Stock Agreement - Alscott LP #1 and Albertson's Inc.
A G R E E M E N T
THIS AGREEMENT made and executed this 2nd day of February, 1996, by
and between Alscott Limited Partnership #1, a Texas limited partnership (the
"Partnership"), and ALBERTSON'S, INC., a Delaware corporation.
WHEREAS, Albertson's, Inc. and Alscott Limited Partnership #2, a Texas
limited partnership, entered into an agreement on August 3, 1995 which
specifically provided that it was binding upon successors of Alscott Limited
Partnership #2;
WHEREAS, effective January 1, 1996, all of the assets of Alscott
Limited Partnership #2, including the Common Stock of Albertson's, Inc. held
by Alscott Limited Partnership #2, were transferred to the Partnership, and
Alscott Limited Partnership #2 has been liquidated and dissolved, all with the
express approval of Albertson's, Inc.; and
WHEREAS, the parties hereto desire to enter into this agreement as
well as a Stockholders' Agreement (the "Stockholders' Agreement") to formally
make the Partnership a party to the terms and conditions of these agreements;
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NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants herein set
forth and other valuable considerations by each party received from each other
party, the adequacy of which is hereby acknowledged, IT IS AGREED:
Section 1. Definitions. As used in this agreement:
1.1. The term "corporation" shall refer to Albertson's, Inc., a
Delaware corporation.
1.2. The term "stock" shall refer to shares of common stock issued by
the corporation.
1.3. The term "business day" shall refer to any Monday, Tuesday,
Wednesday, Thursday or Friday which is not a legal holiday under the laws of
the State of Idaho.
1.4. The term "market value", as used in Sections 3, 4 and 5 shall
refer to an amount equivalent to the average of the closing prices per share of
stock on the composite tape for thirty consecutive business days upon which
shares of stock were traded upon any stock exchange whose prices are
incorporated in the composite tape preceding the date of determination.
1.5. The term "personal representative" shall refer to the duly
appointed personal representative of the estate of Kathryn Albertson, acting in
that capacity following the death of Kathryn Albertson. Should a special
administrator be appointed to administer the
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estate of Kathryn Albertson until such time as a personal representative of
that estate is appointed, the term "personal representative" shall also refer
to that special administrator.
1.6. The term "Shares" means (i) all stock now or hereafter
transferred to the Partnership by Kathryn Albertson; (ii) all stock transferred
to the Partnership by Alscott Limited Partnership #2 which was transferred to
that limited partnership by Kathryn Albertson; and (iii) all stock received by
the Partnership as a dividend or other distribution as a result of its
ownership of the stock referred to in clauses (i) and (ii).
Section 2. Recognition. The parties hereto recognize that:
2.1. Kathryn Albertson contributed 20,840,446 shares of Albertson's,
Inc. common stock to Alscott Limited Partnership #2 on August 3, 1995 pursuant
to the terms of a contribution agreement entered into between Kathryn Albertson
and Alscott Limited Partnership #2 on August 3, 1995 (the "Contribution
Agreement"). The aggregate number of shares of stock contributed to the
Partnership pursuant to the terms of the Contribution Agreement was 26,842,046.
In August of 1995, an additional 2,000 shares of stock were contributed to
Alscott Limited
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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. Also, in August of 1995, an additional 2,000 shares of 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 J. B. Scott. Effective January 1, 1996, the
26,846,046 shares of stock held by Alscott Limited Partnership #2 were
transferred to the Partnership, and Alscott Limited Partnership #2 was
liquidated and dissolved. As of the date of this agreement, Kathryn Albertson
has contributed a total of 20,842,446 shares of Albertson's, Inc. common stock
to the Partnership.
2.2. The provisions of this agreement and the covenants of the
respective parties contained in this agreement are in their best interests in
providing for an orderly sale and purchase of stock under the circumstances and
in the manner provided in this agreement.
Section 3. Sale of Stock - Right of First Refusal.
3.1. The provisions of subsection 3.2 shall remain in force and
effect during the lifetime of Kathryn Albertson. The provisions of subsection
3.3 shall remain
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in effect and binding upon a donee although the death of Kathryn Albertson
shall have occurred.
