EXHIBIT 10T
CONFORMED COPY
FRED MEYER
EXCESS DEFERRAL AND BENEFIT
EQUALIZATION PLAN
1994 RESTATEMENT
January 1, 1994
Fred Meyer, Inc.
an Oregon corporation
PO Box 42121
Portland, Oregon 97242 Fred Meyer
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TABLE OF CONTENTS
Section Page
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1. Purposes; Administration; Plan Year.................................. 1
2. Eligibility.......................................................... 1
3. Compensation Deferral................................................ 2
4. Basic and Matching Contribution Credits.............................. 3
5. Deferred Compensation Account; Vesting............................... 5
6. Irrevocable Trust.................................................... 6
7. Time and Manner of Payment........................................... 7
8. Withdrawals.......................................................... 8
9. Death or Disability.................................................. 9
10. Termination; Amendment...............................................11
11. Claims Procedure.....................................................11
12. General Provisions...................................................12
13. Effective Date.......................................................13
FRED MEYER
EXCESS DEFERRAL AND BENEFIT
EQUALIZATION PLAN
1994 Restatement
January 1, 1994
Fred Meyer, Inc.
an Oregon corporation
PO Box 42121
Portland, Oregon 97242 Fred Meyer
1. Purposes; Administration; Plan Year
1.1 This plan is adopted to permit eligible employees of
Employers to defer a portion of what would otherwise be current
compensation in amounts exceeding the elective deferrals allowed
under the Fred Meyer Profit Sharing Plan (the Profit Sharing Plan).
The plan will also allow Employers to provide deferred compensation
credits for cut-backs in eligible employees' basic and matching
contributions under the Profit Sharing Plan because of legal
limits. The plan shall apply to Fred Meyer and affiliates of Fred
Meyer designated by the Committee (see below). The term "Employer"
refers to Fred Meyer and all designated affiliates.
1.2 This plan shall be administered by a Compensation
Committee appointed by the Chair of the Board of Directors of Fred
Meyer. The Committee shall interpret the plan and make
determinations about participation and benefits. Any decision by
the Committee within its authority shall be final and binding on
all parties. The Committee may delegate all or part of its authority.
1.3 The plan year shall be a calendar year.
2. Eligibility
2.1 An employee of an Employer shall be eligible to
participate for a plan year if the employee is designated by the
Committee to participate in the plan.
2.2 An employee eligible under 2.1 shall automatically
participate in Basic Contribution Credits starting with the first
plan year of eligibility for Basic Contributions under the Profit
Sharing Plan.
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2.3 An employee eligible under 2.1 may participate in
elective deferrals and related matching credits by filing a
deferral election as follows:
(a) An employee who is eligible on the
effective date of the plan or who later becomes
eligible during a year may participate with respect
to future compensation by filing an election within 30
days after being notified of eligibility by the
Committee.
(b) Except as provided in (a), an election for
a year must be filed before the start of the year.
2.4 A person having an Account under the plan shall be
known as a participant.
3. Compensation Deferral
3.1 An eligible employee may elect for each plan year (or
part plan year under 2.3(a)) to defer a portion of regular
compensation paid for the year or part year as follows:
(a) The amount deferred may be expressed as a
dollar amount, a percentage of regular salary or
bonus or a percentage of bonus over a certain dollar
amount. The minimum deferral shall be $100 per month.
(b) An expressed percentage shall apply to any
pay changes in the year. A stated dollar amount
shall not be affected by pay changes. Separate
percentages or dollar amounts may be stated for salary and
bonuses.
(c) A bonus deferral shall be governed by the
election for the year for which the bonus is payable,
not the year in which the bonus is paid.
(d) The maximum deferral for any year will be
50 percent of regular salary and 100 percent of bonus
pay before reductions for contributions under this
plan or the Profit Sharing Plan. The amount deferred
shall be offset by the maximum elective deferral the
employee could make under the Profit Sharing Plan,
after reduction to comply with the annual dollar
limit on elective deferrals, the actual deferral
percentage test, the limit on annual additions and adjustments
to avoid top-heavy status.
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3.2 Deferral elections under the plan shall be made in
writing to the Committee on a form provided for that purpose.
