Exhibit 10.b.1.(xxii)
A&B EXECUTIVE SURVIVOR/RETIREMENT BENEFIT PLAN
AMENDMENT NO. 1
The A&B Executive Survivor/Retirement Benefit Plan, as amended and restated
effective July 1, 1991, is hereby amended, effective February 1, 1995, as
follows:
1. Section 2.04 is hereby revised in its entirety to read as follows:
"2.04. 'Approved Early Retirement Date' means a date which meets
each of the following requirements:
(a) The Participant has attained age 55,
(b) The Participant has at least five Years of Service,
(c) The date has been approved by the Chief Executive
Officer of A&B."
2. Section 2.06 is hereby revised by replacing the reference to
"Section 4.04" with "Section 4.10."
3. Sections 2.08 and 2.09 are hereby renumbered as Sections 2.09 and
2.10, respectively.
4. A new Section 2.08 is hereby added, as follows:
"2.08 '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 2.08, 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 2.08, 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."
5. A new Section 2.12 is hereby added, as follows:
"2.12 'Early Retirement Factor' means the reduction factors used
to calculate early retirement benefits under the A&B Retirement Plan
for participants of such plan who retire from active service at or
after attaining age 55."
6. The existing Section 2.10 is hereby renumbered as Section 2.13, and
revised in its entirety to read as follows:
"2.13 'Final Base Compensation' means a Participant's Base
Compensation in effect at the time of the Participant's retirement,
termination of employment, termination of participation, death or
disability, whichever is applicable, computed as an annual amount by
multiplying the then applicable monthly Base Compensation in effect by
12."
7. Section 2.11 is hereby renumbered as Section 2.17, and revised in its
entirety to read as follows:
"2.17 'Normal Retirement Date' means the first day of the month
coincident with or next following the date the Participant attains age
65."
8. A new Section 2.11 is hereby added, as follows:
"2.11 'Disabled Participant.' 'Disabled' means a Participant
who is unable to perform substantially all of the material and
substantial duties of her or his regular position because of
accidental bodily injury sustained or disease originating after the
date of such person's designation as a Participant under this Plan.
Notwithstanding the foregoing:
(i) if a Participant has been Disabled for a continuous
period of 24 months, the Participant will cease to be considered
Disabled unless he or she is unable to perform any occupation for
which the Participant is or becomes reasonably qualified by education,
training or experience because of such bodily injury or sickness; and
(ii) a Participant is not Disabled at any time that the
Participant is working for pay or profit at any occupation."
9. Sections 2.12 and 2.13 are hereby renumbered as Sections 2.19 and
2.21, respectively.
10. Section 2.14 is hereby replaced with the following:
"2.14 'Immediate Change in Control Benefit' means the benefit
described in subsection 4.08(a)."
11. Section 2.15 is hereby renumbered as Section 2.23, and revised by
replacing the reference to "Section 4.01" with "Section 4.02."
12. A new Section 2.15 is hereby added, as follows:
"2.15 'Involuntary Termination Benefit' means the benefit
described in Section 4.05."
13. Section 2.16 is hereby replaced with the following:
"2.16 'Normal Retirement Benefit' means ten annual amounts, each
equal to the percentage (which shall be not less than 5% nor greater
than 35%) of the Participant's Final Base Compensation as specified in
such Participant's individual Participating Agreement, payable in
monthly installments."
14. A new Section 2.18 is hereby added, as follows:
"2.18 'Normal Survivor Benefit' means ten annual amounts, each
equal to 50% of the Participant's Final Base Compensation, payable in
monthly installments."
15. A new Section 2.20 is hereby added, as follows:
"2.20 'Participation Termination Benefit' means the benefit
described in Section 4.06."
16. A new Section 2.22 is hereby added, as follows:
"2.22 'Plan Termination Benefit' means the benefit described in
Section 4.07."
17. A new Section 2.24 is hereby added, as follows:
"2.24 'Prorated Retirement Benefit' means Normal Retirement
Benefit multiplied by the Proration Factor."
18. A new Section 2.25 is hereby added, as follows:
"2.25 'Prorated Survivor Benefit' means Normal Survivor Benefit
multiplied by the Proration Factor."
19. A new Section 2.26 is hereby added, as follows:
"2.26 'Proration Factor' means:
(a) In the case of a Participant who is a Participant in
the A&B 1985 Supplemental Executive Retirement Plan, or who was a
former Participant in such plan, the ratio of (i) 300 minus the number
of completed months between the date of calculation and the
Participant's Normal Retirement Date, to (ii) 300.
(b) In the case of all other Participants, the ratio of
(i) the Participant's Years of Service as of the calculation date, to
(ii) the Years of Service the Participant would have earned at his or
her Normal Retirement Date had he or she remained in employment status
until such date."
