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CASTLE & COOKE, INC.
DEFERRED COMPENSATION PLAN
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TABLE OF CONTENTS
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ARTICLE I - PURPOSE AND AUTHORIZED SHARES........................................................................1
1.01 Purpose and Effective Date.....................................................................1
1.02 Shares Available...............................................................................1
1.03 Relationship to Stock Plan.....................................................................1
1.04 Gender and Number..............................................................................1
ARTICLE II - DEFINITIONS AND CERTAIN PROVISIONS..................................................................2
2.01 Affiliate......................................................................................2
2.02 Already-Owned Shares...........................................................................2
2.03 Alternative Exercise...........................................................................2
2.04 Alternative Exercise Agreement.................................................................2
2.05 Base Salary....................................................................................2
2.06 Beneficiary....................................................................................2
2.07 Bonus..........................................................................................3
2.08 Board..........................................................................................3
2.09 Change in Control..............................................................................3
2.10 Code...........................................................................................4
2.11 Common Stock...................................................................................4
2.12 Compensation...................................................................................4
2.13 Conversion Date................................................................................4
2.14 Corporation....................................................................................4
2.15 Deferral Account...............................................................................4
2.16 Deferral Election Agreement....................................................................4
2.17 Dividend Equivalent............................................................................4
2.18 Eligible Participant...........................................................................4
2.19 Employer.......................................................................................4
2.20 ERISA..........................................................................................4
2.21 Exercise Shares................................................................................5
2.22 Fair Market Value..............................................................................5
2.23 Merger.........................................................................................5
2.24 Merger Agreement...............................................................................5
2.25 Participant....................................................................................5
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2.26 Payout Date....................................................................................5
2.27 Plan Administrator.............................................................................5
2.28 Plan Year......................................................................................5
2.29 Qualifying Stock Option........................................................................5
2.30 Rabbi Trust....................................................................................5
2.31 Share..........................................................................................5
2.32 Special Income.................................................................................5
2.33 Special Income Deferral Election Agreement.....................................................6
2.34 Stock Plan.....................................................................................6
2.35 Stock Unit.....................................................................................6
2.36 Stock Unit Account.............................................................................6
2.37 Termination....................................................................................6
ARTICLE III - ADMINISTRATION OF THE PLAN.........................................................................6
3.01 Administration.................................................................................6
3.02 Tax Withholding................................................................................7
3.03 Account Statements.............................................................................7
ARTICLE IV - ELIGIBILITY........................................................................................7
ARTICLE V - DEFERRAL ELECTIONS AND ACCOUNTS......................................................................7
5.01 Deferral Elections.............................................................................7
5.02 Rules Regarding Deferral Elections and Alternative Exercise Elections.........................10
5.03 Investment Equivalents........................................................................11
5.04 Stock Unit Accounts...........................................................................11
5.05 Rules Regarding Withholdings..................................................................12
ARTICLE VI - BENEFITS DISTRIBUTION..............................................................................13
6.01 Termination Benefit...........................................................................13
6.02 Scheduled In-Service Distribution.............................................................13
6.03 Change in Form of Termination Benefit.........................................................13
6.04 Participant's Death...........................................................................13
6.05 Emergency Distribution........................................................................14
6.06 Early Withdrawal..............................................................................15
6.07 Small Benefit.................................................................................15
6.08 Change in Control.............................................................................15
ARTICLE VII - RABBI TRUST.......................................................................................15
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7.01 Rabbi Trust...................................................................................15
7.02 Assets of the Rabbi Trust.....................................................................16
7.03 No Reversion..................................................................................16
Article VIII - CLAIMS PROCEDURE.................................................................................16
8.01 Claim.........................................................................................16
8.02 Claim Decision................................................................................16
8.03 Request for Review............................................................................16
8.04 Review of Decision............................................................................17
ARTICLE IX - AMENDMENT AND TERMINATION OF THE PLAN..............................................................17
9.01 Amendment and Termination.....................................................................17
9.02 Distribution Upon Termination of the Plan.....................................................17
9.03 Pooling Exception.............................................................................17
ARTICLE X - GENERAL PROVISIONS..................................................................................17
10.01 Applicable Laws...............................................................................17
10.02 Benefits Payable from General Assets..........................................................17
10.03 Cost of the Plan..............................................................................18
10.04 Severability..................................................................................18
10.05 No Assignment of Rights.......................................................................18
10.06 Successors to Corporation.....................................................................18
10.07 Inability to Locate Participant...............................................................18
10.08 Compliance with Laws..........................................................................18
10.09 Program Construction..........................................................................19
EXHIBIT A DEFERRAL ELECTION AGREEMENT..................................................................A-1
EXHIBIT B SPECIAL INCOME DEFERRAL ELECTION AGREEMENT...................................................B-1
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ARTICLE I - PURPOSE AND AUTHORIZED SHARES
1.01 PURPOSE AND EFFECTIVE DATE. Effective March 1, 2000, Castle & Cooke,
Inc., by action of its Board of Directors, has established the Castle &
Cooke, Inc. Deferred Compensation Plan (as revised to address the
additional compensation payable as a result of the merger, the "Plan").
The Plan is intended to help Castle & Cooke, Inc. and any participating
Affiliate attract and retain key employees by allowing them to defer a
portion of their compensation.
The Plan is to be construed as a plan maintained to provide deferred
compensation to a "select group of management or highly compensated
employees" within the meaning of Section 201(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA"), as amended from time
to time. The Plan is intended to be exempt from the participation,
vesting, funding and fiduciary requirements of Title I of ERISA, to the
fullest extent permitted under the law. The Plan shall at all times be
"unfunded" within the meaning of ERISA and the Internal Revenue Code of
1986, as amended from time to time.
1.02 SHARES AVAILABLE. The number of Shares that may be issued under the
Stock Plan (except as provided below) upon implementation of the option
gain deferral feature of this Plan shall be limited to the aggregate
number of Shares that were the subject of the Qualifying Stock Options
granted under the Stock Plan that are exercised pursuant to the terms
of this Plan in exchange for the crediting of Stock Units under this
Plan. If insufficient Shares remain under the Stock Plan for the
accumulation of Dividend Equivalents, such excess Shares shall be
issued under other authority of the Board or, in the absence of such
other authority, may be paid (in the sole discretion of the Plan
Administrator) in cash. Shares not exceeding the number of
Already-Owned Shares used under this Plan to exercise a Qualifying
Stock Option granted under the Stock Plan may be used in respect of
Dividend Equivalents on the Stock Units credited with respect to an
Alternatively Exercised Qualifying Stock Option granted under the Stock
Plan, but may not be used for other awards under the Stock Plan.
1.03 RELATIONSHIP TO STOCK PLAN. This Plan contains an option gain deferral
feature under Section 5.01(d) providing alternative exercise agreements
under and as contemplated by the Stock Plan in respect of nonqualified
stock options granted thereunder. This feature shall be effective only
if approved by the Board by resolution adopted after June 30, 2000. The
option gain deferral feature of this Plan also contemplates the grant
of Stock Units under and as contemplated by the Stock Plan. The option
gain deferral feature of this Plan and all rights under it provided
shall be the subject to and construed consistently with the other terms
of the Stock Plan, except as the context otherwise requires.
1.04 GENDER AND NUMBER. Where the context permits, words in any gender shall
include any other gender, words in the singular shall include the
plural, and the plural shall include the singular.
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ARTICLE II - DEFINITIONS AND CERTAIN PROVISIONS
2.01 AFFILIATE shall mean, except as otherwise used in the definition of
Change in Control, any corporation while it is a member of the same
controlled group of corporations (within the meaning of Code Section
414) as the Corporation.
