As filed with the Securities and Exchange Commission on January 21, 1999.
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ALBERTSON'S, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
82-0184434
(I.R.S. Employer Identification No.)
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250 PARKCENTER BOULEVARD
P.O. BOX 20
BOISE, IDAHO 83726
(208) 395-6200
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of each Registrant's Principal Executive Offices)
----------------
THOMAS R. SALDIN, ESQ.
EXECUTIVE VICE PRESIDENT, ADMINISTRATION AND GENERAL COUNSEL
250 PARKCENTER BOULEVARD
BOISE, IDAHO 83706
(208) 395-6200
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
THEODORE J. KOZLOFF
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR EMBARCADERO CENTER, SUITE 3800
SAN FRANCISCO, CALIFORNIA 94111
(415) 984-6400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
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If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the
following box: |_|
----------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================
Title of Each Class of Proposed Proposed Maximum Amount of
Securities Maximum Offering Aggregate Registration Fee
to be Registered Amount to be Price Per Unit Offering
Registered (1) (2) Price(2)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities (3).... $2,500,000,000 100% $2,500,000,000 $644,126
===========================================================================================
</TABLE>
(1) Or, in the case of Debt Securities issued at an original issue
discount, such greater principal amount as shall result in an
aggregate offering price of the amount set forth above.
(2) Exclusive of accrued interest, if any. The figures are estimates made
solely for the purpose of calculating the registration fee pursuant
to Rule 457.
(3) Pursuant to Rule 429, Debt Securities having an aggregate initial
offering price of $183,000,000 are being carried forward from
Registration Statement No. 333-41793. Accordingly, the filing fee
payable with this registration statement has been calculated with
respect to $2,317,000,000 of registered securities.
SUBJECT TO COMPLETION, DATED JANUARY 21, 1999
PROSPECTUS
$2,500,000,000
ALBERTSON'S, INC.
Debt Securities
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ALBERTSON'S, INC. may sell debt securities to the public, in one or
more series, with an aggregate initial offering price not to exceed $2.5
billion.
We urge you to read this prospectus, and the accompanying prospectus
supplement which describes the specific terms of the debt securities,
carefully before you make your investment decision.
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Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus or the accompanying prospectus supplement is
truthful or complete. Any representation to the contrary is a criminal
offense.
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THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED
BY A PROSPECTUS SUPPLEMENT.
The date of this prospectus is January __, 1999
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Albertson's,
Inc. ("Albertson's" or "we") filed with the Securities and Exchange
Commission (the "SEC") using a "shelf" registration process. Under this
shelf process, Albertson's may sell the securities described in this
prospectus in one or more offerings up to a total dollar amount of
$2,500,000,000. This prospectus provides you with a general description of
the securities we may offer. Each time Albertson's sells securities
described in this prospectus, we will provide a prospectus supplement that
will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
Albertson's files reports, proxy statements, and other information
with the SEC. Such reports, proxy statements, and other information
concerning Albertson's can be read and copied at the SEC's Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. Please telephone the SEC
at 1-800-SEC-0330 for further information on the Public Reference Room. The
SEC maintains an internet site at http://www.sec.gov that contains reports,
proxy statements and other information regarding issuers that file
electronically with the SEC, including Albertson's. The common stock of
Albertson's is listed and traded on the New York Stock Exchange, Inc. and
the Pacific Exchange, Incorporated under the symbol "ABS". The reports,
proxy statements and other information filed by Albertson's with the SEC
are also available for inspection at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York and at the offices of the
Pacific Exchange, 115 Sansome Street, 2nd Floor, San Francisco, California.
This prospectus is part of a registration statement filed by
Albertson's with the SEC. The full registration statement can be obtained
from the SEC as indicated above or from Albertson's.
The SEC allows Albertson's to "incorporate by reference" the
information it files with the SEC. This permits Albertson's to disclose
important information to you by referring you to these filed documents. Any
information referenced this way is considered part of this prospectus, and
information filed with the SEC subsequent to this prospectus will
automatically be deemed to update and supersede this information, as
described in more detail below. Albertson's incorporates by reference the
following documents which have been filed with the SEC:
o Annual Report on Form 10-K for the year ended January 29,
1998;
o Quarterly Reports on Form 10-Q for the 39 weeks ended October
29, 1998, the 26 weeks ended July 30, 1998 and the 13 weeks
ended April 30, 1998;
o Current Reports on Form 8-K filed on:
o January 11, 1999 (filing the Joint Proxy Statement and
Prospectus dated October 9, 1998, including information
relating to the proposed combination of American Stores
Company and Albertson's),
o November 20, 1998 (filing Albertson's press release dated
November 12, 1998 announcing stockholder approval of the
proposed combination of American Stores Company and
Albertson's),
o November 4, 1998 (filing Albertson's sales trends
release for the four-week and thirteen-week periods ended
October 29, 1998) and
o August 5, 1998 (filing Albertson's press release dated
August 3, 1998 announcing the proposed combination of
American Stores Company and Albertson's).
In addition to the documents listed above, Albertson's incorporates
by reference any future filings made with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
Albertson's files a post-effective amendment which indicates the
termination of the offering of the securities made by this prospectus.
Albertson's will provide without charge, upon written or oral
request, a copy of any or all of the documents incorporated by reference in
this prospectus, other than exhibits which are specifically incorporated by
reference in such documents. Requests should be directed to Corporate
Secretary, Albertson's, Inc., 250 Parkcenter Boulevard, P.O. Box 20, Boise,
Idaho 83726, telephone (208) 395-6200.
ALBERTSON'S, INC.
Albertson's is one of the largest retail food-drug chains in the
United States. As of October 29, 1998, Albertson's operated 969 stores in
25 western, midwestern and southern states. These stores consisted of 852
combination food-drug stores, 86 conventional supermarkets and 31 warehouse
stores. Retail operations are supported by 11 company-owned distribution
centers.
Albertson's combination food-drug stores are super
grocery/super drugstores under one roof and range in size from 35,000 to
82,000 square feet. Most of these stores offer prescription drugs and an
expanded selection of cosmetics and nonfoods in addition to specialty
departments such as service seafood and meat, bakery, lobby/video, service
delicatessen, liquor and floral. Some also offer meal centers, party
pavilions, coffee bars and destination departments for beverages, snacks,
pet care, paper products and baby care. Food and non-food shopping areas
are served by a common set of checkstands.
Albertson's conventional supermarkets range in size from 8,000
to 35,000 square feet. These stores offer a full selection in the basic
departments of grocery, meat, produce, dairy and limited non-food lines.
Many locations have an in-store bakery and a service delicatessen.
Albertson's warehouse stores are operated primarily under the name
"Max Food and Drug." These no-frills stores range in size from 17,000 to
73,000 square feet and offer significant savings with special emphasis on
discounted meat and produce.
