AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1999
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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 82-0184434
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
250 PARKCENTER BLVD. BOX 20
BOISE, IDAHO 83726
(Address of registrant's
principal executive offices)
AMERICAN STORES COMPANY 1997 STOCK OPTION AND STOCK AWARD PLAN
AMERICAN STORES COMPANY 1997A STOCK OPTION AND STOCK AWARD PLAN
AMERICAN STORES COMPANY 1997 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
AMERICAN STORES COMPANY AMENDED AND RESTATED
1989 STOCK OPTION AND STOCK AWARD PLAN
AMERICAN STORES COMPANY AMENDED AND RESTATED
1985 STOCK OPTION AND STOCK AWARD PLAN
THOMAS R. SALDIN, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
ALBERTSON'S, INC.
250 PARKCENTER BOULEVARD
P.O. BOX 20
BOISE, IDAHO 83726
(208) 395-6300
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE PRICE FEE
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Common Stock, par value 2,465,295 $33.96 (3) $83,721,418 $23,275
$1.00 per share shares (2)
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Preferred Stock Purchase 2,465,295 N/A N/A N/A
Rights (4) shares
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Total Registration fee $23,275 (5)
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(1) Plus such additional number of shares as may be required in the event
of a stock dividend, stock split, recapitalization or other similar
event in accordance with Rule 416(a) of the Securities Act of 1933, as
amended (the "Securities Act").
(2) Represents the maximum number of shares of Common Stock issuable upon
exercise of options and limited stock appreciation rights granted
under the ASC 1997 Stock Option and Stock Award Plan, the ASC 1997A
Stock Option and Stock Award Plan, the ASC Amended and Restated 1989
Stock Option and Stock Award Plan, the ASC Amended and Restated 1985
Stock Option and Stock Award Plan and the ASC 1997 Stock Plan for
Non-Employee Directors outstanding immediately prior to the merger
(the "Merger") described in the Agreement and Plan of Merger, dated as
of August 2, 1998, by and among the Registrant, American Stores
Company ("ASC") and Abacus Holdings, Inc. (the "Merger Agreement").
(3) Pursuant to Rule 457(h) of the Securities Act, the amounts are
calculated based upon the weighted average exercise price at which the
stock options and limited stock appreciation rights described in
footnote 2 above may be exercised.
(4) Associated with Common Stock are rights to purchase Series A Junior
Participating Preferred Stock that will not be exercisable or
evidenced separately from such Common Stock prior to the occurrence of
certain events.
(5) Pursuant to the requirements of Rule 429 (b) of the Securities Act of
1933, such amount represents a portion of the registration fee of
$136,710 relating to 15,776,142 shares of ASC Common Stock previously
paid with the Registration Statement on Form S-4 (Registration No.
333-63019) (184,500,000 shares) to which this registration statement
relates.
<PAGE>
PART I
EXPLANATORY NOTE
This Form S-8 relates to 2,465,295 shares of Common Stock which may be
issued upon the exercise of options and/or limited stock appreciation
rights granted under the American Stores Company 1997 Stock Option and
Stock Award Plan, 1997 Stock Option and Stock Award Plan, 1997A Stock Plan
for Non-Employee Directors, Amended and Restated 1989 Stock Option and
Stock Award Plan and Amended and Restated 1985 Stock Option and Stock Award
Plan (the "ASC Stock Plans").
Pursuant to the Agreement and Plan of Merger (the "Merger Agreement")
dated August 2, 1998 by and between Albertson's, Inc., American Stores
Company ("ASC"), and Abacus Holdings, Inc. ("Sub"), the following events,
among others, occurred:
(a) ASC was acquired by, and became a wholly-owned subsidiary of,
Albertson's, Inc. through the merger of Sub with and into ASC
(the "Merger"); and
(b) outstanding options and limited stock appreciation rights to
purchase shares of ASC common stock granted under the ASC Stock
Plans were converted into options and limited stock appreciation
rights to purchase shares of Common Stock.
The documents containing information specified by Part I of this
Registration Statement have been or will be sent or given to holders of
options granted under the ASC Stock Plans, as specified in Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "SEC") under the
Securities Act. Such document(s) are not required to be filed with the SEC
but constitute (along with the documents incorporated by reference into
this Registration Statement pursuant to Item 3 of Part II hereof) a
prospectus that meets the requirements of Section 10(a) of the Securities
Act of 1933.
References to the "Company" shall mean Albertson's, Inc., a Delaware
corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, prior to the
termination of the offering:
(a) The description of the Common Stock included in our Registration
Statement on Form 8-A, filed with the SEC on January 29, 1976,
and all amendments or reports filed for the purpose of updating
such description;
(b) Our Quarterly Report on Form 10-Q, filed with the SEC on June 3,
1999, for the 13 week period ending April 29, 1999;
(c) Our Annual Report on Form 10-K, filed with the SEC on April 8,
1999 for the fiscal year ended January 28, 1999;
(d) Our Current Report on Form 8-K filed with the SEC on January 11,
1999 filing the Joint Proxy Statement and Prospectus, dated
October 9, 1998;
(e) Our Current Report on Form 8-K filed with the SEC on April 6,
1999; and
(f) The description of the Preferences and Rights of Series A Junior
Participating Preferred Stock included in our Registration
Statement on Form 8-A dated March 4, 1997, as amended by
Amendment No. 1 on Form 8-A dated August 6, 1998, and Amendment
No. 2 or Form 8-A dated March 25, 1999.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock covered by this Registration
Statement has been passed on for the Company by Thomas R. Saldin, Esq.,
Executive Vice President and General Counsel for the Company. Mr. Saldin
owns 26,813 shares of Common Stock and has an option under the Company's
1986 Nonqualified Stock Option Plan to purchase 4,000 shares of Common
Stock for $16.5625 per share (the fair market value on the date of grant),
an option under the Company's 1986 Nonqualified Stock Option Plan to
purchase 16,000 shares of Common Stock for $24.3125 per share (the fair
market value on the date of grant), an option under the Company's 1986
Nonqualified Stock Option Plan to purchase 15,000 shares for $25.125 per
share (the fair market value on the date of the grant), and three options
under the Company's 1995 Stock-Based Incentive Plan to purchase a total of
75,000 shares of Common Stock, at exercise prices (the fair market value on
the date of grant) per share of $31.875 (25,000 options), $35.00 (25,000
options) and $45.6875 (25,000 options). All of these Options became
exercisable upon completion of the American Stores acquisition. Mr. Saldin
has been granted an option to purchase $4,000,000 worth of Common Stock
with number of shares and the option price to be determined based upon the
closing price of the Common Stock on the New York Stock Exchange on June
24, 1999 (the fair market value on the date of grant).
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporate Law (the "DGCL")
provides that a corporation may indemnify officers, directors, employees
and agents against expenses, judgments and other amounts paid if such
person acted in good faith and in a manner they reasonably believed to be
in, or not opposed to, the best interests of the corporation, and for any
criminal action, which they had no reason to believe was unlawful. Upon
receipt of a written undertaking to reimburse the corporation if
indemnification is not appropriate the DGCL provides that a corporation may
advance expenses of defense and must reimburse a successful officer or
director defendant for expenses paid, including attorney's fees, and
permits a corporation to purchase liability insurance for its directors and
officers. The DGCL provides that an individual may not be indemnified for
any claim or matter where a court has determined that the individual is
liable to the corporation, unless the court determines otherwise.
Our Restated Certificate of Incorporation and Bylaws provide that each
person who is involved in any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was serving as our director,
officer, employee or agent, or is or was serving at our request as a
director, officer, employee or agent of another corporation or other
enterprise, including service with respect to an employee benefit plan,
will be indemnified by us to the extent permitted by the DGCL. The
indemnification rights in our Restated Certificate are not exclusive of any
other indemnification that may be given under any law, bylaw, agreement,
vote of stockholders or disinterested directors or otherwise. We are
authorized to purchase insurance on behalf of our directors, officers,
employees and agents.
Pursuant to our merger agreement with ASC, following our acquisition
of ASC, we will indemnify and hold harmless each present and former
director and officer of ASC or any of its subsidiaries, when acting in such
capacity, against all expenses, including attorney's fees, judgments and
other amounts paid for any action, suit, proceeding or investigation
whether civil, criminal, administrative or investigative for acts or
omissions, existing on or prior to our acquisition of ASC to the extent
permitted by the DGCL. Additionally, our merger agreement with ASC requires
us to purchase and maintain insurance covering present and former officers,
directors, employees, trustees and agents of ASC for at least six years
following our acquisition of ASC, subject to certain limitations.
