Exhibit 10.b.1.(xx)
A&B EXCESS BENEFITS PLAN
AMENDMENT NO. 3
The A&B Excess Benefits Plan, as amended and restated effective July 1,
1991, is hereby amended, effective February 1, 1995, as follows:
1. A new Section 2.00 is hereby added, as follows:
"2.00. 'Actuarial Equivalent' means a form of benefit differing
in time period, or manner of payment from a specified benefit provided
in the Plan, but having the same present value when determined in
accordance with generally accepted actuarial practice and the rules
contained in Appendix C of this Plan."
2. Section 4.01(c) is hereby amended in its entirety to read as follows:
"4.01(c). Payment of Pension Benefits. A Participant's pension
benefit under this Plan, other than a benefit described in subsection
(d), shall be a lump sum payment payable upon the earlier of
termination of employment or retirement, which equals the greater of
the amounts determined under paragraph (1) and paragraph (2):
(1) An amount which is the Actuarial Equivalent of the benefit
described in paragraphs (a) and (b) above.
(2) An amount which is the before-tax equivalent of the lower of
two quotations obtained by the Administrator from insurance companies
for the cost of a lifetime annuity that provides after-tax monthly
benefits equivalent to those that a Participant would receive under
this Plan if this Plan allowed monthly payments of the pension
benefits hereunder."
3. Section 6.02(a) is hereby amended by adding the phrase "as described
in Section 4.02 and 4.03" after the phrase "the balance of his or her individual
account" in the third sentence, and replacing the phrase "the actuarial
equivalent, as defined in section 6.02(c)" with the phrase "an amount which is
the Actuarial Equivalent", also in the third sentence.
4. Section 6.02(c) is hereby deleted in its entirety.
5. A new Appendix C is hereby added, as follows:
"APPENDIX C
RULES FOR DETERMINING LUMP SUM BENEFITS
When the terms of this Plan require the determination of a lump sum
payment which is the Actuarial Equivalent of any other benefit
provided by this Plan, the following rules shall apply to the
calculation of such lump sum payment:
1. The mortality table used shall be the mortality table then in use
by the A&B Retirement Plan for the purpose of determining lump
sum payments to participants of such plan who are entitled to
such payments.
2. The discount rate shall be the after-tax equivalent of the
discount rate then in use by the A&B Retirement Plan for the
purpose of determining lump sum payments to participants of such
plan who are entitled to such payments. The after-tax equivalent
rate shall be determined by multiplying discount rate in use by
the A&B Retirement Plan by the excess of 100% over the tax
effected marginal tax rate declared by the Committee.
3. The Committee shall declare the tax effected marginal tax rate at
the beginning of each calendar year.
4. The tax effected marginal tax rate shall apply to lump sum
payments made at any time during such calendar year and may not
be changed during the year.
5. The value of the benefit to a Surviving Spouse which is included
in a Participant's Retirement Income shall be included in the
calculation of the lump sum payment to which the Participant is
entitled. Unless stated otherwise, the benefit to the Surviving
Spouse shall be deemed to apply only if the death of the
Participant occurs on or after the date the Retirement Income is
deemed to commence under the terms of the provision giving rise
to the Participant's right to a lump sum payment.
6. If the terms of the Plan provide for a benefit such that if it
were paid as a monthly benefit it could have commenced at more
that one future date, then for purposes of calculating the lump
sum that is the Actuarial Equivalent of such benefit, it shall be
deemed that the benefit would have commenced at the earliest
possible date.
7. The early retirement reduction factors, if any, used to calculate
the lump sum which is the Actuarial Equivalent of the benefit
provided by the provisions of paragraph 6.02(a) as a result of a
Change of Control, shall be the factors applicable to
Participants of the A&B Retirement Plan who terminate employment
after attaining eligibility for early retirement regardless of
the Participant's age as of the Change of Control date."
6. Except as modified by this Amendment, all terms and provisions of the
A&B Excess Benefits Plan shall continue in full force and effect.
