-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KY0g1Life0bfN+KlHis2CG/GyZrwY4ftjJNnOwVTQ+cILU1Wo7RrV6obm475DQuH w9TImPxeTaF/j0r9EOGZFQ== 0000003333-03-000071.txt : 20030930 0000003333-03-000071.hdr.sgml : 20030930 20030930163036 ACCESSION NUMBER: 0000003333-03-000071 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20030929 ITEM INFORMATION: Regulation FD Disclosure FILED AS OF DATE: 20030930 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALBERTSONS INC /DE/ CENTRAL INDEX KEY: 0000003333 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 820184434 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06187 FILM NUMBER: 03917949 BUSINESS ADDRESS: STREET 1: 250 PARKCENTER BLVD STREET 2: P O BOX 20 CITY: BOISE STATE: ID ZIP: 83726 BUSINESS PHONE: 2083956200 MAIL ADDRESS: STREET 1: 250 PARKCENTER BLVD STREET 2: P O BOX 20 CITY: BOISE STATE: ID ZIP: 83726 8-K 1 abs8k32003txt.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) September 26, 2003 ------------------ Albertson's, Inc. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Charter) Delaware 1-6187 82-0184434 - -------------------------------------------------------------------------------- (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) 250 Parkcenter Boulevard, P.O. Box 20, Boise, Idaho 83726 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (208) 395-6200 --------------------------- ITEM 5. Other Events. ------------- In 1997, the Board of Directors of Albertson's, Inc. (the "Company") adopted a Stockholder Rights Plan, dated as of December 9, 1996 (the "Rights Agreement"), between the Company and American Stock Transfer & Trust Company, successor to ChaseMellon Shareholder Services, L.L.C., as rights agent, which was amended effective August 2, 1998, March 16, 1999 and February 26, 2002. The Rights Agreement provides that one right (a "Right") will be attached to each share of common stock, par value $1.00 per share, of the Company (the "Common Stock"). On September 26, 2003, the Company and the rights agent entered into Amendment No. 3 to the Rights Plan. The following summarizes the Rights Agreement, as so amended. The Rights Agreement and the amendments thereto are incorporated herein by this reference. The description of the Rights contained herein is qualified in its entirety by reference to such documents. The Rights were issued initially to holders of record of the Common Stock on March 21, 1997 (the "Record Date"). Each Right entitles the registered holder to purchase from the Company one one-thousandth of a share of Series A Junior Participating Preferred Stock, par value $1.00 per share, of the Company (the "Preferred Stock") at a purchase price of $160 (the "Purchase Price"), subject to adjustment. Initially, the Rights will be attached to all outstanding shares of Common Stock, and no separate certificates in respect of the Rights ("Rights Certificates") will be distributed. All certificates representing shares of Common Stock issued by the Company following the Record Date will bear a legend indicating that the Rights are attached to such shares of Common Stock. Shares issued prior to the Record Date will be deemed to have Rights attached, notwithstanding the absence of a legend on the Common Stock certificate. The Rights will separate from the Common Stock and a Distribution Date will occur upon the earlier of (i) 10 days following a public announcement that a person or group of affiliated or associated persons (an "Acquiring Person") has acquired, or obtained the right to acquire, beneficial ownership of 15% or more of the outstanding shares of Common Stock (the "Stock Acquisition Date"), or (ii) 10 business days (or such later date as may be determined by the Board of Directors) following the commencement of a tender offer or exchange offer that would result in a person or group beneficially owning 15% or more of the outstanding shares of Common Stock (the earlier of (i) and (ii), the "Distribution Date"). Until the Distribution Date, (i) the Rights will be evidenced by the Common Stock certificates and will be transferred with and only with such certificates, (ii) new Common Stock certificates will contain a notation incorporating the Rights Agreement by reference and (iii) the surrender for transfer of any certificates for Common Stock outstanding will also constitute the transfer of the Rights associated with the Common Stock represented by such certificates. The Rights are not exercisable until the Distribution Date and will expire at the close of business on March 21, 2007, unless earlier redeemed or extended by the Company. As soon as practicable after the Distribution Date, Rights Certificates will be mailed to holders of record of the Common Stock as of the close of business on the Distribution Date and, thereafter, the separate