Severance Plan
Change In Control Agreement
 
       
                                         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
 
 
 
<PAGE>
 
                           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.
 
 
Top of the Document

 

EX-10.B.1.(LV) 4 exh-execsev.htm EXH.-EXECUTIVE SEVERANCE PLAN

ALEXANDER & BALDWIN, INC.

EXECUTIVE SEVERANCE PLAN

 

 

 

INTRODUCTION

 

The purpose of the Alexander & Baldwin, Inc. Executive Severance Plan (the “Plan”) is to retain key employees and to encourage such employees to use their best business judgment in managing the affairs of Alexander & Baldwin, Inc. and its divisions and subsidiaries (collectively, the “Company”).  Therefore, the Company is willing to provide the severance benefits described below to protect these employees if involuntarily terminated without cause or laid off from employment as part of a job elimination/restructuring or reduction in force.  It is further intended that this Plan will complement other compensation program components to assure a sound basis upon which the Company will retain key employees.

 

Article 1

Definitions and Exclusions

 

Whenever used in this Plan, the following words and phrases shall have the meanings set forth below.  When the defined meaning is intended, the term is capitalized:

 

1.1           “Base Salary” means the total amount of base salary payable to the participant at the salary rate in effect on the last day of the participant’s employment with the Company.  Base Salary does not include bonuses, reimbursed expenses, credits or benefits under any plan of deferred compensation, to which the Company contributes, or any additional cash compensation or compensation payable in a form other than cash.

 

1.2           “Board of Directors” shall mean the Board of Directors of the Company.

 

1.3           “Cause” means termination from employment with the Company upon:

 

1.3(a)              the willful and continued failure by the participant substantially to perform the participant’s duties with the Company (other than any such failure resulting from the participant’s incapacity due to physical or mental Disability).  For the purposes of this subparagraph and subparagraph 1.3(b), no act, or failure to act, on the participant’s part shall be considered “willful” unless done, or omitted to be done, by the participant not in good faith and without reasonable belief by the participant that his/her action or omission was in the best interest of the Company; or

 

1.3(b)              the willful engaging by the participant in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise.

 

1.4           “Disability” shall mean that an individual is deemed to be totally disabled by the Social Security Administration.  

 

1.5           “Employer” shall mean the Company or the entity for whom services are performed and with respect to whom the legally binding right to compensation arises, and all entities with whom the Company would be considered a single employer under Section 414(b) of the Internal Revenue Code of 1986, as amended (the “Code”); provided that in applying Section 1563(a)(1), (2), and (3) of the Code for purposes of determining a controlled group of corporations under Section 414(b) of the Code, the language “at least 50 percent” is used instead of “at least 80 percent” each place it appears in Section 1563(a)(1), (2), and (3) of the Code, and in applying Treasury Regulation § 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Section 414(c) of the Code, “at least 50 percent” is used instead of “at least 80 percent” each place it appears in Treasury Regulation § 1.414(c)-2; provided, however, “at least 20 percent” shall replace “at least 50 percent” in the preceding clause if there is a legitimate business criteria for using such lower percentage.

 

1.6           “Identification Date” means each December 31.

 

1.7           “Key Employee” means a participant who, on an Identification Date, is:

 

1.7(a)             An officer of the Company of having annual compensation greater than the compensation limit in section 416(i)(1)(A)(i) of the Code, provided that no more than fifty officers of the Company shall be determined to be Key Employees as of the Identification Date;

 

1.7(b)              A five percent owner of the Company; or

 

1.7(c)             A one percent owner of the Company having annual compensation from the Company of more than $150,000.

 

If a participant is identified as a Key Employee on an Identification Date, then such participant shall be considered a Key Employee for purposes of the Plan during the period beginning on the first April 1 following the Identification Date and ending on the next March 31.  For purposes of this Section 1.7 only and for determining whether a participant is a Key Employee, the “Company” shall mean the Company and its affiliates that are treated as a single employer under Section 414(b) or (c) of the Code, and for purposes of determining whether a participant is a Key Employee, Treasury Regulation § 1.415(c)-2(d)(4) shall be used to calculate compensation.

 

1.8           “Layoff” means the elimination of a job due to economic reasons, whether or not as part of job elimination or restructuring, or as a reduction-in-force affecting one or more positions.  Layoff does not include resignation from employment or Separation from Service by reason of death, Disability, or discharge for Cause.  A participant is not considered to have been laid off, and will not be entitled to severance benefits described in Article 3, if the Plan Administrator determines, in its discretion, that either the Company or a purchaser or other successor has offered comparable employment to the participant to commence after the participant’s Separation from Service, whether or not the participant accepts the position offered.

