exv4w3



 


Exhibit 4.3


AMENDMENT TO THE 1999

AMENDED AND RESTATED EQUITY PARTICIPATION PLAN

OF

SAFEWAY INC.



     Safeway Inc., a Delaware corporation (the “Company”), adopted the 1999
Amended and Restated Equity Participation Plan of Safeway Inc. (the “Plan”),
effective upon the approval of the Plan by the stockholders of the Company.
The stockholders of the Company approved the Plan at the Company’s meeting of
stockholders held on May 11, 1999. The Company desires to amend the Plan to
increase the aggregate number of shares of Common Stock (as defined in the
Plan) which may be issued under the Plan and modify the Plan in certain other
respects.


     Pursuant to Section 11.2 of the Plan, the Board of Directors of the
Company (the “Board”), as an “Administrator” (as defined in the Plan), hereby
adopts this Amendment to the Plan, subject to the approval of this Amendment by
the stockholders of the Company within 12 months of such adoption. The
provisions of the Plan (as amended by this Amendment) that provide for the
grant of Incentive Stock Options (as defined in the Plan) shall be deemed to be
a new plan for purposes of the application of Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”).


     This Amendment to the Plan shall be effective upon the approval of this
Amendment by the stockholders of the Company within 12 months of the adoption
of this Amendment by the Board (except that upon such approval, Sections 6 and
9 of the Amendment shall be effective as of July 30, 2002). This Amendment
shall be presented to the stockholders of the Company for approval, and such
approval shall be deemed to be the approval of the Plan (as amended by this
Amendment) for purposes of Sections 162(m) and 422 of the Code. In the event
that the stockholders of the Company fail to so approve this Amendment, this
Amendment shall not become effective and shall be null and void, and the Plan
(as in effect prior to this Amendment) shall remain in full force and effect in
accordance with the terms thereof.


     1.     Section 1.7 of the Plan is hereby amended to read in its entirety as
follows:



		
	 	     1.7 Bonus Plan. ‘Bonus Plan’ shall mean the 2001 Amended and
Restated Operating Performance Bonus Plan for Executive Officers of
Safeway Inc.



     2.     Section 1.27 of the Plan is hereby amended to read in its entirety as
follows:



		
	 	     1.27 Performance Criteria.




		
	 	          (a) ‘Performance Criteria’ shall mean any one or more of the
following business criteria with respect to the Company, any Subsidiary
or any division or operating unit thereof: (i) net income, (ii) pre-tax
income, (iii) operating income, (iv) cash flow, (v) earnings per share of
Common Stock, (vi) return on equity, (vii) return on invested capital or
assets, (viii) cost reductions or savings, (ix) funds from operations,
(x) appreciation in the Fair Market Value of a share of Common Stock,
(xi) identical store sales, (xii) operating profit, (xiii) working
capital, and (xiv) earnings before any one or more of the following
items: (1) interest, (2) taxes, (3) depreciation or (4) amortization;
provided that each of the
business criteria described in clauses (i) through (xiv) shall be
determined in accordance with generally accepted accounting principles
(“GAAP”).



 






 







		
	 	          (b) For each fiscal year of the Company, the Committee may provide
for objectively determinable adjustments, as determined in accordance
with GAAP, to any of the business criteria described in clauses (i)
through (xiv) of subsection (a) for one or more of the items of gain,
loss, profit or expense: (i) determined to be extraordinary or unusual
in nature or infrequent in occurrence, (ii) related to the disposal of a
segment of a business, (iii) related to a change in accounting principle
under GAAP, (iv) related to discontinued operations that do not qualify
as a segment of a business under GAAP, and (v) attributable to the
business operations of any entity acquired by the Company during the
fiscal year.



