SIXTH AMENDMENT
OF
SUPERVALU INC.
NONQUALIFIED SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
Effective
February 26, 1989, this corporation established an unfunded
nonqualified deferred compensation plan for certain executive
employees in accordance with the terms of the Plan Statement
entitled “SUPERVALU INC. Nonqualified Supplemental Executive
Retirement Plan,” as amended through a Fifth Amendment
adopted on June 2, 2003 (the “Plan Statement”).
SUPERVALU INC. has reserved to itself the power to amend said Plan
Statement and it now desires to amend the Plan Statement in the
following respects:
1.
PURPOSE. Effective
January 1, 2008, the Plan Statement is amended by revising
Section 1.1 to read as follows:
1.1.
Purpose. Effective February 26, 1989, SUPERVALU INC.
(“SUPERVALU”) and certain affiliated corporations
adopted a nonqualified, unfunded deferred compensation and excess
benefit plan (the “Plan”) which is currently embodied
in the document entitled “SUPERVALU INC. Nonqualified
Supplemental Executive Retirement Plan,” as amended (the
“Plan Statement”) for the purpose of providing benefits
to certain employees in excess of their benefits provided under
certain qualified retirement plans.
1.1.1.
Rules That Apply To Pre-2005 Accruals. The portion of a
Participant’s benefit that accrued under the Plan as of
December 31, 2004, shall be governed by the terms of the Plan
Statement disregarding requirements under section 409A of the Code
and the rules set forth in Appendix B.
1.1.2.
Rules That Apply to Post-2004 Accruals. The portion of
a Participant’s benefit that accrued after December 31,
2004, shall be governed by the terms of the Plan Statement subject
to the modifications specified in Appendix B, which are
intended to comply with section 409A of the Code and final
regulations thereunder. No portion of the benefit of any Tier 2
Participant accrued after December 31, 2004.
2.
CONFIRMATION OF
EFFECT OF ACCRUAL FREEZE IN SUPERVALU INC. RETIREMENT PLAN.
Effective December 31, 2007, Section 1.2.1 of the Plan
Statement is amended by adding a new paragraph (c) to read as
follows:
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(c)
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Confirmation of Effect of Accrual Freeze in SUPERVALU
INC. Retirement Plan. Credited
Service and Final Average Compensation in the Plan have the meaning
assigned in the SUPERVALU INC. Retirement Plan (“Retirement
Plan”). No service after December 31, 2007, is
taken
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into account for purposes of determining Credited
Service in the Retirement Plan and no compensation after
December 31, 2012, is taken into account for purposes of
determining Final Average (Pay) Compensation in the Retirement
Plan. Accordingly, notwithstanding any thing to the contrary in the
Plan Statement, no service after December 31, 2007, and no
compensation after December 31, 2012, shall be taken into
account for purposes of determining Credited Service or Final
Average Compensation under this Plan. Consistent with the foregoing
and notwithstanding anything to the contrary in the Plan Statement,
a Participant’s Approximate Social Security Benefit shall be
determined as of the earliest of (i) the Participant’s
Termination of Employment, (ii) the Participant’s
sixty-fifth (65 th ) birthday, or (iii) December 31,
2012.
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3.
COMMITTEE. Effective
August 1, 2007, the Plan Statement is amended by revising
Section 1.2.12 to read as follows (and by re-ordering
Section 1.2 accordingly):
1.2.12.
Committee – the Executive Benefit Committee, the
Benefit Plans Committee or the Retirement & Savings Plans
Administrative Committee (“Administrative Committee”),
as applicable, established pursuant to the document entitled
“Committee Bylaws for SUPERVALU Benefit Plans” adopted
effective August 1, 2007, by action of the Chief Executive
Officer of SUPERVALU, as amended from time to time
(“Bylaws”).
4.
PARTICIPATION.
Effective December 31, 2004, the Plan Statement is amended by
adding to Section 2.1 the following sentence:
Notwithstanding the foregoing, all
Participants in this Plan shall be determined on or before
December 31, 2004, based on the employee’s potential to
satisfy all of the requirements in Section 2.1. No employees shall
become Participants in this Plan after December 31, 2004. As
provided in Section 3.5, however, any such Participant who, at
Separation from Service, does not in fact satisfy the requirements
at Section 2.1 (ii) and (iii) (i.e., must have at least
fifteen (15) years of Credited Service with SUPERVALU and its
subsidiaries and must be a “highly compensated
employee” as defined in Code section 414(q)) shall not be
entitled to any benefit in this Plan.
5.
CREDITED SERVICE AND
HIGHLY COMPENSATED EMPLOYEE REQUIREMENTS. Effective
December 31, 2004, the Plan Statement is amended by adding a
new Section 3.5 to read in full as follows:
3.5. Benefit
Contingent on Satisfaction of All Section 2.1
Requirements. Notwithstanding anything to the contrary in the
Plan Statement and Appendix A, any Participant who, at
Termination of Employment, does not in fact satisfy the
requirements at Section 2.1 (ii) and (iii) (i.e., has at
least fifteen (15) years of Credited Service with SUPERVALU
and its subsidiaries and is a “highly compensated
employee” as defined in Code section 414(q)) shall not be
entitled to any benefit payable from this Plan.
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6.
AMENDMENT. Effective
January 1, 2009, the Plan Statement is amended by revising
Section 7.1 to read in full as follows:
7.1.
