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EXHIBIT 10.16.1
RALPHS GROCERY COMPANY
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SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AMENDED AND RESTATED AS OF APRIL 9, 1994
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SUMMARY OF THE RALPHS GROCERY COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
1. The SERP provides additional benefits to a Participant which,
when added to his benefits under the Ralphs Grocery Company
Retirement Plan and the Ralphs Grocery Company Retirement
Supplement Plan, provides a total benefit equal to what he
would have received if the Retirement Plan were changed in
seven respects.
(a) The basic formula changed from being based on 3/4% of
Final Average Monthly Compensation below the Social
Security Bendpoint and 1-1/2% above to a formula
based on 2% of Final Average Monthly Compensation.
(b) Up to only 30 years of Credited Service could be
taken into account.
(c) The limits under section 415 of the Code were
inapplicable. [In 1989 section 415 limited pension
payments to $98,064 a year in the case of someone
retiring at age 65 (the limit is lower for earlier
retirement ages). The limit is adjusted for CPI
increases each year.]
(d) For purposes of computing benefits, the compensation
of a Participant includes amounts deferred under the
Company Savings Plan Plus, any cafeteria plan, or any
other deferred compensation plan.
(e) All compensation of a Participant is counted,
including compensation in excess of the limits
imposed by Code Section 401(a)(17).
(f) The Retirement Plan bases a Participant's benefit on
average compensation during the five consecutive
years in which average compensation is the highest.
The SERP will look at the highest three years,
whether or not consecutive.
(g) In the event of retirement before Social Security
Retirement Age, the Retirement Plan reduces benefits
by 4.8% a year from Social Security Retirement Age.
The SERP will reduce benefits by 2% from age 65. For
example, if a Participant retires at age 55, he will
receive 80% of the benefit payable at age 65.
However, in the case of a Participant who terminates
before his Early Retirement Date (an Early Retirement
Date occurs
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when a Participant terminates who has at least 10
years of service and is age 55 or older), the
actuarial reduction for early retirement will still
be 4.8% a year. There is one exception; if a
Participant terminates when he is entitled to a
benefit under his split-dollar life insurance policy,
the actuarial reduction is only 2%.
2. Prior to April 9, 1994, any individual who is employed by
Ralphs for one year and earns W-2 compensation higher than the
limits on compensation which can be taken into account under
section 401(a)(17) will automatically become a Participant in
the SERP. On or after April 9, 1994, an individual who is
employed by Ralphs and whose average Gross Compensation over
the three years that produces the highest average equals or
exceeds $235,840 will automatically become a Participant in
the SERP. The Administrator may include other employees as
Participants.
3. Unless the Board otherwise specifies, the Ralphs Grocery
Company Benefits Committee shall be the Administrator of the
SERP.
4. Benefits otherwise payable under the SERP will be forfeited if
a Participant is discharged for Cause (as defined in the
SERP).
5. If Ralphs institutes a program of split-dollar life insurance
policies for certain executives, any benefits otherwise
payable under the SERP to these executives will be reduced by
the cash value of any interest in the split-dollar policies
that the Participants become entitled to. The remaining SERP
benefit will be paid in a cash lump sum when the employee
terminates employment.
6. The SERP recites that it is a replacement of the Federated
Department Stores, Inc. Supplementary Retirement Plan and that
no current employees of Ralphs have any rights to benefits
under the Federated Plan. To the extent any such rights
exist, however, the SERP provides that any benefits otherwise
payable under the SERP are accordingly reduced.
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TABLE OF CONTENTS
Page
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PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 ELIGIBILITY TO PARTICIPATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 3 RETIREMENT DATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 4 AMOUNT OF SUPPLEMENTAL RETIREMENT BENEFIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 5 SUPPLEMENTAL, PRE-RETIREMENT DEATH BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 6 ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 7 AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 8 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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PREAMBLE
PURPOSE
The purpose of this Plan is to provide a select group of management or
highly compensated eligible employees of Ralphs Grocery Company (hereinafter
referred to as the Company) with supplemental retirement income and survivor
benefits in addition to the benefits from the Company qualified plans and
Social Security. This instrument states the terms and conditions of the Ralphs
Grocery Company Supplemental Executive Retirement Plan (hereinafter referred to
as the Plan), which was effective as of January 29, 1990 (hereinafter referred
to as the Effective Date). This amendment and restatement of the Plan is
effective as of April 9, 1994. This amendment and restatement shall not affect
the benefits of Participants who terminated employment with the Company prior
to April 9, 1994.
The Plan is intended to attract and retain as employees those
executives covered under the Plan and to provide benefits which are unavailable
under the Company qualified retirement plan because of limitations imposed by,
or shortfalls resulting from, (a) Section 415 of the Internal Revenue Code, (b)
Section 401(a)(17) of the Internal Revenue Code, and (c) amounts deferred by
eligible participants pursuant by provisions of any unfunded deferred
compensation plan maintained by the Company.
