Exhibit 10.59
May 5, 2005
Clarence J. Gabriel, Jr.
Albertson's, Inc.
250 E. Parkcenter Blvd.
Boise, Idaho 83706
Dear Gabe,
This letter will confirm the agreement between you and Albertsons, Inc.,
including its subsidiaries and affiliates, (the "Company") regarding your
resignation from the position of Executive Vice President, Supply Chain and
Asset Management as of May 5, 2005 ("Resignation Date"), and sets forth our
mutual understanding of the terms of your agreement and general release. This
agreement will become effective on the eighth (8th) day after the date of its
execution by you (the "Effective Date").
1. Your employment as Executive Vice President, Supply Chain and Asset
Management will end on the Resignation Date. You will be classified as a
special employee from the Resignation Date through the Termination Date.
The term "Termination Date" shall mean the earliest of (i) May 5, 2006,
(ii) the date you commence employment with or become an independent
consultant for a third party (regardless of whether such third party is
a "Competing Business," as that term is defined in Exhibit A hereto), or
(iii) the date of your death.
2. Conditioned upon your agreement to the terms set forth herein, you shall
be entitled to the compensation and benefits listed below during the
period from the Resignation Date to the Termination Date. This will
constitute the only compensation and benefits payable to you, including
but not limited to those provided by the employment letter between you
and the Company dated December 24, 2002.
A.) During said period you will be entitled to:
(1) A base salary at the rate in effect on the Resignation Date
from the Resignation Date until the Termination Date in
accordance with practices and policies in effect on the Effective
Date and to accrue vesting service in all plans and programs in
which you are eligible to participate (including but not limited
to continued vesting in the deferrable restricted stock units you
received under the Albertson's, Inc. Amended and Restated 1995
Stock Based Incentive Plan) as if you were a regular, full-time
employee and officer;
Mr. C. J. Gabriel, Jr.
May 5, 2005
(2) All earned vacation up to the Resignation Date;
(3) Participate in the Company's medical, dental, life insurance
and retirement plans according to the terms and conditions of
such plans (you will receive a COBRA notice as required by law
upon the Termination Date.);
(4) Defer eligible amounts under the 2005 Deferred Compensation
Plan;
(5) Receive benefits (including but not limited to any Company
contribution and any match provided under ASRE during the term of
this agreement pursuant to the terms of the Plan) according to
the terms and conditions of the Company's qualified and
non-qualified retirement plans accrued with respect to your
service through the Termination Date;
(6) Receive the benefits associated with stock options or
restricted stock units in the same manner as an active employee
during the period from the Resignation Date to the Termination
Date and for the period thereafter as set forth in the relevant
agreement or grant under which such options or units were
received. (You understand that you are subject to the Company's
window periods only until the end of the fiscal 2005 first
quarter earnings release, but agree to consult with the Corporate
Secretary prior to trading Company stock during the term of this
agreement.);
(7) Receive up to $50,000 in outplacement services, commencing on
the Resignation Date, provided by Drake Beam Morin, Inc. or such
other firm as is mutually acceptable to the parties; and
(8) Receive financial counseling services as provided by the
Company for other executives through AYCO, commencing on the
Resignation Date and ending on the Termination Date.
B. In addition to the above items, you will be entitled to receive (i) a
lump sum payment equal to $350,000, less applicable taxes (the amount of
the target bonus under the Company's annual bonus plan), which sum will
be payable to you promptly following the expiration of the seven (7) day
period referred to in paragraph 14, and (ii) a bonus for 2005 that will
be calculated pursuant to the annual Corporate Bonus Plan based on
actual Company performance, prorated through the Resignation Date, and
paid when the Company distributes such amounts to bonus eligible
participants; provided any bonus is payable under the Corporate
Incentive Plan.
2
Mr. C. J. Gabriel, Jr.
May 5, 2005
3. Notwithstanding anything to the contrary in this agreement, you
acknowledge that you will not be entitled to or receive any raises, be
granted any additional options or restricted stock, be eligible for any
bonuses except as provided herein, earn or accrue any vacation benefits,
or be eligible to participate in the long-term disability plans
following the Resignation Date. Moreover, you expressly waive all rights
to termination or severance benefits except as may be provided in this
agreement. Such waiver specifically extends to any rights under your
Change of Control Severance Agreement dated as of January 13, 2003 and
your employment letter dated December 24, 2002.
