Albertsons Cos. Inc. has exercised its right to terminate its merger agreement with Kroger after the U.S. District Court in Oregon and the King County Superior Court for the state of Washington issued injunctions with respect to the proposed merger on Dec.10, 2024.

Vivek Sankaran, Albertsons CEO, said, “Given the recent federal and state court decisions to block our proposed merger with Kroger, we have made the difficult decision to terminate the merger agreement. We are deeply disappointed in the courts’ decisions.”

The Albertsons Board of Directors intends to increase its quarterly cash dividend 25% from $0.12 per share to $0.15 per share, which the company expects to take effect beginning with the next quarterly dividend declaration.

The board of directors has also authorized a share repurchase program of up to $2 billion, inclusive of the existing authorization. The company’s share repurchase program could include open market repurchases, accelerated share repurchase programs, tender offers, block trades, potential privately negotiated transactions, or trading plans intended to comply with the federal securities laws. The company’s dividend increase and share repurchase program are expected to be funded with cash generated from operations.

Cerberus Capital Management L.P., the company’s largest shareholder, said it has no intentions to sell any Albertsons shares.

Lawsuit

Albertsons announced Dec. 11, 2024, that it has filed a lawsuit against Kroger in the Delaware Court of Chancery, bringing claims for willful breach of contract and breach of the covenant of good faith and fair dealing arising from Kroger’s failure to exercise “best efforts” and to take “any and all actions” to secure regulatory approval of the companies’ agreed merger transaction, as was required of Kroger under the terms of the merger agreement between the parties. Pursuant to the Court of Chancery rules, Albertsons’ complaint against Kroger is temporarily under seal.

According to Albertsons, Kroger willfully breached the merger agreement in several key ways, including by repeatedly refusing to divest assets necessary for antitrust approval, ignoring regulators’ feedback, rejecting stronger divestiture buyers and failing to cooperate with Albertsons.

Tom Moriarty, Albertsons’ general counsel and chief policy officer, said, “A successful merger between Albertsons and Kroger would have delivered meaningful benefits for America's consumers, Kroger’s and Albertsons’ associates, and communities across the country. Rather than fulfill its contractual obligations to ensure that the merger succeeded, Kroger acted in its own financial self-interest, repeatedly providing insufficient divestiture proposals that ignored regulators’ concerns. Kroger’s self-serving conduct, taken at the expense of Albertsons and the agreed transaction, has harmed Albertsons’ shareholders, associates and consumers. We are disappointed that the opportunity to realize the significant benefits of the merger has been lost on account of Kroger’s willfully deficient approach to securing regulatory clearance.”

Moriarty said, “We are taking this action to enforce and preserve Albertsons’ rights and to protect the interests of our shareholders, associates and consumers. We believe strongly in the merits of our case and look forward to presenting it to the Court to hold Kroger responsible for the harm it has caused.”

Albertsons states its claims against Kroger are confirmed by the recent rulings from the United States District Court for the District of Oregon and the King County Superior Court for the State of Washington, which granted regulators’ requests to block the merger. Albertsons finds those results could have been avoided but for Kroger’s breaching conduct.

Albertsons is seeking billions of dollars in damages from Kroger to make Albertsons and its shareholders whole. Albertsons finds its shareholders have been denied the multibillion-dollar premium that Kroger agreed to pay for Albertsons’ shares and have been subjected to a decrease in shareholder value on account of Albertsons’ inability to pursue other business opportunities as it sought approval for the transaction. Albertsons also seeks to recover for the time, energy and resources it invested in good faith to try to make the merger a success.

In light of the Oregon and Washington courts’ rulings enjoining the company’s proposed merger with Kroger and Kroger’s failure to close the merger before the contractual deadline to do so, Albertsons has notified Kroger of its decision to terminate the merger agreement. This termination entitles Albertsons to an immediate $600 million termination fee and removes contractual constraints on Albertsons’ ability to pursue other strategic opportunities.

In addition to the $600 million termination fee, Albertsons finds it is entitled to relief reflecting the years and money it devoted to obtaining approval for the merger, along with the extended period of unnecessary limbo Albertsons finds it endured as a result of Kroger’s actions. Albertsons further seeks to recover certain expenses and costs.

Kroger's response

Kroger has spoken out against Albertsons' claims with the following statement:

"Albertsons' claims are baseless and without merit.

"Kroger refutes these allegations in the strongest possible terms, especially in light of Albertsons' repeated intentional material breaches and interference throughout the merger process, which we will prove in court.

"This is clearly an attempt to deflect responsibility following Kroger's written notification of Albertsons' multiple breaches of the agreement, and to seek payment of the merger's break fee, to which they are not entitled.

"Kroger looks forward to responding to these baseless claims in court. We went to extraordinary lengths to uphold the merger agreement throughout the entirety of the regulatory process and the facts will make that abundantly clear.

"We are incredibly proud of the Kroger team for how they worked through the merger process with the highest degree of integrity and commitment.  

"We are confident in Kroger's value creation model to drive sustainable growth.  Kroger's Board of Directors is currently evaluating next steps that serve the best interests of Kroger's customers and associates, and create value for shareholders."

Source: Albertsons Cos. Inc.