This summary is subject to the DGCL, the Company's Restated
Certificate of Incorporation, By-laws and agreements referred to above.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits listed below are filed herewith or are incorporated
herein by reference to other filings.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Restated Certificate of Incorporation of the Company
(as amended) previously filed as Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1998, and incorporated herein by
reference
4.2 By-Laws of the Company, dated June 24, 1999 previously
filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-8 filed on July 1, 1999, and
incorporated herein by reference
4.3 Stockholder Rights Plan Agreement previously filed as
Exhibit 1 to the Company's Registration Statement on
Form 8-A filed with the SEC on March 4, 1997, and
incorporated herein by reference
4.4 Amendment No. 1 to Stockholder Rights Plan Agreement,
dated August 2, 1998, previously filed as Exhibit 1 of
Amendment to the Company's Registration Statement on
Form 8-A filed with the SEC on August 6, 1998, and
incorporated herein by reference
4.5 Amendment No. 2 to Stockholders Rights Plan Agreement,
dated March 16, 1999, previously filed as Exhibit 1 of
Amendment to the Company's Registration Statement on
Form 8-A filed with the SEC on March 25, 1999, and
incorporated herein by reference
4.6 Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock,
previously filed as Exhibit 3.1.1 to the Company's
Annual Report on Form 10-K for the year ended January
30, 1998, and incorporated herein by reference
4.7 Amendment to Certificate of Designation, Preferences
and Rights of Series A Junior Participating Preferred
Stock, previously filed as Exhibit 3.1.2 to the
Company's Annual Report on Form 10-K for the year ended
January 28, 1999, and incorporated herein by reference
4.8 Agreement and Plan of Merger, dated as of August 2,
1998, by and between the Company, ASC and Abacus
Holdings, Inc. previously filed as Exhibit 2 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended July 30, 1998, and incorporated herein by
reference
4.9 American Stores Company 1997 Stock Option and Stock
Award Plan previously filed as Exhibit B to the
American Stores Company 1997 Annual Proxy Statement
filed with the SEC on May 2, 1997, and incorporated
herein by reference
4.10 Amendment to the American Stores Company 1997 Stock
Option and Stock Award Plan, dated October 8, 1998,
previously filed as Exhibit 10.1 to the American Stores
Company Quarterly Report on Form 10-Q filed on December
11, 1998, and incorporated herein by reference
4.11* American Stores Company 1997A Stock Option and Stock
Award Plan
4.12 American Stores Company 1997 Stock Plan for
Non-Employee Directors previously filed as Exhibit C to
the American Stores Company 1997 Annual Proxy Statement
filed with the SEC on May 2, 1997, and incorporated
herein by reference
4.13* Amended and Restated American Stores Company 1989 Stock
Option and Stock Award Plan
4.14* Amended and Restated American Stores Company 1985 Stock
Option and Stock Award
5.1* Opinion of Thomas R. Saldin, Esq.
23.1 Consent of Thomas R. Saldin, Esq. (included in Exhibit
5.1)
23.2* Consent of Deloitte & Touche LLP, Independent Auditors
24.1 Power of Attorney (included on signature page)
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* filed herewith
<PAGE>
Item 9. Undertakings
The Company hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if 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 SEC by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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.
(c) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 6 of
this Registration Statement, or otherwise, the Company has been advised
that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company 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 Securities Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boise, State of Idaho, on
July 1, 1999.
Albertson's, Inc.
/s/ Gary G. Michael
------------------------------------
By: Gary G. Michael
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Albertson's, Inc., a
Delaware corporation, do hereby constitute and appoint each of Gary G.
Michael, Thomas R. Saldin, Esq. and A. Craig Olson, the lawful
attorneys-in-fact and agents with full power and authority to do any and
all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act and any rules or regulations or requirements of the SEC in
connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include
the power and authority to sign the names of the undersigned officers and
directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments
or documents filed as part of or in conjunction with this Registration
Statement or amendments or supplements thereof, and each of the undersigned
hereby ratifies and confirms that all said attorneys and agents, or any one
of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board and
Chief Executive Officer July 1, 1999
/s/ Gary G. Michael and Director
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Gary G. Michael
Executive Vice President
/s/ A. Craig Olson and Chief Financial Officer July 1, 1999
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A. Craig Olson
/s/ Michael F. Reuling
- ----------------------- Vice Chairman July 1, 1999
Michael F. Reuling
Senior Vice President and
/s/ Richard J. Navarro Controller July 1, 1999
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Richard J. Navarro
Director
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A. Gary Ames
/s/ Cecil D. Andrus Director July 1, 1999
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Cecil D. Andrus
Director
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Pamela G. Bailey
/s/ Teresa Beck Director July 1, 1999
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Teresa Beck
/s/ Henry I. Bryant Director July 1, 1999
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Henry I. Bryant
/s/ John B. Carley Director July 1, 1999
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John B. Carley
/s/ Paul I. Corddry Director July 1, 1999
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Paul I. Corddry
/s/ John B. Fery Director July 1, 1999
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John B. Fery
/s/Fernando R. Gumucio Director July 1, 1999
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Fernando R. Gumucio
Director
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Clark A. Johnson
Director
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Charles D. Lein
Vice Chairman of the Board
/s/ Victor L. Lund and Director July 1, 1999
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Victor L. Lund
/s/ Beatriz Rivera Director July 1, 1999
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Beatriz Rivera
/s/ J.B. Scott Director July 1, 1999
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J.B. Scott
Director
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Arthur K. Smith
/s/ Thomas L. Stevens, Jr. Director July 1, 1999
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Thomas L. Stevens, Jr.
Director
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Will M. Storey
/s/ Steven D. Symms Director July 1, 1999
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Steven D. Symms
/s/ Thomas J. Wilford Director July 1, 1999
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Thomas J. Wilford
<PAGE>
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Restated Certificate of Incorporation of the Company
(as amended) previously filed as Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1998, and incorporated herein by
reference
4.2 By-Laws of the Company previously filed as Exhibit 4.2
to the Company's Registration Statement on Form S-8
filed on July 1, 1999, and incorporated herein by
reference
4.3 Stockholder Rights Plan Agreement previously filed as
Exhibit 1 to the Company's Registration Statement on
Form 8-A filed with the SEC on March 4, 1997, and
incorporated herein by reference
4.4 Amendment No. 1 to Stockholder Rights Plan Agreement,
dated August 2, 1998, previously filed as Exhibit 1 of
Amendment to the Company's Registration Statement on
Form 8-A filed with the SEC on August 6, 1998, and
incorporated herein by reference
4.5 Amendment No. 2 to Stockholders Rights Plan Agreement,
dated March 16, 1999, previously filed as Exhibit 1 of
Amendment to the Company's Registration Statement on
Form 8-A filed with the SEC on March 25, 1999, and
incorporated herein by reference
4.6 Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock,
previously filed as Exhibit 3.1.1 to the Company's
Annual Report on Form 10-K for the year ended January
30, 1998, and incorporated herein by reference
4.7 Amendment to Certificate of Designation, Preferences
and Rights of Series A Junior Participating Preferred
Stock, previously filed as Exhibit 3.1.2 to the
Company's Annual Report on Form 10-K for the year ended
January 28, 1999, and incorporated herein by reference
4.8 Agreement and Plan of Merger, dated as of August 2,
1998, by and between the Company, ASC and Abacus
Holdings, Inc. previously filed as Exhibit 2 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended July 30, 1998, and incorporated herein by
reference
4.9 American Stores Company 1997 Stock Option and Stock
Award Plan previously filed as Exhibit B to the
American Stores Company 1997 Annual Proxy Statement
filed with the SEC on May 2, 1997, and incorporated
herein by reference
4.10 Amendment to the American Stores Company 1997 Stock
Option and Stock Award Plan, dated October 8, 1998,
previously filed as Exhibit 10.1 to the American Stores
Company Quarterly Report on Form 10-Q filed on December
11, 1998, and incorporated herein by reference
4.11* American Stores Company 1997A Stock Option and Stock
Award Plan
4.12 American Stores Company 1997 Stock Plan for
Non-Employee Directors previously filed as Exhibit C to
the American Stores Company 1997 Annual Proxy Statement
filed with the SEC on May 2, 1997, and incorporated
herein by reference
4.13* Amended and Restated American Stores Company 1989 Stock
Option and Stock Award Plan
4.14* Amended and Restated American Stores Company 1985 Stock
Option and Stock Award Plan
5.1* Opinion of Thomas R. Saldin, Esq.
23.1 Consent of Thomas R. Saldin, Esq. (included in Exhibit
5.1)
23.2* Consent of Deloitte & Touche LLP, Independent Auditors
24.1 Power of Attorney (included on signature page)
- ------------------
* filed herewith
Exhibit 4.11
AMERICAN STORES COMPANY
1997A STOCK OPTION AND STOCK AWARD PLAN
1. Adoption and Purpose of Plan. American Stores Company, a Delaware
corporation (the "Company"), hereby adopts a stock option plan providing
for the granting of stock options and stock appreciation rights to key
management employees (the "Plan"). The general purpose of the Plan is to
promote the interests of the Company and its shareholders in attracting,
maintaining and developing a management capable of assuring the future
success of the Company and by providing to key employees of the Company and
its subsidiaries and affiliates additional incentives to continue to
increase their efforts with respect to, and to remain in the employ of, the
Company or its subsidiaries or affiliates.
2. Terms and Conditions of the Plan. Unless and to the extent
specifically provided to the contrary herein, the terms and conditions of
the Plan, including but not limited to those pertaining to administration,
time of granting options, eligibility, option prices, terms of options,
adjustments upon changes in capitalization, option agreements, securities
laws, government and other regulations, non-exclusivity, no affect on
employment, transfer of employment, termination and amendment, and change
in control, shall be identical to the terms and conditions of the American
Stores Company 1989 Stock Option and Stock Award Plan, as amended (the
"1989 Plan"), which is incorporated herein by reference. To the extent the
1989 Plan is amended subsequent to the adoption of the Plan, the Plan shall
be deemed to have also been amended so that the terms and conditions of the
Plan remain identical to the terms and conditions of the 1989 Plan except
and as to the extent provided to the contrary herein.
3. Shares Subject to the Plan. The Committee, from time to time, may,
pursuant to the Plan, provide for the grant of options for the purchase of
common stock of the Company upon the exercise thereof, and may grant stock
appreciation rights, for an aggregate of up to 1,337,000 shares, subject to
adjustment as provided in Section 8 of the 1989 Plan. Shares shall be made
available under the Plan only from treasury stock. No restricted stock
awards shall be made under the Plan.
Exercise of an option in any manner shall be result in a decrease in
the number of shares which thereafter may be available under the Plan by
the number of shares as to which such option is exercised.
4. Effectiveness of the Plan. The Plan shall become effective as of
March 27, 1997.
