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Exhibit No.
10(iii).30
EXECUTION COPY
SAFEWAY EXECUTIVE
DEFERRED COMPENSATION PLAN
II
(Adopted Effective January 1,
2005)
TABLE OF CONTENTS
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ARTICLE I. TITLE AND DEFINITIONS
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1 |
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1.1
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Title |
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1 |
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1.2
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Definitions |
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1 |
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ARTICLE II. PARTICIPATION
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6 |
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ARTICLE III. DEFERRAL ELECTIONS
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6 |
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3.1
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Elections to Defer
Compensation |
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6 |
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3.2
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Investment
Elections |
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8 |
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ARTICLE IV. ACCOUNTS AND TRUST FUNDING
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9 |
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4.1
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Deferral
Accounts |
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9 |
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4.2
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Company
Discretionary Contribution Account |
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9 |
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4.3
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Trust
Funding |
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10 |
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ARTICLE V. VESTING
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11 |
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ARTICLE VI. DISTRIBUTIONS
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11 |
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6.1
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Distribution of
Accounts |
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11 |
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6.2
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Subsequent Deferral
Election |
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13 |
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6.3
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Distribution Upon
an Unforeseeable Emergency |
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13 |
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6.4
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Inability to Locate
Participant |
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14 |
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ARTICLE VII. ADMINISTRATION
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14 |
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7.1
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Committee |
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14 |
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7.2
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Committee
Action |
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14 |
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7.3
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Powers and Duties
of the Committee |
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14 |
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7.4
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Construction and
Interpretation |
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15 |
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7.5
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Information |
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15 |
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7.6
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Compensation,
Expenses and Indemnity |
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15 |
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7.7
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Quarterly
Statements |
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16 |
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ARTICLE VIII. CLAIMS AND APPEALS
PROCEDURES
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16 |
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8.1
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Informal Resolution
of Questions |
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16 |
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8.2
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Formal Benefits
Claim |
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16 |
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8.3
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Notice of Denied
Request |
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16 |
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8.4
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Appeal to Senior
Vice President |
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8.5
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Exhaustion of
Remedies |
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17 |
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ARTICLE IX. MISCELLANEOUS
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18 |
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9.1
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Unsecured General
Creditor |
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18 |
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9.2
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Restriction Against
Assignment |
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18 |
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9.3
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Withholding |
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18 |
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9.4
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Amendment,
Modification, Suspension or Termination |
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19 |
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9.5
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Governing
Law |
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19 |
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9.6
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Receipt of
Release |
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19 |
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9.7
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Payments on Behalf
of Persons Under Incapacity |
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19 |
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9.8
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Limitation of
Rights and Employment Relationship |
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20 |
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9.9
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Exempt ERISA
Plan |
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20 |
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9.10
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Notice |
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20 |
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9.11
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Errors and
Misstatements |
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20 |
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9.12
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Pronouns and
Plurality |
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20 |
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9.13
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Severability |
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20 |
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9.14
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Status |
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9.15
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Headings |
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ii
SAFEWAY EXECUTIVE
DEFERRED COMPENSATION PLAN
II
WHEREAS, Safeway Inc., a Delaware
corporation (the “Company”) desires to establish the
Safeway Executive Deferred Compensation Plan II, effective
January 1, 2005 (the “Plan”) to provide
supplemental retirement income benefits for a select group of
management and highly compensated employees through deferrals of
salary and incentive compensation as well as Company
contributions;
WHEREAS, this Plan is the successor
plan to the Safeway Executive Deferred Compensation Plan, as in
effect on December 31, 2004 (the “Prior
Plan”);
WHEREAS, effective December 31,
2004, the Prior Plan was frozen and no new contributions or
deferrals shall be made to it; provided however, that any vested
contributions and deferrals made under the Prior Plan before
January 1, 2005 shall continue to be governed by the terms and
conditions of the Prior Plan as in effect on December 31,
2004;
WHEREAS, any contributions and
deferrals made under the Prior Plan after December 31, 2004
and any contributions that were unvested on December 31, 2004
are deemed to have been made under this Plan; and
WHEREAS, the Plan is intended to comply
with the requirements of Section 409A of the Code.
NOW, THEREFORE, effective as of
January 1, 2005, the Plan is hereby adopted to read as
follows:
ARTICLE I.
