Exhibit 10.45.1
ALBERTSON'S, INC.
AMENDMENT NO. 1 TO
CHANGE OF CONTROL SEVERANCE AGREEMENT
(FOR VICE PRESIDENTS)
THIS AMENDMENT to the Change of Control Severance Agreement by and
between Albertson's, Inc. (the "Company") and _____________________ (the
"Executive") is entered into as of ____________________.
WHEREAS, the Company and the Executive have previously entered into a
Change of Control Severance Agreement (the "Agreement"); and
WHEREAS, the Company and the Executive wish to make certain amendments
to the Agreement as set forth below.
NOW THEREFORE, in consideration of the agreements set forth herein,
the parties agree as follows:
1. Capitalized terms used herein and not otherwise specifically defined herein
shall have the same meaning given to such terms in the Agreement.
2. A new defined term "Annual Incentive Plan" is hereby inserted at the
beginning of Section 1 of the Agreement as a new Sub-section (aa) as
follows:
"(aa) "Annual Incentive Plan" means a plan providing for an annual bonus or
incentive, in addition to Base Pay, made or to be made in regard to services
rendered to the Company or a Subsidiary, or any successor thereto. "Annual
Incentive Plan" does not include any Long-Term Incentive Plan or any stock
option, stock appreciation, stock purchase, restricted stock or similar plan,
program, arrangement or grant, whether or not provided under an arrangement
described in the preceding sentence."
3. A new defined term "Long-Term Incentive Plan" is hereby inserted after the
definition of "Incumbent Directors" in Section 1 of the Agreement as a new
Sub-section (ii) as follows:
"(ii) "Long-Term Incentive Plan" means the Albertson's, Inc. 2004 Long-Term
Incentive Plan and any other multi-year or multi-performance period cash bonus
or cash incentive plan that provides incentive compensation payable in cash in
regard to services rendered to the Company or a Subsidiary or any successor
thereto. "Long-Term Incentive Plan" does not include any Annual Incentive Plan
or any stock option, stock appreciation, stock purchase, restricted stock or
similar plan, program, arrangement or grant, whether or not provided under an
arrangement described in the preceding sentence."
4. The phrase "or any Subsidiary" is hereby added to the end of the definition
of "Welfare Benefits" in Section 1(p) of the Agreement.
5. Sub-section (a) of Section 4 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(a) If, following the occurrence of a Change in Control, the Company or a
Subsidiary terminates the Executive's employment during the Severance Period
other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or if the
Executive terminates employment pursuant to Section 3(b), provided that the
Executive executes a release substantially in the form typically executed by
senior executives of the Company in connection with employment terminations
prior to the Change in Control, the Company will pay to the Executive the lump
sum amounts described in Annex A within five business days after the Termination
Date and will continue to provide to the Executive the benefits described on
Annex A for the periods described therein; provided, however, that if any lump
sum payment constitutes a "deferral of compensation" under Section 409A of the
Code, the Executive will receive payment of the lump sum amounts described in
Annex A upon the earlier of (A) six months following the Executive's "separation
from service" with the Company (as such phrase is defined in Section 409A of the
Code) or (B) the Executive's death."
6. Sub-section (c) of Section 4 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(c) Unless otherwise expressly provided by the applicable Annual Incentive
Plan, after the occurrence of a Change in Control, the Company will pay in cash
to the Executive a lump sum amount equal to the value of the Executive's annual
bonus for the performance period that includes the date on which the Change in
Control occurred, disregarding any applicable vesting requirements; provided
that such amount will be equal to the product of (i) the target bonus percentage
under the applicable Annual Incentive Plan in effect immediately prior to the
Change in Control times (ii) Base Pay, but prorated to base payment only on the
portion of the Executive's service that had elapsed during the applicable
performance period through the Change in Control. Any such payment will reduced
by any interim annual bonus payments made under the Annual Incentive Plan during
the applicable performance period and will be made within five business days
after the Change in Control; provided, however, that if this lump sum payment
constitutes a "deferral of compensation" under Section 409A of the Code, the
Executive will receive payment of the lump sum amounts described in this
Sub-section (c) upon the earlier of (A) six months following the Executive's
"separation from service" with the Company (as such phrase is defined in Section
409A of the Code) or (B) the Executive's death."
7. Paragraph 1 of Annex A of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(1) A lump sum payment in an amount equal to one times the sum of (A) Base
Pay (at the highest rate in effect for any period within three years prior to
the Termination Date), plus (B) the "target annual bonus amount" (which, for
this purpose, means the product of the Executive's target bonus percentage under
the applicable Annual Incentive Plan in effect immediately prior to the Change
in Control times Base Pay)."