In fiscal 1997, Albertson's opened its first fuel center.
Albertson's plans to continue to add fuel centers in the parking lots of
existing stores. These centers feature three to six fuel pumps and a small
building, ranging in size from a pay-only kiosk to a small convenience
store featuring such items as candy, soft drinks and snack foods.
If the combination of Albertson's and American Stores Company
is completed as expected early in 1999, the combined entity will more than
double in size and will operate stand-alone drugstores in addition to the
formats described above.
Albertson's is a Delaware corporation organized as a successor to a
business founded by J. A. Albertson in 1939. Albertson's principal
executive offices are located at 250 Parkcenter Boulevard, Boise, Idaho
83706, and its telephone number at that address is (208) 395-6200.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement,
Albertson's intends to use the net proceeds of any securities sold pursuant
to this prospectus for general corporate purposes, including retirement of
debt, working capital, acquisitions and other business opportunities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the periods indicated. Earnings consist of earnings from continuing
operations before income taxes and fixed charges (excluding interest
capitalized). Fixed charges consist of interest and the portion of rental
expense deemed representative of the interest factor.
<TABLE>
<CAPTION>
53 Weeks 52 Weeks 52 Weeks 52 Weeks 52 Weeks 39 Weeks 39 Weeks
Ended Ended Ended Ended Ended Ended Ended
Feb. 3, Feb. 2, Feb. 1, Jan. 30, Jan. 29, Oct. 30, Oct. 29,
1994 1995 1996 1997 1998 1997 1998
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings 6.96X 7.45X 8.16X 7.77X 6.98X 6.40X 6.00X
to Fixed Charges
</TABLE>
DESCRIPTION OF DEBT SECURITIES
This prospectus relates to debt securities, including debentures,
notes and/or other unsecured evidences of indebtedness, which Albertson's
may issue under an indenture dated as of May 1, 1992 between Albertson's
and First Trust of New York, National Association, as trustee ("Debt
Securities"). We have summarized selected portions of the indenture below.
The summary is not complete. Section and article references in the summary
below are references to sections and articles in the indenture. Capitalized
terms used in the summary have the meanings specified in this prospectus or
the indenture. You can find the definitions of some of the terms used in
the summary under the heading "Certain Covenants of Albertson's - Certain
Definitions Applicable to Covenants" below.
When Albertson's offers Debt Securities pursuant to this prospectus,
it will be accompanied by a prospectus supplement which will describe the
particular terms and provisions of the Debt Securities being offered and
the extent to which the general provisions of the indenture summarized
below may apply to the Debt Securities.
The indenture has been incorporated as an exhibit to the registration
statement which includes this prospectus and you should read the indenture
for provisions that are important to you. The indenture itself, not this
summary or the description in the prospectus supplement, defines your
rights as a holder of Debt Securities.
GENERAL
The Debt Securities will be senior unsecured general obligations of
Albertson's that will rank on a parity with other senior unsecured
indebtedness of Albertson's from time to time outstanding. The Debt
Securities offered by this Prospectus will be limited to $2,500,000,000
aggregate principal amount (based on the aggregate initial offering price
of such Debt Securities (although the Indenture does not limit the
aggregate principal amount that may be issued thereunder)). The Debt
Securities may be issued from time to time in separate series up to the
aggregate amount from time to time authorized by the Company for such
series.
Each prospectus supplement will describe the following terms relating
to a series of Debt Securities:
o the title;
o any limit on the aggregate principal amount that may be
issued;
o the person to whom any interest on such series of Debt
Securities will be payable, if other than the person in whose
name the Debt Security is registered on the regular record
date;
o whether or not such series of Debt Securities will be
issued in permanent global form, and if so, the terms and
conditions, if any, upon which interests in such global Debt
Securities may be exchanged, in whole or in part, for the
individual Debt Securities represented thereby;
o the maturity date(s) of the Debt Securities;
o the rate or rate(s) at which such series of Debt Securities
will bear interest, if any, or the method by which such rate or
rates are determined and the date(s) from which any interest
will accrue, the date(s) interest will be payable and the
regular record dates for interest payment dates or the method
for determining such date(s);
o the place(s) where the principal and any premium or
interest payments will be payable;
o the period or periods within which, the price(s) at which, and
the terms or conditions upon which such series of Debt
Securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed or purchased at Albertson's
option;
o the obligation, if any, of Albertson's, to redeem or repurchase
such series of Debt Securities, and the price(s) at which and
terms and conditions upon which such series of Debt Securities
will be redeemed or repurchased;
o the denominations in which such series of Debt Securities
will be issued, if other than denominations of $1,000 and any
integral multiple thereof;
o any index, formula or other method used to determine the
amount of payments of principal of and any premium and interest
on such series of Debt Securities; and
o any other terms not inconsistent with the provisions of the
indenture.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable prospectus supplement,
payment of principal, premium, if any, and interest, if any, on the Debt
Securities will be payable, and the exchange of and the transfer of Debt
Securities will be registerable, at any office or agency maintained for
such purpose. (Sections 305 and 1002) Unless otherwise indicated in the
applicable prospectus supplement, the Debt Securities will be issued in
denominations of $1,000 and integral multiples thereof. (Section 302) No
service charge will be made for any registration of transfer or exchange of
Debt Securities, but Albertson's may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection therewith.
(Section 305)
All moneys paid by Albertson's to a paying agent for the payment of
principal, premium, if any, or interest, if any, on any Debt Security which
remain unclaimed for two years after such principal, premium or interest
has become due and payable may be repaid to Albertson's, and thereafter the
holder of such Debt Security may look only to Albertson's for payment
thereof. (Section 1003)
In the event of any redemption of a series of Debt Securities,
Albertson's will not be required to:
o issue, register the transfer of or exchange Debt Securities of
any series during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Debt Securities
of that series and ending at the close of business on the day of such
mailing, or
o register the transfer of or exchange of any Debt Security,
or portion thereof, called for redemption, except the unredeemed portion of
any Debt Security being redeemed in part. (Section 305)
BOOK-ENTRY SYSTEM
The provisions set forth in this section headed "Book-Entry System"
will apply to a series of Debt Securities only if the prospectus supplement
relating to such series so indicates.
The Debt Securities of such series will be represented by one or more
global securities (collectively, a "Global Security") registered in the
name of a depositary (the "Depositary") or a nominee of the Depositary
identified in the prospectus supplement relating to such series. The
Depositary will maintain such series of Debt Securities in denominations of
$1,000 and larger integral multiples of $1,000 through its book-entry
facilities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive form, no Global Security may be transferred except
as a whole, and then only to the Depositary or another nominee of the
Depositary.
