Exhibit 10.30.2
SIXTH AMENDMENT TO THE
AMERICAN STORES COMPANY SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN (SERP)
WHEREAS, the American Stores Company Supplemental Executive Retirement Plan
(SERP) was amended and restated effective January 1, 1994, and has previously
been amended;
WHEREAS, the Board of Directors of Albertson's, Inc. has delegated the
authority to amend the Plan to its Management Development/Compensation
Committee;
NOW, THEREFORE, the following amendments to the Plan are hereby adopted
effective as of the adoption date of this Amendment (unless another effective
date is expressly specified):
1. A new Section 6.06 is hereby added to the Plan, immediately following
Section 6.06, to read as follows:
For purposes of this Section 6.06, "Change in Control" shall mean
the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the combined
voting power of the then-outstanding Voting Stock of Albertson's, Inc.
(the "Parent"); provided, however, that:
(1) for purposes of this Section 1(i), the following
acquisitions shall not constitute a Change in Control: (A) any
acquisition of securities entitled to vote generally in the election
of directors of the Parent ("Voting Stock") directly from the Parent
that is approved by a majority of the Incumbent Directors, (B) any
acquisition of Voting Stock of the Parent by the Parent or any
subsidiary, (C) any acquisition of Voting Stock of the Parent by any
employee benefit plan (or related trust) sponsored or maintained by
the Parent or any subsidiary, and (D) any acquisition of Voting Stock
of the Parent by any Person pursuant to a Business Combination that
complies with clauses (A), (B) and (C) of Section 1(iii) below;
(2) if any Person acquires beneficial ownership of 20% or
more of combined voting power of the then-outstanding Voting Stock of
the Parent as a result of a transaction described in clause (1)(A) of
Section 1(i) and such Person thereafter becomes the beneficial owner
of any additional shares of Voting Stock of the Parent representing 1%
or more of the then-outstanding Voting Stock of the Parent, other than
in an acquisition directly from the Parent that is approved by a
majority of the Incumbent Directors or other than as a result of a
stock dividend, stock split or similar transaction effected by the
Parent in which all holders of Voting Stock are treated equally, such
subsequent acquisition shall be treated as a Change in Control;
(3) a Change in Control will not be deemed to have occurred
if a Person acquires beneficial ownership of 20% or more of the Voting
Stock of the Parent as a result of a reduction in the number of shares
of Voting Stock of the Parent outstanding unless and until such Person
thereafter becomes the beneficial owner of any additional shares of
Voting Stock of the Parent representing 1% or more of the
then-outstanding Voting Stock of the Parent, other than as a result of
a stock dividend, stock split or similar transaction effected by the
Parent in which all holders of Voting Stock are treated equally; and
(4) if at least a majority of the Incumbent Directors
determine in good faith that a Person has acquired beneficial
ownership of 20% or more of the Voting Stock of the Parent
inadvertently, and such Person divests as promptly as practicable a
sufficient number of shares so that such Person beneficially owns less
than 20% of the Voting Stock of the Parent, then no Change in Control
shall have occurred as a result of such Person's acquisition; or
(ii) a majority of the Directors are not Incumbent Directors; or
(iii) the consummation of a reorganization, merger or
consolidation, or sale or other disposition of all or substantially
all of the assets of the Parent or the acquisition of assets of
another corporation, or other transaction (each, a "Business
Combination"), unless, in each case, immediately following such
Business Combination (A) all or substantially all of the individuals
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and entities who were the beneficial owners of Voting Stock of the
Parent immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 60% of the combined voting
power of the then outstanding shares of Voting Stock of the entity
resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction owns the
Parent or all or substantially all of the Parent's assets either
directly or through one or more subsidiaries), (B) no Person (other
than the Parent, such entity resulting from such Business Combination,
or any employee benefit plan (or related trust) sponsored or
maintained by the Parent, any Subsidiary or such entity resulting from
such Business Combination) beneficially owns, directly or indirectly,
20% or more of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such Business
Combination, and (C) at least a majority of the members of the Board
of Directors of the entity resulting from such Business Combination
were Incumbent Directors at the time of the execution of the initial
agreement or of the action of the Board providing for such Business
Combination; or
(iv) approval by the shareholders of the Parent of a complete
liquidation or dissolution of the Parent, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 1(iii).
An "Incumbent Director" shall mean the individuals who, as of the
date hereof, are Directors of the Parent and any individual becoming a
Director subsequent to the date hereof whose election, nomination for
election by the Parent's shareholders, or appointment, was approved by
a vote of at least two-thirds of the then Incumbent Directors (either
by a specific vote or by approval of the proxy statement of the Parent
in which such person is named as a nominee for director, without
objection to such nomination); provided, however, that an individual
shall not be an Incumbent Director if such individual's election or
appointment to the Board occurs as a result of an actual or threatened
election contest (as described in Rule 14a-12(c) of the Exchange Act)
with respect to the election or removal of Directors or other actual
or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board.
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Special Election. Notwithstanding any other provision of the Plan,
each Participant shall have the right to elect, prior to May 22, 2006,
in accordance with procedures established under the Plan, to receive a
lump sum in cash (payable from an applicable trust or from general
corporate assets) such Participant's vested account balance under such
Plan as of the date of the distribution, payable as soon as
practicable on or after (but no later than 30 days after) January 1,
2007, or, if later, the effective date of a Change in Control
("Special Election Lump Sum"), provided that such election shall not
prevent the payment or commencement of a Participant's account balance
under the Plan on a scheduled distribution date that occurs prior to
the payment of any such Special Election Lump Sum.
2 A new Section 12.10 is hereby added to the Plan, immediately following
Section 12.09, to read as follows:
12.10 It is intended that the Plan shall be operated in good
faith compliance with Section 409A of the Internal Revenue Code
("Code") and may be amended by Albertson's, Inc. at any time to the
extent determined necessary or desirable, at the discretion of
Albertson's, Inc., in light of Code Section 409A, without regard to
any restrictions on the ability of Albertson's, Inc. to amend the Plan
under any other provision of the Plan.
3. Except as provided herein, the Plan shall remain in full force and
effect.
EXECUTED this 28th day of April, 2006.
ALBERTSON'S, INC.
By: /s/ John R. Sims
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Its: Executive Vice President & General
Counsel
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