TITLE AND
DEFINITIONS
1.1 Title .
This Plan shall be known as the Safeway
Executive Deferred Compensation Plan II.
1.2 Definitions .
Whenever the following words and
phrases are used in this Plan, with the first letter capitalized,
they shall have the meanings specified below.
(a) “Account” or
“Accounts” shall mean a Participant’s Deferral
Account, 401(k) Excess Account and/or Company Discretionary
Contribution Account.
(b) “Base Salary” shall
mean a Participant’s annual base salary, excluding bonus,
incentive and all other remuneration for services rendered to the
Participating Company, prior to reduction for any salary
contributions to a plan established pursuant to Section 125 of
the Code or qualified pursuant to Section 401(k) of the
Code.
(c) “Beneficiary” or
“Beneficiaries” shall mean the person or persons,
including a trustee, personal representative or other fiduciary,
last designated in writing by a Participant in accordance with the
procedures established by the Committee to receive the benefits
specified hereunder in the event of the Participant’s death.
However, no designation of a Beneficiary other than the
Participant’s spouse shall be valid unless consented to in
writing by such spouse. No Beneficiary designation shall become
effective until it is filed with the Committee. Any designation
shall be revocable at any time through a written instrument filed
by the Participant with the Committee with or without the consent
of the previous Beneficiary. If there is no Beneficiary designation
in effect, or the designated beneficiary does not survive the
Participant, then the Participant’s spouse shall be the
Beneficiary. If there is no surviving spouse, the duly appointed
and currently acting personal representative of the
Participant’s estate (which shall include either the
Participant’s probate estate or living trust) shall be the
Beneficiary. In any case where there is no such personal
representative of the Participant’s estate duly appointed and
acting in that capacity within 90 days after the
Participant’s death (or such extended period as the Committee
determines is reasonably necessary to allow such personal
representative to be appointed, but not to exceed 180 days after
the Participant’s death), then Beneficiary shall mean the
person or persons who can verify by affidavit or court order to the
satisfaction of the Committee that they are legally entitled to
receive the benefits specified hereunder. In the event any amount
is payable under the Plan to a minor, payment shall not be made to
the minor, but instead be paid (a) to that person’s
living parent(s) to act as custodian, (b) if that
person’s parents are then divorced, and one parent is the
sole custodial parent, to such custodial parent, or (c) if no
parent of that person is then living, to a custodian selected by
the Committee to hold the funds for the minor under the Uniform
Transfers or Gifts to Minors Act in effect in the jurisdiction in
which the minor resides. If no parent is living and the Committee
decides not to select another custodian to hold the funds for the
minor, then payment shall be made to the duly appointed and
currently acting guardian of the estate for the minor or, if no
guardian of the estate for the minor is duly appointed and
currently acting within 60 days after the date the amount becomes
payable, payment shall be deposited with the court having
jurisdiction over the estate of the minor. Payment by the Company
pursuant to any unrevoked Beneficiary designation, or to the
Participant’s estate if no such designation exists, of all
benefits owed hereunder shall terminate any and all liability of
the Company or Participating Company.
(d) “Board of Directors” or
“Board” shall mean the Board of Directors of the
Company.
(e) “Bonuses” shall mean
the incentive compensation earned during the Company’s fiscal
year.
(f) “Change in Control”
shall be deemed to have occurred, if any of the events in
subparagraphs (1)-(3) below occur during the term of this
Plan:
(1) A change in effective control of
the Company as defined in Treasury Regulation 1.409A -
3(i)(s)(vi); or
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(2) A change in ownership of the
Company as defined in Treasury Regulation § 1.409A
– 3(i)(5)(v); or
(3) A change in ownership of a
substantial portion of the Company assets as defined in Treasury
Regulation § 1.409A – 3(i)(5)(vii).
(g) “Code” shall mean the
Internal Revenue Code of 1986, as amended.
(h) “Committee” shall mean
the Committee appointed by the Board to administer the Plan in
accordance with Article VII.
(i) “Company” shall mean
Safeway Inc. and any successor corporations.
(j) “Company Discretionary
Contribution Account” shall mean the bookkeeping account
maintained by Company for each Participant that is credited with an
amount equal to the Company Discretionary Amount, if any, and
earnings and losses pursuant to Section 4.2(b).
