AMENDED AND RESTATED
MAUI LAND & PINEAPPLE COMPANY, INC.
EXECUTIVE CHANGE-IN-CONTROL SEVERANCE AGREEMENT
(President/CEO and Executive Vice Presidents)
Xxxxxx X. Xxxxx, Executive Vice President/Resort
ARTICLE I. ESTABLISHMENT AND PURPOSE.
1.1 Effective Date. This Amended and Restated Executive
Change-in-Control Severance Agreement (the "Agreement") is made
and entered into and is effective as of the 16th day of March,
1999 ("Effective Date"), by and between Maui Land & Pineapple
Company, Inc. ("ML&P"), a Hawaii corporation, and Xxxxxx X.
Xxxxx ("Executive"). This Agreement shall supersede and
replace any prior severance agreement entered into between ML&P
and the Executive.
1.2 Term of the Agreement.
a. The Agreement shall commence as of the Effective
Date written above, and shall continue until terminated in
accordance with this paragraph 1.2. This Agreement may be
terminated by the Board of Directors of ML&P (the "Board")
upon one hundred eighty (180) days advance written notice
to the Executive; provided, however, that the Board may
not terminate this Agreement (i) after the occurrence of a
Change in Control or (ii) during the respective periods
set forth in Section 1.2.c or 1.2.d below.
b. In the event that a Change in Control, as
defined in Section 2.1 herein, occurs during the term of
this Agreement, this Agreement shall remain irrevocably in
effect for the greater of thirty-six (36) months from the
date of such Change in Control, or until all benefits have
been paid to the Executive hereunder.
c. In the event that the Board has knowledge that a
third party has taken steps reasonably calculated to
effect a Change in Control, including, but not limited to
the commencement of a tender offer for the voting stock of
ML&P, or the circulation of a proxy to ML&P's
shareholders, then the Board shall not be permitted
thereafter to exercise the termination right provided by
Section 1.2.a unless and until the Board, in good faith,
has determined that such third party has fully abandoned
or terminated its effort to effect a Change in Control.
d. In the event that the Board approves in
principle one or more transactions the implementation of
which would result in a Change in Control, then the Board
shall not be permitted thereafter to exercise the
termination right provided by Section 1.2.a unless and
until the Board, in good faith, has determined to fully
abandon and terminate all efforts by ML&P or its
Subsidiaries to implement such transactions.
1.3 Purpose of the Agreement. The purpose of this Agreement
is to advance the interests of ML&P and its Subsidiaries by
assuring that ML&P and its Subsidiaries shall have the
continued employment and dedication of the Executive and the
availability of his advice and counsel in the event that an
acquisition or Change in Control occurs. This Agreement shall
also assure the Executive of equitable treatment during the
period of uncertainty that surrounds an acquisition or Change
in Control, and allow the Executive to act at all times in the
best interest of ML&P and its shareholders.
1.4 Contractual Right to Benefits. This Agreement establishes
and vests in the Executive a contractual right to the benefits
which he or she is entitled hereunder, enforceable by the
Executive against ML&P or any Successor Employer that assumes
this Agreement. However, nothing herein shall require ML&P or
any such Successor Employer to segregate, earmark, or otherwise
set aside any funds or other assets to provide for any payments
hereunder.
1.5 Legal Status. This Agreement shall be considered an
unfunded agreement to provide welfare benefits to a select
group of management or highly compensated employees and is
therefore intended to be a "top-hat" plan exempt from the
requirements of the provisions of Parts 2, 3 and 4 of Title I
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
ARTICLE II. DEFINITIONS AND CONSTRUCTION.
