CASTLE & COOKE, INC.
SUPPLEMENTARY EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
PAGE
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SECTION 1 - INTENT AND EFFECTIVE DATE OF THE PLAN............................1
SECTION 2 - DEFINITIONS......................................................2
2.1 Change in Control................................................2
2.2 Code.............................................................2
2.3 Company..........................................................2
2.4 Corporation......................................................2
2.5 Defined Benefit Plan.............................................2
2.6 Employee.........................................................2
2.7 ERISA............................................................2
2.8 Event............................................................2
2.9 Plan.............................................................3
2.10 Plan Administrator...............................................3
2.11 Retiree..........................................................3
2.12 Service..........................................................3
SECTION 3 - ELIGIBILITY FOR BENEFITS.........................................4
SECTION 4 - AMOUNT OF BENEFITS...............................................5
SECTION 5 - FORM OF BENEFITS.................................................6
SECTION 6 - DEATH BENEFITS...................................................7
6.1 Death Before Retirement..........................................7
6.2 Death After Retirement...........................................7
6.3 Employees Entitled to Benefits Under
Section 4.2......................................................7
SECTION 7 - COST OF THE PLAN.................................................8
SECTION 8 - ADMINISTRATION...................................................9
8.1 Charter of the Committee.........................................9
8.2 Plan Interpretations Following a Change In
Control..........................................................9
8.3 Claims Procedure and Arbitration.................................9
SECTION 9 - FACILITY OF PAYMENT AND LAPSE OF BENEFITS.......................12
9.1 Lack of Valid Beneficiary Designation...........................12
9.2 Payments or Deposits............................................12
SECTION 10 - GENERAL PROVISIONS
10.1 Frequency and Duration of Payment..............................13
10.2 Payments and Benefits Not Assignable...........................13
10.3 No Right of Employment.........................................13
10.4 Adjustments....................................................13
SECTION 11 - AMENDMENTS, ASSIGNMENT AND DISCONTINUANCE......................14
11.1 Amendment of Plan..............................................14
11.2 Assignment of Plan.............................................14
11.3 Termination....................................................14
11.4 Effect of Amendment or Termination.............................14
CASTLE & COOKE, INC.
SUPPLEMENTARY EXECUTIVE RETIREMENT PLAN
SECTION 1 - INTENT AND EFFECTIVE DATE OF THE PLAN
The Plan is intended to provide a supplemental retirement allowance, in
accordance with the provisions of the Plan contained herein, to those retired
employees and their beneficiaries whose benefits from the qualified defined
benefit retirement plan maintained by the Company are reduced by reason of the
maximum annual limitations on benefits imposed by Section 415 of the Code, the
limitation on compensation imposed by Section 401(a)(17) of the Code, or who are
granted a supplemental retirement' benefit in accordance with the Plan. The
portion of the Plan relating to Section 415 is intended to constitute an
"excess benefit plan" as defined in Section 3(36) of ERISA. The remaining
portion of the Plan is intended to constitute a plan which is unfunded and
maintained primarily for the purpose of providing deferred compensation to a
select group of management or highly compensated employees. This Plan was
created in connection with the distribution of the common shares of the Company
(the "Distribution") to the shareholders of Dole Food Company ("Dole"). The
benefits of the employees and former employees of the Corporation and its
affiliates which had been provided under the Dole Food Company Supplementary
Executive Retirement Plan ("Dole SERP") have been assumed by the Corporation
under this Plan. The Plan is effective as of the date of the Distribution.
SECTION 2 - DEFINITIONS
2.1 CHANGE IN CONTROL means either of the following:
(A) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities
of the Corporation representing 20% or more of the combined voting power of
the Corporation's then outstanding securities, unless such person was, on
the effective date of the Trust, such a beneficial owner of securities
representing 20% or more of such voting power; or
(B) During any period of two consecutive years, individuals who
at the beginning of such period constitute the Board cease for any reason
to constitute at least a majority thereof, unless the election, or the
nomination for election by the Corporation's shareholders, of each new
Board member was approved by a at least three-fourths of the Board members
then still in office who were Board members at the beginning of such
period.
2.2 CODE means the Internal Revenue Code of 1986, as amended.
2.3 COMPANY means the Corporation and each of its affiliates which has
employees who are included in the Plan upon authorization of the Corporate
Compensation and Benefits Committee of the Board of Directors of the
Corporation and adoption of the Plan by such affiliate. For purposes of
this Plan, affiliate means an entity which is controlled by or under
common control with the Corporation, within the meaning of Code Sections
414 and 1563.
