EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into in Honolulu, Hawaii, effective as of the 6th day of
October 2003, by and between MAUI LAND & PINEAPPLE COMPANY, INC.
("Company" or "MLP"), a Hawaii corporation, whose principal place
of business is in the State of Hawaii, and XXXXX X. XXXX (the
"Executive").
WHEREAS, Company desires to employ the Executive as its
President and Chief Executive Officer ("CEO"), and Executive is
willing to accept such employment with Company on the terms and
conditions set forth below;
NOW THEREFORE, in consideration of the premises and
promises contained herein, the parties agree as follows:
1. Employment. Company hereby employs Executive and
Executive hereby accepts employment with Company on the terms and
subject to the conditions set forth in this Agreement. Executive
shall be based for work purposes at Company's principal place of
business in Hawaii.
2. Employment Period. Executive's employment hereunder
shall commence on October 15, 2003, and shall continue for an
indefinite term at the pleasure of Company's Board of Directors.
Unless terminated sooner or continued longer as provided in
Section 8 below the terms and conditions set forth herein shall
apply during Executive's initial four (4) years of employment.
3. Position and Duties. Executive shall serve as Company's
President & CEO. Executive shall also serve on Company's Board of
Directors, the Company having committed expeditiously to expand
the Board of Directors from six persons to nine, which will
include Executive, and to take Executive's recommendations into
account in nominating other new Directors. Company will also use
its best efforts to seek the election of Executive as Chairman of
the Board of Directors. Executive shall have the authority and
responsibilities for the management of Company's business
consistent with the President and CEO of a publicly traded
corporation, including general and active authority and
responsibility for Company's business operations and affairs
serving subject to the authority and at the pleasure of Company's
Board of Directors. Executive shall perform his duties and
exercise his authority in accordance with the lawful directives
and announced policies of the Board of Directors. Executive
shall:
(i) devote his full time (except for absence for
reasonable vacation, illness or injury), undivided
attention, skill and best efforts to the Company's
business and the proper discharge of his fiduciary and
employment duties;
(ii) use his best efforts to promote the success of
the Company's business; and
(iii) cooperate fully with the Board of Directors in
advancing the best interest of the Company and its
Shareholders.
Notwithstanding the foregoing, Executive may make and manage
personal investments, serve as manager of his existing private
ventures or similar activities, serve on the boards of, or in
similar capacities for, other for-profit companies and/or non-
profit associations or charitable organizations, and engage in
other incidental activities provided that such investments,
ventures, services, and activities: (i) are not competitive with
Company's business, (ii) do not subject Company to any violation
of law or bring Company into disrepute or could be reasonably
expected to subject Company to adverse publicity, and (iii) do
not interfere with Executive's performance of his duties and
responsibilities to Company. Executive shall notify Company's
Board of Directors of any new active investments, ventures,
services or business-oriented or profit-oriented activities begun
after October 15, 2003.
4. Compensation.
4(a) Base Salary. Executive shall receive an
annualized base salary of Four Hundred Fifty Thousand
and No/i 00 Dollars ($450,000.00), subject to
applicable payroll taxes and deductions. The Base
Salary shall be paid in equal periodic installments
according to Company's customary payroll practices.
Company's Board of Directors shall review Executive's
performance annually to determine whether an increase
in salary is warranted.
4(b) Equity-Based Compensation. Subject to
receiving, and in accordance with, all required
regulatory and shareholder requirements and approvals,
which the Company will use its diligent-best efforts
to obtain expeditiously and in full, Company shall
provide Executive with performance-based restricted
stock grants ("Stock Grants") and non-qualified stock
options ("Stock Options") in accordance with the
Restricted Share Agreement and the Stock Option
Agreement attached hereto as Exhibits 1 and 2 and
incorporated herein by reference.
Without limiting the foregoing, for all necessary Shareholder
approvals, Company shall use its best efforts:
(i) to present the above mentioned matters
requiring Shareholder approval to the Shareholders for
approval as expeditiously as possible;
(ii) to include favorable recommendations of at
least a majority of Directors;
(iii) to obtain favorable Shareholder action;
and,
(iv) to have any Shareholder vote take place at a
time that if favorable would permit implementation of
the equity-based compensation arrangements referred to
above by no later than December 31, 2003 or such later
date as Executive may agree in writing (it being
understood that Executive shall be under no obligation
to agree to any such extension).
5. Employment Benefits. Executive shall be eligible to
participate in the Company's employee and executive benefit plans
and programs in accordance with the terms of such plans and
programs but excluding Company's Annual Incentive, Long Term
Incentive and Executive Separation Plans. These include:
An annualized car allowance program indexed to IRS
reimbursement standards adjusted each January 1 for
the calendar year in accordance with Company
practice, but, in any event, no less than $13,000
per year.