Rights Certificates alone will represent the Rights. Except as otherwise determined by the Board of Directors, only shares of Common Stock issued prior to the Distribution Date will be issued with Rights. In the event that any person becomes an Acquiring Person, each holder of a Right will thereafter have the right to receive, upon exercise, Common Stock (or, in certain circumstances, cash, property or other securities of the Company) having a value equal to two times the Purchase Price. Notwithstanding the foregoing, following the occurrence of an event set forth in this paragraph (the "Flip-in Event"), all Rights that are, or (under certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring Person will be null and void. However, Rights are not exercisable following the occurrence of a Flip-in Event until such time as the Rights are no longer redeemable by the Company, as set forth below. In the event that following the Stock Acquisition Date, (i) the Company engages in a merger or business combination transaction in which the Company is not the surviving corporation; (ii) the Company engages in a merger or business combination transaction in which the Company is the surviving corporation and the Common Stock of the Company is changed or exchanged; or (iii) 50% or more of the Company's assets or earning power is sold or transferred, each holder of a Right (except Rights which have previously been voided as set forth above) will thereafter have the right to receive, upon exercise of the Right, Common Stock of the acquiring company having a value equal to two times the Purchase Price. The Purchase Price payable, and the number of one one-thousandths of a share of Preferred Stock or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Preferred Stock, (ii) if holders of the Preferred Stock are granted certain rights or warrants to subscribe for Preferred Stock or convertible securities at less than the Current Market Price (as defined in the Rights Agreement) of the Preferred Stock, or (iii) upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular quarterly cash dividends) or of subscription rights or warrants (other than those referred to above). With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments amount to at least 1% of the Purchase Price. No fractional Rights will be issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred Stock on the last trading date prior to the date of exercise. Generally, at any time until ten days following the Stock Acquisition Date, the Company may redeem the Rights in whole, but not in part, at a price of $.001 per Right (the "Redemption Price"). Immediately upon the action of the Board of Directors ordering redemption of the Rights, the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. Any of the provisions of the Rights Agreement may be amended by the Board of Directors prior to the Distribution Date. The foregoing notwithstanding, no amendment may be made to the Rights Agreement at a time when the Rights are not redeemable, except to cure any ambiguity or correct or supplement any provision contained in the Rights Agreement which may be defective or inconsistent with any other provision therein. As of July 31, 2003, there were 366,915,811 shares of Common Stock outstanding and no shares of Common Stock in the Company's treasury. As of July 31, 2003, options to purchase 30,837,004 shares of Common Stock and deferrable or deferred stock units distributable for 4,029,108 shares of Common Stock were outstanding. So long as the Rights are attached to the Common Stock, one Right (as such number may be adjusted pursuant to the provisions of the Rights Agreement) will be deemed to be delivered for each share of Common Stock issued or transferred by the Company in the future. In addition, following the Distribution Date and prior to the expiration or redemption of the Rights, the Company may issue Rights when it issues Common Stock only if the Board of Directors deems it to be necessary or appropriate, or in connection with the issuance of shares of Common Stock pursuant to the exercise of stock options or under employee plans or upon the exercise, conversion or exchange of certain securities of the Company. A total of 3,000,000 shares of Preferred Stock are reserved for issuance upon exercise of the Rights. The Rights may have certain anti-takeover effects. The Rights will cause substantial dilution to a person or group that attempts to acquire the Company in a manner which causes the Rights to become discount Rights unless the offer is conditional on a substantial number of Rights being acquired. The Rights should not interfere with any merger or other business combination approved by the Board of Directors since the Board may, at its option, at any time until ten days following the Stock Acquisition Date redeem all, but not less than all, of the then outstanding Rights at the Redemption Price. ITEM 7. Financial Statements and Exhibits. --------------------------------- (c) Exhibits: --------- Number Exhibit ------ ------- 4.1 Stockholder Rights Agreement, dated as of December 9, 1996, between Albertson's, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent, which includes the Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock as Exhibit A, the Form of Rights Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Stock as Exhibit C. 4.2 Amendment to Stockholder Rights Agreement, dated as of August 2, 1998. 