Dole Food Company Supplemental Executive Retirement Plan Fourth Restatement

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DOLE FOOD CO INC | Castle & Cooke, Inc

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Title: Dole Food Company Supplemental Executive Retirement Plan Fourth Restatement
Date: 8/14/2009
Industry: Food Processing Sector: Consumer/Non-Cyclical

Exhibit 10.5

Dole Food Company
Supplemental Executive Retirement Plan

Fourth Restatement

(Effective January 1, 2009)

Contents


	Article 1. Intent and Effective Date of the Plan	1
1.1	History of the Plan	1
1.2	Status of the Plan	1
1.3	Applicability of the Restatement of the Plan	2

	Article 2. Definitions	4
2.1	Beneficiary	4
2.2	Change in Control	4
2.3	Code	4
2.4	Committee	4
2.5	Commonly Controlled Entity	4
2.6	Company	4
2.7	Corporation	4
2.8	Employee	5
2.9	ERISA	5
2.10	Excess Benefit	5
2.11	Grandfathered Benefit	5
2.12	Nongrandfathered Benefit	5
2.13	Plan	5
2.14	Plan 29	5
2.15	Plan 29 Transition Benefit	6
2.16	Plan Administrator	6
2.17	Retiree	6
2.18	Separation from Service	6
2.19	Trust	6
2.20	Trustee	6

	Article 3. Eligibility for Benefits	7
3.1	Eligibility for Excess Benefit	7
3.2	Eligibility for Plan 29 Transition Benefit	7

	Article 4. Amount of Benefits	8
4.1	Overview of Retirement Benefits	8
4.2	Excess Benefit	8
4.3	Plan 29 Transition Benefit	8
4.4	Assumption of Certain Liabilities by Castle & Cooke	8

	Article 5. Payment of Benefits to Retiree	9
5.1	Grandfathered Benefits	9
5.2	Nongrandfathered Benefits	9
5.3	Special Distribution Following a Change in Taxation	9


	Article 6. Death Benefits	10
6.1	Death Before Commencement of Benefits to Retiree	10
6.2	Death After Commencement of Benefits to Retiree	10

	Article 7. Cost of the Plan	12
7.1	Plan Costs	12
7.2	Authorization for Trust	12

	Article 8. Administration	13
8.1	Charter of the Committee	13
8.2	Special Rules Following a Change in Control	13
8.3	Claims Procedure	17
8.4	Reimbursement of Attorneys Fees	19
8.5	Corrections	19

	Article 9. Facility of Payment and Lapse of Benefits	20
9.1	Lack of Valid Beneficiary Designation	20
9.2	Payments of Deposits	20

	Article 10. General Provisions	21
10.1	Payments and Benefits Not Assignable	21
10.2	No Right of Employment	21
10.3	Adjustments	21
10.4	Indemnification	21
10.5	Withholding of Taxes	23

	Article 11. Amendments, Assignment and Discontinuance	24
11.1	Amendment of Plan	24
11.2	Assignment of Plan	24
11.3	Termination	24
11.4	Effect of Amendment or Termination	24

	Article 12. Execution	25

Article 1. Intent and Effective Date of the Plan

1.1

History of the Plan

	(a)		Originally the Plan was known as the “Castle & Cooke, Inc. Supplementary Executive Retirement Plan.” Subsequently, a second restatement of the Plan was adopted, effective as of January 1, 1989 (the “1989 Restatement”). Among other changes, the 1989 Restatement renamed the plan as the “Dole Food Company Supplemental Executive Retirement Plan.” Subsequently, the Company adopted Amendments 1994-1, 1996-1, and 2001-1 to the 1989 Restatement.

	(b)		Effective as of January 1, 2002, the Plan was amended and restated (the “2002 Restatement”) to incorporate the three amendments to the 1989 Restatement, to provide for accruals of transition benefits with respect to certain participants in Plan 29, and to make certain other changes.

	(c)		Effective as of January 1, 2009, the Company hereby amends and restates the 2002 Restatement to comply with the provisions of Code Section 409A with respect to Nongrandfathered Benefits, and to ensure that Grandfathered Benefits will not become subject to the provisions of Code Section 409A.

1.2

Status of the Plan

(a)

The Plan is intended to provide a supplemental retirement allowance, in accordance with the provisions of the Plan contained herein, to those Retirees and their Beneficiaries

	(1)		Whose benefits from Plan 29 are reduced by reason of the maximum annual limitations on benefits imposed by Section 415 of the Code or the limitation on compensation imposed by Section 401(a)(17) of the Code, or

	(2)		Who are entitled to certain transition benefits with respect to their Plan 29 benefits.

