<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
ALBERTSON'S, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $1.00 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
013104-104
- --------------------------------------------------------------------------------
(CUSIP Number)
Thomas J. Wilford
380 East Parkcenter Blvd, Suite 100
Boise, Idaho 83706
Telephone: 208/342-2712
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 22, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page should be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 7 Pages
<PAGE>
CUSIP No. 013104-104
- --------------------------------------------------------------------------------
(1) Name of Reporting Person
S.S. or I.R.S. Identification Nos. of Above Person
J.A. and Kathryn Albertson Foundation, Inc.
Tax I.D. No. 82-6012000
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds
This statement is being filed as the result of the charitable
contribution of shares and does not involve the purchase of
securities.
- --------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[ ]
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Idaho
- --------------------------------------------------------------------------------
Number of (7) Sole Voting Power 22,022,446
Shares Bene- ____________________________________________________________
ficially (8) Shared Voting Power -0-
Owned by ____________________________________________________________
Each Report- (9) Sole Dispositive Power 22,022,446
ing Person ____________________________________________________________
With (10) Shared Dispositive Power -0-
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
22,022,446
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[ ]
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
8.8%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person CO
Page 2 of 7 Pages
<PAGE>
ITEM 1. SECURITY AND ISSUER
The class of securities to which this statement relates is the common
stock, par value $1.00 per share (the "Shares"), of Albertson's, Inc., a
Delaware corporation (the "Company"). The address of the principal executive
offices of the Company is 250 Parkcenter Blvd., Box 20, Boise, Idaho 83726.
ITEM 2. IDENTITY AND BACKGROUND
This statement is being filed by the J.A. and Kathryn Albertson
Foundation, Inc., a non-profit corporation organized under the laws of the State
of Idaho (the "Foundation"). The Foundation is a private charitable
foundation which provides grants to foster the improvement of education in Idaho
through the promotion of research, experimentation and innovation in the
educational environment.
The business address of the Foundation is 380 East Parkcenter Blvd.,
Suite 100, Boise, Idaho 83706.
Attached hereto as Schedule 1 and incorporated herein by reference is
a list of all executive officers and directors of the Foundation, together with
the business address and occupation of each such person.
During the past five years, neither the Foundation nor any of the
persons listed on Schedule 1 has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or has been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and, as a result of such proceeding, was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
The persons listed on Schedule 1 are United States citizens.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
This statement is being filed by the Foundation as a result of a
charitable contribution not involving the purchase of any Shares, as more fully
described in Item 4 below.
ITEM 4. PURPOSE OF TRANSACTION
The Foundation received 20,842,446 Shares on May 22, 1997 from Kathryn
Albertson as a charitable contribution. When added to the 1,180,000 Shares
already beneficially owned by the Foundation, the Foundation now beneficially
owns 22,022,446 Shares, or approximately 8.8% of such Shares presently
outstanding.
The Foundation is a private charitable foundation which provides
grants to foster the improvement of education in Idaho through the promotion of
research, experimentation and innovation in the educational environment. The
Foundation may from time to time, and subject to the limitations described in
Item 6 below, sell Shares to provide funds for such grants, or the
Page 3 of 7 Pages
<PAGE>
Foundation may make such grants by contributing Shares to the grant
recipient. Any decisions concerning the sale or contribution of Shares will
depend upon many facts and circumstances existing at the time of any such
contemplated grant; accordingly, it is impossible to predict with certainty
whether any such sales or contributions will be made, and if so, the exact
timing and amounts thereof, except that applicable federal tax law requires
the Foundation to distribute at least 5% of the average fair market value of
its assets each year.
Except as set forth herein, the Foundation has no plans or proposals
which relate to or would result in any of the matters referred to in
subparagraphs (a) through (j) of Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The Foundation received 20,842,446 Shares on May 22, 1997
from Kathryn Albertson as a charitable contribution. When added to
the 1,180,000 Shares already beneficially owned by the Foundation,
the Foundation now beneficially owns 22,022,446 Shares, or
approximately 8.8% of such Shares presently outstanding.