Exhibit 4.13
AMERICAN STORES COMPANY
AMENDED AND RESTATED
1989 STOCK OPTION AND STOCK AWARD PLAN
1. Adoption and Purpose of Plan. American Stores Company, a Delaware
corporation (the "Company"), hereby adopts a stock option, stock
appreciation rights and stock award plan providing for the granting of
stock options, stock appreciation rights and stock awards to key management
employees (the "Plan"). The general purpose of the Plan is to promote the
interests of the Company and its shareholders in attracting, maintaining
and developing a management capable of assuring the future success of the
Company and by providing to key employees of the Company and its
subsidiaries and affiliates additional incentives to continue and increase
their efforts with respect to, and to remain in the employ of, the Company
or its subsidiaries or affiliates. So that maximum incentive can be
provided each particular employee participating in the Plan by granting him
an option or options best suited to his circumstances, the Plan provides
for granting both incentive (as defined in Section 422A of the Internal
Revenue Code of 1986, as amended (the "Code")) and nonqualified stock
options. The Plan also provides for the grant of stock appreciation rights,
and for the grant of shares to eligible participants, subject to forfeiture
restrictions which will lapse upon the passage of time, the participant's
continued employment with the Company, and certain other events.
2. Administration. The Plan shall be administered by a committee (the
"Committee") of not less than three Directors of the Company who shall be
appointed by the Board of Directors of the Company, none of whom shall be
eligible (or shall have been eligible within one year prior to the date of
their appointments) to participate in the Plan or to be selected as a
participant under any other discretionary plan of the Company or any of its
affiliates entitling them to acquire stock, stock options or stock
appreciation rights of the Company or any of its affiliates. The Committee
shall be authorized to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to it and to make all other determinations
necessary or advisable for its administration.
3. Shares Subject to Plan. The Committee, from time to time, may,
pursuant to the Plan, provide for the grant of options for the purchase of
common stock of the Company upon the exercise thereof, and may grant stock
appreciation rights and make restricted stock awards, for an aggregate of
up to 1,200,000 shares, subject to adjustment as provided in Section 8
hereof. The Committee, from time to time, may also grant stock appreciation
rights for up to an aggregate of 767,450 shares to be issued in connection
with options outstanding as of February 1, 1989 under the Company's 1974
Stock Option Plan and the Company's 1975 Employees' Stock Option Plan, said
stock appreciation rights to have the same terms as the stock appreciation
rights which are provided in connection with options granted hereunder
pursuant to Section 19 of the Plan. If an option ceases to be exercisable
in whole or in part for any reason, the shares which were subject to such
option, but as to which the option had not been exercised or exercisable at
the time of the termination of the option, shall continue to be available
under the Plan to be granted to other participants. Shares subject to
restricted stock awards which are forfeited to the Company shall also be
available under the Plan to be granted to other participants. Shares shall
be made available under the Plan from authorized and unissued stock or from
treasury stock.
Exercise of an option in any manner, including an exercise involving
an election of a stock appreciation right with respect to an option, shall
result in a decrease in the number of shares which thereafter may be
available under the Plan by the number of shares as to which the option is
exercised.
4. Time of Granting of Options. The effective date of the granting of
an option (the "Granting Date") shall be the date specified by the
Committee in its determination or designation relating to the award of such
option.
5. Eligibility. Options, stock appreciation rights and restricted
stock awards may be granted only to key employees (which term shall include
officers) who on the Granting Date are in the employ of the Company or any
of its present and future subsidiary corporations, as defined in Section
425(f) of the Code ("Subsidiaries"), provided that nonqualified options may
also be granted to key employees of any business entity in which the
Company shall have a substantial interest (an "Affiliate"). A director of
the Company or of a Subsidiary or Affiliate who is not also such an
employee shall not be eligible to receive an option or restricted stock
award. Options, stock appreciation rights and restricted stock awards may
be granted to eligible employees whether or not they hold or have held
options, stock appreciation rights or grants of restricted stock under the
Plan or under previously adopted plans.
6. Option Prices. The option price per share to be specified in each
option agreement shall be (i) with respect to incentive stock options, the
mean between the high and low prices of the common stock on the New York
Stock Exchange on the Granting Date, or such other price as the Committee
shall determine to be not less than 100% of fair market value of the common
stock on the Granting Date, provided, however, that with respect to any
incentive stock option granted to a person who on the Granting Date owns,
either directly or within the meaning of the attribution rules contained in
section 425(d) of the Code, stock possessing more than 10% of the total
combined voting power of all classes of stock of his or her employer
corporation or of its parent or subsidiary corporations, as defined
respectively in sections 425(e) and (f) of the Code (a "Ten Percent
Shareholder"), the option price per share shall not be less than 110% of
the fair market value of the common stock on the Granting Date; and (ii)
with respect to nonqualified stock options, such price as the Committee
shall in its sole discretion determine.
7. Certain Terms of Options.
(a) Nontransferability. No option (or related stock appreciation
rights, if any) granted under the Plan shall be transferable by the
optionee other than (i) by will or by the laws of descent and distribution;
(ii) in the case of a Non-Qualified Stock Option, pursuant to a qualified
domestic relations order (as defined in the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules
thereunder); or (iii) pursuant to approval by the Committee on the terms
set forth below. The Committee may, in its discretion, authorize all or a
portion of the options granted or to be granted to an optionee to be on
terms which permit transfer by such optionee to (i) the spouse, children or
grandchildren of the optionee ("Immediate Family Members"), (ii) a trust or
trusts for the exclusive benefit of such Immediate Family members, or (iii)
a partnership in which such Immediate Family Members are the only partners,
provided that (x) there may be no consideration for any such transfer, (y)
the stock option agreement pursuant to which such options are granted must
be approved by the Committee, and must expressly provide for
transferability in a manner consistent with this Section 7(a), and (z)
subsequent transfers of transferred options shall be prohibited except
those in accordance with this Section 7(a). Following transfer, any such
options shall continue to be subject to the same terms and conditions as
were applicable immediately prior to transfer, provided that for purposes
of Section 7(a) hereof the term "optionee" shall be deemed to refer to the
transferee. The events of termination of employment of Section 7(b) hereof
shall continue to be applied with respect to the original optionee,
following which the options shall be exercisable by the transferee only to
the extent, and for the periods specified in Section 7(b). All options
shall be exercisable, subject to the terms of the Plan, during the
optionee's lifetime only by the optionee or by the transferee. In the event
an option or options are transferred by an optionee in the manner provided
herein, the original optionee shall remain subject to withholding taxes for
the amount of the income realized upon exercise of the options, and the
Company shall have no obligation to provide notice to the transferee of the
termination of the option due to termination of the original optionee's
employment or the death, disability or retirement of such original
optionee. Further, the Company shall be under no obligation to file a
registration statement under the Securities Act of 1933, as amended, with
respect to the shares issuable upon exercise of the options that have been
transferred.
(b) Period of Exercise; Termination. An option may be exercised in
whole at any time or in part from time to time during the option period,
subject to such limitations and restrictions as may be included in the
option, provided, however, that no option may be exercised within a period
of one year from the Granting Date thereof. In the case of termination of
employment by reason of retirement at or after age 57, the employee may,
(i) within three months of said retirement date in the case of incentive
stock options, or (ii) within twelve months of said retirement date in the
case of nonqualified stock options, exercise all of the option rights which
were exercisable on the day before said retirement date and any such
options not so exercised shall thereupon terminate. In the case of
termination of employment by reason of death, the employee's legal
representative may, within one year of the date of death (subject to the
limitation on the exercise of incentive stock options contained in Section
7(g)), exercise all of the option rights of the employee (whether or not
such options were exercisable on the day before the employee's death), and
any such options not so exercised shall thereupon terminate. In the case of
termination of employment by reason of disability (within the meaning of
Section 22(e)(3) of the Code), the employee or his legal representative, as
the case may be, may (i) with regard to stock options granted with an
exercise price equal to or greater than the fair market value of the
applicable shares on the date such options are granted, within one year of
the date of disability (subject to the limitation on the exercise of
incentive stock options contained in Section 7(g)), exercise all of such
option rights of the employee (whether or not such options were exercisable
on the day before such termination), and any such options not so exercised
shall thereupon terminate; and (ii) with regard to stock options granted
with an exercise price less than the fair market value of the applicable
shares on the date such options are granted, the employee shall be deemed
not to have terminated his employment by reason of his disability for the
purpose of determining when such options become exercisable and whether the
employee may exercise such options, whether or not such options were
exercisable on the day before such disability, and the options shall
terminate one year from the date which all of the options become
exercisable, unless the employee's disability terminates and he accepts
employment with an employer other than the Company, in which case the
employee's right to exercise options pursuant to this alternative shall
cease immediately, and any of such option rights not so exercised shall
terminate. In all other cases all rights to exercise options shall
terminate once the employee ceases to be an employee of the Company or any
of its Subsidiaries ( or, in the case of a nonqualified option, an
Affiliate), provided, however, that the Committee shall have the discretion
to permit options to be exercised in such circumstances for a period of up
to nine months after termination of employment. Each incentive stock option
shall expire not more than ten years (or, if granted to a Ten Percent
Shareholder, five years) after the Granting Date (or, if earlier, within
the above-stated period after death, disability or retirement). Each
nonqualified option shall expire not more than ten years after the Granting
Date (or if earlier, within the above-stated period after death, disability
or retirement). Notwithstanding the foregoing exercise rules relating to
death, disability or retirement, all options shall expire not more than 10
years (or, in the case of an incentive stock option granted to a Ten
Percent Shareholder, five years) after the Granting Date.
(c) Payment for Shares. Full payment for shares purchased upon the
exercise of an option shall be made in cash or, at the election of the
optionee and as the Committee may, in its sole discretion, approve, by
surrendering shares of common stock of the Company with an aggregate fair
market value (determined in accordance with Section 6, above) equal to the
aggregate option price, or by delivering such combination of shares of
common stock and cash as the Committee shall, in its sole discretion,
approve.