20. A new Section 2.27 is hereby added, as follows:
"2.27 'Vested Change in Control Benefit' means the benefit
described in Section 4.08(b)."
21. Section 4.01 is hereby renumbered as Section 4.02, as revised in its
entirety to read as follows:
"4.02. Pre-Retirement Survivor Benefit. The Beneficiary of a
Participant who dies before termination of employment shall be
entitled to receive a Pre-Retirement Survivor Benefit consisting of
the Normal Survivor Benefit commencing as soon as practicable after
the Participant's death."
22. A new Section 4.01 is hereby added, as follows:
"4.01. Plan Benefits. A Participant shall be entitled to
whichever of the benefits provided by Sections 4.02 to 4.09 provides
the greatest benefit. Under no circumstance shall a Participant be
entitled to benefits provided by more than one such Section."
23. Sections 4.02 and 4.03 are hereby deleted in their entirety.
24. A new Section 4.03 is hereby added, as follows:
"4.03 Normal Retirement Benefit.
(a) Eligibility. A Participant who meets the following
requirements shall be entitled to the Normal Retirement Benefit
described in subsection (b) below:
(1) The Participant has completed three years of
participation in the Plan; and
(2) The Participant retires from employment on or after his
or her Normal Retirement Date.
(b) Benefit. A Participant's Normal Retirement Benefit shall be
the benefit in paragraph (1) below unless within 90 days prior to
retirement, the Participant has applied in writing to receive the
benefit in paragraph (2) below in lieu of the benefit in paragraph (1)
and the Committee has approved such request. In the latter case, a
Participant's Normal Retirement Benefit shall be the benefit in
paragraph (2) below.
(1) The Participant's Normal Survivor Benefit commencing as
soon as practicable after the Participant's death.
(2) The Participant's Normal Retirement Benefit commencing
on the first day of the month following his or her retirement."
25. Sections 4.04, 4.05 and 4.06 are hereby renumbered as Sections 4.10,
4.11 and 4.12.
26. Section 4.05 is hereby renumbered as Section 4.11, and subsection (d)
thereof is revised in its entirety to read as follows:
(d) "Disability. A Disabled Participant shall continue to be
eligible for retirement benefits under the Plan, regardless of the
nonperformance of services for A&B. Failure to return to employee
status at the termination of the Participant's disabled status shall
be deemed a voluntary termination of employment if the Participant is
offered employment in a position substantially equivalent to the
position held by the Participant at the time his or her disabled
status began. Otherwise, such failure to return to employee status
shall be deemed an involuntary termination of employment."
27. A new Section 4.04 is hereby added, as follows:
"4.04 Approved Early Retirement Benefit.
(a) Eligibility. A Participant who meets the following
requirements shall be entitled to the Approved Early Retirement
Benefit described in subsection (b) below:
(1) The Participant has completed three years of
participation in the Plan, and
(2) The Participant retires from employment on or
after his or her Approved Early Retirement Date and before his or her
Normal Retirement Date.
(b) Benefit. A Participant's Approved Early Retirement
Benefit shall be the benefit in paragraph (1) below unless within 90
days prior to retirement, the Participant has applied in writing to
receive the benefit in paragraph (2) below in lieu of the benefit in
paragraph (1) below and the Committee has approved such request. In
the latter case, a Participant's Approved Early Retirement Benefit
shall be the benefit in paragraph (2) below.
(1) The Participant's Normal Survivor Benefit
commencing as soon as practicable after the Participant's death.
(2) The Participant's Normal Retirement Benefit
multiplied by the Early Retirement Factor applicable at the
Participant's age as of his or her Approved Early Retirement Date and
commencing on the first day of the month following his or her retire
ment."
28. A new Section 4.05 is hereby added, as follows:
"4.05 Involuntary Termination Benefit.
(a) Eligibility. A Participant who meets the requirements
in paragraph (1) and paragraph (2) shall be entitled to the
Involuntary Termination Benefit described in subsection (b) below:
(1) The Participant has completed three years of
participation in the Plan, and
(2) The Participant's employment is terminated
involuntarily.
(b) Benefit. A Participant's Involuntary Termination
Benefit shall be a lump sum payment which is the greater of the Actu
arial Equivalent of the benefits defined in paragraph (1) below or the
Actuarial Equivalent of the benefits defined in paragraph (2) below.
The Involuntary Termination Benefit shall be paid as soon as
practicable after the date of the Participant's involuntary
termination.
(1) The Participant's Prorated Survivor Benefit
determined as of the involuntary termination date and commencing as
soon as practicable after the Participant's death.
(2) The Participant's Prorated Retirement Benefit
commencing on the Participant's Normal Retirement Date."
