View:
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 25, 2006
ALEXANDER & BALDWIN, INC.
(Exact name of registrant as specified in its charter)
Hawaii 0-565 99-0032630
------ ----- ----------
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
- ------------------------------- ------------------------ ----------------
incorporation) Identification No.)
-------------- -------------------
822 Bishop Street, P. O. Box 3440
Honolulu, Hawaii 96801
----------------------
(Address of principal executive office and zip code)
(808) 525-6611
--------------
(Registrant's telephone number, including area code)
Not Applicable
--------------
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2.):
_
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
_
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
_
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
_
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
- ------------------------------------------------------------
On January 25, 2006, the Compensation Committee of the Alexander &
Baldwin, Inc. ("Company") Board of Directors approved the Performance-Based
Restricted Stock Issuance Agreement ("Agreement"), pursuant to the Alexander &
Baldwin, Inc. 1998 Stock Option/Stock Incentive Plan. Restricted stock granted
to executive officers under the Agreement will vest at the end of one year,
based on the Company's level of attainment of its pre-tax income target, as
described in the Agreement, and each participant's continued service with the
Company. If a participant retires, dies, or becomes disabled prior to the end of
the year, the executive officer will receive a pro rata share based on the
amount of time served and the Company's level of attainment of its pre-tax
income target. In the event of a change in control, as described in the
Agreement, the shares will become fully vested. The following executive officers
received the corresponding number of restricted shares under the Agreement: W.
Allen Doane (13,000 shares), James S. Andrasick (4,000 shares), Christopher J.
Benjamin (2,500 shares), Matthew J. Cox (2,000 shares), and Stanley M. Kuriyama
(3,000 shares). Five other executive officers received no more than 1,000
restricted shares each under the Agreement. The form of Agreement is attached
hereto as Exhibit 10.1.
Also on January 25, 2006, the Company entered into agreements, in the
form attached hereto as Exhibit 10.2 (the "Change in Control Agreement"), with
the executive officers listed in the Schedule of Exhibit 10.2, effective as of
January 1, 2006. The Change in Control Agreement is substantially similar to the
Form of Severance Agreement previously filed by the Company in its Form 10-Q for
the quarter ended September 30, 2000, though there are several amendments, such
as amending the definition of "change in control" to comply with the American
Jobs Creation Act of 2004. The foregoing description of the Change in Control
Agreement is qualified in its entirety by the terms of the Change in Control
Agreement.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in
- ------------------------------------------------------------------------------
Fiscal Year
- -----------
On January 26, 2006, the Board of Directors voted to amend the
Company's Bylaws, effective as of that date, to allow the Company to implement
an additional method of issuing shares via electronic book-entry form, through
the use of a Direct Registration System ("DRS"). The Amendment to the Revised
Bylaws of Alexander & Baldwin, Inc. is filed herewith as Exhibit 3(ii) and
incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
- ---------------------------------------------------
(d) Exhibits
3(ii) Amendment, effective January 26, 2006, to the Revised Bylaws
of Alexander & Baldwin, Inc., as amended effective February
22, 2001.
10.1 Form of Performance-Based Restricted Stock Issuance Agreement
pursuant to the Alexander & Baldwin, Inc. 1998 Stock
Option/Stock Incentive Plan.
10.2 Form of Agreement entered into with certain executive
officers, effective January 1, 2006. Schedule to Form of
Agreement entered into with certain executive officers.
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: January 27, 2006
ALEXANDER & BALDWIN, INC.
/s/ Christopher J. Benjamin
---------------------------------------
Christopher J. Benjamin
Senior Vice President and
Chief Financial Officer
AMENDMENT TO THE
REVISED BYLAWS OF
ALEXANDER & BALDWIN, INC.
-------------------------
The Revised Bylaws of Alexander & Baldwin, Inc. as amended effective
February 22, 2001 ("Bylaws") are hereby amended, effective January 26, 2006,
as follows:
Article VII, Section 1 and Section 3 of the Bylaws be, and hereby are,
amended in their entireties, effective January 26, 2006, to read as follows:
"SECTION 1. Certificates of Stock. The certificates of stock of each
---------------------
class shall be in such form and of such device as the Board of
Directors may, from time to time, determine, including uncertificated
shares. The rights and obligations of the holders of uncertificated
shares and the rights and obligations of the holders of certificated
shares of the same class and series shall be identical. Every share
certificate shall be signed by the Chairman of the Board, if appointed,
or the President or a vice president and by the Treasurer or the
Secretary or an assistant treasurer or assistant secretary and shall
bear the corporate seal, provided, however, that the Board of Directors
in its discretion may provide that any certificate which shall be
signed by a transfer agent or by a registrar may be sealed with only
the facsimile seal of the Corporation and may be signed with only the
facsimile signatures of the officers above designated. In case any
officer who has signed or whose facsimile signature has been placed
upon any certificate shall have ceased to be such officer before such
certificate is issued, such certificate may, nevertheless, be issued
with the same effect as if such officer had not ceased to be such at
the date of its issue. Certificates shall not be issued for nor shall
there be registered any transfer of any fraction of a share. In the
event that fractional parts of or interests in any share shall result
in any manner from any action by the stockholders or directors of the
Corporation, the Treasurer may sell the aggregate of such fractional
interests under such reasonable terms and conditions as the Treasurer
shall determine subject, however, to the control of the Board of
Directors, and distribute the proceeds thereof to the person or persons
entitled thereto.
