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Exhibit 10.1
AGREEMENT
This Agreement, made and executed as of May 21, 1997, is between
Albertson's, Inc. and the X.X. and Xxxxxxx Xxxxxxxxx Foundation, Inc. Except
where defined in context, capitalized terms used herein are defined in Article
One.
W I T N E S S E T H:
WHEREAS, the Foundation desires to acquire 20,842,446 shares of Common
Stock (the "Transfer Shares") Beneficially Owned by Alscott Limited Partnership
#1, a Texas limited partnership (the "Partnership"); and
WHEREAS, the Company is willing to waive whatever rights it may have
under certain existing agreements among the Company, members of the Albertson
family and the Partnership relating to such Transfer Shares and to consent to
the transfer thereof to the Foundation, if the Foundation agrees to be bound by
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE ONE
Section 1.1 Definitions. Except as otherwise specified herein, defined
terms used in this Agreement shall have the following respective meanings:
"Additional Election Period" shall have the meaning ascribed to it in
Section 3.1(c).
"Agreement" shall mean this Agreement.
"Beneficially Own" shall have the meaning ascribed to it in Rule 13d-3
under the 1934 Act.
"Business Day" shall mean any day other than a day on which banks are
permitted or required to be closed in New York, New York.
"Closing" shall mean the closing of any purchase of the Offered Shares
by the Company pursuant to Article 3, which shall be held at 10:00
A.M., local time, on the Closing Date at the principal office of the
Company, or at such other time or place as the parties hereto may
mutually agree.
"Closing Date" shall have the meaning ascribed to it in Section 3.1(e).
"Common Stock" shall mean the Common Stock of the Company, par value
$1.00 per share.
"Company" shall mean Xxxxxxxxx'x, Inc., a Delaware corporation.
"Company's Notice" shall have the meaning ascribed to it in Section
3.1(b).
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"Control" shall have the meaning ascribed to it in Rule 12b-2 under the
1934 Act.
"Donation" shall have the meaning ascribed to it in Section 3.3.
"Donee's Notice" shall have the meaning ascribed to it in Section 3.3.
"Election Period" shall mean the five Business Days following giving of
the Foundation's Notice.
"Extended Election Period" shall mean the 20 Business Days following
giving of the Foundation's Notice.
"Foundation" shall mean the X.X. and Xxxxxxx Xxxxxxxxx Foundation,
Inc., an Idaho corporation.
"Foundation's Notice" shall have the meaning ascribed to it in Section
3.1(a).
"Group" shall have the meaning ascribed to it in Section 13(d)(3) of
the 1934 Act.
"Market Price" shall mean the average of the daily closing prices per
share of Voting Securities of the same class as the Offered Shares or
the Voting Securities received in the Donation, as the case may be, for
the 30 consecutive Trading Days immediately preceding either the day
that the Foundation's Notice is given pursuant to Section 3.1 or
Section 3.2 or the day on which Beneficial Ownership is transferred to
the donee pursuant to Section 3.3, as the case may be.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Offered Shares" shall mean the Voting Securities proposed to be
transferred by the Foundation, the number of which shall be set forth
in the Foundation's Notice.
"Person" shall mean any individual, partnership, corporation, group,
syndicate, trust, government or agency thereof, or any other
association or entity.
"Purchase Price" shall mean 96% of the Market Price.
"Prohibition Notice" shall have the meaning ascribed to it in Section
3.2(a).
"Term" shall have the meaning ascribed to it in Section 2.1.
"Total Voting Power" shall mean the total combined Voting Power of all
the Voting Securities then outstanding, including, without limitation,
the Common Stock.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Voting Securities are listed or
admitted to trading is open for the transaction of business.
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"Transfer Shares" shall have the meaning ascribed to it in the recitals
to this Agreement.
"Voting Securities" shall mean any securities entitled to vote
generally in the election of directors of the Company.
"Voting Power" shall mean voting power in the general election of
directors of the Company.
Section 1.2 Calendar Days. Unless otherwise specified, all references
to "days" shall be deemed to be references to calendar days.