IN WITNESS WHEREOF, Alexander & Baldwin, Inc. has caused its authorized
officers to affix the corporate name and seal hereto this 22nd day of February,
1995.
ALEXANDER & BALDWIN, INC.
By /s/ Miles B. King
Its Vice President
By /s/ Alyson J. Nakamura
Its Assistant Secretary
A&B EXCESS BENEFITS PLAN
AMENDED AND RESTATED EFFECTIVE FEBRUARY 1, 1995
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.01. ESTABLISHMENT OF PLAN. Alexander & Baldwin, Inc. hereby
establishes an excess benefits/top hat plan for certain eligible executives.
1.02. PURPOSE OF PLAN. It is the purpose of this Plan to provide
certain eligible executives with benefits equal to the benefits they would
receive under the A&B Retirement Plan and the A&B Profit Sharing Plan if certain
changes had been made to those plans. The Plan is intended to be exempt from
the participation, vesting, funding, and fiduciary requirements of Title I of
the Employee Retirement Income Security Act of 1974, pursuant to
Sections 201(2), 301(3) and 401(1) of that Act.
ARTICLE II
DEFINITIONS
The following terms have the meanings indicated:
2.00. "Actuarial Equivalent" means a form of benefit differing in
time period, or manner of payment from a specified benefit provided in the Plan,
but having the same present value when determined in accordance with generally
accepted actuarial practice and the rules contained in Appendix C of this Plan.
2.01. "A&B" means Alexander & Baldwin, Inc. and its affiliates and
their successors.
2.02. "A&B Master Trust Agreement" means the Alexander & Baldwin,
Inc. Retirement and Pension Trust Agreement, as amended from time to time.
2.03. "A&B Retirement Plan" means the A&B Retirement Plan for
Salaried Employees.
2.04. "A&B Profit Sharing Plan" means the Alexander & Baldwin,
Inc. Profit Sharing Retirement Plan, as amended from time to time.
2.05. "Administrator" means the person specified in Section 5.01.
2.06. "Board of Directors" means the Board of Directors of
Alexander & Baldwin, Inc.
2.07. "Participant" means an eligible employee selected by the
Administrator pursuant to Section 3.02.
2.08. "Plan" means the plan set forth in this document, as amended
from time to time.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01. ELIGIBILITY. Any employee of A&B who is a participant in
either the A&B Retirement Plan or the A&B Profit Sharing Plan and who is highly
compensated or who is one of a select group of management employees shall be
eligible to participate in this Plan.
3.02 PARTICIPATION. Participants in this Plan shall be any eligible
employees who are participants in the One-Year Performance Improvement Incentive
Plan ("One-Year PIIP") who meet the eligibility requirements set forth in
Section III.A. of the One-Year PIIP. In addition, the Administrator shall have
the exclusive and unfettered discretion to select additional Plan Participants
from among eligible employees. A Participant in this Plan shall remain as such
until the date he/she ceases to satisfy the participation requirements in the
first sentence of this Section 3.02, until the date upon which the Participant's
employment terminates for any reason or until such earlier time as may be
specified by the Administrator.
3.03. TRANSFERS OF EMPLOYMENT TO AND FROM A&B SUBSIDIARIES. The
following transfers of employment shall not be deemed terminations of employment
under Section 3.02 if the A&B subsidiary or subsidiaries involved have adopted
this Plan and either the A&B Retirement Plan or the A&B Profit Sharing Plan, or
both such plans:
(a) transfer from Alexander & Baldwin, Inc. to a subsidiary of
Alexander & Baldwin, Inc.;
(b) transfer from a subsidiary of Alexander & Baldwin, Inc. to
Alexander & Baldwin, Inc.; and
(c) transfer from one subsidiary of Alexander & Baldwin, Inc. to
another subsidiary of Alexander & Baldwin, Inc. Beginning with such transfer,
and for the period of employment with the new employer, the new employer shall
be obligated for all payments to the Participant required by Article IV of this
Plan. The prior employer shall remain responsible for any payments to be made
that pertain to the period of the Participant's participation while employed by
that prior employer.