"SECTION 3. Transfer of Stock. "Transfer of stock may be made in any
-----------------
manner permitted by law, but no transfer shall be valid (except between
the parties thereto) until the transfer shall have been duly recorded
in the stock books of the Corporation and a new certificate or evidence
of uncertificated shares are issued. No transfer shall be entered in
the stock books of the Corporation, nor shall any new certificate be
issued until the old certificate, properly endorsed, shall be
surrendered and canceled or proper transfer instructions are received
from the holder of uncertificated shares."
ALEXANDER & BALDWIN, INC.
PERFORMANCE-BASED RESTRICTED STOCK ISSUANCE AGREEMENT
AGREEMENT made as of January ___, 200__ (the "Award Date"), by and
between ALEXANDER & BALDWIN, INC., a Hawaii corporation (the "Corporation"), and
<> <> (the "Participant").
All capitalized terms in this Agreement, to the extent not otherwise
expressly defined herein, shall have the meaning assigned to them in the
Corporation's 1998 Stock Option/Stock Incentive Plan, as amended (the "Plan").
A. ISSUANCE OF SHARES
------------------
1. Issuance. The Participant is hereby issued ________ shares (the
--------
"Issued Shares") of common stock of the Corporation (the "Common Stock")
pursuant to the provisions of the Stock Issuance Program in effect under the
Plan. The Issued Shares shall be unvested and subject to both the performance
vesting and Service vesting requirements set forth in Paragraph C.1 hereof. To
the extent such vesting requirements or the vesting acceleration provisions of
Paragraph C.2 hereof are not satisfied, the Issued Shares shall be subject to
cancellation in accordance with the provisions of Paragraph C.3 hereof.
2. Stockholder Rights. Except to the extent all or a portion of the
------------------
Issued Shares are cancelled pursuant to the provisions of Paragraph C.3 hereof,
the Participant shall have all the rights of a stockholder (including voting,
dividend and liquidation rights) with respect to the Issued Shares, subject,
however, to the restrictions and conditions of this Agreement.
3. Escrow. The Corporation shall hold the Issued Shares in escrow
------
until those shares have vested in accordance with the applicable vesting
provisions of Paragraph C.1 or Paragraph C.2 hereof. The Issued Shares which so
vest shall be released from escrow, subject to the Corporation's collection of
the applicable Withholding Taxes in accordance with Paragraph C.5 hereof. For
purposes of this Agreement, the Withholding Taxes mean the federal, state and
local income taxes and the employee portion of the federal, state and local
employment taxes (including FICA taxes) required to be withheld by the
Corporation in connection with the Participant's vesting in the Issued Shares.
4. Compliance with Law. Under no circumstances shall shares of
-------------------
Common Stock be issued or delivered to the Participant pursuant to the
provisions of this Agreement unless there shall have been compliance with all
applicable requirements of Federal and state securities laws, all applicable
listing requirements of the Nasdaq National Market or any national securities
exchange on which the Common Stock is at the time listed for trading and all
other requirements of law or of any regulatory bodies having jurisdiction over
such issuance and delivery.
B. TRANSFER RESTRICTIONS
---------------------
1. Restriction on Transfer. The Participant shall not transfer,
-----------------------
assign, encumber or otherwise dispose of any of the Issued Shares which are
subject to the cancellation provisions of Paragraph C.3 hereof.
2. Restrictive Legend. The stock certificate(s) for unvested Issued
------------------
Shares shall be endorsed with the following restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT
TO THE PROVISIONS OF THE STOCK ISSUANCE PROGRAM OF THE ALEXANDER &
BALDWIN, INC. 1998 STOCK OPTION/STOCK INCENTIVE PLAN, AS AMENDED
("PLAN") AND ARE UNVESTED AND SUBJECT TO CANCELLATION BY THE
CORPORATION UPON THE TERMS AND CONDITIONS SPECIFIED IN A WRITTEN
AGREEMENT DATED AS OF JANUARY ___, 200__ BETWEEN THE CORPORATION AND
THE REGISTERED HOLDER OF THE SHARES. A COPY OF SUCH AGREEMENT IS
MAINTAINED AT THE CORPORATION'S PRINCIPAL CORPORATE OFFICES. WHILE THE
SHARES REMAIN UNVESTED AND SUBJECT TO CANCELLATION, THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR PLEDGED."
C. VESTING/CANCELLATION OF THE ISSUED SHARES
-----------------------------------------
1. Vesting. The Issued Shares shall initially be unvested and shall
-------
vest only in accordance with the vesting provisions of this Paragraph C.1 or the
special vesting acceleration provisions of Paragraph C.2. The number of Issued
Shares in which the Participant shall vest under this Paragraph C.1 shall be
determined pursuant to a two-step process: (i) first there shall be calculated
the maximum number of Issued Shares in which the Participant can vest based upon
the level of attainment of the Corporation's pre-tax income target for the
200__ fiscal year specified on Schedule I and (ii) then the number of the Issued
Shares calculated under clause (i) in which the Participant shall actually vest
shall be determined on the basis of his or her completion of the applicable
Service vesting provisions set forth below. Accordingly, the vesting of the
Issued Shares shall be calculated as follows:
(i) Performance Vesting: The pre-tax income target established
-------------------
for the Corporation for the 200__ fiscal year is set forth in attached Schedule
I and has three levels: Threshold, Target and Extraordinary. As soon as
administratively practicable following the completion of the Corporation's
200__ fiscal year, the Plan Administrator shall, on the basis of the
Corporation's financial statements for that fiscal year, determine the actual
level of attainment of the pre-tax income target for such fiscal year and shall
then measure that level of attainment against the Threshold, Target and
Extraordinary levels set forth in attached Schedule I. The maximum number of
Issued Shares in which the Participant can vest based upon the actual level of
pre-tax income attained by the Corporation shall be determined as follows:
- attainment below the Threshold level: 0% of the Issued Shares
- attainment at the Threshold level: 50% of the Issued Shares
- attainment at the Target level: 100% of the Issued Shares
To the extent the actual level of attainment is at a point
between the Threshold and Target levels, the maximum number of Issued Shares in
which the Participant can vest shall be pro-rated between the two points on a
straight-line basis.