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ARTICLE 1
DEFINITIONS
The following words and phrases as used herein shall have the
following meanings:
1.1 "Accrued Benefit" shall mean a Participant's benefit accrued for
purposes of this Plan, which shall be the amount which the Participant
would have accrued under the terms of the Basic Plan if the following
changes were made to the Basic Plan:
(a) first, the term "Accrued Benefit" (as defined in the Basic
Plan) considered and used "Gross Compensation" rather than
"Compensation" in determining a Participant's benefit;
(b) second, a Participant's Accrued Benefit under the Basic Plan
were determined without regard to the limitations imposed
under the Basic Plan to comply with Sections 401(a)(17) and
415 of the Code;
(c) third, the determination of a Participant's "Final Average
Monthly Compensation" (FAMC) under the Basic Plan were based
on the highest monthly average of the Participant's Gross
Compensation for three, instead of
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five, calendar years of employment, whether or not such years
are consecutive; and
(d) fourth, instead of calculating a Participant's Accrued Benefit
based on a formula of 3/4% of Final Average Monthly
Compensation below the "Social Security Bendpoint" (as defined
in the Basic Plan) and 1-1/2% of Final Average Monthly
Compensation above the Social Security Bendpoint, the Accrued
Benefit is calculated as 2% of FAMC multiplied by Years of
Credited Service up to 30.
1.2 "Actuarial Equivalent" shall have the same meaning as under the Basic
Plan.
1.3 "Administrator" shall mean the person or committee, appointed by the
Board of Directors, with authority and responsibility to manage and
direct the operation and administration of the Plan. Unless otherwise
specified by the Board of Directors of the Company, the Ralphs Grocery
Company Benefits Committee shall be the Administrator. The Company
shall be the "plan administrator" as defined in ERISA.
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1.4 "Basic Plan" shall mean the Ralphs Grocery Company Retirement Plan as
in effect on January 1, 1985, and as it may hereafter be amended from
time to time.
1.5 "Beneficiary" shall mean anyone entitled to receive a death benefit
under the Plan on the death of a Participant. A Participant's
Beneficiary or Beneficiaries shall be the same as under the Basic
Plan.
1.6 "Board of Directors" shall mean the Board of Directors of the Company,
as constituted from time to time.
1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations relating thereto.
1.8 "Company" shall mean Ralphs Grocery Company, or any successor entity
thereto.
1.9 "Compensation" shall mean compensation as that term is defined in the
Basic Plan.
1.10 "Deferred Retirement Date" shall have the same meaning as described in
the Basic Plan.
1.11 "Disability Retirement Date" shall have the same meaning as described
in the Basic Plan.
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1.12 "Disabled" shall have the same meaning as in the Basic Plan.
1.13 "Early Retirement Date" shall have the same meaning as described in
the Basic Plan.
1.14 "Effective Date" shall mean January 29, 1990.
1.15 "Employee" shall mean a person who is an employee of an Employer.
1.16 "Employer" shall mean the Company and any corporation which is a
member of a controlled group of corporations (as defined in Section
414(b) of the Code) which includes the Company; any trade or business
(whether or not incorporated) with the Company; any organization
(whether or not incorporated) which is a member of an affiliated
service group (as defined in Section 414(m) of the Code) and which
includes the Company; and any other entity required to be aggregated
with the Company pursuant to regulations under Section 414(o) of the
Code.
1.17 "Gross Compensation" shall mean the Participant's compensation
reported for Federal Income Tax purposes for service rendered as an
Employee of an Employer, plus any amounts deferred under the Savings
Plus Plan or any unfunded deferred compensation plan maintained by the
Company or any salary reductions under Section 125 of the Code;
provided,
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however, that Gross Compensation shall not include moving expenses,
educational reimbursements, car allowances, income from exercising
stock options, imputed income from employee benefit programs
maintained by the Company, living allowances and payments to
Participants under the Executive Deferred Compensation Plan maintained
by the Company.
1.18 "Normal Retirement Age" shall mean age 65.
1.19 "Normal Retirement Date" shall mean the first day of the month
coincident with or next following the Participant's Normal Retirement
Age.
1.20 "Participant" shall mean an Employee of the Company who has become a
participant in the Plan pursuant to Article 2 and whose participation
therein has not ceased, pursuant to any provision of the Plan.
1.21 "Plan" shall mean the Ralphs Grocery Company Supplemental Executive
Retirement Plan, as herein set forth and as it may hereafter be
amended from time to time.
1.22 "Plan Year" shall mean the calendar year.
1.23 "Pre-Retirement Death Benefit" shall mean any qualified pre-retirement
survivor annuity (within the meaning of Section
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417(c) of the Code), which is provided under the Basic Plan pursuant
to Section 401(a)(11) of the Code.