Elections shall be effective as follows:
(a) An election by a person first becoming
eligible for participation shall be effective for the
year the participant becomes eligible if made within
30 days after notice of eligibility.
(b) Except as provided in (a), an election
shall be effective for the plan year starting after
the plan year in which the election is received by
the Committee. An election shall be irrevocable for the
first plan year for which it is effective.
(c) An election may be effective indefinitely
or for one or more years as specified in the
election. A new election is required to continue
deferrals after an election expires. A continuing
election may be revoked or changed by a new election
under (b).
4. Basic and Matching Contribution Credits
4.1 Under the Profit Sharing Plan, Employer makes a Basic
Contribution and a Matching Contribution for participants each year
as follows:
(a) The amounts are fixed by the Board of
Directors of Fred Meyer each year.
(b) The Basic Contribution is allocated among
participants in proportion to covered compensation
under the Profit Sharing Plan.
(c) The Matching Contribution is allocated
among participants in proportion to their elective
deferrals up to 5 percent of compensation.
4.2 Basic or Matching Contributions for a participant
under the Profit Sharing Plan may be reduced in any year as follows:
(a) Basic Contributions may be reduced because
of one or more of the following reasons:
(1) The limit under Code section
401(a)(17) on compensation considered for
allocations.
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(2) The limit under Code section 415
on annual additions.
(3) An adjustment to avoid top-heavy
status.
(4) Deferral of compensation under
this plan.
(b) Matching Contributions may be reduced
because the participant may be prevented from making
elective deferrals under the Profit Sharing Plan of
5 percent of compensation due to ineligibility or due
to the annual dollar limit on elective deferrals, the
actual deferral percentage test, the limit on annual
additions or an adjustment to avoid top-heavy status.
4.3 If Basic or Matching Contributions, or both, are
reduced under 4.2 in any year for an employee eligible to participate
under 2.1, the participant shall receive a corresponding credit or
credits to the participant's Account in this plan as follows:
(a) The Matching Contribution credit shall
equal the additional Matching Contribution, if any,
the participant would have been allocated under the
Profit Sharing Plan if the amounts deferred under
this plan had been allowed as elective deferrals under
the Profit Sharing Plan. The amount credited shall be
controlled by the deferral election under 3.2 in
effect for the year to which the Matching
Contribution relates.
(b) The Basic Contribution Credit shall equal
the amount of Basic Contribution reduction for the
participant for the year under 4.2(a).
(c) The Basic or Matching Contribution credit
shall be reserved by Employer or paid to the trust
under 6 below at a time fixed by the Committee.
Amounts shall be credited for accounting and
guideline investment purposes when paid or reserved.
(d) For a year of participation because of
ineligibility for the Profit Sharing Plan, Basic and
Matching Contribution credits shall not be made for
anyone below the level of senior vice president.
4.4 Basic and Matching Contribution credits under 4.2
shall be recorded, adjusted for investment guideline credits and paid
out in accordance with this plan.
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5. Deferred Compensation Account; Vesting
5.1 As of the first of each four-week accounting period,
Employer shall credit the amount deferred for that four-week
accounting period pursuant to the participants' election.
5.2 Employer shall credit to a participant's Account any
Basic or Matching Contribution credit at the time specified in
4.3(c).
5.3 Employer shall make guideline investment credits to
each participant's Account, until the entire Account has been paid
out, as follows:
(a) The Committee shall establish guideline
investment funds with investment objectives fixed by
the Committee. The guideline funds may parallel the
investment funds created under the Profit Sharing
Plan, available under any insurance policy or
policies purchased by the Company in connection with this
plan or available under any irrevocable trust established
under Section 6, below.
(b) Each participant shall, under procedures
established by the Committee, elect the guideline
fund or funds for the participant's Accounts under this
plan, including amounts attributable to Basic and
Matching Contribution Credits. In the absence of a
proper election, a balanced guideline fund will be
used. Participant elections may be changed at such
times and subject to such limits as may be fixed by
the Committee.
(c) The Committee shall adjust all Accounts in
accordance with the elected guidelines at a time as
close as reasonably practicable to the time that
participant accounts are adjusted under the Profit
Sharing Plan. For this purpose, Accounts shall be
treated as though Basic and Matching Contribution
Credits had been made at the times as of which such
contributions would have been credited to
participant's accounts if made under the Profit
Sharing Plan.