4. Notwithstanding anything to the contrary in this agreement, the parties
agree as follows:
(a) If the Termination Date occurs because you commence employment
with or become an independent contractor for a third party other
than a Competing Business or die prior to May 5, 2006, the
Company will pay you: i) the remaining amount of your base salary
(calculated from the Termination Date through May 5, 2006) in a
lump sum, less applicable taxes, within ten (10) business days of
receipt of the notice required by Paragraph 5 below, and ii) the
prorated bonus payment described in paragraph 2 B (ii) above as
provided therein. and
(b) If the Termination Date occurs prior to May 5, 2006 other than
as set forth in Paragraph 4(a) above, no further sums or
benefits shall be payable to you or your spouse under this
agreement; although the terms of the relevant plans and programs
will continue to apply as to any benefits accrued or vested as
of the Termination Date and subject to your rights under COBRA.
5. You agree to notify the Company in writing if you accept employment with
or accept a position as an independent contractor for any third party,
within five (5) business days of your acceptance. Such notice shall
specify the name and address of the employer or such third party and the
date of commencement or engagement and shall be delivered to the Company
care of the General Counsel at Albertsons, Inc., 250 E. Parkcenter
Blvd., Boise, Idaho 83706.
6. Upon the Resignation date, you shall return to the Company all of the
Company's personal property, including without limitation all documents,
data, computers, phones, personal digital assistants, books, records,
documents, videos, cards, keys, credit cards issued to you, and all
other such personal property of every nature and kind.
7. Nothing in this agreement shall be construed as an admission of
liability by the Company or you; rather, we are resolving any and all
3
Mr. C. J. Gabriel, Jr.
May 5, 2005
matters and disputes regarding your employment and separation from the
Company.
8. You shall not directly or indirectly, in your own name or anonymously,
in public or in private, in any form of communication (including but not
limited to oral, written, or electronic) deprecate, impugn, disparage,
or make any remarks that would tend to or be construed to tend to defame
the Company or any of its employees, members of its board of directors
or agents, nor shall you assist any other person, firm or company in so
doing.
9. You acknowledge that the offer of consideration contained in this
Agreement is contingent upon your compliance with the terms described
herein. You understand and agree that if the Company believes that you
are in violation of the terms of this Agreement, the Company retains the
right to cease providing payments or otherwise carrying out the terms of
the Agreement. Further, you acknowledge and agree that if you violate
the terms of this Agreement, the Company shall have the right to recover
any amounts paid under this Agreement, including the value of any
benefits provided, in addition to any other rights the Company may have
at law or in equity.
10. For twelve (12) consecutive months beginning on the Resignation Date,
regardless of whether the Termination Date has occurred (unless the
Termination Date has occurred because you have been employed by or
become an independent contractor for a Competing Business), you agree to
cooperate with the Company from time to time to provide information or
answer questions with respect to matters with which you are familiar as
reasonably requested by the Chief Executive Officer or his designee.
11. You agree to cooperate with the Company, its affiliates, and each of its
respective attorneys or other legal representatives in connection with
any claim, litigation, or judicial or arbitral proceeding which is now
pending or may hereinafter be brought against the Company by any third
party, including your appearance as a witness at depositions or trials,
without necessity of a subpoena, in order to state truthfully your
knowledge of matters at issue. The Company shall promptly reimburse you
for your actual and reasonable travel or other out-of-pocket expenses
that you may incur in cooperating with the Company in accordance with
this Paragraph.
You also agree that at the Resignation Date and during the twelve month
period thereafter you will furnish the Company with such certificates as
it may from time to time request regarding (i) the truthfulness,
accuracy, and completeness of the Company's books and records with which
you are familiar, (ii) the truthfulness, accuracy and
4
Mr. C. J. Gabriel, Jr.
May 5, 2005
completeness of any filings made by the Company with which you are
familiar, and (iii) the adequacy of the Company's disclosure controls
and internal controls with which you are familiar.
12. Without the express prior written consent of the Company, you shall
never disclose to any person, corporation or other entity, or use for
your own benefit or purposes, any information of a confidential and
proprietary nature obtained from or pertaining to the Company, its
assets or business, including information concerning the Company's
current or future proposed business plans, processes, operation methods,
customer lists, trade secrets, suppliers, employee personnel files and
compensation, financial affairs, or marketing strategies. You further
agree that you will immediately forward to the General Counsel any
business information related to the Company that has been or is directed
to you.
13. You agree that you will not, without the prior written consent of the
Company, on your behalf or on behalf of any person, firm or company,
directly or indirectly, attempt to influence, persuade or induce, or
assist any other person in so persuading or inducing, any employee of
the Company or any subsidiary or affiliate of the Company to give up, or
to not commence, employment or a business relationship with the Company
or any subsidiary or affiliate of the Company. You agree that you will
not, without the prior written consent of the Company, on your behalf or
on behalf of any person, firm or company, directly or indirectly, engage
or cause to be engaged in an employment or a consulting capacity any
employee of the Company or a subsidiary or affiliate of the Company.