ARTICLE IV
BENEFITS
4.01. PENSION BENEFITS.
(a) ENTITLEMENT TO PENSION BENEFITS. A Participant's pension
benefit under this Plan shall equal one hundred percent of the difference
between the benefit to which the Participant is entitled under the A&B Retire
ment Plan determined without regard to limitations imposed by the Internal
Revenue Code (and, with respect to Participants listed in Appendix A to this
Plan, without regard to amendments in the benefit formula after December 31,
1988, unless such amendments would produce a higher benefit) and the benefit to
which the Participant is entitled under such plan determined after giving effect
to those limitations. For the purpose of this Plan, the benefit to which the
Participant is entitled under the A&B Retirement Plan shall be determined by
including as part of the Participant's monthly compensation all deferred base
salary and all deferred incentive awards under A&B's One-Year Performance
Improvement Incentive Plan.
(b) FORMER EMPLOYEES OF CALIFORNIA AND HAWAIIAN SUGAR COMPANY.
Notwithstanding the terms of Section 4.01(a) above, the benefit payable to a
Participant (or Participant's spouse) under this Plan shall be reduced by the
amount of any benefit payable to such Participant (or spouse) under the
California and Hawaiian Sugar Company Supplemental Retirement Plan.
(c) PAYMENT OF PENSION BENEFITS. A Participant's pension
benefit under this Plan, other than a benefit described in subsection (d), shall
be a lump sum payment, payable upon the earlier of termination of employment or
retirement, which equals the greater of the amounts determined under
paragraph (1) and paragraph (2):
(1) An amount which is the Actuarial Equivalent of the
benefit described in paragraphs (a) and (b) above.
(2) An amount which is the before-tax equivalent of the
lower of two quotations obtained by the Administrator from insurance companies
for the cost of a lifetime annuity that provides after-tax monthly benefits
equivalent to those that a Participant would receive under this Plan if this
Plan allowed monthly payments of the pension benefits hereunder.
(d) SELECT BENEFITS PROVIDED TO RETIRED FORMER EMPLOYEES OF
CALIFORNIA AND HAWAIIAN SUGAR COMPANY. All other provisions of this Plan
notwithstanding, the retired former employees of California and Hawaiian Sugar
Company who are listed in Appendix B of this Plan shall be eligible to receive
the benefits shown in Appendix B, and no other benefits shall be paid to such
retired former employees under the provisions of this Plan. Payment of these
benefits shall be according to the terms shown in Appendix B, and no other
provisions of this Plan shall affect the amount or the form of payment of these
benefits.
4.02. DEFINED CONTRIBUTION BENEFITS.
(a) ENTITLEMENT TO DEFINED CONTRIBUTION BENEFITS. A
Participant's defined contribution benefit under this Plan shall equal the
balance to the Participant's credit in the account maintained under
Section 4.03.
No amount shall be credited to a Participant's account for a
year unless the Participant is a participant in the A&B Profit Sharing Plan for
that year.
(b) PAYMENT OF DEFINED CONTRIBUTION BENEFITS. At the time that
the Administrator selects an eligible employee to be a Participant, the employee
shall elect the form, time, and manner in which any defined contribution
benefits to which he or she may become entitled under this Plan shall be paid.
A Participant may elect any of the payment methods provided in the A&B Profit
Sharing Plan, except that all elections must be made at the time the employee
becomes a Participant in this Plan, and not at such other times as may be
specified in the A&B Profit Sharing Plan. Such elections, once made, cannot be
changed. The distribution of Defined Contribution Benefits shall commence
within 30 days of the Participant's termination of employment.
