Exhibit 10.65
AMENDMENT TO THE
ALBERTSON'S, INC. 2005 DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. 2005 Deferred Compensation Plan was
established for compensation earned in 2005;
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. The Plan is hereby amended by adding the following paragraphs thereto to
read as follows:
"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 "Company"); 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 Company ("Voting Stock") directly from the Company
that is approved by a majority of the Incumbent Directors, (B) any
acquisition of Voting Stock of the Company by the Company or any
subsidiary, (C) any acquisition of Voting Stock of the Company by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any subsidiary, and (D) any acquisition of Voting Stock
of the Company 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 Company 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 Company
representing 1% or more of the then-outstanding Voting Stock of the
Company, other than in an acquisition directly from the Company 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 Company 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 Company as a result of a reduction in the number of
shares of Voting Stock of the Company outstanding unless and until
such Person thereafter becomes the beneficial owner of any additional
shares of Voting Stock of the Company representing 1% or more of the
then-outstanding Voting Stock of the Company, other than as a result
of a stock dividend, stock split or similar transaction effected by
the Company 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 Company
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 Company, 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 Company 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
and entities who were the beneficial owners of Voting Stock of the
Company immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 60% of the combined voting
power of the then
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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 Company or all or
substantially all of the Company's assets either directly or through
one or more subsidiaries), (B) no Person (other than the Company, such
entity resulting from such Business Combination, or any employee
benefit plan (or related trust) sponsored or maintained by the
Company, 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 Company of a complete
liquidation or dissolution of the Company, 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 Company and any individual becoming
a Director subsequent to the date hereof whose election, nomination
for election by the Company'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 Company 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.
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
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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.
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 the Company at any time to the extent determined
necessary or desirable, at the Company's discretion, in light of Code
Section 409A, without regard to any restrictions on the Company's
ability to amend the Plan under any other provision of the Plan.
2. 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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