EXHIBIT 10.60
FORM OF AWARD OF DEFERRABLE RESTRICTED STOCK UNITS
(2004 PLAN)
Pursuant to Section 7 of the Albertson's, Inc. 2004 Equity and Performance
Incentive Plan (the "Plan"), ___________ (the "Participant"), an officer or
other key employee of Albertson's, Inc. or one or more of its Subsidiaries (the
"Company") is hereby awarded units representing ______ shares of common stock,
$1.00 par value, of the Company (the "Deferrable Restricted Stock Units"), on
__________ (the "Date of Grant"), upon the terms and conditions set forth in
this Award Agreement (this "Agreement") and in the Plan.
1. GRANT OF DEFERRABLE RESTRICTED STOCK UNITS; PAYMENT OF DIVIDEND
EQUIVALENTS.
(a) Each Deferrable Restricted Stock Unit represents a hypothetical
share of the Company's common stock, $1.00 par value (the "Stock").
The Deferrable Restricted Stock Units will be credited to an account
established for the Participant.
(b) On each date a cash dividend is distributed with respect to the
Stock, an amount equal to such dividend per share, multiplied by the
number of Deferrable Restricted Stock Units then credited to the
Participant's account, will be paid in cash to the Participant.
2. VESTING.
(a) The Deferrable Restricted Stock Units will vest as follows: [VESTING
SCHEDULE TO BE INSERTED] (each, a "Vesting Date"), provided that the
Participant has been continuously employed as an employee of the
Company from the Date of Grant through the applicable Vesting Date.
For purposes of this Agreement, "continuously employed" shall mean
the absence of any interruption or termination of employment with
the Company or with a person or entity controlling, controlled by or
under common control with the Company (an "Affiliate"). Continuous
employment shall not be considered interrupted or terminated in the
case of sick leave, military leave or any other leave of absence
approved by the Company or in the case of transfers between
locations of the Company or its Affiliates.
(b) Notwithstanding Section 2(a) above, all Deferrable Restricted Stock
Units subject to this Agreement will become immediately vested upon
the occurrence of a Change in Control of the Company.
(c) Except as provided in Section 2(d) below, upon a termination of
employment under involuntary or voluntary terms, including
retirement, any Deferrable Restricted Stock Units that were not
vested as of such date of termination of employment will be
forfeited and the Company will have no further obligation with
respect to thereto.
(d) Upon the Participant's termination of employment for reasons of
death or permanent disability, a pro-rata portion of the Deferrable
Restricted Stock Units will vest. The pro-rata portion will be
calculated by multiplying the full number of Deferrable Restricted
Stock Units granted hereunder by a fraction, the numerator of which
is the number of complete weeks from the Date of Grant to the date
of the Participant's death or permanent disability determination,
and the denominator of which is 260 (representing the total number
of weeks in the vesting period). The excess of the number of
Deferrable Restricted Stock Units resulting from this calculation
over the number of Deferrable Restricted Stock Units that have
previously vested pursuant to Section 2(a) will become vested on the
date of the Participant's death or permanent disability.
3. NON-ASSIGNABLE/NON-TRANSFERABLE. This Agreement and the Deferrable
Restricted Stock Units are not assignable or transferable by the
Participant (voluntarily or by operation of law) prior to issuance as set
forth in Section 4 below; provided, however, that no provision in this
Agreement will prevent the transfer of the Deferrable Restricted Stock
Units or the shares of Stock underlying such Deferrable Restricted Stock
Units by will or the laws of descent and distribution in the event of the
death of the Participant.
4. ISSUANCE OF THE STOCK.
(a) Except as provided in Section 4(c) or Section 4(d) below, the
Company will issue to the Participant (or to the estate, guardian or
beneficiary of the Participant, as the case may be) the Stock
underlying the vested Deferrable Restricted Stock Units upon the
later of (i) each Vesting Date or (ii) the specified payout date
elected by the Participant in an election (an "Initial Election")
made at the time of grant and in accordance with Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code"), if any
("Issue Dates").
(b) The Participant may elect, in the manner and form prescribed by the
Company (the "Deferral Election"), to delay the issuance of the
Stock pursuant to Section 4(a).
(i) If permitted by Section 409A of the Code, such Deferral
Election may apply to less than all of the shares of Stock
underlying the Participant's Deferrable Restricted Stock
Units.
(ii) Unless otherwise permitted in accordance with Section 409A of
the Code, a Deferral Election will not be effective unless (A)
in the case of a distribution made by reason of a specified
time or a fixed schedule, the Deferral Election is made not
less than twelve months prior to the first date that issuance
would have been made absent such Deferral Election, (B) the
initial issuance under such Deferral Election will be made no
less than five years from the date payment would have been
made absent such Deferral Election (excluding issuance on
account of the death or disability of the Participant), and
(C) such Deferral Election will not take effect until twelve
months after the date on which the Deferral Election is made.