(k) “Company Discretionary
Contributions” shall mean, for each Participant for a Plan
Year, an additional discretionary amount allocated to a Participant
under this Plan as determined by the Committee. Such amount may
differ from Participant to Participant both in amount including no
contribution and as a percentage of Compensation.
(l) “Compensation” shall
mean Base Salary, and Bonuses that the Participant is entitled to
receive for services rendered to the Participating
Company.
(m) “Deferral Account”
shall mean the bookkeeping account maintained by the Committee for
each Participant that is credited with amounts equal to
(1) the portion of the Participant’s Compensation that
he or she elects to defer pursuant to Section 3.1, and
(2) the earnings and losses pursuant to Section 4.1(b) as
calculated on the last Valuation Date.
(n) “Deferral Election”
shall mean an Eligible Employee’s annual election to defer
Base Salary and Bonus(es) on such form and at such time that the
Company prescribes in accordance with the Plan and applicable
laws.
(o) “Disabled” or
“Disability” shall mean that an individual is
determined to be totally disabled by the Social Security
Administration.
(p) “Distributable Amount”
shall mean the sum of the vested balance of a Participant’s
Deferral Account, 401(k) Excess Account and Company Discretionary
Contribution Account as calculated on the last Valuation
Date.
(q) “Eligible Employee”
shall mean any individual selected by the Committee from those
employees of a Participating Company (i) at the level of
“director” or above and/or who is eligible to
participate in the director level bonus plan, (ii) whose
potential maximum Compensation for a Plan Year is at least
$100,000, as adjusted by the Committee from time to time,
(iii) who is not non-exempt or subject to a collective
bargaining agreement, and (iv) who receives notice of his or
her eligibility. The Committee may, in its sole discretion, select
such any other individual to participate in the Plan who do not
otherwise meet the foregoing criteria.
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(r) “Employer” shall mean
the Company or the entity for whom services are performed and with
respect to whom the legally binding right to compensation arises,
and all entities with whom the Company would be considered a single
employer under Section 414(b) of the Code; provided that in
applying Section 1563(a)(1), (2), and (3) of the Code for
purposes of determining a controlled group of corporations under
Section 414(b) of the Code, the language “at least 50
percent” is used instead of “at least 80 percent”
each place it appears in Section 1563(a)(1), (2), and
(3) of the Code, and in applying Treasury Regulation §
1.414(c)-2 for purposes of determining trades or businesses
(whether or not incorporated) that are under common control for
purposes of Section 414(c) of the Code, “at least 50
percent” is used instead of “at least 80 percent”
each place it appears in Treasury Regulation § 1.414(c)-2;
provided, however, “at least 20 percent” shall replace
“at least 50 percent” in the preceding clause if there
is a legitimate business criteria for using such lower
percentage.
(s) “Enrollment Period”
shall mean the time period in which the Company determines that a
Participant may make a Deferral Election.
(t) “ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as
amended.
(u) “401(k) Excess Account”
shall mean the bookkeeping account maintained by the Company for
each Participant that is credited with amounts equal to
(1) the Participant’s 401(k) Excess Contributions, and
(2) the earnings and losses pursuant to
Section 4.3(b).
(v) “401(k) Excess” shall
mean the amount, if any, limited by or distributable to a
Participant from the 401(k) Plan by reason of
Section 40l(k)(8) of the Code and the regulations issued
thereunder, or which may not be contributed to the 401(k) Plan by
reason of the limitations set forth in Section 402(g) of the
Code.
(w) “401(k) Plan” shall
mean the defined contribution plan, if any, maintained by a
Participating Company under Section 401(k) of the Code, as in
effect from time to time.
(x) “Fund” or
“Funds” shall mean one or more of the investment funds
selected by the Committee pursuant to
Section 3.2(b).
(y) “Identification Date”
shall mean each December 31.
(z) “Initial Election”
shall mean the first election of an Eligible Employee’s
deferral, in accordance with Section 3.1.
(aa) “Initial Election
Period” for a newly Eligible Employee, shall mean the 30-day
period following the time an individual receives notice of
eligibility to participate in the Plan.
(bb) “Interest Rate” shall
mean, for each Fund, an amount equal to the net rate of gain or
loss on the assets of such Fund during each month.
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(cc) “Key Employee” shall
mean a Participant who, on an Identification Date, is:
(1) An officer of the Company having
annual compensation greater than the compensation limit in
Section 416(i)(1)(A)(i) of the Code, provided that no more
than fifty officers shall be determined to be Key Employees as of
any Identification Date;
(2) A five percent owner of the
Company; or
(3) A one percent owner of the Company
having annual Compensation from the Company of more than
$150,000.