4.3 Second Amendment to Stockholder Rights Agreement, dated as of March 16, 1999. 4.4 Amendment to Certificate of Designation, Preferences and Rights of Series A Junior Participating Stock of Albertson's, Inc. 4.5 Agreement of Substitution and Amendment of Common Shares Rights Agreement, effective as of February 26, 2002. 4.6 Third Amendment to Stockholder Rights Agreement, dated as of September 26, 2003. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized. ALBERTSON'S, INC. By: /s/ John R. Sims ----------------- Name: John R. Sims Title: Executive Vice President and General Counsel Dated: September 29, 2003 INDEX TO EXHIBITS ----------------- Number Exhibit ------ ------- 4.1* Stockholder Rights Agreement, dated as of December 9, 1996, between Albertson's, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent, which includes the Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock as Exhibit A, the Form of Rights Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Stock as Exhibit C. 4.2** Amendment to Stockholder Rights Agreement, dated as of August 2, 1998. 4.3*** Second Amendment to Stockholder Rights Agreement, dated as of March 16, 1999. 4.4*** Amendment to Certificate of Designation, Preferences and Rights of Series A Junior Participating Stock of Albertson's, Inc. 4.5 Agreement of Substitution and Amendment of Common Shares Rights Agreement, effective as of February 26, 2002. 4.6 Third Amendment to Stockholder Rights Agreement, dated as of September 26, 2003. - ------------------------- * Incorporated by reference to the Registration Statement on Form 8-A filed by Albertson's, Inc. with the Commission on March 4, 1997, as amended File No. 1-06187). ** Incorporated by reference to the Registration Statement on Form 8-A filed by Albertson's, Inc. with the Commission on August 5, 1998 (File No. 1-06187). *** Incorporated by reference to Amendment No. 2 to the Registration Statement on Form 8-A filed by Albertson's, Inc. with the Commission on March 24, 1999 (File No. 1-06187). EX-99 3 abs8kex4-5txt.txt EXHIBIT 4.5 TO 8-K Exhibit 4.5 AGREEMENT OF SUBSTITUTION AND AMENDMENT OF COMMON SHARES RIGHTS AGREEMENT This Agreement of Substitution and Amendment is entered into on September 26, 2003 to be effective as of February 26, 2002, by and between Albertson's, Inc., a Delaware corporation (the "Company"), and American Stock Transfer and Trust Company, a New York banking corporation ("AST"). RECITALS A. On or about December 6, 1996, the Company entered into a common shares rights agreement, which was amended on August 2, 1998 and March 16, 1999 (the "Rights Agreement") with ChaseMellon Shareholder Services, L.L.C. (the "Predecessor Agent") as rights agent. B. The Company wishes to remove the Predecessor Agent and substitute AST as rights agent pursuant to Section 21 of the Rights Agreement. C. The Company has given the Predecessor Agent notice of the removal of the Predecessor Agent as rights agent. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of other consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Section 21 of the Rights Agreement is hereby amended to provide that any successor rights agent shall, at the time of its appointment as rights agent, have a combined capital and surplus of at least $10 million, rather than $50 million. 2. The Company hereby appoints AST as rights agent pursuant to Section 21 of the Rights Agreement, to serve in that capacity for the consideration and subject to all of the terms and conditions of the Rights Agreement. 3. AST hereby accepts the appointment as rights agent pursuant to Section 21 of the Rights Agreement and agrees to serve in that capacity for the consideration and subject to all of the terms and conditions of the Rights Agreement. 4. From and after February 26, 2002, the effective date hereof, each and every reference in the Rights Agreement to a "Rights Agent" shall be deemed to be a reference to AST. 5. Section 26 of the Rights Agreement is amended to provide that notices or demands shall be addressed as follows (until another address is filed): If to the Company: Albertson's, Inc. 250 Parkcenter Boulevard Boise, Idaho 83726 Attention: Corporate Secretary If to AST: American Stock Transfer & Trust Company 59 Maiden Lane New York, NY 10038 Attention: Shareholder Services Division 6. Except as expressly modified herein, the Rights Agreement shall remain in full force and effect. 