29. A new Section 4.06 is hereby added, as follows:
"4.06 Participation Termination Benefit.
(a) Eligibility. A Participant who meets the following
requirements shall be entitled to the Participation Termination
Benefit described in subsection (b) below:
(1) The Participant has completed three years of
participation in the Plan, and
(2) The Participant's participation in the Plan is
terminated prior to the Participant's termination of employment or
retirement as a result of the determination by the Chief Executive
Officer that the Participant is no longer eligible to participate in
the Plan.
(b) Benefit. A Participant's Participation Termination
Benefit shall be the benefit in paragraph (1) below during the
continuation of the Participant's employment. Upon the Participant's
subsequent termination (voluntary or involuntary) of employment or
retirement, it shall be the benefit in paragraph (1) below unless the
Participant has applied in writing to receive the benefit in
paragraph (2) below in lieu of the benefit in paragraph (1) below and
the Committee has approved such request. In the latter case, a
Participant's Participation Termination Benefit shall be the benefit
in paragraph (2) below. In the event of the Participant's death
following such termination or retirement and prior to the approval of
the Participant's written request for the benefit in paragraph (2)
below, the benefit in paragraph (1) below shall be deemed in effect.
(1) The Participant's Prorated Survivor Benefit
determined as of the participation termination date and commencing as
soon as practicable after the Participant's death.
(2) The Participant's Prorated Retirement Benefit
commencing on the Participant's Normal Retirement Date or Approved
Early Retirement Date, provided that if the benefit commences on an
Approved Early Retirement Date it shall be reduced by the Early
Retirement Factor applicable to the Participant's age as of his or her
Approved Early Retirement Date."
30. A new Section 4.07 is hereby added, as follows:
"4.07 Plan Termination Benefit.
(a) Eligibility. A Participant of the Plan as of the date
the Plan is terminated by the Committee shall be entitled to the Plan
Termination Benefit described in subsection (b) below.
(b) Benefit. A Participant's Plan Termination Benefit
shall be the benefit in paragraph (1) below during the continuation of
employment. Upon the Participant's termination of employment or
retirement, it shall be the benefit in paragraph (1) below unless
within 90 days prior to voluntary termination or retirement, or within
90 days following ratification of involuntary employment, the Par
ticipant has applied in writing to receive the benefit in
paragraph (2) below in lieu of the benefit in paragraph (1) below and
the Committee has approved such request. In the latter case, a
Participant's Plan Termination Benefit shall be the benefit in
paragraph (2) below.
(1) The Participant's Prorated Survivor Benefit
commencing as soon as practicable after the Participant's death.
(2) The Participant's Prorated Retirement Benefit
commencing on the first day of the first month that would have
qualified as the Participant's Approved Early Retirement Date if he or
she had remained employed as a Participant until such date and then
received approval from the CEO for such early retirement reduced by
the Early Retirement Factor Applicable to the Participant's age as of
such Approved Early Retirement Date."
31. A new Section 4.08 is hereby added, as follows:
"4.08 Change in Control Benefits.
(a) Change in Control of Alexander & Baldwin, Inc. Upon
the occurrence of a Change in Control, as defined in Section 2.08,
with respect to Alexander & Baldwin, Inc., the provisions of para
graph (1) below shall apply unless the terms of such Change in Control
provide, as a prerequisite to the consummation of the Change in Con
trol, that the employer responsibilities under this Plan are to be
assumed by the successor organization. In such later case, the
provisions of paragraph (2) below shall apply.
(1) The Plan shall immediately and automatically
terminate and each Participant shall become entitled to an Immediate
Change in Control Benefit. The Immediate Change in Control Benefit
shall be a lump sum payment which is the greater of the Actuarial
Equivalent of the benefits defined in paragraph (b)(1) below or the
Actuarial Equivalent of the benefits defined in (b)(2). The Immediate
Change in Control Benefit shall be immediately due and shall be paid
within thirty days of such Plan termination.
(2) Each Participant, as defined in this paragraph
(2), shall become entitled to a Vested Change in Control Benefit.
Upon future termination of employment or retirement, the Participant
shall be entitled to the greater of his or her Vested Change in
Control Benefit or the benefits otherwise provided by any other
benefit section of this Plan. During the Participant's continuation
of employment, a Participant's Vested Change in Control Benefit shall
be the benefit in paragraph (b)(1) below. Upon the Participant's
termination (voluntary or involuntary) of employment or retirement,
however, the Participant's Vested Change in Control Benefit shall be a
lump sum payment which is the greater of the Actuarial Equivalent of
benefits defined in paragraph (b)(1) below, the Actuarial Equivalent
of the benefits defined in paragraph (b)(2) below, and the Actuarial
Equivalent of the benefits defined in paragraph (b)(3) below.
(b) Benefits.