Medical, dental, prescription drug and vision
benefits that use a base plan premium-sharing
arrangement between Company and Executive;
Group life insurance and AD&D coverage, travel
accident insurance, and long-term disability
insurance benefits;
A defined benefit pension plan and an "excess"
supplemental plan, with an initial vesting period of
five years;
A 401k plan and/or an executive deferred
compensation plan with voluntary contributions.
Four (4) weeks of paid vacation annually to be
scheduled at a mutually convenient time with
accumulation and carryover provisions in accordance
with Company practice.
Executive understands and agrees that all non-equity employment
benefits are subject to change or termination (if done as to all
participants) at any time in the sole discretion of Company's
Board of Directors provided that no change shall reduce any
vested benefits or apply disproportionately to Executive.
6. Reimbursement for Reasonable Business and Relocation
Expenses. Company shall pay or reimburse Executive for
reasonable expenses incurred by Executive in connection with the
performance of Executive's duties pursuant to this Agreement.
Company shall also reimburse Executive for reasonable expenses
related to Executive's relocation to Maui, Hawaii, upon
submission of documentation reasonably satisfactory to the
Company of such expenses and for up to ten thousand dollars
($10,000.00) of costs incurred by Executive for the review and
negotiation of this Agreement, the terms of the offer letter on
which it is based, and/or the documentation relating to
Executive's equity-based compensation. Such reimbursements shall
be included in Executive's Form W-2 to the extent required by and
in accordance with IRS regulations.
7. Key Man Insurance. Company shall have the option to
purchase one or more key man life insurance policies upon the
life of the Executive. The Company shall own and shall have the
absolute right to name the beneficiary or beneficiaries of the
policy. Executive agrees to cooperate fully with the Company in
securing the policy, including without limitation, submitting to
any physical examination which may be required at such reasonable
times and places as the Company shall specify.
8. Termination. The Employment Period shall continue at
the pleasure of Company's Board of Directors until terminated
with or without cause by Company's Board of Directors or by
Executive's death, disability as defined below, voluntary
resignation, or resignation for good reason, as defined below.
Any termination by Company shall be made by written notice from
Company to Executive stating specifically: (a) whether the
termination is (i) for disability or (ii) with cause or (iii)
without cause and (b) if it is with cause, stating the nature and
specifics of the cause and the circumstances thereof and (c) if
it is for disability, stating the nature and specifics of the
disability and the basis on which Company believes that
disability exists, provided that Company may give the foregoing
notice orally so long as it provides the notice in writing within
two (2) business days after giving the oral notice.
8(a) Termination Due to Death. In the Event Executive's
employment is terminated due to his death, his estate or
beneficiaries as the case may be, shall be entitled to:
(i) The portion of Executive's Base Salary
earned but not yet paid through the date of death,
subject to applicable payroll taxes and deductions;
(ii)The right to exercise any Stock Option
which was exercisable at the date of Executive's
death for a period of one (1) year following
Executive's death;
(iii) Any Stock Grants or other amounts earned,
vested, accrued or owing to Executive as of
Executive's death but not yet paid and any Stock
Grants that would be deemed to have accrued or
vested based on the Company's financial performance
for periods ended prior to Executive's death
although financial reports may not become available,
or a determination of vesting may not be made, until
after such death and provided further that, if
Executive should die after June 30 but prior to the
end of either 2005, 2006, or 2007 and the Company's
financial performance for such year is such that a
share grant would have vested in full or in part for
such, year if Executive had survived the year,
Executive shall be entitled to a fraction of the
amount that would have vested for the year whose
numerator is the number of days in the year prior to
Executive's death and the denominator is 365; and
(iv) Other vested employment benefits, if any,
in accordance with the applicable plans and programs
of Company.
8(b) Termination Due to Disability. In the event
Executive suffers a physical or mental impairment that
prevents him from performing the essential duties of his
position to the reasonable satisfaction of Company's
Board of Directors, with or without reasonable
accommodation, for a continuous period in excess of three
(3) months, or an aggregate period in excess of four (4)
months in any one (1) calendar year, Company's Board of
Directors shall have the right at any time after the end
of such period to terminate Executive's employment under
this Agreement.
In the event Executive's employment is terminated
due to disability, Executive shall be entitled to:
(i) The portion of Executive's Base Salary
earned but not yet paid through the effective date
of Executive's termination due to disability,
subject to applicable payroll taxes and deductions.
(ii)The right to exercise any Stock Option
which is exercisable on the date of termination for
a period of one (1) year thereafter.