7. This Agreement of Substitution and Amendment may be executed in one or more counterparts, each of which shall together constitute one and the same document. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed to be effective as of February 26, 2002. ALBERTSON'S, INC. By: /s/ Kaye L. O'Riordan --------------------- Kaye L. O'Riordan Vice President and Corporate Secretary AMERICAN STOCK TRANSFER & TRUST COMPANY By: /s/ Joseph F. Wolf ------------------ Name: Joseph F. Wolf Title: Vice President EX-99 4 abs8k32003ex4-6.txt EXHIBIT 4.6 TO FORM 8-K Exhibit 4.6 THIRD AMENDMENT TO THE RIGHTS AGREEMENT BETWEEN ALBERTSON'S, INC. AND AMERICAN STOCK TRANSFER & TRUST COMPANY This agreement, made this 26th day of September, 2003, between Albertson's, Inc. ("Albertson's") and American Stock Transfer & Trust Company ("AST&TC"), successor to ChaseMellon Shareholder Services, L.L.C. ("CMSS"), as rights agent, amends the Rights Agreement, dated as of December 9, 1996, between Albertson's and CMSS (the "Rights Agreement"), as heretofore amended. WHEREAS, the Board of Directors of Albertson's believes it is in the best interests of the shareholders of Albertson's to amend the Rights Agreement as set forth below, and WHEREAS, under the present circumstances, Section 27 of the Rights Agreement permits the amendment of the Rights Agreement, and WHEREAS, Albertson's has directed AST&TC to enter into this agreement, NOW THEREFORE, intending to be legally bound, Albertson's and AST&TC hereby agree that the Rights Agreement and the exhibits thereto shall be amended as set forth below. 1. Section 1(a) of the Rights Agreement is hereby amended in its entirety to read as follows: "Acquiring Person" shall mean any Person who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of the Company, or of any Subsidiary of the Company, (iv) any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan, or (v) any Person who becomes the Beneficial owner of fifteen percent (15%) or more of the shares of Common Stock then outstanding as a result of a reduction in the number of shares of Common Stock outstanding, unless and until such Person thereafter acquires beneficial ownership of additional shares of Common Stock representing one percent (1%) or more of the shares of Common Stock then outstanding, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Common Stock are treated equally, or (vi) any such Person who has reported or is required to report such ownership (but less than 20%) on Schedule 13G under the Securities and Exchange Act of 1934, as amended and in effect on the date of the Agreement (the "Exchange Act") (or any comparable or successor report) or on Schedule 13D under the Exchange Act (or any comparable or successor report) which Schedule 13D does not state any intention to or reserve the rights to control or influence the management or policies of the Company or engage in any of the actions specified in Item 4 of such schedule (other than the disposition of the Common Stock) and, within 10 Business Days of being requested by the Company to advise it regarding the same, certifies to the Company that such Person acquired shares of Common Stock in excess of 14.9% inadvertently or without knowledge of the terms of the Rights and who or which, together with all Affiliates and Associates of such Person, thereafter does not acquire beneficial ownership of additional shares of Common Stock while the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Common Stock are treated equally, provided, however, -------- -------- that if the Person requested to so certify fails to do so within 10 Business Days, then such Person shall become an Acquiring Person immediately after such 10-Business-Day period." 2. Section 1(b) of the Rights Agreement, which defines the term "Acquisition Transaction," is hereby deleted in its entirety, all cross-references to such section are deemed to be deleted, all subsequent subsections of Section 1 are renumbered accordingly, and all cross-references to such renumbered sections are changed to refer to such subsections as if renumbered. 