Ownership of beneficial interests in such series of Debt Securities
will be limited to persons that have accounts with the Depositary
("Participants") or persons that may hold interests through Participants.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the Participants' accounts
with the respective principal amounts of the Debt Securities beneficially
owned by such Participants. The accounts to be credited will be designated
by the underwriters, dealers or agents. Ownership of beneficial interests
in a Global Security will be limited to Participants or persons that may
hold interests through Participants. Ownership of interests in such Global
Security will be shown on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depositary (with
respect to Participants' interests) and such Participants (with respect to
the owners of beneficial interests in such Global Security). The laws of
some jurisdictions may require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and
laws may impair the ability of such persons to own, pledge or transfer
beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered holder
and owner of a Global Security, the Depositary or such nominee, as the case
may be, will be considered the sole owner and holder of the related Debt
Securities for all purposes of such Debt Securities and for all purposes
under the indenture. Except as set forth below or as otherwise provided in
the applicable prospectus supplement, owners of beneficial interests in a
Global Security will not be entitled to have the Debt Securities
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered to be the owners or holders of
any Debt Securities under the indenture or such Global Security. (Section
305)
Accordingly, each person owning a beneficial interest in a Global
Security must rely on the procedures of the Depositary and, if such person
is not a Participant, on the procedures of the Participant through which
such person owns its interest to exercise any rights of a holder of Debt
Securities under the indenture or such Global Security. Albertson's
understands that under existing industry practice, if Albertson's requests
any action of holders of Debt Securities or if an owner of a beneficial
interest in a Global Security desires to take any action that the
Depositary, as the holder of such Global Security, is entitled to take, the
Depositary would authorize the Participants to take action, and the
Participants would authorize beneficial owners owning through such
Participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Payment of principal of and premium, if any, and interest, if any, on
Debt Securities represented by a Global Security will be made to the
Depositary or its nominee, as the case may be, as the registered owner and
holder of such Global Security.
Albertson's expects that the Depositary, upon receipt of any payment
of principal, premium, if any, or interest, if any, in respect of a Global
Security, will credit immediately Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of the
Depositary. Albertson's expects that payments by Participants to owners of
beneficial interests in a Global Security held through such Participants
will be governed by standing instructions and customary practices, as is
now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
Participants.
Neither Albertson's nor the trustee nor any agent of Albertson's or
the trustee will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests or for any
other aspect of the relationship between the Depositary and its
Participants or the relationship between such Participants and the owners
of beneficial interests in such Global Security owning through such
Participants.
Unless otherwise provided in the applicable prospectus supplement,
Debt Securities represented by a Global Security will be exchangeable for
Debt Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral
multiple thereof if:
o the Depositary notifies Albertson's that it is unwilling or
unable to continue as Depositary for such Global Security,
o the Depositary ceases at any time to be a clearing agency
registered under the Securities Exchange Act of 1934,
o Albertson's in its discretion at any time determines not to
have all of the Debt Securities represented by a Global Security and
notifies the trustee thereof, or
o an Event of Default has occurred and is continuing with
respect to the Debt Securities. (Section 305)
Any Debt Security that is exchangeable pursuant to the preceding sentence
is exchangeable for Debt Securities issuable in authorized denominations
and registered in such names as the Depositary will direct.
CERTAIN COVENANTS OF ALBERTSON'S
Unless otherwise indicated in the applicable prospectus supplement,
the Debt Securities will not have the benefit of any covenants that limit
or restrict the business or operations of Albertson's, the pledging of
assets of Albertson's or the incurrence of indebtedness by Albertson's. The
covenants contained in the indenture which are summarized below will be
applicable (unless waived or amended) to the series of Debt Securities to
which such prospectus supplement relates, but only to the extent indicated
in the applicable prospectus supplement, and only so long as any of the
Debt Securities of such series are outstanding. The covenants contained in
the indenture and any series of Debt Securities would not necessarily
afford holders of the Debt Securities protection in the event of a highly
leveraged or other transaction involving Albertson's that may adversely
affect holders.
Limitations on Liens
If all of the following conditions are satisfied:
o Albertson's or any Subsidiary directly or indirectly, creates,
incurs, issues, assumes, guarantees or otherwise becomes liable for or
suffers to exist any indebtedness for money borrowed or evidenced by a
bond, debenture, note or other similar instrument, whether or not for money
borrowed ("Debt"),
o such Debt is secured by a Lien on any Principal Property of
Albertson's or of any Subsidiary or a Lien on any shares of capital stock
or Debt of any Subsidiary (which Debt of a Subsidiary is then held by
Albertson's or any Subsidiary), and
o the aggregate amount of all such secured Debt, together with
all Attributable Debt of Albertson's and its Subsidiaries with respect to
Sale and Leaseback Transactions involving Principal Properties (with the
exception of such transactions that are excluded as described in
"Limitations on Sale and Leaseback Transactions" below), exceeds 10% of
Consolidated Net Tangible Assets,
then Albertson's will secure or cause such Subsidiary to secure the Debt
Securities of any series entitled to the benefit of such covenant equally
and ratably with such secured Debt, but only for so long as such secured
Debt is secured as described above.