The maximum number of Issued Shares in which the Participant can
vest on the basis of the foregoing shall be hereinafter designated the "Maximum
Number of Shares."
If the actual level of attainment is at or above the
Extraordinary level of pre-tax income specified in Schedule I, then the
Participant shall, as soon as administratively practical following the Plan
Administrator's determination and certification of such Extraordinary level of
attainment, be issued an additional number of shares of Common Stock equal to
the actual number of Issued Shares in which he or she vests hereunder on the
basis of his or her completion of the applicable Service vesting requirement
set forth below. To the extent the actual level of attainment is at a point
between the Target and Extraordinary levels, the maximum number of additional
shares to which the Participant may become entitled shall be pro-rated between
the two points on a straight-line basis, and the percentage of those additional
shares that will actually be issued to the Participant will be equal to the
percentage of the Issued Shares in which the Participant vests of the basis of
his or her completion of the Service vesting requirement. The issuance of any
such additional shares of Common Stock shall be subject to the Corporation's
collection of all applicable Withholding Taxes in accordance with same
procedures in effect for the Issued Shares under Paragraph C.5 hereof.
(ii) Service Vesting. The application of the performance vesting
---------------
provisions shall determine the maximum number of Issued Shares in which the
Participant can vest hereunder. The actual number of Issued Shares in which the
Participant shall vest shall be determined as follows:
- If the Participant continues in Service for the one-year
period measured from the Award Date (the "Service Vesting Period"), the
Participant shall vest in one hundred percent (100%) of the Maximum
Number of Shares.
- If the Participant ceases Service prior to the completion of
the Service Vesting Period by reason of Retirement, death or Permanent
Disability, then the Participant shall vest in a portion of the Maximum
Number Shares determined by multiplying the Maximum Number of Shares by
a fraction, the numerator of which is the number of full or partial
months of actual Service completed in the Service Vesting Period and
the denominator of which is twelve (12).
- If the Participant's Service ceases for any other reason
prior to the completion of the Service Vesting Period, then the
Participant shall not vest in any of the Issued Shares.
For purposes of the foregoing Service vesting provisions:
- The term Service shall mean the Participant's
performance of services for the Corporation (or any Parent or
Subsidiary) in the capacity of an Employee or a non-employee member of
the board of directors of any Subsidiary. Participant shall be deemed to
cease such Service immediately upon the occurrence of either of the
following events: (i) the Participant no longer performs services in any
of the foregoing capacities for the Corporation (or any Parent or
Subsidiary) or (ii) the entity for which the Participant performs such
services ceases to remain a Parent or Subsidiary of the Corporation,
even though the Participant may subsequently continue to perform
services for that entity. Service shall not be deemed to cease during a
period of military leave, sick leave or other personal leave approved by
the Corporation; provided, however, that except to the extent otherwise
required by law or expressly authorized by the Plan Administrator or the
Corporation's written leave of absence policy, no Service credit shall
be given for vesting purposes for any period the Participant is on a
leave of absence.
- The Participant will be deemed to cease Service by
reason of Retirement if he or she terminates Service on or after
attainment of age sixty-five (65) or by reason of approved early
retirement (age 55 plus 5 years Service).
(iii) Vesting. The Participant shall acquire a fully-vested
-------
interest in, and the transfer restrictions of Paragraph B hereof and the
cancellation provisions of Paragraph C.2 hereof shall terminate with respect
to, all Issued Shares in which the Participant vests on the basis of the
performance vesting and Service vesting requirements set forth in this
Paragraph C.1. The vested Issued Shares shall be released from escrow as soon
as administratively practicable, subject to the Corporation's collection of the
applicable Withholding Taxes.
Schedule II attached to this Agreement sets forth examples
illustrating the calculation of the number of Issued Shares in which the
Participant may vest based upon hypothetical levels of pre-tax income and
service vesting requirements.
2. Change in Control. In the event of a Change in Control during the
-----------------
Participant's period of Service, then the cancellation provisions of Paragraph
C.3 hereof shall lapse in their entirety, and the Issued Shares shall vest in
full and shall be released from escrow as soon as administratively practicable,
subject to the Corporation's collection of the applicable Withholding Taxes in
accordance with Paragraph C.5 hereof.
3. Cancellation of Issued Shares. To the extent the Participant
-----------------------------
does not vest in the Issued Shares in accordance with either the performance
vesting or the Service vesting requirements set forth in Paragraph C.1 hereof
or the vesting acceleration provisions of Paragraph C.2 hereof, those unvested
Issued Shares, together with the stock certificates evidencing those shares,
shall be immediately cancelled, without any cash or other payment due the
Participant with respect to the cancelled Issued Shares, and the Participant
shall no longer be entitled to any rights as a stockholder with respect to
those shares or to any other entitlement or interest with respect to such
shares.
4. Recapitalization. Any new, substituted or additional securities
----------------
or other property (including cash paid other than as a regular cash dividend)
which the Participant might have the right to receive with respect to the
unvested Issued Shares by reason of any stock dividend, stock split,
recapitalization, combination of shares, exchanges of shares or other change
affecting the outstanding Common Stock as a class without the Corporation's
receipt of consideration, shall be issued subject to the vesting requirements,
cancellation provisions and the escrow requirements hereunder.