     3.     Subsection 2.1(a) of the Plan is hereby amended to read in its entirety
as follows:



		
	 	     (a) The shares of stock subject to Awards shall be shares of the
Company’s Common Stock, par value $0.01 per share. The aggregate number
of such shares which may be issued pursuant to or upon exercise of any
such Awards under the Plan shall not exceed thirty-nine million
(39,000,000), of which no more than one million nine hundred fifty
thousand (1,950,000) may be granted or issued as Restricted Stock, Stock
Payments or Deferred Stock or pursuant to Awards having an exercise or
purchase price, as applicable, of less than 100% of Fair Market Value on
the date of grant or issuance (exclusive of stock issued pursuant to the
Bonus Plan). Of the shares of Common Stock issuable under the terms of
the Plan, as of May 11, 1999, options to purchase 1,764,256 shares of
Common Stock had been granted under the Prior Plans. The shares of
Common Stock issuable pursuant to or upon exercise of any such Awards may
be either previously authorized but unissued shares or treasury shares.



     4.     Subsection 6.2(d) of the Plan is hereby amended to read in its entirety
as follows:



		
	 	     (d) Full cash payment to the Secretary of the Company for the shares
with respect to which the Option, or portion thereof, is exercised.
However, the Administrator, may in its discretion: (i) allow a delay in
payment up to thirty (30) days from the date the Option, or portion
thereof, is exercised; (ii) allow payment, in whole or in part, through
the delivery of shares of Common Stock which have been owned by the
Holder for at least six months, duly endorsed for transfer to the Company
with a Fair Market Value on the date of delivery equal to the aggregate
exercise price of the Option or exercised portion thereof, (iii) allow
payment, in whole or in part, through the delivery of property of any
kind which constitutes good and valuable consideration; (iv) allow
payment, in whole or in part, through the delivery of a notice that the
Holder has placed a market sell order with a broker with respect to
shares of Common Stock then issuable upon exercise of the Option, and
that the broker has been directed to pay a sufficient portion of the net
proceeds of the sale to the Company in satisfaction of the Option
exercise price, provided that payment of such proceeds is then made to
the Company upon settlement of such sale; or (v) allow payment through
any combination of the consideration provided in the foregoing clauses
(ii), (iii) and (iv); provided, however, that payment in the manner
prescribed by the preceding clauses shall not be permitted to the extent
that the Administrator determines that payment in such manner shall
result in an extension or maintenance of credit, an arrangement for the
extension of credit, or a renewal of an extension of credit in the form
of a personal loan to or for any
Director or executive officer of the Company that is prohibited by
Section 13(k) of the Exchange Act or other applicable law.



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     5.     Section 11.2 of the Plan is hereby amended in its entirety as follows:



		
	 	     11.2 Amendment, Suspension or Termination of the Plan. Except as
otherwise provided in this Section 11.2, the Plan may be wholly or
partially amended or otherwise modified, suspended or terminated at any
time or from time to time by the Board. However, without approval of the
Company’s stockholders given within twelve months before or after the
action by the Board, no action of the Administrator may (a) except as
provided in Section 11.3, increase the limits imposed in Section 2.1 on
the maximum number of shares which may be issued under the Plan or (b)
materially increase the benefits available to participants under the
Plan. No amendment, suspension or termination of the Plan shall, without
the consent of the Holder, alter or impair any rights or obligations
under any Award theretofore granted or awarded, unless the Award itself
otherwise expressly so provides. No Awards may be granted or awarded
during any period of suspension or after termination of the Plan, and in
no event may any Incentive Stock Options be granted under the Plan after
the first to occur of the following events:




		
	 	          (a) The expiration of ten years from the date the Plan is
adopted by the Board; or
	 
	 	          (b) The expiration of ten years from the date the Plan is
approved by the Company’s stockholders under Section 11.5.




		
	 	For purposes of the preceding sentence, the adoption by the Board of an
amendment to the Plan increasing the aggregate number of shares of Common
Stock issuable under the Plan, and the approval of such amendment by the
stockholders of the Company within twelve months pursuant to Section
11.5, shall be treated as the adoption of the Plan by the Board, and the
approval of the Plan by the Company’s stockholders, respectively.



     6.     Subsection 11.4(e) of the Plan is hereby amended to read in its
entirety as follows:



		
	 	     (e) Purchase Stock may be purchased solely by delivery to the
Secretary of the Company each of the following:




		
	 	     (i) A purchase agreement, as approved by the Committee,
executed by the Independent Director,
	 
	 	     (ii) Full payment (in cash or by check) of the purchase price
of the Purchase Stock, and
	 
	 	     (iii) Full payment (in cash or by check) of any amount that
must be withheld by the Company for federal, state and/or local tax
purposes.