2.4 CORPORATION means Castle & Cooke, Inc.
2.5 DEFINED BENEFIT PLAN means a defined benefit plan, as defined in Code
Section 414(j), maintained by a Company.
2.6 EMPLOYEE means any person who is regularly employed by a Company, whether
on a full time or part time basis.
2.7 ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
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2.8 EVENT means any of the following:
(A) Approval by the shareholders of the Corporation of the
dissolution or liquidation of the Corporation;
(B) Approval by the shareholders of the Corporation of an agreement
to merge or consolidate, or otherwise reorganize, with or into one or more
entities which are not subsidiaries of the Corporation, as a result of
which less than 50% of the outstanding voting securities of the surviving
or resulting entity are, or are to be, owned by former shareholders of the
Corporation;
(C) Approval by the shareholders of the Corporation of the sale of
substantially all of the Corporation's business and/or assets to a person
or entity which is not a subsidiary of the Corporation; or
(D) Approval by the shareholders of the Corporation of a Change in
Control.
2.9 PLAN means the Castle & Cooke, Inc. Supplementary Executive Retirement
Plan, as contained herein and amended from time to time.
2.10 PLAN ADMINISTRATOR means the Corporation.
2.11 RETIREE means any retired Employee, joint annuitant or beneficiary who is
entitled to receive benefits under the Plan.
2.12 SERVICE means continuous service with the Corporation or with an affiliated
company. For any individual who (a) becomes an employee of the Corporation
or an affiliated company on the Date of the distribution, or (b) had a
benefit under the Dole SERP which is assumed by the Corporation under this
Plan, Service also includes Service with Dole prior to the Distribution.
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SECTION 3 - ELIGIBILITY FOR BENEFITS
3.1 Each Employee who retires with a normal or early retirement benefit from a
Defined Benefit Plan, or terminates employment after participating in a
Defined Benefit Plan and being credited with five (5) or more years of
Service with a Company and:
(a) whose retirement benefit is reduced solely as a result of the Code
Section 415 limits and/or the limit on compensation in Code
Section 401 (a)(17), or
(b) who is granted a supplemental retirement benefit under the Plan
shall be eligible for the benefits provided by the Plan without the
necessity for filing an application for such benefits.
3.2 Benefits under the Plan shall be payable at such time as the Retiree
commences receipt of a retirement benefit from the Defined Benefit Plan.
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SECTION 4 - AMOUNT OF BENEFIT
4.1 The amount of a Retiree's benefit under the Plan with respect to a
reduction in benefits under a Defined Benefit Plan, shall be equal to the
amount by which such Retiree's retirement allowance from a Defined Benefit
Plan which is attributable to Service is reduced solely as a result of the
application of Code Sections 415 and/or 401(a)(17).
4.2 At its sole discretion, the Corporate Compensation and Benefits Committee
of the Board of Directors of the Corporation may award a supplemental
retirement benefit to any eligible Employee in such amount or to be
computed on such basis, as it may determine. By example and not by way of
limitation, such committee may award a benefit by designating a qualified
defined benefit plan of the Company; in such an instance the benefit to be
provided to the Employee would be the benefit determined as if the Employee
were a participant in the designated plan. Such awards may be granted for
any reason deemed appropriate by such committee. In no event shall a
supplemental retirement benefit be granted under the Plan to or on account
of any Employee who is not a member of a select group of management or
other highly compensated employees as defined from time to time by
the Corporate Compensation and Benefits Committee of the Board of
Directors. A certified copy of the resolution granting a supplemental
retirement benefit shall be furnished to the Plan Administrator prior to
the date any payment on account thereof is to be made under the Plan.
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SECTION 5 - FORM OF BENEFITS
(1) An Employee's benefit under the Plan will be paid in the same form as
the Employee's benefit paid by the Defined Benefit Plan and an
Employee's designation of a joint annuitant and/or beneficiary made
under such plan will also be applicable under the Plan.
(2) In the case of an Employee entitled to a benefit under Section 4.2,
the form of benefits shall be as established by the Corporate
Compensation and Benefits Committee. If such a benefit has been
awarded by designated a qualified retirement plan of the Company, then
the benefit shall commence to be paid at the later of (1) termination
of employment or (2) the attainment of the earliest retirement age
under the designated plan. Notwithstanding the above, the Employee
may elect any other benefit commencement date which follows
termination of employment and is available under the designated plan
by electing such benefit commencement date or form of benefit at least
one year prior to the date benefits would otherwise commence.