2.1 Definitions. Whenever used in this Agreement, the
following terms shall have the meanings set forth below and,
when the meaning is intended, the initial letter of the word is
capitalized.
a. "Base Salary" means Executive's annualized
salary, which includes all regular basic wages before
reduction for any amounts deferred on a tax-qualified or
nonqualified basis, payable in cash to Executive for
services rendered during the Year. Base Salary shall
exclude bonuses, incentive compensation, special fees or
awards, commissions, allowances, or any other form of
premium or incentive pay, or amounts properly designated
by Employer as payment toward or reimbursement of
expenses.
b. "Beneficial Owner" shall have the meaning
ascribed to such terms in Rule 13d-3 of the General Rules
and Regulations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
c. "Beneficiary" with respect to Executive means
the persons or entities designated or deemed designated by
the Executive pursuant to Section 8.2 herein.
d. "Board" means the Board of Directors of ML&P.
e. "Change in Control" means one or more of the
following occurrences with respect to ML&P or a
Subsidiary:
(1) Any Person, including a "group" as defined in Section 13
(d)(3) of the Exchange Act, who is not at the date of this
Agreement the beneficial owner of shares of the given entity
having 25% or more of the total number of votes that may be
cast for the election of Directors of such entity, becomes the
beneficial owner (including acquisition of beneficial ownership
resulting from formation of a "group") of shares of such entity
having 25% or more of such voting power;
(2) Any Person, including a "group" as defined in
Section 13(d)(3) of the Exchange Act, who is not at the date of
this Agreement the beneficial owner of shares of a given entity
having 50% or more of the total number of votes that may be
cast for the election of Directors of such entity, becomes the
beneficial owner (including acquisition of beneficial ownership
resulting from formation of a "group") of shares of such entity
having 50% or more of such voting power;
(3) As the result of, or in connection with any cash tender or
exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the
foregoing transactions, the Persons who were Directors of the
given entity before the transaction shall cease to constitute a
majority of the Board of Directors of such entity or any
successor to such entity;
(4) A merger or consolidation of the given entity in which the
surviving entity is neither ML&P nor a direct or indirect
wholly owned subsidiary of ML&P; or
(5) The sale, transfer, or other disposition of all or
substantially all of the assets of the given entity (and for
this purpose, the term "substantially all" shall mean assets
having a fair market value, whether or not realized in the
transaction, that is 50% or more of the aggregate fair market
value of all assets of such entity); and, in addition, in the
case of a Subsidiary, the sale, transfer or other disposition
(other than to an entity that is before and following such
transaction a direct or indirect wholly owned subsidiary of
M&LP) of securities that immediately prior to such transaction
constituted 50% or more of such Subsidiary's outstanding voting
securities.
(6) A spin-off, split-off, split-up or similar divisive
reorganization affecting ML&P and/or its Subsidiaries.
f. "Committee" means the Compensation Committee of
the Board of Directors of ML&P or any other committee
appointed by the Board to administer this Agreement;
provided that following a Change in Control "Committee"
shall mean the Persons who constituted the Committee
immediately prior to the Change in Control.
g. "Disability" means a physical or mental
condition which renders Executive unable to discharge his
normal work responsibility with Employer and which, in the
opinion of a licensed physician selected by the Executive,
subject to reasonable approval by the Committee based upon
sufficient medical evidence, can be reasonably expected to
continue for a period of at least one full calendar year.
If Executive fails to select a physician within ten (10)
business days of a written request made by Employer, then
Employer may select a physician for purposes of this
paragraph.
h. "Effective Date" has the meaning set forth in
Section 1.1.
i. "Effective Date of Termination" means the
date on which a Qualifying Termination occurs.
j. "Employer" means ML&P, or any Successor
Employer that has assumed this Agreement pursuant to
Section 8.1.a.
k. "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, or any
successor act thereto.
l. "Expiration Date" means the date the
Agreement terminates, as provided in Section 1.2 herein.
m. "Just Cause" means the basis for a termination
of Executive's employment for which no Severance Benefits
are payable hereunder, as provided in Article IV herein.
n. "ML&P" means Maui Land & Pineapple Company,
Inc., a Hawaii corporation.
o. "Normal Retirement Date" shall mean the
date on which the Executive attains age 65.
p. "Person" shall have the meaning ascribed to such
terms in Section 3(a)(9) of the Exchange Act and used in
Sections 13(d) and 14(d) thereof, including a "group" as
defined and used in Section 13(d) and Regulation 13D
thereunder; provided that for purposes of Section 2.1(e)
"Person" shall not include any entity that is a direct or
indirect wholly owned subsidiary of ML&P.
q. "Qualifying Termination" means a termination of
the Executive's employment as described in
Section 3.2 herein.
r. "Severance Benefit" means the payment of
severance compensation as provided in Article III herein.
s. "Subsidiaries" means Maui Pineapple Company,
Ltd. and Kapalua Land Company, Ltd.
t. "Successor Employer" means an entity that
becomes Executive's employer in connection with a Change
in Control and which following such Change in Control does
not control, and is not controlled by or under common
control with, ML&P.
u. "Year" means the consecutive 12-month period
beginning each January 1 and ending December 31.