(iii) Any Stock Grants or other amounts
earned, vested, accrued or owing to Executive as of
the date of termination but not yet paid and any
Stock Grants that would be deemed to have accrued or
vested based on the Company's financial performance
for periods ended prior to Executive's death
although financial reports may not become available,
or a determination of vesting may not be made, until
after such death and provided further that, if
Executive should die after June 30 but prior to the
end of either 2005, 2006, or 2007 and the Company's
financial performance for such year is such that a
share grant would have vested in full or in part for
such, year if Executive had survived the year,
Executive shall be entitled to a fraction of the
amount that would have vested for the year whose
numerator is the number of days in the year prior to
Executive's death and the denominator is 365; and
(iv)Disability and other vested employment
benefits, if any, in accordance with the applicable
plans and programs of the Company.
8(c) Termination By Company for Cause. In the event the
Company terminates Executive's employment for cause as
defined in Section 8(D, Executive shall only be entitled
to:
(i) The portion of Executive's Base Salary
earned but not yet paid through the date of such
termination subject to applicable payroll taxes and
deductions.
(ii)Any stock grants or other amounts earned,
vested, accrued or owing to Executive and not yet
paid (but excluding unexercised Stock Options)
(iii) Other vested employment benefits, if
any, in accordance with applicable plans and
programs of the Company.
8(d) Termination Without Cause or Resignation For Good
Reason. In the event Executive's employment is terminated
without cause or in the event Executive resigns for good
reason, as defined in Section 8(g) Executive shall be
entitled to:
(i) The portion of Executive's Base Salary
earned but not yet paid through the date of such
termination, subject to applicable payroll taxes and
deductions.
(ii)A Severance Payment in lieu of any other
severance plan benefit provided by Company in the
amount of $450,000.00, less applicable payroll taxes
payable in a lump sum immediately after such
termination (the "Severance Payment"). Provided
that the foregoing Severance Payment obligation
shall only arise if Executive, in conjunction with
the employment termination without cause or
resignation for good reason, agrees to waive,
release, and covenant not to xxx or otherwise
institute legal or administrative proceedings or
make any claim of any nature against Company, its
successors, assigns, Board of Directors, officers,
employees or agents based on actual or alleged
employment discrimination under federal or Hawaii
employment discrimination laws (e.g. Title VII of
the 1964 Civil Rights Act, as amended, Age
Discrimination in Employment Act, or the Americans
with Disabilities Act., and the Hawaii Fair
Employment Practices act (Hawaii Revised Statutes
Chapters 368 and 378) (hereinafter referred to as
the "Waiver and Release of Claims") and does in fact
execute an appropriate agreement reflecting the then-
current requirements of law for such a Waiver and
Release of Claims. The Waiver and Release of Claims
shall not apply to any rights, claims, or causes of
action of Executive other than those for employment
discrimination as described above.
If Executive fails to execute the Waiver and Release
of Claims agreement, Executive shall not receive the
Severance Payment. If after entering into the
Waiver and Release of Claims agreement, Executive
fails to comply with the terms of said Waiver and
Release of Claims agreement, Executive shall
immediately forfeit any right to the Severance
Payment, and Executive shall be required to
forthwith reimburse Company for any portion of the
Severance Payment already received.
(iii) The immediate vesting of any and all
unvested Stock Grants and the immediate vesting and
exerciseability of all unvested or unexerciseable
Stock Options granted to Executive pursuant to
Section 4(b), which shall remain exercisable for a
period of six (6) months after termination without
cause or resignation for good reason provided that,
if any necessary shareholder approval in connection
with any such Stock Grants or Stock Options shall
have been obtained by the time of such termination
without cause or resignation for good reason but any
Board or other Company action shall still be
necessary to grant and implement any such Stock
Grants or Stock Options, the Board and Company shall
promptly take all such action; and provided further
that, (i) if such shareholder approval shall not
have been obtained by the date of such termination
or resignation, or (ii) if Executive resigns for
good reason due to his not being elected Chairman of
the Board within the time specified by Section
8(g)(ii), Executive shall instead of the foregoing
Stock Grants and Options have a right to be paid an
additional severance payment under Section 8(d)(ii)
above in the amount of Fifty Thousand Dollars
($50,000.00) subject to applicable payroll taxes.
(iv)Any other amounts earned, vested, accrued
or owing to Executive but not yet paid; and
(v) Other vested Employment Benefits, if any,
in accordance with applicable plans and programs of
the Company.