2.02 ALREADY-OWNED SHARES shall mean Shares owned by an Eligible
Participant; provided, however, that Shares acquired by an Eligible
Participant from the Corporation under an option or other employee
benefit plan maintained by the Corporation or otherwise must be held by
the Eligible Participant for at least six (6) months in order to
qualify as Already-Owned Shares and, if Shares are used to pay the
exercise price of an option or other award, such Shares must be held
for at least six (6) months following such use in order to qualify
again as Already-Owned Shares.
2.03 ALTERNATIVE EXERCISE shall mean the exercise of all or a portion of a
Qualifying Stock Option using Already-Owned Shares in exchange for a
combination of Exercise Shares and Stock Units under this Plan.
2.04 ALTERNATIVE EXERCISE AGREEMENT shall mean an agreement entered into
between the Corporation and an Eligible Participant pursuant to which
the Eligible Participant elects to defer that portion of the proceeds
from the exercise of the Qualifying Stock Option equal to the spread in
the form of Stock Units.
2.05 BASE SALARY means a Participant's base salary prior to deferrals under
this Plan but after reduction for any salary deferral contributions to
a plan described in Section 125 or Section 401(k) of the Code.
2.06 BENEFICIARY means the person or persons, including a trustee, personal
representative or other fiduciary, last designated in writing by a
Participant in accordance with procedures established by the Plan
Administrator to receive the benefits specified hereunder in the event
of the Participant's death. No beneficiary designation shall become
effective until it is filed with the Plan Administrator, and no
beneficiary designation of someone other than the Participant's spouse
shall be effective unless such designation is consented to by the
Participant's spouse on a form provided by and in accordance with
procedures established by the Plan Administrator. If there is no
Beneficiary designation in effect, or if there is no surviving
designated Beneficiary, then the Participant's surviving spouse shall
be the Beneficiary. If there is no surviving spouse to receive any
benefits payable in accordance with the preceding sentence, the duly
appointed and currently acting personal representative of the
Participant's estate (which shall include either the Participant's
probate estate or living trust) shall be the Beneficiary. In any case
where there is no such personal representative of the Participant's
estate duly appointed and acting in that capacity within 90 days after
the Participant's death (or such extended period as the Plan
Administrator determines is reasonably necessary to allow such personal
representative to be appointed, but not to exceed 180 days after the
Participant's death), then Beneficiary shall mean the person or persons
who can verify by affidavit or court order to the satisfaction of the
Plan Administrator that they are legally entitled to receive the
benefits specified hereunder. In the event any amount is payable under
the Plan to a minor, payment shall not be made to the minor, but
instead shall be paid (a) to that person's living parent(s) to act as
custodian, (b) if that person's parents are then divorced, and one
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parent is the sole custodial parent, to such custodial parent, or (c)
if no parent of that person is then living, to a custodian selected by
the Plan Administrator to hold the funds for the minor under the
Uniform Transfers or Gifts to Minors Act in effect in the jurisdiction
in which the minor resides. If no parent is living and the Plan
Administrator decides not to select another custodian to hold the funds
for the minor, then payment shall be made to the duly appointed and
currently acting guardian of the estate for the minor or, if no
guardian of the estate for the minor is duly appointed and currently
acting within 60 days after the date the amount becomes payable,
payment shall be deposited with the court having jurisdiction over the
estate of the minor.
2.07 BONUS means any bonus awarded to a Participant for services provided to
an Employer that would be paid to a Participant before or on the date
of termination of his employment prior to deferrals under this Plan but
after reduction for any salary deferral contributions to a plan
described in Section 125 or Section 401(k) of the Code.
2.08 BOARD means the Board of Directors of the Corporation.
2.09 CHANGE IN CONTROL means any of the following:
(a) Approval by the shareholders of the Corporation of the
dissolution or liquidation of the Corporation;
(b) Approval by the shareholders of the Corporation of an
agreement to merge or consolidate, or otherwise reorganize,
with or into one or more entities that are not subsidiaries or
other affiliates, as a result of which less than 50% of the
outstanding voting securities of the surviving or resulting
entity immediately after the reorganization are, or will be
owned, directly or indirectly, by shareholders of the
Corporation immediately before such reorganization (assuming
for purposes of such determination that there is no change in
the record ownership of the Corporation's securities from the
record date for such approval until such reorganization and
that such record owners hold no securities of the other
parties to such reorganization, but including in such
determination any securities of the other parties to such
reorganization held by affiliates of the Corporation);
(c) Approval by the shareholders of the Corporation of the sale of
substantially all of the Corporation's business and/or assets
to a person or entity which is not a subsidiary or other
Affiliate; or
(d) Any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended from time
to time (the "Exchange Act") but excluding any person
described in and satisfying the conditions of Rule 13d-1(b)(1)
thereunder), other than a person who is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of more than
20% of the outstanding Shares of Common Stock at the time of
adoption of this Plan (or Affiliate, successor, heir,
descendent or related party of or to any such person), becomes
the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 50% of the combined voting
power of the Corporation's then outstanding securities
entitled to then vote generally in the election of directors
of the Corporation.
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2.10 CODE means the Internal Revenue Code of 1986, as amended from time to
time, all successor laws thereto, and any regulations or guidance
promulgated thereunder. Where the Plan refers to a particular section
of the Code, the reference shall also apply to any successor to that
section.
2.11 COMMON STOCK means the Common Stock of the Corporation, subject to
adjustment pursuant to Section 5.04(d) of this Plan and Section 6.2 of
the Stock Plan, as the case may be.
2.12 COMPENSATION means an Eligible Participant's Base Salary, Bonus,
Special Income and any Qualifying Stock Options.
2.13 CONVERSION DATE means the date that an Eligible Participant exercises a
Qualifying Stock Option in accordance with the Alternative Exercise
procedures under this Plan.
2.14 CORPORATION means Castle & Cooke, Inc.
2.15 DEFERRAL ACCOUNT means a bookkeeping account maintained to record the
interest of a Participant under the Plan. A Participant's Deferral
Account shall consist of the value of any Base Salary, Bonus and/or
Special Income the Participant elects to defer hereunder, and any
income, losses, distributions or withdrawals credited or debited
thereto.
2.16 DEFERRAL ELECTION AGREEMENT means an agreement substantially in the
form of Exhibit A (as from time to time revised by the Plan
Administrator).
2.17 DIVIDEND EQUIVALENT means the amount of cash dividends or other cash
distributions paid by the Corporation on that number of Shares equal to
the number of Stock Units credited to a Participant's Stock Unit
Account as of the applicable record date for the dividend or other
distribution, which amount shall be credited in the form of additional
Stock Units to the Stock Unit Account of the Participant, or in cash to
the Participant's Deferral Account as provided in Section 5.04.
2.18 ELIGIBLE PARTICIPANT means an employee of an Employer selected by the
Board, in its sole and absolute discretion, and described in Section
4.01, to make Compensation deferrals under the Plan.
2.19 EMPLOYER means the Corporation or participating Affiliate that employs
a Participant.
2.20 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, all successor laws thereto, and any
regulations or guidance promulgated thereunder. Where the Plan refers
to a particular section of ERISA, the reference shall also apply to any
successor to the section.
2.21 EXERCISE SHARES mean the Shares delivered by the Corporation to the
Eligible Participant upon the Alternative Exercise of a Qualifying
Stock Option in accordance with Section 5.01(d).
2.22 FAIR MARKET VALUE on any date shall mean "Fair Market Value" as such
term is defined in the Stock Plan.