2.2 Gender and Number. Except where otherwise indicated
by the context, any masculine term used herein also shall
include the feminine, the plural shall include the singular,
and the singular shall include the plural.
2.3 Severability. In the event any provision of the
Agreement shall be held illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining parts
of the Agreement, and the Agreement shall be construed and
enforced as if the illegal or invalid provision had not been
included.
2.4 Modification. No express provisions of this
Agreement may be modified, waived, or discharged unless such
modification, waiver, or discharge is agreed to by the
Executive in writing and approved by Employer's board
of directors.
2.5 Applicable Law. To the extent not preempted by the
laws of the United States, the laws of the State of Hawaii
shall be the controlling law in all matters relating to the
Agreement without regard to the conflicts of law principles in
such laws.
ARTICLE III. SEVERANCE BENEFITS.
3.1 Right to Severance Benefits. The Executive shall be
entitled to receive Severance Benefits as described in Section
3.4 herein, if there has been a Change in Control as defined in
Section 2.1(e) herein, and if, within thirty-six (36) months
thereafter, the Executive's employment shall end for any reason
specified in Section 3.2 herein as being a Qualifying
Termination. The Executive shall not be entitled to receive
Severance Benefits if the Executive's employment is
involuntarily terminated for Just Cause, as provided under
Article IV herein, or if the Executive's employment terminates
due to death or Disability.
3.2 Qualifying Termination. The occurrence of any one or
more of the following events within thirty-six (36) calendar
months after a Change in Control shall entitle the Executive to
the payment of Severance Benefits, as provided under Section
3.4 herein:
a. Involuntary termination of the Executive's
employment without Just Cause (as defined in Article IV
herein) (other than a merely technical termination arising
from a good faith reassignment in connection with a Change
in Control of officers and employees of ML&P and/or its
Subsidiaries and following which Executive remains an
employee of (i) ML&P or a Subsidiary that continues
thereafter to be wholly owned by ML&P or (ii) a Successor
Employer that has assumed ML&P's obligations under this
Agreement in accordance with Section 8.1.a); or
b. The Executive's voluntary employment termination
for Good Reason (as defined by Section 3.3 herein).
3.3 Definition of Good Reason. "Good Reason" means,
without the Executive's express written consent, the occurrence
after a Change in Control of any one or more of the following:
a. The assignment of the Executive to duties
materially inconsistent with the Executive's authorities,
duties, responsibilities, and status (including offices,
titles and reporting requirements) as an executive and/or
officer of Employer, or a material reduction of the
Executive's authorities, duties, or responsibilities from
those in effect as of ninety (90) days prior to the Change
in Control, other than an act that is remedied promptly
after Employer's receipt of notice thereof given by the
Executive (provided, however, that "Good Reason" shall not
include the events described in the preceding portions of
this paragraph (a) if the changes described therein have
been approved by a majority of the Board of ML&P and also
by a number of such directors who comprised at least a
majority of the Board of ML&P 90 days prior to the Change
In Control);
b. Employer requiring the Executive to be based at
a location in excess of seventy-five (75) miles from the
location of the Executive's principal job location or
office immediately prior to the Change in Control, except
for required travel on company business to an extent
substantially consistent with the Executive's then present
business travel obligations;
c. A more than ten percent (10%) reduction of the
Executive's annual rate of Base Salary in effect as of
ninety (90) days prior to the Change in Control;
d. The failure to continue in effect any of ML&P's
or its Subsidiaries' annual incentive compensation plans,
or employee benefit or retirement plans, policies,
practices, or similar compensatory arrangements in which
the Executive participated as of the 180th day preceding
the Change in Control (unless such failure to continue the
plan, policy, practice or arrangement pertains generally
to all plan participants) or the failure to continue the
Executive's participation therein on substantially the
same basis, both in terms of the amount of benefits
provided and the level of the Executive's participation
relative to other participants; provided, however, that
this Section 3.3.d shall not apply in the case of a Change
in Control described in Section 2.1.e (6) if:
(a) Executive's employer thereafter is ML&P or a wholly
owned Subsidiary thereof, or a Successor Employer that has
in accordance with Section 8.1 expressly assumed this
Agreement; (b) a failure to continue the plan, policy,
practice or arrangement or Executive's participation
therein pertains generally to all participants employed by
such employer; and (c) the aggregate annualized value to
Executive of benefits provided under all of such
employer's incentive compensation plans, other employee
benefit or retirement plans, policies, practices, or
similar compensatory arrangements (excluding any costs
incurred in connection with this Agreement) is at least
90% of the value to Executive of benefits so provided by
ML&P and its Subsidiaries for the last Year ended prior to
the Change in Control.