 

1.9           “Separation from Service” shall mean termination of employment with the Employer, other than due to death.  A participant shall be deemed to have experienced a Separation from Service if the participant’s service with the Employer is reduced to an annual rate that is less than fifty percent of the services rendered, on average, during the immediately preceding three full years of employment with the Employer (or if employed by the Employer less than three years, such lesser period).

 

Article 2

Eligibility for Benefits

 

2.1           Eligibility.  To be eligible for Plan benefits, employees must serve in a job categorized as Alexander & Baldwin, Inc. Chief Executive Officer, Band A, or Band B under the Company’s job evaluation program.  Exceptions (additions or deletions) to the eligibility requirements can be made only by the Alexander & Baldwin, Inc. Chief Executive Officer, with the approval of the Compensation Committee of the Board of Directors (the “Committee”).

 

2.2           Benefits.  Except as provided in Section 2.3, if the participant experiences an involuntary Separation from Service without Cause or a Separation from Service because of a Layoff, the Company shall pay to the participant the severance benefits described in Section 3.1.  (For the purposes of this section, “involuntary” means a Separation from Service that is due to the independent exercise of the unilateral authority of the Employer, other than due to the participant’s request, and where the participant was willing and able to continue to perform services.)  A participant receiving benefits under this Plan shall not be eligible for benefits under Alexander & Baldwin Human Resources Policy No. 1.08, Matson Navigation Company (and its wholly owned subsidiaries) Personnel Policy Bulletin No. 1.08, or any other or successor separation policy or policies.

 

2.3           Change in Control.  In the event the Company experiences a “change in control”, as defined in section 409A of the Code and the final regulations and any guidance promulgated thereunder, and the Company and a participant have entered into an agreement concerning a change in control of the Company, the terms of such agreement, and not this Plan, shall govern.  In such case, no benefits shall be payable to the participant under this Plan.

 

2.4           Plan Administration.  Alexander & Baldwin, Inc. shall serve as the Plan Administrator.  The Plan Administrator is responsible for the general administration and management of this Plan and shall have all powers and duties necessary to fulfill its responsibilities, including, but not limited to, the discretion to interpret and apply this Plan and to determine all questions relating to eligibility for benefits.  This Plan shall be interpreted in accordance with its terms and their intended meanings.  However, the Plan Administrator and all plan fiduciaries shall have the discretion to interpret or construe ambiguous, unclear, or implied (but omitted) terms in any fashion they deem to be appropriate in their sole discretion, and to make any findings of fact needed in the administration of this Plan.  The validity of any such interpretation, construction, decision, or finding of fact shall not be given de novo review if challenged in court, by arbitration, or in any other forum, and shall be upheld unless clearly arbitrary or capricious.

 

Article 3

Severance Benefits

 

3.1           Type and Amount of Benefits.  If severance benefits become payable under this Plan, benefits shall consist of the following:

 

3.1(a)              Monetary Payments/Reimbursement.  The participant shall receive an amount equal to six (6) months of the participant’s Base Salary, one-twelfth of which shall be paid each month for a period of one year, beginning in the first month following the date of the participant’s Separation from Service.  Should the participant, prior to his or her Separation from Service, execute (and not revoke) a release agreement prepared by the Plan Administrator,  the participant shall receive additional amounts as follows:  (i) an amount equal to six (6) months of the participant’s Base Salary, one-twelfth of which shall be paid each month for a period of one year, beginning in the first month following the date of the participant’s Separation from Service; (ii) reimbursement for expenses arising from individual outplacement counseling services (in an amount not to exceed ten thousand dollars ($10,000.00)) that are incurred no later than 2 years after the date of the participant’s Separation from Service, and are reimbursed by the Company no later than 3 years after the date of the participant’s Separation from Service; and, (iii) a pro rated share of the award opportunity at “Target” under the Alexander & Baldwin, Inc. One-Year Performance Improvement Incentive Plan and the Alexander & Baldwin, Inc. Three-Year Performance Improvement Incentive Plan, as applicable, that otherwise would have been payable to the participant had the participant remained employed until the end of the applicable performance period(s) of such plans.  The payment under subsections 3.1(a)(i) and (iii) shall be payable upon the expiration of the seven-day revocation period contained in the release agreement prepared by the Plan Administrator and executed by the participant (i.e., once the release becomes irrevocable); provided, however, that such payment must be paid no later than 60 days following the date of the participant’s Separation from Service.  If the release is not executed and irrevocable by the end of such 60-day period, the participant shall not be entitled to any benefit under this Plan.  The Company retains the sole discretion to determine when during the 60-day period the payment will be made.  If the sum of the amounts to be paid to a participant under subsections 3.1(a)(i) and (iii) exceeds two times the lesser of (i) the sum of the participant’s annualized compensation for the taxable year preceding the year in which the participant experiences a Separation from Service or (ii) the compensation limit for qualified plans under section 401(a)(17) of the Code as in effect for the year in which the Separation from Service occurs (the “Excess”), then, notwithstanding any other provision in this Plan to the contrary, any Excess scheduled to be paid upon Separation from Service to a participant who is identified as a Key Employee as of the date he or she experiences a Separation from Service shall be delayed for a minimum of six months following the participant’s Separation from Service.  Any payment of Excess to a Key Employee delayed under this subsection shall be made on the first business day after the six-month anniversary of the participant’s Separation from Service and shall be credited with interest during such six-month period at a rate computed using 120% of the short-term applicable federal rate for a semi-annual compounding period under Code Section 1274(d), applicable for the month in which the participant’s Separation from Service occurs, provided that such interest rate shall not exceed 120% of the long-term applicable federal interest rate under Code Section 1274(d).  The identification of a participant as a Key Employee shall be made by the Company in accordance with Section 1.7 of the Plan and sections 416(i) and 409A of the Code and the regulations promulgated thereunder.