The above restriction does not apply to Debt secured by the Liens
described below, and, in computing the amount of secured Debt, Debt secured
by the Liens described below will not be considered secured Debt:
(1) Liens on property of, or on any shares of capital stock of or on
Debt of, any corporation existing at the date of the indenture or at the
time such corporation becomes a Subsidiary;
(2) Liens in favor of Albertson's or any Wholly-owned Subsidiary;
(3) Liens in favor of governmental bodies to secure progress, advance
or various other payments;
(4) (a) if made in the ordinary course of business, Liens as security
for the performance of contracts other than in connection with the
borrowing of money, deferred purchase price of property or services, an
advance of moneys or the securing of Debt,
(4) (b) Liens with governmental agencies required or permitted to
qualify Albertson's or any Subsidiary to conduct business, maintain
self-insurance or obtain various other benefits,
(4) (c) mechanics' Liens, landlord Liens or statutory Liens securing
obligations incurred in the ordinary course of business not overdue or
being contested in good faith by appropriate proceedings and not incurred
directly or indirectly in connection with the borrowing of money, the
deferred purchase price of property or services or an advance of moneys, or
(4) (d) easements, exceptions, reservations or similar encumbrances
on real property that do not materially interfere with the operation of
such property or impair the value of such property for the purposes for
which such property is or may reasonably be expected to be used by
Albertson's or its Subsidiaries;
(5) Liens for taxes, assessments or governmental charges or levies
not yet due and payable or payable without penalty or being contested in
good faith by appropriate proceedings;
(6) Liens created by or resulting from any litigation or legal
proceeding that is being contested in good faith by appropriate
proceedings, Liens arising out of judgments or awards as to which the time
for prosecuting an appeal or proceeding for review has not expired, or
Liens arising out of individual final judgments or awards in amounts of
less than $100,000, provided that the aggregate amount of all such
individual final judgments or awards will not at any one time exceed
$1,000,000;
(7) Liens on property, shares of stock or Debt existing at the time
of acquisition thereof (including acquisition through merger or
consolidation), and purchase money and construction Liens that are entered
into within 360 days after the latest to occur of the acquisition,
completion of construction or the commencement of full operation of such
property;
(8) Liens securing industrial revenue or pollution control bonds;
(9) Liens created in connection with a project financed with, and
created to secure, a Nonrecourse Obligation; and
(10) any extension, renewal or refunding of any Lien referred to in
the foregoing clauses (1) through (9), inclusive, to the extent the amount
of Debt secured by such Lien is not increased from the amount originally so
secured. (Section 1008)
Limitations on Sale and Leaseback Transactions
Neither Albertson's nor any Subsidiary may enter into any Sale and
Leaseback Transaction involving any Principal Property, unless the
aggregate amount of all Attributable Debt of Albertson's and its
Subsidiaries with respect to all such transactions plus all secured Debt
(with the exception of secured Debt which is excluded as described in
"Limitations on Liens" above) would not exceed 10% of Consolidated Net
Tangible Assets, or unless
(1) the lease is for a period, including renewal rights, not in
excess of three years;
(2) the sale or transfer of the Principal Property is made within
180 days after the latest to occur of the acquisition, construction or the
commencement of full operation of such property;
(3) the lease secures or relates to industrial revenue or pollution
control bonds;
(4) the transaction is between Albertson's and a Wholly-owned
Subsidiary or between Wholly-owned Subsidiaries;
(5) the lease payment obligation is created in connection with a
project financed with, and such obligation constitutes, a Nonrecourse
Obligation; or
(6) Albertson's or such Subsidiary, within 180 days after the sale
is completed, applies to the retirement of Funded Debt of Albertson's
(other than Funded Debt subordinate to the Debt Securities) or of any
Subsidiary (other than through payment at maturity or a mandatory sinking
fund or other mandatory prepayment) or to the purchase of other property
which will constitute Principal Property of a value at least equal to the
value of the Principal Property leased, an amount not less than the greater
of
(a) the net proceeds from the sale of the Principal
Property leased, and
(b) the fair market value of the Principal Property leased.
(Section 1009)
In addition, Sale and Leaseback Transactions which meet any of the above
tests will not be counted when computing the amount of Attributable Debt
for purposes of the foregoing restriction.
Certain Definitions Applicable to Covenants
Certain terms defined in the indenture and applicable to the
covenants are summarized below:
"Attributable Debt" means, as to any particular lease under which
Albertson's or any Subsidiary is at the time liable and at any date as of
which the amount thereof is to be determined, the total net amount of rent
required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended), discounted from the respective due
dates thereof to such date at a rate per annum equal to the weighted
average interest rate per annum borne by the Debt Securities of each series
outstanding pursuant to the indenture compounded semi-annually. The net
amount of rent required to be paid under any such lease for any such period
will be the aggregate amount of the rent payable by the lessee with respect
to such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount will also include the amount
of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Capital Lease Obligations" means any rental obligation which, under
generally accepted accounting principles, is or will be required to be
capitalized on the books of Albertson's or any Subsidiary, taken at the
amount thereof accounted for as indebtedness (net of interest expense) in
accordance with such principles.
"Consolidated Net Tangible Assets" means the net book value of all
assets of Albertson's and its consolidated Subsidiaries, excluding any
amounts carried as assets for shares of capital stock held in treasury,
debt discount and expense, goodwill, patents, trademarks and other
intangible assets, less all liabilities of Albertson's and its consolidated
subsidiaries (except Funded Debt, minority interests in consolidated
Subsidiaries, deferred taxes and general contingency reserves of
Albertson's and its consolidated Subsidiaries), which in each case would be
included on a consolidated balance sheet of Albertson's and its
consolidated Subsidiaries as of the date of determination, all as
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Funded Debt" means:
(1) all indebtedness of Albertson's and its Subsidiaries for money
borrowed, or evidenced by a bond, debenture, note or other similar
instrument, whether or not for money borrowed, maturing on, or renewable or
extendible at the option of the obligor to, a date more than one year from
the date of the determination thereof (but not including indebtedness under
any revolving credit arrangement with banks except for any indebtedness
converted pursuant to any such arrangement into a term loan which meets the
requirements of this clause (1)),
(2) Capital Lease Obligations payable on a date more than one year
from the date of the determination thereof,
(3) guarantees, direct or indirect, and other contingent obligations
of Albertson's and its Subsidiaries in respect of, or to purchase or
otherwise acquire or be responsible or liable for (through the investment
of funds or otherwise), any obligations of the type described in the
foregoing clauses (1) or (2) of others (but not including contingent
liabilities on customers' receivables sold with recourse), and
(4) amendments, renewals, extensions and refundings of any
obligations of the type described in the foregoing clauses (1), (2) or (3).
"Lien" means any mortgage, pledge, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to
give any of the foregoing).
"Nonrecourse Obligation" means indebtedness or lease payment
obligations substantially related to:
(1) the acquisition of assets not previously owned by Albertson's or
any Subsidiary, or
(2) the financing of a project involving the development or
expansion of properties of Albertson's or any Subsidiary, as to which the
obligee with respect to such indebtedness or obligation has no recourse to
Albertson's or any Subsidiary or any assets of Albertson's or any
Subsidiary other than the assets which were acquired with the proceeds of
such transaction or the project financed with the proceeds of such
transaction (and the proceeds thereof).
"Principal Property" means:
(1) any real property of Albertson's or any Subsidiary (including,
without limitation, leasehold interests) together with the improvements
thereon and the equipment, if any, constituting a part of the facility
located thereon (including, without limitation, any warehouse, service
center, shopping center or distribution center, wherever located) and
(2) other equipment of Albertson's or any Subsidiary,
in each case which has a book value on the date as of which the
determination is being made of more than 1% of Consolidated Net Tangible
Assets as most recently determined prior to such date.
