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THE KROGER CO. 401(k) RETIREMENT SAVINGS ACCOUNT RESTORATION PLAN

Employee Benefits Plan Agreement

THE KROGER CO.
401(k) RETIREMENT SAVINGS ACCOUNT RESTORATION PLAN | Document Parties: KROGER CO You are currently viewing:
This Employee Benefits Plan Agreement involves

KROGER CO

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Title: THE KROGER CO. 401(k) RETIREMENT SAVINGS ACCOUNT RESTORATION PLAN
Governing Law: Ohio     Date: 4/4/2007
Industry: Retail (Grocery)    

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EXHIBIT 10.4

THE KROGER CO.
401(k) RETIREMENT SAVINGS ACCOUNT RESTORATION PLAN

Effective as of January 1, 2007

1. Establishment and Purpose of Plan

      Effective as of January 1, 2007, The Kroger Co. (the “Company”) hereby establishes and adopts The Kroger Co. 401(k) Retirement Savings Account Restoration Plan (the “Plan”), as set forth herein. The purpose of the Plan is to provide supplemental retirement benefits to certain employees of the Company and its Affiliates who are unable to receive the full amount of benefits in The Kroger Co. 401(k) Retirement Savings Account Plan due to the limits imposed by the Internal Revenue Code of 1986, as amended (the “Code”) or who participate in The Kroger Co. Executive Deferred Compensation Plan. The Plan is intended to be unfunded and maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended. The Plan is also intended to comply with the requirements of Section 409A of the Code.

2. Definitions

      As used throughout the Plan, the following capitalized words and phrases shall have the meanings set forth herein:

      (a) “Account” means, individually or collectively, a Participant’s Restoration Company Automatic Contribution Account and Restoration Matching Account.

      (b) “Affiliate” means an organization which is (a) a member of the same controlled group of corporations (as defined in Code Section 414(b)) as the Company, (b) a trade or business under common control (as defined in Code Section 414(c)) with the Company, (c) an organization which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes the Company, or (d) otherwise required to be aggregated with the Company under Code Section 414(o).

      (c) “Beneficiary” means the persons or entities designated by the Participant, in a form and manner acceptable to the Committee, to receive any amount payable from the Plan upon the Participant’s death. If the Participant fails to designate a Beneficiary in accordance herewith, then the Participant’s Beneficiary shall be the Participant’s spouse or, if the Participant does not have a spouse on the Participant’s date of death, the Participant’s estate.

      (d) “Code” means the Internal Revenue Code of 1986, as amended, or any successor or substitute provisions of law in force.

      (e) “Committee” means the Retirement Management Committee, as appointed by the Chief Executive Officer of the Company. If a Retirement Management Committee is not appointed, or if no members are in office, the Company shall have all the powers and duties of the Committee, unless the Company designates another person to have these powers and duties.

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      (f) “Company” means The Kroger Co., an Ohio corporation, or any successor thereto.

      (g) “Company Automatic Contribution Account” shall have the meaning set forth in the definition of “Company Automatic Contribution Account” in the RSA Plan.

      (h) “Company Automatic Contributions” shall have the meaning set forth in the definition of “Company Automatic Contributions in the RSA Plan.

      (i) “Company Matching Contributions” shall have the meaning set forth in the definition of “Company Matching Contributions” in the RSA Plan.

      (j) “Compensation” of a Participant shall have the meaning set forth in the definition of “Compensation” in the RSA Plan, except that Compensation shall be determined without regard to (i) any elective deferrals made by the Participant under the EDC Plan, or (ii) any limitation imposed by Section 401(a)(17) of the Code.

      (k) “Disability” shall have the meaning set forth in the definition of “Disability” in the RSA Plan.

      (l) “EDC Plan” means The Kroger Co. Executive Deferred Compensation Plan, as currently in effect and as it may be amended from time to time.

      (m) “Employee” means any person who the Committee determines is in the employ of the Company or an Affiliate as a common law employee. An independent contractor shall not be considered an Employee on account of rendering services to the Company or an Affiliate in the capacity of an independent contractor. The term Employee does not include Leased Employees.

      (n) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor or substitute provisions of law in force.

      (o) “Group” shall have the meaning set forth in Proposed Treasury Regulation Section 1.409A-3(g)(5)(v)(B), or any subsequent guidance.

      (p) “Insolvency” means an entity is unable to pay its debts as they become due, or is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.

      (q) “Leased Employee” means any person treated as a leased employee of the Company under Code Section 414(n) and the Treasury Regulations promulgated thereunder.