(1) The Participant's Normal Survivor Benefit
determined as of the date of the Change in Control commencing as soon
as practicable after the Participant's death.
(2) The Participant's Normal Retirement Benefit
determined as of the date of the Change in Control:
(i) commencing on the first day of the first
month that would have qualified as the Participant's Approved Early
Retirement Date if he or she had remained employed as a Participant
until such date and then received approval from the CEO for such early
retirement, and
(ii) reduced by the Early Retirement Factor
Applicable to the Participant's age at the date the benefit commences.
(3) Benefits provided by any other Section of this
Plan."
32. A new Section 4.09 is hereby added, as follows:
"4.09 Benefits Upon Change in Control of a Subsidiary. Upon the
occurrence of a Change in Control, as defined in Section 2.08, with
respect to a subsidiary of Alexander & Baldwin, Inc., a Participant
who is an employee of such subsidiary shall be entitled to a Plan
Termination Benefit determined as if the Plan terminated as of date of
the Change in Control."
33. Section 7.01 is hereby revised in its entirety to read as follows:
"7.01. The right to amend, modify, partially terminate, or
completely terminate this Plan is reserved to the Committee. However,
no amendment, modification or termination shall adversely affect the
right of any Participant or Beneficiary who is receiving benefits
under the Plan at the time of such amendment, modification or
termination or who is entitled to benefits under the provisions of
Section 4.06 as a former Participant of the Plan. The right of other
Participants as of the date the Plan is terminated shall be determined
under the provisions of Section 4.07."
34. Except as modified by this Amendment, all terms and provisions of the
A&B Executive Survivor/Retirement Benefit 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 23rd 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 EXECUTIVE SURVIVOR/RETIREMENT BENEFIT PLAN
AMENDED AND RESTATED EFFECTIVE FEBRUARY 1, 1995
ARTICLE I
ESTABLISHMENT AND PURPOSE
l.0l ESTABLISHMENT OF PLAN. Alexander & Baldwin, Inc. hereby establishes the
A&B Executive Survivor/Retirement Benefit Plan (the "Plan"), effective
January 1, 1986.
l.02 PURPOSE OF PLAN. It is the purpose of the Plan to provide supplemental
death benefits and an optional supplemental retirement benefit for certain
designated executives of A&B. 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 because it provides
benefits for a select group of highly compensated management employees.
ARTICLE II
DEFINITIONS
2.0l "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 practices, as more particularly specified by the defi
nition of the same term in the A&B Retirement Plan.
2.02 "A&B" means Alexander & Baldwin, Inc., its affiliates, and their
successors.
2.03 "A&B RETIREMENT PLAN" means the A&B Retirement Plan for Salaried Employees,
as amended from time to time.
2.04 "APPROVED EARLY RETIREMENT DATE" means a date which meets each of the
following requirements:
(a) The Participant has attained age 55,
(b) The Participant has at least five Years of Service,
(c) The date has been approved by the Chief Executive Officer of A&B.
2.05 "BASE COMPENSATION" means base salary, including amounts deferred under any
deferral plan or arrangement with A&B, but excluding incentive compensation
and all other plans or forms of remuneration.
2.06 "BENEFICIARY" means the person, persons or entity designated pursuant to
Section 4.10.
2.07 "BOARD" means the Board of Directors of A&B.
2.08 "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 2.08, 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 2.08, 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.
2.09 "CODE" means the Internal Revenue Code of 1954, as amended.
2.10 "COMMITTEE" means the Compensation and Stock Option Committee of the Board.
2.11 "DISABLED PARTICIPANT." "Disabled" means a Participant who is unable to
perform substantially all of the material and substantial duties of her or
his regular position because of accidental bodily injury sustained or
disease originating after the date of such person's designation as a
Participant under this Plan. Notwithstanding the foregoing:
(i) if a Participant has been Disabled for a continuous period of 24
months, the Participant will cease to be considered Disabled unless he
or she is unable to perform any occupation for which the Participant
is or becomes reasonably qualified by education, training or
experience because of such bodily injury or sickness; and
(ii) a Participant is not Disabled at any time that the Participant is
working for pay or profit at any occupation.
2.12 "EARLY RETIREMENT FACTOR" means the reduction factors used to calculate
early retirement benefits under the A&B Retirement Plan for participants of
such plan who retire from active service at or after attaining age 55.
2.13 "FINAL BASE COMPENSATION" means a Participant's Base Compensation in effect
at the time of the Participant's retirement, termination of employment,
termination of participation, death or disability, whichever is applicable,
computed as an annual amount by multiplying the then applicable monthly
Base Compensation in effect by 12.
2.14 "IMMEDIATE CHANGE IN CONTROL BENEFIT" means the benefit described in
subsection 4.08(a).