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2.23 MERGER means the proposed merger of MergerCo into the Company pursuant
to the Merger Agreement.
2.24 MERGER AGREEMENT means the Agreement and Plan of Merger by and among
Flexi-Van Leasing, Inc., a Delaware corporation ("FLX"), Castle & Cooke
Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of
FLX, Castle Acquisition Company, Inc., a Hawaii corporation
("MergerCo") and the Company dated as of May 19, 2000 as amended from
time to time.
2.25 PARTICIPANT means an Eligible Participant who has filed a completed and
executed Deferral Election Agreement, Special Income Deferral Election
Agreement and/or Alternative Exercise Agreement with the Plan
Administrator and is participating in the Plan in accordance with the
provisions of Article V.
2.26 PAYOUT DATE means the date on which the Participant elected (in his
Deferral Election Agreement and/or Special Income Deferral Election
Agreement) to receive an in-service withdrawal from his Deferral
Account in accordance with Section 6.02.
2.27 PLAN ADMINISTRATOR means a committee appointed by the Board pursuant to
Section 3.01.
2.28 PLAN YEAR means the calendar year beginning January 1 and ending
December 31, except the first Plan Year shall be a short Plan Year
beginning on March 1, 2000 and ending on December 31, 2000.
2.29 QUALIFYING STOCK OPTION means a nonqualified stock option granted under
the Stock Plan; provided, however, that an option shall not be a
Qualifying Stock Option if it will expire, by its terms, before the end
of the twelve (12)-month period commencing with the date that the
Alternative Exercise Agreement is submitted to and received by the Plan
Administrator.
2.30 RABBI TRUST means the trust described in Article VII.
2.31 SHARE means a share of Common Stock.
2.32 SPECIAL INCOME means the amount of cash that would be paid to an
Eligible Participant as a result of the cancellation of outstanding
stock options granted to the Eligible Participant under the Stock Plan
pursuant to the Committee's adjustment and settlement determination
under Section 6.2 of the Stock Plan and the terms and conditions of
Section 3.2 of the Merger Agreement prior to deferrals thereof under
this Plan.
2.33 SPECIAL INCOME DEFERRAL ELECTION AGREEMENT means an agreement
substantially in the form of Exhibit B.
2.34 STOCK PLAN means the Castle & Cooke, Inc. Amended and Restated 1995
Stock Option and Award Plan.
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2.35 STOCK UNIT means a non-voting unit of measurement which is deemed
solely for bookkeeping purposes to be equivalent to one outstanding
Share (subject to adjustment as provided in Section 5.04) solely for
purposes of this Plan.
2.36 STOCK UNIT ACCOUNT means the bookkeeping account maintained by the
Corporation on behalf of each Participant who is credited with Stock
Units and Dividend Equivalents thereon in accordance with Section 5.04.
2.37 TERMINATION means termination of employment or retirement other than by
reason of death.
ARTICLE III - ADMINISTRATION OF THE PLAN
3.01 ADMINISTRATION. This Plan shall be administered by the a committee
appointed by the Board to serve as Plan Administrator, each member of
which is a Non-Employee Director (as defined in Rule 16b-3).
The Plan Administrator shall have all powers necessary or appropriate
to carry out the provisions of the Plan. The Plan Administrator may,
from time to time, establish rules for the administration of the Plan
and the transaction of the Plan's business.
The Plan Administrator shall have the exclusive right to make any
finding of fact necessary or appropriate for any purpose under the
Plan, including, but not limited to, the determination of eligibility
for and amount of any benefit.
The Plan Administrator shall have the exclusive right to interpret the
terms and provisions of the Plan and to determine any and all questions
arising under the Plan or in connection with its administration,
including, without limitation, the right to remedy or resolve possible
ambiguities, inconsistencies, or omissions by general rule or
particular decision, all in its sole and absolute discretion.
The Corporation's Vice President/Chief Financial Officer, Treasurer and
Vice President/Human Resources, and any other officer or employee of
the Corporation designated by the Plan Administrator from time to time,
shall act as agents and shall perform such ministerial duties in
connection with the administration of the Plan as the Plan
Administrator may from time to time prescribe.
All findings of fact, determinations, interpretations, and decisions of
the Plan Administrator shall be conclusive and binding upon all
person(s) having or claiming to have any interest or right under the
Plan and shall be given the maximum deference allowed by law.
3.02 TAX WITHHOLDING. An Employer (or the trustee of the Rabbi Trust if
applicable) may withhold from any payment under this Plan any federal,
state or local taxes required by law to be withheld with respect to the
payment and any sum the Employer (or trustee) may reasonably estimate
as necessary to cover any taxes for which it may be liable and that may
be assessed with regard to the payment. The Corporation or Employer may
satisfy any state or federal tax withholding obligation arising upon a
distribution of Shares with respect to a Participant's Stock Unit
Account by reducing the appropriate
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number of Shares otherwise deliverable to the Participant based on the
Fair Market Value of a Share on the day prior to the date of
distribution. If the Corporation or Employer, for any reason, elects
not to (or cannot) satisfy the withholding obligation in accordance
with the preceding sentence, the Participant shall pay or provide for
payment in cash of the amount of any taxes which the Corporation or
Employer may be required to withhold with respect to the benefits
hereunder, before any such benefits are paid.
3.03 ACCOUNT STATEMENTS. Under procedures established by the Plan
Administrator, a Participant shall receive a statement with respect to
such Participant's Deferral Account as of the last day of each calendar
quarter and/or with respect his Stock Unit Account as of the last day
of each calendar year.
ARTICLE IV - ELIGIBILITY
4.01 Participation shall be limited to a "select group of management or
highly compensated employees" within the meaning of ERISA Section
201(2) with at least one year of service with the Corporation or a
participating Affiliate.
4.02 The Board also may permit any person who first becomes an Eligible
Participant on or after the first day of a Plan Year to enroll in the
Plan within 30 days following his eligibility and to defer Compensation
earned after the date he files his Deferral Election Agreement and/or
Alternative Exercise Agreement.
4.03 Any deferral election of a person, who through job transfer or demotion
no longer meets the "Eligible Participant" definition of Article II,
shall cease to be effective on December 31 of the Plan Year in which
such transfer or demotion occurs.
4.04 Participation in or eligibility for the Plan shall not constitute a
guarantee or contract of employment and shall not give any employee the
right to be retained in the employment of the Corporation or any
Affiliate, nor any right or claim to any benefit under the terms of the
Plan, unless this right or claim has specifically accrued under the
terms of the Plan.
ARTICLE V - DEFERRAL ELECTIONS AND ACCOUNTS
5.01 DEFERRAL ELECTIONS.
(a) BASE SALARY. Subject to Section 5.02, an Eligible Participant
may defer any percentage of his Base Salary. If an Eligible
Participant elects such a deferral, a minimum deferral of ten
percent (10%) of the Participant's Base Salary is required,
and the maximum deferral allowed is one hundred percent (100%)
of the Participant's Base Salary. Deferral elections between
10% and 100% may be made in whole percentages or dollar
amounts.
A Participant who wishes to defer receipt of all or a portion
of any Base Salary to be earned during the Plan Year shall
provide the Plan Administrator with a written Deferral
Election Agreement according to the rules established by the
Plan Administrator in its sole and absolute discretion. A
Participant's election to defer any Base Salary shall be
received by the Plan Administrator no later than the October
31st of the preceding Plan Year. A separate Deferral Election
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Agreement must be completed for each Plan Year for which a
Participant makes deferrals under the Plan. Notwithstanding
the foregoing, the Deferral Election Agreement for Base Salary
earned during the first Plan Year must be received by the Plan
Administrator by February 25, 2000, and shall be effective
with respect to Base Salary earned after March 1, 2000.