	(b)		The portion of the Plan relating to Section 415 is intended to constitute an “excess benefit plan” as defined in Section 3(36) of ERISA.

	(c)		The remaining portion of the Plan is intended to constitute a plan which is unfunded and maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees and is intended to meet the exemptions provided in Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA as well as the requirements of Department of Labor Regulation Section 2520.104-23. The Plan shall be administered and interpreted so as to meet the requirements of these exemptions and the regulation.

	(d)		The Plan is not qualified within the meaning of Code Section 401(a). The Plan is intended to provide an unfunded and unsecured promise to pay money in the future

			and thus not to involve, pursuant to Treasury Regulation Section 1.83-3(e), the transfer of “property” for purposes of Code Section 83. Likewise, the accrual of benefits by an Employee is not intended to confer an economic benefit upon the Employee nor is the right to the receipt of future benefits under the Plan intended to result in the Employee, Retiree, or Beneficiary being in constructive receipt of any amount so as to result in any benefit due under the Plan being includible in the gross income of any Employee, Retiree, or Beneficiary in advance of the date on which payment of any benefit due under the Plan is actually made. The Plan shall be administered and interpreted so as to satisfy the requirements for this intended tax treatment under the Code. However, the treatment of benefits accrued under and benefits received under this Plan, for purposes of the Code and other applicable tax laws (such as state income and employment tax laws) shall be determined under the Code and other applicable tax laws and no guarantee or commitment is made to any Employee, Retiree, or Beneficiary with respect to the treatment of accruals under or benefits payable under the Plan for purposes of the Code and other applicable tax laws.

	(e)		The Plan is subject to the provisions of Code Section 409A with respect to Nongrandfathered Benefits. The Plan shall be administered and interpreted so as to avoid a “plan failure” within the meaning of Code Section 409A with respect to Nongrandfathered Benefits. The Company does not intend that this restatement shall constitute a material modification, within the meaning of Treasury Regulation Section 1.409A-6(a)(4), of the Plan provisions governing Grandfathered Benefits. The Plan shall be administered and interpreted so as to avoid any material modification with respect to Grandfathered Benefits that would make those benefits subject to the provisions of Code Section 409A. However, no guarantee or commitment is made that the Plan shall be administered in accordance with the requirements of Code Section 409A, with respect to Nongrandfathered Benefits, or that it shall be administered, with respect to Nongrandfathered Benefits, in a manner that avoids the application of Code Section 409A to those Nongrandfathered Benefits.

1.3

Applicability of the Restatement of the Plan

	(a)		The Plan, as herein amended and restated, is effective January 1, 2009 except as otherwise provided.

	(b)		The provisions of the 2002 Restatement shall determine all benefits accrued with respect to periods before January 1, 2009 and shall govern all distribution elections and distributions made before January 1, 2009, except insofar as pertinent provisions of this restatement are retroactively effective. Notwithstanding the foregoing, distribution elections and distributions (and other actions subject to Code Section 409A) made before January 1, 2009 with respect to Nongrandfathered Benefits were and continue to be governed by provisions identical to those under the 2002 Restatement, but modified administratively to the extent necessary to avoid any

			“plan failures” within the meaning of Code Section 409A(a)(1) based on the Plan Administrator’s good faith interpretation of that Section and associated Internal Revenue Service guidance.

	(c)		The provisions of this restatement of the Plan, as amended from time to time, shall determine all benefits accrued with respect to periods on or after January 1, 2009, and shall govern all distributions and distribution elections made on or after January 1, 2009.

Article 2. Definitions

2.1		Beneficiary

		“Beneficiary” means the person entitled to receive benefits with respect to a Retiree on account of the death of the Retiree. A Beneficiary may be the person entitled to receive a survivor annuity under a joint and survivor annuity or the person entitled to receive a death benefit when payment of a benefit under this Plan has not begun before the death of the Retiree.

2.2		Change in Control

		“Change in Control” means a situation described in Section 8.2(a).

2.3		Code

		“Code” means the Internal Revenue Code of 1986.

2.4		Committee

		“Committee” means the Corporate Compensation and Benefits Committee of the Board of Directors of the Corporation or such body as shall replace this committee.

2.5		Commonly Controlled Entity

		“Commonly Controlled Entity” means

	(a)		Any corporation that, together with the Corporation, is part of a controlled group of corporations, within the meaning of Code Section 414(b),

	(b)		Any trade or business that, together with the Corporation, is under common control, within the meaning of Code Section 414(c), and

	(c)		Any entity or organization that is required to be aggregated with the Corporation, pursuant to Code Section 414(m) or 414(o).