8(e) Voluntary Xxxxxxxxxxx.Xx the event of a voluntary
resignation not covered by Section 8(d) Executive shall
be entitled only to those payments and benefits described
in Section 8(c) above; provided, however, that Executive
shall have the right to exercise any Stock Option which
is exercisable on the effective date of such resignation
for a period of six (6) months after such effective date.
8(f) Definition of Cause. Termination for cause
shall be deemed to exist if Executive is terminated for
any of the following reasons:
(i) Executive's breach of this Agreement which
continues uncured for fifteen (15) days after
receipt by Executive of written notice from Company
identifying such breach with reasonable specificity
and demanding an immediate cure thereof;
(ii)Executive's failure or refusal to comply
with any lawful and reasonable Board of Director's
policy or directive which failure or refusal
continues uncured for fifteen (15) days after
receipt by Executive of written notice from Company
identifying such failure or refusal with reasonable
specificity and demanding an immediate cure thereof;
(iii) Executive's material and intentional
or grossly negligent breach of Executive's fiduciary
duty of care to the Company or Executive's willful
or grossly negligent breach of Executive's fiduciary
duty of loyalty to the Company, which, in either
case, results in material injury to the Company or
its shareholders;
(iv)Executive's conviction or entry of a plea
of guilty or no contest to any crime for which
imprisonment is a possibility or which results in a
monetary fine or penalty payment by Company;
(v) Any violation of a law or regulation
carried out by or at the direction of Executive
acting knowingly that results in payment by the
Company of a fine, penalty or forfeiture in excess
of $50,000.00 or a civil damages judgment of One
Million Dollars ($1,000,000) or more.
8(g) Definition of Resignation for Good Reason. A
resignation for good reason will occur if Executive
resigns his employment within one hundred eighty (180)
days after any of the following events:
(i) Any element of the equity-based
compensation described in Section 4(b) and Exhibits
1 and 2 of this Agreement is not fully granted,
implemented, and effective (including, without
limitation, the completion of any necessary
shareholder and Board actions and approvals, the
granting and issuance of all options and shares, and
the execution and delivery of all associated
agreements) by December 31, 2003 or such later date
as Executive may agree in writing (it being
understood that Executive shall be under no
obligation to agree to any such extension);
(ii)The Board of Directors has not been
expanded to nine (9) members or Executive is not
elected or appointed as a Director of the Company by
December 31, 2003, or Executive is not elected
Chairman of the Board of Directors on or before
April 15, 2004 (or such later date as Executive may
agree in writing, it being understood that Executive
shall be under no obligation to agree to any such
extension) or Executive is not retained as a
Director (provided Executive remains willing and
able to serve);
(iii) Company materially breaches this
Agreement;
(iv)Company interferes materially with
Executive's access or reporting to, or
communications with, the Board of Directors or with
any member or committee thereof;
(v) Company purports to terminate Executive's
employment without complying fully with the notice
provisions in the first paragraph of Section 8
hereof;
(vi)Company decreases Executive's title or
compensation or materially decreases Executive's
authority or responsibilities or assigns to
Executive duties inconsistent with the position of
President and CEO of the Company or Chairman of the
Board of Directors if Executive holds that position
(other than-a temporary, non-recurring assignment
that does not materially interfere with the
performance of Executive's duties);
(vii) A "Change of Control," as defined
below, occurs prior to the fourth anniversary of
this Agreement.
8(h) Definition of Change of Control: A "Change of
Control" means and includes any of the following events:
(i) a "person" or "group" (within the meaning
of Sections 13(d) of the Securities Exchange Act of
1934, as amended), other than any Existing
Stockholder (as defined below) or its Affiliates,
becomes the ultimate "beneficial owner" (as defined
in Rule 13d-3 under such Act) of Voting Stock (as
defined below) representing more than 30% of the
total voting power of the Voting Stock of the
Company on a fully-diluted basis and such ownership
represents a greater percentage of the total voting
power of the Voting Stock of the Company, on a fully-
diluted basis, than is held by any Existing
Stockholder and its Affiliates, taken together, on
such date or
(ii)A majority of Company's Board of Directors
comes to consist of persons who were neither (a)
members of the Board of Directors as of the
effective date of this Agreement nor (b) elected or
nominated for election by Directors who comprised
two-thirds (2/3rd) of the Board of Directors on the
effective date of this Agreement.
(iii) A merger or consolidation of Company
after which one or more of the current Shareholders
retain less than sixty percent (60%) of the voting
shares of the surviving entity; or
(iv)A sale or other transfer in one transaction
or a series of transactions that was not
affirmatively recommended by Executive of 50% or
more, by value, of the Company's assets, it being
agreed that merely presenting a transaction to the
Board for its consideration and possible approval
and providing truthful information thereon shall not
be deemed an affirmative recommendation.