(b) BONUS. Subject to Section 5.02, an Eligible Participant may
elect to defer a specified percentage of his Bonus to be
earned the following year. If an Eligible Participant elects
such a deferral, a minimum deferral of ten percent (10%) of
the Participant's Bonus is required, and the maximum deferral
allowed is one hundred percent (100%) of the Participant's
Bonus. Deferral elections between 10% and 100% may be made in
whole percentages or dollar amounts.
A Participant who wishes to defer receipt of all or a portion
of any Bonus to be earned during the Plan Year shall provide
the Plan Administrator with a written Deferral Election
Agreement according to the rules established by the Plan
Administrator in its sole and absolute discretion. A
Participant's election to defer any Bonus shall be received by
the Plan Administrator no later than the October 31st of the
Plan Year for which the Bonus is earned. Notwithstanding the
foregoing, the Deferral Election Agreement for Bonuses
received in the first Plan Year must be received by the Plan
Administrator by February 25, 2000.
(c) SPECIAL INCOME. Subject to Section 5.02, an Eligible
Participant may make a one-time election to defer all or a
portion of his Special Income.
A Participant who wishes to defer receipt of all or a portion
of any Special Income that would otherwise be paid at the
Effective Time (as defined in the Merger Agreement) shall
provide the Plan Administrator with a written Special Income
Deferral Election Agreement according to the rules established
by the Plan Administrator in its sole and absolute discretion.
A Participant's election to defer any Special Income shall be
received by the Plan Administrator no later than July 5, 2000.
In addition, for such election to be effective with respect to
the deferral of the Eligible Participant's Special Income, the
Eligible Participant must agree in writing that the underlying
stock options, set forth in his Special Income Deferral
Election Agreement, shall not be exercised after the date of
the election. Notwithstanding the foregoing, an Eligible
Participant's election to defer his Special Income shall
terminate and any underlying stock option may be exercised in
accordance with its terms without regard to the election if
the stock option would otherwise expire (for example, because
of the Eligible Participant's termination of employment) or if
the Merger or cancellation does not occur.
(d) QUALIFYING STOCK OPTIONS. Subject to Section 5.02 and approval
by the Board of this feature and further subject to the Merger
not occurring, an Eligible Participant may elect to exercise
all or a portion of a Qualifying Stock Option under and
subject to the Alternative Exercise provisions set forth
herein and to receive a credit of Stock Units under this Plan.
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An election to Alternatively Exercise a Qualifying Stock
Option must be made by the Eligible Participant by completing
and executing a form of Alternative Exercise Agreement and
submitting such form to the Plan Administrator. Such an
election shall be irrevocable. Any Qualifying Stock Option (or
portion thereof) which is subject to an Alternative Exercise
Agreement may not be exercised at all during the twelve
(12)-month period following the date the Plan Administrator
receives the Eligible Participant's Alternative Exercise
election.
If, prior to the end of the twelve (12)-month period described
above, an Eligible Participant's employment with the
Corporation is terminated or, unless the Plan Administrator
otherwise provides, a Change in Control occurs, the Eligible
Participant's Alternative Exercise Agreement shall terminate
and the related Qualifying Stock Option may be exercised for
actual Shares in accordance with the terms of the Qualifying
Stock Option without regard to the Alternative Exercise
Agreement. If the Corporation unilaterally refuses to honor an
Alternative Exercise of a Qualifying Stock Option pursuant to
Section 10.08, the Alternative Exercise Agreement with respect
to such Qualifying Stock Option shall terminate and such
Qualifying Stock Option shall be exercisable for actual Shares
in accordance with its terms without regard to the Alternative
Exercise Agreement or the terms of the Qualifying Stock Option
regarding Alternative Exercise.
No Alternative Exercise Agreement shall have the effect of
extending the term or otherwise changing the terms of any
Qualifying Stock Option (except as expressly contemplated
hereby in respect of the consequences of exercise). No
Alternative Exercise Agreement may be amended or terminated
except as specifically provided herein.
(e) An Eligible Participant may irrevocably elect deferral option
(a) only, deferral option (b) only, deferral option (c) only,
or any combination of deferral options (a), (b) and (c). If
the Board authorizes the exercise of Qualifying Stock Options
pursuant to deferral option (d), an Eligible Participant may
irrevocably elect deferral option (d) only, or any combination
of deferral options (a), (b) and (d).
5.02 RULES REGARDING DEFERRAL ELECTIONS AND ALTERNATIVE EXERCISE ELECTIONS.
(a) A Participant's Deferral Election Agreement shall state:
(i) the percentage or dollar amount of his Base Salary and/or
Bonus to be deferred;
(ii) with respect to benefits paid upon Termination, the form
of payment, whether in a single lump sum of cash or in
annual installments over a period of 5, 10 or 15 years. In
the event that a Participant does not designate a form of
payment, the payment shall be in a single lump sum; and
(iii) the benefit Payout Date (see Section 6.02 below).
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(b) A Participant's Special Income Deferral Election Agreement
shall state:
(i) the specific stock option granted and all or a lesser
number of Shares subject thereto with respect to which
Special Income is to be deferred;
(ii) with respect to benefits paid upon Termination, the form
of payment, whether in a single lump sum of cash or in
annual installments over a period of 5, 10 or 15 years. In
the event that a Participant does not designate a form of
payment, the payment shall be in a single lump sum; and
(iii) the benefit Payout Date (see Section 6.02 below).
(c) Each Alternative Exercise Agreement with respect to a
Qualifying Stock Option shall specify:
(i) the portion of the Qualifying Stock Option that the
Eligible Participant elects to exercise;
(ii) that the Eligible Participant will exercise such
Qualifying Stock Option by paying the exercise price with
Already-Owned Shares having an aggregate Fair Market Value
equal to the exercise price for the number of Shares with
respect to which the Qualifying Stock Option is exercised;
(iii) that upon exercise, the Corporation will (A) deliver to
the Eligible Participant the same number of Shares used by
the Eligible Participant to pay the exercise price of the
Qualifying Stock Option and (B) in lieu of the remainder
of the Shares which would otherwise be delivered to the
Eligible Participant (the "Gain Shares"), credit to a
Stock Unit Account established for the Eligible
Participant, Stock Units equal in number to the number of
Gain Shares; and
(iv) the form of distribution of Shares, whether in a single
distribution or in annual installments over a period of 5,
10 or 15 years. In the event that a Participant does not
designate a form of payment, the payment shall be in a
single distribution.
(d) Subject to applicable law, the Plan Administrator may provide
for or permit an alternative method of delivering or tendering
Already-Owned Shares to pay the exercise price of a Qualifying
Stock Option.
5.03 INVESTMENT EQUIVALENTS.
(a) At the time of making the deferral elections described in
Section 5.01(a), (b) and (c), the Participant shall designate,
on a form provided and in a manner specified by the Plan
Administrator, in which investment fund(s) or portfolio(s) the
Participant's Deferral Account will be deemed to be invested
for purposes of determining the amount of earnings or losses
to be credited or debited to his Deferral Account.
Page 10
<PAGE>
(b) In making the designation pursuant to this Section 5.03, the
Participant must specify, in multiples of 10%, the percentage
of his Deferral Account that shall be deemed to be invested in
one or more investment funds or portfolios. Effective as of
January 1 or July 1 of each Plan Year, a Participant may
change the designation made under this Section 5.03 by filing
an election, on a form provided and in a manner specified by
the Plan Administrator. If a Participant fails to elect an
investment fund or portfolio under this Section 5.03, he shall
be deemed to have elected the Galaxy Money Market Fund, or
such other investment fund or portfolio that the Plan
Administrator designates as the default fund for purposes of
this Plan.