3. Section 1(d) of the Rights Agreement, which defines the term "Beneficial Owner," is hereby amended in its entirety to read as follows: "(d) A Person shall be deemed the "Beneficial Owner" of, and shall be deemed to "beneficially own," any securities: (i) which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has the right to acquire (whether such right is exercisable immediately or after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; provided, however, that a Person shall not be deemed the "Beneficial Owner" of, or to "beneficially own," (A) securities tendered pursuant to a tender or exchange offer made by such Person or any of such Person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange, (B) securities issuable upon exercise of Rights at any time prior to the occurrence of a Triggering Event or (C) securities issuable upon exercise of Rights from and after the occurrence of a Triggering Event which Rights were acquired by such Person or any of such Person's Affiliates or Associates prior to the Distribution Date or pursuant to Section 3(a) or Section 22 hereof (the "Original Rights") or pursuant to Section 11(i) hereof in connection with an adjustment made with respect to any Original Rights; (ii) which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has the right to vote or dispose of or has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing; provided, however, that a Person shall not -------- ------- be deemed the "Beneficial Owner" of, or to "beneficially own," any security under this subparagraph (ii) as a result of an agreement, arrangement or understanding to vote such security if such agreement, arrangement or understanding: (A) arises solely from a revocable proxy given in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable provisions of the General Rules and Regulations under the Exchange Act, and (B) is not reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report); or (iii) which are beneficially owned, directly or indirectly, by any other Person (or any Affiliate or Associate thereof) with which such Person (or any of such Person's Affiliates or Associates) has any agreement, arrangement or understanding (whether or not in writing), for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in the proviso to subparagraph (ii) of this paragraph (d)) or disposing of any voting securities of the Company; provided, however, that nothing in this paragraph (d) shall cause a -------- ------- Person engaged in business as an underwriter of securities to be the "Beneficial Owner" of, or to "beneficially own," any securities acquired through such Person's participation in good faith in a firm commitment underwriting until the fortieth day after the date of such acquisition, and then only if such securities continue to be owned by such Person on such fortieth day." 4. Section 1(cc) of the Rights Agreement, which defines the term "Stock Acquisition Date," is hereby amended in its entirety to read as follows: "`Stock Acquisition Date' shall mean the first date of public announcement by the Company that an Acquiring Person has become such." 5. The first sentence of Section 3(a) of the Rights Agreement is hereby amended in its entirety to read as follows: "Until the earlier of (i) the close of business on the tenth day after the Stock Acquisition Date (or, if the tenth day after the Stock Acquisition Date occurs before the Record Date, the close of business on the Record Date), or (ii) the close of business on the tenth day (or such later date as the Board shall determine) after the date that a tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) is first published or sent or given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if upon consummation thereof, such Person would become an Acquiring Person, (the earlier of (i) and (ii) being herein referred to as the "Distribution Date"), (x) the Rights will be evidenced (subject to the provisions of paragraphs (b) and (c) of this Section 3) by the certificates for the Common Stock registered in the names of the holders of the Common Stock (which certificates for Common Stock shall be deemed also to be certificates for Rights) and not by separate certificates, and (y) the Rights will be transferable only in connection with the transfer of the underlying shares of Common Stock (including transfer to the Company)." 6. Section 11(a)(ii) of the Rights Agreement is hereby amended to read in its entirety as follows: "(ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then, promptly following the occurrence of such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the "Purchase Price" for each Right and for all purposes of this Agreement) by fifty percent (50%) of the Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common Stock on the date of such first occurrence (such number of shares being referred to herein as the "Adjustment Shares")." 