An entity shall be a Commonly Controlled Entity only during the period when the entity has the required relationship, under this Section 2.5, with the Corporation.

2.6		Company

		“Company” means the Corporation and each of its Commonly Controlled Entities which has employees who are included in the Plan upon authorization of the Committee and adoption of the Plan by such Commonly Controlled Entity.

2.7		Corporation

		“Corporation” means Dole Food Company, Inc.

2.8		Employee

		“Employee” means any person who is regularly employed by a Company, whether on a full time or part time basis. It also includes any such person while on a leave of absence granted by a Company.

2.9		ERISA

		“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

2.10		Excess Benefit

		“Excess Benefit” means the benefit defined in Section 4.2(b) that is payable under the terms of Section 4.2.

2.11		Grandfathered Benefit

		“Grandfathered Benefit” means the present value of the amount to which an Employee would have been entitled under the Plan if the Employee voluntarily terminated services without cause on December 31, 2004, received a payment of his or her benefits under the Plan on the earliest possible date allowed under the Plan following the termination of services, and received the benefits in the form with the maximum value. This amount shall be increased, if applicable, to equal the present value of the benefit to which the Employee actually becomes entitled, at the time the Employee first receives benefit payments under this Plan, determined under the terms of the Plan as in effect on October 3, 2004, due solely to the passage of time and without regard to any further services rendered by the Employee after December 31, 2004, or any other events affecting the amount of or the entitlement to benefits (other than an election with respect to the time or form of an available benefit), using the actuarial assumptions and methods that were used to calculate the benefit as of December 31, 2004.

2.12		Nongrandfathered Benefit

		“Nongrandfathered Benefit” means the total amount payable to an Employee under this Plan, minus the Employee’s Grandfathered Benefit.

2.13		Plan

		“Plan” means the Dole Food Company Supplemental Executive Retirement Plan, as contained herein and amended from time to time.

2.14		Plan 29

		“Plan 29” means the Consolidated Retirement Plan of Dole Food Company, Inc., as amended and restated effective as of the pertinent date for determining a Retiree’s (or Beneficiary’s) Benefit.

2.15		Plan 29 Transition Benefit

		“Plan 29 Transition Benefit” means the benefit defined in Section 4.3(b) that is payable under the terms of Section 4.3.

2.16		Plan Administrator

		“Plan Administrator” means the Retirement Plan Committee appointed by the Committee.

2.17		Retiree

		“Retiree” means any Employee who is entitled to receive benefits under the Plan.

2.18		Separation from Service

	(a)		“Separation from Service” means “separation from service” with the Company and its Commonly Controlled Entities, as defined in Code Section 409A and authoritative IRS guidance thereunder.

	(b)		In the case of a reduction in service, an Employee will be deemed to have a Separation from Service on the date on which the Employee and the Company reasonably anticipate that the level of services that the Employee will perform for the Company or any Commonly Controlled Entities (excluding services performed as a director) will be reduced indefinitely to a level that does not exceed 20 percent of the average level of bona fide services performed as an employee or an independent contractor over the immediately preceding 36-month period (or such other period as may apply under Treasury Regulations issued under Code Section 409A).

2.19		Trust

		“Trust” means any trust created pursuant to Section 7.2 to fund the payments of benefits under this Plan.

2.20		Trustee

		“Trustee” means, with respect to a Trust, the trustee of that Trust.

Article 3. Eligibility for Benefits

3.1		Eligibility for Excess Benefit

		Each Employee who participated in Plan 29 prior to the date Plan 29 was frozen and (except as provided in Section 8.2(h)) is fully vested in his or her retirement benefit under Plan 29 and whose retirement benefit under Plan 29 is reduced solely as a result of the Code Section 415 limits or the limit on compensation in Code Section 401(a)(17) shall be eligible for the Excess Benefit provided under Section 4.2.

3.2		Eligibility for Plan 29 Transition Benefit

		An Employee who satisfied all of the eligibility requirements under the 2002 Restatement for the Plan 29 Transition Benefit shall be eligible for the Plan 29 Transition Benefit provided under Section 4.3.

Article 4. Amount of Benefits

4.1

Overview of Retirement Benefits

	(a)		Subject to the other provisions of the Plan, a Retiree’s benefit under the Plan shall be equal to the sum of whichever of the benefits provided under Sections 4.2 and 4.3 are applicable, but reduced as provided in Section 4.4.

	(b)		A Retiree who satisfies both the conditions for a benefit under Section 4.2 and the conditions for a benefit under Section 4.3 may accrue the benefits provided under both of those sections, provided that there is no double payment of benefits provided under those sections, such as those benefits attributable to disregarding the limits of Code Section 415 and 401(a)(17).