(b) Information about the beneficial ownership of Shares by
executive officers and directors of the Foundation is set forth in
Schedule 1.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
In connection with the charitable contribution described in Item 5
above, the Company and the Foundation entered into an agreement dated May 21,
1997 (the "Agreement") pursuant to which the Foundation granted to the Company a
right of first refusal (the "Right") with respect to 20,842,446 Shares (the
"Subject Shares"). The Right provides the Company with the right to purchase,
at 96% of the then-market price (as defined in the Agreement), any Subject
Shares which the Foundation desires to sell or transfer, but the Company must
elect to exercise the Right and consummate the purchase of such Shares within
five (5) and three (3) business days, respectively, subject to certain
contingencies that might extend such periods. The Agreement permits the Company
to designate another party to purchase the Subject Shares if the Company
exercises the Right. If the Company does not exercise the Right with respect to
any Subject Shares, the Foundation can sell such Shares at a price at or above
the market price (as defined) for a period of forty-five (45) calendar days
following the expiration of the Company's election period (as defined).
Notwithstanding the Right, the Agreement provides that the Foundation
may make charitable donations in each calendar year of up to 5% of the total
number of Shares beneficially owned by the Foundation at the time, provided that
the donee has theretofore agreed to offer to sell such Shares to the Company at
96% of the then-market price (as defined) or to sell such Shares in the open
market within 30 days of the donation if the Company does not elect to purchase
such offered Shares from the donee.
Page 4 of 7 Pages
<PAGE>
The Agreement provides that, during the term of the Agreement (20
years, subject to extension), the Foundation will not, by itself or as part of a
group, (i) acquire any voting securities of the Company if such acquisition
would cause the Foundation to beneficially own more than 15% of the total voting
power of the Company (as defined), (ii) join or form any group to acquire, hold,
vote or dispose of any of the Company's voting securities, or (iii) pledge any
voting securities of the Company except for the purpose of financing any annual
distribution required by federal tax law, and only then if the pledgee agrees to
be bound by the Agreement to the same extent as the Foundation.
The foregoing is not, and is not intended to be, a complete summary of
the terms and conditions of the Agreement, and is qualified in its entirety by
reference to the Agreement, which is filed herewith as an exhibit and is
incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
(a) Agreement dated May 21, 1997, between the Company and the
Foundation.
(b) Assignment and Acceptance dated May 22, 1997.
Page 5 of 7 Pages
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: May 30, 1997
J.A. AND KATHRYN ALBERTSON
FOUNDATION, INC.
By: /s/ THOMAS J. WILFORD
-------------------------------------
Thomas J. Wilford
President
Page 6 of 7 Pages
<PAGE>
SCHEDULE 1 TO SCHEDULE 13D
DATED MAY 30, 1997
Information Respecting Executive Officers and Directors of the J.A.
and Kathryn Albertson Foundation, Inc.
<TABLE>
Name, Title Shares
and Address Principal Occupation Beneficially Owned
----------- -------------------- ------------------
<S> <C> <C>
J.B. Scott Chairman of the Board 6,007,600(1)
Chairman of the Board Alscott, Inc.
380 E. Park Center Blvd.
Boise, Idaho 83706
Thomas J. Wilford President
President, Secretary, Treasurer and Alscott, Inc.
Director
380 E. Park Center Blvd., Suite 100
Boise, Idaho 83706
Kathryn Albertson 4,000(2)
380 E. Park Center Blvd., Suite 100
Boise, Idaho 83706
Barbara J. Newman 2,880
Director
380 E. Park Center Blvd., Suite 100
Boise, Idaho 83706
Cecil Andrus Chairman of the 10,100(3)
Director Andrus Center for
P.O. Box 852 Public Policy
Boise, Idaho 83701
Everett Doty Retired 3,000
Director
6087 Sterling Drive
Boise, Idaho 83703
</TABLE>
- ----------------------
(1) Includes (i) 4,000 Shares which can be acquired under the Company's
1995 Stock Option Plan for Non-Employee Directors, and (ii) 6,003,600 Shares
held by Alscott Limited Partnership #1, the managing general partner of
which is Alscott, Inc., an Idaho corporation.
