Exhibit 10.6.5
AMENDMENT TO THE
ALBERTSON'S, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
WHEREAS, the Albertson's, Inc. Executive Deferred Compensation Plan (the
"Plan") was established December 5, 1983 and was further 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. The definition of "Change in Control" contained in Article I of the Plan is
hereby amended 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
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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 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.
2. Effective as of the date of adoption of this Amendment, a new Section
6.09 is hereby added to the Plan, immediately following Section 6.08, to read as
follows:
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6.10 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.
3. A new Section 8.04 is hereby added to the Plan, immediately following
Section 8.03, to read as follows:
8.04 Code Section 409A. 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 Employer at any time
to the extent determined necessary or desirable, at the Employer's
discretion, in light of Code Section 409A, without regard to any
restrictions on the Employer's ability to amend the Plan under any
other provision of the Plan.
4. 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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