1.24 "Qualified Plan Benefit" shall mean the benefit paid to a Participant
pursuant to provisions of the Basic Plan and shall include retirement
benefits payable on account of retirement on a Normal Retirement Date,
Early Retirement Date, Deferred Retirement Date, Disability Retirement
Date or the retirement of a Terminated Vested Participant with a
terminated vested benefit. For the purpose of the computations in
Sections 4.1 through 4.5 of this Plan, it shall be assumed that the
Qualified Plan Benefit is payable in the standard form of benefit,
i.e., a single life annuity for an unmarried Participant and a reduced
50% joint and survivor annuity for a married Participant.
1.25 "Retirement Supplement Plan" shall mean the Ralphs Grocery Company
Retirement Supplement Plan as in effect on January 1, 1994, and as it
may hereafter be amended from time to time.
1.26 "Supplemental Deferred Retirement Benefit" shall mean the benefit
provided under this Plan as described in Section 4.3.
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1.27 "Supplemental Deferred Vested Benefit" shall mean the benefit provided
under this Plan as described in Section 4.5.
1.28 "Supplemental Disability Retirement Benefit" shall mean the benefit
provided under this Plan as described in Section 4.4.
1.29 "Supplemental Early Retirement Benefit" shall mean the benefit
provided under this Plan as described in Section 4.2.
1.30 "Supplemental Normal Retirement Benefit" shall mean the benefit
provided under this Plan as described in Section 4.1.
1.31 "Supplemental Pre-Retirement Death Benefit" shall mean the benefit
provided under this Plan as described in Article 5.
1.32 "Supplemental Retirement Benefit" shall mean the benefit payable under
this Plan pursuant to the appropriate section of Article 4.
1.33 "Terminated Vested Participant" shall mean a Participant who is
eligible for a benefit under the Basic Plan pursuant to Article 6 of
the Basic Plan.
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1.34 "Year of Credited Service" shall have the same meaning as described in
the Basic Plan; except that for purposes of this Plan a Participant
shall be credited with a maximum of 30 Years of Credited Service.
Notwithstanding the preceding sentence, with respect to Participants
who terminated employment with the Company prior to April 9, 1994, for
purposes of this Plan a Participant shall be credited with a maximum
of 20 Years of Credited Service.
1.35 "Year of Vesting Service" shall have the same meaning as described in
the Basic Plan.
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ARTICLE 2
ELIGIBILITY TO PARTICIPATE
2.1 Participation Criteria
Prior to April 9, 1994, an Employee shall automatically become a
Participant in this Plan if he is employed by the Company throughout a
Plan Year and his compensation during that year exceeds the limit
under Section 401(a)(17) of the Code on the amount of wages which may
be taken into account in computing benefits under the Basic Plan. On
or after April 9, 1994, an Employee shall automatically become a
Participant in this Plan if the average of his Gross Compensation that
is taken into account under Section 1.1(c) to determine his Final
Average Monthly Compensation equals or exceeds $235,840. Any Employee
not named in the preceding sentence shall also become a Participant in
the Plan if he is named as a Participant by the Administrator.
2.2 Loss of Participant Status
An Employee who becomes a Participant shall remain a Participant as
long as he is entitled to any benefits under the Plan.
2.3 Inactive Participant Status
An Employee may be designated as an inactive Participant by the
Administrator at any time. The Accrued Benefit of an inactive
Participant shall be frozen (i.e., not increased
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over the amount that would then be payable on behalf of the
Participant if he permanently terminated employment as an Employee)
from the date he is designated as such by the Administrator provided
he is given timely notification of such change in status.
Notification shall be deemed timely if it is provided to the
Participant within 30 days of the change in status.
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ARTICLE 3
RETIREMENT DATES
3.1 Retirement Dates
A Participant's Retirement Date shall be his date of actual retirement
which may be his Normal, Early, Disability, or Deferred Retirement
Date as hereinafter defined, whichever is applicable to him pursuant
to the following Sections of this Article 3.
3.2 Normal Retirement
A Participant may retire under this Plan on his Normal Retirement Date
provided he retires under and commences receiving his benefit under
the Basic Plan.
3.3 Early Retirement
A Participant may retire under this Plan on an Early Retirement Date
(which may be the first day of any month coincident with or subsequent
to his 55th birthday and his completion of at least 10 Years of
Vesting Service) provided he retires under and commences receiving his
benefit under the Basic Plan.
3.4 Deferred Retirement
If a participant continues in the employment of an Employer beyond his
Normal Retirement Date, the first day of any month coincident with or
subsequent to his termination of
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employment after his Normal Retirement Date and commencement of
receipt of benefits under the Basic Plan shall be known as his
Deferred Retirement Date. Such a Participant may retire under this
Plan on such Deferred Retirement Date provided he retires under and
commences receiving his benefit under the Basic Plan.