(2) These Shares can be acquired under the Company's 1995 Stock Option
Plan for Non-Employee Directors.
(3) Includes 6,000 shares which can be acquired under the Company's 1995
Stock Option Plan for Non-Employee Directors.
Page 7 of 7 Pages
<PAGE>
EXHIBIT A
AGREEMENT
This Agreement, made and executed as of May 21, 1997, is between
Albertson's, Inc. and the J.A. and Kathryn Albertson Foundation, Inc. Except
where defined in context, capitalized terms used herein are defined in
Article One.
W I T N E S S T H:
WHEREAS, the Foundation desires to acquire 20,842,446 shares of Common
Stock (the "Transfer Shares") Beneficially Owned by Alscott Limited Partnership
#1, a Texas limited partnership (the "Partnership"); and
WHEREAS, the Company is willing to waive whatever rights it may have under
certain existing agreements among the Company, members of the Albertson family
and the Partnership relating to such Transfer Shares and to consent to the
transfer thereof to the Foundation, if the Foundation agrees to be bound by the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE ONE
Section 1.1 DEFINITIONS. Except as otherwise specified herein, defined
terms used in this Agreement shall have the following respective meanings:
"Additional Election Period" shall have the meaning ascribed to it in
Section 3.1(c).
"Agreement" shall mean this Agreement.
"Beneficially Own" shall have the meaning ascribed to it in Rule 13d-3
under the 1934 Act.
"Business Day" shall mean any day other than a day on which banks are
permitted or required to be closed in New York, New York.
"Closing" shall mean the closing of any purchase of the Offered Shares by
the Company pursuant to Article 3, which shall be held at 10:00 A.M., local
time, on the Closing Date at the principal office of the Company, or at
such other time or place as the parties hereto may mutually agree.
"Closing Date" shall have the meaning ascribed to it in Section 3.l(e).
"Common Stock" shall mean the Common Stock of the Company, par value $1.00
per share.
A-1
<PAGE>
"Company" shall mean Albertson's, Inc., a Delaware corporation.
"Company's Notice" shall have the meaning ascribed to it in Section 3.1(b).
"Control" shall have the meaning ascribed to it in Rule l2b-2 under the
1934 Act.
"Donation" shall have the meaning ascribed to it in Section 3.3.
"Donee's Notice" shall have the meaning ascribed to it in Section 3.3.
"Election Period" shall mean the five Business Days following giving of the
Foundation's Notice.
"Extended Election Period" shall mean the 20 Business Days following giving
of the Foundation's Notice.
"Foundation" shall mean the J.A. and Kathryn Albertson Foundation, Inc., an
Idaho corporation.
"Foundation's Notice" shall have the meaning ascribed to it in
Section 3.1(a).
"Group" shall have the meaning ascribed to it in Section 13(d)(3) of the
1934 Act.
"Market Price" shall mean the average of the daily closing prices per share
of Voting Securities of the same class as the Offered Shares or the Voting
Securities received in the Donation, as the case may be, for the 30
consecutive Trading Days immediately preceding either the day that the
Foundation's Notice is given pursuant to Section 3.1 or Section 3.2 or the
day on which Beneficial Ownership is transferred to the donee pursuant to
Section 3.3, as the case may be.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Offered Shares" shall mean the Voting Securities proposed to be
transferred by the Foundation, the number of which shall be set forth in
the Foundation's Notice.
"Person" shall mean any individual, partnership, corporation, group,
syndicate, trust, government or agency thereof, or any other association or
entity.
"Purchase Price" shall mean 96% of the Market Price.
"Prohibition Notice" shall have the meaning ascribed to it in Section
3.2(a).
"Term" shall have the meaning ascribed to it in Section 2.1.
A-2
<PAGE>
"Total Voting Power" shall mean the total combined Voting Power of all the
Voting Securities then outstanding, including, without limitation, the
Common Stock.