(3) Notwithstanding subsections (a) and (b), at the sole discretion of the
Corporation, benefits under the Plan may be paid in the form of a lump
sum payment. The amount of the lump sum shall be determined using the
actuarial assumptions of the Defined Benefit Plan in which the
Employee last participated, or, in the case of an employee entitled to
a benefit under Section 4.2, the actuarial assumptions of the plan
designated by the Committee.
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SECTION 6 - DEATH BENEFITS
6.1 DEATH BEFORE RETIREMENT. No death benefit shall be payable under the Plan
in the event of death before retirement unless a qualified pre-retirement
survivor benefit (as described in Code Section 417) is payable under the
Defined Benefit Plan and such survivor benefit is reduced solely as a
result of Code Sections 415 and/or 401(a)(17). In such event, the amount
of the monthly benefit payable under the Plan to a beneficiary entitled to
benefits under the Defined Benefit Plan will be equal to the amount of
reduction in the benefit payable to such beneficiary under the Defined
Benefit Plan which is attributable to Service and results from the
aforementioned Code sections. A survivor benefit payable to a beneficiary
under the Plan will cease at the same time the survivor benefit to such
beneficiary is terminated under the Defined Benefit Plan. Notwithstanding
the foregoing, at the sole discretion of the Corporation, the survivor
benefit may be paid in the form of a lump sum payment. The amount of the
lump sum shall be determined using the actuarial assumptions of the Defined
Benefit Plan in which the Employee last participated.
6.2 DEATH AFTER RETIREMENT. To the extent that a post-retirement death
benefit, attributable to Service, otherwise payable under the Defined
Benefit Plan is reduced by application of Code Sections 415 and/or
401(a)(17), the amount of such reduction will be payable under the Plan.
At the sole discretion at the Corporation, the death benefit may be paid in
the form of a lump sum payment. The amount of the lump sum shall be
determined using the actuarial assumptions of the Defined Benefit Plan in
which the Employee last participated.
6.3 EMPLOYEES ENTITLED TO BENEFITS UNDER SECTION 4.2. Notwithstanding Sections
6.1 and 6.2, in the case of an Employee entitled to a benefit under Section
4.2, the benefit payable on account of a death before or after retirement
shall be as established by the Corporate Compensation and Benefits
Committee. If such a benefit has been awarded by designating a qualified
retirement plan of the Company, then the benefit payable on account of
death shall be as set forth in the designated plan. At the sole discretion
of the Company, a lump-sum benefit may be paid, calculated in the manner
described in Section 6.1 and 6.2 for lump-sum benefits.
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SECTION 7 - COST OF THE PLAN
All costs of the Plan, including the administration thereof, shall be borne by
the Corporation and no contributions from Employees shall be required or
permitted.
Nothing in the establishment of this Plan is to be construed as requiring the
Corporation to create or maintain any separate fund, account or reserve to
provide for the payment of the Corporation's liability to an Employee under the
Plan. All benefits under the Plan shall be paid from the general assets of the
Corporation, or from a grantor trust established for the purpose of making such
payments.
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SECTION 8 - ADMINISTRATION
8.1 CHARTER OF THE COMMITTEE. This Plan shall be administered according to
the Charter of the Corporate Compensation & Benefits Committee. The
provisions of the Charter of the Corporate Compensation & Benefits
Committee, including any amendments thereto subsequently adopted, are
incorporated herein by reference as if set forth fully herein.
8.2 PLAN INTERPRETATIONS FOLLOWING A CHANGE IN CONTROL. Following a Change
in Control or an Event, any provisions of this Plan or the Charter of the
Corporate Compensation & Benefits Committee which allow or purport to allow
the Plan Committee, any Company or any fiduciary of the Plan discretionary
authority or power to construe and interpret the terms of the Plan shall be
void as applied to any dispute involving benefits which accrued under this
Plan prior to the Change in Control or Event. Accordingly, as to such
disputes, an arbitrator or court shall, following a Change in Control or
Event, interpret the Plan on a DE NOVO basis.
8.3 CLAIMS PROCEDURE AND ARBITRATION.
(a) The claims procedure established pursuant to the Charter of the
Corporate Compensation and Benefits Committee shall apply to this
Plan, as modified by the arbitration procedure described in
Section 8.3(b).
