EXHIBIT 10.61
ALBERTSON'S, INC.
FORM OF NONQUALIFIED STOCK OPTION AGREEMENT
(2004 Equity and Performance Incentive Plan)
THIS ALBERTSON'S, INC. NONQUALIFIED STOCK OPTION AGREEMENT (this
"Agreement") is made between Albertson's, Inc., a Delaware corporation (the
"Company"), and ______ (the "Optionee"), an employee of the Company or of one of
the Company's Subsidiaries.
1. Grant of the Option. The Company, pursuant to its 2004 Equity and
Performance Incentive Plan (the "Plan"), hereby confirms the grant to the
Optionee on _____ (the "Date of Grant") of an option (the "Option") to
purchase ______ shares of the Company's Common Stock (the "Common Stock")
at a price of $_______ per share, subject to the terms and conditions of
the Plan including, but not limited to, the adjustment provisions of
Section 12 thereof. This Option is intended to be a nonqualified stock
option and shall not be treated as an Incentive Stock Option. The Company
has determined that the Optionee holds a position of substantial
responsibility, has demonstrated special capabilities and has contributed
substantially to fiscal performance. The Option granted pursuant to this
Agreement is granted with the expectation that the Optionee will continue
to hold a comparable or higher position, demonstrate such capabilities and
contribute substantially to fiscal performance during the entire ten-year
term of this Agreement.
2. Expiration; Exercisability. The term of this Option will commence on the
Date of Grant, will expire on _______ and, subject to the provisions of
the Plan, is only exercisable prior to expiration of the Option as
follows: [INSERT VESTING SCHEDULE]. To the extent that the Option is
exercisable, it may be exercised in whole or in part. In no event shall
the Optionee be entitled to acquire a fraction of one share of Common
Stock pursuant to the Option. For the purposes of this Agreement,
"continuously employed" shall mean the absence of any interruption or
termination of employment with the Company or with one of the Company's
Subsidiaries. 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 between the Company and its Subsidiaries.
3. Exercise; No Rights as Stockholder.
(a) Notice of Exercise. This Option or any part thereof may only be
exercised in accordance with the terms of the Plan and by giving
notice of exercise to the Compensation Department, specifying the
number of shares to be purchased. The Optionee shall furnish with
each notice of exercise of any portion of the Option such documents
as the Company in its discretion may prescribe, including, without
limitation, any documents necessary to assure compliance with
applicable regulations of any stock exchange or governmental
authority.
(b) Payment of Option Price. The aggregate option price for all shares
purchased pursuant to an exercise of this Option shall be paid by
one or any combination of the following: cash, personal check, wire
transfer, certified or cashier's check or delivery of Common Stock
certificates in accordance with the Plan at the time of such
purchase and prior to issuance of such shares. Any such Common Stock
delivered to the Company in
payment of the option price hereunder, must have been owned by the
Optionee for six months, as provided in Section 4(c) of the Plan.
(c) Rights as Stockholder. The Optionee or the Optionee's Successor
shall have no rights as a stockholder with respect to any shares
covered by the Option until the Optionee or the Optionee's
Successor, as the case may be, shall have become the holder of
record of such shares, and except as provided in Section 12 of the
Plan, no adjustments shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights in respect of such shares for which
the record date is prior to the date on which the Optionee or his or
her Successors shall have become the holder of record thereof.
4. Transfer. The Option confirmed hereby is not transferable or assignable by
the Optionee except by will or the laws of descent or distribution,
pursuant to a domestic relations order (within the meaning of Rule 16a-12
promulgated under the Securities Act of 1933) or to Eligible Transferees,
and for purposes of this Option, such transferee shall be deemed to be the
Optionee.
5. Demotion, Death or Termination of Employment. The effect of a Demotion (as
defined in paragraph 11 of this Agreement) of the Optionee by the Company
or a Subsidiary or of the Optionee's death or termination of employment
with the Company or a Subsidiary shall be as follows:
(a) Involuntary Termination or Demotion. If the employment of the
Optionee is terminated involuntarily by the Company or a Subsidiary
or if the Optionee receives a Demotion, the right to exercise the
Option, whether presently exercisable or not, shall terminate,
notwithstanding any other provisions herein, on the date the Option
expires or three months following such Demotion or involuntary
termination, whichever first occurs; it being understood, however,
that such right to exercise any portion of this Option during such
period shall only exist to the extent such portion of the Option was
exercisable immediately preceding such Demotion or involuntary
termination of employment under the provisions of this Agreement.
Upon expiration of such period, all of the Optionee's rights under
this Option shall lapse and be without further force or effect.
(b) Disability. Subject to paragraph 6 below, if the employment of
Optionee is terminated by reason of Disability (as defined in
paragraph 11 of this Agreement), the right to exercise the Option,
whether presently exercisable or not, shall terminate,
notwithstanding any other provisions herein, on the date the Option
expires or three years from the date of the Disability Determination
(as defined in paragraph 11 of this Agreement), whichever is the
shorter period; it being understood, however, that such right to
exercise any portion of this Option during such period shall only
exist to the extent such portion of the Option was exercisable
immediately preceding the date of the Disability Determination under
the provisions of this Agreement. Upon expiration of such period,
all of the Optionee's rights under this Option shall lapse and be
without further force or effect.
(c) Death.
(i) Subject to paragraph 6 below, if the Optionee shall die while
an employee of the Company or a Subsidiary, this Option may be
exercised by the Optionee's
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Successors at any time prior to the expiration date of the
Option or within three years of the date of the Optionee's
death, whichever is the shorter period; it being understood,
however, that such right to exercise any portion of the Option
during such period shall only exist to the extent such portion
of the Option was exercisable on the date of the Optionee's
death under the provisions of this Agreement. Upon expiration
of such period, all of the Optionee's rights under this Option
shall lapse and be without further force or effect.