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Voting Securities are listed or admitted to trading
is open for the transaction of business.
"Transfer Shares" shall have the meaning ascribed to it in the recitals to
this Agreement.
"Voting Securities" shall mean any securities entitled to vote generally in
the election of directors of the Company.
"Voting Power" shall mean voting power in the general election of directors
of the Company.
Section 1.2 CALENDAR DAYS. Unless otherwise specified, all references to
"days" shall be deemed to be references to calendar days.
ARTICLE TWO
Section 2.1 TERM. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue until the twentieth anniversary of the
date hereof; PROVIDED, HOWEVER, that the Company may, on three occasions, by
notice given to the Foundation at least 10 days prior to the date on which this
Agreement would otherwise expire, extend the Term for an additional ten-year
period, but in no event shall the Term be extended beyond the fiftieth
anniversary of the date hereof without the written consent of the Foundation;
PROVIDED, FURTHER, that, not withstanding the foregoing, this Agreement shall
terminate for all purposes, may not be extended and shall be of no further force
or effect on the first day that the Foundation does not Beneficially Own any
Voting Securities.
Section 2.2 AUTOMATIC TERMINATION. Notwithstanding anything to the
contrary set forth herein, this Agreement shall immediately terminate and be of
no further force or effect whatsoever if Beneficial Ownership of the Transfer
Shares is not vested in the Foundation on or before June 30, 1997.
A-3
<PAGE>
ARTICLE THREE
Section 3.1 RIGHT OF FIRST REFUSAL.
(a) Subject to the provisions of Section 4.1, if the Foundation
desires to transfer any Voting Securities Beneficially Owned by it, the
Foundation shall give notice (the "Foundation's Notice") to the Company (i)
stating that it desires to make such transfer and (ii) setting forth the
number of Offered Shares. Except as provided in Section 3.2(b), the
Foundation's Notice shall constitute an irrevocable offer by the Foundation
to sell the Offered Shares to the Company.
(b) Except as otherwise provided in this Article 3, the Company may
elect to purchase all (but not less than all) of the Offered Shares at a
price per share equal to the Purchase Price by giving notice (the
"Company's Notice") to the Foundation during the Election Period, stating
the Company's irrevocable acceptance of the offer set forth in the
Foundation's Notice.
(c) If the Company does not give the Company's Notice during the
Election Period, then the Foundation may, for a period of 45 days
immediately following the expiration of the Election Period, sell the
Offered Shares at a price per share at or above the Market Price; PROVIDED,
HOWEVER, that prior to selling (or agreeing to sell) to a third party any
part of the Offered Shares with aggregate Voting Power, on an issued and
outstanding basis, in excess of 1% of the Total Voting Power, the
Foundation shall give the Company notice of the identity of such third
party (and the identity of any known transferee ) and, provided that the
identity of such third party (and such transferee) has not been disclosed
to the Company in the Foundation's Notice, the Company shall thereupon have
three additional Business Days (the "Additional Election Period") following
giving of such notice during which to elect to purchase such part of the
Offered Shares at a price per share equal to the Purchase Price by giving
the Company's Notice.
(d) If the Company does not give the Company's Notice during the
Election Period, any Additional Election Period or the Extended Election
Period, and the Foundation has not sold all of the Offered Shares prior to
the expiration of the 45-day period immediately following the Election
Period or the Extended Election Period, as the case may be, the right of
first refusal under this Section 3.1 shall again apply to any subsequently
proposed transfer of any of the Offered Shares.
(e) Any purchase of any Offered Shares by the Company pursuant to
this Article 3 shall be completed on a date (the "Closing Date")
designated by the Company in a notice to the Foundation, which date
shall be not more than three Business Days following giving of the
Company's Notice; PROVIDED, HOWEVER, in the event the Company is unable
to obtain financing sufficient to enable it to effect the purchase of
the Offered Shares within three Business Days following giving of the
Company's Notice, the Company may, by giving notice to the Foundation
during such three-Business Day period, postpone the Closing Date to a
date not more than 30 days following giving of the Company's Notice;
PROVIDED FURTHER that the Company shall pay to the Foundation interest
on the purchase price of the
A-4
<PAGE>
Offered Shares for each day the Closing Date is postponed beyond the
expiration of such three-Business Day period at a rate of interest per
annum equal to the 30-DAY COMMERCIAL PAPER HIGH-GRADE UNSECURED NOTES
SOLD THROUGH DEALERS BY MAJOR CORPORATIONS rate listed in the WALL
STREET JOURNAL under the heading "Money Rates" (or the closest
equivalent rate if such rate has ceased to be published) on the first
Business Day with respect to which such interest is payable.
