EX-10.(III)15 3 dex10iii15.htm AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT SAFEWAY INC. AMENDED AND RESTATED AGREEMENT WITH STEVEN A. BURD FOR SUPPLEMENTAL RETIREMENT BENEFIT Preamble
Exhibit 10(iii).15
SAFEWAY INC.
AMENDED AND RESTATED
AGREEMENT WITH XXXXXX X. XXXX
FOR
SUPPLEMENTAL RETIREMENT BENEFIT
This Agreement for a supplemental retirement benefit (this “Agreement”), effective as of March 10, 2005, has been amended and restated retroactive to its effective date and is entered into by and between Safeway Inc., a Delaware corporation (the “Company”) and Xxxxxx X. Xxxx (the “Executive”). This Agreement is intended to be an unfunded deferred compensation arrangement for 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 (“ERISA”). This Agreement is intended to comply with the rules under Section 409A of the Internal Revenue Code of 1986 (the “Code”).
Capitalized terms, unless defined in this Agreement, shall have the meanings assigned to them in the Employee Retirement Plan of Safeway Inc. and its Domestic Subsidiaries (the “Retirement Plan”).
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Retirement Restoration Plan II of Safeway Inc. (“Restoration Plan II”). The amount calculated under Exhibit A is not subject to change and cannot be calculated in any manner other than the manner set forth therein. All offsets described in this Section 2 shall be calculated as the single life annuity amounts under the terms of each respective plan which would be payable at the same time as the benefit under this Agreement.
(a) The Company intends to set aside such amounts as are necessary to provide the Executive with his Supplemental Retirement Benefit. While the Company shall set aside amounts which, based on certain assumptions, are intended, together with investment earnings thereon, to be sufficient to provide the Supplemental Retirement Benefit to the Executive, the Company does not guarantee that such amounts shall be set aside each year.
(b) All amounts set aside by the Company to meet its obligations under this Agreement shall remain part of the general assets of the Company and shall remain subject to the claims of the general creditors of the Company until paid to the Executive (or his beneficiary, if applicable).
(c) The right of the Executive or his beneficiary to receive a distribution hereunder shall be an unsecured claim against the general assets of the Company, and neither the Executive nor his beneficiary shall have any rights in or against the Supplemental Retirement Benefit or any other specific assets of the Executive. All amounts set aside to fund the Supplemental Retirement Benefit shall constitute general assets of the Company and may be disposed of by the Company at such time and for such purposes as it may deem appropriate. Nothing contained in this Agreement shall be deemed to create a trust of any kind for the benefit of the Executive or his beneficiaries or to create any fiduciary relationship between the Company and the Executive or his beneficiaries.
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The Company may at any time amend or terminate this Agreement, in whole or in part, without the consent of the Executive or his beneficiary. No amendment, however, shall reduce the Executive’s Supplemental Retirement Benefit under the terms of this Agreement as in effect immediately prior to the amendment or termination.
(a) No Assignment or Transfer. No right or interest of any kind in the Supplemental Retirement Benefit shall be transferable or assignable by the Executive or his beneficiary, or be subject to alienation, encumbrance, garnishment, attachment, execution or levy of any kind, voluntary or involuntary. This prohibition shall not apply to the creation, assignment or recognition of a right to any interest payable hereunder with respect to the Executive pursuant to a domestic relations order that satisfies the requirements of a qualified domestic relations order (“QDRO”) (as that term is defined in Section 414(p) of the Code) as if this Agreement were qualified under Section 401(a) of the Code. Payment pursuant to such domestic relations order may be made as soon as administratively feasible following determination by the Company that said order satisfies the requirements of a QDRO.
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In addition to the foregoing, a Separation from Service will not be deemed to have occurred while the Executive is on military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed 6 months, or if longer, so long as the Executive’s right to reemployment with the Company is provided either by statute or contract. If the period of leave exceeds 6 months and the Executive’s right to reemployment is not provided either by statute or contract, then the Executive is deemed to have Separated from Service on the first day immediately following such 6-month period.
For the purposes of this subsection (e) only, the term Company shall means the Company and its entire controlled group within the meaning of Code Section 414(b) and 414(c), using a 50% standard instead of the 80% standard outlined in Treasury regulations interpreting Code Section 409A.
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(g) Governing Law. This Agreement and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of California without regard to its principles of conflict of laws to the extent not preempted by ERISA. This Agreement is intended to be compliant with Section 409A of the Code, and any noncompliant provision is void or deemed amended to comply with Section 409A of the Code. The Company does not guarantee or warrant the tax consequences of this Agreement, and the Executive shall in all cases be liable for any taxes due with respect to this Agreement.