3.5 Disability Retirement
A participant who is Disabled shall be entitled to a Supplemental
Disability Benefit under this Plan on a Disability Retirement Date
(which will be the first day of any month coincident with or
subsequent to his 55th birthday and his completion of at least 10
years of Vesting Service) provided he retires under and commences
receiving his benefit under the Basic Plan.
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ARTICLE 4
AMOUNT OF SUPPLEMENTAL RETIREMENT BENEFIT
4.1 Supplemental Normal Retirement Benefit
A Participant who retires on or after the Effective Date under the
Basic Plan on his Normal Retirement Date shall receive in the form of
a life annuity (if unmarried) or a reduced 50% joint and survivor
annuity (if married) a Supplemental Normal Retirement Benefit equal to
(A) minus (B) where:
(A) equals his Accrued Benefit determined pursuant to this Plan;
and
(B) equals (i) the amount of the Qualified Plan Benefit actually
payable to the Participant at his Normal Retirement Date as
determined under the Basic Plan, plus (ii) the amount of the
benefit actually payable to the Participant at his Normal
Retirement Date as determined under the Retirement Supplement
Plan.
4.2 Supplemental Early Retirement Benefit
A Participant who retires on or after the Effective Date under the
Basic plan on his Early Retirement Date shall receive in the form of a
life annuity (if unmarried) or a reduced 50% joint and survivor
annuity (if married) a
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Supplemental Early Retirement Benefit equal to (A) minus (B) where:
(A) equals his Accrued Benefit determined pursuant to this Plan
reduced by 1/6 of one percent (1/6%) for each month by which
the commencement of his Supplemental Early Retirement Benefit
precedes his Normal Retirement Date; and
(B) equals (i) the amount of the Qualified Plan Benefit actually
payable to the Participant at his Early Retirement Date as
determined under the Basic Plan, plus (ii) the amount of the
benefit actually payable to the Participant at his Early
Retirement Date as determined under the Retirement Supplement
Plan.
4.3 Supplemental Deferred Retirement Benefit
A Participant who retires on or after the Effective Date under the
Basic Plan on a Deferred Retirement Date shall receive in the form of
a life annuity (if unmarried) or a reduced 50% joint and survivor
annuity (if married) a Supplemental Deferred Retirement Benefit equal
to (A) minus (B) where:
(A) equals his Accrued Benefit determined pursuant to this Plan;
and
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(B) equals (i) the amount of the Qualified Plan Benefit actually
payable to the Participant at his Deferred Retirement Date as
determined under the Basic Plan, plus (ii) the amount of the
benefit actually payable to the Participant at his Deferred
Retirement Date as determined under the Retirement Supplement
Plan.
4.4 Supplemental Disability Retirement Benefit
A Participant who retires on or after the Effective Date under the
Basic Plan on a Disability Retirement Date shall receive in the form
of a life annuity (if unmarried) or a reduced 50% joint and survivor
annuity (if married) a Supplemental Disability Retirement Benefit
equal to (A) minus (B) where:
(A) equals his Accrued Benefit determined pursuant to this Plan
reduced by 1/6 of one percent (1/6%) for each month by which
the commencement of this Supplemental Disability Retirement
Benefit precedes his Normal Retirement Date; and
(B) equals (i) the amount of the Qualified Plan Benefit actually
payable to the Participant at his Disability Retirement Date
as determined under the Basic Plan, plus (ii) the amount of
the benefit actually payable to the Participant at his
Disability Retirement Date as determined under the Retirement
Supplement Plan.
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4.5 Supplemental Deferred Vested Retirement Benefit
A Participant who retires on or after the Effective Date under the
Basic Plan and receives a benefit under the Basic Plan as a Terminated
Participant shall receive in the form of a life annuity (if unmarried)
or a reduced 50% joint and survivor annuity (if married) a
Supplemental Deferred Vested Retirement Benefit equal to (A) minus (B)
where:
(A) equals his Accrued Benefit determined pursuant to this Plan
reduced by 4/10 of one percent (4/10%) for each month by which
the commencement of his Supplemental Deferred Vested
Retirement Benefit precedes his Normal Retirement Date; and
(B) equals (i) the amount of the Qualified Plan Benefit actually
payable to the Participant at his actual retirement date under
the Basic Plan, plus (ii) the amount of the benefit actually
payable to the Participant at his actual retirement date under
the Retirement Supplement Plan.
Notwithstanding the preceding sentence, in the case of a Participant
described in Section 8.15 who terminates employment when he is
entitled to a benefit under his Policy, the phrase "4/10 of one
percent (4/10%)" shall be replaced by the phrase "1/6 of one percent
(1/6%)."