2.15 "INVOLUNTARY TERMINATION BENEFIT" means the benefit described in
Section 4.05.
2.16 "NORMAL RETIREMENT BENEFIT" means ten annual amounts, each equal to the
percentage (which shall be not less than 5% nor greater than 35%) of the
Participant's Final Base Compensation as specified in such Participant's
individual Participating Agreement, payable in monthly installments.
2.l7 "NORMAL RETIREMENT DATE" means the first day of the month coincident with
or next following the date the Participant attains age 65.
2.18 "NORMAL SURVIVOR BENEFIT" means ten annual amounts, each equal to 50% of
the Participant's Final Base Compensation, payable in monthly installments.
2.19 "PARTICIPANT" means an employee who meets the conditions set forth in
Section 3.0l.
2.20 "PARTICIPATION TERMINATION BENEFIT" means the benefit described in
Section 4.06.
2.21 "PLAN" means the plan set forth in this document, as amended from time to
time.
2.22 "PLAN TERMINATION BENEFIT" means the benefit described in Section 4.07.
2.23 "PRE-RETIREMENT SURVIVOR BENEFIT" means the benefit described in
Section 4.02 .
2.24 "PRORATED RETIREMENT BENEFIT" means Normal Retirement Benefit multiplied by
the Proration Factor.
2.25 "PRORATED SURVIVOR BENEFIT" means Normal Survivor Benefit multiplied by the
Proration Factor.
2.26 "PRORATION FACTOR" means:
(a) In the case of a Participant who is a Participant in the A&B 1985
Supplemental Executive Retirement Plan, or who was a former
Participant in such plan, the ratio of (i) 300 minus the number of
completed months between the date of calculation and the Participant's
Normal Retirement Date, to (ii) 300.
(b) In the case of all other Participants, the ratio of (i) the
Participant's Years of Service as of the calculation date, to (ii) the
Years of Service the Participant would have earned at his or her
Normal Retirement Date had he or she remained in employment status
until such date.
2.27 "VESTED CHANGE IN CONTROL BENEFIT" means the benefit described in
Section 4.08(b).
2.28 "YEARS OF SERVICE" means the number of years and fractions of years which
qualify as Years of Credited Vesting Service as that term is defined in the
A&B Retirement Plan.
ARTICLE III
PARTICIPATION
3.0l PARTICIPATION. Participants shall be management or highly compensated
employees who have been specifically designated as Participants by the
Chief Executive Officer of A&B, who have demonstrated insurability to the
satisfaction of A&B, and who have executed a Participation Agreement
(including a waiver of group life insurance coverage over $50,000).
Participation will begin on the date specified in the Participation Agree
ment and shall continue until the earlier of termination of the Par
ticipant's employee status or until a determination by the Chief Executive
Officer of A&B that the Participant no longer is eligible to participate.
ARTICLE IV
BENEFITS
4.01 PLAN BENEFITS. A Participant shall be entitled to whichever of the
benefits provided by Sections 4.02 to 4.09 provides the greatest benefit.
Under no circumstance shall a Participant be entitled to benefits provided
by more than one such Section.
4.02 PRE-RETIREMENT SURVIVOR BENEFIT. The Beneficiary of a Participant who dies
before termination of employment shall be entitled to receive a
Pre-Retirement Survivor Benefit consisting of the Normal Survivor Benefit
commencing as soon as practicable after the Participant's death.
4.03 NORMAL RETIREMENT BENEFIT.
(a) ELIGIBILITY. A Participant who meets the following requirements shall
be entitled to the Normal Retirement Benefit described in
subsection (b) below:
(1) The Participant has completed three years of participation in the
Plan; and
(2) The Participant retires from employment on or after his or her
Normal Retirement Date.
(b) BENEFIT. A Participant's Normal Retirement Benefit shall be the
benefit in paragraph (1) below unless within 90 days prior to
retirement, the Participant has applied in writing to receive the
benefit in paragraph (2) below in lieu of the benefit in paragraph (1)
and the Committee has approved such request. In the latter case, a
Participant's Normal Retirement Benefit shall be the benefit in
paragraph (2) below.
(1) The Participant's Normal Survivor Benefit commencing as soon as
practicable after the Participant's death.
(2) The Participant's Normal Retirement Benefit commencing on the
first day of the month following his or her retirement.
4.04 APPROVED EARLY RETIREMENT BENEFIT.
(a) ELIGIBILITY. A Participant who meets the following requirements shall
be entitled to the Approved Early Retirement Benefit described in
subsection (b) below:
(1) The Participant has completed three years of participation in the
Plan, and
(2) The Participant retires from employment on or after his or her
Approved Early Retirement Date and before his or her Normal
Retirement Date.