      (r) “Matching Account” shall have the meaning set forth in the definition of “Matching Account” in the RSA Plan.

      (s) “Normal Retirement Age” shall have the meaning set forth in the definition of “Normal Retirement Age” in the RSA Plan.

      (t) “Participant” means an Employee who meets the requirements of Section 3(a).

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      (u) “Plan” means The Kroger Co. 401(k) Retirement Savings Account Restoration Plan, as set forth herein and as it may be amended from time to time.

      (v) “Plan Year” means the calendar year.

      (w) “Restoration Company Automatic Contribution Account” means the portion of the Participant’s Account attributable to Restoration Company Automatic Contributions allocated to such Participant.

      (x) “Restoration Company Automatic Contributions” means the contributions credited to a Participant’s Account pursuant to Section 4(b) of the Plan.

      (y) “Restoration Matching Account” means the portion of the Participant’s Account attributable to Restoration Matching Contributions allocated to such Participant.

      (z) “Restoration Matching Contributions” means the contributions credited to a Participant’s Account pursuant to Section 4(c) of the Plan.

      (aa) “RSA Plan” means The Kroger Co. 401(k) Retirement Savings Account Plan, as it may be amended from time to time.

      (bb) “Salary Redirection Contributions” shall have the meaning set forth in the definition of “Salary Redirection Contributions” in the RSA Plan.

3. Participation

      (a) Eligibility Requirements . An Employee shall be a Participant in this Plan if the Employee is (i) designated by the Committee as eligible to participate in the Plan for the Plan Year, and (ii) is a participant in the RSA Plan who is unable to receive the full Company Automatic Contributions or Company Matching Contributions otherwise provided under the RSA Plan as the result of either (A) the application of the limitations of Code Section 401(a)(17), or (B) the Employee’s elective deferral contributions under the EDC Plan.

      (b) Termination of Participation . An individual shall cease to be a Participant in this Plan when all amounts allocated to the Participant’s Account have been paid under the terms of this Plan.

4. Restoration Benefits

     (a) Eligibility to Receive Restoration Benefits . To be eligible to receive a Restoration Company Automatic Contribution or a Restoration Matching Contribution for a Plan Year, a Participant must be employed by the Company on the last day of the Plan Year, or have separated from service during the Plan Year on or after attaining the Normal Retirement Age, or as the result of the Participant’s Disability, or death.

 

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      (b) Restoration Company Automatic Contributions . As of the last day of the Plan Year, the Company shall credit an eligible Participant’s Restoration Company Automatic Contribution Account with a Restoration Company Automatic Contribution equal to the excess (if any) of the amount described in clause (i) over the amount described in clause (ii), below:

          

(i)

     

The Company Automatic Contributions which would have been credited to the Participant under the RSA Plan for the Plan Year if the Participant had not made deferrals to the EDC Plan for the Plan Year.

 

 

 

(ii)

 

The Company Automatic Contributions actually credited to the Participant’s Company Automatic Contribution Account in the RSA Plan for the Plan Year.

      (c) Restoration Matching Contribution . If for a Plan Year a Participant made the maximum amount of Salary Redirection Contributions permitted under Code Section 402(g), then the Company shall, as of the last day of the Plan Year, credit the eligible Participant’s Restoration Matching Account with the excess (if any) of the amount described in clause (i) over the amount described in clause (ii), below:

          

(i)

     

Four percent (4%) of the Participant’s Compensation for the Plan Year.

 

 

 

(ii)

 

The Company Matching Contributions credited to the Participant’s Matching Account in the RSA Plan for the Plan Year.

      (d) Crediting of Earnings . For each Plan Year, a Participant’s Account shall be credited with earnings in an amount determined by the Committee, based on an interest rate that represents the cost to the Company of 10-year debt. The rate in effect for a Plan Year shall be determined by the Committee prior to the first day of each Plan Year. Earnings generally shall be credited on the last day of each Plan Year; provided, however, that if a Participant’s Account is distributed before the last day of a Plan Year, the Account shall be credited with pro-rata earnings through the last day of the month prior to the date of the distribution.

5. Time and Form of Distribution .

      (a) Distribution following Separation from Service . The nonforfeitable portion of a Participant’s Account shall be distributed in a single lump sum payment as soon as administratively practicable on or after July 1 of the calendar year immediately following the calendar year that includes the Participant’s separation from service.

      (b) Distribution upon the Death of a Participant . If a Participant dies before the Participant’s Account has been distributed, the Account shal


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