
1996, the 26,846,046 shares of Common Stock held by Alscott Limited Partnership
#2 (including the 20,842,446 shares of Common Stock contributed by Kathryn
Albertson), were transferred to the Partnership, and Alscott Limited
Partnership #2 was liquidated and dissolved, all with the express approval of
Albertson's, Inc.; and
WHEREAS, concurrently herewith, the Corporation and the
Partnership are entering into an agreement, dated of even date herewith (the
"New Agreement"), pursuant to which the parties thereto are formally making the
Partnership a party to the terms and conditions of an agreement entered into on
August 3, 1995 between the Corporation and Alscott Limited Partnership #2 and
pursuant to which the Partnership is granting to the
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Corporation, among other things, a right of first refusal to the shares of
Common Stock of the Corporation contributed, presently or hereafter, to the
Partnership by Kathryn Albertson (including any stock dividends and the like
related to such Common Stock); and
WHEREAS, the parties hereto desire to enter into this
Stockholders' Agreement in order to formally make the Partnership a party to
the terms and conditions of an agreement entered into on August 3, 1995 among
Kathryn Albertson, the Corporation and Alscott Limited Partnership #2 which
specifically provided that it was binding upon successors of Alscott Limited
Partnership #2 and to provide, among other things, (i) that the transactions
pursuant to the Contribution Agreement and the transfer to the Partnership
effective January 1, 1996, shall not cause any of the provisions of Sections 3
or 4 of the Old Agreement to be activated and (ii) for the coordination of the
actions by Kathryn Albertson and the Partnership.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and obligations set forth in this Stockholders' Agreement, the
parties hereto agree as follows:
1. Non-Application and Waiver. Each of Kathryn
Albertson and/or the Corporation waives, with respect to the contribution of
the shares of Common Stock to the Partnership pursuant to the Contribution
Agreement and the transfer to the Partnership effective January 1, 1996, each
of their rights they have under Sections 3 and 4 of the Old Agreement, and
Sections 3 and 4 of the Old Agreement shall have no application to the
contribution of the Common Stock pursuant to the Contribution Agreement and the
transfer to the Partnership effective January 1, 1996.
2. Continuing Effect of Old Agreement. All terms and
provisions of the Old Agreement shall continue to apply to (i) the shares of
Common Stock now owned by Kathryn Albertson and not contributed to the
Partnership and (ii) any shares of Common Stock hereafter acquired by Kathryn
Albertson.
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3. Cooperation With Respect to Public Offerings. If
the provisions of Section 5 of the Old Agreement and of the New Agreement are
activated so that the shares of Common Stock subject to the Old Agreement and
New Agreement are to be sold by the personal representative of Kathryn
Albertson (the "Personal Representative") and by the Partnership, respectively,
upon the death of Kathryn Albertson, the Personal Representative and the
Partnership shall cooperate in all respects with regard to the public offering
of the shares of Common Stock to be sold pursuant to the terms of such Sections
5. In the event that the Personal Representative and the Partnership shall not
agree as to the terms of the sale of the shares of Common Stock as provided in
such Sections 5, the terms of the sale of the Common Stock shall be determined
by the Personal Representative.
4. Exercise of Options. In the event of the death of
Kathryn Albertson, the Corporation shall either (i) exercise both of its
options to purchase shares of Common Stock pursuant to Section 4 of the New
Agreement and Section 4 of the Old Agreement, respectively, or (ii) refrain
from exercising each such option to purchase shares of Common Stock, but in no
event shall the Corporation exercise one of such options without exercising the
other.
5. Notices. All notices, offers, acceptances,
demands, requests and other communications contemplated in this Stockholders'
Agreement shall be in writing and shall be deemed delivered either (a) by
personal delivery to the party to whom it is addressed or (b) upon the
expiration of three (3) days following the date of mailing (as shown by the
postmark on the envelope) through United States Certified Mail, postage
prepaid, return receipt requested, addressed to the respective parties hereto
at the following addresses:
In the case of Kathryn Albertson:
Kathryn Albertson
Suite 100
380 E. Parkcenter Blvd.
Boise, Idaho 83706
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In the case of the Partnership:
Alscott Limited Partnership #1
Suite 100
380 E. Parkcenter Blvd.
Boise, Idaho 83706
Attention: Thomas Wilford
In the case of the Corporation, a separate notice addressed to each of:
Thomas R. Saldin Kaye L. O'Riordan
Executive Vice President, Corporate Secretary and
Administration and Senior Attorney
General Counsel Albertson's, Inc.
Albertson's, Inc. 250 E. Parkcenter Blvd.,
250 E. Parkcenter Blvd. Boise, Idaho 83706
Boise, Idaho 83706
Kathryn Albertson or the Partnership may change her/its address above stated by
notice in writing to the Corporation. The Corporation may change individual
officers or the address above stated by notice in writing to both Kathryn
Albertson and the Partnership.
All notices required to be given by the Corporation to Kathryn
Albertson under the Old Agreement or this Stockholders' Agreement shall
simultaneously be given to the Partnership, and all notices required to be
given by the Corporation to the Partnership under the New Agreement or this
Stockholders' Agreement shall simultaneously be given to Kathryn Albertson, in
each case pursuant to the respective provisions of such agreements.
6. Succession.
6.1. It is agreed that no party to this Stockholders'
Agreement shall assign this Stockholders' Agreement or its rights hereunder to
any third party without the express approval in writing of each other party
hereto. This Stockholders' Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns
(to the extent approved by each other party hereto).
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6.2. The provisions of this Stockholders' Agreement to be
performed following the death of Kathryn Albertson shall be binding upon the
personal representative of the estate of Kathryn Albertson, then deceased, and
her heirs and devisees.
7. Enforcement - Attorneys Fees.
7.1. Each party hereto recognizes that her/its obligations
hereunder are unique and that the breach of any obligation could not be
adequately compensated by monetary damages; therefore, each party directs that
specific performance of each such obligation shall be available to the other
party for any such breach.
7.2. In the event suit or action be instituted by any party
to enforce performance by another party of the terms and provisions of this
Stockholders' Agreement incumbent upon the other party to be kept or performed,
the prevailing party in such suit or action shall be entitled to recover a
reasonable sum as attorneys fees and all courts costs incurred on behalf of
that party and that amount shall be included in the judgment made and entered
in that action.
8. Other Agreements.
This Stockholders' Agreement together with the New Agreement
shall supersede any prior oral understanding between the parties with respect
to the sale and purchase of shares of Common Stock. Except to the extent
specifically otherwise provided in this Stockholders' Agreement, the Old
Agreement shall remain in full force and effect.
9. Validity - Legality.
In the event that any provision of this Stockholders' Agreement shall
be held invalid or illegal or unenforceable in whole or in part, the validity
of any other provision of this Stockholders' Agreement shall not in any manner
be affected thereby.
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10. Governing Law.
The provisions of this Stockholders' Agreement and the
interpretation thereof shall be governed and construed in accordance with the
laws of the State of Idaho.
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders' Agreement as of the date and year set forth first above.
ALBERTSON'S, INC.
THOMAS R. SALDIN
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By: Thomas R. Saldin
Title: Executive Vice President
Administration & General
Counsel
KATHRYN ALBERTSON
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Kathryn Albertson
ALSCOTT LIMITED PARTNERSHIP #1
By: Alscott, Inc.
General Partner
By: THOMAS WILFORD
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Thomas Wilford
Treasurer and Secretary
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