(Date)
Xx. Xxxx Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxx, Xxxx, 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, which we have agreed to
subject to approval by MLP's Board of Directors. Upon review and
execution by you and approval by MLP's Board of Directors, this
letter will become a legally enforceable agreement between you
and MLP on the terms and conditions described below, so please
first review it carefully with your attorney.
1. Separation of Employment
To be consistent with MLP's payroll periods, your separation
from employment with MLP will be effective as of 5:00 p.m., on
June 8, 2003 provided that we agree your last day of work at MLP
shall be May 27, 2003. You will be paid your regular salary and
your unused vested and accumulated vacation pay through June 8,
2003 on or before June 8, 2003. MLP will withhold from your
regular salary payments all required payroll and other currently
authorized withholdings and deductions and from your vested and
accumulated vacation payments 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 compensation or employee benefits from MLP
except as described in Paragraph 2 below.
2. Separation Benefits.
a. Existing Employment Benefits.
You will continue to receive all existing 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, (except for Sub-
paragraphs 2.a.(3) and (6)), as follows:
(1) Vested and accumulated vacation pay benefit
through June 8, 2003 in the amount of $49,038:
(2) Employee Stock Ownership Plan Benefit;
(3) Terminated Unfunded Executive Deferred
Compensation Plan benefit totaling $347,954
payable in equal monthly installments over a
maximum of ten years. Payments to commence
immediately following your separation from
employment in accordance with MLP's normal payroll
payment schedule;
(4) 2003 Unfunded Incentive Plan Benefit with a pro-
rata share of 42% of any award, should a plan be
in place and business results trigger payouts. Any
award payment would be calculated and paid in
accordance with the terms of the Plan documents;
(5) Unfunded Long term Incentive Plan awards payable
as follows:
2001 Cycle: Pro-rata share of 81% of any award
payable in 2004
2002 Cycle: Pro-rata share of 47% of any award
payable in 2005
2003 Cycle: Pro-rata share of 14% of any award,
should a plan be in place, payable in
2006
Any award under the Plan would be paid following
the end of the three year performance cycle in
accordance with the terms of the plan documents
(6) Unfunded Executive Severance Plan benefit in the
amount of $566,667 payable as a lump sum upon
separation from employment;
(7) Medical Premium payments payable in equal monthly
amounts for sixteen (16) months from June 1, 2003
through September 30, 2004 in accordance with the
terms and conditions applicable to salaried
employees of MLP;
(8) Dental Premium payments payable in equal monthly
amounts for sixteen (16) months from June 1, 2003
through September 30, 2004 in accordance with the
terms and conditions applicable to salaried
employees of MLP;
(9) Qualified Group Life Insurance Plan with an
insurance benefit of $350,000 subject to reduction
and payment in accordance with the terms and
conditions of the Plan;
(10) Other Employees Plans. Any and all other MLP
employee benefit plans and policies including but
not limited to MLP golf privileges shall apply to
you on the same terms and conditions that such
plans and privileges are provided to salaried
employees generally, as amended from time to time.
b. Additional Separation Benefits.
In addition to the vested 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 $152,094.24. 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
(a) The monthly Medical Premium Payments made by
MLP described in Paragraph 2.a.(7) above shall be
extended for two (2) months through November 30, 2004
on the same terms and conditions applicable to salaried
employees of MLP.
(b) The monthly Dental Premium Payments made by
MLP described in Paragraph 2 a.(8) above shall be
extended by two (2) months through November 30, 2004 on
the same terms and conditions applicable to salaried
employees of MLP.
(c) Retiree Medical Benefits
You will be credited with four (4) additional
years of service to qualify for retiree medical
benefits based on twenty (20) years of service in order
to provide you and your spouse with lifetime medical,
drug and vision benefits on the following terms and
conditions:
(i) MLP agrees to provide you and your spouse with
pre-Medicare medical, drug and vision plan benefits as
available under MLP's medical plans and to pay seventy-
five (75%) of the premium cost of MLP's base medical
plan provided you timely pay the remaining premium cost
of such medical plan coverage as you elect; and,
(ii) At such time as you and your spouse each
first become eligible for a Medicare Supplement Plan
("MSP"), then the Pre-Medicare plan coverage will cease
and instead MLP will pay seventy-five percent (75%) of
the premium cost of its base MSP coverage for you and
your spouse for the duration of your lifetime provided
that you and your spouse cooperate with the application
for MSP coverage and timely pay the balance of the
premium cost of the MSP coverage you elect.
(iii) During any time after your separation from
MLP you or your spouse become eligible for comparable
medical, drug and vision benefit coverage at no greater
cost to you from another employing entity MLP will be
relieved from its obligations under this Sub-Paragraph
2.b.(2)(c) during the period that you or your spouse
are receiving such benefits coverage from another
employing entity.
(iv) If after you or your spouse becomes eligible
for a MSP, MLP's base MSP no longer exists, MLP agrees
to pay seventy-five percent (75%) of the premium cost
for a Medicare supplement plan with medical, drug and
vision benefits comparable to MLP's base MSP on the
same terms as are stated in Subparagraph
2.b.(2)(c)(ii), should you elect such coverage.
(3) Unfunded Executive Severance Plan
You will also be credited with an additional four
(4) months of severance benefits for an additional $141,667
payable in a lump sum at termination.
You and MLP agree that MLP's breach of any of MLP's
agreements in this Paragraph 2 would be a material breach which
will relieve you, but not MLP, of any further obligations under
this Agreement and to such remedies as you may be entitled, if
any, at law or equity.
3. MLP Property.
Any MLP documents, information and property should be
returned to MLP on or before June 6, 2003, 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
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 prior 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 agree that you will comply with HRS
Chapter 482B and the common law requirements described in
Restatement (Second) Of The Law - Agency, Section 396 which will
continue in effect after your separation. 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 Paragraph 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 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 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 (collectively called "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 recover 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 Paragraph 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 Paragraph 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 Paragraph
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
Claims you have waived or released by either delivering the
written notice of revocation to Xx. Xxxxx Xxxxxx at 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx, 00000, or by mailing the
notice to the foregoing address on or before the end of the
seven (7) day revocation period provided the mailing 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 Xx. 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, the release will still remain in effect for all
other 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 by the parties, the terms of this
agreement will not be effective 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 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 promise or
agreement. 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/ XXXX X. XXXXXXX By: /S/ XXXXX XXXXXX
XXXX XXXXXXX XXXXX XXXXXX
Its Director
Date: 4/15/03 Date: 4/20/03