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4.6 Form of Benefit
The Supplemental Retirement Benefit payable pursuant to this article
shall be paid to the Participant in the normal form described in
Section 4.1 through 4.5 or, if an optional form is elected under the
Basic Plan, in the same form as elected under the Basic Plan. A
retirement benefit payable from the Plan in a form other than the
normal form (i.e., a life annuity for an unmarried Participant or a
reduced joint and survivor annuity in the case of a married
participant) shall be the Actuarial Equivalent of the normal form.
The election as to any optional benefit under the Basic Plan shall be
deemed an election of that optional benefit under this Plan and any
consent of the spouse required and given under the Basic Plan shall be
deemed consent to that optional benefit under this Plan.
4.7 Commencement of Benefits
Payment of the Supplemental Retirement Benefit to the Participant
shall commence on the same date as payment of the Basic Plan
retirement benefit payable to the Participant and shall terminate on
the date of the last payment of the Basic Plan retirement benefit.
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ARTICLE 5
SUPPLEMENTAL, PRE-RETIREMENT DEATH BENEFITS
5.1 Supplemental Pre-Retirement Death Benefits
If a Participant dies prior to the commencement of payment of his
Qualified Plan Benefit and if a Pre-Retirement Death Benefit would be
payable to his surviving spouse under the Basic Plan, then a
Supplemental Pre-Retirement Death Benefit will be payable to the
Participant's surviving spouse under this Plan.
The amount of the Supplemental Pre-Retirement Death Benefit payable
under this Plan shall be either (A) or (B) as described below:
(A) In the case of a Participant who has at least five years of
Vesting Service, the surviving spouse of the Participant shall
receive from this Plan, as of the date a Pre-Retirement Death
Benefit becomes payable from the Basic Plan:
(1) an amount equal to the Pre-Retirement Death Benefit
that would have been payable under the Basic Plan if
the Basic Plan had calculated this benefit using the
definition of Accrued Benefit in this Plan; less
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(2) (i) the amount of the Qualified Plan Benefit actually
payable to the surviving spouse of the Participant as
determined under the Basic Plan, plus (ii) the amount
of the benefit actually payable to the surviving
spouse of the Participant as determined under the
Retirement Supplement Plan.
(B) If a Participant has five or more years of Vesting Service and
the benefit under this subsection is greater than the amount
described in (A), the designated Beneficiary shall receive a
lump sum benefit equal to the Actuarial Equivalent of the
Participant's Accrued Benefit less the Actuarial Equivalent of
(i) the Qualified Plan Benefit actually payable under the
Basic Plan and (ii) the benefit payable under the Retirement
Supplement Plan; provided that, for this purpose the
Participant's Accrued Benefit shall be computed by multiplying
the Participant's Final Average Monthly Compensation times
3/4% times Years of Credited Service.
5.2 Form and Commencement of Benefits
The Supplemental Pre-Retirement Death Benefit payable pursuant to
Section 5.1(A) shall be payable over the lifetime of the surviving
spouse in monthly installments commencing on the same date as payment
of the Qualified Plan
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Benefit payable to such surviving spouse on account of the death of
the Participant and shall terminate on the date of the last payment of
the Pre-Retirement Death Benefit payable from the Basic Plan.
Notwithstanding the preceding sentence, the benefit payable under
Section 5.1(A) shall be paid in a lump sum if the surviving spouse
elects to receive the Pre-Retirement Death Benefit under the Basic
Plan in a lump sum.
The Supplemental Pre-Retirement Death Benefit payable pursuant to
Section 5.1(B) shall be payable as a single lump sum as soon as
administratively possible after the death of the Participant.
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ARTICLE 6
ADMINISTRATION OF THE PLAN
6.1 Administration
Except for the functions reserved within the Plan to the Company or
the Board of Directors, the administration of the Plan shall be the
responsibility of the Administrator appointed by the Board of
Directors.
6.2 Powers of the Administrator
The Administrator shall have the power and the duty to make all
decisions necessary or proper to carry out the Plan. The
determination of the administrator as to any question involving the
general administration and interpretation of the Plan shall be final,
conclusive and binding. Any discretionary actions to be taken under
the Plan by the Administrator with respect to the classification of
Employees, Participants, joint or contingent annuitants, beneficiaries
or benefits shall be uniform in their nature and applicable to all
persons similarly situated. Without limiting the generality of the
foregoing, the Administrator shall have the following powers and
duties:
(A) To furnish to all Participants, upon request, copies of the
Plan, and to require any person to furnish such information as
it may request for the purpose of the
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proper administration of the Plan as a condition to receiving
any benefits under the Plan;
(B) To make and enforce such rules and regulations and prescribe
the use of such forms as it shall deem necessary for the
efficient administration of the Plan;
(C) To interpret the Plan, and to resolve ambiguities,
inconsistencies and omissions, which findings shall be
binding, final and conclusive;
(D) To decide on questions concerning the Plan in accordance with
the provisions of the Plan;
(E) To determine the amount of benefits which shall be payable to
any person in accordance with the provisions of the Plan; to
instruct the Company as to payments to be made under this Plan
and to provide a full and fair review to any Participant whose
claim for benefits has been denied in whole or in part;
(F) To allocate any such powers and duties to or among individual
members of any administrative committee appointed as the
Administrator; and
(G) To designate persons other than Administrator or members of
any administrative committee to carry out
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any duty or power which would otherwise be a responsibility of
the Administrator.