However, for purposes of clause (1) above, separate parcels of real
property which are operated generally as part of a single facility (such as
a single warehouse, service center, shopping center or distribution center)
will be deemed to be a single property, and for purposes of clause (2)
above, separate items of equipment that are secured by Liens will be deemed
to be a single property to the extent they are secured by such Liens
pursuant to the same financing transaction or a series of related financing
transactions.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by Albertson's or
by one or more other Subsidiaries, or by Albertson's and one or more other
Subsidiaries. For the purpose of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default
under the indenture with respect to Debt Securities of any series (unless
such event is specifically inapplicable to a particular series as described
in the prospectus supplement relating thereto):
(1) failure to pay any interest on any Debt Security of that series
when due, if such failure continues for 30 days;
(2) failure to pay principal of or any premium on any Debt Security
of that series when due;
(3) failure to deposit any sinking fund payment, when due, relating
to any Debt Security of that series;
(4) failure to perform any other covenant of Albertson's in the
indenture (other than a covenant included in the indenture solely for the
benefit of a series of Debt Securities other than that series), if such
failure continues for 60 days after written notice as provided in the
indenture;
(5) default under indebtedness for money borrowed of Albertson's or
any Significant Subsidiary having an aggregate outstanding principal amount
of at least $25,000,000 or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be secured
or evidenced any such indebtedness of Albertson's or any Significant
Subsidiary, which default either
(a) will constitute a failure to make a principal payment of at
least $25,000,000 when due and payable after the expiration of any
applicable grace period with respect thereto, or
(b) will have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without, in either case, such
indebtedness having been discharged or such default rescinded or
annulled within 10 days after notice to Albertson's by the trustee or
to Albertson's and the trustee by the holders of at least 10% in
aggregate principal amount of the Outstanding Debt Securities of that
series specifying such default and requiring Albertson's or such
Significant Subsidiary to cause such indebtedness to be discharged or
such acceleration to be rescinded or annulled;
(6) various events of bankruptcy, insolvency or reorganization
involving Albertson's or a Significant Subsidiary; and
(7) any other Event of Default provided with respect to Debt
Securities of that series. (Section 501)
No Event of Default described above with respect to a particular
series of Debt Securities necessarily constitutes an Event of Default with
respect to any other series of Debt Securities.
Subject to the provisions of the indenture relating to the duties of
the trustee, in case an Event of Default will occur and be continuing, the
trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request or direction of any of the holders,
unless such holders will have offered to the trustee reasonable security or
indemnity. (Sections 601 and 603) Subject to various provisions, including
those requiring security and indemnification of the trustee, the holders of
a majority in aggregate principal amount of the Outstanding Debt Securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on the trustee. (Section 512)
Albertson's is required to deliver annually to the trustee a
statement by certain of its officers as to whether or not Albertson's, to
their knowledge, is in default in the performance and observance of any
obligations of Albertson's under the indenture and, if so, specifying all
such known defaults. (Section 1004)
If an Event of Default will occur and be continuing with respect to
Debt Securities of any series, either the trustee or the holders of at
least 25% in aggregate principal amount of all Outstanding Debt Securities
of that series may accelerate the maturity of all Debt Securities of that
series. However, after such acceleration, but before a judgment or decree
based on acceleration, the holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of that series may, under various
circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal, have been
cured or waived as provided in the indenture. (Section 502) For information
as to waiver of defaults, see "Meetings, Modifications and Waiver" below.
No holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the indenture or for any remedy
thereunder, unless such holder will have previously given to the trustee
written notice of a continuing Event of Default and unless the holders of
at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series will have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as
trustee, and the trustee will not have received from the holders of a
majority in aggregate principal amount of the outstanding Debt Securities
of that series a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days. (Section 507) However,
such limitations generally do not apply to a suit instituted by a holder of
a Debt Security for the enforcement of payment of the principal or interest
on such Debt Security on or after the respective due dates expressed in
such Debt Security. (Section 508)
MEETINGS, MODIFICATION AND WAIVER
Modifications and amendments of the indenture may be made by
Albertson's and the trustee with the consent of the holders of not less
than 66 2/3% in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such modification or amendment.
However, no such modification or amendment may, without the consent of the
holder of each Outstanding Debt Security affected thereby,
o change the Stated Maturity of the principal of, or any
installment of principal of or interest on any Debt Security,
o reduce the principal amount or rate of interest on or any
premium payable upon the redemption of any Debt Security,
o reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof,
o change the Place of Payment where, or the coin or currency in
which, principal, premium, if any, or interest, if any, on any Debt
Security is payable,
o impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security after the Stated Maturity
or Redemption Date,
o reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose holders is required for
modification or amendment of the indenture or for waiver of compliance with
various provisions of the indenture or for waiver of various defaults, or
o modify any of the provisions set forth in this paragraph except
to increase any such percentage or to provide that various other provisions
of the indenture may not be modified or waived without the consent of the
holder of each Outstanding Debt Security affected thereby. (Section 902)
The holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the holders of
all the Debt Securities of that series, waive, insofar as that series is
concerned, compliance by Albertson's with various restrictive provisions of
the indenture. (Section 1010) The holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each
series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the indenture with respect to Debt Securities
of that series, except a default
o in the payment of principal of, any premium on or any
interest on any Debt Security of such series, or
o in respect of a covenant or provision of the indenture
which cannot be modified or amended without the consent of the holder of each
Outstanding Debt Security of such series affected thereby. (Section 513)
The indenture provides that in determining whether the holders of the
requisite principal amount of the Outstanding Debt Securities have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, the principal amount of an Original Issue Discount Security
that will be deemed to be Outstanding will be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof. (Section 101)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Albertson's may consolidate with or merge into, or transfer or lease
its assets substantially as an entirety to, any person which is a
corporation, partnership or trust organized and validly existing under the
laws of any domestic jurisdiction, or may permit any such person to
consolidate with or merge into Albertson's or convey, transfer or lease its
properties and assets substantially as an entirety to Albertson's, without
the consent of the holders of any of the Outstanding Debt Securities under
the indenture. However, such consent will be required if
o the successor person fails to assume the obligations of
Albertson's on the Debt Securities,
o after giving effect to the transaction (treating any indebtedness
which becomes an obligation of Albertson's or any Subsidiary as a result of
such transaction as having been incurred by Albertson's or such Subsidiary
at the time of such transaction), an Event of Default, or an event which,
after notice or lapse of time, would become an Event of Default, will have
occurred and be continuing, or
o various other conditions are not met. (Section 801)
DEFEASANCE AND COVENANT DEFEASANCE
The indenture provides that, if such provision is made applicable to
the Debt Securities of any series, Albertson's may elect:
(1) to defease and be discharged from any and all obligations in
respect of such Debt Securities except for various obligations to register
the transfer or exchange of such Debt Securities, to replace temporary,
destroyed, stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold moneys for payment in trust ("Defeasance") or
(2) (a) to omit to comply with various restrictive covenants in
Sections 1005 through 1009 of the indenture (including the covenants
referred to above under "Certain Covenants of Albertson's"), and
(b) to deem the occurrence of any event referred to in clauses
(4) (with respect to Sections 1005 through 1009 inclusive), (5) or
(7) under "Events of Default" above not to be or result in an Event
of Default if, in each case with respect to the Outstanding Debt
Securities of such series as provided in Section 1303 of the
indenture on or after the date the conditions set forth in Section
1304 of the indenture are satisfied ("Covenant Defeasance"),
in either case upon the deposit with the trustee (or other qualifying
trustee), in trust, of money and/or U.S. Government Obligations, which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to
pay the principal of and any premium and interest on the Debt Securities of
such series on the respective Stated Maturities and any mandatory sinking
fund payments or analogous payments on the days payable, in accordance with
the terms of the indenture and the Debt Securities of such series. Such a
trust may be established only if, among other things, Albertson's has
delivered to the trustee an Opinion of Counsel to the effect that the
holders of the Outstanding Debt Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, Defeasance or Covenant Defeasance and will be subject to Federal
income tax on the same amount, and in the same manner and at the same times
as would have been the case if such deposit, Defeasance or Covenant
Defeasance had not occurred. Such opinion, in the case of Defeasance under
clause (1) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable Federal income tax law occurring
after the date of the indenture. The prospectus supplement relating to a
series of Debt Securities may further describe the provisions, if any,
permitting such Defeasance or Covenant Defeasance with respect to such Debt
Securities. (Article Thirteen)
If Albertson's omits to comply with various covenants of the
indenture with respect to the Debt Securities of any series as described
above, and the Debt Securities of such series are declared due and payable
because of the occurrence of an Event of Default, the amount of money and
U.S. Government Obligations on deposit with the trustee will be sufficient
to pay amounts due on the Debt Securities of such series at the time of
their Stated Maturity but may not be sufficient to pay amounts due on the
Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. Albertson's will, however, remain liable for
such payments.