(b) BENEFIT. A Participant's Approved Early Retirement Benefit shall be
the benefit in paragraph (1) below unless within 90 days prior to
retirement, the Participant has applied in writing to receive the
benefit in paragraph (2) below in lieu of the benefit in paragraph (1)
below and the Committee has approved such request. In the latter
case, a Participant's Approved Early Retirement Benefit shall be the
benefit in paragraph (2) below.
(1) The Participant's Normal Survivor Benefit commencing as soon as
practicable after the Participant's death.
(2) The Participant's Normal Retirement Benefit multiplied by the
Early Retirement Factor applicable at the Participant's age as of
his or her Approved Early Retirement Date and commencing on the
first day of the month following his or her retirement.
4.05 INVOLUNTARY TERMINATION BENEFIT.
(a) ELIGIBILITY. A Participant who meets the requirements in
paragraph (1) and paragraph (2) shall be entitled to the Involuntary
Termination Benefit described in subsection (b) below:
(1) The Participant has completed three years of participation in the
Plan, and
(2) The Participant's employment is terminated involuntarily.
(b) BENEFIT. A Participant's Involuntary Termination Benefit shall be a
lump sum payment which is the greater of the Actuarial Equivalent of
the benefits defined in paragraph (1) below or the Actuarial
Equivalent of the benefits defined in paragraph (2) below. The
Involuntary Termination Benefit shall be paid as soon as practicable
after the date of the Participant's involuntary termination.
(1) The Participant's Prorated Survivor Benefit determined as of the
involuntary termination date and commencing as soon as
practicable after the Participant's death.
(2) The Participant's Prorated Retirement Benefit commencing on the
Participant's Normal Retirement Date.
4.06 PARTICIPATION TERMINATION BENEFIT.
(a) ELIGIBILITY. A Participant who meets the following requirements shall
be entitled to the Participation Termination Benefit described in
subsection (b) below:
(1) The Participant has completed three years of participation in the
Plan, and
(2) The Participant's participation in the Plan is terminated prior
to the Participant's termination of employment or retirement as a
result of the determination by the Chief Executive Officer that
the Participant is no longer eligible to participate in the Plan.
(b) BENEFIT. A Participant's Participation Termination Benefit shall be
the benefit in paragraph (1) below during the continuation of the
Participant's employment. Upon the Participant's subsequent
termination (voluntary or involuntary) of employment or retirement, it
shall be the benefit in paragraph (1) below unless the Participant has
applied in writing to receive the benefit in paragraph (2) below in
lieu of the benefit in paragraph (1) below and the Committee has
approved such request. In the latter case, a Participant's
Participation Termination Benefit shall be the benefit in
paragraph (2) below. In the event of the Participant's death
following such termination or retirement and prior to the approval of
the Participant's written request for the benefit in paragraph (2)
below, the benefit in paragraph (1) below shall be deemed in effect.
(1) The Participant's Prorated Survivor Benefit determined as of the
participation termination date and commencing as soon as
practicable after the Participant's death.
(2) The Participant's Prorated Retirement Benefit commencing on the
Participant's Normal Retirement Date or Approved Early Retirement
Date, provided that if the benefit commences on an Approved Early
Retirement Date it shall be reduced by the Early Retirement
Factor applicable to the Participant's age as of his or her
Approved Early Retirement Date.
4.07 PLAN TERMINATION BENEFIT.
(a) ELIGIBILITY. A Participant of the Plan as of the date the Plan is
terminated by the Committee shall be entitled to the Plan Termination
Benefit described in subsection (b) below.
(b) BENEFIT. A Participant's Plan Termination Benefit shall be the
benefit in paragraph (1) below during the continuation of employment.
Upon the Participant's termination of employment or retirement, it
shall be the benefit in paragraph (1) below unless within 90 days
prior to voluntary termination or retirement, or within 90 days
following ratification of involuntary employment, the Participant has
applied in writing to receive the benefit in paragraph (2) below in
lieu of the benefit in paragraph (1) below and the Committee has
approved such request. In the latter case, a Participant's Plan
Termination Benefit shall be the benefit in paragraph (2) below.
(1) The Participant's Prorated Survivor Benefit commencing as soon as
practicable after the Participant's death.
(2) The Participant's Prorated Retirement Benefit commencing on the
first day of the first month that would have qualified as the
Participant's Approved Early Retirement Date if he or she had
remained employed as a Participant until such date and then
received approval from the CEO for such early retirement reduced
by the Early Retirement Factor Applicable to the Participant's
age as of such Approved Early Retirement Date.
4.08 CHANGE IN CONTROL BENEFITS.
(a) CHANGE IN CONTROL OF ALEXANDER & BALDWIN, INC. Upon the occurrence of
a Change in Control, as defined in Section 2.08, with respect to
Alexander & Baldwin, Inc., the provisions of paragraph (1) below shall
apply unless 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. In such later case, the provisions of
paragraph (2) below shall apply.