ARTICLE TWO
Section 2.1 Term. The term of this Agreement (the "Term") shall
commence on the date hereof and shall continue until the twentieth anniversary
of the date hereof; provided, however, that the Company may, on three occasions,
by notice given to the Foundation at least 10 days prior to the date on which
this Agreement would otherwise expire, extend the Term for an additional
ten-year period, but in no event shall the Term be extended beyond the fiftieth
anniversary of the date hereof without the written consent of the Foundation;
provided, further, that, not withstanding the foregoing, this Agreement shall
terminate for all purposes, may not be extended and shall be of no further force
or effect on the first day that the Foundation does not Beneficially Own any
Voting Securities.
Section 2.2 Automatic Termination. Notwithstanding anything to the
contrary set forth herein, this Agreement shall immediately terminate and be of
no further force or effect whatsoever if Beneficial Ownership of the Transfer
Shares is not vested in the Foundation on or before June 30, 1997.
ARTICLE THREE
Section 3.1 Right of First Refusal.
(a) Subject to the provisions of Section 4.1, if the
Foundation desires to transfer any Voting Securities Beneficially Owned
by it, the Foundation shall give notice (the "Foundation's Notice") to
the Company (i) stating that it desires to make such transfer and (ii)
setting forth the number of Offered Shares. Except as provided in
Section 3.2(b), the Foundation's Notice shall constitute an irrevocable
offer by the Foundation to sell the Offered Shares to the Company.
(b) Except as otherwise provided in this Article 3, the
Company may elect to purchase all (but not less than all) of the
Offered Shares at a price per share equal to the Purchase Price by
giving notice (the "Company's Notice") to the Foundation during the
Election Period, stating the Company's irrevocable acceptance of the
offer set forth in the Foundation's Notice.
(c) If the Company does not give the Company's Notice during
the Election Period, then the Foundation may, for a period of 45 days
immediately following the expiration of the Election Period, sell the
Offered Shares at a price per share at or above the Market Price;
provided, however, that prior to selling (or agreeing to sell) to a
third party any part of the Offered Shares with aggregate Voting Power,
on an issued and outstanding basis, in excess of 1% of the Total Voting
Power, the Foundation shall give the Company notice of the identity of
such
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third party (and the identity of any known transferee ) and, provided
that the identity of such third party (and such transferee) has not
been disclosed to the Company in the Foundation's Notice, the Company
shall thereupon have three additional Business Days (the "Additional
Election Period") following giving of such notice during which to elect
to purchase such part of the Offered Shares at a price per share equal
to the Purchase Price by giving the Company's Notice.
(d) If the Company does not give the Company's Notice during
the Election Period, any Additional Election Period or the Extended
Election Period, and the Foundation has not sold all of the Offered
Shares prior to the expiration of the 45-day period immediately
following the Election Period or the Extended Election Period, as the
case may be, the right of first refusal under this Section 3.1 shall
again apply to any subsequently proposed transfer of any of the Offered
Shares.
(e) Any purchase of any Offered Shares by the Company pursuant
to this Article 3 shall be completed on a date (the "Closing Date")
designated by the Company in a notice to the Foundation, which date
shall be not more than three Business Days following giving of the
Company's Notice; provided, however, in the event the Company is unable
to obtain financing sufficient to enable it to effect the purchase of
the Offered Shares within three Business Days following giving of the
Company's Notice, the Company may, by giving notice to the Foundation
during such three-Business Day period, postpone the Closing Date to a
date not more than 30 days following giving of the Company's Notice;
provided further that the Company shall pay to the Foundation interest
on the purchase price of the Offered Shares for each day the Closing
Date is postponed beyond the expiration of such three-Business Day
period at a rate of interest per annum equal to the 30-day commercial
paper high-grade unsecured notes sold through dealers by major
corporations rate listed in the Wall Street Journal under the heading
"Money Rates" (or the closest equivalent rate if such rate has ceased
to be published) on the first Business Day with respect to which such
interest is payable.
(f) The Purchase Price for any Offered Shares purchased by the
Company pursuant to this Article 3, including any interest provided for
herein, shall be paid at the Closing by wire transfer of immediately
available funds to an account previously designated by the Foundation.