(f) The Purchase Price for any Offered Shares purchased by the
Company pursuant to this Article 3, including any interest provided for
herein, shall be paid at the Closing by wire transfer of immediately
available funds to an account previously designated by the Foundation.
(g) At the Closing, the Foundation shall deliver to the Company
certificates representing the shares of Voting Securities being sold, free
and clear of any lien, claim or encumbrance, together with any other
documents reasonably necessary to evidence ownership and authority to
complete the transaction.
Section 3.2 CERTAIN LIMITATIONS. If the Foundation's Notice is given at a
time when the Company is prohibited by any United States securities law, or any
rule or regulation promulgated thereunder, from purchasing the Offered Shares
the following additional provisions shall apply:
(a) The Company shall give the Foundation notice of such prohibition
(the "Prohibition Notice") during the Election Period, and the Company may
thereafter elect to purchase the Offered Shares by giving the Company's
Notice at any time during the Extended Election Period. If the Company
does not give the Company's Notice during the Extended Election Period,
then the Foundation may, for a period of 45 days immediately following the
expiration of the Extended Election Period, sell the Offered Shares at a
price per share at or above the Market Price; PROVIDED, HOWEVER, that prior
to selling (or agreeing to sell) to a third party any part of the Offered
Shares with aggregate Voting Power, on an issued and outstanding basis, in
excess of 1% of the Total Voting Power, the Foundation shall give the
Company notice of the identity of such third party (and the identity of any
known transferee of such third party ) and, provided that the identity of
such third party (and such transferee) has not been disclosed to the
Company in the Foundation's Notice, the Company shall thereupon have the
Additional Election Period following giving of such notice during which to
elect to purchase such part of the Offered Shares at a price per share
equal to the Purchase Price by giving the Company's Notice; or
(b) The Company may, if such prohibition arises under any law, rule
or regulation relating to trading in securities while in the possession of
material non-public information, disclose such information to the
Foundation without the Foundation's consent if, but only if, the Company
has given the Company's Notice during the applicable period. In the event
the Company discloses information pursuant to this Section 3.2(b), the
Foundation shall maintain the confidentiality of such information, and the
Foundation may revoke the Foundation's Notice by written notice to the
Company given within five Business Days following the disclosure of such
information by the Company to the Foundation. If the Foundation does not
elect to revoke the Foundation's Notice as provided in the preceding
A-5
<PAGE>
sentence, the Company shall be obligated to purchase all (but not less than
all) of the Offered Shares in accordance with the Company's Notice, and, if
such purchase is not completed, the Foundation shall have, in addition to
any other legal or equitable remedy that may be available to it, the right
of specific performance, as provided in Section 6.l(a) hereof.
Section 3.3 CHARITABLE DONATIONS. Notwithstanding the limitation on
transfer set forth in Section 3.1, in each calendar year during the Term the
Foundation may make a charitable donation (a "Donation") in the form of
Voting Securities of up to 5% of the total number of Voting Securities
Beneficially Owned by the Foundation at the time of any Donation, PROVIDED
that the donee has theretofore agreed (i) to offer to sell to the Company
immediately, by written notice to the Company to be given within three days
following receipt of the Donation (the "Donee's Notice"), all of the Voting
Securities received in such Donation at a price per share equal to the
Purchase Price and, if the Company accepts the offer set forth in the Donee's
Notice by written notice to the donee within five Business Days following
giving of the Donee's Notice, to be bound by the obligations of the
Foundation under Section 3.1(g) and by this Section 3.3 with respect to the
closing of such transaction and (ii) if the Company does not accept the offer
set forth in the Donee's Notice by written notice to the donee during such
five-Business Day period, to sell all of such Voting Securities on the open
market within 30 days following receipt of the Donation. If the Company
accepts the offer set forth in the Donee's Notice during such five-Business
Day period, the Company shall designate a closing date, time and place with
respect to such transaction in writing to the donee and, on such designated
closing date, pay to the donee the Purchase Price for all of the Voting
Securities received in the Donation by wire transfer of immediately available
funds to an account previously designated by the donee.