(d) When an Account is in pay status, the
Committee may require use of a cash equivalent
guideline fund to the extent necessary to allow more
frequent adjustments to coincide with the timing of
pay distributions.
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5.4 Each participant's Account shall be maintained on the
books of the Employer until full payment has been made to the
participant or beneficiaries under Sections 7 and 8 and the
following shall apply subject to 6.3:
(a) Employer shall not be obligated to set
aside or earmark any funds for the Account, which
shall be purely a bookkeeping device.
(b) All amounts of deferred compensation under
this plan shall remain at all times the unrestricted
assets of the Employer, and the promise to pay the
deferred amounts shall at all times remain unfunded
as to the participants.
5.5 A participant's Account, including Basic and Matching
Contribution credits, shall be 100 percent vested at all times
whether or not the participant is fully vested in all accounts
under the Profit Sharing Plan.
5.6 Amounts deferred or credited as Basic or Matching
Contribution credits are treated as wages for FICA and FUTA taxes
and withholding as follows:
(a) Subject to (b) and (c), required
withholding shall be imposed on other current pay of
the participant, not on the amount deferred or
otherwise credited.
(b) A participant may, under rules of the
Committee, elect to have any required withholding
satisfied by reducing the credits under this plan or
by direct payment by the participant.
(c) If the participant's other current pay is
insufficient to cover the required withholding, the
difference shall be satisfied from the amount
otherwise credited unless timely paid by the
participant under Committee rules.
(d) Guideline investment credits are not
subject to FICA or FUTA tax or withholding.
6. Irrevocable Trust
6.1 Employer may but shall not be required to establish an
irrevocable trust to assume the liabilities to participants in
certain circumstances, and may transfer cash to such a trust.
6.2 If Employer creates a trust under 6.1 above, assets
transferred to the trust shall be invested as follows:
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(a) Investment of such assets shall be at the
absolute discretion of the Committee, the trustee, or
both on a shared basis, as provided in the trust.
(b) The guideline investment funds under 5.3
shall be purely for measuring the amount of
time-value credits.
(c) Neither employer nor the trustee shall be
required to invest in such funds in accordance with
participants' elections. Employer and the trustee
may, however, choose, in their discretion, to invest
in the elected guideline funds in accordance with the
elections, and shall incur no liability for doing so.
6.3 The trust under 6.1 shall be a grantor's trust and all
assets held in trust shall be assets of Employer subject to the
trust terms. All assets of the trust shall at all times be subject
to the claims of creditors of Employer in circumstances described
in the trust. Participants will not receive a vested priority
interest in the trust assets ahead of such creditors. Participants'
interests in the trust will be governed by the trust terms at all
times.
7. Time and Manner of Payment
7.1 Subject to 7.3 and 8.1 a participant's Payment Date
shall be one of the following as selected under 7.3:
(a) The date the participant terminates
employment under 7.5 for any reason.
(b) The date the participant has terminated
employment under 7.5 and has reached an age up to 70
specified in the deferral election.
7.2 A participant's Account shall be paid in one of the
following ways as selected under 7.3 and 7.4:
(a) In a lump sum within 30 days after the
Payment Date.
(b) In a lump sum within 30 days after the
January 1 following the Payment Date.
(c) In installments under 7.4 over a period up
to 10 years starting the first of the month after the
Payment Date.
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(d) In installments under 7.4 over a period up
to 10 years, starting the January 1 following the
Payment Date.
7.3 In the deferral election a participant shall select
the Payment Date under 7.1 and the form of payment under 7.2. The
selection shall be irrevocable for the portion of the Account
attributable to amounts deferred under the election. If different
selections are made in deferral elections applicable to different
years, the Account shall be appropriately divided for distribution.
7.4 If installments are selected, the payout period shall
be specified in the deferral election. The installment size shall
be fixed on the benefit starting date and each later January 1 as
though equal installments were to be paid for the balance of the
payment period including investment guideline credits at a rate
estimated as of the date of calculation. Installments may be
monthly, quarterly or annually, as elected by the participant at
termination. If participant fails to make an election within 30
days after notification that an election must be made, installment
payments shall automatically be made on an annual basis.