e. The failure of ML&P to obtain an agreement from
any Successor Employer (as contemplated by Article VIII)
to assume this Agreement and to perform ML&P's obligations
to Executive hereunder.
f. A material breach of obligations to Executive
under this Agreement by ML&P, or by a Successor Employer
that has assumed this Agreement, if such breach has not
been cured to the reasonable satisfaction of Executive
within thirty (30) days following delivery of written
notice thereof by Executive to the breaching party.
3.4 Description of Severance Benefits. In the event that
Executive becomes entitled to receive Severance Benefits, as
provided in Section 3.1 herein, ML&P shall pay to the Executive
and provide him with the following:
a. An amount equal to 2.99 times the Executive's
annual rate of Base Salary in effect upon the Effective
Date of Termination (or, if greater, 2.99 times the
Executive's annual rate of Base Salary in effect ninety
(90) days prior to the Change in Control); and
b. A payout under the ML&P Annual Incentive Plan,
or any similar plan Employer maintains, or is obligated by
Section 3.3.d to provide, in accordance with the terms of
such plan; and
c. A continuation of all welfare benefits at normal
employee cost including medical and dental insurance, long-
term disability, group term life insurance, and accidental
death & dismemberment insurance for three (3) full years
from the Effective Date of Termination or until the
Executive reaches his Normal Retirement Date, whichever
occurs earlier. In the event that participation in any
one or more of the welfare benefits is not possible under
the terms of the governing welfare benefit provisions or
due to the modification or elimination of the welfare
benefits, Employer shall provide substantially identical
welfare benefits at the normal employee cost of the
affected welfare benefits. However, these benefits shall
be discontinued prior to the end of the three (3) years in
the event the Executive receives substantially similar
benefits from a subsequent employer, as determined by the
Committee. The right of the Executive and his spouse and
other dependents to continued group health coverage under
Section 4980B of the Internal Revenue Code of 1986, as
amended ("Code"), shall commence at the end of the
applicable Severance Benefits period. Unless otherwise
provided under this Agreement, the applicable Severance
Benefits period shall be treated as if it were a period of
employment with ML&P or its Subsidiaries (or, if Executive
so elects, with any Successor Employer) for purposes of
determining rights and benefits under any retirement plan
or other plan or program and shall be treated as a period
of covered employment under such plan or other plan or
program if the Executive was in covered employment
immediately prior to the Change in Control, provided that,
if such treatment is not possible under the terms of such
plan or other plan or program, Employer shall directly
provide substantially identical benefits attributable to
the crediting of the Severance Benefits period.
3.5 Reduction of Severance Benefits. In the event there
are fewer than thirty-six (36) whole or partial months
remaining from the Executive's Effective Date of Termination
until the Executive's Normal Retirement Date, then the amounts
provided for under Section 3.4.a above shall be reduced by a
fraction, the numerator of which shall be the number of whole
or partial months remaining until the Executive's Normal
Retirement Date, and the denominator of which shall be
thirty-six (36).