(b) (i) A Retiree or an Employee (collectively referred to as a
"Claimant") may, if he or she desires, submit any claim for
payment under this Plan or dispute regarding the
interpretation of this Plan to arbitration. This right to
select arbitration shall be solely that of the Claimant,
and the Claimant may decide whether or not to arbitrate in
his or her discretion. The "right to select arbitration"
does not impose upon the Claimant a requirement to submit a
dispute for arbitration. The Claimant may, in lieu of
arbitration, pursue the claims procedure set forth herein,
and upon exhaustion of such claims procedure, bring an
action in an appropriate civil court. Furthermore, at any
time during the claims procedure, and before the Claimant
commences an
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action in a civil court, the Claimant may select
arbitration. The claims procedure would thereafter be
abandoned, and the dispute would be subject to the
arbitration procedure set forth herein. The Claimant need
not commence or exhaust the Plan's claim procedure in order
to commence arbitration. The Claimant retains the right to
select arbitration, even if a civil action (including,
without limitation, an action for declaratory relief) is
brought by the Company, or any other fiduciary of the Plan
prior to the commencement of arbitration. If arbitration
is selected by the Claimant after a civil action concerning
the Claimant's dispute has been brought by a person other
than the Claimant, then the Company, the Trustee and the
Claimant shall take such actions as are necessary or
appropriate, including dismissal of the civil action, so
that the arbitration can be timely heard. Once an
arbitration is commenced, it may not be discontinued
without the unanimous consent of all parties to the
arbitration. During the lifetime of the Employee only he
or she can use the arbitration procedure set forth in this
section.
(ii) Any claim for arbitration may be submitted as follows: if
the Claimant disagrees with an interpretation of this Plan
by the Company, or any fiduciary of the Plan, or disagrees
with the calculation of his or her benefit under the Plan,
such claim may be filed in writing with an arbitrator of
the Claimant's choice who is selected by the method
described in the next four sentences. The first step of
the selection shall consist of the Claimant submitting in
writing a list of five potential arbitrators to the
Company, and the trustee of any grantor trust which holds
assets for the purpose of making benefit payments under
this Plan ("Trustee"). Each of the five arbitrators must
be either (1) a member of the National Academy of
Arbitrators located in the state of the Claimant's
principal residence or (2) a retired California Superior
Court or Appellate Court judge. Within one week
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after receipt of the list, the Trustee and the Company
shall jointly select one of the five arbitrators as the
arbitrator for the dispute in question. If the Trustee and
Company fail to select an arbitrator in a timely manner
(including failure to select an arbitrator by reason of
disagreement between the Trustee and the Company as to the
arbitrator to be selected), the Claimant shall then
designate one of the five arbitrators as the arbitrator for
the dispute in question.
(iii) The arbitration hearing shall be held within seven days (or
as soon thereafter as possible) after the selection of the
arbitrator. No continuance of said hearing shall be
allowed without the mutual consent of the Claimant, the
Trustee and the Company. Absence from or nonparticipation
at the hearing by any party shall not prevent the issuance
of an award. Hearing procedures which will expedite the
hearing may be ordered at the arbitrator's discretion, and
the arbitrator may close the hearing in his or her sole
discretion when he or she decides he or she has heard
sufficient evidence to satisfy issuance of an award.
(iv) The arbitrator's award shall be rendered as expeditiously
as possible and in no event later than one week after the
close of the hearing. In the event the arbitrator finds
that the Claimant is entitled to the benefits he or she
claimed, the arbitrator shall order the Company and/or the
Trustee to pay such benefits, in the amounts and at such
times as the arbitrator determines. The obligation of the
Trustee to pay such benefits shall not, however, exceed the
assets of the trust, and the Company shall be jointly and
severally liable for any amount which the Trustee is
ordered to pay. The award of the arbitrator shall be final
and binding upon the parties. The Company shall thereupon
pay the Claimant immediately the amount that the arbitrator
orders to be paid in the manner described in the award. The
award may be enforced in any appropriate
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court as soon as possible after its rendition. If an action
is brought to confirm the award, no appeal shall be taken
by any party from any decision rendered in such action.
(v) If the arbitrator determines either that the Claimant is
entitled to the claimed benefits or that the claim by the
Claimant was made in good faith, the arbitrator shall
direct the Company to pay to the Claimant and Company
agrees to pay to the Claimant in accordance with such
order, an amount equal to the Claimant's expenses in
pursuing the claim, including attorneys' fees.