7.5 A participant terminates employment when no longer
employed by an Employer or an affiliate of an Employer. An
affiliate is a corporation or other entity that has been designated
an affiliate for this purpose by the Committee.
7.6 The Employer may withhold from any payments any income
tax or other amounts as required by law. Payments are generally
not subject to FICA or FUTA tax or related withholding.
8. Withdrawals
8.1 A participant may withdraw amounts from the Account
before the Payment Date as follows:
(a) Upon approval of the Committee, up to
100 percent of the amount reasonably necessary to meet an
unforeseeable emergency under 8.2, as determined by
the Committee.
(b) At the participant's option, 100 percent of
the Account balance less a forfeiture of 10 percent
of the amount withdrawn. The participant shall be
permanently ineligible to participate after a
forfeiture withdrawal.
8.2 "Unforseen emergency" means a participant's severe
financial hardship that cannot be met from other reasonably
available resources and is caused by one or more of the following:
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(a) Illness or accident of the participant or a
dependent under Internal Revenue Code section 152(a).
(b) Loss of the participant's property due to
casualty.
(c) Other similar extraordinary and
unforeseeable circumstances arising as a result of
events beyond the control of the participant.
8.3 Other resources are reasonably available if assets can
be liquidated without that itself creating severe financial
hardship, if insurance or other reimbursement is available, or if
deferrals under this plan can be stopped.
8.4 The Committee shall establish guidelines and procedure
for implementing withdrawals. An application for withdrawal shall
be written, shall be signed by the participant and shall include
the following:
(a) For hardship withdrawal, a statement of the
facts causing the financial hardship and any other
facts as may be required by the Committee.
(b) For forfeiture withdrawal, an
acknowledgement of the forfeiture and future
ineligibility.
8.5 The withdrawal date shall be fixed by the Committee.
The Committee may require a minimum advance notice and may limit
the amount, time and frequency of withdrawals.
8.6 Amounts forfeited under 8.1(b) shall be applied at the
first opportunity to offset contributions by Employer that may
otherwise be payable to a trust created under 6.1.
9. Death or Disability
9.1 A Participant's Account shall be payable under this
Section on the participant's death or disability regardless of the
provisions of Section 7.
9.2 On death the Account shall be paid under 9.3 within 30
days as follows:
(a) If the recipient is the surviving spouse
and the participant had selected installment pay out,
by installments in accordance with the selection.
(b) In all other cases, by a lump sum.
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9.3 An amount payable on death of a participant shall be
paid to the participant's beneficiary in the following order of
priority:
(a) To the surviving beneficiaries designated
by the participant in writing to the Committee.
(b) To the surviving beneficiaries designated
by the participant to receive death benefits under
the Profit Sharing Plan.
(c) To the participant's surviving spouse.
(d) To the participant's surviving children in
equal shares.
(e) To the participant's estate.
9.4 If a surviving spouse is receiving installments and
dies when a balance remains, the balance shall be paid in a lump
sum to the spouse's estate.
9.5 If a participant is temporarily disabled while
employed or is receiving long-term disability benefits under a plan
described in 9.6 the following shall apply:
(a) The participant shall be treated as
employed until age 65, and no payments will be made
from the Account before age 65 except as provided
below.
(b) If disability benefits stop and disability
continues, the Account shall be paid in accordance
with the election under Section 7.
(c) If the participant dies, the provisions
applicable to death shall be followed.
(d) If the participant ceases to be disabled
and does not resume employment, the provisions
applicable to termination shall be followed.
9.6 A participant is disabled if the Committee determines
that either of the following applies:
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(a) The participant is eligible to receive
long-term disability benefits under a plan maintained
by the Employer or an affiliate or would have been
eligible if covered by the plan.
(b) In the absence of a plan under (a), the
participant is permanently and totally disabled on
the basis of criteria established by the Committee.
10. Termination; Amendment
10.1 The Committee may terminate this plan effective the
first day of any month after notice to the participants or earlier
as provided in 12.4. On termination the following shall apply
except as provided in 10.3:
(a) Amounts deferred through the last month
before the effective date of termination shall remain
deferred and be credited to the Accounts in
accordance with the plan.