3.6 Special Retirement Benefits. The Executive shall
receive special retirement benefits as provided below, so that
the total retirement benefits that the Executive receives will
equal the retirement benefits that the Executive would have
received under the Maui Land & Pineapple Company, Inc. Pension
Plan for Non-Bargaining Unit Employees ("Retirement Plan"),
Supplemental Executive Retirement Plan, and Executive
Supplemental Insurance Plan/Executive Deferred Compensation
Plan (collectively, "Plans"), under the terms thereof that
existed ninety (90) days prior to the Change in Control, had
the Executive continued in the employ of ML&P and its
Subsidiaries for three (3) years following the Executive's
Effective Date of Termination (or until his Normal Retirement
Date, whichever is earlier) but without regard to any ancillary
benefits. The amount of special retirement benefits payable
hereunder to the Executive or his beneficiaries shall equal the
excess of the amount specified in (a) over the amount specified
in (b) below.
a. The total retirement benefits on an actuarial
equivalent single-life basis would be paid to the
Executive if the three (3) years (or the period to his
Normal Retirement Date, if less) following the Executive's
Effective Date of Termination are added to his credited
service under the Plans.
b. The total retirement benefits actually paid on
an actuarial equivalent single-life basis to the
Executive.
Such special retirement benefits shall be paid at the
same time and in the same form (e.g., actuarial equivalent
single-life or contingent annuitant basis) as was required with
respect to the Executive's retirement benefits under the Plans.
The special retirement benefits shall be paid by the Plans or,
if the terms of such Plans do not provide for such benefits,
the special retirement benefits shall be paid directly by
Employer. The actuarial equivalent of special retirement
benefits shall be determined in accordance with the factors
provided under the Retirement Plan.
3.7 Outplacement Services. In the event that the
Executive becomes entitled to receive Severance Benefits as
provided in Section 3.1 herein, the Executive shall be
entitled, at the expense of Employer, to receive standard
outplacement services as selected by the Executive, for a
period of up to thirty-six (36) months from the Effective Date
of Termination. However, such services shall not exceed a
maximum annual benefit of ten percent (10%) of the Executive's
annual rate of Base Salary in effect ninety (90) days prior to
the Change in Control.
3.8 Incentive Compensation. In the event that the
Executive becomes entitled to receive Severance Benefits as
provided in Section 3.1 herein, any deferred awards previously
granted to the Executive under ML&P's or its Subsidiaries' or
any Successor Employer's incentive compensation plans and not
previously paid to the Executive shall immediately vest on the
date of the Executive's Effective Date of Termination and shall
be paid no later than ninety (90) calendar days following that
date, and be included as compensation in the month paid.
ARTICLE IV. DISQUALIFICATION FROM RECEIPT OF BENEFITS.
No Severance Benefits shall be payable to the
Executive under this Agreement in the event the Executive is
terminated by Employer for Just Cause. For this purpose, Just
Cause shall mean willful, malicious conduct by the Executive
which is detrimental to the best interests of Employer,
including theft, embezzlement, the conviction of a criminal
act, disclosure of trade secrets, a gross dereliction of duty,
or other grave misconduct on the part of the Executive which is
substantially injurious to Employer. Just Cause also shall
include a material breach by the Executive of any of his
covenants under this Agreement, if such breach has not been
cured to the reasonable satisfaction of Employer within thirty
(30) days following written notice thereof by Employer to the
Executive.
ARTICLE V. FORM AND TIMING OF SEVERANCE BENEFITS.
5.1 Form and Timing of Severance Benefits. The
Severance Benefits described in Sections 3.4.a, 3.4.b and 3.8
herein shall be paid in cash to the Executive in a single lump
sum as soon as practicable following the Executive's Effective
Date of Termination, but in no event beyond ninety (90)
calendar days from such date.
The Severance Benefits described in Section 3.4.c
herein shall be provided to the Executive immediately upon the
Executive's Effective Date of Termination and shall continue to
be provided for three (3) full calendar years from the
Executive's Effective Date of Termination or until the
Executive reaches his Normal Retirement date, whichever occurs
earlier. However, the Severance Benefits described in Section
3.4.c herein shall be discontinued prior to the end of the
three (3) year period immediately upon the Executive receiving
substantially similar benefits from a subsequent employer, as
determined by the Committee.
5.2 Withholding of Taxes. Employer shall withhold
from any amounts payable under this Agreement all Federal,
state, city or other taxes as legally shall be required.
ARTICLE VI. PARACHUTE PAYMENTS.