3.2. In the event that during the lifetime of Kathryn Albertson the
Partnership proposes to sell or dispose of (other than through gift) all or any
part of the Shares to a person or entity other than Kathryn Albertson, it shall
give notice in writing to the corporation stating its desire to sell such
Shares. If its proposal to sell such Shares is based upon a bona fide offer by
a third party to purchase, the notice delivered to the corporation shall state
its intention to sell the Shares, the identity of the prospective purchaser,
the price per share offered, the number of Shares to be sold and other terms of
the proposed sale. If its proposal to sell is not based upon a bona fide offer
to purchase, then the notice to the corporation shall state its intention to
sell Shares, the number of Shares to be sold, the proposed price per share
therefor and other terms of sale.
For a period of thirty (30) days following delivery of that notice to
the corporation, the corporation shall have an irrevocable and exclusive option
to purchase all (but not less than all) of the Shares proposed to be sold at
the price and upon the terms set forth in the notice.
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Should the corporation determine to exercise its option to purchase
those Shares, notice in writing of that decision shall be delivered to the
Partnership within the thirty day option period. A closing shall take place on
the ninetieth business day following the date of delivery to the Partnership of
the corporation's notice that it is exercising its option. The closing shall
take place at the office of the corporation. At the closing the corporation
shall pay to the Partnership such part of or the entire purchase price for
those Shares as is required to be paid at closing by the terms of sale, and, if
payment of a part of the purchase price is deferred, the corporation shall
deliver to the Partnership such other instruments as are contemplated by the
terms of sale. Simultaneously therewith the Partnership shall deliver to the
corporation certificates evidencing its ownership of the number of Shares
purchased by the corporation with proper assignments in blank thereof duly
executed by it with its signature guaranteed.
Should the corporation fail, refuse or decline to exercise its option
to purchase all of the Shares offered for sale within the thirty day option
period at the price and upon the terms set forth in the notice delivered to the
corporation, within a period of nine (9) months
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thereafter the Partnership may sell those Shares at a price equivalent to or
exceeding that which was stated in the notice to the corporation (and which was
available to the corporation), but the Partnership shall not sell those Shares
upon different terms or at a purchase price less than that which was stated in
the notice to the corporation (and available to the corporation) or sell a
part, only, of those Shares, or sell those Shares after the expiration of said
nine month period without again offering those Shares for purchase by the
corporation under the procedure set forth in this subsection.
3.3. The provisions of this section shall not be interpreted to
deprive the Partnership of the privilege to make gifts of Shares during Kathryn
Albertson's life-time; providing that as a condition to each gift the donee
shall agree in writing to grant to the corporation an option to purchase all of
the Shares so received as a gift from the Partnership utilizing the procedure
set forth in this subsection.
That agreement by the donee shall require the donee, its successors,
assigns and personal representative within a period of one year following the
date of the gift to deliver to the corporation an offer to sell to
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the corporation all of the Shares received as a gift from the Partnership.
For a period of ninety days following delivery of that notice to sell
Shares the corporation shall have an exclusive and irrevocable option to
purchase all (but not less than all) of the Shares so offered for sale by the
donee at the purchase price and on the terms set forth in this subsection.
Should the corporation determine to exercise its option to purchase
those Shares, notice in writing of that decision shall be delivered to the
donee within said ninety day option period; and having determined to exercise
its option to purchase those Shares, the purchase price shall be equivalent to
ninety-six percent (96%) of the market value per share determined as provided
in subsection 1.4 as of the date of delivery of the written notice by which the
corporation exercised its option to purchase the Shares, multiplied by the
number of Shares to be purchased.
The corporation having given notice of its decision to purchase
Shares, a closing shall take place at the general office of the corporation on
the 150th day after the date of delivery of the notice by the corporation
exercising its option to purchase the Shares or if such
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day is not a business day, on the first business day thereafter.
At the closing, the donee shall deliver to the corporation the
certificates evidencing ownership by it of the number of Shares purchased by
the corporation with proper assignments thereof in blank duly executed by or on
behalf of the donee with its signature guaranteed; and simultaneously therewith
the corporation shall pay to the donee the entire purchase price for those
Shares.
Should the corporation fail, refuse or decline to exercise its option
to purchase all of the Shares (received by the donee from the Partnership as a
gift) within the option period stated in this subsection, from and after the
expiration of that option period the donee shall hold those Shares, deal with
them and exercise all rights of ownership thereof free from the provisions of
this subsection and free from the provisions of the agreement entered into by
the donee at the time of the gift of stock.