Amendment. SUPERVALU INC. reserves the power to amend this
Plan Statement either prospectively or retroactively or both:
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(i)
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in any respect by action of its Board of Directors
(or any duly authorized committee of the Directors) and
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(ii)
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in any respect that increases or decreases the cost
of the Plan by more than Five Million Dollars ($5,000,000), by
action of the Executive Plans Committee, and
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(iii)
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in any respect that increases or decreases the cost
of the Plan by Five Million Dollars ($5,000,000) or less, by action
of the Benefit Plans Committee.
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7.
CLAIMS PROCEDURE.
Effective January 1, 2008, the Plan Statement is amended by
revising Section 8 to read in full as follows:
8.1
Determinations . The Administrative Committee shall make
such determinations as may be required from time to time in the
administration of this Plan. The Administrative Committee shall
have the discretionary authority and responsibility to interpret
and construe the Plan Statement and all relevant documents and
information, and to determine all factual and legal questions under
this Plan, including but not limited to the entitlement of
Participants and Beneficiaries, and the amounts of their respective
interests.
8.2
Method of Executing Instruments . Information to be supplied
or written notices to be made or consents to be given by the
Principal Sponsor, the Employer, the Committee, or any other person
pursuant to any provision of the Plan Statement may be signed in
the name of the Principal Sponsor or Employer by any officer or
other person who has been authorized to make such certification or
to give such notices or consents.
8.3
Claims Procedure . The claim and review procedures set forth
in this Section shall be the mandatory claim and review procedures
for the resolution of disputes and disposition of claims filed
under the Plan. An application for a distribution shall be
considered as a claim for the purposes of this Section.
8.3.1. Initial Claim and
Decision. An individual may, subject to any applicable
deadline, file with the Administrative Committee a written claim
for benefits under the Plan in a form and manner prescribed by the
Administrative Committee. If the claim is denied in whole or in
part, the Administrative Committee shall notify the claimant of the
adverse benefit determination within 90 days after receipt of
the claim. The 90 day period for making the claim
determination may be extended for 90 days if the
Administrative Committee determines that special circumstances
require an extension of time for determination of the claim,
provided that
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the Administrative Committee notifies the
claimant, prior to the expiration of the initial 90 day
period, of the special circumstances requiring an extension and the
date by which a claim determination is expected to be made. The
notice of adverse determination shall provide: (i) the
specific reasons for the adverse determination;
(ii) references to the specific provisions of the Plan
Statement (or other applicable Plan document) on which the adverse
determination is based; (iii) a description of any additional
material or information necessary to perfect the claim and an
explanation of why such material or information is necessary; and
(iv) a description of the claim and review procedures,
including the time limits applicable to such procedure, and
(v) a statement of the claimant’s right to bring a civil
action under ERISA section 502(a) following an adverse
determination on review.
8.3.2. Request for Review
and Final Decision . Within 60 days after receipt of an
initial adverse benefit determination notice, the claimant may file
with the Administrative Committee a written request for a review of
the adverse determination and may, in connection therewith submit
written comments, documents, records and other information relating
to the claim benefits. Any request for review of the initial
adverse determination not filed within 60 days after receipt
of the initial adverse determination notice shall be untimely. If
the claim, upon review, is denied in whole or in part, the
Administrative Committee shall notify the claimant within
60 days after receipt of the request for a review. Such 60-day
period may be extended for 60 days if the Administrative
Committee determines that special circumstances require an
extension and notifies the claimant what special circumstances
require the extension and the date by which the decision is
expected. If the extension is due to the claimant’s failure
to submit information necessary to decide the claim, the claimant
shall have 60 days to provide the necessary information and
the period for making the decision shall be tolled from the date on
which the extension notice is sent until the date the claimant
responds to the information request or, if earlier, the expiration
of 60 days. The Administrative Committee’s review of a
denied claim shall take into account all documents and other
information submitted by the claimant, whether or not the
information was submitted before the claim was initially decided.
The notice of denial upon review shall set forth in a manner
calculated to be understood by the claimant: (i) the specific
reasons for the denial; (ii) references to the specific
provisions of the Plan document on which the denial is based;
(iii) a statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to and copies of
all documents, records, and other information relevant to the
claim; and (iv) a statement of the claimant’s right to
bring a civil action under ERISA section 502(a).
8.4.
Rules and Regulations .
8.4.1. Adoption of
Rules . Any rule not in conflict or at variance with the
provisions hereof may be adopted by the Administrative
Committee.
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(a)
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Any decision or determination to be made by the
Principal Sponsor or Employer shall be made by the Administrative
Committee unless delegated, in which case references in this
Section 8 to the Administrative
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Committee shall be treated as references to the
Administrative Committee’s delegate. No inquiry or question
shall be deemed to be a claim or a request for a review of a denied
claim unless made in accordance with the established claim
procedures. The Administrative Committee may require that any claim
for benefits and any request for a review of a denied claim be
filed on forms to be furnished by the Administrative Committee upon
request.
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(b)
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Claimants may be represented by a lawyer or other
representative at their own expense, but Administrative Committee
reserves the right to require the claimant to furnish written
authorization and establish reasonable procedures for determining
whether an individual has been authorized to act on behalf of a
claimant. A claimant’s representative shall be entitled to
copies of all notices given to the claimant.
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(c)
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The decision on a claim and on a request for a review
of a denied claim may be provided to the claimant in electronic
form instead of in writing at the discretion of the Administrative
Committee.
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(d)
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The time period within which a benefit determination
will be made shall begin to run at the time a claim or request for
review is filed in accordance with the claims procedures, without
regard to whether all the information necessary to make a benefit
determination accompanies the filing.
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(e)
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The claims and review procedures shall be
administered with appropriate safeguards so that benefit claim
determinations are made in accordance with governing plan documents
and, where appropriate, the plan provisions have been applied
consistently with respect to similarly situated
claimants.
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