(g) At the Closing, the Foundation shall deliver to the
Company certificates representing the shares of Voting Securities being
sold, free and clear of any lien, claim or encumbrance, together with
any other documents reasonably necessary to evidence ownership and
authority to complete the transaction.
Section 3.2 Certain Limitations. If the Foundation's Notice is given at
a time when the Company is prohibited by any United States securities law, or
any rule or regulation promulgated thereunder, from purchasing the Offered
Shares the following additional provisions shall apply:
(a) The Company shall give the Foundation notice of such
prohibition (the "Prohibition Notice") during the Election Period, and
the Company may thereafter elect to purchase the Offered Shares by
giving the Company's Notice at any time during the Extended Election
Period. If the Company does not give the Company's Notice during the
Extended Election Period, then the Foundation may, for a period of 45
days immediately following the
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expiration of the Extended Election Period, sell the Offered Shares at
a price per share at or above the Market Price; provided, however, that
prior to selling (or agreeing to sell) to a third party any part of the
Offered Shares with aggregate Voting Power, on an issued and
outstanding basis, in excess of 1% of the Total Voting Power, the
Foundation shall give the Company notice of the identity of such third
party (and the identity of any known transferee of such third party )
and, provided that the identity of such third party (and such
transferee) has not been disclosed to the Company in the Foundation's
Notice, the Company shall thereupon have the Additional Election Period
following giving of such notice during which to elect to purchase such
part of the Offered Shares at a price per share equal to the Purchase
Price by giving the Company's Notice; or
(b) The Company may, if such prohibition arises under any law,
rule or regulation relating to trading in securities while in the
possession of material non-public information, disclose such
information to the Foundation without the Foundation's consent if, but
only if, the Company has given the Company's Notice during the
applicable period. In the event the Company discloses information
pursuant to this Section 3.2(b), the Foundation shall maintain the
confidentiality of such information, and the Foundation may revoke the
Foundation's Notice by written notice to the Company given within five
Business Days following the disclosure of such information by the
Company to the Foundation. If the Foundation does not elect to revoke
the Foundation's Notice as provided in the preceding sentence, the
Company shall be obligated to purchase all (but not less than all) of
the Offered Shares in accordance with the Company's Notice, and, if
such purchase is not completed, the Foundation shall have, in addition
to any other legal or equitable remedy that may be available to it, the
right of specific performance, as provided in Section 6.1(a) hereof.
Section 3.3 Charitable Donations. Notwithstanding the limitation on
transfer set forth in Section 3.1, in each calendar year during the Term the
Foundation may make a charitable donation (a "Donation") in the form of Voting
Securities of up to 5% of the total number of Voting Securities Beneficially
Owned by the Foundation at the time of any Donation, provided that the donee has
theretofore agreed (i) to offer to sell to the Company immediately, by written
notice to the Company to be given within three days following receipt of the
Donation (the "Donee's Notice"), all of the Voting Securities received in such
Donation at a price per share equal to the Purchase Price and, if the Company
accepts the offer set forth in the Donee's Notice by written notice to the donee
within five Business Days following giving of the Donee's Notice, to be bound by
the obligations of the Foundation under Section 3.1(g) and by this Section 3.3
with respect to the closing of such transaction and (ii) if the Company does not
accept the offer set forth in the Donee's Notice by written notice to the donee
during such five-Business Day period, to sell all of such Voting Securities on
the open market within 30 days following receipt of the Donation. If the Company
accepts the offer set forth in the Donee's Notice during such five-Business Day
period, the Company shall designate a closing date, time and place with respect
to such transaction in writing to the donee and, on such designated closing
date, pay to the donee the Purchase Price for all of the Voting Securities
received in the Donation by wire transfer of immediately available funds to an
account previously designated by the donee.
Section 3.4 Designation of Purchaser. If the Company elects to exercise
a right of first refusal under this Article 3, the Company may specify in the
Company's Notice (or at any time thereafter which is prior to the purchase of
the Offered Shares to which such notice relates) another Person as its designee
to purchase such Offered Shares in accordance with the terms and provisions of
this Agreement. No such
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designation shall extend any of the time periods specified herein or change any
other term or provision hereof.