5. Collection of Withholding Taxes. In the absence of any other
-------------------------------
arrangement agreed to by the Corporation with respect to the collection of the
applicable Withholding Taxes which become due upon the vesting of the Issued
Shares, the Participant shall pay such Withholding Taxes to the Corporation in
cash or cash equivalent, such as a check payable to the Corporation's order.
D. GENERAL PROVISIONS
------------------
1. At Will Employment. Nothing in this Agreement or in the Plan
------------------
shall confer upon the Participant any right to continue in Service for any
period of specific duration or interfere with or otherwise restrict in any way
the rights of the Corporation (or any Subsidiary employing or retaining the
Participant) or of the Participant, which rights are hereby expressly reserved
by each, to terminate the Participant's Service at any time for any reason,
with or without cause.
2. Notices. Any notice required to be given under this Agreement
-------
shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the U.S. mail, registered or certified, postage prepaid and properly
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this paragraph
to all other parties to this Agreement.
3. No Waiver. No waiver of any breach or condition of this Agreement
---------
shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
4. Cancellation of Shares. Should the cancellation provisions contained
----------------------
in Paragraph C.3 hereof become applicable in connection with the Participant's
failure to vest in all or part of the Issued Shares, then from and after that
time, the Participant or any other record holder of those shares shall no longer
have any stockholder or other rights with respect to those shares. Such shares
shall be deemed cancelled in accordance with the applicable provisions hereof,
and the Corporation shall be deemed the owner and holder of such shares, whether
or not the certificates therefor have been delivered to the Corporation.
5. Participant Undertaking. The Participant hereby agrees to take
-----------------------
whatever additional action and execute whatever additional documents the
Corporation may deem necessary or advisable in order to carry out or effect one
or more of the obligations or restrictions imposed on either the Participant or
the Issued Shares pursuant to the provisions of this Agreement.
6. Agreement and Plan Constitute Entire Contract. This Agreement
---------------------------------------------
and the Plan constitute the entire contract between the parties hereto with
regard to the subject matter hereof. This Agreement is made pursuant to the
provisions of the Plan and shall in all respects be construed in conformity with
the terms of the Plan.
7. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of Hawaii without resort to that State's
choice of law rules.
8. Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
9. Successors and Assigns. The provisions of this Agreement shall
----------------------
inure to the benefit of, and be binding upon, the Corporation and its successors
and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
ALEXANDER & BALDWIN, INC.
By ________________________________
Its Vice President
_____________________________________
Participant
Address:
_____________________________________
_____________________________________
SCHEDULE I
PRE-TAX INCOME TARGET
The Corporation's pre-tax income targets for the 200__ fiscal year at
the Threshold, Target and above-Target levels are as follows:
Threshold Level: ______________
Target Level: ______________
Extraordinary Level: ______________
Pre-tax income shall be calculated on a consolidated basis with the
Corporation's consolidated subsidiaries for financial reporting purposes and
shall be determined on the basis of the Corporation's financial statements for
the 200__ fiscal year, subject to any adjustments as determined by the Plan
Administrator that are needed to accurately reflect the performance of the
Corporation (e.g., because of changes in accounting rules, extraordinary gains
from the sale of Company assets, or other similar or dissimilar circumstances
occurring during the 200__ fiscal year that may or may not have been beyond the
control of the Corporation).
SCHEDULE II
ILLUSTRATION OF VESTING CALCULATIONS
The following examples are for illustration purposes only:
1. A Participant receives 1,000 Issued Shares and the Participant
continues in Service for the one-year period following the Award Date.
If the Corporation's actual level of attainment for that year is at the
Target level, the Participant shall vest in all 1,000 of his or her
Issued Shares. If the Corporation's actual level of attainment for that
year is at the Extraordinary level, the Participant shall vest in all
1,000 of his or her Issued Shares, and he or she will be issued an
additional 1,000 shares.
2. A Participant receives 1,000 Issued Shares and the Participant ceases
Service halfway through the one-year period following the Award Date
due to a Permanent Disability. If the Corporation's actual level of
attainment for that year is at the Target level, the Participant shall
vest in 500 of his or her Issued Shares. On the other hand, if the
Corporation's actual level of attainment for that year is at the
Extraordinary level, the Participant shall vest in 500 of his or her
Issued Shares, and he or she will also be issued an additional 500
shares.
3. A Participant receives 1,000 Issued Shares and the Participant
continues in Service for the one-year period following the Award Date.
If the Corporation's actual level of attainment for that year is
halfway between the Threshold and Target level, the Participant shall
vest in 750 Issued Shares. On the other hand, if the Corporation's
actual level of attainment for that year is halfway between the Target
and Extraordinary level, the Participant shall vest in all 1,000 of his
or her Issued Shares, and he or she will also be issued an additional
500 shares.
4. A Participant receives 1,000 Issued Shares and the Participant ceases
Service halfway through the one-year period following the Award Date
due to Permanent Disability. If the Corporation's actual level of
attainment for that year is halfway between the Threshold and Target
level, the Participant shall vest in 375 Issued Shares. On the other
hand, if the Corporation's actual level of attainment for that year is
halfway between the Target and Extraordinary level, the Participant
shall vest in 500 of his or her Issued Shares, and he will also be
issued an additional 250 shares.
PRIVILEGED AND CONFIDENTIAL
---------------------------
[Name]
[Address]
Dear __________:
Alexander & Baldwin, Inc. (the "Company") considers it essential to the
best interests of the Company and its shareholders to encourage the continued
employment of key management personnel. In this connection, the Board of
Directors of the Company (the "Board") recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company may exist and that such possibility, and the uncertainty and questions
which it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its shareholders.
Accordingly, the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's top management, including yourself, to their assigned duties without
distraction in the face of the potentially disturbing circumstances arising from
the possibility of a change in control of the Company.