(c) The Plan Administrator shall select from time to time, in its
sole discretion, the funds or portfolios in which Base Salary,
Bonus and/or Special Income deferred under this Plan will be
deemed to be invested. The earnings rate of each fund or
portfolio shall be used to determine the amount of earnings or
losses to be credited or debited to the Participant's Deferral
Account as of the last day of each calendar month provided
there remains a balance in such Deferral Account as of such
date. The Plan Administrator reserves the right to change the
funds or portfolios, and to increase or decrease the number of
funds or portfolios, available as the funds or portfolios for
purposes of this Plan.
(d) Notwithstanding the Participant's ability to designate the
funds or portfolios in which his Deferral Account shall be
deemed to be invested, the Plan Administrator shall have no
obligation to invest any funds in accordance with any
Participant's election. A Participant's Deferral Account shall
merely be a bookkeeping entry on the Corporation's books, and
no Participant shall obtain any interest in the funds or
portfolios.
5.04 STOCK UNIT ACCOUNTS.
(a) As of the applicable Conversion Date of a Qualifying Stock
Option, an Eligible Participant's Stock Unit Account shall be
credited with the number of Stock Units attributable to the
Gain Shares described in Section 5.02(b).
(b) A Participant's Stock Unit Account shall be a memorandum
account on the books of the Corporation. The Stock Units
credited to a Participant's Stock Unit Account shall be used
solely as a device for the determination of the number of
Shares to be eventually distributed to such Participant in
accordance with this Plan. The Stock Units shall not be
treated as property or as a trust fund of any kind. No
Participant shall be entitled to any voting or other
shareholder rights with respect to Stock Units granted or
credited under the Plan. The number of Stock Units credited
(and the Shares to which a Participant is entitled under this
Plan) shall be subject to adjustment in accordance with
Section 5.04(d) of this Plan and Section 6.2 of the Stock
Plan, as the case may be.
(c) As of any applicable dividend or distribution payment date, a
Participant's Stock Unit Account shall be credited with
additional Stock Units in an amount equal to the amount of the
Dividend Equivalents divided by the Fair Market Value of a
Share as of the applicable dividend payment date. If the limit
on the number of
Page 11
<PAGE>
Shares available under this Plan in respect of Dividend
Equivalents is reached, the Plan Administrator may in its
discretion credit or settle such amounts in cash credited to
the Fleet Stable Asset Fund under the Participant's Deferral
Account.
(d) If the outstanding Shares are increased, decreased, or
exchanged for a different number or kind of securities, or if
additional shares or new or different shares or other
securities are distributed with respect to such Shares or
other securities, through merger, consolidation, sale of all
or substantially all of the assets of the Corporation,
reorganization, recapitalization, stock dividend, stock split,
reverse stock split or similar change in capitalization or any
other distribution with respect to such Shares or other
securities, proportionate and equitable adjustments consistent
with the effect of such event on shareholders generally (but
without duplication of benefits if Dividend Equivalents are
credited) shall be made in the number and type of Shares or
other securities, property and/or rights contemplated
hereunder and of rights in respect of Stock Units and Stock
Unit Accounts credited under the Plan so as to preserve the
benefits intended. If the event results in any rights of
shareholders to receive cash (other than cash dividends and
cash distributions), a corresponding amount of cash shall be
credited to the Galaxy Money Market Fund under each
Participant's Deferral Account as of the date that cash is
paid in respect of outstanding Shares.
5.05 RULES REGARDING WITHHOLDINGS. No Participant shall be allowed to defer
Compensation to the extent the Corporation determines that such
Compensation should be withheld to pay the Participant's portion of
taxes under the Federal Insurance Contributions Act ("FICA"), and
federal, state or local income and employment tax withholding payments
required to maintain coverage for the Participant or the Participant's
dependents under any welfare plan or program of the Corporation, or any
similar payment. Notwithstanding the foregoing, the Corporation may
withhold such taxes from other compensation payable to the Participant,
or the Participant may pay such amounts to the Corporation.
ARTICLE VI - BENEFITS DISTRIBUTION
6.01 TERMINATION BENEFIT.
(a) Subject to Section 6.02, a Participant is eligible to receive
distribution of his Deferral Account balance and Stock Unit
Account under the Plan upon his Termination. The benefit will
commence on January 1 following the Plan Year of Termination,
will be payable in the form specified in Section 5.02, and
will be based upon the Deferral Account balance and/or the
number of Stock Units credited to a Participant's Stock Unit
Account at such time.
(b) Subject to Section 5.04(c) and (d), Stock Units credited to a
Participant's Stock Unit Account shall be distributed in an
equivalent whole number of Shares. Fractional share interest
shall be accumulated and paid in cash. Stock Units that are
paid in Shares, cash or are otherwise settled shall reduce on
a one-for-one basis the number of Stock Units remained
credited to the Participant's Stock Unit Account.
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<PAGE>
(c) Certificates evidencing the Shares deliverable under the Plan
will be delivered by the Corporation to the Participant or his
or her Beneficiary, as appropriate; provided, however, that
the Corporation may make available an alternate arrangement
for delivery to a book entry service and the Plan
Administrator may either require or permit Participants and
Beneficiaries to elect that share certificates be delivered to
such book entry service. No interest or a right under the Plan
or the Stock Plan shall be created by the delivery of any
share certificate to such book entry service.
6.02 SCHEDULED IN-SERVICE DISTRIBUTION. The Deferral Election Agreement
and/or Special Income Deferral Election Agreement shall provide that a
Participant may elect to receive an in-service distribution of the
amount of Base Salary, Bonus and/or Special Income deferred for any
Plan Year, without earnings and reduced by the amount any previous
emergency distributions or early withdrawals from his Deferral Account,
in a lump sum payment in any January which occurs after the fifth
anniversary of the last day of the Plan Year in which the amount
deferred was earned. Notwithstanding the foregoing, in no event shall a
Participant receive an amount under this Section 6.02 greater than the
amount then credited to his Deferral Account. A Participant's
in-service distribution election shall be irrevocable.
6.03 CHANGE IN FORM OF TERMINATION BENEFIT. Notwithstanding the
Participant's election under Section 5.02, a Participant may elect to
change the form of payment of his Termination benefit by providing
written notice to the Plan Administrator at least one year prior to his
Termination or, if earlier, his death or disability.
6.04 PARTICIPANT'S DEATH
(a) If a Participant dies after payment of benefits under the Plan
has commenced, payments shall continue to be made in the same
form and for the same duration as elected by the Participant.
However, such payment of benefits shall be made to his
Beneficiary.
(b) If a Participant dies prior to the commencement of a payment
of his benefits under the Plan, distributions of his Deferral
Account shall be made to his Beneficiary. Payments shall
commence as soon as practicable following the Participant's
death, in the same form and for the same duration as elected
by the Participant.
(c) Each Participant shall submit a written, signed, and dated
list of his designated Beneficiaries to the Plan
Administrator. Beneficiaries may be changed at any time
without the consent of any prior Beneficiaries; provided,
however, that no Beneficiary designation shall become
effective until it is filed with the Plan Administrator and no
Beneficiary designation of someone other than the
Participant's spouse shall be effective unless such
designation is consented to by the Participant's spouse on a
form provided by and in accordance with procedures established
by the Plan Administrator. Unless the Participant otherwise
provides, in the event of divorce, the designation of a
Participant's spouse as his Beneficiary shall be automatically
revoked. If no Beneficiaries survive the Participant, the
Participant's Beneficiary shall be his estate.