Following a gift by the Partnership of Shares, upon the new
certificate evidencing ownership by the donee of those Shares the Secretary of
the corporation shall be authorized to endorse a legend corresponding to that
set forth in Section 7 and further incorporating by reference
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the agreement of the donee contemplated in this subsection.
Section 4. Option to Purchase.
4.1. Following the death of Kathryn Albertson, the corporation is
hereby granted an irrevocable and exclusive option to purchase all of the
Shares (not a part thereof) owned by the Partnership at the time of Kathryn
Albertson's death as provided in this section.
4.2. Within thirty days following the date of death of Kathryn
Albertson the Partnership shall deliver to the corporation an offer to sell to
the corporation all of the Shares owned by the Partnership at the time of
Kathryn Albertson's death.
For a period of ninety days following delivery of that offer to sell
Shares, the corporation shall have an irrevocable and exclusive option to
purchase all (but not less than all) of the Shares owned by the Partnership at
the time of Kathryn Albertson's death at the purchase price and on the terms
set forth in this section.
Should the corporation determine to exercise its option to purchase
those Shares, notice in writing of that decision shall be delivered to the
Partnership within said ninety day option period; and having determined to
exercise its option to purchase those Shares,
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the purchase price shall be equivalent to ninety-six percent (96%) of the
market value per share determined as provided in subsection 1.4 as of the date
of delivery of the written notice by which the corporation exercised its option
to purchase the Shares, multiplied by the number of Shares to be purchased.
The corporation having given notice of its decision to purchase the
Shares, the closing shall take place at the general office of the corporation
on the 150th day after the date of delivery of the notice by the corporation
exercising its option to purchase the Shares, or if such day is not a business
day, on the first business day thereafter.
At the closing:
(a) The Partnership shall deliver to the corporation (1) such
instrument or instruments as may be required under the laws of the State of
Idaho to establish its authority to sell those Shares, and (2) the certificates
evidencing the ownership by the Partnership of the number of Shares purchased
by the corporation with proper assignments thereof in blank duly executed by
the Partnership with its signature guaranteed.
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(b) The corporation shall pay to the Partnership the entire
purchase price for the Shares being purchased.
(c) Should the closing occur more than nine months after the
date of death of Kathryn Albertson, in addition to the purchase price for the
Shares being purchased, upon demand the corporation shall pay to the personal
representative an amount equivalent to the aggregate of (i) interest upon that
purchase price computed at a rate equivalent to that then chargeable by the
United States of America under the applicable provisions of the Internal
Revenue Code for delinquent estate taxes computed for the period from the date
which is nine months after the date of death of Kathryn Albertson to the date
of closing, and (ii) all penalties and other charges levied and imposed by the
Internal Revenue Service by reason of the late payment of those estate taxes.
4.3. Should the corporation fail, refuse or decline to exercise its
option to purchase all of the Shares owned by the Partnership at the time of
Kathryn Albertson's death within the option period stated in subsection 4.2,
then and in that event the Partnership shall be obligated to sell those Shares
through a secondary
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public offering utilizing the procedure set forth in Section 5.
Section 5. Public Offering of Shares.
5.1. Should the corporation have failed, refused or declined to
purchase all of the Shares owned by the Partnership at the time of Kathryn
Albertson's death in the manner and within the option period stated in
subsection 4.2, promptly following the expiration of that option period or
notice in writing by the corporation that it declines to exercise the option
the Partnership shall proceed expeditiously through the exercise of its best
efforts to cause those Shares to be registered under the Securities Act of 1933
for public distribution and sale through an underwriter and to consummate an
agreement for sale of those Shares to or through an underwriter. The
corporation may designate the underwriter. The amount of the underwriter's
commissions shall require approval by the corporation. The gross price per
Share (before deducting the underwriter's commissions) at which the Shares
shall be offered through the underwriter for distribution and sale shall be
fixed and established by the Partnership. Unless a greater gross price per
Share is approved by the corporation, that gross price as fixed and established
by the Partnership shall not exceed the
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market value per Share determined as at the date of the offering.
5.2. All expenses and costs associated with the registration of those
Shares and such public distribution or sale, including (without limitation)
registration fees, fees and expenses of counsel for the Partnership, fees and
expenses of accountants, printing costs and the underwriter's commissions shall
be assumed and paid by the corporation. Accordingly, upon demand by the
Partnership, the corporation agrees to reimburse and pay to the Partnership all
expenditures by the Partnership for those purposes.
