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EXECUTION COPY SAFEWAY EXECUTIVE DEFERRED COMPENSATION PLAN II

Executive Compensation Plan Agreement

EXECUTION COPY SAFEWAY EXECUTIVE DEFERRED COMPENSATION PLAN II | Document Parties: SAFEWAY INC You are currently viewing:
This Executive Compensation Plan Agreement involves

SAFEWAY INC

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Title: EXECUTION COPY SAFEWAY EXECUTIVE DEFERRED COMPENSATION PLAN II
Governing Law: California     Date: 2/26/2008
Industry: Retail (Grocery)     Sector: Services

EXECUTION COPY SAFEWAY EXECUTIVE DEFERRED COMPENSATION PLAN II, Parties: safeway inc
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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

 

ARTICLE I. TITLE AND DEFINITIONS

   1

1.1

   Title    1

1.2

   Definitions    1

ARTICLE II. PARTICIPATION

   6

ARTICLE III. DEFERRAL ELECTIONS

   6

3.1

   Elections to Defer Compensation    6

3.2

   Investment Elections    8

ARTICLE IV. ACCOUNTS AND TRUST FUNDING

   9

4.1

   Deferral Accounts    9

4.2

   Company Discretionary Contribution Account    9

4.3

   Trust Funding    10

ARTICLE V. VESTING

   11

ARTICLE VI. DISTRIBUTIONS

   11

6.1

   Distribution of Accounts    11

6.2

   Subsequent Deferral Election    13

6.3

   Distribution Upon an Unforeseeable Emergency    13

6.4

   Inability to Locate Participant    14

ARTICLE VII. ADMINISTRATION

   14

7.1

   Committee    14

7.2

   Committee Action    14

7.3

   Powers and Duties of the Committee    14

7.4

   Construction and Interpretation    15

7.5

   Information    15

7.6

   Compensation, Expenses and Indemnity    15

7.7

   Quarterly Statements    16

ARTICLE VIII. CLAIMS AND APPEALS PROCEDURES

   16

8.1

   Informal Resolution of Questions    16

8.2

   Formal Benefits Claim    16

8.3

   Notice of Denied Request    16

8.4

   Appeal to Senior Vice President    17

8.5

   Exhaustion of Remedies    17

ARTICLE IX. MISCELLANEOUS

   18

9.1

   Unsecured General Creditor    18

9.2

   Restriction Against Assignment    18

9.3

   Withholding    18

9.4

   Amendment, Modification, Suspension or Termination    19

9.5

   Governing Law    19

 

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9.6

   Receipt of Release    19

9.7

   Payments on Behalf of Persons Under Incapacity    19

9.8

   Limitation of Rights and Employment Relationship    20

9.9

   Exempt ERISA Plan    20

9.10

   Notice    20

9.11

   Errors and Misstatements    20

9.12

   Pronouns and Plurality    20

9.13

   Severability    20

9.14

   Status    21

9.15

   Headings    21

 

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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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