NOTICES
Notices to holders of Debt Securities will be given by mail to the
addresses of such holders as they appear in the Debt Security Register.
(Sections 101 and 106)
REPLACEMENT OF SECURITIES
Any mutilated Debt Security will be replaced by Albertson's at the
expense of the holder upon surrender of such Debt Security to the trustee.
Debt Securities that become destroyed, stolen or lost will be replaced by
Albertson's at the expense of the holder upon delivery to the trustee of
the Debt Security or evidence of the destruction, loss or theft thereof
satisfactory to Albertson's and the trustee. In the case of a destroyed,
lost or stolen Debt Security, an indemnity satisfactory to the trustee and
Albertson's may be required at the expense of the holder of such Debt
Security before a replacement Debt Security will be issued. (Section 306)
GOVERNING LAW
The indenture and the Debt Securities will be governed by and
construed in accordance with the laws of the State of New York. (Section
112)
REGARDING THE TRUSTEE
The indenture contains various limitations on the right of the
trustee, if it becomes a creditor of Albertson's, to obtain payment of
claims in various cases or to realize for its own account on various
property received in respect of any such claim as security or otherwise.
(Section 613) The trustee will be permitted to engage in various other
transactions; however, if it acquires any conflicting interest and there is
a default under the Debt Securities of any series for which the trustee
serves as trustee, the trustee must eliminate such interest or resign.
(Section 608) The trustee currently provides various banking and financial
services to Albertson's in the ordinary course of business and may provide
such services in the future.
PLAN OF DISTRIBUTION
Albertson's may sell any series of Debt Securities being offered
hereby in one or more of the following ways from time to time:
o to underwriters for resale to the public or to
institutional investors; or
o directly or through agents to other purchasers.
The accompanying prospectus supplement will set forth the terms of
the offering of the Debt Securities, including the name or names of any
underwriters or agents involved in the sale of the Debt Securities in
respect of which this prospectus is being delivered, the principal amounts,
if any, to be purchased by underwriters, and the compensation, if any, of
such underwriters or agents.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters or
agents may receive compensation from Albertson's or from purchasers of Debt
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Debt Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Underwriters, dealers and agents that participate in the distribution of
Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them from Albertson's and any profit on the resale
of Debt Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933, as amended. Any such
underwriter or agent will be identified, and any such compensation received
from Albertson's will be described, in the applicable prospectus
supplement.
Under agreements which may be entered into by Albertson's,
underwriters and agents who participate in the distribution of Debt
Securities may be entitled to indemnification by Albertson's against
various liabilities, including liabilities under the Securities Act of
1933.
If so indicated in the applicable prospectus supplement, Albertson's
will authorize underwriters or other persons acting as agents for
Albertson's to solicit offers by various institutions to purchase Debt
Securities from Albertson's pursuant to contracts providing for payment and
delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by Albertson's.
The obligations of any purchaser under any such contract will be subject to
the condition that the purchase of the offered Debt Securities will not at
the time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other agents
will not have any responsibility in respect of the validity or performance
of such contracts.
Various of the underwriters who participate in the distribution of
Debt Securities and their affiliates may perform various commercial banking
and investment banking services for Albertson's from to time in the
ordinary course of business.
The place and time of delivery for the Debt Securities in respect of
which this prospectus is delivered are set forth in the applicable
prospectus supplement.
Unless otherwise indicated in the applicable prospectus supplement,
each series of Debt Securities will be in a new issue of securities, will
not have an established trading market when issued and will not be listed
on any securities exchange. Any underwriters or agents to or through whom
Debt Securities are sold by Albertson's for public offering and sale may
make a market in such Debt Securities, but such underwriters or agents will
not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of the
trading market for any Debt Securities.
LEGAL OPINIONS
Certain legal matters relating to the validity of the Debt Securities
offered hereby will be passed upon for Albertson's by Thomas R. Saldin,
Esq., Executive Vice President, Administration and General Counsel of
Albertson's.
EXPERTS
The consolidated financial statements and the related financial
statement schedules incorporated in this prospectus by reference from
Albertson's Annual Report on Form 10-K for the year ended January 29, 1998
have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report, which is incorporated herein by reference, and has been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be borne by
Albertson's, Inc. (the "Registrant") in connection with the offerings
described in this Registration Statement. All such expenses other than the
Securities and Exchange Commission registration fee are estimates.
Securities and Exchange Commission Registration Fee. $644,126
Accounting Fees and Expenses........................ 40,000
Legal Fees.......................................... 40,000
Printing Expenses................................... 30,000
Trustee Fees and Expenses........................... 25,000
Rating Agency Fees.................................. 50,000
Miscellaneous Expenses.............................. 20,874
Total..................................... $850,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's By-Laws provide that each person who was or is made
a party to, or is involved in, any action, suit or proceeding by reason of
the fact that he or she was a director or officer of the Registrant (or was
serving at the request of the Registrant as a director, officer, employee
or agent for another entity) will be indemnified and held harmless by the
Registrant, to the fullest extent authorized by the Delaware General
Corporation Law, as amended ("GCL").
The Registrant is a Delaware corporation. Reference is made to
Section 145 of the GCL, which provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of such corporation) by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or was
serving at its request in such capacity of another corporation or business
organization against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interest of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
that such person's conduct was unlawful. A Delaware corporation may
indemnify officers and directors in an action by or in the right of a
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged
to be liable to the corporation. Where an officer or director is successful
on the merits or otherwise in the defense of any action referred to above,
the corporation must indemnify the officer or director against the expense
that such officer or director actually and reasonably incurred.