(ii) Subject to paragraph 6 below, if the Optionee shall die within
one year after the date of the Disability Determination or
within three months after the Demotion or involuntary
termination of the Optionee's employment, this Option may be
exercised by the Optionee's Successors at any time prior to
the expiration date of this Option or within one year of the
date of the Optionee's death, whichever is the shorter period;
it being understood, however, that such right to exercise any
portion of this Option during such period shall only exist to
the extent such portion of the Option was exercisable on the
date of the Optionee's Demotion or termination of employment
under the provisions of this Agreement. Upon expiration of
such period all of the Optionee's rights under this Option
shall lapse and be without further force or effect.
(d) Voluntary or Other Termination. If the Optionee shall terminate his
or her employment voluntarily or if the Optionee's employment is
terminated for any reason other than as set forth in subparagraphs
(a), (b) or (c) above, the Optionee's rights under this Option shall
terminate on the date of such termination of employment.
(e) Failure to Exercise. To the extent that this Option may be exercised
during a period designated in subparagraphs (a), (b), (c) or (d)
above or in paragraph 6 below, unless exercised within such
designated period, this Option shall thereafter be null and void.
6. Special Termination Provisions. Notwithstanding Section 5 above, the
following post-termination vesting and exercise term provisions shall
apply to this Option: (a) if employment of the Optionee is terminated by
reason of the Optionee's death or Disability at or after age 55 and
provided that the Optionee has ten years of service with the Company
and/or a Subsidiary, this Option shall become immediately exercisable for
the total remaining shares of this Option and may be exercised for three
years or the remainder of the option term, whichever is shorter; and (b)
upon the Optionee's retirement at or after age 55 and provided that the
Optionee has ten years of service with the Company and/or a Subsidiary,
this Option shall become immediately exercisable for the total remaining
shares of this Option and may be exercised for five years or the remainder
of the option term, whichever is shorter.
7. Change in Control. Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (a) upon a Change in Control, the Option
shall become immediately vested and exercisable for the total remaining
shares covered by the Option and (b) if the Optionee's employment is
terminated by the Company prior to a Change in Control at the direction of
a "person" (as defined for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended) who has entered into an agreement with
the Company, the consummation of which will constitute a Change in
Control, the Option shall become immediately exercisable, as of the date
immediately preceding such date of termination, for the total remaining
number of shares underlying the Option.
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8. Tax Withholding. The Optionee agrees to pay to the Company, on demand, the
amount of any taxes that may become applicable upon exercise of this
Option. It shall be a condition to the exercise of the Option that, and
the Company shall not be required to issue any shares unless and until,
the Optionee's obligations under this paragraph 8 have been satisfied. The
tax withholding obligations may be satisfied by the Optionee instructing
the Company to withhold shares of stock otherwise issuable upon exercise
of this Option in order to satisfy the minimum tax withholding amount
permissible under the method that results in the least amount withheld.
9. Compliance with Law. If at any time the Board of Directors of the Company
shall determine, in its discretion, that the listing, registration or
qualification of the shares covered by this Agreement upon any securities
exchange or under any state or Federal law, or the consent or approval of
any governmental regulatory authority, or evidence of the investment
intent of the Optionee or any Successor, is necessary or desirable as a
condition of the exercise of this Option, the Option may not be exercised,
in full or in part, unless and until such listing, registration,
qualification, consent or approval or evidence shall have been effected or
obtained free of any conditions not legally acceptable to the Company.
10. No Right to Employment. This Agreement shall not be construed as giving
the Optionee any right to be retained in the employ of the Company or any
Subsidiary, or to affect or limit in any way the right of the Company or a
Subsidiary to demote the Optionee or to terminate the employment of the
Optionee.
11. Definitions.
(a) "Demotion" shall mean the reduction of the Optionee's salary grade,
job classification or title (the Optionee's job classification or
title shall govern in cases where said job classification or title
are not defined by means of a salary grade) with the Company or a
Subsidiary to a level at which stock options have not been granted
within the three years preceding such demotion.
(b) "Disability" shall mean "disability" as defined in a Disability
Plan.
(c) "Disability Determination" shall mean the determination by the
trustees under a Disability Plan that the Optionee is eligible to
receive disability payments thereunder.
(d) "Disability Plan" shall mean the Albertson's Inc. Employees'
Disability Benefits Plan or a successor plan or the Albertson's
Southern Region Employees' Disability Benefits Plan or a successor
plan.
12. Relationship with the Plan. By execution of this Agreement, the Optionee
agrees to comply with all of the terms and conditions of this Agreement
and the Plan. Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed to such terms in the Plan.
13. Amendment. Any amendment to the Plan shall be deemed to be an amendment to
this Agreement to the extent that the amendment is applicable hereto;
provided, however, that no amendment shall adversely affect the rights of
the Optionee under this Agreement without the Optionee's consent.
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IN WITNESS WHEREOF, this Agreement has been executed as of the ______.
Albertson's, Inc.,
a Delaware corporation
________________________________________
By: Chairman of the Board
________________________________________
By: Secretary
The undersigned Optionee hereby ackowledges receipt of an executed
original of this Agreement and accepts the Option granted hereunder, subject to
the terms and conditions of the Plan and the terms and conditions set forth
herein.
________________________________________
Optionee
The 2004 Albertson's, Inc. Annual Report to Stockholders is available on the
Internet at albertsons.com or upon request to the Corporate Secretary's
Department at 208-395-6300.
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