(1) The Plan shall immediately and automatically terminate and each
Participant shall become entitled to an Immediate Change in
Control Benefit. The Immediate Change in Control Benefit shall
be a lump sum payment which is the greater of the Actuarial
Equivalent of the benefits defined in paragraph (b)(1) below or
the Actuarial Equivalent of the benefits defined in (b)(2). The
Immediate Change in Control Benefit shall be immediately due and
shall be paid within thirty days of such Plan termination.
(2) Each Participant, as defined in this paragraph (2), shall become
entitled to a Vested Change in Control Benefit. Upon future
termination of employment or retirement, the Participant shall be
entitled to the greater of his or her Vested Change in Control
Benefit or the benefits otherwise provided by any other benefit
section of this Plan. During the Participant's continuation of
employment, a Participant's Vested Change in Control Benefit
shall be the benefit in paragraph (b)(1) below. Upon the
Participant's termination (voluntary or involuntary) of
employment or retirement, however, the Participant's Vested
Change in Control Benefit shall be a lump sum payment which is
the greater of the Actuarial Equivalent of benefits defined in
paragraph (b)(1) below, the Actuarial Equivalent of the benefits
defined in paragraph (b)(2) below, and the Actuarial Equivalent
of the benefits defined in paragraph (b)(3) below.
(b) BENEFITS.
(1) The Participant's Normal Survivor Benefit determined as of the
date of the Change in Control commencing as soon as practicable
after the Participant's death.
(2) The Participant's Normal Retirement Benefit determined as of the
date of the Change in Control:
(i) commencing on the first day of the first month that would
have qualified as the Participant's Approved Early
Retirement Date if he or she had remained employed as a
Participant until such date and then received approval from
the CEO for such early retirement, and
(ii) reduced by the Early Retirement Factor Applicable to the
Participant's age at the date the benefit commences.
(3) Benefits provided by any other Section of this Plan.
4.09 BENEFITS UPON CHANGE IN CONTROL OF A SUBSIDIARY. Upon the occurrence of a
Change in Control, as defined in Section 2.08, with respect to a subsidiary
of Alexander & Baldwin, Inc., a Participant who is an employee of such
subsidiary shall be entitled to a Plan Termination Benefit determined as if
the Plan terminated as of date of the Change in Control.
4.10 DESIGNATION OF BENEFICIARIES. A Participant may file with the Admin
istrator on forms provided by the Administrator a written designation of
one or more primary beneficiaries and one or more contingent beneficiaries
to whom benefits otherwise due the Participant shall be made after the
death of the Participant. Such payments will be divided among the primary
beneficiaries who survive the Participant in such proportion as directed in
the written designation. If no primary beneficiary survives the
Participant for 30 days, such payment will be divided among the contingent
beneficiaries who survive the Participant for 30 days in such proportion as
directed in the written designation. If no primary or contingent
beneficiary survives the Participant for 30 days, or if no beneficiary has
been designated by the Participant, such payments will be made to the
estate of the Participant.
4.11 ADDITIONAL BENEFITS PROVISIONS
(a) BENEFIT AGREEMENT. The Administrator shall provide to each Partici
pant a form of Participation Agreement which shall set forth the
Participant's acceptance of the benefits provided under the Plan and
the Participant's agreement to be bound by the terms of the Plan.
(b) EXCLUSION FOR SUICIDE OR SELF-INFLICTED INJURY. Not-withstanding any
other provision of the Plan, no benefits shall be paid to any Parti
cipant or Beneficiary in the event of the death of the Participant as
the result of suicide or self-inflicted injury within two years of the
later of the date he or she first became a Participant or the date the
Participant executed the Participation Agreement referred to in
subsection 4.05(a).
(c) LEAVE OF ABSENCE. A Participant who is on an approved leave of
absence with salary, or on an approved leave of absence without salary
for a period of not more than 90 days, shall be deemed to be a
Participant employed by A&B during such leave of absence. A Parti
cipant who is on an approved leave of absence without salary for a
period in excess of 90 days shall be deemed to have voluntarily ter
minated his or her employment as of the end of such 90-day period.
(d) DISABILITY. A Disabled Participant shall continue to be eligible for
retirement benefits under the Plan, regardless of the nonperformance
of services for A&B. Failure to return to employee status at the
termination of the Participant's disabled status shall be deemed a
voluntary termination of employment if the Participant is offered
employment in a position substantially equivalent to the position held
by the Participant at the time his or her disabled status began.
Otherwise, such failure to return to employee status shall be deemed
an involuntary termination of employment.