To persuade you to remain in the employ of the Company and in
consideration of your agreement set forth in Section 2(b) hereof, the Company
agrees that you will receive the severance benefits set forth in this letter
agreement, effective as of ______________ (the "Agreement") in the event your
employment with the Company is terminated subsequent to a "change in control of
the Company" (as defined in Section 2(a) hereof) under the circumstances
described below.
If you are or become an officer of a subsidiary of the Company, whether
or not you are also an employee of the Company, any reference herein to your
employment by the Company shall be deemed to include such subsidiary.
1. Term and Operation of Agreement. This Agreement shall commence on
-------------------------------
the effective date hereof and shall continue in effect through ______________;
provided, however, that commencing on ______________ and each January 1
thereafter, the term of this Agreement shall automatically be extended for one
additional year unless not later than December 1 of the preceding year, the
Company shall have given notice that it does not wish to extend this Agreement;
and provided, further, that notwithstanding any such notice by the Company not
to extend, this Agreement shall continue in effect for a period of twenty-four
(24) months beyond the term provided herein if a "change in control of the
Company" (as defined in Section 2(a) hereof) shall have occurred during such
term.
2. Change in Control. (a) No benefits shall be payable hereunder unless
-----------------
there shall have been a change in control of the Company, as set forth below,
and your employment by the Company shall thereafter have been terminated in
accordance with Section 3 below. For purposes of this Agreement, a "change in
control of the Company" shall mean a "Change in Control Event" as defined in
Internal Revenue Service Notice 2005-1 or any successor guidance issued by the
Internal Revenue Service.
(b) For purposes of this Agreement, a "potential change in
control of the Company" shall be deemed to have occurred if (i) the Company
enters into an agreement the consummation of which would result in the
occurrence of a change in control of the Company; (ii) any person (including the
Company) publicly announces an intention to take or to consider taking actions
which if consummated would constitute a change in control of the Company; (iii)
any person becomes the beneficial owner, directly or indirectly, of securities
of the Company representing 20% or more of the combined voting power of the
Company's then outstanding securities; or (iv) the Board adopts a resolution to
the effect that a potential change in control of the Company for purposes of
this Agreement has occurred. You agree that, subject to the terms and conditions
of this Agreement, in the event of a potential change in control of the Company,
you will remain in the employ of the Company until the earliest of (i) a date
which is six (6) months from the occurrence of such potential change in control
of the Company, (ii) the termination of your employment by reason of Disability
or Retirement, as defined in Subsection 3(i) hereof, or (iii) the occurrence of
a change in control of the Company.
3. Termination Following Change in Control. If a Change in Control
---------------------------------------
Event shall have occurred, you shall be entitled to the benefits provided in
Section 4 hereof upon the subsequent termination of your employment during the
term of this Agreement unless such termination is (a) because of your death, (b)
by the Company for Cause or Disability or (c) by you other than for Good Reason.
For purposes of this Agreement, your employment shall be deemed to have been
terminated following a change in control by the Company without Cause or by you
with Good Reason, if (i) your employment is terminated by the Company without
Cause prior to a change in control of the Company (whether or not a change in
control of the Company ever occurs) and such termination was at the request or
direction of a person who has entered into an agreement with the Company the
consummation of which would constitute a change in control of the Company, (ii)
you terminate your employment for Good Reason prior to a change in control of
the Company (whether or not a change in control of the Company ever occurs) and
the circumstance or event which constitutes Good Reason occurs at the request or
direction of such person, or (iii) your employment is terminated by the Company
without Cause or by you for Good Reason and such termination or the circumstance
or event which constitutes Good Reason is otherwise in connection with or in
anticipation of a change in control of the Company (whether or not a change in
control of the Company ever occurs).
(i) Disability; Retirement. Termination by the Company of your
----------------------
employment based on "Disability" shall mean termination because of your
absence from your duties with the Company on a full-time basis for six
consecutive months, as a result of your incapacity due to physical or
mental illness, unless within 30 days after Notice of Termination (as
hereinafter defined) is given following such absence you shall have
returned to the full-time performance of your duties. Termination by
you of your employment based on "Retirement" shall mean termination in
accordance with the Company's retirement policy, including early
retirement, generally applicable to its salaried employees.
(ii) Cause. Termination by the Company of your employment for
-----
"Cause" shall mean termination upon (A) the willful and continued
failure by you substantially to perform your duties with the Company
(other than any such failure resulting from your incapacity due to
physical or mental illness or such actual or anticipated failure
resulting from your termination for Good Reason), after a demand for
substantial performance is delivered to you by the Board which
specifically identifies the manner in which the Board believes that you
have not substantially performed your duties, or (B) the willful
engaging by you in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise. For purposes of this
paragraph, no act, or failure to act, on your part shall be considered
"willful" unless done, or omitted to be done, by you not in good faith
and without reasonable belief that your action or omission was in the
best interest of the Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause unless and until there
shall have been delivered to you a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held for
the purpose (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board), finding that
in the good faith opinion of the Board you were guilty of conduct set
forth above in clauses (A) or (B) of the first sentence of this
paragraph and specifying the particulars thereof in detail.