(d) Delivery of Shares; Withholding. Upon payment of the option price,
a certificate for the number of whole shares to which the participant is
entitled shall be delivered to such participant by the Company, provided,
however, that in the case of the exercise of a nonqualified option, the
participant has remitted to his employer an amount, determined by such
employer, necessary to satisfy applicable federal, state or local tax
withholding requirements, or made other arrangements with his or her
employer for the satisfaction of such tax withholding requirements.
(e) Stock Appreciation Rights. As an alternative to the payment by the
holder for the number of shares in respect of which an option is exercised,
the Committee may provide alternative settlement methods (hereinafter
referred to as stock appreciation rights) as follows:
(i) The Committee, in its discretion, may provide that any stock
option by its terms may permit the holder to elect any of the stock
appreciation rights set forth in subsection (iii) below.
(ii) The Committee, in its discretion, may at the request of an
employee holding a nonqualified option under the Plan which does not by its
terms include stock appreciation rights, amend the option to permit the
election of such rights by the holder.
(iii) The stock appreciation rights permit the holder to receive
from the Company: (A) cash in an amount equal to the excess of the value of
one share over the option price times the number of shares as to which the
stock appreciation right is exercised; (B) the number of whole shares
having an aggregate value not greater than the cash amount calculated under
alternative (A); or (C) any combination of cash and stock having an
aggregate value not greater than the cash amount calculated under
alternative (A). For purposes of determining the value of a stock
appreciation right, the value per share shall be determined as of the
exercise date in the manner specified in Section 6 above.
(iv) The exercise of a stock appreciation right with respect to
an option shall result in the expiration of such related option to the
extent of the number of stock appreciation rights exercised. In addition,
all stock appreciation rights related to incentive stock options shall be
subject to the following terms: (A) such stock appreciation rights shall be
exercisable only when the fair market value of the stock subject to the
related option exceeds the option price of the related option, and such
option is otherwise exercisable; (B) such stock appreciation rights are
transferable only when the related option is otherwise transferable, and
(C) such other terms as the Committee shall in its discretion determine to
be necessary to enable the related option to qualify as an incentive stock
option within the meaning of section 422A of the Code.
(v) Any election of any stock appreciation rights provided for
under this Section 7 shall be subject to the consent or disapproval of the
Committee at any time after the election is made and the Committee shall
have sole discretion to determine whether, and to what extent, the stock
appreciation right elected shall be paid in cash, in common stock, or
partially in cash and partially in common stock.
(vi) Any shares of common stock due upon exercise of a stock
appreciation right shall be delivered to the participant by the Company and
any payment of cash shall be made by the employer of the participant. The
employer of the participant shall deduct from the amount of any cash so
payable an amount necessary to satisfy applicable federal, state, or local
tax withholding requirements. If no cash is payable (or if the amount of
cash payable is insufficient to satisfy applicable tax withholding
requirements), no shares shall be delivered by the Company to the
participant until the participant remits to his or her employer an amount,
determined by such employer, necessary to satisfy applicable federal,
state, or local tax withholding requirements or makes other arrangements
for the satisfaction of such tax withholding requirements.
(f) No Fractional Shares. Only whole shares shall be issuable upon
exercise of options and stock appreciation rights. Any right to a
fractional share shall be satisfied in cash, or shall be eliminated, in the
sole discretion of the Committee.
(g) Limitation on Exercise of Incentive Stock Options. The aggregate
fair market value (determined as of the time options are granted) of the
shares with respect to which incentive stock options may first become
exercisable by a holder in any one calendar year under the Plan and any
other plan of his employer corporation and its parent and subsidiary
corporations, as defined respectively in section 425(e) and (f) of the
Code, shall not exceed $100,000. The foregoing limitation shall apply only
to incentive stock options granted under the Plan, and not to nonqualified
options granted under the Plan.
8. Adjustments Upon Changes in Capitalization. Except as may be
determined in the sole discretion of the Committee and provided in the
option agreement with respect to any option, in the event of changes in the
outstanding common stock of the Company by reason of stock dividends, stock
splits, recapitalizations, combinations or exchanges of shares, split-ups,
split-offs, spin-offs, or other similar changes in capitalization, or any
distribution to common stockholders other than cash dividends, the number
and class of shares subject to each outstanding option, the option prices,
the number and class of shares subject to stock appreciation rights or
restricted stock awards, and the aggregate number and class of shares
available under the Plan shall be appropriately adjusted by the Committee;
provided that, in the event the outstanding shares of common stock shall be
changed into or exchanged for any other class or series of capital stock or
cash, securities or other property pursuant to a recapitalization,
reclassification, merger, consolidation, combination or similar
transaction, then each option shall thereafter become exercisable for the
number and/or kind of capital stock, and/or the amount of cash, securities
or other property so distributed, into which the shares of common stock
subject to the option would have been changed or exchanged had the option
been exercised in full prior to such transaction, provided further that, if
the kind or amount of capital stock or cash, securities or other property
received in such transaction is not the same for each outstanding share of
common stock, then the kind or amount of capital stock or cash, securities
or other property for which the option shall thereafter become exercisable
shall be the kind and amount so receivable per share by a plurality of the
shares, and provided further that if necessary, the provisions of the
option shall be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any shares of capital stock, cash, securities or
other property thereafter issuable or deliverable upon exercise of the
option.
9. Option Agreements. Each option and agreement (and amendments
thereof) shall contain such terms and provisions, consistent with the
requirements of this Plan, as the Committee in its discretion shall
determine, including without limitation such terms and provisions as shall
be requisite to cause certain stock options to qualify as incentive stock
options under Section 422A of the Code. Option agreements need not be
identical.
10. Restricted Stock Awards. The Committee, in its sole discretion,
may award to eligible participants shares of common stock of the Company
(such shares, while subject to such restrictions to be hereinafter referred
to as "Restricted Stock"). All shares of Restricted Stock awarded to
participants under the Plan shall be subject to the following terms and
conditions and to such other terms, restrictions and conditions (including,
but not limited to, conditions and restrictions relating to the attainment
of performance goals), not inconsistent with the Plan, as shall be
prescribed by the Committee in its sole discretion and as shall be
contained in the Agreement referred to in Section 10(d) hereof.
(a) Restrictions. At the time of an award of Restricted Stock,
the Committee shall establish for each participant a Restricted Period.
Shares of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered by the participant, except as hereinafter provided,
during the Restricted Period. Except for such restrictions, and subject to
Sections 10(c) , 10(d), 10(e) and 10(f) hereof, the participant as owner of
such shares shall have all the rights of a stockholder including but not
limited to the right to receive all dividends paid on such shares and the
right to vote such shares. The Committee shall have the authority, in its
discretion, to accelerate the time at which any or all of the restrictions
shall lapse with respect to any shares of Restricted Stock prior to the
expiration of the Restricted Period with respect thereto, or to remove any
or all of such restrictions, whenever it may determine that such action is
appropriate.
(b) Termination of Employment. If a participant ceases to be an
employee of the Company for any reason (including death, disability or
retirement), all shares of Restricted Stock theretofore awarded to him
shall upon such termination of employment be forfeited and returned to the
Company, unless otherwise provided in the restricted stock agreement,
provided, however, that the Committee may, but need not, within 120 days of
such termination of employment, determine that some or all of such shares
shall be free of restrictions and shall not be forfeited.
(c) Legended Certificates. Each certificate issued in respect of
shares of Restricted Stock awarded under the Plan shall be registered in
the name of the participant and deposited by the participant, together with
a stock power endorsed in blank, with the Company and shall bear the
following (or similar) legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the 1989 Stock Option and Stock Award Plan of
American Stores Company and an Agreement entered into between the
registered owner and American Stores Company. Copies of such Plan and
Agreement are on file in the offices of the Secretary of American Stores
Company."
(d) Agreements. At the time of an award of shares of Restricted
Stock, the participant shall enter into an Agreement with the Company, in a
form specified by the Committee, agreeing to the terms and conditions of
the award and such other matters as the Committee shall in its sole
discretion determine.
(e) Withholding. At the time of vesting of any shares of
Restricted Stock, and as a further condition to such vesting, the
participant shall remit to his employer an amount, determined by such
employer, necessary to satisfy applicable federal, state or local tax
withholding requirements, or shall make other arrangements with his or her
employer for the satisfaction of such tax withholding requirements.
(f) Delivery of Certificates. At the expiration of the
restrictions imposed by Section 10(a) hereof, the Company shall redeliver
to the participant (or where the relevant provision of Section 10(b) hereof
applies, in the case of a deceased participant, his or her legal
representative, beneficiary or heir) the certificate(s) and stock power
deposited with it pursuant to Section 10(c) hereof and the shares of Common
Stock represented by such certificate(s) shall be free of the restrictions
referred to in Section 10(a) hereof and the legend referred to in Section
10(c) hereof.
11. Securities Laws. The Committee may make each grant of an
option or a stock appreciation right or award of Restricted Stock under the
Plan subject to such conditions as shall cause the award of Restricted
Stock and the grant and exercise of any option or stock appreciation right
to comply with the then-existing requirements of Rule 16b-3 (or any similar
rule) of the Securities and Exchange Commission ("Rule 16b-3").
12. Government and Other Regulations. The obligation of the Company
to issue shares under the Plan shall be subject to (i) all applicable laws,
rules and regulations, and such approvals by any governmental agencies as
may be required, including, but not by way of limitation, the effectiveness
of a Registration Statement under the Securities Act of 1933 as deemed
necessary or appropriate by counsel for the Company and (ii) the condition
that the shares of common stock reserved for issuance upon the exercise of
options granted under the Plan shall have been duly listed upon the New
York Stock Exchange or any other stock exchange on which the Company's
common stock is actively traded.