Section 3.4 DESIGNATION OF PURCHASER. If the Company elects to exercise a
right of first refusal under this Article 3, the Company may specify in the
Company's Notice (or at any time thereafter which is prior to the purchase of
the Offered Shares to which such notice relates) another Person as its designee
to purchase such Offered Shares in accordance with the terms and provisions of
this Agreement. No such designation shall extend any of the time periods
specified herein or change any other term or provision hereof.
ARTICLE FOUR
Section 4.1 COVENANTS. During the Term the Foundation shall not, and
shall use its best efforts to cause each Person Controlled by it not to, singly
or as part of a Group, directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire, by purchase, gift
or otherwise, Beneficial Ownership of any Voting Securities, except (i) the
Transfer Shares, (ii) pursuant to a stock split, stock dividend, rights
offering, recapitalization, reclassification or similar transaction and
(ii) for acquisitions that would not cause the aggregate Voting Power of
the Voting Securities, on an issued and outstanding basis, Beneficially
Owned by the Foundation to exceed 15% of the Total Voting Power;
(b) join or form a Group for the purpose of acquiring, holding,
voting or disposing of any Voting Securities;
A-6
<PAGE>
(c) deposit any Voting Securities into a voting trust or subject any
Voting Securities to any arrangement or agreement with respect to the
voting thereof; or
(d) pledge, hypothecate or otherwise encumber any Voting Securities,
except as security for any loan the entire proceeds of which are used to
make required distributions under Section 4942 of the Internal Revenue Code
of 1986, as amended, and then only if the pledgee has theretofore agreed,
pursuant to an instrument in form and substance satisfactory to the
Company, to be bound by all of the terms and provisions of this Agreement
to the same extent the Foundation is bound hereby.
Section 4.2 AFFIRMATIVE COVENANTS. Not withstanding any other term or
provision of this Agreement to the contrary, during the Term the Foundation
shall:
(a) comply with all applicable laws, rules and regulations relating
to trading in securities while in the possession of material non-public
information; and
(b) retain the name "Albertson" as part of its name, maintain its
status as a charitable entity and associate the name "Albertson" with all
charitable activities undertaken or otherwise participated in by the
Foundation.
ARTICLE FIVE
Section 5.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Foundation as follows:
(a) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions
contemplated by this Agreement are within the corporate powers of the
Company and have been duly authorized by all necessary corporate action on
the part of the Company. This Agreement constitutes a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms (i) except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally,
including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers, and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(b) The execution, delivery and performance of this Agreement by the
Company do not and will not contravene or conflict with or constitute a
default under the Company's Restated Certificate of Incorporation or
by-laws.
Section 5.2 REPRESENTATIONS AND WARRANTIES OF THE FOUNDATION. The
Foundation represents and warrants to the Company as follows:
(a) The execution, delivery and performance by the Foundation of this
Agreement and the consummation by the Foundation of the transactions
contemplated by
A-7
<PAGE>
this Agreement are within the corporate powers of the Foundation and
have been duly authorized by all necessary corporate action on the part
of the Foundation. This Agreement constitutes a legal, valid and
binding agreement of the Foundation enforceable against the Foundation
in accordance with its terms (i) except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally, including the effect of statutory and other laws regarding
fraudulent conveyances and preferential transfers, and (ii) subject to
the limitations imposed by general equitable principles (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(b) The execution, delivery and performance of this Agreement by the
Foundation do not and will not contravene or conflict with or constitute a
default under the Foundation's charter or by-laws.