The Registrant's Restated Certificate of Incorporation provides that,
to the fullest extent permitted by the GCL as the same exists or may
hereafter be amended, a director of the Registrant will not be liable to
the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director. The GCL permits Delaware corporations to
include in their certificates of incorporation a provision eliminating or
limiting personal liability of directors of a corporation for monetary
damages arising from breaches of fiduciary duty. The only limitations
imposed under the statute are that the provision may not eliminate or limit
such personal liability (i) for breaches of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in
good faith or involving intentional misconduct or a knowing violation of
law, (iii) for the payment of unlawful dividends or unlawful stock
purchases or redemptions or (iv) for transactions in which the director
received an improper personal benefit.
The Registrant is insured against various liabilities that it may
incur by reason of its indemnification of officers and directors in
accordance with its By-Laws. In addition, directors and officers are
insured, at the Registrant's expense, against certain liabilities which
might arise out of their directorship or employment, respectively, and not
subject to indemnification under the By-Laws.
The foregoing summaries are subject to the complete text of the
statute, Restated Certificate of Incorporation, By-Laws and agreements
referred to above and are qualified in their entirety by reference thereto.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein by
reference.
Exhibit No. Description
4.1 Indenture between Albertson's, Inc. and First
Trust of New York, N.A. as trustee as successor in
interest to the corporate trust business of Morgan
Guaranty Trust Company of New York. (1)
5.1 Opinion of Thomas R. Saldin, Esq.
12.1 Statement of Computation of Ratio of Earnings
to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Thomas R. Saldin, Esq. (included in
Exhibit 5.1).
24.1 Powers of Attorney (See Page II-5).
25.1 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of First Trust
of New York, N.A.
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(1) Incorporated by reference to Exhibit 4.1 to Registration
Statement No. 333-41793, filed on December 9, 1997.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933; (ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; (iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement, provided, however, that the undertakings set forth
in paragraphs (1)(i) and 1(ii) do not apply if the registration statement
is on Form S- 3 or Form S-8, and the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(3) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions set forth
in Item 15, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(5) The undersigned Registrant hereby undertakes that:
(a) for purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)
(1) or (4) or Rule 497(h) under the Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Albertson's, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement or amendment thereto to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Boise, in the
State of Idaho on January 21, 1999.
ALBERTSON'S, INC.
By /s/ Gary G. Michael
Name: Gary G. Michael
Title: Chairman of the Board & Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Thomas R. Saldin and A. Craig Olson
his or her true and lawful attorney-in-fact and agent, each acting alone,
with full powers of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as
fully for all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Gary G. Michael Chairman of the Board and Chief January 21, 1999
- ------------------------ Executive Officer and Director
Gary G. Michael (Principal Executive Officer)
/s/ A. Craig Olson Senior Vice President, Finance January 21, 1999
- ------------------------- and Chief Financial Officer
A. Craig Olson (Principal Financial Officer)
/s/ Richard J. Navarro Group Vice President and Controller January 21, 1999
- ------------------------- (Principal Accounting Officer)
Richard J. Navarro
s/ Cecil D. Andrus Director January 21, 1999
- -------------------------
Cecil D. Andrus
/s/ John B. Carley Director January 21, 1999
- -------------------------
John B. Carley
/s/ Paul I. Corddry Director January 21, 1999
- -------------------------
Paul I. Corddry
/s/ John B. Fery Director January 21, 1999
- -------------------------
John B. Fery
/s/ Clark A. Johnson Director January 21, 1999
- -------------------------
Clark A. Johnson
/s/ Richard L. King Director January 21, 1999
- -------------------------
Richard L. King
/s/ Charles D. Lein Director January 21, 1999
- -------------------------
Charles D. Lein
/s/ Beatriz Rivera Director January 21, 1999
- -------------------------
Beatriz Rivera
/s/ J.B. Scott Director January 21, 1999
- -------------------------
J.B. Scott
/s/ Thomas L. Stevens, Jr. Director January 21, 1999
- -------------------------
Thomas L. Stevens, Jr.
/s/ Steven D. Symms Director January 21, 1999
- -------------------------
Steven D. Symms
EXHIBIT INDEX
Exhibit No. Description
4.1 Indenture between Albertson's, Inc. and First
Trust of New York, N.A. as trustee as successor in
interest to the corporate trust business of Morgan
Guaranty Trust Company of New York. (1)
5.1 Opinion of Thomas R. Saldin, Esq.
12.1 Statement of Computation of Ratio of Earnings
to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Thomas R. Saldin, Esq. (included in
Exhibit 5.1).
24.1 Powers of Attorney (See Page II-5).
25.1 Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of 1939
of First Trust of New York, N.A.
- ------------------------
(1) Incorporated by reference to Exhibit 4.1 to Registration
Statement No. 333-41793, filed on December 9, 1997.
EXHIBIT 5.1
January 21, 1999
Albertson's, Inc.
P. O. Box 20
Boise, ID 83726
RE: Albertson's, Inc. Registration Statement on Form S-3 relating to
$2,500,000,000 Principal Amount of Senior Debt Securities
Ladies and Gentlemen:
I am Executive Vice President, Administration and General Counsel of
Albertson's, Inc., a Delaware corporation (the "Company"). I have assisted
in the preparation of the above-referenced Registration Statement on Form
S-3 being filed by the Company with the Securities and Exchange Commission
(the"Commission") on or about January 21, 1999 (the "Registration
Statement") in connection with the Company's registration under the
Securities Act of 1933, as amended (the "1933 Act"), of $2,500,000,000
aggregate principal amount of senior debt securities (the "Debt
Securities") of the Company. The Debt Securities are being registered for
offering and sale from time to time on a delayed orcontinuous basis
pursuant to Rule 415 under the 1933 Act. The Debt Securities are to be
issued pursuant to an indenture dated as of May 1, 1992 (the "Indenture"),
entered into between the Company and First Trust of New York,N.A., a New
York corporation, as trustee (the "Trustee") and successor in interest to
the corporate trust business of Morgan Guaranty Trust Company of New York.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction
of (i) the Registration Statement on Form S-3 relating to the Debt
Securities (together with the form of Prospectus forming a part thereof);
(ii) the Certificate of Incorporation of the Company, as currently in
effect (the "Certificate of Incorporation"); (iii) the By-Laws of the
Company as currently in effect (the "By-Laws"); (iv) the resolutions of the
Company's Board of Directors relating to (A) the preparation of the
Registration Statement and the registration of the Debt Securities under
the 1933 Act and (B) the issuance, offering and sale from time to time of
the Debt Securities; and (v) the Indenture. I have also examined originals
or copies, certified or otherwise identified to my satisfaction of such
records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company
and others and such other documents,certificates and records as I have
deemed necessary or appropriate as a basis for the opinions set forth
herein.
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making my
examination of documents executed or to be executed by parties other than
the Company, I have assumed that such parties had or will have the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which I have not independently
established or verified, I have relied upon statements and representations
of officers and other representatives of the Company and others.