6.1 Determination of Alternative Severance Benefit Limit.
Notwithstanding any other provision of this Agreement, if any
portion of the Severance Benefits or any other payment under
this Agreement, or under any other agreement with, or plan of,
Employer (in the aggregate "Total Payments") would constitute
an "excess parachute payment," then the payments to be made to
the Executive under this Agreement shall be reduced such that
the value of the aggregate Total Payments that the Executive is
entitled to receive shall be one dollar ($1) less than the
maximum amount which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code, or
which Employer may pay without loss of deduction under Section
280G(a) of the Code. However, such reduction in Severance
Benefits shall apply if, and only if, the resulting Severance
Benefits with such reduction is greater in value to the
Executive than the value of the Severance Benefits without a
reduction, net of any tax imposed on the Executive pursuant to
Section 4999 of the Code. For purposes of this Agreement, the
terms "excess parachute payment" and "parachute payments" shall
have the meanings assigned to such terms in Section 280G of the
Code, and such "parachute payments" shall be valued as provided
therein.
6.2 Procedure for Establishing Alternative Limitation.
Within fifteen (15) calendar days following delivery of the
notice of Qualifying Termination or notice by Employer to the
Executive of its belief that there is a payment or benefit due
the Executive which will result in an "excess parachute
payment" as defined in Section 280G of the Code, the Executive
and such Employer, at Employer's expense, shall obtain the
opinion of such Employer's principal outside law firm,
accounting firm, and/or compensation and benefits consulting
firm, which sets forth: (a) the amount of the Executive's
"annualized includible compensation for the base period" (as
defined in Section 280G(d)(1) of the Code); (b) the present
value of the Total Payments; and (c) the amount and present
value of any "excess parachute payment."
In the event that such opinion determines that there
would be an "excess parachute payment," such that a reduction
in the Severance Benefits would result in a greater net benefit
to the Executive (as provided in Section 6.1 herein), then the
Severance Benefits hereunder or any other payment determined
under the opinion to be includible in Total Payments shall be
reduced or eliminated so that, on the basis of calculations set
forth in such opinion, there will be no "excess
parachute payment". The reduction or elimination of specific
payments shall apply to such type and amount of specific
payments as may be designated by the Executive in writing
delivered to Employer within ten (10) calendar days of receipt
of the opinion, or if the Executive fails to so notify such
Employer, as may be reasonably determined by it.
The provisions of this Section 6.2, including the
calculations, notices, and opinion provided herein, shall be
based upon the conclusive presumption that the following
amounts are reasonable: (a) the compensation and benefits
provided for in Article III herein; and (b) any other
compensation earned prior to the Effective Date of Termination
by the Executive pursuant to ML&P's and any Successor
Employer's compensation programs (if such payments would have
been made in the future in any event, even though the timing of
such payment is triggered by the Change in Control).
6.3 Subsequent Imposition of Excise Tax. If,
notwithstanding compliance with the provisions of Sections 6.1
and 6.2 herein, it is ultimately determined by a court or
pursuant to a final determination by the Internal Revenue
Service that any portion of the Total Payments is considered to
be a "parachute payment", subject to excise tax under Section
4999 of the Code, which was not contemplated to be a "parachute
payment" at the time of payment (so as to accurately determine
whether a limitation should have been applied to the Total
Payments to maximize the net benefit to the Executive, as
provided in Sections 6.1 and 6.2 herein), the Executive shall
be entitled to receive a lump sum cash payment sufficient to
place the Executive in the same net after-tax position,
computed by using the "Special Tax Rate" as such term is
defined below, that the Executive would have been in had such
payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to
the Executive in the year in which the payment contemplated
under this Section 6.3 is made.
ARTICLE VII. OTHER RIGHTS AND BENEFITS NOT AFFECTED.
7.1 Other Benefits. Neither the provisions of this
Agreement nor the Severance Benefits provided for hereunder
shall reduce any amounts otherwise payable, or in any way
diminish the Executive's rights as an employee of ML&P or its
Subsidiaries or a Successor Employer, whether existing now or
hereafter, under any benefit, incentive, retirement, stock
option, stock bonus, stock purchase plan, or any employment
agreement, or other plan or arrangement.