7. Section 23 of the Rights Agreement is hereby amended to read in its entirety as follows: "Section 23. Redemption and Termination. (a) The Board may, at its option, at any time prior to the earlier of (i) the close of business on the tenth day following the Stock Acquisition Date (or, if the Stock Acquisition Date has already occurred prior to the Record Date, the close of business on the tenth day following the Record Date), or (ii) the Final Expiration Date, redeem all but not less than all the then outstanding Rights at a redemption price of $.001 per Right, as such amount may be appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such redemption price being hereinafter referred to as the "Redemption Price"). Notwithstanding anything contained in this Agreement to the contrary, the Rights shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event until such time as the Company's right of redemption hereunder has expired. The Company may, at its option, pay the Redemption Price in cash, shares of Common Stock (based on the Current Market Price, as defined in Section 11(d)(i) hereof, of the Common Stock at the time of redemption) or any other form of consideration deemed appropriate by the Board. (b) Immediately upon the action of the Board ordering the redemption of the Rights, evidence of which shall be filed by the Company with the Rights Agent, and without any further action and without any notice, the right to exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price for each Right so held. Promptly after the action of the Board ordering the redemption of the Rights, the Company shall give notice of such redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such notice to all such holders at each holder's last address as it appears upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Stock. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which the payment of the Redemption Price will be made." 8. Section 26 of the Rights Agreement is hereby amended by deleting the name and address of CMSS therein and replacing it with the following: "American Stock Transfer & Trust Company 59 Maiden Lane New York, NY 10038 Attention: Joe Wolf". 9. Section 27 of the Rights Agreement is hereby amended in its entirety to read as follows: "Section 27. Supplements and Amendments. Prior to the Distribution Date, the Company may in its sole and absolute discretion, and the Rights Agent shall, if the Company so directs, supplement or amend any provision of this Agreement without the approval of any holders of Rights or certificates representing shares of Common Stock. From and after the Distribution Date, the Company may in its sole and absolute discretion, and the Rights Agent shall, if the Company so directs, supplement or amend this Agreement without the approval of any holders of Rights in order (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, (iii) to shorten or lengthen any time period hereunder, or (iv) to change or supplement the provisions hereunder in any manner which the Company may deem necessary or desirable and which shall not adversely affect the interests of the holders of Rights Certificates (other than an Acquiring Person or an Affiliate or Associate of the Acquiring Person) and no such supplement or amendment shall cause the Rights again to become redeemable or cause this Agreement again to become supplementable or amendable otherwise than in accordance with the provisions of this sentence. Upon the delivery of a certificate from an officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent shall execute such supplement or amendment; provided, however, that the failure or refusal of the -------- ------- Rights Agent to execute such supplement or amendment will not affect the validity of any supplement or amendment adopted by the Board of Directors of the Company, any of which will be effective in accordance with the terms thereof. Prior to the Distribution Date, the interests of the holders of Rights shall be deemed coincident with the interests of the holders of Common Stock." 10. Exhibits A, B and C to the Rights Agreement shall be deemed to be amended in a manner consistent herewith. 11. The term "Agreement" as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as heretofore amended and as amended hereby, and all references to the Rights Agreement shall be deemed to include this agreement and all prior amendments. 12. This agreement shall be effective as of the date first written above, and except as set forth herein, the Rights Agreement shall remain in full force and effect and otherwise shall be unaffected hereby. 13. This agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the day and year first above written. ALBERTSON'S, INC. Attest: /s/ Kaye L. O'Riordan By: /s/ John R. Sims - ---------------------- ----------------- Name: Kaye L. O'Riordan Name: John R. Sims Title: Vice President Title: Executive Vice President and Corporate Secretary and General Counsel AMERICAN STOCK TRANSFER & TRUST COMPANY Attest: /s/ Joseph F. Wolf By: /s/ Herbert J. Lemmer - ------------------- ---------------------- Name: Joseph F. Wolf Name: Herbert J. Lemmer Title: Vice President Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----