ARTICLE FOUR
Section 4.1 Covenants. During the Term the Foundation shall not, and
shall use its best efforts to cause each Person Controlled by it not to, singly
or as part of a Group, directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire, by
purchase, gift or otherwise, Beneficial Ownership of any Voting
Securities, except (i) the Transfer Shares, (ii) pursuant to a stock
split, stock dividend, rights offering, recapitalization,
reclassification or similar transaction and (ii) for acquisitions that
would not cause the aggregate Voting Power of the Voting Securities, on
an issued and outstanding basis, Beneficially Owned by the Foundation
to exceed 15% of the Total Voting Power;
(b) join or form a Group for the purpose of acquiring,
holding, voting or disposing of any Voting Securities;
(c) deposit any Voting Securities into a voting trust or
subject any Voting Securities to any arrangement or agreement with
respect to the voting thereof; or
(d) pledge, hypothecate or otherwise encumber any Voting
Securities, except as security for any loan the entire proceeds of
which are used to make required distributions under Section 4942 of the
Internal Revenue Code of 1986, as amended, and then only if the pledgee
has theretofore agreed, pursuant to an instrument in form and substance
satisfactory to the Company, to be bound by all of the terms and
provisions of this Agreement to the same extent the Foundation is bound
hereby.
Section 4.2 Affirmative Covenants. Not withstanding any other term or
provision of this Agreement to the contrary, during the Term the Foundation
shall:
(a) comply with all applicable laws, rules and regulations
relating to trading in securities while in the possession of material
non-public information; and
(b) retain the name "Albertson" as part of its name, maintain
its status as a charitable entity and associate the name "Albertson"
with all charitable activities undertaken or otherwise participated in
by the Foundation.
ARTICLE FIVE
Section 5.1 Representations and Warranties of the Company. The Company
represents and warrants to the Foundation as follows:
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(a) The execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated by this Agreement are within the corporate powers of the
Company and have been duly authorized by all necessary corporate action
on the part of the Company. This Agreement constitutes a legal, valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms (i) except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and (ii)
subject to the limitations imposed by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(b) The execution, delivery and performance of this Agreement
by the Company do not and will not contravene or conflict with or
constitute a default under the Company's Restated Certificate of
Incorporation or by-laws.
Section 5.2 Representations and Warranties of the Foundation. The
Foundation represents and warrants to the Company as follows:
(a) The execution, delivery and performance by the Foundation
of this Agreement and the consummation by the Foundation of the
transactions contemplated by this Agreement are within the corporate
powers of the Foundation and have been duly authorized by all necessary
corporate action on the part of the Foundation. This Agreement
constitutes a legal, valid and binding agreement of the Foundation
enforceable against the Foundation in accordance with its terms (i)
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally, including the effect of
statutory and other laws regarding fraudulent conveyances and
preferential transfers, and (ii) subject to the limitations imposed by
general equitable principles (regardless of whether such enforceability
is considered in a proceeding at law or in equity).
(b) The execution, delivery and performance of this Agreement
by the Foundation do not and will not contravene or conflict with or
constitute a default under the Foundation's charter or by-laws.
ARTICLE SIX
Section 6.1 Enforcement; Consent to Jurisdiction.
(a) The Foundation and the Company acknowledge and agree that
irreparable damage would occur if any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, the parties hereto agree that
each party will be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the provisions
hereof, this being in addition to any other remedy to which either
party may be entitled at law or in equity.
(b) The Company and the Foundation each irrevocably agrees
that any legal action or proceeding to enforce this Agreement, or any
claim or dispute arising out of or in connection
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with, or in any way relating to, this Agreement or any transaction
contemplated by this Agreement, shall be brought in the courts of the
State of Idaho. By execution and delivery of this Agreement, the
Company and the Foundation each irrevocably consents to submit itself
to the jurisdiction of each such court and irrevocably designates,
appoints and empowers the Secretary of State of the State of Idaho to
receive for and on its behalf service of process in the State of Idaho.
