PRIVILEGED AND CONFIDENTIAL
---------------------------
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 distrac-
tion 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 considera-
tion 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, dated ___________, 20____ (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
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the date hereof and shall continue in effect through ___________, 20___;
provided, however, that commencing on ___________, 20___ and each January 1
thereafter, the term of this Agreement shall automatically be extended for one
additional year unless not later than September 30 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
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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 of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not the Company in fact is required to
comply with Regulation 14A thereunder; provided that, without limitation, such
a change in control shall be deemed to have occurred if (i) any "person"
(defined, for purposes of this Agreement, as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner"
(defined, for purposes of this Section 2, as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 35% or more of the combined voting power of the Company's then
outstanding securities; (ii) at least a majority of the Board ceases to consist
of (a) individuals who have served continuously on the Board since the date
hereof and (b) new directors (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the election
of directors of the Company) whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least two-thirds of the
directors then still in office who shall at that time have served continuously
on the Board since the date hereof or whose election or nomination was
previously so approved; (iii) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary of the Company with any other
entity, other than (a) a merger or consolidation immediately following which
the individuals who comprise the Board immediately prior thereto constitute at
least a majority of the board of directors of the Company, the entity surviving
such merger or consolidation or any parent thereof or (b) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person is or becomes the beneficial owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such person any securities acquired directly
from the Company or its affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or (iv) the stock-
holders of the Company approve a plan of complete liquidation or dissolution
of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets, other than
a sale or disposition by the Company of all or substantially all of the
Company's assets to an entity at least a majority of the board of directors of
which or of any parent thereof is comprised of individuals who comprised the
Board immediately prior to such sale or disposition. Notwithstanding the
foregoing, a change in control of the Company shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the holders of the common
stock of the Company immediately prior to such transaction or series
of transactions continue to have substantially the same proportionate ownership
in an entity which owns all or substantially all of the assets of the Company
immediately following such transaction or series of transactions.
(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 any of the events
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described in Section 2(a) hereof constituting a change in control of the
Company 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
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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 accor-
dance 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
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"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 employ-
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ment 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 sub-
stantially 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 contem-
plated 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
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Company pursuant to paragraph (i) or (ii) above or by you pursuant to
paragraph (iii) above shall be communicated by written Notice of Termina-
tion 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 employ-
ment 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 offset against or reduce any other amounts
due under this Agreement.
4. Compensation Upon Termination or During Disability.
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(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 compensa-
tion 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 Termina-
tion 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 Termina-
tion, 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 Pay-
ments, 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 addi-
tional 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; and
(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.
(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
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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
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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 regis-
tered 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,
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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. No agreements or representations, oral or otherwise,
expressed or implied, with respect to the subject matter hereof have been made
by either party which are not set forth expressly in this Agreement. 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
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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 counter-
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parts, 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 connec-
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tion with this Agreement shall be settled exclusively by arbitration in
Honolulu, Hawaii, in accordance with the rules of the American Arbitration
Association 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.
Sincerely,
ALEXANDER & BALDWIN, INC.
By __________________________________
John F. Gasher
Vice President
Agreed to as of the
_____ day of ___________, 20____.
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