5.3. The Partnership may delegate to the corporation and to its
employees or persons designated by the corporation the actual preparation of
the registration statement, prospectus and offering circular and other
instruments required to effect a registration under the Securities Act of 1933,
retaining the privilege to approve the final form thereof. In such event, the
Partnership shall furnish to the corporation in writing such information known
to the Partnership as shall reasonably be required by the corporation for use
in such registration statement, prospectus or offering circular. In any event,
the form and content of those instruments shall
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require approval by both the Partnership and the corporation.
5.4. The corporation agrees to indemnify, to the extent permitted by
law, the Partnership and each person, if any, who controls the Partnership
within the meaning of Section 15 of the Securities Act of 1933, as amended,
jointly or severally, against all losses, claims, damages, liabilities or
expenses (under such Act or common law or otherwise) arising from or caused by
any untrue statement or alleged untrue statement of a material fact which was
furnished by any employee of the corporation and incorporated in the
registration statement or any offering circular or prospectus (as amended or
supplemented) or if the corporation or any employee thereof was responsible for
any omission or alleged omission to state in the registration statement or the
offering circular or prospectus a material fact required to be stated therein
or necessary to make the statements therein not misleading; excepting insofar
as such losses, claims, damages, liabilities or expenses are caused by any
untrue statement of or an omission in the information furnished and provided by
the Partnership expressly for use therein; and the corporation shall reimburse
the Partnership and its controlling persons for any legal or other expenses
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reasonably incurred by them in investigating or defending against such alleged
losses, claims, damages, liabilities or expenses.
Although the underwriting agreement will be entered into between the
Partnership and the underwriter, the corporation agrees to indemnify the
underwriter, its officers and directors, and each person who controls the
underwriter within the meaning of the Securities Act of 1933, as amended, if
then in effect or any similar Federal statute then in force to the same extent
as hereinabove provided with respect to indemnification of the Partnership.
Should the Partnership delegate to the corporation and to its
employees the actual preparation of the registration statement, prospectus,
offering circular or other instruments required to effect a registration under
the Securities Act of 1933, the Partnership agrees to indemnify, to the extent
permitted by law, the corporation, its directors and officers and each person,
if any, who controls the corporation within the meaning of such Act, against
any losses, claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact incorporated in the registration statement or
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prospectus which was furnished in writing by the Partnership expressly for use
therein.
Should the Partnership, promptly following the expiration of the
option period stated in subsection 4.2 or promptly following receipt of notice
in writing by the corporation that it declines to exercise the option granted
to it in Section 4, have delegated to the corporation and to its employees or
persons designated by the corporation the actual preparation of the
registration statement, prospectus, offering circular and other instruments
required to effect a registration under the Securities Act of 1933 and should
the preparation and filing of those instruments be so delayed that the closing
with the underwriter contemplated in subsection 5.5 does not occur within a
period of nine months following the date of death of Kathryn Albertson, upon
demand the corporation shall be obligated to pay to the personal representative
an amount equivalent to the aggregate of (i) interest at a rate equivalent to
that then chargeable by the United States of America under applicable
provisions of the Internal Revenue Code for delinquent estate taxes computed
upon that portion of the gross offering price of all Shares sold through the
secondary public offering by the Partnership and which the personal repre-
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sentative was required to pay as estate taxes payable to the Internal Revenue
Service for the period from the date which is nine months after the date of
death of Kathryn Albertson to the date of closing under subsection 5.5, and
(ii) all penalties and other charges levied and imposed by the Internal Revenue
Service by reason of the late payment of those estate taxes.
5.5. Promptly following the date of the sale under the public
offering, there shall be a closing in the office of the underwriter. At that
closing, the underwriter shall pay to the Partnership the gross offering price
per share for all shares of the stock sold; the corporation shall pay to the
underwriter its commission on all of the Shares sold; and simultaneously
therewith the Partnership shall deliver to the underwriter certificates
evidencing the Shares for which payment was received by it with proper
assignments in blank thereof duly executed by the Partnership with its
signature guaranteed.
Section 6. General.
6.1. The Partnership agrees that it will not pledge or create a
security interest in the Shares to secure payment of any obligation, and that
it will not sell, assign, transfer or create an interest the
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Shares except as provided in this agreement. The provisions of this subsection
shall not be interpreted to limit or in any respect restrict the authority of
the Partnership to borrow funds, incur obligations or establish lines of credit
based upon its general net worth as disclosed by a balance sheet listing the
Shares owned by it as an asset.