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(c) If the Participant makes an Initial Election (or a Deferral Election
in accordance with Section 4(b) above), the Company will issue to
the Participant (or to the estate, guardian or beneficiary of the
Participant, as the case may be) the Stock underlying the vested
Deferrable Restricted Stock Units so deferred upon the date selected
by the Participant in the Initial Election (or Deferral Election, if
applicable). Notwithstanding the foregoing, in the event of a Change
in Control:
(i) The Company will immediately issue to the Participant the
Stock underlying those Deferrable Restricted Stock Units that
become fully vested solely due to the occurrence of the Change
in Control pursuant to Section 2(b);
(ii) The Company will immediately issue to the Participant the
Stock underlying those vested Deferrable Restricted Stock
Units that meet the "short-term deferral" exception set forth
in Q/A 4(c) of Internal Revenue Service Notice 2005-1 or any
subsequent guidance promulgated under Section 409A of the
Code; and
(iii) The Company will issue to the Participant (or to the estate,
guardian or beneficiary of the Participant, as the case may
be), the Stock underlying the remaining vested Deferrable
Restricted Stock Units upon the earliest of (A) the occurrence
of a "change in ownership or effective control" of the
Company, or a "change in the ownership of a substantial
portion of the assets" of the Company (as such terms are
defined in Section 409A of the Code), (B) the Participant's
"separation from service" (within the meaning of Section 409A
of the Code); provided, however, that if the Participant is a
"specified employee" of the Company or an Affiliate on the
date of the Participant's separation from service, the Company
will issue the Stock underlying the vested Deferrable
Restricted Stock Units to the Participant six months following
the Participant's separation from service (or, if earlier, the
Participant's date of death), or (C) the date selected by the
Participant in the Initial Election (or Deferral Election, if
applicable).
(d) Notwithstanding any provision of this Agreement to the contrary, the
Company will issue to the Participant (or to the estate, guardian or
beneficiary of the Participant, as the case may be) the Stock
underlying the vested Deferrable Restricted Stock Units immediately
upon the Participant's death or becoming disabled (within the
meaning of Section 409A of the Code).
(e) Except to the extent provided by Section 409A and permitted by the
Company, no Stock may be issued to the Participant at a time earlier
than otherwise expressly provided in this Agreement.
(f) The Company's obligations to the Participant with respect to the
Deferrable Restricted Stock Units will be satisfied in full upon the
issuance of shares of Stock corresponding to such Deferrable
Restricted Stock Units.
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5. DETRIMENTAL ACTIVITY.
(a) If the Participant, either during employment by the Company or
within one year after termination of such employment, shall engage
in any Detrimental Activity (as defined below), and the Board of
Directors of the Company shall so find, and (except for any
Detrimental Activity described in Section 5(c)(iv)(B)) the
Participant shall not have ceased all Detrimental Activity within 30
days after notice of such finding given within one year after
commencement of such Detrimental Activity, the Participant shall:
(i) Forfeit any Deferrable Restricted Stock Units then held by the
Participant;
(ii) Return to the Company, all shares of Stock that the
Participant has not disposed of that were issued to the
Participant pursuant to this Agreement within a period of one
year prior to the date of the commencement of such Detrimental
Activity; and
(iii) With respect to any shares of Stock that the Participant has
disposed of that were issued to the Participant pursuant to
this Agreement within a period of one year prior to the date
of the commencement of such Detrimental Activity, pay to the
Company in cash the closing price of the shares of such Stock
on the New York Stock Exchange on the date of issuance
pursuant to this Agreement (or on the last trading day prior
to such issuance, if there was no trading on the date of
issuance).
(b) To the extent that such amounts are not paid to the Company, the
Company may, in addition to all other remedies at law or in equity,
set off the amounts so payable to it against any amounts that may be
owing from time to time by the Company to the Participant, whether
as wages, deferred compensation or vacation pay or in the form of
any other benefit or for any other reason.
(c) For purposes of this Agreement, the term "Detrimental Activity"
shall include:
(i) Without the prior written consent of the Company, engaging in
any activity, as an employee, director, principal, agent, or
consultant for another entity, and in a capacity, that
directly competes with the Company in any business activity
(or in any business activity which was under active
development while the Participant was employed by the Company
if such development is being actively pursued by the Company
during the one-year period referred to in this Section 5) for
which the Participant has had any direct responsibility and
direct involvement during the last two years of his or her
employment with the Company, in any territory in which the
Company engages in such business activity.
(ii) Soliciting any employee of the Company to terminate his or her
employment with the Company.