ARTICLE SIX
Section 6.1 ENFORCEMENT; CONSENT TO JURISDICTION.
(a) The Foundation and the Company acknowledge and agree that irreparable
damage would occur if any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached.
Accordingly, the parties hereto agree that each party will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the provisions hereof, this being in addition to any other remedy
to which either party may be entitled at law or in equity.
(b) The Company and the Foundation each irrevocably agrees that any legal
action or proceeding to enforce this Agreement, or any claim or dispute arising
out of or in connection with, or in any way relating to, this Agreement or any
transaction contemplated by this Agreement, shall be brought in the courts of
the State of Idaho. By execution and delivery of this Agreement, the Company
and the Foundation each irrevocably consents to submit itself to the
jurisdiction of each such court and irrevocably designates, appoints and
empowers the Secretary of State of the State of Idaho to receive for and on its
behalf service of process in the State of Idaho.
Section 6.2 NO WAIVER. Any waiver by either party hereto of any breach of
any provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of either parry hereto to insist upon
strict adherence to any term of this Agreement on one or more occasions shall
not be considered a waiver or deprive such party of the right thereafter to
insist upon strict adherence to such term or any other term of this Agreement.
Section 6.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and may be amended only by an agreement in writing executed by
each of the parties hereto.
Section 6.4 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It
A-8
<PAGE>
is declared to be the intention of the parties hereto that they would have
executed the remaining provisions without including any provision that may be
declared unenforceable.
Section 6.5 HEADINGS. Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of any provision of
this Agreement.
Section 6.6 COUNTERPARTS. For the convenience of the parties hereto, any
number of counterparts of this Agreement may be executed by the parties, and
each such executed counterpart shall be deemed an original instrument.
Section 6.7 NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be made in writing by
hand-delivery or by courier guaranteeing overnight delivery in accordance
with the following:
(a) If to the Company, to:
Thomas R. Saldin
Executive Vice President, Administration
and General Counsel
Albertson's, Inc.
250 East Parkcenter Boulevard
Boise, Idaho 83706
with a copy to:
Kaye L. O'Riordan
Corporate Secretary and Senior Attorney
Albertson's, Inc.
250 East Parkcenter Boulevard
Boise, Idaho 83706
or to such other person or address as the Company will furnish to the
Foundation in writing.
(b) If to the Foundation, to:
J.A. and Kathryn Albertson Foundation, Inc.
Suite 100
380 East Parkcenter Boulevard
Boise, Idaho 83706
Attention: Thomas J. Wilford
or to such other person or address as the Foundation will furnish to the
Company in writing.
(c) All notices, requests, demands and other communications given in
accordance with this Section 6.7 shall be deemed to have been given for all
purposes of this Agreement
A-9
<PAGE>
at the time of delivery by hand to the relevant office, if personally
delivered, and on the next Business Day, if timely delivered to a courier
guaranteeing overnight delivery.
Section 6.8 SUCCESSORS AND ASSIGNS. This Agreement shall bind the
successors and assigns of the parties hereto, and inure to the benefit of any
successor or permitted assign of either of them; PROVIDED, HOWEVER, that no
party may assign this Agreement without the prior written consent of the other
party hereto, except that the Company may assign certain of its rights hereunder
in accordance with Section 3.4.
Section 6.9 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Idaho without giving effect to the conflict of laws principles thereof.
Section 6.10 LEGEND.
(a) The share certificates evidencing Voting Securities Beneficially
Owned by the Foundation during the Term shall bear the following legend
until such time as such shares are free of the restrictions contained in
this Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE PROVISIONS OF AN AGREEMENT, DATED AS OF ________], 1997,
BETWEEN ALBERTSON'S, INC. AND THE J.A. AND KATHRYN
ALBERTSON FOUNDATION AND MAY NOT BE SOLD OR TRANSFERRED
EXCEPT IN ACCORDANCE THEREWITH. A COPY OF SAID AGREEMENT IS
ON FILE AT THE OFFICE OF THE CORPORATE SECRETARY OF
ALBERTSON'S, INC.