6.3 Reliance on Professional Counselors
To the extent permitted by law, the Administrator and any person to
whom it may delegate any duty or power in connection with
administering the Plan, the Company, and the officers and directors of
the Company, shall be entitled to rely conclusively upon, and shall be
fully protected in any action taken or suffered by them in good faith
in the reliance upon, any actuary, counsel, accountant, other
specialist, or other person selected by the Administrator, or in
reliance upon any tables, valuations, certificates, opinions or
reports which shall be furnished by any of them. Further, to the
extent permitted by law, the Administrator, the Company, and the
officers and directors of the Company, shall not be liable for any
neglect, omission or wrongdoing of any other members of any
administrative committee, agent, officer or Employee of the Company.
Any person claiming benefits under the Plan shall look solely to the
company for redress.
6.4 Expenses of the Plan
All expenses incurred prior to the termination of the plan that shall
arise in connection with the administration of the Plan, including,
but not limited to administrative expenses, proper charges and
disbursements, compensation and
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other expenses and charges of any actuary, counsel, accountant,
specialist, or other person who shall be employed by the Administrator
in connection with the administration thereof, shall be paid by the
Company.
6.5 Claims Procedure
A claim for benefits under the Plan must be made to the Administrator
in writing. The Administrator shall provide adequate notice in
writing to any participant, joint annuitant or Beneficiary whose claim
for benefits under the Plan has been denied, setting forth the
specific reasons for such denial, written in a manner calculated to be
understood by the Participant, joint annuitant or Beneficiary. If a
claim is denied, the Participant or his authorized representative may
request a review of the denial, but such a request must be in writing,
and must be submitted to the Administrator within 60 days after the
claimant's claim has been denied. A decision upon review shall be
made by the Administrator within 60 days of the receipt of the request
for review, unless the Administrator determines that special
circumstances require additional time, in which case a decision shall
be rendered not later than 120 days after receipt of the request for
review. The decision on the review shall be in writing and shall
include specific reasons for the decision, written in a manner
calculated to be understood by the claimant, and specific reference to
the pertinent Plan provisions on which the decision is based.
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6.6 Indemnification of Administrator
The Employer shall indemnify and hold harmless the Administrator
against any and all claims, loss, damage, expense or liability arising
from any action or failure to act with respect to this Plan, except in
the case of gross negligence or willful misconduct.
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ARTICLE 7
AMENDMENT AND TERMINATION
7.1 Amendment
The Company, although it intends the Plan to be permanent, reserves
the power and the right to amend the Plan at any time. However, no
amendment shall reduce the amount of the Supplemental Retirement
Benefit which has been accrued by a Participant under the Plan as of
the amendment date. Any such amendment shall be made pursuant to a
resolution of the Board of Directors.
7.2 Termination
The Company reserves the power and the right to terminate the Plan at
any time; provided, however, that any such termination will not be
retroactive. Any termination of the Plan shall be pursuant to a
resolution of the Board of Directors. If the Plan is terminated, the
Actuarial Equivalent present value of any remaining benefits payable
to a Participant or spouse who is receiving Plan benefits, and the
accrued Supplemental Retirement Benefit for an active Participant
payable as a life annuity beginning at Normal Retirement Date, shall
be paid in a lump sum 30 days after the termination of the Plan.
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ARTICLE 8
GENERAL PROVISIONS
8.1 Unsecured Creditor
Participants and their spouses, Beneficiaries, heirs and successors
under this Plan shall have solely those rights of an unsecured
creditor of the Employer. Any and all assets of the Employer shall
not be deemed to be held in trust for any Participant, their
Beneficiaries, heirs and successors, nor shall any assets be
considered security for the performance of obligations of the Employer
and said assets shall at all times remain unpledged, unrestricted
general assets of the Employer. The Employer's obligation under the
Plan shall be an unsecured and unfunded promise to pay benefits at a
future date.
8.2 Unfunded Plan
This Plan is an unfunded plan maintained to provide supplemental
retirement benefits for a select group of management and highly
compensated employees. Any Participant's accounts under the Plan are
maintained for record keeping purposes only and are not to be
construed as funded.
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8.3 No Contract
This Plan shall not be deemed to constitute a contract between the
Employer and any Employee or other person whether or not in the employ
of the Employer, nor shall anything herein contained be deemed to give
any Employee or other person whether or not in the employ of the
Employer any right to be retained in the employ of the Employer, or to
interfere with the right of the Employer to discharge any Employee at
any time and to treat him without any regard to the effect which such
treatment might have upon him as a Participant of the Plan.
