December 30, 2003
Xx. Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Employment Separation Agreement
Dear Xxxx:
Thank you for meeting with me to discuss your separation
from Maui Land & Pineapple Company, Inc. ("MLP"). Based on our
discussion, this letter sets forth the terms and conditions
regarding your separation from MLP. Upon review and execution by
you this letter will become a legally enforceable agreement
between you and MLP on the terms and conditions described below.
Since this Agreement will supersede and replace all other
agreements between you and MLP regarding your employment or
separation from employment with MLP, please first review it
carefully with your attorney.
1. Separation of Employment
Your separation from employment with MLP will be effective
as of the close of business on December 31, 2003. You will be
paid your regular salary and your unused vested and accumulated
vacation pay through December 31, 2003 at the time of your
separation. MLP will withhold from your final salary payment all
required payroll and other currently authorized withholdings and
deductions and from your final vested and accumulated vacation
payment only the applicable payroll taxes. After the effective
date of your separation MLP understands and agrees that you will
not be providing any employment services to MLP and you
understand and agree that you will not be provided or eligible
for any employee compensation or employee benefits from MLP
except as described in Paragraph 2 below.
2. Separation Benefits.
In consideration of the Additional Separation Benefits
described in Subparagraph 2b. below you will receive, in lieu of
all other compensation and employee benefits, the salary and
vacation payments described in Paragraph 1 above and the payments
and benefits described in this Paragraph 2.
a. Existing Employment Benefits.
From and after January 1, 2004 you will receive
when due the following employee benefits to which you have vested
under MLP's current employee benefit plans and policies, less
applicable payroll taxes, in accordance with the terms and
conditions of those benefit plans and any applicable Summary Plan
Descriptions, which will control in the event of any conflict
with this letter, as follows:
(1) As provided in Paragraph 1 above, your unused,
accumulated and prorate vacation pay benefit
through December 31, 2003 in the amount of
$38,507.69, representing forty (40) days of such
vacation pay benefits;
(2) Your Employee Stock Ownership Plan benefit;
(3) The terminated Unfunded Executive Deferred
Compensation Plan benefit totaling $98,335.00
payable in equal monthly installments over a
maximum of ten years. Payments to commence during
the month of June, 2007 and continuing each month
thereafter in accordance with MLP's normal payroll
payment schedule;
(4) The Unfunded Executive Severance Plan benefit in
the amount of $375,450 paid in equal installments
according to MLP's regular payroll schedule
beginning with the first pay cycle following
December 31, 2003 and ending with the close of the
pay cycle immediately preceding June 1, 2007;
(5) Medical, dental, vision and prescription drug
benefits coverage from January 1, 2004 through
June 30, 2005 ( the "Covered Period") under the
MLP health care plan (hereafter referred to as the
MLP Health Care Plan) if C.O.B.R.A. continuation
coverage is elected. The premium cost of such
coverage shall be paid for by MLP and you in
monthly amounts with the same premium cost sharing
split applied each month to active salaried
employees during the Covered Period;
(6) Your voluntary deferrals into the Maui Land &
Pineapple Company, Inc. Retirement Savings Plan
(401k plan) and into the Executive Deferred
Compensation Plan, and any award for a cycle in
which you are a named participant in the Long Term
Incentive Plan in accordance with the terms of the
plan documents.
b. Additional Separation Benefits.
In addition to the employment benefits described
in Paragraph 2.a. above, and in consideration of your release,
indemnification and promises described below, MLP will provide
the following Additional Separation Benefits:
(1) Defined Benefit Plan and SERP Target Benefit
Enhancements:
MLP will increase the age and or service credit
for your Defined Benefit Plan Single Life Annuity and your
Unfunded SERP Target Benefit Single Life Annuity so that
your combined single life annuity annual benefit under your
Defined Benefit Plan Single Life Annuity and your SERP
Target Benefit Single Life Annuity is increased to a total
amount of $82,162.00 as of June 1, 2007. If you select a
joint and survivor benefit, the foregoing benefit amount
will be adjusted in accordance with the terms of the Plans.
The amount of the benefit in excess of the amount paid from
the Defined Benefit Plan will be paid from MLP's general
assets under the terms of the SERP Plan.
(2) Health Care Benefit Enhancements
Your coverage under the MLP Health Care Plan for
medical, vision and prescription drug (but not dental)
benefits or if not available an equivalent alternative
plan obtained for you with the same premium cost split
described in Subparagraph 2a.(5) above shall be
extended for 23 months through May 31, 2007 in
accordance with the same terms of as described in
Subparagraph 2.a(5);
(3) Independent Consulting Services Agreement
A three (3) year independent consulting services
agreement as Senior Advisor to Maui Agricultural Partners, a
MLP business unit commencing January 1, 2004 in accordance
with the terms and conditions of and in the form of the
Agreement attached hereto as Exhibit 1 and incorporated here
by reference.