     7.     Section 11.5 of the Plan is hereby amended to read in its entirety as
follows:



		
	 	     11.5 Approval of Plan by Stockholders. The Plan will be submitted
for the approval of the Company’s stockholders within twelve months after
the date of the Board’s
initial adoption of the Plan, and any amendment to the Plan
increasing the aggregate number of shares of Common Stock issuable under
the Plan will be submitted for the approval of the Company’s stockholders
within twelve months after the date of the Board’s adoption of such



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	 	amendment. In addition, to the extent required under Section 162(m) of
the Code, if the Board determines that Awards other than Options or Stock
Appreciation Rights which may be granted to Section 162(m) Participants
should continue to be eligible to qualify as performance-based
compensation under Section 162(m)(4)(C) of the Code, the Performance
Criteria must be disclosed to and approved by the Company’s stockholders
no later than the first stockholder meeting that occurs in the fifth year
following the year in which the Company’s stockholders previously
approved the Performance Criteria.



     8.     Section 11.6 of the Plan is hereby amended to read in its entirety as
follows:



		
	 	     11.6 Tax Withholding. The Company shall be entitled to require
payment in cash or deduction from other compensation payable to each
Holder of any sums required by federal, state or local tax law to be
withheld with respect to the issuance, vesting, exercise or payment of
any Award. The Administrator may in its discretion and in satisfaction
of the foregoing requirement allow such Holder to elect to have the
Company withhold shares of Common Stock otherwise issuable under such
Award (or allow the return of shares of Common Stock) having a Fair
Market Value equal to the sums required to be withheld. Notwithstanding
any other provision of the Plan, the number of shares of Common Stock
which may be withheld with respect to the issuance, vesting, exercise or
payment of any Award (or which may be repurchased from the Holder of such
Award within six months after such shares of Common Stock were acquired
by the Holder from the Company) in order to satisfy the Holder’s federal,
state and local income tax and payroll tax liabilities with respect to
the issuance, vesting, exercise or payment of the Award shall be limited
to the number of shares which have a Fair Market Value on the date of
withholding or repurchase equal to the aggregate amount of such
liabilities based on the minimum statutory withholding rates for federal,
state and local income tax and payroll tax purposes that are applicable
to such supplemental taxable income.



     9.     Section 11.7 of the Plan is hereby amended to read in its entirety as
follows:



		
	 	     11.7 Loans. The Committee may, in its discretion, extend one or
more loans to Employees in connection with the exercise or receipt of an
Award granted or awarded under the Plan, or the issuance of Restricted
Stock or Deferred Stock awarded under the Plan. The terms and conditions
of any such loan shall be set by the Committee. Notwithstanding the
foregoing, no loan shall be made to an Employee under this Section to the
extent such loan shall result in an extension or maintenance of credit,
an arrangement for the extension of credit, or a renewal of an extension
of credit in the form of a personal loan to or for any Director or
executive officer of the Company that is prohibited by Section 13(k) of
the Exchange Act or other applicable law. In the event that the
Administrator determines in its discretion that any loan under this
Section is or will become prohibited by Section 13(k) of the Exchange Act
or other applicable law, the Administrator may provide that such loan is
immediately due and payable in full and may take any other action in
connection with such loan as the Administrator determines in its
discretion to be necessary or appropriate for the repayment, cancellation
or extinguishment of such loan.



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     IN WITNESS WHEREOF, Safeway Inc. has hereunder adopted this Amendment to
the Plan as indicated by the signature of its duly authorized officer this 25th
day of February, 2003.



	 	 	 	 	 
	 	 	SAFEWAY INC.
	 	 	 	 	 
	 	 	
By:
	 	/s/ Robert A. Gordon
	 	 	 	 	

	 	 	 	 	Robert A. Gordon
	 	 	 	 	 
	 	 	
Title:
	 	Senior Vice President,

General Counsel & Secretary




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