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8. Paragraphs 2 through 4 of Annex A to the Agreement are hereby deleted in
their entirety and replaced with the following:
"(2) For a period of 12 months following the Termination Date (the
"Continuation Period"), the Company will arrange to provide the Executive with
Welfare Benefits substantially similar to those that the Executive was receiving
or entitled to receive immediately prior to the Termination Date (or, if
greater, immediately prior to the reduction, termination or denial described in
Section 1(g)(ii)). In the case of group health plan coverage, the Continuation
Period shall be considered to be a period during which the Executive shall be
eligible for continuation coverage under Section 4980B of the Code, and the
Company shall reimburse the Executive for the amount of the premiums for such
continuation coverage that exceeds the amount that the Executive paid for
participation in such group health plans prior to the Termination Date. The
Executive and the Executive's dependents shall also be eligible for continuation
coverage under the Company's group health plans pursuant to Section 4980B of the
Code following the Continuation Period for such period of time as is required by
Section 4980B of the Code. In addition, the Executive (and the Executive's
dependents) will be permitted to continue coverage under the Company's group
health plans following the end of the period described in the preceding sentence
(as if the end of such period was the termination of the Executive's employment
with the Company) on the same basis (including with respect to cost and length
of continued coverage, but measuring length of coverage from the end of the
Continuation Period) that other employees of the Company who are not parties to
agreements similar to this Agreement (and their dependents) are permitted to
continue coverage under the Company's group health plans under Section 4980B of
the Code following a "qualifying event" with respect to any such employee or
dependent. If and to the extent that any benefit described in this Paragraph 2
is not or cannot be paid or provided under any policy, plan, program or
arrangement of the Company or any Subsidiary, as the case may be, then the
Company will itself pay or provide for the payment to the Executive, the
Executive's dependents and beneficiaries, of such Welfare Benefits along with,
in the case of any benefit described in this Paragraph 2 which is subject to tax
because it is not or cannot be paid or provided under any such policy, plan,
program or arrangement of the Company or any Subsidiary, an additional amount
such that after payment by the Executive, or the Executive's dependents or
beneficiaries, as the case may be, of all taxes so imposed, the recipient
retains an amount equal to such taxes. Notwithstanding the foregoing, (A) if the
Company determines that the provision of Welfare Benefits under this Paragraph 2
is likely to result in negative tax consequences to the Executive, the Company
will use its reasonable best efforts to make other arrangements to provide a
substantially similar benefit to the Executive that does not have such negative
tax consequences, which may include, making a lump sum payment at the earliest
time permitted under Section 409A of the Code, in an amount equal to the
Company's reasonable determination of the present value of any such benefits
that, if provided, would result in negative tax consequences to the Executive
and/or with respect to health plan coverage, providing such benefit through
insurance coverage on the Executive's behalf; and (B) if the benefits to be
provided under this Paragraph 2 are subject to Section 409A of the Code and are
not considered to be "reimbursement arrangements" within the meaning of Proposed
Treasury Regulation 1.409A-1(b)(9)(iv)(A) or any successor provision, the
Company shall pay to the Executive, at the earliest time or times permitted
under Section 409A of the Code, in a lump sum, an amount or amounts equal to the
Company's reasonable determination of the present value of the continuation of
such benefits for 12 months following the Termination Date. For purposes of the
calculation of service or age to determine the
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Executive's eligibility for benefits under any life insurance plan or policy,
the Executive shall be considered to have remained actively employed on a
full-time basis through the end of the 12th month following the Termination
Date. If (i) upon the Termination Date, the Executive is not eligible for
retiree medical benefits under the Company's retiree medical plan and (ii) the
Executive would be eligible for retiree medical benefits under the Company's
retiree medical plan if the Executive was considered to have remained employed
on a full-time basis through the end of the 12th month following the Termination
Date, then the Company will make arrangements to provide the Executive and the
Executive's eligible dependents with benefits substantially similar to the
retiree medical benefits provided under the Company's retiree medical benefit
plan, which may include providing such benefits through insurance coverage on
the Executive's behalf. Without otherwise limiting the purposes or effect of
Section 6 or this Paragraph 2, if the Executive is receiving Welfare Benefits
pursuant to this Paragraph 2, such Welfare Benefits will be reduced to the
extent comparable welfare benefits are actually received by the Executive from
another employer during the Continuation Period following the Executive's
Termination Date, and any such benefits actually received by the Executive will
be reported by the Executive to the Company.
(3) Outplacement services by a firm selected by the Executive, at the
expense of the Company in an amount up to $10,000; provided, however, that all
such outplacement services must be completed, and all payments by the Company
must be made, by December 31 of the second calendar year following the calendar
year in which the Termination Date occurs.
(4) If the Executive was relocated at the request of the Company (including
but not limited to as a result of initial hire) within five years of the
Executive's Termination Date, a lump sum payment, equal in value to the
reimbursement of relocation expenses, which the parties agree is $50,000,
payable at the earliest time permitted under Section 409A of the Code."
9. The following new Section 18 is hereby added to the Agreement:
"18. Section 409A of the Code.
(a) To the extent applicable, it is intended that this Agreement comply
with the provisions of Section 409A of the Code. This Agreement shall be
administered in a manner consistent with this intent, and any provision that
would cause the Agreement to fail to satisfy Section 409A of the Code shall have
no force and effect unless and until such provision is amended to comply with
Section 409A of the Code (which amendment may be retroactive to the extent
permitted by Section 409A of the Code and may be made by the Company without the
consent of the Executive). Any amendment to the timing and receipt of any
payment or benefit provided hereunder shall be effected in a manner that is
intended to be in compliance with Section 409A of the Code. Any reference in
this Agreement to Section 409A of the Code will also include any proposed,
temporary or final regulation, or any other guidance, promulgated with respect
to such section by the U.S. Department of the Treasury or the Internal Revenue
Service.
(b) To the extent that any payment required to be made under this Agreement
is delayed in order to avoid negative tax consequences under Section 409A of the
Code, the
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Company will pay interest on the amount of such payment during the time that
such payment is delayed at an annualized rate of interest equal to 6.2%."
10. Except as amended herein, the Agreement shall remain unchanged and in full
force and effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
ALBERTSON'S, INC.
By:
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[Name and Title]
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[Executive]
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