3. MLP Property.
Any MLP documents, information and property should be
returned to MLP's Vice President, Human Resources on or before
December 31, 2003, or as soon thereafter as is possible,
including and without limitation confidential business or
customer reports, maps, files, memoranda, records, phones,
software, credit cards, door and automobile and file keys,
computers and computer access codes, disks and instruction
manuals and vehicles.
4. Confidentiality, Cooperation, and Trade Secrets.
In order to assure a cooperative and harmonious separation
and recognizing the importance of your and MLP's reputations and
its business operations, we are further agreeing as follows:
a. Neither you nor MLP will make or encourage any
disparaging comments about each other or MLP's owners, directors,
officers, employees or business operations. You have also agreed
to MLP's public statement of your separation from MLP.
b. You and MLP also agree to keep confidential the
terms and amount of this Agreement to the extent not disclosed
publicly by MLP either directly or by a filing of such
information with a government agency, provided that you may
discuss this Agreement with your attorney(s), accountant(s),
financial advisor(s) and/or immediate family once they have also
agreed to keep the fact and contents of this Agreement
confidential and not disclose such information to others. MLP
may likewise disclose the terms and amount of this Agreement to
(i) its directors, officers, employees, attorneys, auditors and
accountants once they have agreed to keep the fact and contents
of this Agreement confidential and not to disclose such
information to others, and (ii) to government agencies or other
private entities as may be required or prudent for its business
operations.
c. You and MLP also agree that any and all
information obtained by you or disclosed to you during your
employment with MLP which is not already known to the general
public, including but not limited to MLP's confidential financial
and business information, strategic plans, projects, customers,
programs, methods of operation, processes, practices, policies
and procedures, are strictly confidential and proprietary to
trade secrets of MLP and shall not be disclosed or discussed, or
revealed by you to any person, entities or organizations at any
time unless compelled by law.
d. You and MLP also agree that if you are needed to
assist MLP to prepare for or to testify on behalf of MLP in any
litigation after the effective date of your separation, that you
will do so provided that if such preparation or testimony
requires you to travel by airplane or requires more than two days
of your time at any one time, MLP will reimburse you for any
required air travel based on an advanced purchase coach airfare
and any hotel accommodations and meals while you are away from
home.
e. You understand and acknowledge that the provisions
in this Paragraph 4 are a material inducement for MLP to enter
into this Agreement and to provide the additional separation
benefits described in Subparagraph 2.b. above. Therefore you and
MLP agree that your breach of any of your agreements in this
Paragraph 4 would be a material breach which will relieve MLP,
but not you, of any further obligations under this Agreement and
in addition to any other remedies available to MLP at law or
equity shall entitle MLP to recover any of the Additional
Separation Benefits (or if not available, the cost to MLP of said
benefits) already provided to you.
5. Mutual Release, Indemnification and Promise Not To Xxx.
a. Release. As a material inducement to you and MLP
to enter into this Agreement and to provide you the Additional
Separation Benefits describe in Paragraph 2.b. above and to
provide MLP with the promises described in Paragraph 4 above, you
and MLP hereby irrevocably and unconditionally release, acquit,
and forever discharge each other from any and all claims,
liabilities, and expenses (including attorneys' fees and costs
actually incurred) of any nature whatsoever, statutory or common
law, known or unknown, suspected or unsuspected against each
other based on any act of omission from the beginning of time
through the effective date of your separation from employment
with MLP including, but not limited to any constitutional,
statutory or common law claims arising out of or under any (i)
express or implied contract of employment; (ii) federal, state or
common law prohibition of age or other forms of employment
discrimination, retaliation, wrongful discharge, or public
policy; (iii) your recruitment for, employment with, or
separation from employment with MLP and, (iv) any employee
benefit plan or law applicable to employee benefit
plans(collectively called "Released Claims").
The foregoing release shall not apply to any claim by you to
any vested employee benefit described in Paragraph 2.a. above or
any claim by you or MLP to enforce your or MLP's express
obligations under this Agreement or for benefits under any
federal or Hawaii law that cannot be waived or discharged by
agreement. Moreover, except to the extent permitted by law,
nothing in this Agreement shall interfere with the enforcement
authority of any federal or state agency or your right to
cooperate with any investigation by such an agency. You are,
however, waiving your right to receive or recover any payment or
employee benefit not expressly identified in Paragraph 2 above
and any monetary award based on any such agency action whether or
not it is initiated by you.
b. Indemnification.
As a further material inducement to you and MLP to
enter into this Agreement and to pay to you the Additional
Separation Benefits described in Subparagraph 2.b. above and to
provide MLP with the promises described in Paragraph 4 above, you
and MLP hereby agree to indemnify and hold each other harmless
from and against any and all losses, costs, damages, or expenses,
including, without limitation, attorneys' fees incurred by you or
MLP arising out of any breach of the agreement by you and MLP not
to initiate or file any claim or lawsuit against each other over
any Claims released in Subparagraph 5.a. above. You and MLP
expressly understand and acknowledge that this Agreement may be
pleaded as a defense to and may be used as the basis for an
attempted injunction against any action, suit, administrative or
other proceeding which may be instituted, prosecuted or attempted
as a result of an alleged breach of this agreement by you or MLP.
c. Promise Not to Xxx.