 

3.1(b)              Benefits.  For the period that separation payments continue under subparagraph 3.1(a) above, or until the participant becomes employed with another employer offering any such benefits (whichever is earlier), Basic Group Life Insurance and Basic Accidental Death & Dismemberment Insurance shall continue as they were in effect for the participant on the date of the participant’s termination of employment.

 

    3.1(b)(i)                   Group Medical, Dental, Drug and Vision Coverage.  For a maximum period of twelve (12) months following Separation from Service, or until the participant becomes employed with another employer offering any such benefits (whichever is earlier), the Company shall reimburse the participant for the amount of the premiums payable by the participant for post-termination continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).  Payment of premiums for COBRA coverage beyond twelve (12) months following Separation from Service is the sole responsibility of the participant.

 

3.2           Death Benefits.  If the participant dies during the severance benefit period, the severance benefits as described in this Article 3 that have not yet been paid shall be paid to the participant’s designated beneficiary in a lump sum within 60 days following the participant’s death.  Any beneficiary designation must be provided to the Company in writing by the participant, prior to his or her death.

 

3.3           Committee Discretion.  The severance benefits as described in this Article 3 may be increased or decreased by the Committee in its absolute discretion.  Such adjustments may be applied selectively with respect to one or more individual participants.

 

Article 4

Employment Status

 

4.1           Right to Terminate Employment.  This Plan shall not be deemed to constitute an employment contract between the Company and the participant.  Nothing contained herein shall give the participant the right to be retained in the employ of the Company or to interfere with the right of the Company to discharge the participant at any time, nor shall it give the Company the right to require the participant to remain in its employ or to interfere with the participant’s right to terminate employment at any time.

 

4.2           Status During Benefit Period.  Commencing upon the date of the participant’s Separation from Service, the participant shall cease to be an employee of the Company for any purpose.  The payment of severance benefits under this Plan shall be payments to a former employee.

 

Article 5

Claims and Review Procedures

 

5.1           Claims Procedure.  Any individual (“claimant”) who has not received benefits under the Plan that he or she believes should be paid shall make a claim for such benefits as follows:

 

5.1(a)              Initiation - Written Claim.  The claimant initiates a claim by submitting to the Plan Administrator a written claim for the benefits.

 

5.1(b)              Timing of Plan Administrator Response.  The Plan Administrator shall respond to such claimant within 90 days after receiving the claim.  If the Plan Administrator determines that special circumstances require additional time for processing the claim, the Plan Administrator can extend the response period by an additional 90 days by notifying the claimant in writing, prior to the end of the initial 90-day period, that an additional period is required.  The notice of extension must set forth the date by which the Plan Administrator expects to render its decision.