I am admitted to the practice of law in the State of Idaho, and I
express no opinion as to the laws of any other jurisdiction, other than the
General Corporation Law of the State of Delaware and laws of the United
States of America. With respect to my opinion below, to the extent it
constitutes an opinion related to New York law, I have reviewed and relied
upon a legal opinion addressed to the Company of Skadden, Arps, Slate,
Meagher & Flom LLP that, subject to the qualifications and assumptions
stated therein, the Debt Securities will be validly issued and legally
binding obligations of the Company under New York law.
Based upon and subject to the foregoing, I am of the opinion that with
respect to any series of Debt Securities (the "Offered Securities"), when
(i) theRegistration Statement, as finally amended (including all necessary
post-effective amendments), has become effective; (ii) an appropriate
Prospectus Supplement with respect to the Offered Securities has been
prepared, delivered and filed in compliance with the 1933 Act and the
applicable rules and regulations thereunder; (iii) if the Offered
Securities are to be sold pursuant to a firm commitment underwritten
offering, the Underwriting Agreement with respect to the Offered Securities
has been duly authorized, executed and delivered by the Company and the
other parties thereto; (iv) the terms of the Offered Securities and of
their issuance and sale have been duly established in conformity with the
applicable Indenture so as not to violate any applicable law, the
Certificate of Incorporation or By-laws of the Company or result in a
default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company; (v)
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended; and (vi) the Offered Securities have been duly executed and
authenticated in accordance with the provisions of the Indenture and duly
delivered to the purchasers thereof upon payment of the agreed upon
consideration therefor (assuming due authorization, execution and delivery
of the Indenture by the Trustee), the Offered Securities, when issued and
sold in accordance with the Underwriting Agreement or any other duly
authorized, executed and delivered applicable valid and binding purchase
agreement will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally; (b) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), (c) public
policy considerations which may limit the rights of parties to obtain
further remedies, and (d) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
I hereby consent to your filing of this opinion as an exhibit in the
Registration Statement and to the reference to me in the prospectus
incorporated herein.
Sincerely yours,
ALBERTSON'S, INC.
/s/ Thomas R. Saldin
--------------------------------------
Thomas R. Saldin
Executive Vice President,
Administration and General Counsel
<TABLE>
<CAPTION>
EXHIBIT 12.1
ALBERTSON'S, INC. AND SUBSIDIARIES
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
53 Weeks 52 Weeks 52 Weeks 52 Weeks 52 Weeks 39 Weeks 39 Weeks
Ended Ended Ended Ended Ended Ended Ended
Feb. 3, Feb. 2, Feb. 1, Jan. 30, Jan. 29, Oct. 30, Oct. 29,
1994 1995 1996 1997 1998 1997 1998
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before income taxes and
cumulative effects of accounting
changes $552,215 $678,652 $758,501 $794,847 $826,903 $551,436 $602,824
Add:
Portion of rents representative
of interest 46,774 47,753 49,832 52,439 53,901 40,797 42,349
Interest expense, including
amortization of debt discount 41,257 53,260 47,916 58,023 74,695 54,913 70,716
Amortization of previously
capitalized interest 1,750 1,964 2,172 2,588 2,900 2,139 2,435
-------- ------- -------- -------- -------- -------- --------
Earnings, as adjusted $641,996 $781,629 $858,421 $907,897 $958,399 $649,285 $718,324
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense, including
amortization of debt discount $41,257 $53,260 $47,916 $58,023 $74,695 $54,913 $70,716
Capitalized interest 4,219 3,974 7,428 6,378 8,683 5,731 6,664
Portion of rents representative
of interest 46,774 47,753 49,832 52,439 53,901 40,797 42,349
------ ------ ------ ------ ------ ------ ------
Total fixed charges $92,250 $104,987 $105,176 $116,840 $137,279 $101,441 $119,729
======= ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 6.96 7.45 8.16 7.77 6.98 6.40 6.00
</TABLE>
NOTE: For the purpose of calculating the ratio of earnings to fixed
charges, (a) earnings have been calculated by adding fixed charges
(excluding capitalized interest) to earnings from operations before
taxes and cumulative effects of accounting changes, and (1) fixed
charges consist of gross interest costs, whether expensed or
capitalized, amortization of debt discount and expense and that
portion of rental expense that represents interest.
EXHIBIT 23.1
DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Albertson's, Inc. (the "Company") on Form S-3 of our report dated March
18, 1998, appearing in and incorporated by reference in the Company's
Annual Report on Form 10-K of the Company for the fiscal year ended January
29, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
January 21, 1999
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I.R.S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
-------------------
FOR INFORMATION, CONTACT:
Dennis Calabrese, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
ALBERTSON'S, INC.
(Exact name of obligor as specified in its charter)
Delaware 82-0184434
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 Parkcenter Blvd. 83726
P.O. Box 20
Boise, Idaho
(Address of principal executive offices) (Zip Code)
----------------------
DEBT SECURITIES
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association, incorporated herein by reference to
Exhibit 1 of Form T-1, Registration No. 333-51961.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association now known as
U.S. Bank Trust National Association, incorporated
herein by reference to Exhibit 2 of Form T-1,
Registration No. 33-83774.
Exhibit 3. Authorization to exercise corporate trust powers for
U.S. Bank Trust National Association, incorporated
herein by reference to Exhibit 3 of Form T-1,
Registration No. 333-51961.
Exhibit 4. By-Laws of U.S. Bank Trust National Association,
incorporated herein by reference to Exhibit 4 of Form
T-1, Registration No. 333-51961.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National
Association now known as U.S. Bank Trust National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of Form
T-1, Registration No. 33-83774.
Exhibit 7. Report of Condition of U.S. Bank Trust National
Association, as of the close of business on September
30, 1998, published pursuant to law or the requirements
of its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, U.S. Bank Trust National Association, a national
banking association organized and existing under the laws of the United
States, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of
New York, and State of New York, on the 11th day of January, 1999.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By: /s/ Catherine F. Donohue
Catherine F. Donohue
Vice President
Exhibit 7
U.S. BANK TRUST NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 9/30/98
($000'S)
9/30/98
---------------
ASSETS
Cash and Due From Depository Institutions $41,761
Federal Reserve Stock 3,397
Fixed Assets 539
Intangible Assets 69,693
Other Assets 6,093
---------------
TOTAL ASSETS $121,483
LIABILITIES
Other Liabilities 8,680
---------------
TOTAL LIABILITIES 8,680
EQUITY
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (9,129)
---------------
TOTAL EQUITY CAPITAL 112,803
TOTAL LIABILITIES AND EQUITY CAPITAL $121,483
- ---------------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ Catherine F. Donohue
--------------------------------
Vice President
Date: January 11, 1999