4.03. MAINTENANCE OF ACCOUNTS. The Administrator shall establish
and maintain an individual account for each Participant. The Administrator
shall annually credit to a Participant's account as of the end of each year an
amount equal to the difference between (i) the employer contribution and for
feitures that would have been allocated to such Participant's account under the
A&B Profit Sharing Plan with respect to such year were such allocation to be
made without regard to the limitations of the Internal Revenue Code and (ii) the
amount actually allocated to such Participant's account after having taken such
limitations into account. For the purposes of this Plan, the benefit to which
the Participant is entitled under the A&B Profit Sharing Plan shall be
determined by including as part of the Participant's compensation all deferred
base salary. Each Participant's account shall be credited with interest, com
pounded annually, at an annual rate equal to 1% above the New York Federal
Reserve Bank discount rate in effect as of the date interest is computed and
credited. Interest shall be computed and credited as of such date and on such
account balance as specified by the Administrator. In the absence of such speci
fications, interest shall be credited and computed as of January 1 of each year
on the balance of the account on the preceding January 1 or, if payments have
been made out of an account during the preceding year, on the average balance of
that account during the preceding year.
The account of each Participant shall be entered on the employer's
books as a liability, payable when due out of general assets. Participant
accounts shall not be funded by any trust or insurance contract; nor shall any
assets be segregated or identified with any such account; nor shall any property
or assets be pledged, encumbered, or otherwise subjected to a lien or security
interest for payment of benefits.
4.04. VESTING OF BENEFITS. Except as otherwise provided in
Section 6.02(a), all pension benefits under this Plan shall be contingent and
forfeitable unless and until they vest in accordance with the vesting provisions
of the A&B Retirement Plan, and all defined contribution benefits under this
Plan shall be contingent and forfeitable unless and until they vest in
accordance with the vesting provisions of the A&B Profit Sharing Plan that are
applicable to the Participant's profit sharing account.
ARTICLE V
ADMINISTRATION OF THE PLAN
5.01. ADMINISTRATOR. The plan administrator of the A&B Retirement
Plan shall be the Administrator of this Plan. The Administrator shall have full
authority to administer the Plan. The Administrator shall have all of the
powers granted by the A&B Retirement Plan or the A&B Master Trust Agreement to
the plan administrator of the A&B Retirement Plan, and shall be subject to the
same selection procedures and limitations of authority.
5.02. CLAIMS PROCEDURES. The Administrator shall employ the
claims procedures applicable under the A&B Retirement Plan.
ARTICLE VI
AMENDMENT AND TERMINATION
6.01. AUTHORITY OF COMPENSATION AND STOCK OPTION COMMITTEE. The
right to amend, modify, partially terminate, or completely terminate this Plan
shall be reserved to the Compensation and Stock Option Committee of the Board of
Directors. However, no amendment, modification or termination shall reduce
retroactively the benefits of any Participant under this Plan.
6.02. CHANGE IN CONTROL.
(a) TERMINATION, VESTING AND PAYMENT. Upon the occurrence of a
Change in Control, as defined in Section 6.02(b), with respect to the company
employing a Participant, the Plan shall immediately and automatically terminate
with respect to such company. Upon such a termination, the interest of each
Participant employed by the company or companies with respect to which the Plan
has been terminated shall become non-forfeitable and immediately due and
payable. Each such Participant shall receive, within thirty days of such termi
nation, a lump sum payment in an amount equal to the sum of (i) the balance of
his or her individual account as described in Sections 4.02 and 4.03 and (ii) an
amount which is the Actuarial Equivalent of the benefits defined in
Sections 4.01 of this Plan determined as of the date of the Change in Control.
If the terms of such Change in Control provide, as a prerequisite to the
consummation of the Change in Control, that the employer responsibilities under
this Plan are to be assumed by the successor organization, then the Plan shall
not terminate and no lump sum payment shall be made to any Participant. In any
such case, however, the interest of each Participant employed by the company or
companies with respect to which the Change in Control occurs shall become
non-forfeitable at the date of such Change in Control.