(e) TERMINATION FOR GOOD CAUSE. Notwithstanding any other provision of
this Plan, all rights of the Participant, any Beneficiary, or the
rights of their executors or administrators, or any other person, to
receive benefits under this Plan shall be forfeited if the Partici
pant's employment with A&B is terminated for Good Cause. For purposes
of this subsection, "Good Cause" means (a) the willful and continued
failure by a Participant to substantially perform his or her duties
with A&B (other than any such failure resulting from a Participant's
incapacity due to physical or mental illness) or (b) the willful
engaging by the Participant in conduct which is demonstrably and
materially injurious to A&B, monetarily or otherwise. For purposes of
this definition, no act, or failure to act, shall be considered
"willful" unless done, or omitted to be done, not in good faith and
without reasonable belief that the action or omission was in the best
interest of A&B.
(f) ALTERNATIVE FORMS OF BENEFIT. The Board of Directors or the Committee
in its sole discretion may elect to pay the Participant, spouse or
Beneficiary a lump-sum Actuarial Equivalent or other form of benefit
that it deems appropriate in lieu of the benefit form otherwise
provided.
(g) WITHHOLDING. Benefit payments hereunder shall be subject to
applicable federal, state and local withholding for taxes.
4.12 GROUP LIFE INSURANCE. A&B will maintain for each Participant, throughout
each Participant's lifetime, group life insurance coverage in the amount of
$50,000. The life insurance benefits payable under such group life
insurance will be in addition to the benefits payable under the provisions
of this plan, and will be in lieu of any life insurance benefits to which a
Participant may otherwise be entitled under the Alexander & Baldwin, Inc.
Retiree Health and Welfare Benefit Plan.
ARTICLE V
SOURCE OF PAYMENTS
5.0l SOURCE OF PAYMENTS. All benefits payable under this Plan shall be paid in
cash from the general funds of A&B, and no trust account, escrow, fiduciary
relationship or other security arrangement shall be established to assure
payment. No Participant or Beneficiary shall have any right, title or
interest whatsoever in any investments which A&B may make to aid it in
meeting its obligations hereunder. Nothing contained in this Plan, and no
action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship, between A&B and
any Participant, any Beneficiary or a Participant, or any other person.
Any amounts payable under the Plan shall continue for all purposes to be
part of the general assets of A&B and, thus, subject to the claims of A&B's
creditors. A&B shall in no way be restricted with regard to the control,
investment and use of such amounts. To the extent that any person acquires
a right to receive benefits from A&B under this Plan, such right shall be
no greater than, nor different from, the right of an unsecured general
creditor of A&B.
ARTICLE VI
ADMINISTRATION OF THE PLAN
6.0l ADMINISTRATOR. The 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 to the Administrator of such plan and
shall be subject to the same procedures and limitations of authority.
6.02 CLAIMS PROCEDURE. The Administrator shall employ the claims procedures as
are applicable under the A&B Retirement Plan.
ARTICLE VII
AMENDMENT AND TERMINATION
7.0l The right to amend, modify, partially terminate, or completely terminate
this Plan is reserved to the Committee. However, no amendment,
modification or termination shall adversely affect the right of any
Participant or Beneficiary who is receiving benefits under the Plan at the
time of such amendment, modification or termination or who is entitled to
benefits under the provisions of Section 4.06 as a former Participant of
the Plan. The rights of other Participants as of the date the Plan is
terminated shall be determined under the provisions of Section 4.07.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.01 BENEFITS NOT ASSIGNABLE. No Participant or Beneficiary, or any other
person having or claiming to have any interest of any kind or character in
or under this Plan or in any payment therefrom shall have the right to
sell, assign, transfer, convey, hypothecate, anticipate, pledge or other
wise dispose of such interest; and to the extent permitted by law, such
interest shall not be subject to any liabilities or obligations of the
Participant or to any bankruptcy proceedings, creditor claims, attachment,
garnishments, execution, levy or other legal process against such Parti
cipant or his or her property.
8.02 CONTROLLING LAW. This Plan shall be construed, administered, and governed
in all respects in accordance with the laws of the State of Hawaii.
8.03 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 with or without cause or treat any person
without regard to the effect that such treatment might have on the person
as a Participant.
8.04 BINDING AGREEMENT. This Plan shall be binding upon and inure to the
benefit of A&B, its successors and assigns, and the Participants and their
Beneficiaries, heirs, executors, administrators and legal representatives.
IN WITNESS WHEREOF, Alexander & Baldwin, Inc. has caused this Restatement to be
executed on its behalf by its duly authorized officers this 23rd day of
February, 1995.
ALEXANDER & BALDWIN, INC.
By /s/ Miles B. King
Its Vice President
By /s/ Alyson J. Nakamura
Its Assistant Secretary