8.4 Nonassignability
Except as may otherwise be required by law, no distribution or payment
under the Plan to any Participant, spouse or Beneficiary shall be
subject in any manner to anticipation, alienation, sale transfer,
assignment, pledge, encumbrance or charge, whether voluntary or
involuntary, and any attempt to so anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same shall be void.
No distribution or payment shall be in any way liable for, or subject
to, the debts, contracts, liabilities, engagements or torts of any
person entitled to such distribution or payment. If any Participant,
beneficiary, or joint or contingent annuitant is adjudicated bankrupt
or purports to anticipate, alienate, sell, transfer, assign, pledge,
encumber or charge any such distribution or payment, voluntarily or
involuntarily, the
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Administrator, in this discretion, may cancel such distribution or
payment (or any part thereof) to or for the benefit of such
Participant, spouse or Beneficiary in such manner as the Administrator
shall direct.
8.5 Incapacity
If the Administrator determines that any person entitled to payments
under the Plan is an infant or incompetent by reason of physical or
mental disability, it may cause all payments thereafter becoming due
to such person to be made to any other person for his benefit, without
responsibility to follow application of the amounts so paid. Payments
made pursuant to this provision shall completely discharge the Plan,
the Company, the Employer and the Administrator.
8.6 Permissible Purchase of Annuity Contracts
At the request of the Participant, the Administrator may, in lieu of
paying the benefit to which the Participant is entitled directly from
the Plan, purchase an annuity contract which will provide benefits in
an amount equal to that which the retired Participant is entitled
under this Plan. The ownership of any such annuity contract shall be
retained by the Employer.
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8.7 Masculine, Feminine, Singular and Plural
The masculine shall include the feminine and the singular shall
include the plural and the plural the singular wherever the person or
entity or context shall plainly so require.
8.8 Withholding Taxes
The Administrator may make any appropriate arrangements to deduct from
all amounts paid under the Plan any taxes required to be withheld by
any government or governmental agency.
8.9 Number of Counterparts
This Plan may be executed in any number of counterparts, each of which
when duly executed by the Employer shall be deemed to be an original,
but all of which shall together constitute but one instrument, which
may be evidenced by any counterpart.
8.10 Governing Law
The provisions of the Plan shall be construed, administered and
interpreted under the applicable Federal law and, to the extent not
preempted, the laws of the State of California.
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8.11 Binding Agreement
This Plan shall be binding on the parties hereto, their heirs,
executors, administrators, and successors in interest.
8.12 Invalidity of Certain Provisions
If any provision of this Plan is invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision
hereof and this Plan shall be construed and enforced as if such
provision had not been included.
8.13 Successor Organizations
The Employer agrees that it will not merge or consolidate with any
other corporation or organization, or permit its business activities
to be taken over by any other organization, unless and until the
succeeding or continuing organization or corporation assumes the
rights and obligations under this Plan. If the successor organization
refuses to accept the rights and obligations of this Plan, the Plan
shall terminate prior to the consolidation or merger and benefits
shall be calculated and distributed to Participants.
8.14 Forfeiture
Notwithstanding anything in this Plan to the contrary, the entire
amount credited to a Participant as his Accrued
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Benefit shall be forfeited if the Company discharges the Participant
for:
(A) theft, embezzlement, or obtaining funds or property under
false pretenses, if such transgressions are demonstrably
material in amount both in relation to the Participant and the
Company;
(B) engaging in an act of dishonesty or moral turpitude (including
convictions of felonies) if such act materially and
demonstrably injures the Company (provided that, traffic or
moving violations shall not constitute acts of dishonesty or
moral turpitude for the purpose of this paragraph); or
(C) willfully failing to substantially perform his duties as an
Employee of the Company (other than as a result of incapacity
due to physical illness), where the Participant has either
acted in bad faith or without a reasonable belief that such
breach was in the best interests of the Company and such
failure has resulted in material and demonstrable injury of
the Company.
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8.15 Offset for Certain Benefits Payable under Split-Dollar Life Insurance
Agreements
(a) Some of the Participants under this Plan may own life
insurance policies (the "Policies"). The ownership of these Policies by the
Participant is, however, subject to certain conditions (set forth in a
"Split-Dollar Life Insurance Agreement" between the Participant and the
Company) and, if the Participant fails to meet the conditions set forth in the
Split-Dollar Life Insurance Agreement, the Participant may lose certain rights
under the Policy. In the event that a Participant satisfies the conditions
specified in Sections 5 or 6 of the Split- Dollar Life Insurance Agreement, so
that the Participant or his beneficiary becomes entitled to benefits under
those sections, the value of those benefits shall constitute an offset to any
benefits otherwise payable under this Plan. As the case may be, this offset
(the "Offset Value") shall be calculated by determining the value of benefits
payable under the Split-Dollar Life Insurance Agreement, the cash surrender
value of the Policy, or in the case of the Participant's death, the death
benefits payable to the beneficiary under the Policy. The Offset Value shall
then be compared to the Actuarial Equivalent of the benefits payable under the
Plan (the "Plan Value"), and the Plan Value shall be reduced by the Offset
Value.