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of this
Section 6.02, a "Change in Control" of Alexander & Baldwin, Inc. shall mean a
change in control of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether or not
Alexander & Baldwin, Inc. in fact is required to comply with Regulation 14A
thereunder; provided that, without limitation, such a change in control shall be
deemed to have occurred if (i) any "person" (defined, for purposes of this
Section 6.02, as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (defined, for purposes of this
Section 6.02, as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Alexander & Baldwin, Inc. representing 35% or more
of the combined voting power of its then outstanding securities; or (ii) during
any period of twenty-four (24) consecutive months, at least a majority of the
Board of Directors ceases to consist of individuals who have served continuously
on such Board since the beginning of such period or whose election, or
nomination for election by shareholders, was approved by a vote of at least
two-thirds of the directors then still in office who have served continuously on
such Board since the beginning of the period. A "Change in Control" of a
subsidiary of Alexander & Baldwin, Inc. shall be deemed to have occurred if any
"person" is or becomes the "beneficial owner," directly or indirectly, of
securities of such subsidiary representing 35% or more of the combined voting
power of its then outstanding securities. If a Change in Control shall take
place with respect to any company, a Change in Control shall be deemed to have
taken place with respect to any subsidiary of such company.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.01. BENEFITS NON-ASSIGNABLE. No right or interest of a
Participant in this Plan shall be assignable or transferable, in whole or in
part, either directly or by operation of law or otherwise, including but not by
way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy,
assignments for the benefit or creditors, receiverships, or in any other manner,
excluding transfer by operation of law as a result solely of mental
incompetency.
7.02. CONTROLLING LAW. This Plan shall be construed,
administered, and governed in all respects in accordance with the laws of the
State of Hawaii.
7.03. NOT AN EMPLOYMENT CONTRACT. The adoption and maintenance of
this Plan shall not be deemed to confer on any Participant any right to continue
in the employ of A&B, and shall not be deemed to interfere with the right of A&B
to discharge any person or treat any person without regard to the effect that
such treatment might have on the person as a Plan Participant.
7.04. GENDER AND NUMBER. Any masculine pronouns used herein shall
refer to both men and women, and the use of any term herein in the singular may
also include the plural unless otherwise indicated by context.
7.05. SEVERABILITY. If any provision of this Plan is held invalid
or unenforceable by a court of competent jurisdiction, all remaining provisions
shall continue to be fully effective.
ARTICLE VIII
ADOPTION BY SUBSIDIARIES
Any subsidiary of Alexander & Baldwin, Inc. that has adopted either the A&B
Retirement Plan or the A&B Profit Sharing Plan may adopt this Plan for the
benefit of its employees when one of its employees has been selected as a
participant by the Administrator. Such adoption shall be authorized by a
resolution of the Board of Directors of such subsidiary. In the event of such
adoption of the Plan by a subsidiary of Alexander & Baldwin, Inc., the
Administrator shall serve as agent of the subsidiary in administering the Plan.
All power to amend, modify, or terminate the Plan shall continue as the
unfettered prerogative of the Compensation and Stock Option Committee of the
Board of Directors.
IN WITNESS WHEREOF, Alexander & Baldwin, Inc. has caused this Restatement to be
executed on its behalf by its duly authorized officers this 22nd day of
February, 1995.
ALEXANDER & BALDWIN, INC.