 

5.1(c)              Notice of Decision.  If the Plan Administrator denies part or all of the claim, the Plan Administrator shall notify the claimant in writing of such denial.  The Plan Administrator shall write the notification in a manner calculated to be understood by the claimant.  The notification shall set forth:

 

    5.1(c)(i)                    The specific reason for the denial,

 

    5.1(c)(ii)                   A reference to the specific provisions of the Plan on which the denial is based,

 

    5.1(c)(iii)                 A description of any additional information or material necessary for the claimant to perfect the claim and an explanation of why it is needed,

 

    5.1(c)(iv)                An explanation of the Plan’s review procedures and the time limits applicable to such procedures, and

 

    5.1(c)(v)                 A statement of the claimant’s right to bring a civil action under the Employee Retirement Income Security Act of 1974 (“ERISA”) Section 502(a) following an adverse benefit determination on review.

 

5.2           Review Procedure.  If the Plan Administrator denies part or all of the claim, the claimant shall have the opportunity for a full and fair review by the Plan Administrator of the denial, as follows:

 

5.2(a)              Initiation - Written Request.  To initiate the review, the claimant, within 60 days after receiving the Plan Administrator’s notice of denial, must file with the Plan Administrator a written request for review.

 

 

5.2(b)              Additional Submissions - Information Access.  The claimant shall then have the opportunity to submit written comments, documents, records and other information relating to the claim. The Plan Administrator shall also provide the claimant, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits.

 

5.2(c)              Timing of  Plan Administrator Response.  The Plan Administrator shall respond to the claimant’s request for review within 60 days after receiving the request.  If the Plan Administrator determines that special circumstances require additional time for processing the request, the Plan Administrator can extend the response period by an additional 60 days by notifying the claimant in writing, prior to the end of the initial 60-day period, which an additional period is required.  The notice of extension must set forth the date by which the Plan Administrator expects to render its decision.

 

5.2(d)              Notice of Decision.  If the Plan Administrator affirms the denial of part or the entire claim, the Plan Administrator shall notify the claimant in writing of such denial.  The Plan Administrator shall write the notification in a manner calculated to be understood by the claimant.  The notification shall set forth the specific reason for the denial and a reference to the specific provisions of the Plan on which the denial is based.

 

5.3           Authority.  In determining whether to approve or deny any claim or any appeal from a denied claim, the Plan Administrator shall exercise its discretionary authority to interpret the Plan and the facts presented with respect to the claim, and its discretionary authority to determine eligibility for benefits under the Plan.  Any approval or denial shall be final and conclusive upon all persons.

 

5.4           Exhaustion of Remedies.  Except as required by applicable law, no action at law or equity shall be brought to recover a benefit under the Plan unless and until the claimant has: (a) submitted a claim for benefits, (b) been notified by the Plan Administrator that the benefits (or a portion thereof) are denied, (c) filed a written request for a review of denial with the Plan Administrator, and (d) been notified in writing that the denial has been affirmed.

 

Article 6

Amendment and Termination

 

It is intended that the Plan shall continue from year to year, subject to an annual review by the Board of Directors.  However, the Board of Directors reserves the right to modify, amend or terminate the Plan at any time; provided, that no amendment or termination shall affect the rights of participants to receive Plan benefits finally determined by the Plan Administrator but unpaid at the time of such termination or amendment.

 

Article 7

Miscellaneous

 

7.1           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 the Company, and shall not be deemed to interfere with the right of the Company 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 Plan participant.

 

7.2           Benefits Non-Assignable.  No right or interest of a participant in this Plan shall be assignable or transferable, in whole or in part, either directly or by operation of law or otherwise, including but not by way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy, assignments for the benefit of creditors, receiverships, or in any other manner, excluding transfer by operation of law as a result solely of mental incompetency.

 

7.3           Tax Withholding.  The Company shall withhold any applicable income or employment taxes that are required to be withheld from the severance benefits payable under this Plan.

 

7.4           Applicable Law.  This Plan is a welfare plan subject to ERISA and it shall be interpreted, administered, and enforced in accordance with that law.  The Plan shall also be construed in a manner that is consistent and compliant with Section 409A of the Code, and any regulations promulgated thereunder.  Any provision that is noncompliant with Section 409A of the Code is void or deemed amended to comply with Section 409A of the Code.  The Company does not guarantee or warrant the tax consequences of the Plan, and the participants shall in all cases be liable for any taxes due with respect to Plan.

 

7.5           Gender and Number.  Any masculine pronouns used herein shall refer to both men and women, and the use of any term herein in the singular may also include the plural unless otherwise indicated by context.  

 

7.6           Severability.  If any provision of this Plan is held invalid or unenforceable by a court of competent jurisdiction, all remaining provisions shall continue to be fully effective.