13. Non-Exclusivity of the Plan. Neither the adoption of the Plan by
the Board of Directors nor the submission of the Plan to the stockholders
of the Company for approval shall be construed as creating any limitations
on the power of the Board of Directors to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such
arrangement may be either generally applicable or applicable only in
specific cases.
14. Rights As Shareholder. Neither an optionee nor a holder of a
stock appreciation right shall have any right as a shareholder with respect
to any shares subject to his or her options or stock appreciation rights
until the date of the issuance of a stock certificate to him or her for
such shares.
15. Plan Not To Affect Employment. Neither the Plan nor any option or
stock appreciation right shall confer upon any employee of the Company any
right to continue in the employment of the Company.
16. Transfer of Employment. For purposes of the Plan, a transfer of a
participant between the Company, a Subsidiary (or, in the case of a holder
of a nonqualified option, an Affiliate) shall not be deemed a termination
of employment.
17. Termination and Amendment. Unless the Plan shall theretofore have
been terminated as hereinafter provided, it shall terminate on, and no
option shall be granted thereunder after, December 6, 1998. The Board of
Directors may also terminate the Plan or make such modifications or
amendments thereof as it shall deem advisable; provided, however, that the
Board of Directors may not, without further approval by the holders of a
majority of the outstanding stock of the Company having general voting
power, (a) increase the maximum number of shares for which options may be
granted under the Plan in the aggregate, (b) change the requirements as to
the class of employees eligible to receive options, or (c) make any other
change that requires the approval of shareholders in order to maintain the
exemption under Rule 16b-3. The Committee may, however, authorize
amendments of outstanding options including without limitation the
reduction of the option prices specified therein (or the granting of new
options at lower prices upon cancellation of outstanding options), so long
as all options granted hereunder outstanding at any one time shall not call
for issuance of more shares of common stock than those provided for in
Section 3 hereof and so long as the provisions of any amended option would
have been permissible under the Plan if such option had been originally
granted as of the date of such amendment with such amended terms. No
termination, modification, or amendment of the Plan or any option may,
without the consent of the employee to whom any option shall theretofore
have been granted, adversely affect the rights of such employee under such
option.
18. Effectiveness of the Plan. The Plan shall become effective as of
December 6, 1988; provided, however, that no option granted thereunder may
be exercised until the stockholders of the Company approve the Plan at
their 1989 Annual Meeting. If the stockholders fail to give such approval,
the Plan and any and all options granted thereunder shall be null and void.
Approval of stockholders shall require the affirmative votes of the holders
of a majority of the outstanding common stock of the Company voting at a
meeting where a quorum is present, in person or by proxy.
19. Change in Control. The Board of Directors of the Company may, at
its discretion, accelerate the right to exercise all or any part of any
unexercisable option granted under the Plan or accelerate the time at which
any or all of the restrictions shall lapse with respect to any shares of
Restricted Stock awarded under the Plan; provided, however, that
notwithstanding the foregoing, unless otherwise provided at the time of
grant, from and after a Change of Control (as hereinafter defined) each
unexercisable option shall vest and each option shall become immediately
exercisable to the full extent of the original grant and all of the
restrictions (including the Restricted Period) with respect to any shares
of Restricted Stock (including any provision providing for the forfeiture
of any Restricted Stock under any circumstances) shall terminate
immediately and share certificates relating to the Restricted Stock shall
be delivered to participants pursuant to the terms of Section 10(f) hereof.
Notwithstanding anything contained in Section 7 hereof to the
contrary, if an optionee's employment is terminated (i) by action of his
employer, other than discharge for Cause (as hereinafter defined), or (ii)
by voluntary resignation of the optionee, in either case within 18 months
following a Change of Control, any options that are then exercisable held
by the optionee may be exercised by him until the earlier of six months and
one day after such termination or the expiration of such options in
accordance with their terms. "Cause" for the purposes of this paragraph
shall mean an act or acts of dishonesty on employee's part which are
intended or result in his substantial personal enrichment at the expense of
the Company or his conviction for commission of a felony.
Notwithstanding anything contained in the Plan to the contrary,
unless otherwise provided at the time of grant, during the 60-day period
from and after a Change of Control an optionee (other than an optionee who
initiated a Change of Control in a capacity other than as an officer or
director of the Company) with respect to an option that is unaccompanied by
a stock appreciation right shall, unless the Committee shall determine
otherwise at the time of grant, have the right, in lieu of the payment of
the full purchase price of the shares of common stock being purchased under
the option and by giving written notice to the Company, to elect (within
such 60-day period) to surrender all or part of the option to the Company
and to receive in cash an amount equal to the amount by which the fair
market value per share of the common stock on the date of exercise shall
exceed the purchase price per share under the option multiplied by the
number of shares of common stock granted under the option as to which the
right granted by this paragraph shall have been exercised; provided, that
if any right granted pursuant to this sentence would make a Change in
Control transaction ineligible for pooling of interests accounting under
APB No. 16 that is intended to be eligible for such accounting treatment,
(i) the Committee shall have the ability to substitute the cash payable
pursuant to this paragraph with common stock with a fair market value equal
to the cash that would otherwise be payable hereunder, (ii) the period for
the holder to elect such right shall terminate as of the close of business
on the date of consummation of such Change of Control transaction and (iii)
the Change of Control Fair Market Value shall be adjusted to provide the
holders of such rights with fair value in exchange for any reduction in the
period for such election as determined by the Committee in its sole
judgment. The fair market value of the common stock on the date of exercise
shall mean: (a) with respect to an election by an optionee to receive cash
in respect of an option which is not an incentive stock option, the "Change
of Control Fair Market Value," as defined below; and (b) with respect to an
election by an optionee to receive cash in respect of an option which is an
incentive stock option, the mean of the high and low prices of the common
stock on the New York Stock Exchange on such date.
Notwithstanding anything contained in the Plan to the contrary, the
payment in settlement of a stock appreciation right during the 60-day
period (or such shorter period as the rights granted pursuant to the
previous paragraph are exercisable) from and after a Change of Control
shall be entirely in cash and during the 60-day period (or such shorter
period as the rights granted pursuant to the previous paragraph are
exercisable) from and after a Change of Control the value of a share of
common stock on the date of exercise shall mean (i) with respect to the
exercise of a stock appreciation right accompanying an option which is not
an incentive stock option, the "Change of Control Fair Market Value" and
(ii) with respect to the exercise of a stock appreciation right
accompanying an incentive stock option, the mean of the high and low prices
of the common stock on the New York Stock Exchange on such date; provided,
that if any right granted pursuant to this sentence would make a Change in
Control transaction ineligible for pooling of interests accounting under
APB No. 16 that is intended to be eligible for such accounting treatment,
the Committee shall have the ability to substitute the cash payable
pursuant to this paragraph with common stock with a fair market value equal
to the cash that would otherwise be payable hereunder.
For the purpose of the Plan, a "Change of Control" shall mean any of
the following events:
(i) The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) other than L.S. Skaggs, his affiliates and associates, his heirs and
any trust or foundation to which he has transferred or may transfer shares
of common stock, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the then
outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Company Voting Securities"), provided, however, that any
acquisition by the Company or its subsidiaries, or any employee benefit
plan (or related trust) of the Company or its subsidiaries, or any
corporation with respect to which, following such acquisition, more than
80% of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by the
individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Company Voting Securities
immediately prior to such acquisition in substantially the same proportion
as their ownership, immediately prior to such acquisition, of the
Outstanding Company Common Stock and Company Voting Securities, as the case
may be, shall not constitute a Change of Control; or
(ii) Individuals who, as of February 1, 1989, constitute the
Board of Directors of the Company (as of February 1, 1989, as adjusted
below, the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a director
subsequent to February 1, 1989 whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act); or
(iii) Approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which the individuals and entities who were the respective beneficial
owners of the common stock and voting securities of the Company immediately
prior to such reorganization, merger or consolidation do not, following
such reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 80% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such reorganization, merger
or consolidation, or a complete liquidation or dissolution of the Company
or of the sale or other disposition of all or substantially all of the
assets of the Company.
For purposes of the Plan, the "Change of Control Fair Market Value"
shall mean, subject to adjustment by the Committee pursuant to the third
paragraph of Section 19, the higher of (x) the highest reported sales
price, regular way, of a share of common stock on the Composite Tape for
New York Stock Exchange Listed Stocks during the 60-day period prior to the
date of the Change of Control and (y) if the Change of Control is the
result of a transaction or series of transactions described in paragraphs
(i) or (iii) of the definition of Change of Control set forth in this
Section, the highest price per share of common stock paid in such
transaction or series of transactions (in the case of a Change of Control
described in such paragraph (i) of such definition), as reflected in a
Schedule 13D filed by the person having made the acquisition.
Exhibit 4.14
American Stores Company
Amended and Restated
1985 Stock Option and Stock Award Plan
1. Adoption and Purpose of Plan. American Stores Company, a Delaware
corporation (hereinafter called the Company), hereby adopts a stock option,
stock appreciation rights and stock award plan providing for the granting
of stock options, stock appreciation rights and stock awards to key
management employees (hereinafter called the Plan). The general purpose of
the Plan is to promote the interests of the Company and its stockholders in
attracting, maintaining and developing a management capable of assuring the
future success of the Company and by providing to key employees of the
Company and its subsidiaries and affiliates additional incentives to
continue and increase their efforts with respect to, and to remain in the
employ of, the Company or its subsidiaries or affiliates. So that maximum
incentive can be provided each particular employee participating in the
Plan by granting him an option or options best suited to his circumstances,
the Plan provides for granting both "incentive" (as defined in Section 422A
of the Internal Revenue Code of 1954) and "non-qualified" stock options.
The Plan also provides for the grant of stock appreciation rights, and for
the grant of shares to eligible participants, subject to forfeiture
restrictions which will lapse upon the passage of time, the participant's
continued employment with the Company, and certain other events.