6.2. [INTENTIONALLY LEFT BLANK]
6.3. This agreement and the endorsement of the legend contemplated in
Section 7 upon certificates evidencing its ownership of Shares shall not in any
respect deprive the Partnership of all rights of ownership of the Shares owned
by it, including (without limitation thereto) unrestricted voting rights and
the right to receive and retain all dividends (either in cash or in the form of
shares of stock) declared thereon, subject only to the specific provisions of
Sections 3, 4, 5 and 6.
Section 7. Endorsement of Stock Certificates.
7.1. Immediately following the execution of this agreement, the
Partnership agrees to deliver to the corporation all certificates evidencing
ownership by the Partnership of Shares in order that there may be endorsed
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upon the face of each such certificate a legend reading substantially as
follows:
"The shares of stock evidenced by this certificate are subject
to an Agreement entered into on the ___ day of February, 1996, between
Alscott Limited Partnership #1 and Albertson's, Inc. which restricts
and controls any sale, assignment, transfer, pledge or other
disposition of the shares of stock evidenced by this certificate. A
copy of such Agreement is on file with the Secretary of Albertson's,
Inc."
After endorsement of that legend, each certificate shall be returned to the
Partnership. So long as this agreement is in force, a legend substantially as
above stated shall be endorsed on each certificate representing Shares
hereafter issued by the corporation to the Partnership.
7.2. A copy of this agreement shall remain on file with the Secretary
of the corporation.
7.3. In either of these events:
(i) As authorized in subsection 3.2, should the Partnership
sell Shares to a purchaser other than the corporation or Kathryn
Albertson; or
(ii) as contemplated in subsection 3.3, should the
corporation fail, refuse or decline to purchase Shares from a donee
within the option period provided in that subsection,
upon request by the Partnership or by the donee (as the case may be) the
corporation agrees to replace the cer-
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tificates evidencing the Shares involved (and upon which the legend
contemplated in subsection 7.1 or subsection 3.3 appears) by a certificate or
certificates duly executed and issued evidencing ownership by the Partnership
or by the donee (as the case may be) of an equivalent number of Shares upon
which no legend of the nature contemplated in subsection 7.1 or subsection 3.3
shall appear.
Section 8. Notices.
All notices, offers, acceptances, demands, requests and other
communications contemplated in this 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 the Partnership:
Alscott Limited Partnership #1
Suite 100
380 E. Parkcenter Blvd.
Boise, Idaho 83706
Attention: Thomas Wilford
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In the case of Albertson's, Inc., a separate notice addressed to each:
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
The Partnership may change 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 the Partnership.
Section 9. Succession.
9.1. It is agreed that neither party to this agreement shall assign
the agreement or its rights thereunder to any third party without the express
approval in writing of the other party. This 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 the other party).
9.2. The provisions of this agreement to be performed following the
death of Kathryn Albertson shall be binding upon the Partnership and upon the
personal representative of the estate of Kathryn Albertson, then deceased, and
her heirs and devisees.
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Section 10. Enforcement - Attorneys Fees.
10.1 Each party hereto recognizes that 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 the remedy available to the other
party for any such breach.
10.2. In the event suit or action be instituted by either party to
enforce performance by the other party of the terms and provisions of this
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.
Section 11. Other Agreements.
This agreement together with the Stockholders' Agreement shall
supersede any prior agreements between the parties and any other written or
oral understanding between the parties with respect to the sale and purchase of
the Shares of stock.
Section 12. Validity - Legality.
In the event that any provision of this agreement shall be held
invalid or illegal or unenforceable in
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whole or in part, the validity of any other provision of this agreement shall
not in any manner be affected thereby.
Section 13. Governing Law.
The provisions of this agreement and the interpretation thereof shall
be governed and construed in accordance with the laws of the State of Idaho.
IN WITNESS WHEREOF, this agreement has been duly executed by
and on behalf of each party hereto the day and year herein first above written.
ALBERTSON'S, INC.
(Corporate Seal)
By: THOMAS R. SALDIN
-------------------------------
Thomas R. Saldin
Executive Vice President
KAYE L. O'RIORDAN Administration & General
--------------------------------------- Counsel
Kaye L. O'Riordan
Secretary
ALSCOTT LIMITED PARTNERSHIP #1
By: Alscott, Inc.
General Partner
By: THOMAS WILFORD
-------------------------------
Thomas Wilford
Treasurer and Secretary
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