If to the Company: | Safeway Inc. | |
0000 Xxxxxxxxxx Xxxx Xxxx | ||
Xxxxxxxxxx, XX 00000-0000 | ||
Attention: Corporate Secretary | ||
If to the Executive: | Xxxxxx X. Xxxx | |
c/o Safeway Inc. | ||
0000 Xxxxxxxxxx Xxxx Xxxx | ||
Xxxxxxxxxx, XX 00000-0000 |
or such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.
Safeway Inc. | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Xxxxxx X. Xxxxxx, Senior Vice President | ||
Date: 12/15/08 |
Executive | ||
By: | /s/ Xxxxxx X. Xxxx | |
Xxxxxx X. Xxxx | ||
Date: 12/15/08 |
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EXHIBIT A
OFFSET FOR BENEFIT PAYABLE UNDER
THE RETIREMENT RESTORATION PLAN OF SAFEWAY INC.
Part I – Introduction
This Appendix A describes the method for determining the amount of the offset with respect to the Retirement Restoration Plan of Safeway Inc., which was frozen as of December 31, 2004. This Part I narrative is only a summary of the formula set forth in Part II below. However, the formula in Part II and the terms of the Plan control, and not this Part I narrative.
The Retirement Restoration Plan offset is equal to the amount of the benefit that would have been earned and accrued under the Retirement Plan as of 12/31/04 in the absence of the limitations of Code Sections 401(a)(17) and 415 and in the absence of any limitation on the recognition of compensation deferred under the Safeway Executive Deferred Compensation Plan, less the benefit actually earned and accrued under the Retirement Plan as of 12/31/04. In each case (i.e., in the determination of the hypothetical unlimited and actual limited benefits) the greater of the cash balance benefit and the grandfather benefit is selected.
The method described above is represented by the formulas which follow in Part II of this Appendix A.
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Part II – Offset Formula
The offset shall be determined as the greater of A) and B) minus the greater of C) and D), subject to the definitions in E):
A) | Unlimited cash balance accrued through 12/31/2004 |
RRPCB12312004 x (1 + CBIR2005)M2005 x (1 + CBIR2006) M2006 x (1 + CBIR2007) M2007 x (1 + CBIR2008) M2008 x
(1 + CBIR 2009) M2009 x (1 + CBIR2010) M2010 x (1 + CBIR2011) M2011 x (1 + CBIR2012 ) M2012 x (1 + CBIR2013) M2013 x
(1 + CBIR2014) M2014 x (1 + CBIR2015) M2015 x (1 + CBIR2016) M2016 x (1 + CBIR2017) M2017 x (1 + CBIR2018) M2018 x
(1 + CBIR2019) M2019 x (1 + CBIR2020) M2020 x (1 + CBIR2021 ) M2021 x (1 + CBIR2022) M2022 x (1 + CBIR2023) M2023 x
(1 + CBIR2024) M2024 x (1 + CBIR2025) M2025 x (1 + CBIR2026) M2026 x (1 + CBIR2027) M2027 x (1 + CBIR2028) M2028 x
(1 + CBIR2029) M2029 x (1 + CBIR2030) M2030 x (1 + CBIR2031 ) M2031 x (1 + CBIR2032) M2032 x (1 + CBIR2033) M2033 x
(1 + CBIR2034) M2034 x (1 + CBIR2035) M2035 / SLAF
B) | Unlimited transition benefit accrued through 12/31/2004 |
RRPAB12312004 x (1 + ABIR2005)M2005 x (1 + ABIR2006) M2006 x (1 + ABIR2007) M2007 x (1 + ABIR2008) M2008 x
(1 + XXXX 2009) M2009 x (1 + ABIR2010) M2010 x (1 + ABIR2011) M2011 x (1 + ABIR2012 ) M2012 x (1 + ABIR2013) M2013 x
(1 + ABIR2014) M2014 x (1 + ABIR2015) M2015 x (1 + ABIR2016) M2016 x (1 + ABIR2017) M2017 x (1 + ABIR2018) M2018 x
