THIRD AMENDMENT
OF
SUPERVALU INC.
EXCESS BENEFITS PLAN
(1989 Restatement)
Effective
February 24, 1985, SUPERVALU INC. established an unfunded
nonqualified plan for the purpose of providing benefits to
employees which are in excess of the limitations under
section 415 of the Internal Revenue Code and for purposes of
providing deferred compensation for a select group of management or
highly compensated employees which plan, in its most recent form,
is embodied in a document entitled “SUPERVALU INC. Excess
Benefits Plan (1989 Restatement)” as amended through a Second
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.
INTRODUCTION.
Effective January 1, 2008, the Plan Statement is amended by
revising Section 1 to read as follows:
1.1.
Plan Name . This plan shall be referred to as the SUPERVALU
INC. Excess Benefits Plan (hereinafter “Plan”).
1.2.
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 A.
1.3.
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 A, which are
intended to comply with section 409A of the Code and final
regulations thereunder.
2.
PARTICIPATION.
Effective December 31, 2007, the Plan Statement is amended by
adding to Section 2.1 the following sentence:
Notwithstanding the foregoing, no employees
shall become Participants in this Plan after December 31,
2007.
3.
CONFIRMATION OF
EFFECT OF ACCRUAL FREEZE IN SUPERVALU INC. RETIREMENT PLAN.
Effective December 31, 2007, the Plan Statement is amended by
adding at the ends of Sections 3.1 and 5.1 the following
sentence:
The amount determined under paragraph (i)
above that would have been payable under the Retirement Plan
without regard to the limitations under section 415 and
401(a)(17) of the Code shall be determined without counting any
service after December 31, 2007, as Credited Service in the
Retirement Plan and without counting any compensation after
December 31, 2012, as Final Average Compensation in the
Retirement Plan.
4.
DETERMINATION OF
INSTALLMENT PAYMENTS. Effective November 1, 2008, the Plan
Statement is clarified by adding after the second sentence in
Section 3.2 and after the second sentence in Section 5.2
the following sentence:
Installment payments shall be determined by
reference to the rules in Section 4 of Appendix A of the
SUPERVALU INC. Nonqualified Supplemental Executive Retirement
Plan.
5.
BENEFICIARIES.
Effective January 1, 2009, the Plan Statement is amended by
adding a new Section 5.6 to read in full as follows:
5.6.
Determination of Beneficiary . If the Participant was
married for at least one (1) year ending on the date of the
Participant’s death, the survivor benefit shall be payable to
the surviving spouse unless the Participant has elected otherwise
pursuant to rules established by the Administrative Committee. If
the Participant was not married to the surviving spouse for at
least one (1) year ending on the date of death, the survivor
benefit shall be payable to the Participant’s designated
beneficiary or, in the absence of such designation, to the
Participant’s estate. No spouse, former spouse, designated
joint annuity or beneficiary shall have any right to participate in
the Participant’s selection of time or form of distribution
or any change of the same.
6.
GENERAL MATTERS.
Effective August 1, 2007, the Plan Statement is amended by
revising Section 8 to read in full as follows:
8.1.
Employer . Except as hereinafter provided, functions
generally assigned to the Employer shall be discharged by its
officers or delegated and allocated as provided herein.
8.2.
Committee . Each Committee 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”) shall have authority and responsibility
under the Plan as set forth in such Bylaws and shall perform all
duties assigned to such Committee by the express terms of this Plan
Statement.
8.3.
Termination . The Compensation Committee of the Board of
Directors of SUPERVALU shall have the exclusive authority to
terminate or curtail the benefits of this Plan both with regard to
persons expecting to receive benefits hereunder in the future and
persons already receiving benefits at the time of such action.
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8.4.
Plan Administrator . SUPERVALU INC. shall be the
administrator for purposes of section 3(16)(A) of the Employee
Retirement Income Security Action of 1974.
8.5.
Disclaimer . This Plan shall not alter, enlarge or diminish
any person’s employment rights or obligations or rights or
obligations under a Retirement Plan or a Profit Sharing Plan.
7.
AMENDMENT AND
TERMINATION. Effective January 1 , 2009, the Plan Statement
is amended by adding a new Section 8.6 to read in full as
follows:
8.6.
Amendment . SUPERVALU INC. reserves the power to amend this
Plan Statement either prospectively or retroactively or both, at
any time and for any reason deemed sufficient by it without notice
to any person affected by the Plan:
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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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(ii)
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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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8.
CLAIMS PROCEDURE.
Effective January 1, 2008, the Plan Statement is amended by
revising Section 10 to read in full as follows:
10.1.
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.
10.2.
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.
10.3.
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
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disposition of claims filed under the Plan. An
application for a distribution shall be considered as a claim for
the purposes of this Section.
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(a)
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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 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.
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(b)
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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
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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).
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10.4.
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Rules and Regulations .
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10.4.1.
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 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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