14. In consideration of the Company's covenants and agreements contained
herein:
(a) You do hereby knowingly and voluntarily, fully and finally
release and forever discharge the Company, including its related
or affiliated companies, subsidiaries, partnerships, or other
business entities, and its and their present and former
respective officers, directors, shareholders, members, owners,
agents, consultants, employees, representatives, insurers,
successors and assigns (hereinafter referred to collectively as
the "Released Parties"), from any and all claims, charges,
complaints, liens, demands, causes of action, obligations,
damages and liabilities, known or unknown, suspected or
unsuspected that you had, now have, or may hereafter claim to
have against the Released Parties, arising out of or relating in
any way to your employment with or separation from the Company or
otherwise relating to any of the Released Parties from the
beginning of time through the date you sign this agreement. This
release specifically extends to, without
5
Mr. C. J. Gabriel, Jr.
May 5, 2005
limitation, claims or causes of action under any local, state
and federal law governing employment relations, including but
not limited to federal equal employment opportunity laws and
federal and state labor statutes and regulations, including, but
not limited to, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act of 1967, the Family Medical Leave Act, and the
Employee Retirement Income Security Act of 1974, all as amended
from time to time.
With respect to the Released Parties, you expressly waive, to the
extent allowed by law, all rights afforded by any provision under
applicable law which generally provides that a general release
does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor. Notwithstanding any such forgoing
provision or comparable provision, you understand and agree that
this agreement is intended to include all claims, if any, which
you may have and which you do now know or suspect to exist in
your favor against the Released Parties and that this release
extinguishes those claims.
Notwithstanding anything to the contrary contained in this
agreement, you are not releasing any of your rights to the
following:
(i) To indemnification as an officer, director or trustee
pursuant to Section 145 of the Delaware General Corporation Law
or the by-laws of the Company;
(ii) To exercise and obtain, in accordance with the terms of
such options, any and all the benefits appurtenant to the
options to purchase the Company's common stock held by you on
the Effective Date; or
(iii) Any of your rights to enforce this agreement.
(b) You acknowledge that the Company has advised you that you may
consult with an attorney of your choosing prior to signing this
agreement and that you have been given at least twenty-one (21)
days during which to review and consider the provisions of this
agreement, although you may sign and return it sooner if you so
desire. You further acknowledge that you have been advised by the
Company that you have the right to revoke this agreement for a
period of seven (7) days after signing it and that this agreement
shall not become effective or enforceable until such seven (7)
day revocation period has expired. You acknowledge and agree that
if you wish to revoke this agreement, you must do so in writing,
and that such revocation must be signed by you and delivered to
the
6
Mr. C. J. Gabriel, Jr.
May 5, 2005
Company care of the General Counsel at Albertsons, Inc., 250 E.
Parkcenter Blvd., Boise, Idaho 83706, by the end of the seventh
(7th) day after you have signed this agreement. You acknowledge
and agree that, in the event you revoke this agreement, you
shall have no right to receive the payments or benefits
described above.
15. If any provision of this agreement shall be determined under applicable
law to be overly broad in duration, geographical coverage, substantive
scope, or otherwise, such provision shall be deemed narrowed to the
broadest term permitted by applicable law and shall be enforced as so
narrowed. If any provision of this agreement nevertheless shall be
unlawful, void, or unenforceable, it shall be deemed severable from and
shall in no way affect the validity or enforceability of the remaining
provisions of this agreement. This agreement will survive the
performance of the specific arrangements herein. This agreement is
binding on and shall inure to the benefit of the Company and you and
each of our respective heirs, executors, administrators, successors and
assigns.
16. This agreement constitutes the entire agreement relating to the matters
set forth herein between the parties hereto and supercedes any and all
other agreement, understandings, negotiations, or discussions, either
oral or written, express or implied, between the parties hereto. Each
party acknowledges that no representations, inducements, promises,
agreements or warranties, oral or otherwise, have been made by either
party, or anyone acting on either party's behalf, which are not embodied
in this agreement, and that neither party has executed this agreement in
reliance on any such representation, inducement, promise, agreement or
warranty, and that no such representation, inducement, promise,
agreement or warranty not contained in this agreement, including, but
not limited to, any purported supplements, modification, waivers or
terminations of this agreement shall be valid or binding, unless
executed in writing by both you and the Company.
17. This agreement shall be governed by the laws of the State of Idaho.
Please acknowledge your agreement to the terms contained herein by executing and
returning this original signed agreement in the self-addressed envelope provided
herewith.
Very truly yours,
/s/ John Sims
John Sims
Executive Vice President and
General Counsel
7
Mr. C. J. Gabriel, Jr.
May 5, 2005
Agreed and accepted this 5/9/05 day of 2005.
--------
By: /s/ Clarence J. Gabriel
-----------------------------------
Clarence J. Gabriel
8