(b) Deferral elections shall terminate as of
the effective date of termination, and no further
deferrals shall be allowed.
(c) Amounts in an Account shall remain to the
credit of the Account, shall continue to receive
investment guideline credits and shall be paid out in
accordance with Sections 7, 8 and 9.
10.2 The Committee may amend this plan effective the first
day of any month by notice to the participants. An amendment may
be retroactive within the plan year in which notice is given except
that the right of participants to defer compensation may not be
reduced for the portion of the plan year through the month in which
the notice is given.
10.3 If the Internal Revenue Service issues a final ruling
that any amounts deferred under this plan will be subject to
current income tax, all amounts to which the ruling is applicable shall be
paid to the participants within 30 days.
11. Claims Procedure
11.1 Any person claiming a benefit, requesting an
interpretation or ruling under the plan, or requesting information
under the plan shall present the request in writing to the
Committee, which shall respond in writing as soon as practicable.
11.2 If the claim or request is denied, the written notice
of denial shall state:
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(a) The reasons for denial, with specific
reference to the plan provisions on which the denial
is based.
(b) A description of any additional materials
or information required and an explanation of why it
is necessary.
11.3 The initial notice of denial shall normally be given
within 90 days after receipt of the claim. If special circumstances
require an extension of time, the claimant shall be so notified
and the time limit shall be 180 days.
11.4 Any person whose claim or request is denied or who has
not received a response within 30 days may request review by notice
in writing to the Committee. The original decision shall be
reviewed by the Committee which may, but shall not be required to,
grant the claimant a hearing. On review, whether or not there is a
hearing, the claimant may have representation, examine pertinent
documents and submit issues and comments in writing.
11.5 The decision on review shall ordinarily be made within
60 days. If an extension of time is required for a hearing or
other special circumstances, the claimant shall be notified and the time
limit shall be 120 days. The decision shall be in writing and
shall state the reasons and the relevant plan provisions. Subject to
11.6, all decisions on review shall be final and bind all parties
concerned.
11.6 If Employer creates a trust under 6.1, a decision of
the Committee shall be subject to review by the Trustee to the
extent provided for under the trust.
12. General Provisions
12.1 If suit or action is instituted to enforce any rights
under this plan, the prevailing party may recover from the other
party reasonable attorneys' fees at trial and on any appeal.
12.2 Any notice or directions under this plan shall be in
writing and shall be effective when actually delivered or, if
mailed, when deposited postage prepaid as first class. Mail shall
be directed to Fred Meyer at the address stated in this plan, to
the participant at the address stated in the deferral election or to
such other address as a party may specify by notice to the other
parties. Notices to an Employer or the Committee shall be sent to
Fred Meyer's address.
12.3 The rights of a participant under this plan are
personal. Except for the limited provisions of 9.3 and 12.5, no
interest of a participant or any beneficiary or representative of a
participant may be directly or indirectly transferred, encumbered,
seized by legal process or in any other way subjected to the claims
of any creditor.
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12.4 If an Employer merges, consolidates, or otherwise
reorganizes or if its assets or business are acquired by another
company, this plan shall continue with respect to those eligible
employees who continue in the employ of the successor company. The
transition of Employers shall not be considered a termination of
employment for purposes of this plan. In such an event, however, a
successor corporation may terminate this plan as to its employees
on the effective date of the succession by notice to eligible
employees within 30 days after the succession.
12.5 The Committee may decide that because of the mental or
physical condition of a person entitled to payments, or because of
other relevant factors, it is in the person's best interest to make
payments to others for the benefit of the person entitled to
payment. In that event the Committee may in its discretion direct
that payments be made to one or more of the following:
(a) To a parent or spouse or a child of legal
age.
(b) To a legal guardian.
(c) To one furnishing maintenance, support, or
hospitalization.
13. Effective Date
This Restatement shall be effective as follows:
(a) The general effective date shall be
January 1, 1994.
(b) The change in maximum deferral under 3.1(d)
shall apply to deferrals after December 31, 1995.
Adopted July 20, 1995.
Fred Meyer, Inc.
By KENNETH THRASHER, SR VP
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Executed November 22, 1995