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(iii) The disclosure to anyone outside the Company, or the use in
other than the Company's business, without prior written
authorization from the Company, of any confidential,
proprietary or trade secret information or material relating
to the business of the Company, acquired by the Participant
during his or her employment with the Company or while acting
as a consultant for the Company thereafter.
(iv) Activity that results in termination for "cause". For the
purposes of this Section, termination for "cause" shall mean a
termination:
(A) Due to the Participant's willful and continuous gross
neglect of his or her duties for which he or she is
employed; or
(B) Due to an act of dishonesty on the part of the
Participant constituting a felony resulting or intended
to result, directly or indirectly, in his or her gain
for personal enrichment at the expense of the Company.
6. RIGHTS OF PARTICIPANT.
(a) The Participant will not have any rights as a stockholder with
respect to any shares of Stock issuable pursuant to the Deferrable
Restricted Stock Units until the date on which a stock certificate
(or certificates) representing such Stock is issued.
(b) The obligations of the Company under this Agreement will be merely
that of an unfunded and unsecured promise of the Company to deliver
shares of Stock in the future and to pay cash in respect of
dividends from time to time, and the rights of the Participant will
be no greater than that of an unsecured general creditor. No assets
of the Company will be held or set aside as security for the
obligations of the Company under this Agreement.
7. ADJUSTMENTS. The number of shares of Stock issuable pursuant to the
Deferrable Restricted Stock Units is subject to adjustment as provided in
Section 12 of the Plan.
8. AMERICAN JOBS CREATION ACT.
(a) It is intended that this Agreement and its administration comply
with the provisions of Section 409A of Code. Notwithstanding any
provision in this Agreement to the contrary, this Agreement will be
interpreted, applied and to the minimum extent necessary, amended in
the sole discretion of the Company, so that the Agreement does not
fail to meet, and is operated in accordance with the requirements of
paragraphs (2), (3) and (4) of Section 409A of the Code.
(b) It is intended that, to the extent applicable, all Participant
elections hereunder will comply with Section 409A of the Code. The
Company is authorized to adopt rules or regulations deemed necessary
or appropriate in connection therewith to anticipate and/or comply
with the requirements thereof.
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9. NOTICES. Notices hereunder will be mailed or delivered to the Company,
Compensation Department, Albertson's, Inc., P.O. Box 20, Boise, Idaho
83726 and will be mailed to or delivered to the Participant at the
Participant's address set forth in the payroll records of the Company, or
in either case, at such other address as one party may subsequently
furnish to the other party in writing.
10. NO EMPLOYMENT RIGHTS. This award will not confer upon the Participant any
right with respect to continuance of employment by the Company, nor will
it interfere in any way with any right of the Company to terminate the
Participant's employment at any time.
11. GOVERNING LAW. The laws of the State of Delaware will govern this award
and all matters related hereto.
12. SEVERABILITY. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable
from the other provisions hereof, and the remaining provisions hereof
shall continue to be valid and fully enforceable.
13. INTERPRETATION. Any reference in this Agreement to Section 409A of the
Code will also include any proposed, temporary or final regulations, or
any other guidance, promulgated with respect to such Section by the U.S.
Department of the Treasury or the Internal Revenue Service. Except as
expressly provided in this Agreement, capitalized terms used herein will
have the meaning ascribed to such terms in the Plan.
14. SUBJECT TO PLAN. This award is subject to the terms of the Plan. To the
extent any provision of this Agreement violates or is inconsistent with an
express provision of the Plan, the Plan provision will govern and any
inconsistent provision in this Agreement will have no force or effect.
15. TAXES. The Participant will pay to the Company, on demand, any taxes the
Company reasonably determines it is required to withhold under applicable
tax laws with respect to the Deferrable Restricted Stock Units or the
issuance of Stock pursuant to this award. To the extent that Stock is
issuable to the Participant when the tax withholding obligation arises,
the tax withholding obligation shall be satisfied by the Company
withholding shares of Stock otherwise issuable pursuant to this award in
order to satisfy the minimum tax withholding amount permissible under the
method that results in the least amount withheld.
16. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which will be an original but all of which together will represent
one and the same agreement.
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17. AMENDMENTS/ENTIRE AGREEMENT. Any amendment to the Plan will be deemed to
be an amendment to this Agreement. Except as provided in this Agreement,
no amendment will adversely affect the number or value of the
Participant's Deferrable Restricted Stock Units without the Participant's
written consent. This Agreement cannot be changed or terminated orally.
The Agreement and the Plan contain the entire agreement between the
parties relating to the subject matter hereof.
PARTICIPANT ALBERTSON'S, INC.
_____________________________ By:___________________________
Title:
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