You and MLP also agree not to file or initiate any
claim or lawsuit against each other with any agency or court
based on any Claims covered by the release set forth in
Subparagraph 5.a. other than to enforce this Agreement or to
obtain a benefit that by law cannot be waived. If either you or
MLP file any administrative claim or lawsuit(s) against the other
based on any Claims waived or released by this Agreement, then in
addition to all other remedies provided by law or equity, the
filing or initiating party agrees to pay the defending party for
all costs, including reasonable attorneys fees, incurred by the
party defending against the waived or released Claims. If MLP is
the defending party and you ultimately prevail, MLP may credit
any amounts paid under this Agreement against any recovery
obtained by you.
6. Review and Revocation Rights
Because this Agreement includes a waiver and release of your
right to file a claim for age discrimination under the Federal
Age Discrimination In Employment Act ("ADEA"), you understand and
acknowledge that you have up to twenty-one (21) days to decide
whether to sign this Agreement and that you should consult with
an attorney. In addition, you understand that within seven (7)
days after signing this Agreement, you may revoke in writing your
waiver and release of any claim under the ADEA, but not any other
Released Claims you have waived or released by either delivering
a written notice of revocation to Ms. J. Xxxxx Xxxxxx, Vice
President, Human Resources at 000 Xxxx Xxxxxx, Xxxxxxx Xxxxxx
00000, or by mailing the notice to such individual at X.X. Xxx
000, Xxxxxxx, Xxxxxx 00000 on or before the end of the seven (7)
day revocation period provided. If the written notice is given by
mail it will be deemed timely if the mailing is properly
addressed, is post marked no later than the seventh day of the
revocation period and is sent by United States Mail, certified
mail, return receipt requested, to Ms. J. Xxxxx Xxxxxx at the
address shown above. If the seventh day falls on a Saturday,
Sunday or holiday, the next regular business day will be
considered the seventh day. If you elect in a timely manner to
revoke the release of any federal ADEA claim, your release will
still remain in effect for all other Released Claims but the
Additional Separation Benefits described in paragraph 2.b above
shall be reduced by twenty-five percent (25%) of their value.
You and MLP understand and agree that unless otherwise
agreed in another writing signed by and MLP, the terms of this
agreement and any payments or benefits provided for hereunder
will not be effective or due until the later of the separation of
your employment with MLP or the expiration of the seven (7) day
revocation period described above. If you execute and deliver
this Agreement but then timely revoke your release of any federal
age discrimination claim, this Agreement and release of all other
Released Claims will remain in full force and effect as modified
above.
7. Arbitration.
Because of the delay, expense and publicity which results
from the use of the State and Federal court systems, you and MLP
agree to submit to final and binding arbitration any claims and
disputes arising out of or related to the interpretation,
application and/or enforcement of this Agreement or between you
and MLP, including but not limited to any constitutional,
statutory, or common law claims rather than to use such court
system. In any such arbitration, the then existing American
Arbitration Association ("AAA") rules for resolving employment
disputes shall govern the arbitration, subject to the Federal
Arbitration Act, if applicable, or if not applicable then the
Hawaii Uniform Arbitration Act, H.R.S. Chapter 658A then in
effect. To the extent such AAA rules include any provisions that
would render this agreement to arbitrate unenforceable, they
shall be modified to conform to the law or if they cannot be
modified they shall be deemed null and void.
8. Voluntary Mutual Agreement
You understand your right to discuss and have discussed all
aspects of this Agreement with your attorney and represent to MLP
that you have carefully read, fully understand all of the
provisions of this Agreement and based on the advice of your
attorney voluntarily enter into this Agreement. The parties each
represent and acknowledge that they are entering into this
Agreement to effect an amicable and positive separation of your
employment with MLP and not as an admission that either party has
violated any law or other legal obligations such as those
described in Paragraph 5 above. This Agreement represents an
amicable compromise and settlement of all the parties' rights,
claims and benefits.
9. Entire Agreement
You represent and acknowledge that in executing this
Agreement you do not rely, and have not relied, upon any
representation or statement by MLP or any representative of MLP
not set forth in this Agreement regarding the subjects of this
Agreement or your recruitment for, employment with, or separation
from employment with MLP.
This Agreement sets forth the entire agreement between you
and MLP with regard to the conditions of your separation from
employment with MLP and supersedes any prior agreement between
you and MLP. This Agreement shall be binding upon and inure to
the benefit of the parties, their successors and assigns. You
agree to keep MLP informed of your address to ensure your receipt
of all communications and required government forms, such as W-4s
and so forth.
PLEASE READ CAREFULLY. THIS EMPLOYMENT SEPARATION AGREEMENT
INCLUDES A RELEASE OF ALL CLAIMS.
MAUI LAND & PINEAPPLE
COMPANY, INC.
/S/XXXXXXX X. XXXXXX By:/S/XXXXX XXXX
XXXXXXX X. XXXXXX XXXXX XXXX
Its President and
Chief Executive Officer
Date: 12/30/03 Date: 1/05/04