By /s/ Miles B. King
Its Vice President
By /s/ Alyson J. Nakamura
Its Secretary
APPENDIX A
PARTICIPANTS REFERRED TO IN
SECTION 4.01(A) _
l. R. F. Cameron
2. J. C. Couch
3. R. J. Donohue
4. F. L. Fleischmann
5. A. J. Haskell
6. G. S. Holaday
7. J. B. Kelley
8. M. J. Marks
9. C. B. Mulholland
10. G. Y. Nakamatsu
11. G. J. North
12. R. J. Pfeiffer
13. G. R. Rogers
14. R. H. Rothman
15. R. K. Sasaki
16. D. P. Scott
APPENDIX B
Participant's Name Fixed Spouse's Name
----------------------- Date of Monthly Variable -------------------- Date of Monthly
First MI Last Birth Benefit* Units First MI Last Birth Benefit**
----- -- --- ------- -------- -------- ----- -- ---- ------- ---------
Paul A. Cooper 7/15/05 437.67 None
Edwin R. Duncan 4/08/20 396.36 Jean K. Duncan 4/02/19 66 2/3%
Harry J. Fitzgerald 10/26/19 358.58 Kathryn T. Fitzgerald 5/16/26 50%
Donald W. Hare 5/14/19 748.20 Dorothy P. Hare 5/21/19 66 2/3%
Lawrence A. Lindsay 2/25/25 786.04 Rita A. Lindsay 4/05/25 66 2/3%
Neil L. Pennington 5/12/23 613.16 Frances M. Pennington 5/28/25 66 2/3%
Frederick W. Schwer 4/26/19 228.40 Christine W. Schwer 8/14/18 66 2/3%
Lawson U. Williams 1/01/19 350.33 Mildred A. Williams 7/03/20 66 2/3%
Emmett V. Donovan (d) 11/06/18 304.05 June Donovan 6/10/22 66 2/3%
Edward F. Harder (d) 1/07/19 605.28 Bette Harder 3/02/20 66 2/3%
Robert O. Nagle (Note 1) 2/10/29 1333.50 658.85 Louise H. Nagle 2/06/28 100%
Robert O. Nagle (Note 2) 2/10/29 711.64 351.60 Louise H. Nagle 2/06/28 100%
* The fixed monthly benefit payable plus the current value of the variable
units are payable to the participant during the participant's lifetime
except if payment option is a 66-2/3% (last survivor). In such case, if
either participant or spouse dies, the survivor will receive 66-2/3% of
the fixed monthly benefit or the current value of the variable units. The
current value of the variable units shall be determined in the same way
such value is determined under the provisions of the C and H Pension Plan
for Salaried Employees.
** The monthly benefit equal to the percentage shown multiplied times the
participant's monthly benefit is payable to the spouse named above after
the death of the participant during the spouse's lifetime.
(d) Deceased.
Note 1: The preceding footnotes notwithstanding, this benefit shall not be
payable to Mr. Nagle or his surviving spouse on or after March 1, 1994.
Note 2: The preceding footnotes notwithstanding, this benefit shall only be
payable to Mr. Nagle or his surviving spouse on or after March 1, 1994.
APPENDIX C
RULES FOR DETERMINING LUMP SUM BENEFITS
When the terms of this Plan require the determination of a lump sum payment
which is the Actuarial Equivalent of any other benefit provided by this Plan,
the following rules shall apply to the calculation of such lump sum payment:
1. The mortality table used shall be the mortality table then in use by the
A&B Retirement Plan for the purpose of determining lump sum payments to
participants of such plan who are entitled to such payments.
2. The discount rate shall be the after-tax equivalent of the discount rate
then in use by the A&B Retirement Plan for the purpose of determining lump
sum payments to participants of such plan who are entitled to such
payments. The after-tax equivalent rate shall be determined by
multiplying discount rate in use by the A&B Retirement Plan by the excess
of 100% over the tax effected marginal tax rate declared by the Committee.
3. The Committee shall declare the tax effected marginal tax rate at the
beginning of each calendar year.
4. The tax effected marginal tax rate shall apply to lump sum payments made
at any time during such calendar year and may not be changed during the
year.
5. The value of the benefit to a Surviving Spouse which is included in a
Participant's Retirement Income shall be included in the calculation of
the lump sum payment to which the Participant is entitled. Unless stated
otherwise, the benefit to the Surviving Spouse shall be deemed to apply
only if the death of the Participant occurs on or after the date the
Retirement Income is deemed to commence under the terms of the provision
giving rise to the Participant's right to a lump sum payment.
6. If the terms of the Plan provide for a benefit such that if it were paid
as a monthly benefit it could have commenced at more that one future date,
then for purposes of calculating the lump sum that is the Actuarial
Equivalent of such benefit, it shall be deemed that the benefit would have
commenced at the earliest possible date.
7. The early retirement reduction factors, if any, used to calculate the lump
sum which is the Actuarial Equivalent of the benefit provided by the
provisions of paragraph 6.02(a) as a result of a Change of Control, shall
be the factors applicable to Participants of the A&B Retirement Plan who
terminate employment after attaining eligibility for early retirement
regardless of the Participant's age as of the Change of Control date.