Page 13
<PAGE>
6.05 EMERGENCY DISTRIBUTION. Upon written request of a Participant prior to
Termination, the Plan Administrator may, in its sole discretion, make a
lump sum payment to a Participant in order to meet a severe financial
hardship to the Participant resulting from (a) a sudden and unexpected
illness or accident of the Participant or a dependent of the
Participant, (b) loss of the Participant's property due to casualty or
(c) other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Participant. However,
no payment shall be made under this Section 6.05 to the extent that a
hardship is or may be relieved (a) through reimbursement or
compensation by insurance or otherwise, (b) by liquidation of the
Participant's assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship or (c) by cessation of
deferrals under the Plan effective for the next Plan Year. The amount
of any emergency distribution under this Section 6.05 shall not exceed
the lesser of (a) the amount required to meet the immediate financial
need created by such hardship or (b) the entire amount then credited to
the Participant's Deferral Account or Stock Unit Account. Amounts
distributed pursuant to this Section 6.05 shall, at the sole discretion
of the Plan Administrator, be distributed first from a Participant's
Deferral Account and, to the extent the balance of the Participant's
Deferral Account is not sufficient to satisfy the severe financial
hardship, and next as a distribution of Shares from such Participant's
Stock Unit Account. The remaining amounts credited to a Participant's
Deferral Account and/or Stock Unit Account shall be distributed in
accordance with the Participant's elections. The Participant shall not
be permitted to make any further deferrals into the Plan for the Plan
Year in which the emergency distribution occurs and for the next Plan
Year.
No payment shall be made under this Section 6.05 if the Plan
Administrator determines that such payment would cause any other
amounts deferred hereunder to be deemed constructively received under
the Code.
6.06 EARLY WITHDRAWAL. At any time prior to his or her Termination, a
Participant may elect to withdraw not less than 50% of the amount
credited to his Deferral Account, reduced by the withdrawal penalty
described below. The Participant may make such an election by filing a
written notice with the Plan Administrator on a form provided and in
the manner specified by the Plan Administrator. Within 90 days
following the Plan Administrator's receipt of such notice, an amount
equal to 88% of the amount that the Participant has elected to withdraw
from his Deferral Account shall be paid to the Participant in a cash
lump sum payment (less applicable withholding). Upon the payment of
such withdrawal, (a) an amount equal to 12% of the amount the
Participant has elected to withdraw from the Participant's Deferral
Account shall be forfeited, (b) the Participant shall cease to
participate in the Plan with respect to further deferrals for the
remainder of the Plan Year in which the withdrawal occurs and during
the Plan Year immediately following the Plan Year in which the
withdrawal occurs, and (c) any deferral elections made by the
Participant for such periods shall terminate. A Participant may not
make more than two withdrawals under this Section 6.06.
6.07 SMALL BENEFIT. In the event the Plan Administrator determines that the
balance of a Participant's Deferral Account is less than $25,000 at the
time of commencement of payment of his benefit, that the sum of the
Shares to be distributed to the Participant is less than or equal to
1,000 Shares, that the portion of the balance of the Participant's
Deferral Account payable to any Beneficiary is less than $25,000,
and/or that the portion
Page 14
<PAGE>
of the balance of the Participant's Stock Unit Account payable to any
Beneficiary is less than 1,000 Shares at the time of commencement of
payment of a survivor benefit to such Beneficiary, the Plan
Administrator may pay the benefit in the form of a lump sum payment and
the Shares in a single distribution, notwithstanding any provision of
this Article VI to the contrary. Such lump sum payment shall be equal
to the balance of the Participant's Deferral Account and/or the number
of Shares to be delivered from the Participant's Stock Unit Account or
the portions thereof payable to a Beneficiary.
6.08 CHANGE IN CONTROL. In the event of a Change in Control, notwithstanding
Section 9.02 and except as provided in Section 5.01(d), payments shall
be made in the same form and for the same duration as elected by the
Participant.
ARTICLE VII - RABBI TRUST
7.01 RABBI TRUST. In the event of a Change in Control, the Corporation and
any participating Affiliate shall establish one or more rabbi trusts
(the "Rabbi Trust") as part of the Plan. The Rabbi Trust shall be
irrevocable and shall be funded with assets equal to or greater in
value than the sum of all Deferral Account balances as determined upon
such Change in Control and quarterly thereafter. Benefits payable under
the Plan, other than Shares of Common Stock delivered with respect to
Stock Units, shall be paid from the Rabbi Trust, unless the Employer
pays such benefits directly, in its sole and absolute discretion.
7.02 ASSETS OF THE RABBI TRUST. No Participant or Beneficiary shall have any
interest whatsoever in any specific asset of the Corporation,
Affiliates or Rabbi Trust. To the extent that any person acquires a
right to receive payments under the Plan, such right shall be no
greater than the rights of any unsecured general creditor of the
appropriate Employer.
7.03 NO REVERSION. No part of the Rabbi Trust shall be returned to any
Employer except upon complete termination of the Plan after the
satisfaction of all fixed and contingent liabilities of the Plan.
ARTICLE VIII - CLAIMS PROCEDURE
8.01 CLAIM. A person who believes that he is being denied a benefit to which
he is entitled under this Plan (hereinafter referred to as "Claimant")
may file a written request for such benefit with the Plan
Administrator, setting forth his claim. The request must be addressed
to the Plan Administrator at the Corporation's principal place of
business.
8.02 CLAIM DECISION. Upon receipt of a claim, the Plan Administrator shall
advise the Claimant that a reply will be forthcoming within ninety (90)
days and shall, in fact, deliver such reply within such period. The
Plan Administrator may, however, extend the reply period for an
additional ninety (90) days for special circumstances.
If the claim is denied in whole or in part, the Plan Administrator
shall inform the Claimant in writing, using language calculated to be
understood by the Claimant, setting forth: (1) the specified reason or
reasons for such denial; (2) the specific reference to pertinent
provisions of this Plan on which such denial is based; (3) a
description of any additional material or information necessary for the
Claimant to perfect his or her claim
Page 15
<PAGE>
and an explanation why such material or such information is necessary;
(4) appropriate information as to the steps to be taken if the Claimant
wishes to submit the claim for review; and (5) the time limits for
requesting a review under Section 8.03.
8.03 REQUEST FOR REVIEW. Within sixty (60) days after the receipt by the
Claimant of the written opinion described above, the Claimant may
request in writing that the Plan Administrator review the
determination. Such request must be addressed to the Plan
Administrator, at the Corporation's principal place of business. The
Claimant or his duly authorized representative may, but need not,
review the pertinent documents and submit issues and comments in
writing for consideration by the Plan Administrator. If the Claimant
does not request a review within such sixty (60) day period, he shall
be barred and estopped from challenging the original determination.
8.04 REVIEW OF DECISION. Within sixty (60) days after the Plan
Administrator's receipt of a request for review, after considering all
materials presented by the Claimant, the Plan Administrator will inform
the Claimant in writing, in a manner calculated to be understood by the
Claimant, of its decision setting forth the specific reasons for the
decision and containing specific references to the pertinent provisions
of this Plan on which the decision is based. If special circumstances
require that the sixty (60) day time period be extended, the Plan
Administrator will so notify the Claimant and will render the decision
as soon as possible, but no later than one hundred twenty (120) days
after receipt of the request for review.