2. Administration. The Plan shall be administered by a committee
(hereinafter called the Committee) of not less than three Directors of the
Company who shall be appointed by the Board of Directors of the Company,
none of whom shall be eligible (or shall have been eligible within one year
prior to the date of their appointments) to participate in the Plan or to
be selected as a participant under any other discretionary plan of the
Company or any of its affiliates entitling them to acquire stock, stock
option or stock appreciation rights of the Company or any of its
affiliates. The Committee shall prescribe the form and content of options
to be granted under the Plan; shall receive elections for the exercise of
stock appreciation rights and have full discretion regarding the approval
or disapproval of such elections, and whether, and to what extent, such
stock appreciation rights shall be paid in cash, in common stocks, or a
combination of both; and shall determine the terms and restrictions on all
restricted stock awards granted under the Plan. The Committee shall be
authorized to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it and to make all other determinations necessary
or advisable for its administration.
3. Shares Subject to Plan. The Committee, from time to time, may,
pursuant to the Plan, provide for the grant of options for the purchase of
common stock of the Company upon the exercise thereof, and may grant stock
appreciation rights and make restricted stock awards, for an aggregate of
up to 1,000,000 shares, subject to adjustment as provided in Section 8
hereof. If an option ceases to be exercisable in whole or in part by reason
of the expiration of the term of the option, cancellation of the option
with the consent of the optionee, or upon or following termination of
employment of the optionee, the shares which were subject to such option,
but as to which the option had not been exercised or exercisable at the
time of the termination of the option or employment, as the case may be,
shall continue to be available under the Plan to be granted to other
participants. Shares subject to restricted stock awards which are forfeited
to the Company shall also be available under the Plan to be granted to
other participants. Shares shall be made available under the Plan from
authorized and unissued stock or from treasury stock.
4. Time of Granting of Options. The effective date of the granting of
an option (hereinafter called the Granting Date) shall be the date
specified by the Committee in its determination or designation relating to
the award of such option. The Committee shall promptly notify a grantee of
the grant of an option and a written option agreement shall promptly be
executed and delivered by or on behalf of the Company and the grantee,
provided that such grant of an option shall expire (to the extent not
theretofore exercised) if a written option agreement is not signed by such
grantee (or his agent or attorney) and returned to the Company within 60
days from the Granting Date.
5. Eligibility. Options, stock appreciation rights and restricted
stock awards may be granted only to key employees (which term shall be
deemed to include officers) who on the Granting Date are in the employ of
the Company or any of its present and future subsidiary corporations, as
defined in Section 425(f) of the Internal Revenue Code of 1954 as the same
shall be amended from time to time (hereinafter called Subsidiaries),
provided that "non-qualified" options may also be granted to key employees
of any business entity in which the Company shall have a substantial
interest (hereinafter called an Affiliate). A director of the Company or of
a Subsidiary or Affiliate who is not also such an employee shall not be
eligible to receive an option or restricted stock award. Options, stock
appreciation rights and restricted stock awards may be granted to eligible
employees whether or not they hold or have held options, stock appreciation
rights or grants of restricted stock under the Plan or under previously
adopted plans.
6. Option Prices. The option price per share to be specified in each
option agreement shall be (i) with respect to "incentive" stock options,
the mean between the high and low prices of the common stock on the New
York Stock Exchange on the Granting Date, or such other price as the
Committee shall determine to be not less than 100% of the fair market value
of the common stock on the Granting Date, provided, however, that with
respect to any "incentive" stock option granted to a person who on the
Granting Date owns, either directly or within the meaning of the
attribution rules contained in Section 425(d) of the Internal Revenue Code,
stock possessing more than 10 percent of the total combined voting power of
all classes of stock of his or her employee corporation or of its parent or
subsidiary corporations, as defined respectively in Sections 425(e) and (f)
of the Internal Revenue Code (hereinafter called a Ten Percent
Shareholder), the option price per share not be less than 110% of the fair
market value of the common stock on the Granting Date; and (ii) with
respect to non-qualified stock options, such price as the Committee shall
in its sole discretion determine.
7. Certain Terms of Options. Each option (and related stock
appreciation rights, if any) granted under the Plan shall be
nontransferable otherwise than by will or under the laws or descent and
distribution and may be exercised during the lifetime of the holder thereof
only by him or her. An option may be exercised in whole at any time or in
part from time to time during the option period, subject to such
limitations and restrictions as may be included in the option, provided,
however, that no option may be exercised within a period of one year from
the Granting Date thereof. In the case of termination of employment by
reason of retirement at or after age 57, the employee may, (i) within three
months of said retirement date in the case of "incentive" stock options, or
(ii) within twelve months of said retirement date in the case of
non-qualified stock options, exercise all of the option rights which were
exercisable on the day before said retirement date and any such options not
so exercised shall thereupon terminate. In the case of termination of
employment by reason of death, the employee's legal representative may,
within one year of the date of death (subject to the limitation on the
exercise of incentive stock options contained in Section 7(d)), exercise
all of the option rights of the employee (whether or not such options were
exercisable on the day before the employee's death), and any such options
not so exercised shall thereupon terminate. In the case of termination of
employment by reason of disability (within the meaning of Section 22(e)(3)
of the Code), the employee or his legal representative, as the case may be,
may (i) with regard to stock options granted with an exercise price equal
to or greater than the fair market value of the applicable shares on the
date such options are granted, within one year of the date of disability
(subject to the limitation on the exercise of incentive stock options
contained in Section 7(d)), exercise all of such option rights of the
employee (whether or not such options were exercisable on the day before
such termination), and any such options not so exercised shall thereupon
terminate; and (ii) with regard to stock options granted with an exercise
price less than the fair market value of the applicable shares on the date
such options are granted, the employee shall be deemed not to have
terminated his employment by reason of his disability for the purpose of
determining when such options become exercisable and whether the employee
may exercise such options, whether or not such options were exercisable on
the day before such disability, and the options shall terminate one year
from the date which all of the options become exercisable, unless the
employee's disability terminates and he accepts employment with an employer
other than the Company, in which case the employee's right to exercise
options pursuant to this alternative shall cease immediately, and any of
such option rights not so exercised shall terminate. In all other cases all
rights to exercise options shall terminate once the employee ceases to be
an employee of the Company or any of its Subsidiaries (or, in the case of a
non-qualified option, an Affiliate). Each incentive stock option shall
expire not more than ten years (or, if granted to a Ten Percent
Shareholder, five years) after the Granting Date (or, if earlier, within
the above-stated period after death, disability or retirement). Each
non-qualified option shall expire not more than ten years after the
Granting Date (or if earlier, within the above-stated period after death,
disability or retirement). Notwithstanding the foregoing exercise rules
relating to death, disability or retirement, all options shall expire not
more than 10 years (or, in the case of an incentive stock option granted to
a Ten Percent Shareholder, five years) after the Granting Date.
Full payment for shares purchased upon the exercise of an option shall
be made in cash or, at the election of the optionee and as the Committee
may, in its sole discretion, approve, by surrendering shares of common
stock of the Company with an aggregate fair market value (determined in
accordance with Section 6, above) equal to the aggregate option price, or
by delivering such combination of shares of common stock and cash as the
Committee shall, in its sole discretion, approve. As an alternative to the
payment by the holder for the number of shares in respect of which an
option is exercised, the Committee may provide alternative settlement
methods (hereinafter referred to as stock appreciation rights) as follows:
(a) The Committee, in its discretion, may provide that any option by
its terms may permit the holder to elect any of the stock
appreciation rights set forth in subsection (c) below.
(b) The Committee, in its discretion, may at the request of an
employee holding a non-qualified option under the Plan which does
not by its terms include stock appreciation rights, amend the
option to permit the election of such rights by the holder,
provided that the election of any such rights shall not be
exercisable until six months after the date of such amendment
except in the event of the death or disability of the holder
prior thereto.
(c) The stock appreciation rights are for the holder to receive from
the Company: (i) cash in an amount equal to the excess of the
value of one share over the option price times the number of
shares as to which the option is exercised; (ii) the number of
whole shares having an aggregate value not greater than the cash
amount calculated under alternative (i); or (iii) any combination
of cash and stock having an aggregate value not greater than the
cash amount calculated under alternative (i). For purposes of
determining the value of a stock appreciation right, the value
per share shall be the mean between the high and low prices of
the common stock of the Company on the New York Stock Exchange on
the date of the exercise of the stock appreciation right, or such
other price as the Committee shall determine to be the fair
market value of the common stock on the date of exercise.
The exercise of an alternative stock appreciation right with respect
to an option shall result in the expiration of such related option to the
extent of the number of stock appreciation rights exercised. In addition,
all stock appreciation rights related to incentive stock options shall be
subject to the following terms: (i) such stock appreciation rights shall be
exercisable only when the fair market value of the stock subject to the
related option exceeds the option price of the related option, and such
option is otherwise exercisable; (ii) such stock appreciation rights are
transferable only when the related option is otherwise transferable, and
(iii) such other terms as the Committee shall in its discretion determine
to be necessary to enable the related option to qualify as an incentive
stock option within the meaning of Section 422A of the Internal Revenue
Code.
Any election of any of the stock appreciation rights provided for
under this Section 7 shall be subject to the consent or disapproval of the
Committee at any time after the election is made and the Committee shall
have sole discretion to determine whether, and to what extent, the stock
appreciation right elected shall be paid in cash, in common stock, or
partially in cash and partially in common stock, provided that the
aggregate value of the payments shall not be greater than the cash amount
calculated under alternative (i). No fractional shares of common stock
shall be issued and the Committee shall determine whether cash shall be
paid in lieu of such fractional share interest or whether such fractional
share interest shall be eliminated.