(1 + ABIR2019) M2019 x (1 + ABIR2020) M2020 x (1 + ABIR2021 ) M2021 x (1 + ABIR2022) M2022 x (1 + ABIR2023) M2023 x
(1 + ABIR2024) M2024 x (1 + ABIR2025) M2025 x (1 + ABIR2026) M2026 x (1 + ABIR2027) M2027 x (1 + ABIR2028) M2028 x
(1 + ABIR2029) M2029 x (1 + ABIR2030) M2030 x (1 + ABIR2031 ) M2031 x (1 + ABIR2032) M2032 x (1 + ABIR2033) M2033 x
(1 + ABIR2034) M2034 x (1 + ABIR2035) M2035 x 0.12 + RRPBB12312004 x BBERF
C) | Qualified cash balance accrued through 12/31/2004 |
QUALCB12312004 x (1 + CBIR2005)M2005 x (1 + CBIR2006) M2006 x (1 + CBIR2007) M2007 x (1 + CBIR2008) M2008 x
(1 + CBIR 2009) M2009 x (1 + CBIR2010) M2010 x (1 + CBIR2011) M2011 x (1 + CBIR2012 ) M2012 x (1 + CBIR2013) M2013 x
(1 + CBIR2014) M2014 x (1 + CBIR2015) M2015 x (1 + CBIR2016) M2016 x (1 + CBIR2017) M2017 x (1 + CBIR2018) M2018 x
(1 + CBIR2019) M2019 x (1 + CBIR2020) M2020 x (1 + CBIR2021 ) M2021 x (1 + CBIR2022) M2022 x (1 + CBIR2023) M2023 x
(1 + CBIR2024) M2024 x (1 + CBIR2025) M2025 x (1 + CBIR2026) M2026 x (1 + CBIR2027) M2027 x (1 + CBIR2028) M2028 x
(1 + CBIR2029) M2029 x (1 + CBIR2030) M2030 x (1 + CBIR2031 ) M2031 x (1 + CBIR2032) M2032 x (1 + CBIR2033) M2033 x
(1 + CBIR2034) M2034 x (1 + CBIR2035) M2035 / SLAF
D) | Qualified transition benefit accrued through 12/31/2004 |
QUALAB12312004 x (1 + ABIR2005)M2005 x (1 + ABIR2006) M2006 x (1 + ABIR2007) M2007 x (1 + ABIR2008) M2008 x
(1 + XXXX 2009) M2009 x (1 + ABIR2010) M2010 x (1 + ABIR2011) M2011 x (1 + ABIR2012 ) M2012 x (1 + ABIR2013) M2013 x
(1 + ABIR2014) M2014 x (1 + ABIR2015) M2015 x (1 + ABIR2016) M2016 x (1 + ABIR2017) M2017 x (1 + ABIR2018) M2018 x
(1 + ABIR2019) M2019 x (1 + ABIR2020) M2020 x (1 + ABIR2021 ) M2021 x (1 + ABIR2022) M2022 x (1 + ABIR2023) M2023 x
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(1 + ABIR2024) M2024 x (1 + ABIR2025 ) M2025 x (1 + ABIR2026) M2026 x (1 + ABIR2027) M2027 x (1 + ABIR2028) M2028 x
(1 + ABIR2029) M2029 x (1 + ABIR2030) M2030 x (1 + XXXX 2031) M2031 x (1 + ABIR2032) M2032 x (1 + ABIR2033) M2033 x
(1 + ABIR2034) M2034 x (1 + ABIR2035) M2035 x 0.12 + QUALBB12312004 x BBERF
E) | Definitions |
• | RRPCB12312004 = $2,281,008.62 |
• | QUALCB12312004 = $389,092.19 |
• | RRPAB12312004 = $742,976.68 |
• | QUALAB12312004 = $200,739.58 |
• | CBIR2005 = 0.3986% |
• | CBIR2006 = 0.3859% |
• | CBIR2007 = 0.3827% |
• | CBIR2008 = 0.3691% |
• | CBIR2009 through CBIR2035 = the interest rate, which, when compounded monthly for 12 months equals the annual rate of return on 30-Year Treasury Securities as specified by the Commissioner of the Internal Revenue Service in revenue rulings, notices or other guidance published in the Internal Revenue Bulletin in effect during the November of the prior calendar year (e.g., November 2008 for CBIR2009) |
• | ABIR2005 = (1.0177) (1/12) - 1 |
• | ABIR2006 = (1.0348) (1/12) - 1 |
• | ABIR2007 = (1.0488) (1/12) - 1 |
• | ABIR2008 = (1.0466) (1/12) - 1 |