(iii) Good Reason. You shall be entitled to terminate your
-----------
employment for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean, without your express written consent, any of the
following occurring subsequent to a change in control of the Company or
prior to a change in control of the Company under the circumstances
described in clauses (ii) and (iii) of the second sentence of Section 3
hereof (treating all references in paragraphs (A) through (F) below to
a "change in control of the Company" as references to a "potential
change in control of the Company"), unless, in the case of any act or
failure to act described in paragraph (A), (D), or (F) below, such act
or failure to act is corrected prior to the Date of Termination
specified in the Notice of Termination given in respect thereof:
(A) the assignment to you of any duties inconsistent
with your position, duties and status with the Company
immediately prior to a change in control of the Company; a
substantial alteration in the nature or status of your
responsibilities from those in effect immediately prior to a
change in control of the Company; the failure to provide you
with substantially the same perquisites which you had
immediately prior to a change in control of the Company,
including but not limited to an office and appropriate support
services; or a change in your titles or offices as in effect
immediately prior to a change in control of the Company, or
any removal of you from or any failure to reelect you to any
of such positions;
(B) a reduction by the Company in your base salary as
in effect on the effective date of this Agreement or as the
same may be increased from time to time;
(C) the Company's requiring you to be based anywhere
other than the metropolitan area in which your office is
located immediately prior to a change in control of the
Company, except for required travel on the Company's business
to an extent substantially consistent with your present
business travel obligations;
(D) the failure by the Company to continue in effect
any benefit, pension or compensation plan, employee stock
ownership plan, savings and profit sharing plan, stock option
plan, life insurance plan, medical insurance plan or
health-and-accident plan in which you are participating, or in
which you are entitled to participate, immediately prior to a
change in control of the Company (the "Company Plans"); unless
an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or
the failure by the Company to continue your participation
therein (or in such substitute or alternative plan) on a
substantially equivalent basis, both in terms of the amount or
timing of payment of benefits provided and the level of your
participation relative to other participants, as existed
immediately prior to the change in control of the Company; or
the failure by the Company to provide you with the number of
paid vacation days to which you are entitled on the basis of
years of service with the Company in accordance with the
Company's normal vacation policy immediately prior to a change
in control of the Company;
(E) the failure by the Company to obtain the
assumption of the agreement to perform this Agreement by any
successor as contemplated in Section 5 hereof; or
(F) any purported termination of your employment by
the Company which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (iv)
below (and, if applicable, paragraph (ii) above); and for
purposes of this Agreement, no such purported termination
shall be effective.
Your right to terminate your employment pursuant to this paragraph
shall not be affected by your incapacity due to physical or mental
illness, and your right to terminate your employment pursuant to this
paragraph shall not be limited by your agreement contained in Section
2(b) hereof. Your continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
(iv) Notice of Termination. Any purported termination by the
---------------------
Company pursuant to paragraph (i) or (ii) above or by you pursuant to
paragraph (iii) above shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 6
hereof. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of your employment under the provision so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A)
-------------------
if your employment is terminated for Disability, 30 days after Notice
of Termination is given (provided that you shall not have returned to
the performance of your duties on a full-time basis during such 30-day
period), and (B) if your employment is terminated pursuant to
paragraphs (ii) or (iii) above or for any other reason, the date
specified in the Notice of Termination (which, in the case of a
termination pursuant to paragraph (ii) above shall not be less than 30
days, and in the case of a termination pursuant to paragraph (iii)
above shall not be more than 60 days, from the date such Notice of
Termination is given); provided that if within 30 days after any Notice
of Termination is given the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of
the parties, by a binding and final arbitration award or by a final
judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been
perfected); and provided further that the Date of Termination shall be
extended by a notice of dispute given by you only if such notice is
given in good faith and you pursue the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute,
the Company will continue to pay you your full compensation in effect
when the notice of dispute was given (including, but not limited to,
base salary, bonus and incentive compensation), and continue you as a
participant in all compensation, benefit and insurance plans in which
you were participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this paragraph (v).
Amounts paid under this paragraph (v) are in addition to all other
amounts due under this Agreement and shall not be off-set against or
reduce any other amounts due under this Agreement.
4. Compensation Upon Termination or During Disability.
--------------------------------------------------
(a) During any period that you fail to perform your duties
hereunder as a result of incapacity due to physical or mental illness,
you shall continue to receive your full base salary at the rate then in
effect and all compensation and benefits payable under all
compensation, benefit and insurance plans until this Agreement is
terminated pursuant to Section 3(i) hereof. Thereafter, your benefits
shall be determined in accordance with the Company's long-term
disability plan or other insurance programs then in effect and the
Company Plans.
(b) If your employment shall be terminated for Cause, the
Company shall pay you your full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is
given and the Company shall have no further obligation to you under
this Agreement.
