THIRD AMENDMENT
OF THE
ALBERTSON’S, INC.
EXECUTIVE PENSION MAKEUP PLAN
WHEREAS, the Albertson’s, Inc. Executive Pension
Makeup Plan was amended and restated effective December 1,
2002, and subsequently amended by a First Amendment adopted on
December 22, 2003 and by a Second Amendment adopted on
April 28, 2006 (the “Plan”); and
WHEREAS, the Second Amendment, which amended the Plan to
allow participants to elect to receive their entire benefit in the
Plan in a lump sum as soon as practicable after the later of
January 1, 2007, or the date of a change in control of
Albertson’s Inc., was a material modification of the Plan in
effect as of October 3, 2004, and, therefore, caused all
benefits in the Plan to be subject to section 409A of the
Code;
WHEREAS , effective June 2, 2006, sponsorship of the
Plan was assumed by New Albertson’s Inc. pursuant to the
Purchase and Separation Agreement dated January 22, 2006 (as
amended June 2, 2006), by and among Albertson’s Inc.,
New Albertson’s, Inc., SUPERVALU INC., and AB Acquisition
LLC; and
WHEREAS , the Board of Directors of New Albertson’s,
Inc. has amended the Plan to provide that the Benefit Plans
Committee of SUPERVALU INC. (parent of New Albertson’s Inc.)
has the right to adopt amendments of the Plan that do not increase
the cost of the Plan; and
WHEREAS, New Albertson’s Inc. and SUPERVALU INC. wish
to amend the Plan to comply with section 409A of the Code;
NOW, THEREFORE , the Plan is hereby amended as follows:
1.
NEW DEFINITIONS.
Effective January 1, 2008, the following definitions are added
to Article I of the Plan:
“Affiliate”
means a business entity that is treated as a single employer with
New Albertson’s, Inc. under the rules of section 414(b)
and (c) of the Code, including the eighty percent (80%)
standard therein.
“Committee”
shall mean 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”).
“Separation
from Service” shall mean severance of an employee’s
employment relationship with the Employers and all Affiliates for
any reason other than the employee’s death.
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(a)
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A transfer from employment with an Employer to
employment with an Affiliate, or vice versa, shall not constitute a
Separation from Service.
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(b)
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Whether a Separation from Service has occurred is
determined based on whether the facts and circumstances indicate
that the Employer and employee reasonably anticipated that no
further services would be performed after a certain date or that
the level of bona fide services the employee would perform after
such date (whether as an employee or as an independent contractor)
would permanently decrease to twenty percent (20%) or less of the
average level of bona fide services performed (whether as an
employee or an independent contractor) over the immediately
preceding thirty-six (36) month period (or the full period of
services to the employer if the employee has been providing
services to the employer for less than thirty-six
months).
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(c)
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Separation from Service shall not be deemed to occur
while the employee is on military leave, sick leave or other bona
fide leave of absence if the period does not exceed six
(6) months or, if longer, so long as the employee retains a
right to reemployment with the Employer or an Affiliate under an
applicable statute or by contract. For this purpose, a leave is
bona fide only if, and so long as, there is a reasonable
expectation that the employee will return to perform services for
the Employer or an Affiliate. Notwithstanding the foregoing, a
29-month period of absence will be substituted for such 6-month
period if the leave is due to any medically determinable physical
or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of no less than
6 months and that causes the employee to be unable to perform
the duties of his or her position of employment.
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(d)
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Where as part of a sale or other disposition of
assets by the Employer to an employer that is not an Affiliate, an
employee providing services to the Employer immediately before the
transaction and to the buyer immediately after the transaction
(“Affected Employee”) would otherwise experience a
Separation from Service from the Employer as a result of the
transaction, the Employer and the buyer shall have the discretion
to specify that the Affected Employee has not experienced a
Separation from Service if (i) the transaction results from
bona fide, arm’s length negotiations, (ii) all Affected
Employees are treated consistently, and (iii) such treatment
is specified in writing no later than the closing date of the
transaction.