 

7.7           Binding Agreement.  This Plan shall be binding upon and inure to the benefit of the Company, its successors and assigns, and the participants and their heirs, executors, administrators and legal representatives.

 

 

IN WITNESS WHEREOF, Alexander & Baldwin, Inc. has caused this Plan to be executed by its duly authorized officers effective as of the 1st day of January, 2008.

 

 

ALEXANDER & BALDWIN, INC.

 

By:  /s/ Son-Jai Paik

        Its Vice President

 

By:  /s/ Alyson J. Nakamura

        Its Secretary

 

 




 

 

 

 

 

 

 

 

 

EX-10.B.1.(LIII) 2 exh-cic.htm EXH.-CHANGE IN CONTROL

 

 

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 you, 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 January 1, 2009 (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 December 31, 2009; provided, however, that commencing on January 1, 2010 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" within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the "Code").

(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" (as such term is used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, 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 (G) 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), (E) or (G) 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 stock option or other equity-based plan in which you were participating, or in which you were entitled to participate, immediately prior to a change in control of the Company, 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.

(E)           the failure by the Company to continue in effect any benefit, pension or compensation plan, employee stock ownership plan, savings and profit sharing 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;

(F)           the failure by the Company to obtain the assumption of this agreement to as contemplated in Section 5 hereof, prior to the effectiveness of any succession; or

(G)           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.

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), (vi) and (viii) 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) your target annual bonus under any annual bonus or incentive plan maintained by the Company in respect of the fiscal year in which occurs the Date of Termination or, if higher, the fiscal year in which occurs the first event or circumstance constituting Good Reason;

(iii)           notwithstanding any provision of any deferred compensation plans in which you participate other than any restricted stock unit or similar awards (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 A&B Excess Benefits Plan (the "Excess Plan"), the A&B Supplemental Executive Retirement Plan and the A&B Executive Survivor/Retirement Benefit Plan (the "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 closing price of Shares, as reported on the principal national securities exchange on which the Shares are then listed or, if the Shares are not then listed on such an exchange, 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) 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 (or in the case of the Executive Survivor Plan, ten annual payments made in monthly installments) 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 or installments 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, 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, except that if you have not attained age sixty-five (65) as of the Date of Termination, 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, but not less than age fifty-five (55), 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); 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 (or in the case of the Executive Survivor Plan, ten annual payment made in monthly installments) commencing at the date (but in no event earlier than the Date of Termination) as of which the actuarial equivalent of such annuity or installment payments is greatest) to which you are entitled pursuant to the provisions of the Retirement Plans; and for purposes of this paragraph (vii), "actuarial equivalent" shall be determined using the same methods and assumptions utilized under the Executive Survivor Plan immediately prior to the change in control for the retirement benefits associated with the Executive Survivor Plan and Excess Plan immediately prior to the change in control for other retirement benefits;

(vii)           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; provided, however, that in no event shall any such payments be made later than the last day of your taxable year following the taxable year in which the fee or expense was incurred; and

(viii)                      the Company shall reimburse you for individual outplacement counseling services in an amount not to exceed ten thousand dollars ($10,000.00); provided, however, that in no event shall any such reimbursement be made later than the last day of your 2nd taxable year following the taxable year in which the Date of Termination occurs.

 

(d)           (i)           Whether or not you become entitled to the Severance Payments, if any 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(b) 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 (all such payments and benefits, the "Total Payments"), will be subject to the excise tax (the "Excise Tax") imposed under section 4999 of 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 Total Payments and any federal, state and local income and employment tax and Excise Tax upon the payment provided for by this Subsection 4(d), shall be equal to the Total Payments.

(ii)           In the event that the amount of the Total Payments does not exceed 110% of the largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (the "Safe Harbor"), then subsection (i) of this Section 4(d) shall not apply and the cash Severance Payments shall first be reduced (with amounts not subject to Section 409A of the Code being reduced prior to amounts that are subject to Section 409A of the Code), and all other Severance Payments shall thereafter be reduced (with amounts not subject to Section 409A of the Code being reduced prior to amounts that are subject to Section 409A of the Code), so that the amount of the Total Payments is equal to the Safe Harbor; provided, however, that, to the extent permitted by Section 409A of the Code, you may elect to have the non-cash Severance Payments reduced prior to any reduction of the cash Severance Payments.

(iii)           For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments 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 Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total 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.