4.2

Excess Benefit

	(a)		An Employee who is eligible under Section 3.1 shall accrue a benefit under this Plan equal to the Retiree’s Excess Benefit.

	(b)		A Retiree’s “Excess Benefit” shall be equal to the amount by which the Retiree’s Plan 29 normal retirement benefit (or late retirement benefit, if payment of the Retiree’s SERP benefit will start after the Plan 29 normal retirement date) is reduced as a result of the application of Code Section 415 or Code Section 401(a)(17). Excess Benefits shall be determined only with respect to the benefit accrued under Plan 29, as frozen effective December 31, 2001.

4.3

Plan 29 Transition Benefit

	(a)		An Employee who is eligible under Section 3.2 shall accrue a benefit equal to his or her Plan 29 Transition Benefit.

	(b)		A Retiree’s “Plan 29 Transition Benefit” shall be equal to the amount described in Section 4.4 of the 2002 Restatement. Plan 29 Transition Benefits shall be determined only with respect to the transition benefit accrued under Plan 29, as frozen effective December 31, 2006.

4.4		Assumption of Certain Liabilities by Castle & Cooke

		Notwithstanding anything else contained herein to the contrary, no benefit under any section of this Plan shall be paid to the extent that such benefit was required to have been assumed by Castle & Cooke, Inc. ( “Castle” ) pursuant to Section 3(a) of the Employee Benefits and Compensation Allocation Agreement in connection with the spin-off of Castle from the Corporation on December 28, 1995, irrespective of whether or not such benefit is ever actually paid by Castle.

Article 5. Payment of Benefits to Retiree

5.1		Grandfathered Benefits

		A Retiree’s Grandfathered Benefits shall be paid to the Retiree at the same time and in the same form as the Retiree’s retirement benefit under Plan 29. The amount payable to the Retiree (and any Beneficiary) in the applicable payment form under this Plan shall be determined using the same actuarial conversion factors that apply for calculation of the Retiree’s retirement benefit under Plan 29. A Retiree’s designation of a joint annuitant or beneficiary made under Plan 29 will also be applicable under this Plan.

5.2		Nongrandfathered Benefits

	(a)		A Retiree’s Nongrandfathered Benefits shall be paid to the Retiree in the form of a single lump sum payment during the calendar year immediately following the calendar year in which the Retiree has a Separation from Service. The lump sum amount payable to the Retiree under this Section shall be determined using the same actuarial conversion factors that would apply for the calculation of a lump sum payment under Plan 29 as of the payment date.

	(b)		If a Retiree is reemployed by the Company or a Commonly Controlled Entity following a Separation from Service that occurs on or after January 1, 2009, Nongrandfathered Benefits accrued by the Retiree prior to the initial Separation from Service shall be paid in accordance with Section 5.2(a), without regard to such reemployment. Nongrandfathered Benefits (if any) accrued by the Retiree during the period of reemployment shall be paid to the Retiree in the form of a single lump sum payment during the calendar year immediately following the calendar year in which the Retiree subsequently has a Separation from Service.

	(c)		If a Retiree had a Separation from Service prior to January 1, 2009, has not been reemployed by the Company or a Commonly Controlled Entity as of January 1, 2009, and has not yet commenced benefit payments under this Plan as of January 1, 2009, the Retiree’s Nongrandfathered Benefits shall be paid to the Retiree in the form of a single lump sum payment in 2009, calculated in the manner described in Section 5.2(a).

5.3		Special Distribution Following a Change in Taxation

		Notwithstanding the other provisions of the Plan, the Corporation may (but shall not be required to) distribute to an Employee, Retiree or his or her Beneficiary all Grandfathered Benefits due under the terms of the Plan in a single lump sum if the Company obtains an opinion from legal counsel that Grandfathered Benefits due under the Plan would be included (if the payment under this Section 5.3 was not made) in the Retiree’s or Beneficiary’s gross income, for federal income tax purposes, for the year in which the lump sum amount is distributed. The amount of the lump sum shall be determined using the actuarial assumptions that would apply for payment of a lump sum under Section 5.3.

Article 6. Death Benefits

6.1

Death Before Commencement of Benefits to Retiree

	(a)		No death benefit shall be payable under the Plan in the event of death of the Employee or Retiree before the dates benefits are scheduled to be paid to the Employee or Retiree under Article 5 except as provided in this Section 6.1.

	(b)		The portion of any death benefit payable to a Beneficiary that is attributable to the Employee’s Grandfathered Benefits will be paid starting at the same time

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