7.2 Employment Status. This Agreement does not
constitute a contract of employment or impose on ML&P or its
Subsidiaries or any Successor Employer any obligation to retain
the Executive as an employee, to change the status of the
Executive's employment, or to change such entity's policies
regarding termination of employment.
ARTICLE VIII. SUCCESSORS.
8.1 Successors.
a. This Agreement shall be binding upon ML&P,
any Successor Employer that has assumed this Agreement,
and their respective successors and assigns. ML&P shall
require any Successor Employer to expressly assume and
agree to perform this Agreement and all of ML&P's
obligations hereunder. Failure of ML&P to obtain such
assumption and agreement prior to the effectiveness of any
Change in Control that results in a transfer of
Executive's employment to a Successor Employer shall
constitute Good Reason for voluntary termination of
employment by Executive, pursuant to Sections 3.2 and 3.3
hereof.
b. If in connection with and prior to the
effectiveness of a Change in Control a Successor Employer
has assumed this Agreement in accordance with
Section 8.1.a, then following such Change in Control
neither ML&P, nor any successor to it that does not
directly or indirectly control and is not directly or
indirectly controlled by or under common control with,
such Successor Employer, shall have any further liability
or obligation hereunder. For purposes of the foregoing
and the definition of "Successor Employer" in Section 2.1,
"control" (including the terms controlling, controlled by
and under common control with) shall have the meaning set
forth in Rule 405 under the Securities Act of 1933 (17 CFR
230.405).
c. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees, and legatees. If Executive
should die while any amount would still be payable to him
hereunder had he continued to live, all such amounts,
unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement, to the
Executive's devisee, legatee, or other designee, or if
there is no such designee, to the Executive's estate.
8.2 Beneficiaries. In the event of the death of the
Executive, all unpaid amounts payable to the Executive under
this Agreement shall be paid to his or her Beneficiary. The
Executive's spouse and other dependents shall continue to be
covered by all applicable welfare benefits during the remainder
of the Severance Benefits period, if any, pursuant to
Section 3.4.c (unless payments at death are specified by the
applicable welfare benefits provisions). The Beneficiary of
the Executive's Severance Benefits under this Agreement shall
be designated by the Executive in the form of a signed writing
acceptable to the Committee. The Executive may make or change
such designation at any time.
ARTICLE IX. ADMINISTRATION.
9.1 Administration. The Compensation Committee shall
administer this Agreement. The Committee is authorized, prior
to occurrence of a Change in Control, to interpret this
Agreement, to prescribe and rescind rules and regulations, to
provide conditions and assurances deemed necessary and
advisable, to protect the interest of ML&P or its Subsidiaries,
and to make all other determinations necessary or advisable for
the Agreement's administration. In fulfilling its
administrative duties hereunder, the Committee may rely on
outside counsel, independent accountants, or other consultants
to render advice or assistance.
9.2 Indemnification and Exculpation. The members of the
Board, its agents and officers, directors and employees of ML&P
and its Subsidiaries shall be indemnified and held harmless by
ML&P and its Subsidiaries against and from any and all loss,
cost, liability, or expense that may be imposed upon or
reasonably incurred by them in connection with or resulting
from any claim, action, suit or proceeding to which they may be
a party or in which they may be involved by reason of any
action taken or failure to act under this Agreement and against
and from any and all amounts paid by them in settlement (with
ML&P's written approval) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding. The foregoing
provision shall not be applicable to any person if the loss,
cost, liability or expense is due to such person's gross
negligence or willful misconduct.
9.3 Legal Fees. ML&P (or, if applicable, any Successor
Employer that has assumed the Agreement) shall pay all
reasonable legal fees, costs of litigation and other expenses
incurred in good faith by the Executive as a result of its
refusal to provide the Severance Benefits which it is obligated
to provide to Executive under this Agreement, or as a result of
ML&P or such Successor Employer contesting the validity,
enforceability or interpretation of the Agreement; provided,
however, that such payments shall not exceed the amount
permitted by law.
IN WITNESS WHEREOF, ML&P has caused this Agreement to
be executed as of the day and year first above written.
MAUI LAND & PINEAPPLE COMPANY, INC.
By /S/ XXXX X. XXXXXXX
Its President
/S/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx, "Executive"
ATTEST:
/S/ J. XXXXX XXXXXX