(b) The Foundation shall promptly present or cause to be presented
to the Company all certificates representing shares Voting Securities
now owned or hereafter acquired by the Foundation for the placement
thereon of the legend provided for in this Section 6.10. The Company may
enter a stop-transfer order with any transfer agent of the Voting
Securities against transfer of such securities except in compliance with
this Agreement. All legends and stop-transfer orders shall be removed
with respect to any shares of Voting Securities that are sold,
transferred or otherwise disposed of in accordance with the terms of
this Agreement.
Section 6.11 NON-AFFECTED SHARES. Notwithstanding any term or provision
of this Agreement to the contrary, the parties hereto acknowledge and agree that
the Foundation presently Beneficially Owns 1,180,000 shares of Common Stock (the
"Non-Affected Shares") and that no term or provision of this Agreement shall
apply to the Non-Affected Shares or to any Voting Securities acquired or issued
with respect to such Non-Affected Shares pursuant to any dividend reinvestment
plan or any stock split, stock or other dividend, rights offering,
recapitalization, reclassification or similar transaction.
A-10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first referred
to above.
Albertson's, Inc.
By: /s/ GARY G. MICHAEL
-------------------------------------
Name: Gary G. Michael
Title: Chairman of the Board and
Chief Executive Officer
J.A. and Kathryn Albertson
Foundation, Inc.
By: /s/ J.B. SCOTT
-------------------------------------
Name: J.B. Scott
Title: President
A-11
<PAGE>
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance is made effective the 22nd day of May,
1997, by Kathryn Albertson and the J.A. and Kathryn Albertson Foundation
("FOUNDATION").
RECITALS
A. Pursuant to that certain Withdrawal, Redemption, and Assignment
Agreement dated as of the Effective Date by and among Alscott, Inc., SK, LLC,
Kathryn Albertson, Albertson College, and Alscott Limited Partnership #1,
Kathryn Albertson is receiving, as of the Effective Date, a distribution from
Alscott Limited Partnership #1 of 20,842,446 shares of common stock of
Albertson's, Inc. ("THE TRANSFER SHARES").
B. The Transfer Shares are subject to certain rights of Albertson's,
Inc. under that certain Agreement between Albertson's Inc. and the Partnership
dated February 2, 1996 and that certain Agreement between Albertson's, Inc. and
Kathryn Albertson dated December 31, 1979 (collectively, "THE BUY-SELL
AGREEMENTS").
C. Kathryn Albertson desires to contribute the Transfer Shares to
the Foundation but only if Albertson's, Inc. waives its rights under the
Buy-Sell Agreements.
D. Albertson's, Inc. has agreed to waive those rights if the
Foundation agrees to execute and be bound by the terms of that certain Agreement
with Albertson's, Inc. regarding those shares attached hereto as Exhibit A and
incorporated herein for all purposes ("THE TRANSFER SHARES AGREEMENT"), and the
Foundation is willing to do so.
NOW, THEREFORE, Kathryn Albertson and the Foundation wish to
evidence such assignment and acceptance, as follows:
1. Kathryn Albertson hereby assigns and transfers to the Foundation
the Transfer Shares provided that the Foundation execute and agree to be bound
by the terms of the Transfer Share Agreement, such transfer and assignment to be
effectuated by an Irrevocable Stock Power, a photocopy of which is attached
hereto as Exhibit B.
2. The Foundation hereby accepts the contribution by Kathryn
Albertson to the Foundation of 20,842,446 shares of Common Stock of Albertson,
Inc., subject to the condition described in paragraph 1 above, and hereby agrees
to execute and be bound by the terms of the Transfer Shares Agreement.
B-1
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this instrument
to be effective as of the Effective Date.
/s/ KATHRYN ALBERTSON
-------------------------------------
Kathryn Albertson
The J. A. and Kathryn Albertson Foundation
By: /s/ THOMAS J. WILFORD
-------------------------------------
Thomas J. Wilford
President
B-2