(c) If your employment by the Company shall be terminated by
the Company other than for Cause or Disability or by you for Good
Reason, then you shall be entitled to the benefits provided below:
(i) the Company shall pay you your full base salary
through the Date of Termination at the rate in effect at the time
Notice of Termination is given; or, if higher, the rate in effect
immediately prior to the first occurrence of an event or circumstance
constituting Good Reason, together with all compensation and benefits
payable to you through the Date of Termination under the terms of the
Company's compensation, benefit and insurance plans, programs or
arrangements as in effect immediately prior to the Date of Termination
or, if more favorable to you, as in effect immediately prior to the
first occurrence of an event or circumstance constituting Good Reason;
(ii) in lieu of any further salary payments to you
for periods subsequent to the Date of Termination, the Company shall
pay as severance pay to you, not later than the fifth day following the
Date of Termination, a lump sum severance payment (together with the
payments provided in Subsections 4(c) (iii), (iv), (v) and (vi), the
"Severance Payments") equal to two times the sum of (A) your annual
base salary as in effect immediately prior to the Date of Termination
or, if higher, in effect immediately prior to the first occurrence of
an event or circumstance constituting Good Reason, and (B) the highest
annual amount paid to you (or awarded to you, if such amount has not
yet been paid) as bonus compensation during or in respect of any of the
three calendar years preceding the year in which the Date of
Termination occurs or, if higher, immediately prior to the fiscal year
in which occurs the first event or circumstance constituting Good
Reason;
(iii) notwithstanding any provision of the Deferred
Compensation Plans, the Company shall pay you in one sum in cash not
later than the fifth day following the Date of Termination, the sum of
all amounts to which you are entitled under the Deferred Compensation
Plans whether upon termination of your employment or otherwise,
provided that in determining the amounts to which you are entitled
under the Excess Plan, SERP and Executive Survivor Plan, the provisions
of said plans relating to a change in control shall be applied on the
basis that the change in control of the Company did not provide as a
prerequisite to the consummation of the change in control that the
employer responsibilities under said plans are to be assumed by the
successor organization;
(iv) notwithstanding any provision of any annual or
long term incentive plan to the contrary, the Company shall pay to you
in one sum in cash not later than the fifth day following the Date of
Termination, an amount equal to the sum of (A) any incentive
compensation which has been awarded or allocated for any completed
fiscal year or other measuring period preceding that in which the Date
of Termination occurs but has not yet been paid, and (B) a pro rata
portion of the aggregate value of all contingent awards to you for all
uncompleted periods under such plans calculated by multiplying for each
such award, (1) a fraction, the numerator of which shall be the number
of full months elapsed during the period for such award prior to the
Date of Termination, and the denominator of which shall be the total
number of months contained in such period, by (2) the amount of the
award which would have been payable to you following completion of such
period at the "TARGET" (fully competent) level of performance as
described in the plan documents and the individual objective
development worksheets;
(v) in lieu of shares of common stock, without par
value, of the Company (the "Shares") issuable upon the exercise of
options ("Options"), if any, granted to you under any stock option or
other plan of the Company (which Options shall be canceled upon the
making of the payment referred to below), you shall receive in one sum
in cash not later than the fifth day following the Date of Termination
an amount equal to the product of (A) the difference (to the extent
that such difference is a positive number) obtained by subtracting the
per Share exercise price of each Option held by you, whether or not
then fully exercisable, from the higher of (X) the closing price of
Shares, as reported on the automated quotation system operated by the
National Association of Security Dealers, Inc. on the Date of
Termination (or the last trading date prior thereto), or (Y) the
highest price per Share actually paid in connection with any change in
control of the Company, and (B) the number of Shares covered by each
such Option;
(vi) in addition to the retirement benefits to which
you are entitled under any tax-qualified, supplemental or excess
benefit pension plan maintained by the Company and any other plan or
agreement entered into between you and the Company which is designed to
provide you with supplemental retirement benefits (collectively, the
"Retirement Plans"), the Company shall pay to you in one sum in cash
not later than the fifth day following the Date of Termination, an
amount equal to the excess of (A) over (B), where (A) equals the
actuarial equivalent of the retirement benefits (taking into account
any early retirement subsidies associated therewith and determined as a
straight life annuity commencing at the date (but in no event earlier
than the second anniversary of the Date of Termination) as of which the
actuarial equivalent of such annuity is greatest) to which you would
have been entitled under the terms of the Retirement Plans (without
regard to (x) any offset thereunder for severance allowances payable
hereunder or (y) any amendment to the Retirement Plans made subsequent
to a change in control of the Company and on or prior to the Date of
Termination, which amendment adversely affects in any manner the
computation of retirement benefits under the Retirement Plans),
determined as if you were fully vested thereunder and had accumulated
(after the Date of Termination) two additional years of continuous
service thereunder at your highest rate of earnings (as defined in the
Retirement Plans) during the year immediately preceding the occurrence
of the circumstances giving rise to the Notice of Termination given in
respect thereof; and where (B) equals the actuarial equivalent of the
total retirement benefits (taking into account any early retirement
subsidies associated therewith and determined as a straight life
annuity commencing at the date (but in no event earlier than the Date
of Termination) as of which the actuarial equivalent of such annuity is
greatest) to which you are entitled pursuant to the provisions of the
Retirement Plans; and for purposes of this paragraph (vi), "actuarial
equivalent" shall be determined using the same methods and assumptions
utilized under the Alexander and Baldwin, Inc. Excess Benefits Plan (or
any successor thereto (the "Excess Plan")) immediately prior to the
change in control, except that if you have not attained age sixty-five
(65), any reduction for early retirement shall be determined using
factors appropriate for the lesser of age sixty-five (65) or your then
age plus two (2) years, and the provisions of the Excess Plan
notwithstanding the early retirement reduction factors used shall be
those applicable to participants of the Pension Plan who terminate
employment after age fifty-five (55);
(vii) in the event that you become entitled to the
Severance Payments, if any of the Severance Payments will be subject to
the excise tax (the "Excise Tax") imposed under section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), the Company
shall pay to you an additional amount (the "Gross-Up Payment") such
that the net amount retained by you, after deduction of any Excise Tax
on the Severance Payments and any federal, state and local income and
employment tax and Excise Tax upon the payment provided for by this
Subsection 4(c)(vii), shall be equal to the Severance Payments. For
purposes of determining whether any of the Severance Payments will be
subject to the Excise Tax and the amount of such Excise Tax, (i) any
other payments or benefits received or to be received by you in
connection with a change in control of the Company (as defined in
Section 2(a) hereof) or your termination of employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any "person" (as defined in Section 2(a)