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SECTION 9 - FACILITY OF PAYMENT AND LAPSE OF BENEFITS
9.1 LACK OF VALID BENEFICIARY DESIGNATION. If no valid designation of
beneficiary is on file with the Defined Benefit Plan, any payment due to a
person under the provisions of the Plan for any period to the date of the
person's death, and any payment due thereafter as a result of the person's
death shall be paid by the Plan Administrator to the decedent's estate, or
if the Plan Administrator in its sole discretion deems it appropriate, in
whole or in part to any relative or relatives of the decedent by blood,
marriage, or adoption, or to any person who may have paid expenses of the
last illness, or funeral or burial expenses, or any combination of such
persons, in such proportions and in such manner as the Plan Administrator
shall determine in its sole discretion. The foregoing authorization shall
include, without limitation, sums represented by any check for benefit
payments due to the date of such person's death when such check has not
been negotiated prior to the death of the decedent.
9.2 PAYMENTS OR DEPOSITS. Payments or deposits made pursuant to any
provision of this Section 9 shall be a complete discharge, to the extent
thereof, of all liability under the provision of the Plan, or otherwise, of
the Plan Administrator, the Company and the Plan, and the receipt by the
person or persons receiving any such payment, distribution or deposit shall
be a complete acquittance therefore, and there shall be no obligation to
see to the application of any payments, distributions or deposits so made.
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SECTION 10 - GENERAL PROVISIONS
10.1 FREQUENCY AND DURATION OF PAYMENTS. All benefits under the Plan other than
those payable in a single sum shall be paid in monthly installments at the
beginning of the month to which the payment applies and shall cease with
the month at the retired Employee's death unless continued to a
beneficiary or joint annuitant in accordance with other provisions of the
Plan.
10.2 PAYMENTS AND BENEFITS NOT ASSIGNABLE. Payments to and benefits under the
Plan are not assignable or subject to alienation since they are primarily
for the support and maintenance of the Employees and their joint annuitants
or beneficiaries after retirement. Likewise, such payments shall not be
subject to attachment by creditors of or through legal process against, the
Company, the Plan Administrator, any Employee or Retiree.
10.3 NO RIGHT OF EMPLOYMENT. The provisions at the Plan shall not give an
Employee the right to be retained in the service of the Company.
10.4 ADJUSTMENTS. The Plan Administrator may, with respect to a Retiree, adjust
such Retiree's benefit under the Plan or make such other adjustments with
respect to such Retiree as required to correct administrative errors or
provide uniform treatment of Retirees in a manner consistent with the
intent and purposes of the Plan.
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SECTION 11 - AMENDMENTS, ASSIGNMENT AND DISCONTINUANCE
11.1 AMENDMENT OF PLAN. The Plan may be amended from time to time as set forth
in the Charter of the Corporate Compensation & Benefits Committee, except
that, as to benefits accrued prior to a Change in Control or Event,
sections 8.2 and 8.3 may not be amended following such a Change in Control
or Event, and Section 8.3 may not, at any time, be amended with respect to
a dispute over which arbitration has previously been selected.
11.2 ASSIGNMENT OF PLAN. In the event of a Change in Control or Event, with
respect to the Employees of any Company or portion of a Company which is
subject to such a Change in Control or Event, the Corporation agrees to
take good faith efforts to obligate any successor organization to assume
and agree to discharge all of the obligations under the Plan of the
Corporation to the Employees of such Company or such portion of a Company
and its applicable Retirees under the terms and conditions of the Plan.
Furthermore, if such Employee ceases to be employed by the Company or its
successor prior to the second anniversary of such Change in Control or
Event, the requirement of at least five (5) years of Service contained in
Section 3.1 shall not apply to such Employee.
Upon such assumption and agreement, the term "Corporation," and where
applicable "Company," as used in the Plan shall be deemed to refer to the
successor corporation.
11.3 TERMINATION. The Corporation intends to continue the Plan indefinitely but
reserves the right to terminate it at any time.
11.4 EFFECT OF AMENDMENT OR TERMINATION. No amendment or termination of the
Plan may adversely affect the benefits payable to any retiree receiving
benefits under the Plan prior to the effective date of the amendment or
termination, or to any Employee who, as of such date, was vested in his
benefit under a Defined Benefit Plan and had accrued a benefit under the
Plan.
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To record the adoption of this Plan, this document has been executed April 10,
1996.
CASTLE & COOKE, INC.
/s/ BERT KIDO
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BERT KIDO
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