(b) At the time when the Participant terminates employment, if the
Plan Value exceeds the present value of the Offset Value, the excess of the
Plan Value over the Offset Value shall be paid
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to the Participant or beneficiary at that time in a lump sum. Such payment
shall completely discharge all obligations owed under this Plan on account of
Participant's participation in this Plan. In the case of a Participant who
terminates employment for a reason other than death, the calculation of the
Plan Value shall be based on the pension under the SERP to which the Employee
would be entitled if he then retired or, if the Participant is not yet eligible
to retire, the pension under the SERP to which the Participant would be
entitled if he retired on the first day on which he is eligible to retire.
(c) If the Policy described in subsection (a) is not on the life
of the Participant, the insured dies prior to the Participant's becoming
eligible for benefits under the Plan, and the Participant subsequently becomes
eligible for benefits hereunder, the actuarial value of the benefits payable
hereunder shall be offset by the actuarial value of the payments previously
paid to the Participant under the Split-Dollar Life Insurance Agreement.
Calculations shall be done on an after-tax basis. Any remaining amount due the
Participant shall thereupon be paid in a cash lump sum.
8.16 Special Rules Applicable to the Federated Department Stores, Inc.
Supplementary Retirement Plan
In 1988 the Federated Department Stores, Inc. Supplementary
Retirement Plan (the "Federated Plan") was completely terminated with respect
to its application to current Employees of the
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Company. Such termination provided that, except in the case of Employees who
had previously retired under the Federated Plan, no Employee of the Company
would ever receive a benefit under the Federated Plan on account of the prior
existence of the Federated Plan. Participants who receive benefits under this
Plan thus receive such benefits in lieu of any benefits that would have been
due to them under the Federated Plan if it had continued in existence. It is
intended that no benefits be payable to any Employee of the Company (whether or
not a Participant in this Plan) on account of the prior maintenance of the
Federal Plan. Accordingly, in the event it is ever judicially determined that
any benefits are payable to any Employee of the Company on account of the prior
existence of the Federated Plan (whether the benefits are payable by Federated
Department Stores, Inc., affiliates of Federated Department Stores, Inc., or by
any other company), the amount of such benefits shall reduce any benefits
otherwise payable under this Plan. The amount of such reductions shall be
computed by calculating the Actuarial Equivalent of any benefits found to be
payable under the Federated Plan and then reducing the benefits payable under
this Plan by such Actuarial Equivalent. The determinations of the
Administrator with respect to the amount of such reductions shall be binding
upon all Participants under this Plan.
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8.17 Rules Applicable to Retirees Before January 29, 1990
After termination of the Federated Plan and prior to January 29, 1990,
certain employees of the Company retired (the "Interim Retirees") and began to
receive unfunded supplemental retirement benefits pursuant to a formula
established by the Administrator. Such retirees shall continue to receive
their benefits and, as of January 29, 1990, those benefits shall be considered
to be provided under this Plan. The amount of benefits payable to each Interim
Retiree shall not, however, be computed under the formula established under
this Plan but shall continue to be payable under the formula in effect at the
time of his retirement.
8.18 Certain Employees who formerly participated in the Federated
Department Stores, Inc. Executive Deferred Compensation Plan
(a) This section shall only apply to an Employee if (1) the
Employee retires on or after January 29, 1990, (2) the Employee would not be
(except for the existence of this section) otherwise entitled to benefits under
this Plan, and (3) the Employee previously participated in the Federated
Department Stores, Inc. Executive Deferred Compensation Plan (the "Federated
Deferred Compensation Plan"). An Employee described in the preceding sentence
shall receive no benefits under the Plan except for those provided by this
section.
(b) The amount payable to an Employee described in this section
shall be computed by calculating the benefit payable to
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such Employee under the Basic Plan as if the definition of "Compensation"
thereunder included amounts deferred by such Employee under the Federated
Executive Deferred Compensation Plan. The difference between the amount
actually payable to the Employee or his beneficiary under the Basic Plan and
the amount that would been payable if Compensation had included such deferred
amounts, shall be payable as a supplementary benefit under this Plan.
(c) The timing and form of payments under this section shall be
based on the timing and form of payments under the Basic Plan with respect to
the benefit that is being supplemented.
IN WITNESS WHEREOF, this amended and restated Plan has been
executed on this ____ day of ______, 1994.
RALPHS GROCERY COMPANY
By
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Its
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By
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Its
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