ARTICLE IX - AMENDMENT AND TERMINATION OF THE PLAN
9.01 AMENDMENT AND TERMINATION. While the Corporation expects and intends to
continue the Plan, the Corporation hereby reserves the right to amend
or to terminate the Plan in any way, at any time, for any reason;
except that no amendment shall be made which would eliminate a Rabbi
Trust established pursuant to Article VII, or that otherwise would
reduce a Participant's benefits to less than the amount the Participant
would have been entitled to receive had the Participant resigned from
the employment of the Corporation or its Affiliates on the effective
date of such amendment or termination.
9.02 DISTRIBUTION UPON TERMINATION OF THE PLAN. If the Plan is terminated
after the payment of benefits under the Plan has commenced, payments
shall continue to be made in the same form and for the same duration as
elected by the Participant. However, the Plan Administrator may, in its
sole and absolute discretion, provide that distributions be made in any
form and at any time, as selected by the Plan Administrator.
9.03 POOLING EXCEPTION. Any discretion with respect to the events addressed
in this Article IX, including any acceleration of a distribution, shall
be limited to the extent required by applicable accounting requirements
in the case of a transaction intended to be accounted for as a pooling
of interests transaction.
ARTICLE X - GENERAL PROVISIONS
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<PAGE>
10.01 APPLICABLE LAWS. The Plan shall be construed and administered in
accordance with the laws of the State of California, without regard to
the conflict of law principles thereunder, to the extent that such laws
are not pre-empted by the laws of the United States of America.
10.02 BENEFITS PAYABLE FROM GENERAL ASSETS. Amounts payable hereunder other
than Shares of Common Stock delivered with respect to Stock Units,
shall be paid exclusively from the general assets of the Employer which
employed the Participant at the time the Compensation was deferred, and
no person entitled to payment hereunder shall have any claim, right,
security interest, or other interest in any fund, trust, account,
insurance contract, or asset of the Corporation or Employer which may
be looked to for such payment, other than the right of an unsecured
general creditor against the Employer, in respect of the Deferral
Account of such Participant established hereunder. Participants and
their Beneficiaries shall have no greater right than the right to
receive Shares of Common Stock as an unsecured general creditor in
respect of their Stock Unit Accounts.
10.03 COST OF THE PLAN. All costs of the Plan, including the administration
thereof, shall be borne by the Corporation and no contributions from
Participants shall be required or permitted. This Section shall not
apply to charges imposed within the selected investment funds or
portfolio and included in the calculation of net returns for such fund
or portfolio.
10.04 SEVERABILITY. If any provision of the Plan is held illegal or invalid,
the illegality or invalidity shall not affect its remaining parts. The
Plan shall be construed and enforced as if it did not contain the
illegal or invalid provision.
10.05 NO ASSIGNMENT OF RIGHTS. No interest, right, or claim in or to any
payment hereunder shall be assignable, transferable, or subject to
sale, mortgage, pledge, hypothecation, commutation, anticipation,
garnishment, attachment, execution, or levy of any kind. The
Corporation and Affiliates shall not recognize any attempt to assign,
transfer, sell, mortgage, pledge, hypothecate, commute or anticipate
the same, except to the extent required by law.
10.06 SUCCESSORS TO CORPORATION. The Plan shall inure to the benefit of, and
shall be binding upon, the Corporation and the Employers and their
successors or assigns.
10.07 INABILITY TO LOCATE PARTICIPANT. In the event that the Plan
Administrator is unable to locate a Participant or Beneficiary within
two years following the Participant's Termination or death, the amounts
allocated to the Participant's Deferral Account and/or Stock Unit
Account shall be forfeited. If, after such forfeiture, the Participant
or Beneficiary later claims such benefits, such benefits shall be
reinstated without interest or earnings with respect to the period
between the forfeiture and the reinstatement.
10.08 COMPLIANCE WITH LAWS. This Plan, the Corporation's acceptance of the
exercise price of a Qualifying Stock Option in the form of
Already-Owned Shares, the Corporation's issuance of Stock Units, and
the offer, issuance and delivery of Shares and/or the payment in Shares
through the Alternative Exercise of Qualifying Stock Options under this
Plan and the Stock Plan are subject to compliance with all applicable
federal and state laws, rules and regulations (including but not
limited to state and federal securities
Page 17
<PAGE>
law) and to such approvals by any listing, agency or any regulatory or
governmental authority as may, in the opinion of counsel for the
Corporation, be necessary or advisable in connection therewith. Any
securities delivered under this Plan shall be subject to such
restrictions, and the person acquiring such securities shall, if
requested by the Corporation, provide such assurances and
representations to the Corporation as the Corporation may deem
necessary or desirable to assure compliance with all applicable legal
requirements. If the Corporation in its sole discretion determines that
an Alternative Exercise of a Qualifying Stock Option would violate any
law, rule or regulation, the Corporation may refuse to honor such
Alternative Exercise.
10.09 PROGRAM CONSTRUCTION. It is the intent of the Corporation that
transactions pursuant to this Plan satisfy and be interpreted in a
manner that satisfies the applicable requirements of Rule 16b-3 so that
to the extent elections are timely made, the crediting of Stock Units
and the distribution of Shares with respect to Stock Units under this
Plan will be entitled to the benefits of Rule 16b-3 or other exemptive
rules under Section 16 of the Securities Exchange Act of 1934, as
amended from time to time, and will not be subjected to avoidable
liability thereunder.
IN WITNESS WHEREOF, the Corporation has caused its duly
authorized officers to execute this Plan.
CASTLE & COOKE, INC.
BY:
---------------------------------------
BY:
---------------------------------------
June ___, 2000.
Page 18
<PAGE>
EXHIBIT A
CASTLE & COOKE, INC. P.O. BOX 898900
MILILANI HI 96789
DEFERRED COMPENSATION PLAN
DEFERRAL ELECTION AGREEMENT
================================================================================
A. DEFERRAL ELECTION
I hereby irrevocably elect to participate in the Plan effective for the
2000 PLAN YEAR in the following amounts:
i. [ ] ___________% or $__________ per paycheck of Base Salary to
a maximum of $ __________.
{minimum of 10% with a maximum of 100%}
ii. [ ] ___________% or $__________ Bonus to a maximum of
$ __________.
{minimum of 10% with a maximum of 100%}
I understand that I may elect deferral option (i) only, deferral option
(ii) only, or deferral options (i) and (ii).
I understand that a separate Deferral Election Agreement must be
completed for each Plan Year in which I wish to make deferrals under
the Plan.
I understand that an election to defer my Bonus in no way guarantees
that I will be eligible for any Bonus. I further understand that the
foregoing election is governed in all respects by the terms of the Plan
in effect as of the date of this election.
B. DISTRIBUTION ELECTION
TERMINATION BENEFIT. I hereby irrevocably elect to receive the payments
in cash in respect of monies deferred pursuant to this Deferral
Election Agreement on termination of service in accordance with the
choice indicated by me below, except as may be otherwise provided in or
pursuant to the Plan. IF NO BOX IS CHECKED, I understand that except as
otherwise provided in the Plan, the balance of benefits will be paid in
a lump sum {INITIAL THE OPTION YOU CHOOSE}:
[ ] A single lump sum; or
[ ] Substantially equal annual installments over __________ years
{SPECIFY 5, 10, OR 15 YEARS}.
If the balance remaining is less than $25,000, the remaining balance
shall be distributed in a lump sum.
SCHEDULED IN-SERVICE DISTRIBUTION. I hereby irrevocably elect to
receive payment of the amount I defer under this Plan for the year 2000
(without earnings), or if less, the amount indicated in the blank
below, if I am still in the service of the Company, in accordance with
the choice indicated by me below:
[ ] $________________ A single lump sum in the year _____________.