(iv)           (A)           In the event that (1) amounts are paid to you pursuant to Section 4(d)(i), (2) there is a final determination of the Internal Revenue Service or a court of competent jurisdiction (a “Final Determination”) that the Excise Tax is less than the amount taken into account hereunder in calculating the Gross-Up Payment, and (3) after giving effect to such Final Determination, the Severance Payments are to be reduced pursuant to Section 4(d)(ii), you shall repay to the Company, within five (5) business days following the date of the Final Determination, the Gross-Up Payment, the amount of the reduction in the Severance Payments, plus interest on the amount of such repayments at 120% of the rate provided in Section 1274(b)(2)(B) of the Code.

(B)           In the event that (1) amounts are paid to you pursuant to Section 4(d)(i), (2) there is a Final Determination that the Excise Tax is less than the amount taken into account hereunder in calculating the Gross-Up Payment, and (3) after giving effect to such Final Determination, the Severance Payments are not to be reduced pursuant to Section 4(d)(ii), you shall repay to the Company, within five (5) business days following the date of the Final Determination, 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 and employment taxes imposed on the Gross-Up Payment being repaid by you), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in your taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code.

(C)           Except as otherwise provided in clause (D) below, in the event there is a Final Determination that the Excise Tax exceeds the amount taken into account hereunder in determining the Gross-Up Payment (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 pay to you, within five (5) business days following the date of the Final Determination, the sum of (1) a Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment, including a Gross-Up Payment in respect of any Excise Tax attributable to amounts payable under clauses (2) and (3) of this paragraph (C) (plus any interest, penalties or additions payable by you with respect to such excess and such portion), (2) if Severance Payments were reduced pursuant to Section 4(d)(ii) but after giving effect to such Final Determination, the Severance Payments should not have been reduced pursuant to Section 4(d)(ii), the amount by which the Severance Payments were reduced pursuant to Section 4(d)(ii), and (3) interest on such amounts at 120% of the rate provided in Section 1274(b)(2)(B) of the Code.

(D)           In the event that (1) Severance Payments were reduced pursuant to Section 4(d)(ii) and (2) the aggregate value of Total Payments which are considered "parachute payments" within the meaning of Section 280G(b)(2) of the Code is subsequently redetermined pursuant to a Final Determination but such redetermined value still does not exceed 110% of the Safe Harbor, then, within five (5) business days following such Final Determination, (x) the Company shall pay to you the amount (if any) by which the reduced Severance Payments (after taking the Final Determination into account) exceeds the amount of the reduced Severance Payments actually paid to you, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code, or (y) you shall pay to the Company the amount (if any) by which the reduced Severance Payments actually paid to you exceeds the amount of the reduced Severance Payments (after taking the Final Determination into account), plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code.

(E)           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.  Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of your taxable year following the taxable year in which you remit the related Excise Tax.

 

(e)           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(e) 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.

(f)           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(e) 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.

(g)           The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code and the regulations and other guidance promulgated thereunder ("Section 409A") and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith.  Notwithstanding anything contained herein to the contrary, you shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payments shall be due to you under this Agreement providing for payment of amounts on termination of employment unless you would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A; and for purposes of determining whether you have incurred a “separation from service’ under Section 1.409A-1(h) of the regulations promulgated under Section 409A by the United States Treasury Department, “50 percent” shall be substituted for “20 percent” each place that the latter appears in Section 1.409A-1(h)(1)(ii).  Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A and any payments described in this Agreement that are due within the "short term deferral period" as defined in Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise.  Notwithstanding anything in this Agreement to the contrary, if your employment is terminated prior to a Change in Control in a manner described in the second sentence of Section 3, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts payable to you hereunder, to the extent not in excess of the amount that you would have received under any other severance plan or arrangement with the Company that is not contingent on the occurrence of a Change in Control had such plan or arrangement been applicable, shall be paid at the time and in the manner provided by such plan or arrangement and the remainder shall be paid to you in accordance with the provisions of this Agreement.  To the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following your separation from service shall instead be paid on the first business day after the date that is six months following your separation from service (or upon your death, if earlier), together with interest calculated from the fifth (5th) day following separation from service until the date of payment, at an interest rate equal to 120% of the short-term applicable federal rate for a semi-annual compounding period under Section 1274(d) of the Code, applicable for the month in which the participant's separation from service occurs, provided that such interest rate shall not exceed 120% of the long-term applicable federal rate under Section 1274(d) of the Code.

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, prior to such succession, 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.  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.

 

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 11th day of December, 2008, but effective as of January 1, 2009.

 

 ________________________ ALEXANDER & BALDWIN, INC.

(Signature)

 

________________________                   By___________________________                                                      

(Print Name)                                                                                        

                                                                                                                 Vice President