Any shares of common stock due upon exercise of a stock appreciation
right shall be delivered to the participant by the Company and any payment
of cash shall be made by the employer of the participant. The employer of
the participant shall deduct from the amount of any cash so payable an
amount necessary to satisfy applicable federal, state, or local tax
withholding requirements. If no cash is payable (or if the amount of cash
payable is insufficient to satisfy applicable tax withholding
requirements), no shares shall be delivered by the Company to the
participant until the participant remits to his or her employer an amount,
determined by such employer, necessary to satisfy applicable federal,
state, or local tax withholding requirements or makes other arrangements
for the satisfaction of such tax withholding requirements.
Only whole shares shall be issuable upon exercise of Options. Any
right to a fractional share shall be satisfied in cash, or shall be
eliminated, in the sole discretion of the Committee. Upon payment of the
option price, a certificate for the number of whole shares to which the
participant is entitled shall be delivered to such participant by the
Company, provided, however, that in the case of the exercise of a
non-qualified option, the participant has remitted to his employer an
amount, determined by such employer, necessary to satisfy applicable
federal, state, or local tax withholding requirements, or made other
arrangements with his or her employer for the satisfaction of such tax
withholding requirements.
Exercise of an option in any manner, including an exercise involving
an election of a stock appreciation right with respect to an option, shall
result in a decrease in the number of shares which thereafter may be
available under the Plan by the number of shares as to which the option is
exercised.
(d) Limitation on Exercise of Incentive Stock Options
The aggregate fair market value (determined as of the time
options are granted) of the shares with respect to which
incentive stock options may first become exercisable by a holder
in any one calendar year under the Plan and any other plan of his
employer corporation and its parent and subsidiary corporations,
as defined respectively in Section 425(e) and (f) of the Internal
Revenue Code, shall not exceed $100,000. The foregoing limitation
shall apply only to incentive stock options granted under the
Plan, and not to non-qualified options granted under the Plan.
8. Adjustments Upon Changes in Capitalization. In the event of changes
in the outstanding common stock of the Company by reason of stock
dividends, stock splits, recapitalizations, combinations or exchanges of
shares, split-ups, split-offs, spin-offs, or other similar changes in
capitalization, or any distribution to common stockholders other than cash
dividends, the number and class of shares subject to each outstanding
option, the option prices, the number and class of shares subject to stock
appreciation rights or restricted stock awards, and the aggregate number
and class of shares available under the Plan shall be appropriately
adjusted by the Committee; provided that in the event the outstanding
shares of common stock shall be changed into or exchanged for any other
class or series of capital stock or cash, securities or other property
pursuant to a recapitalization, reclassification, merger, consolidation,
combination or similar transaction, then each option shall thereafter
become exercisable for the number and/or kind of capital stock, and/or the
amount of cash, securities or other property so distributed, into which the
shares of common stock subject to the option would have been changed or
exchanged had the option been exercised in full prior to such transaction,
provided further that, if the kind or amount of capital stock or cash,
securities or other property received in such transaction is not the same
for each outstanding share of common stock, then the kind or amount of
capital stock or cash, securities or other property for which the option
shall thereafter become exercisable shall be the kind and amount so
receivable per share by a plurality of the shares, and provided further
that if necessary, the provisions of the option shall be appropriately
adjusted so as to be applicable, as nearly as may reasonably be, to any
shares of capital stock, cash, securities or other property thereafter
issuable or deliverable upon exercise of the option.
9. Option Agreements. Each option and agreement (and amendments
thereof) shall contain such terms and provisions, consistent with the
requirements of this Plan, as the Committee in its discretion shall
determine, including without limitation such terms and provisions as shall
be requisite to cause certain stock options to qualify as "incentive" stock
options under Section 422A of the Internal Revenue Code of 1954, as
amended. Option agreements need not be identical.
10. Restricted Stock Awards. The Committee, in its sole discretion,
may award to eligible participant's shares of common stock of the Company
(such shares, while subject to such restrictions to be hereinafter referred
to as Restricted Stock). All shares of Restricted Stock awarded to
participants under the Plan shall be subject to the following terms and
conditions and to such other terms and conditions, not inconsistent with
the Plan, as shall be prescribed by the Committee in its sole discretion
and as shall be contained in the Agreement referred to in Section 10(d)
hereof.
(a) At the time of an award of Restricted Stock, the Committee shall
establish for each participant a Restricted Period. Shares of
Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered by the participant, except as hereinafter
provided, during the Restricted Period. Except for such
restrictions, and subject to Sections 10(c), 10(d), 10(e), and
10(f) hereof, the participant as owner of such shares shall have
all the rights of a stockholder including but not limited to the
right to receive all dividends paid on such shares and the right
to vote such shares. The Committee shall have the authority, in
its discretion, to accelerate the time at which any or all of the
restrictions shall lapse with respect to any shares of Restricted
Stock prior to the expiration of the Restricted Period with
respect thereto, or to remove any or all of such restrictions,
whenever it may determine that such action is appropriate by
reason of changes in applicable tax or other laws or other
changes in circumstances occurring after the commencement of such
Restricted Period.
(b) If a participant ceases to be an employee of the Company for any
reason (including death, disability or retirement), all shares of
Restricted Stock theretofore awarded to him shall, upon such
termination of employment, be forfeited and returned to the
Company, provided, however, that the Committee may, but need not,
within 120 days of such termination of employment, determine that
some or all of such shares shall be free of restrictions and
shall not be forfeited. Unless the Committee in its sole
discretion determines (and so provides in the Restricted Stock
agreement with respect to any grant, or in any amendment thereof)
that upon the death or disability of a participant, shares of
Restricted Stock theretofore granted to such participant shall be
free of all restrictions.
(c) Each certificate issued in respect of shares of Restricted Stock
awarded under the Plan shall be registered in the name of the
participant and deposited by the participant, together with a
stock power endorsed in blank, with the Company and shall bear
the following (or similar) legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) contained in the 1985 Stock
Option and Stock Award Plan of American Stores Company and an
Agreement entered into between the registered owner and
American Stores Company. Copies of such Plan and Agreement
are on file in the offices of the Secretary of American
Stores Company."
(d) At the time of an award of shares of Restricted Stock, the
participant shall enter into an Agreement with the Company, in a
form specified by the Committee, agreeing to the terms and
conditions of the award and such other matters as the Committee
shall in its sole discretion determine.
(e) At the time of vesting of any shares of Restricted Stock, and as
a further condition to such vesting, the participant shall remit
to his employer an amount, determined by such employer, necessary
to satisfy applicable federal, state, or local tax withholding
requirements, or shall make other arrangements with his or her
employer for the satisfaction of such tax withholding
requirements.
(f) At the expiration of the restrictions imposed by Section 10(a)
hereof, the Company shall redeliver to the participant (or where
the relevant provision of Section 10(b) hereof applies, in the
case of a deceased participant, his or her legal representative,
beneficiary or heir) the certificate(s) and stock power deposited
with it pursuant to Section 10(c) hereof and the shares of Common
Stock represented by such certificate(s) shall be free of the
restrictions referred to in Section 10(a) hereof.
11. Securities Laws. The Committee may make each grant of an option or
a stock appreciation right or award of Restricted Stock under the Plan
subject to such conditions as shall cause the award of Restricted Stock and
the grant and exercise of any option or stock appreciation right to comply
with the then-existing requirements of Rule 16b-3 (or any similar rule) of
the Securities and Exchange Commission.
12. Termination and Agreement. Unless the Plan shall theretofore have
been terminated as hereinafter provided, it shall terminate on, and no
option shall be granted thereunder after, September 10, 1995. The Board of
Directors may also terminate the Plan or make such modifications or
amendments thereof as it shall deem advisable, including such modifications
or amendments as it shall deem advisable in order to cause certain stock
options to quality as "incentive" stock options under Section 422A of the
Internal Revenue Code or to conform to any law or regulation applicable
thereto; provided, however, that the Board of Directors may not, without
further approval by the holders of a majority of the outstanding stock of
the Company having general voting power, (a) increase the maximum number of
shares for which options may be granted under the Plan in the aggregate,
(b) change the requirements as to the class of employees eligible to
receive options, or (c) make any other change that requires the approval of
shareholders in order to maintain the exemption under Rule 16b-3 (or any
similar rule) of the Securities and Exchange Commission. The Committee may,
however, authorize amendments of outstanding options including without
limitation the reduction of the option prices specified therein (or the
granting of new options at lower prices upon cancellation of outstanding
options), so long as all options granted hereunder outstanding at any one
time shall not call for issuance of more shares of common stock than those
provided for in Section 3 hereof and so long as the provisions of any
amended option would have been permissible under the Plan if such option
had been originally granted as of the date of such amendment with such
amended terms. No termination, modification, or amendment of the Plan may,
without the consent of the employee to whom any option shall theretofore
have been granted, adversely affect the rights of such employee under such
option.
13. Effectiveness of the Plan. The Plan shall become effective as of
September 10, 1985; provided, however, that it and any and all options
granted thereunder shall be and become null and void if the stockholders of
the Company shall fail to approve the Plan at their 1986 Annual Meeting.
Such approval of stockholders shall require the affirmative votes of the
holders of a majority of the outstanding common stock of the Company.
14. Government and Other Regulations. The obligation of the Company to
issue shares under the Plan shall be subject to (i) all applicable laws,
rules and regulations, and such approvals by any governmental agencies as
may be required, including, but not by way of limitation, the effectiveness
of a Registration Statement under the Securities Act of 1933 as deemed
necessary or appropriate by counsel for the Company and (ii) the condition
that the shares of common stock reserved for issuance upon the exercise of
options granted under the Plan shall have been duly listed upon the New
York Stock Exchange.
15. Non-Exclusivity of the Plan. Neither the adoption of the Plan by
the Board of Directors nor the submission of the Plan to the stockholders
of the Company for approval shall be construed as creating any limitations
on the power of the Board of Directors to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such
arrangement may be either generally applicable or applicable only in
specific cases.