For purposes of this Section 1.2(cc) only and for
determining whether a Participant is a Key Employee, the
“Company” shall mean the Company and its affiliates
that are treated as a single employer under Section 414(b) or
(c) of the Code, and for purposes of determining whether a
Participant is a Key Employee Treasury Regulation
§ 1.415(c) - 2(d)(3) shall be used to calculate
compensation. If a Participant is identified as a Key Employee on
an Identification Date, then such Participant shall be considered a
Key Employee for purposes of the Plan during the period beginning
on the first April 1 following the Identification Date and
ending on the next March 31.
(dd) “Participant” shall
mean any Eligible Employee who becomes a Participant in accordance
with Article II.
(ee) “Participating
Company” shall mean the Company and each entity which is a
member of a controlled group of entities (within the meaning of
Section 414(b) or (c) of the Code) of which Safeway Inc.
is a component member, if the Company determines that such
entity’s employees may participate in the Plan.
(ff) “Payment Date” shall
mean the time as soon as practicable, but no later than 90 days,
after the first day of the month following the end of the calendar
quarter in which the Participant’s Separation from Service
occurs for any reason.
(gg) “Plan” shall mean the
Safeway Executive Deferred Compensation Plan II set forth
herein, now in effect, or as amended from time to time.
(hh) “Plan Year” shall mean
the 12 consecutive month period beginning on each January 1
and ending on each December 31.
(ii) “Prior Plan” shall
mean the Safeway Executive Deferred Compensation Plan, as in effect
on December 31, 2004.
(jj) “Retirement” shall
mean a Participant’s Separation from Service with an Employer
on or after age 55 in accordance with the Company’s
retirement policies as then in effect.
(kk) “Scheduled Withdrawal
Date” shall be in January in the year elected by the
Participant for an in-service withdrawal of all amounts of
Compensation, and prior to January 1, 2007 Compensation and/or
401(k) Excess, that a Participant elects to defer in a given Plan
Year, and earnings and losses attributable thereto, as set forth on
the election forms for such Plan Year.
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(ll) “Separation from
Service” shall mean termination of employment with an
Employer, other than by reason of Disability or death. A
Participant shall not be deemed to have Separated from Service if
the Participant continues to provide services to an Employer at an
annual rate that is fifty percent or more of the services rendered,
on average, during the immediately preceding three full years of
employment with an Employer (or if employed by an Employer less
than three years, such lesser period); provided, however, that a
Separation from Service will be deemed to have occurred if a
Participant’s service with an Employer is reduced to an
annual rate that is less than twenty percent of the services
rendered, on average, during the immediately preceding three years
of employment with an Employer (or if employed by an Employer less
than three years, such lesser period).
(mm) “Trust” shall mean the
Safeway Executive Deferred Compensation Plan Trust.
(nn) “Unforeseeable
Emergency” shall have the same meaning as provided in
Section 409(A)(2)(B)(ii) of the Code.
(oo) “Valuation Date” shall
mean (i) for a Participant who experiences a Separation from
Service for any reason or a Disability, the last trading day of the
calendar quarter in which the Participant’s Separation from
Service or Disability occurs, and (ii) for a Participant who
receives a Scheduled Withdrawal, the last trading day of the
calendar quarter preceding the month in which the Scheduled
Withdrawal occurs; provided, however, the Company may, in its sole
and absolute discretion, designate a different Valuation Date.
Notwithstanding the foregoing or anything in this Plan to the
contrary, the Valuation Date may be different for different
Participants.
ARTICLE II.
PARTICIPATION
An Eligible Employee shall become a
Participant in the Plan by (1) electing to defer a portion of
his or her Compensation in accordance with Section 3.1 or
having a Company Discretionary Contribution Account established in
accordance with Section 4.2, and (2) filing such other
forms as the Committee may reasonably require for participation
hereunder. An Eligible Employee who completes the requirements of
the preceding sentence shall commence participation in this Plan as
of the first day of the month in which Compensation is deferred in
accordance with Section 3.1 or 4.2 or amounts are credited in
accordance with Section 4.2.
ARTICLE III.
DEFERRAL
ELECTIONS
3.1 Elections to Defer
Compensation .