• | ABIR2009 through ABIR2010 = the interest rate, which, when compounded monthly for 12 months equals the average of the twelve monthly averages of One-Year Treasury Constant Maturities as published in the Federal Reserve Statistical Release H.15(519) of the Board of Governors of the Federal Reserve System from December of the second prior calendar year to November of the first prior calendar year (e.g., December 2007 through November 2008 for ABIR2009) |
• | M2005 = 12 |
• | M2006 = 12 |
• | M2007 = 12 |
• | M2008 = 12 |
• | M2009 through M2035 = the number of full calendar months during each calendar year which precede the annuity starting date under this Agreement |
• | SLAF = the single lump sum actuarial present value of $1/year, paid in monthly installments on the first day of each month, under a mortality assumption using an interest rate equal to the CBIR for the calendar year in which the annuity starting date occurs and a mortality basis which is the mortality table specified under Section 417(e) of the Internal Revenue Code and such regulations or other published guidance as may be promulgated thereunder by the Secretary of the Treasury |
• | RRPBB12312004 = $25,957.65 |
• | QUALBB12312004 = $2,927.01 |
• | BBERF = the applicable factor from the following table: |
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Age in completed years plus completed months at annuity starting date | BBERF | |
55 | 0.7500 | |
55 1/12 | 0.7525 | |
55 2/12 | 0.7550 | |
55 3/12 | 0.7575 | |
55 4/12 | 0.7600 | |
55 5/12 | 0.7625 | |
55 6/12 | 0.7650 | |
55 7/12 | 0.7675 | |
55 8/12 | 0.7700 | |
55 9/12 | 0.7725 | |
55 10/12 | 0.7750 | |
55 11/12 | 0.7775 | |
56 | 0.7800 | |
56 1/12 | 0.7825 | |
56 2/12 | 0.7850 | |
56 3/12 | 0.7875 | |
56 4/12 | 0.7900 | |
56 5/12 | 0.7925 | |
56 6/12 | 0.7950 | |
56 7/12 | 0.7975 | |
56 8/12 | 0.8000 | |
56 9/12 | 0.8025 | |
56 10/12 | 0.8050 | |
56 11/12 | 0.8075 | |
57 | 0.8100 | |
57 1/12 | 0.8125 | |
57 2/12 | 0.8150 | |
57 3/12 | 0.8175 | |
57 4/12 | 0.8200 | |
57 5/12 | 0.8225 | |
57 6/12 | 0.8250 | |
57 7/12 | 0.8275 | |
57 8/12 | 0.8300 | |
57 9/12 | 0.8325 | |
57 10/12 | 0.8350 | |
57 11/12 | 0.8375 | |
58 | 0.8400 | |
58 1/12 | 0.8425 | |
58 2/12 | 0.8450 | |
58 3/12 | 0.8475 | |
58 4/12 | 0.8500 | |
58 5/12 | 0.8525 | |
58 6/12 | 0.8550 | |
58 7/12 | 0.8575 |
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Age in completed years plus completed months at annuity starting date | BBERF | |
58 8/12 | 0.8600 | |
58 9/12 | 0.8625 | |
58 10/12 | 0.8650 | |
58 11/12 | 0.8675 | |
59 | 0.8700 | |
59 1/12 | 0.8725 | |
59 2/12 | 0.8750 | |
59 3/12 | 0.8775 | |
59 4/12 | 0.8800 | |
59 5/12 | 0.8825 | |
59 6/12 | 0.8850 | |
59 7/12 | 0.8875 | |
59 8/12 | 0.8900 | |
59 9/12 | 0.8925 | |
59 10/12 | 0.8950 | |
59 11/12 | 0.8975 | |
60 | 0.9000 | |
60 1/12 | 0.9042 | |
60 2/12 | 0.9083 | |
60 3/12 | 0.9125 | |
60 4/12 | 0.9167 | |
60 5/12 | 0.9208 | |
60 6/12 | 0.9250 | |
60 7/12 | 0.9292 | |
60 8/12 | 0.9333 | |
60 9/12 | 0.9375 | |
60 10/12 | 0.9417 | |
60 11/12 | 0.9458 | |
61 | 0.9500 | |
61 1/12 | 0.9542 | |
61 2/12 | 0.9583 | |
61 3/12 | 0.9625 | |
61 4/12 | 0.9667 | |
61 5/12 | 0.9708 | |
61 6/12 | 0.9750 | |
61 7/12 | 0.9792 | |
61 8/12 | 0.9833 | |
61 9/12 | 0.9875 | |
61 10/12 | 0.9917 | |
61 11/12 | 0.9958 | |
62 and above | 1.0000 |
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