16. Rights As Shareholders. Neither an optionee nor a holder of a
stock appreciation right shall have any right as a shareholder with respect
to any shares subject to his or her options or stock appreciation rights
until the date of the issuance of a stock certificate to him or her for
such shares.
17. Plan Not To Affect Employment. Neither the Plan nor any option or
stock appreciation right shall confer upon any employee of the Company any
right to continue in the employment of the Company.
18. Change in Control.
(a) Notwithstanding any provision in this plan to the contrary, the
Committee may, at its discretion, accelerate the right to exercise
all or any part of any unexercisable option granted under the Plan
or accelerate the time at which any or all of the restrictions
shall lapse with respect to any shares of Restricted Stock awarded
under the Plan; provided, however, that notwithstanding the
foregoing, from and after a Change of Control (as hereinafter
defined) each unexercisable option shall vest and each option
shall become immediately exercisable to the full extent of the
original grant and all of the restrictions (including the
Restricted Period) with respect to any shares of Restricted Stock
shall expire immediately (including any provision providing for
the forfeiture of any Restricted Stock under any circumstances)
and share certificates relating to the Restricted Stock shall be
delivered to participants pursuant to the terms of Section 10(f)
hereof. Notwithstanding anything contained in this Section 18 to
the contrary, the provisions of this Section 18 shall not apply
with respect to awards of Restricted Stock to former employees of
Lucky Stores, Inc. who are parties to employment agreements
referred to on Annex A hereto, unless and until such employees
enter into an amendment to such agreement approved by the Board of
Directors of the Company on February 1, 1989.
Notwithstanding anything contained in Section 7 hereof to the
contrary, in the case of a non-qualified option or an "incentive"
stock option granted after February 1, 1989, if an optionee's
employment is terminated (i) by action of his employer, other
than discharge for Cause (as hereinafter defined), or (ii) by
voluntary resignation of the optionee, in either case within 18
months following a Change of Control, any options held by the
optionee may be exercised by him until the earlier of six months
and one day after such termination or the expiration of such
options in accordance with their terms. "Cause" for the purposes
of this paragraph shall mean an act or acts of dishonesty on
employee's part which are intended or result in his substantial
personal enrichment at the expense of the Company or his
conviction for commission of a felony.
Notwithstanding anything contained in the Plan to the contrary,
during the 60-day period from and after a Change of Control an
optionee (other than an optionee who initiated a Change of
Control in a capacity other than as an officer or director of the
Company) with respect to an option that is unaccompanied by a
stock appreciation right shall, unless the Committee shall
determine otherwise at the time of grant, have the right, in lieu
of the payment of the full purchase price of the shares of common
stock being purchased under the option and by giving written
notice to the Company, to elect (within such 60-day period) to
surrender all or part of the option to the Company and to receive
in cash an amount equal to the amount by which the fair market
value per share of the common stock on the date of exercise shall
exceed the purchase price per share under the option multiplied
by the number of shares of common stock granted under the option
as to which the right granted by this paragraph shall have been
exercised; provided, that if any right granted pursuant to this
sentence would make a Change in Control transaction ineligible
for pooling of interests accounting under APB No. 16 that is
intended to be eligible for such accounting treatment, (i) the
Committee shall have the ability to substitute the cash payable
pursuant to this paragraph with common stock with a fair market
value equal to the cash that would otherwise be payable
hereunder, (ii) the period for the holder to elect such right
shall terminate as of the close of business on the date of
consummation of such Change of Control transaction and (iii) the
Change of Control Fair Market Value shall be adjusted to provide
the holders of such rights with fair value in exchange for any
reduction in the period for such election as determined by the
Committee in its sole judgment. The fair market value of the
common stock on the date of exercise shall mean: (a) with respect
to an election by an optionee to receive cash in respect of an
option which is not an "incentive" stock option, the "Change of
Control Fair Market Value," as defined below; and (b) with
respect to an election by an optionee to receive cash in respect
of an option which is an "incentive" stock option, the mean of
the high and low prices of the common stock on the New York Stock
Exchange on such date.
Notwithstanding anything contained in the Plan to the contrary,
the payment in settlement of a stock appreciation right during
the 60-day period (or such shorter period as the rights granted
pursuant to the previous paragraph are exercisable) from and
after a Change of Control shall be entirely in cash and during
the 60-day period (or such shorter period as the rights granted
pursuant to the previous paragraph are exercisable) from and
after a Change of Control the value of a share of common stock on
the date of exercise shall mean (i) with respect to the exercise
of a stock appreciation right accompanying an option which is not
an incentive stock option, the "Change of Control Fair Market
Value" and (ii) with respect to the exercise of a stock
appreciation right accompanying an incentive stock option, the
mean of the high and low prices of the common stock on the New
York Stock Exchange on such date; provided, that if any right
granted pursuant to this sentence would make a Change in Control
transaction ineligible for pooling of interests accounting under
APB No. 16 that is intended to be eligible for such accounting
treatment, the Committee shall have the ability to substitute the
cash payable pursuant to this paragraph with common stock with a
fair market value equal to the cash that would otherwise be
payable hereunder.
For the purpose of the Plan, a "Change of Control" shall mean any
of the following events: (i) The acquisition, other than from the
Company, by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) other than L. S. Skaggs,
his affiliates and associates, his heirs and any trust or
foundation to which he has transferred or may transfer shares of
common stock, of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Company Voting Securities"), provided, however, that any
acquisition by the Company or its subsidiaries, or any employee
benefit plan (or related trust) of the Company or its
subsidiaries, or any corporation with respect to which, following
such acquisition, more than 80% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Company
Voting Securities immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately
prior to such acquisition, of the Outstanding Company Common
Stock and Company Voting Securities, as the case may be, shall
not constitute a Change of Control; or (ii) Individuals who, as
of February 1, 1989, constitute the Board of Directors of the
Company (as of February 1, 1989, as adjusted below, the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a
director subsequent to February 1, 1989 whose election, or
nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act); or (iii) approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with
respect to which the individuals and entities who were the
respective beneficial owners of the common stock and voting
securities of the Company immediately prior to such
reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 80% of, respectively, the then
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of
the corporation resulting from such reorganization, merger or
consolidation, or a complete liquidation or dissolution of the
Company or of the sale or other disposition of all or
substantially all of the assets of the Company.
For purposes of the Plan, the "Change of Control Fair Market
Value" shall mean, subject to adjustment by the Committee
pursuant to the third paragraph of Section 18(a), the higher of
(x) the highest reported sales price, regular way, of a share of
common stock on the Composite Tape for New York Stock Exchange
Listed Stocks during the 60-day period prior to the date of the
Change of Control and (y) if the Change of Control is the result
of a transaction or series of transactions described in
paragraphs (i) or (iii) of the definition of Change of Control
set forth in this Section, the highest price per share of common
stock paid in such transaction or series of transactions (in the
case of a Change of Control described in such paragraph (i) of
such definition), as reflected in a Schedule 13D filed by the
person having made the acquisition).
[ALBERTSON'S INC. LETTERHEAD]
July 1, 1999
Albertson's, Inc.
250 Parkcenter Boulevard
P.O. Box 20 Boise, Idaho 83726
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am the Executive Vice President and General Counsel of Albertson's,
Inc., a Delaware corporation (the "Company"). The Company is filing with
the Securities and Exchange Commission a Registration Statement on Form S-8
(the "Registration Statement") covering an aggregate of 2,465,295 shares
(the "Shares") of Common Stock, par value $1.00 per share, of the Company,
issuable pursuant to options and/or limited stock appreciation rights
granted under the American Stores Company 1997 Stock Option and Stock Award
Plan, 1997A Stock Option and Stock Award Plan, 1997 Stock Plan for
Non-Employee Directors, 1989 Stock Option and Stock Award Plan and
1985 Stock Option and Stock Award Plan (the "ASC Plans") which were
converted into options and/or limited stock appreciation rights to purchase
Shares of the Company pursuant to the Agreement and Plan of Merger, dated
August 2, 1998, by and between the Company, American Stores Company and
Abacus Holdings, Inc. (the "Merger Agreement").
All assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, I have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company, as I have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, I have assumed the
legal capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of original and certified documents and
the conformity to original or certified copies of all copies submitted to
us as conformed or reproduction copies. As to various questions of fact
relevant to the opinions expressed herein, I have relied upon, and assume
the accuracy of, representations and warranties contained in documents and
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the documents with their covenants and agreements
contained therein. Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion that
the Shares, when issued or sold, and when delivered in accordance with the
provisions of the ASC Plans, will be duly authorized, validly issued, fully
paid and non-assessable.
The opinion expressed herein is limited to the General Corporation Law
of the State of Delaware, as currently in effect.
I own 26,813 shares of the Company's Common Stock. I hold options
granted under the Albertson's 1986 Nonqualified Stock Option Plan and the
Albertson's Stock Plan to purchase 110,000 Shares, all of which became
exercisable upon completion of the American Stores acquisition. I have been
granted an option to purchase $4,000,000 worth of Shares with the number of
shares and the option price to be determined based upon the closing price
of the Common Stock of the Company on the New York Stock Exchange on June
24, 1999 (the fair market value on the date of the grant).
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not hereby admit that
I am in the category of such persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended.
The opinions expressed herein are solely for your benefit in
connection with the Form S-8 and may not be relied on in any manner or for
any purpose by any other person or entity.
Very truly yours,
ALBERTSON'S, INC.
/s/ Thomas R. Saldin
By: Thomas R. Saldin
Executive Vice President and
General Counsel
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Albertson's, Inc. of our report dated March 17, 1999,
incorporated by reference in the Annual Report on Form 10-K of Albertson's,
Inc. and subsidiaries for the year ended January 28, 1999.
/s/ Deloitte & Touche LLP
Boise, Idaho
July 1, 1999