hereof) whose actions result in a change in control of the Company or
any person affiliated with the Company or such person) shall be treated
as "parachute payments" within the meaning of section 28OG(b)(2) of the
Code, and all "excess parachute payments" within the meaning of section
28OG(b)(1) of the Code shall be treated as subject to the Excise Tax,
unless in the opinion of tax counsel selected by the Company's
independent auditors and reasonably acceptable to you such other
payments or benefits (in whole or in part) do not constitute parachute
payments, including by reason of section 28OG(b)(4)(A) of the Code, or
such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered, within the
meaning of section 28OG(b)(4)(B) of the Code, in excess of the "base
amount" (as such term is defined in section 28OG(b)(3) of the Code)
allocable to such reasonable compensation, or are otherwise not subject
to the Excise Tax, (ii) the amount of the Severance Payments which
shall be treated as subject to the Excise Tax shall be equal to the
lesser of (A) the total amount of the Severance Payments or (B) the
amount of excess parachute payments within the meaning of section
28OG(b)(1) of the Code (after applying clause (i), above), and (iii)
the value of any non-cash benefits or any deferred payment or benefit
shall be determined by the Company's independent auditors in accordance
with the principles of sections 28OG(d)(3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up Payment, you shall
be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of your residence
on the Date of Termination, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and
local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at
the time of your termination of employment, you shall repay to the
Company, at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to
such reduction (plus that portion of the Gross-Up Payment attributable
to the Excise Tax and federal, state and local income tax imposed on
the Gross-Up Payment being repaid by you to the extent that such
repayment results in a reduction in Excise Tax and/or a federal, state
or local income tax deduction) plus interest on the amount of such
repayment at the rate provided in section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken
into account hereunder at the time of the termination of your
employment (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional Gross-Up Payment in respect of such
excess (plus any interest, penalties or additions payable by you with
respect to such excess) at the time that the amount of such excess is
finally determined. You and the Company shall each reasonably cooperate
with the other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for Excise
Tax with respect to the Severance Payments;
(viii) the Company shall also pay to you all legal
fees and expenses incurred by you as a result of such termination
(including all such fees and expenses, if any, incurred in contesting
or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement or in connection with
any tax audit or proceeding to the extent attributable to the
application of section 4999 of the Code to any payment or benefit
provided hereunder). Such payments shall be made within five (5)
business days after delivery of your written requests for payment
accompanied with such evidence of fees and expenses incurred as the
Company reasonably may require; and
(ix) the Company shall reimburse you for individual
outplacement counseling services in an amount not to exceed ten
thousand dollars ($10,000.00).
(d) Unless you are terminated for Cause, the Company shall
maintain or cause to be maintained in full force and effect, for your continued
benefit, for a period of two years, all health and welfare benefit plans to
include life insurance, health insurance and dental insurance, in which you
participated or were entitled to participate immediately prior to the Date of
Termination, provided that your continued participation is possible under the
general terms and provisions of such plans and programs. In the event that your
participation in any such plan or program is barred, the Company shall arrange
to provide you with benefits substantially similar to those which you are
entitled to receive under such plans and programs. At the end of such two-year
period, you will be entitled to take advantage of any conversion privileges
applicable to the benefits available under any such plans or programs. Benefits
otherwise receivable by you pursuant to this Section 4(d) shall be reduced to
the extent benefits of the same type are received by or made available to you
during the two-year period following your termination of employment (and any
such benefits received by or made available to you shall be reported by you to
the Company); provided, however, that the Company shall reimburse you for the
excess, if any, of the cost of such benefits to you over such cost immediately
prior to the Date of Termination or, if more favorable to you, the first
occurrence of an event or circumstance constituting Good Reason.
(e) You shall not be required to mitigate the amount of any
payment provided for in this Section 4 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 4 (other than
Section 4(d) hereof) be reduced by any compensation earned by you as the result
of employment by another employer after the Date of Termination, by offset
against any amount claimed to be owed by you to the Company, or otherwise.
5. Successors; Binding Agreement. (a) The Company will require any
-----------------------------
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to you, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
entitle you to compensation from the Company in the same amount and on the same
terms as you would be entitled hereunder if you terminated your employment for
Good Reason following a change in control of the Company, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 5 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law, or
otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
6. Notice. For the purposes of this Agreement, notices and all other
------
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
7. Miscellaneous. No provision of this Agreement may be modified,
-------------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by you and such officer as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the time or at any prior or
subsequent time. This Agreement constitutes the sole agreement of the parties
and terminates, replaces, and supersedes all previous representations,
understandings, and agreements of the parties with respect to the subject matter
herein, whether written or oral, express or implied, rendering such previous
representations, understandings, and agreements null and void. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Hawaii.
8. Validity. The invalidity or unenforceability of any provision of
--------
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
10. Arbitration. Any dispute or controversy arising under or in
-----------
connection with this Agreement shall be settled exclusively by arbitration in
Honolulu, Hawaii, in accordance with the rules of Dispute Prevention &
Resolution, Inc. then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction; provided, however, that you shall be
entitled to seek specific performance of your right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this letter
which will then constitute our agreement on this subject, upon execution by the
Company.
Dated this ______ day of ________________, 20__, but effective as
of ______________.
ALEXANDER & BALDWIN, INC.
- --------------------------
(Signature)
By
- --------------------------- ----------------------------
(Print Name) Ruthann S. Yamanaka
Vice President
SCHEDULE TO FORM OF AGREEMENT
The Company has entered into Agreements ("Change in Control Agreements") with
the following executive officers (1):
Executive Officer Date Agreement Executed
----------------- -----------------------
James S. Andrasick January 25, 2006
Christopher J. Benjamin January 25, 2006
Nelson N. S. Chun January 25, 2006
Matthew J. Cox January 25, 2006
W. Allen Doane January 25, 2006
G. Stephen Holaday January 25, 2006
Stanley M. Kuriyama January 25, 2006
(1) This is a listing of those executive officers with Change in Control
Agreements; it is not a complete list of the executive officers of Alexander &
Baldwin, Inc.