(a) Elections under Prior Plan .
The elections made by Participants under the Prior Plan are deemed
to be elections under this Plan to the extent such deferrals
applied to amounts earned or deferred after December 31,
2004.
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(b) Annual Election .
(1) Base Salary Deferrals. An Eligible
Employee may make a Deferral Election no later than the last day of
the Plan Year preceding the Plan Year in which the Base Salary is
earned, and such Deferral Election shall be irrevocable on the
first day of the Plan Year for deferrals pertaining to that Plan
Year. In the event an Eligible Employee fails to timely file an
election, he shall be deemed to have elected not to have deferred
any Base Salary for any relevant period. Participant’s
Deferral Election shall continue to be applied to each subsequent
Plan Year until modified or revoked; provided that any such
modification or cancellation shall apply to the Plan Year following
the year in which Participant files the modification or revokes his
or her election.
(2) Bonus Deferrals. An Eligible
Employee may make a Deferral Election no later than the last day of
the Plan Year preceding the Plan Year in which the Bonuses are
earned, and such Deferral Election shall be irrevocable on the
first day of the Plan Year to which it pertains. In the event an
Eligible Employee fails to timely file an election, he shall be
deemed to have elected not to have deferred any Bonuses for the
relevant period.
(3) 401(k) Excess Deferrals. Prior to
January 1, 2007, an Eligible Employee may make a Deferral
Election no later than the last day of the Plan Year preceding the
Plan Year in which the 401(k) Excess is earned, and such Deferral
Election shall be irrevocable on the first day of the Plan Year to
which it pertains. In the event an Eligible Employee fails to
timely file an election, he shall be deemed to have elected not to
have deferred any 401(k) Excess for the relevant period.
(c) Performance-Based
Compensation . Notwithstanding the foregoing, the Company, in
its discretion, may permit a separate election to defer
performance-based compensation as defined in treasury regulation
section 1.409A-1(e) of the Code, and such election may be made no
later than six months prior to the end of the applicable
performance period; provided, however, that such election shall be
made prior to the date that such performance-based compensation is
readily ascertainable. Any election made under this paragraph
(c) shall be irrevocable on the first day of such six-month
period described in the preceding sentence, or such earlier date as
the Company provides in the election form.
(d) Initial Election Period .
Notwithstanding the foregoing, each newly Eligible Employee may
defer Base Salary, and prior to January 1, 2007 may defer Base
Salary, Bonuses and/or 401(k) Excess, by making an election that
conforms to the requirements of this Section 3.1, in the
manner prescribed by the Committee, no later than the last day of
his or her Initial Election Period. Such Initial Election shall be
irrevocable on the first day following the Initial Election Period,
unless the Company in its discretion requires an earlier date of
irrevocability. The Initial Election submitted pursuant to this
paragraph (d) shall apply only to compensation earned from the
date that such Initial Election is irrevocable.
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(e) General Rule . The amount of
Compensation which a Participant may elect to defer is such
Compensation earned on or after the time at which the Participant
elects to defer and shall be a flat dollar amount or a percentage
of Base Salary and/or Bonus which shall not exceed 100% of the
Participant’s Base Salary and/or 100% or his Bonus; provided
that the total amount deferred by a Participant shall be limited in
any Plan Year, if necessary, to satisfy the Employee’s
withholding tax obligations (including income, Social Security,
unemployment and Medicare taxes), as determined in the sole and
absolute discretion of the Committee. The minimum deferral which
may be elected to be made in any Plan Year by a Participant shall
not be less than $5,000, which shall be based on a
Participant’s Base Salary and target Bonus on the last day of
the Enrollment Period.
(f) Special Election(s) .
Notwithstanding the foregoing and during the transition period
provided in the regulations promulgated or notices issued under
Section 409A of the Code, the Company may provide a special
election(s) with respect to amounts deferred in 2005, 2006 and
2007; provided that the election is made at least 12 months prior
to the originally scheduled distribution date and the election is
made not later than December 31, 2007. An election made
pursuant to this paragraph (f) shall be treated as an initial
deferral election and shall be subject to any administrative rules
imposed by the Company including rules intended to comply with
Section 409A of the Code, the Treasury Regulations promulgated
thereunder and applicable notices. No election under this paragraph
(f) shall (i) change the payment date of any distribution
otherwise scheduled to be pai
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