I understand that no distribution can be made prior to 2005 and that
the benefits payable at that time will be reduced by any previous
withdrawals. I further understand that I will not receive any amount
greater than the amount then credited to my account.
A-1
<PAGE>
C. INVESTMENT ELECTIONS
Deferred amounts investment choices: {INCREMENTS OF 10%} - These are
the funds that will be used to determine the amount of gains and losses
to be credited to your account. You will not have any actual interest
in any of these funds.
<TABLE>
<CAPTION>
--------------------
2000 DEFERRALS
<S> <C>
-------------------------------------------------------------- --------------------
FUND 1 - FIDELITY ADVISOR EQUITY GROWTH
-------------------------------------------------------------- --------------------
FUND 2 - JANUS FUND
-------------------------------------------------------------- --------------------
FUND 3 - GALAXY II LARGE COMPANY INDEX
-------------------------------------------------------------- --------------------
FUND 4 - GALAXY ASSET ALLOCATION
-------------------------------------------------------------- --------------------
FUND 5 - INVESCO SMALL COMPANY GROWTH
-------------------------------------------------------------- --------------------
FUND 6 - PUTNAM OTC EMERGING GROWTH
-------------------------------------------------------------- --------------------
FUND 7 - GALAXY INTERNATIONAL EQUITY FUND
-------------------------------------------------------------- --------------------
FUND 8 - GALAXY II US TREASURY INDEX
-------------------------------------------------------------- --------------------
FUND 9 - GALAXY MONEY MARKET FUND
-------------------------------------------------------------- --------------------
TOTAL 100%
--------------------
</TABLE>
I understand that I may reallocate my existing fund choices biannually
and that those changes will be effective the following January 1 and
July 1.
SIGNATURE
I hereby acknowledge that I understand and consent to the terms of this
Deferral Election Agreement and the Plan. I understand that the
distribution and payment periods are irrevocable, subject to the terms
of the Plan.
Name: _______________________________ Signature:___________________________
SS#: _______________________________ Date: ___________________________
--------------------------------------------------------------------------------
Receipt acknowledged by the Plan PLAN ADMINISTRATOR OF THE DEFERRED
Administrator COMPENSATION PLAN
----------------------------------------
By:
----------------------------------------
Date:
--------------------------------------------------------------------------------
A-2
<PAGE>
EXHIBIT B
CASTLE & COOKE, INC. P.O. BOX 898900
MILILANI HI 96789
DEFERRED COMPENSATION PLAN
SPECIAL INCOME DEFERRAL ELECTION AGREEMENT
===============================================================================
A. SPECIAL INCOME DEFERRAL ELECTION
I acknowledge that, in accordance with Section 3.2 of the Merger
Agreement, I may be entitled to receive Special Income at the Effective
Time (as defined in the Merger Agreement) with respect to each
outstanding stock option that has been issued to me under the Stock
Plan equal to: (i) the difference between the consideration per share
set forth in the Merger Agreement and the option price per share set
forth in the option agreement; multiplied by (ii) the number of shares
subject to such stock option agreement.
I hereby irrevocably elect, however, in accordance with Section 5.01(c)
of the Plan, to defer receipt of the Special Income at the Effective
Time with respect to the number of shares subject to each stock option
specified below:
<TABLE>
<CAPTION>
------------------- ------------------------------------------ ----------------------------------------------
NUMBER OF SHARES (WITH RESPECT TO WHICH
DATE OF GRANT UNEXERCISED SHARES SPECIAL INCOME IS TO BE DEFERRED)
(TOTAL)
<S> <C> <C>
------------------- ------------------------------------------ ----------------------------------------------
------------------- ------------------------------------------ ----------------------------------------------
------------------- ------------------------------------------ ----------------------------------------------
------------------- ------------------------------------------ ----------------------------------------------
------------------- ------------------------------------------ ----------------------------------------------
</TABLE>
I further acknowledge and agree that I will not be able to exercise the
stock options set forth above with respect to the number of shares set
forth above after the date of this election. I further agree and
acknowledge that this election shall terminate and the stock options
specified above shall again be exercisable in accordance with their
terms if (i) the stock options would otherwise expire prior to the
Effective Time or (ii) the Merger Agreement is terminated prior to the
Effective Time.
B. DISTRIBUTION ELECTION
TERMINATION BENEFIT. I hereby irrevocably elect to receive the payments
in respect of monies deferred pursuant to this Special Income Deferral
Election Agreement on termination of service in accordance with the
choice indicated by me below, except as may be otherwise provided in or
pursuant to the Plan. IF NO BOX IS CHECKED, I understand that except as
otherwise provided in the Plan, the balance of benefits will be paid in
a lump sum {INITIAL THE OPTION YOU CHOOSE}:
[ ] A single lump sum; or
[ ] Substantially equal annual installments over __________ years
{SPECIFY 5, 10, OR 15 YEARS}.
If the balance remaining is less than $25,000, the remaining balance
shall be distributed in shares in a lump sum.
B-1
<PAGE>
SCHEDULED IN-SERVICE DISTRIBUTION. I hereby irrevocably elect to
receive payment of the amount I defer under this Special Income
Deferral Election Agreement (without earnings), or if less, the amount
indicated in the blank below, if I am still in the service of the
Company, in accordance with the choice indicated by me below:
[ ] $________________ A single lump sum in the year _____________.
I understand that no distribution can be made prior to 2005 and that
the benefits payable at that time will be reduced by any previous
withdrawals. I further understand that I will not receive any amount
greater than the amount then credited to my account.
C. INVESTMENT ELECTIONS
Investment Choices: {INCREMENTS OF 10%} - These are the funds that will
be used to determine the amount of gains and losses to be credited to
your account with respect to deferrals that relate to Special Income.
You will not have any actual interest in any of these funds.
<TABLE>
<CAPTION>
--------------------
SPECIAL INCOME
DEFERRALS
-------------------------------------------------------------- --------------------
<S> <C>
FUND 1 - FIDELITY ADVISOR EQUITY GROWTH
-------------------------------------------------------------- --------------------
FUND 2 - JANUS FUND
-------------------------------------------------------------- --------------------
FUND 3 - GALAXY II LARGE COMPANY INDEX
-------------------------------------------------------------- --------------------
FUND 4 - GALAXY ASSET ALLOCATION
-------------------------------------------------------------- --------------------
FUND 5 - INVESCO SMALL COMPANY GROWTH
-------------------------------------------------------------- --------------------
FUND 6 - PUTNAM OTC EMERGING GROWTH
-------------------------------------------------------------- --------------------
FUND 7 - GALAXY INTERNATIONAL EQUITY FUND
-------------------------------------------------------------- --------------------
FUND 8 - GALAXY II US TREASURY INDEX
-------------------------------------------------------------- --------------------
FUND 9 - GALAXY MONEY MARKET FUND
-------------------------------------------------------------- --------------------
TOTAL 100%
--------------------
</TABLE>
I understand that I may reallocate my existing fund choices biannually
and that those changes will be effective the following January 1 and
July 1.
SIGNATURE
I hereby acknowledge that I understand and consent to the terms of this
Special Income Deferral Election Agreement and the Plan. I understand
that the distribution and payment periods are irrevocable, subject to
the terms of the Plan.
Name: _______________________________ Signature __________________________
SS#: _______________________________ Date: __________________________
--------------------------------------------------------------------------------
Receipt acknowledged by the Plan PLAN ADMINISTRATOR OF THE DEFERRED
Administrator COMPENSATION PLAN
----------------------------------
By:
----------------------------------
Date:
--------------------------------------------------------------------------------
B-2