Section 6.2 No Waiver. Any waiver by either party hereto of any breach
of any provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of either party hereto to insist upon
strict adherence to any term of this Agreement on one or more occasions shall
not be considered a waiver or deprive such party of the right thereafter to
insist upon strict adherence to such term or any other term of this Agreement.
Section 6.3 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and may be amended only by an agreement in writing executed by
each of the parties hereto.
Section 6.4 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of the
parties hereto that they would have executed the remaining provisions without
including any provision that may be declared unenforceable.
Section 6.5 Headings. Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
Section 6.6 Counterparts. For the convenience of the parties hereto,
any number of counterparts of this Agreement may be executed by the parties, and
each such executed counterpart shall be deemed an original instrument.
Section 6.7 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be made in writing by
hand-delivery or by courier guaranteeing overnight delivery in accordance with
the following:
(a) If to the Company, to:
Xxxxxx X. Xxxxxx
Executive Vice President, Administration
and General Counsel
Xxxxxxxxx'x, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
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with a copy to:
Xxxx X. X'Xxxxxxx
Corporate Secretary and Senior Attorney
Xxxxxxxxx'x, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
or to such other person or address as the Company will furnish to the
Foundation in writing.
(b) If to the Foundation, to:
X.X. and Xxxxxxx Xxxxxxxxx Foundation, Inc.
Xxxxx 000
000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
or to such other person or address as the Foundation will furnish to
the Company in writing.
(c) All notices, requests, demands and other communications
given in accordance with this Section 6.7 shall be deemed to have been
given for all purposes of this Agreement at the time of delivery by
hand to the relevant office, if personally delivered, and on the next
Business Day, if timely delivered to a courier guaranteeing overnight
delivery.
Section 6.8 Successors and Assigns. This Agreement shall bind the
successors and assigns of the parties hereto, and inure to the benefit of any
successor or permitted assign of either of them; provided, however, that no
party may assign this Agreement without the prior written consent of the other
party hereto, except that the Company may assign certain of its rights hereunder
in accordance with Section 3.4.
Section 6.9 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Idaho without giving effect to the conflict of laws principles thereof.
Section 6.10 Legend.
(a) The share certificates evidencing Voting Securities
Beneficially Owned by the Foundation during the Term shall bear the
following legend until such time as such shares are free of the
restrictions contained in this Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN AGREEMENT, DATED AS OF ________], 1997,
BETWEEN XXXXXXXXX'X, INC. AND THE X.X. AND XXXXXXX XXXXXXXXX
FOUNDATION AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN
ACCORDANCE THEREWITH. A COPY OF SAID AGREEMENT IS ON FILE AT
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THE OFFICE OF THE CORPORATE SECRETARY OF XXXXXXXXX'X, INC.
(b) The Foundation shall promptly present or cause to be
presented to the Company all certificates representing shares Voting
Securities now owned or hereafter acquired by the Foundation for the
placement thereon of the legend provided for in this Section 6.10. The
Company may enter a stop-transfer order with any transfer agent of the
Voting Securities against transfer of such securities except in
compliance with this Agreement. All legends and stop-transfer orders
shall be removed with respect to any shares of Voting Securities that
are sold, transferred or otherwise disposed of in accordance with the
terms of this Agreement.
Section 6.11 Non-Affected Shares. Notwithstanding any term or provision
of this Agreement to the contrary, the parties hereto acknowledge and agree that
the Foundation presently Beneficially Owns 1,180,000 shares of Common Stock (the
"Non-Affected Shares") and that no term or provision of this Agreement shall
apply to the Non-Affected Shares or to any Voting Securities acquired or issued
with respect to such Non-Affected Shares pursuant to any dividend reinvestment
plan or any stock split, stock or other dividend, rights offering,
recapitalization, reclassification or similar transaction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first referred
to above.
Xxxxxxxxx'x, Inc.
By: XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
X.X. and Xxxxxxx Xxxxxxxxx
Foundation, Inc.
By: X.X. XXXXX
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Name: X. X. Xxxxx
Title: President
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