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(e)
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Pursuant to the Purchase and Separation Agreement
dated January 22, 2006 (as amended June 2, 2006) by and
among Albertson’s Inc., New Albertson’s, Inc.,
SUPERVALU INC., and AB Acquisition LLC, certain employees of
Albertson’s, Inc. became employees of New Albertson’s,
Inc. or Albertson’s LLC on June 2, 2006. Such employees
are Affected Employees under paragraph (d) above and did not
experience a Separation from Service on June 2, 2006. For
purposes of determining whether a Separation from Service has
occurred for such Affected Employees after June 2, 2006,
(i) for employees of New Albertson’s, Inc., Employer and
Affiliate shall have the meaning set forth in this Amendment, and
(ii) for employees of Albertson’s LLC, Employer shall
mean Albertson’s LLC, and Affiliate shall mean a business
entity that is treated as a single employer with Albertson’s
LLC under the rules of section 414(b) and (c) of the
Code, including the eighty percent (80%) standard
therein.
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“Specified
Employee” shall mean a Participant who is a key employee as
defined in section 416(i) of the Code. A Participant’s
status as a Specified Employee shall be determined each
December 31st based on the facts existing during the year
ending on that date. If a Participant is determined to be a
Specified Employee on that date, the Participant shall be treated
as a Specified Employee for purposes of the six (6) month
delay under Section 4.01 if Separation from Service occurs
during the twelve (12) month period beginning the following
April 1.
2.
EMPLOYER. Effective
June 2, 2006, the definition of Employer is amended to read as
follows:
“Employer”
shall mean New Albertson’s, Inc. and its wholly owned
subsidiaries and any successor business organization which shall
assume the obligations of the Plan and shall include any
predecessor employer. For purposes of the definition of Separation
from Service, Employer shall mean New Albertson’s, Inc.
except as provided in paragraph (e) of such definition.
3.
PARTICIPATION CLOSED.
Effective May 28, 2006, Section 2.01 of the Plan is
amended adding the following sentence:
Notwithstanding the foregoing, no Employee
shall become a Participant in the Plan on or after May 28,
2006.
4.
PRE-RETIREMENT DEATH
BENEFIT. Effective January 1, 2009, Section 3.04 of the
Plan is amended by replacing the third and fourth sentences with
the following:
Distribution of any such benefit shall
commence within 60 days after the later of: (i) the date
of the Participant’s death, or (ii) if the Participant
had 5 or more years of service but less than 10 years of service,
the date the Participant would have attained age 62 or if the
Participant had 10 or more years of service, the date the
Participant would have attained age 55. Notwithstanding anything to
the contrary in this Plan or the Albertson’s Corporate
Employees Pension Plan (or
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any successor plan), distribution of the
pre-retirement death benefit shall in all events and regardless of
the present value be made to the surviving spouse in the form of
the survivor portion of a 100% Joint and Survivor Annuity.
5.
NOTICE OF BENEFIT.
Effective January 1, 2009, Section 3.05 of the Plan is
deleted.
6.
COMMENCEMENT OF
BENEFIT. Effective January 1, 2009, Section 4.01 of the
Plan is amended to read in full as follows:
4.01
Commencement of Retirement Benefit . A Participant’s
benefit under Section 3.02 shall be determined as of the first
day of the month coincident with or next following the later of:
(i) the date of the Participant’s Separation from
Service, or (ii) the date, if any, designated by the
Participant, and distribution of such benefit shall be made or
commenced within 60 days thereafter; provided, however, that
if distribution is made or commenced in the event of the
Participant’s Separation from Service and if the Participant
is a Specified Employee, distribution shall be delayed until the
six (6) month anniversary of the date following the date of
the Participant’s Separation from Service (or if earlier,
until the death of the Participant) and distribution shall be made
or commenced on the first payroll date of the Plan Sponsor
thereafter.
For a
Participant who has Separated from Service before January 1,
2009, and who does not designate a date when distribution shall be
made or commenced, the Participant’s benefit under
Section 3.02 shall be determined as of March 1, 2010, and
commenced within 60 days thereafter.
A
Participant’s designation of a distribution date, if any,
under this Section 4.02 shall be made either before
December 31, 2004, or in accordance with the transition relief
described in IRS Notice 2005-1; Q&A-19(c) and the preambles to
the proposed regulations under section 409A of the Code.
Notwithstanding
the foregoing, the time of any distribution shall be delayed in
accordance with the rules in Section 4.03 related to
subsequent election changes.
No
spouse or former spouse shall have any right to participate in the
Participant’s election of time of distribution.
7.
FORM OF BENEFIT
PAYMENTS. Effective January 1, 2009, Section 4.02 of the
Plan is amended to read in full as follows:
4.02
Form of Benefit Payments . Benefit payments shall be paid in
one of the following forms elected by the Participant either before
December 31, 2004, or in accordance with the transition relief
describe
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