(v) Company's approval and implementation of a
plan for liquidation or dissolution of the Company
or the filing of a petition in bankruptcy.
For purposes of this definition, (a) "Existing
Stockholders" means each person or group (each as
defined above) that is the ultimate beneficial owner
(also as defined above) of the common stock of the
Company ("Common Stock"), or of securities of the
Company convertible into or exchangeable for, Common
Stock, in each case, representing ten percent (10%) or
more of the Company's total Common Stock on a fully-
diluted basis as of the date of the effectiveness of
this Agreement and (b) "Voting Stock" means capital
stock of the Company of any class or kind ordinarily
having the power to vote for the election of directors,
managers or other voting members of the Board of
Directors.
9.Resolution of Disputes. Any disputes or claims by
Executive or Company arising under or in connection with this
Agreement or Executive's recruitment, employment or termination
from employment with Company, including but not limited to any
claims under any employment or age discrimination law or any
employee benefit plan or program shall be resolved by binding
arbitration in Honolulu, Hawaii, in accordance with the rules and
procedures of the American Arbitration Association ("AAA")
governing employment disputes. Judgment upon the award rendered
by the arbitrator(s) may be entered in any Hawaii court having
jurisdiction thereof. Costs of the arbitrator and the AAA shall
be borne initially by the Company, provided that the arbitrator
shall award fees and costs to the prevailing party in accordance
with Section 28 hereof. Executive and Company agree that this
Section 9 shall not preclude either party from seeking interim
judicial injunctive relief to prevent any irreparable harm that
might occur prior to completion of the arbitration.
10. Indemnification.
10(a) Executive shall be entitled to indemnification by
the Company (i) in accordance with applicable law and the
provisions of the Company's Articles of Association and
Board of Directors' resolutions and any agreement with
any officer or director as in effect as to the most
favorably indemnified officer or director of the Company
on the date of this Agreement or, if more favorable to
Executive, (ii) in accordance with the provisions of such
Articles of Association, Bylaws or resolution and any
agreement with any officer or director as may be in
effect as to such officer or director at any time
hereafter during the term of Executive's employment by
the Company.
10(b). Company shall include Executive continuously as
a fully insured person under its directors' and officers'
liability insurance which shall be maintained by the
Company during the term of Executive's employment.
11. Assignability. Without the prior written consent of
Company, no rights or obligations of Executive under this
Agreement may be assigned or transferred by Executive other than
his rights to compensation and benefits, which may be transferred
only by will or other means or arrangements of inheritance or
succession or operation of law.
12. Conflicts of Interest and Business Ethics Policies.
Executive agrees to comply with the conflict of interest and
business ethics policies for officers and for directors now in
effect at the Company, copies of which are attached hereto as
Exhibits 3 and 4. Company agrees to apply its policies with
reasonable uniformity to all of its officers and directors.
13. Confidentiality. Disclosure of Information; Company
Property.
13(a) Executive recognizes and acknowledges that
during or as an incident to Executive's employment with
Company he will have access to Confidential Information
(as defined below) relating to the business or interest
of Company or of persons and entities with whom Company
may have business or other relationships. Except as
permitted herein or as may be approved by Company's Board
of Directors from time to time, Executive will not during
his employment or at any time thereafter, use, disclose
or permit to be known by any other person or entity, any
Confidential Information of the Company (except as
required by applicable law or in connection with the
performance of the Executive's duties and
responsibilities hereunder). If Executive is requested
or becomes legally compelled to disclose any of the
Confidential Information, he will give prompt notice of
such request or legal compulsion to Company's Board of
Directors. Company's Board of Directors may then elect in
its sole discretion to waive compliance with this section
13(a) or may provide Executive with legal counsel at no
cost to Executive to seek an appropriate remedy. The
term "Confidential Information" means information
relating to Company's business affairs, proprietary
technology, trade secrets, patented processes, research
and development data, know-how, market studies and
forecasts, competitive analyses, pricing policies,
employee lists, employment agreements (other than this
Agreement), personnel policies, the substance of
agreements with customers, suppliers and other marketing
arrangements, customer lists, commercial arrangements, or
any other information relating to the Company's business
that is not generally known to the public or to actual or
potential competitors of the Company (other than through
a breach of this Agreement) and which Executive is not
required to disclose by law. Executive's obligation under
this Section 13 shall continue until such confidential
Information becomes publicly available, other than
pursuant to a breach of this section 13 by Executive,
regardless of whether Executive continues to be employed
by the Company.
13(b) It is further agreed and understood by and
between the parties to this Agreement that all "Company
Property," which includes, but is not limited to, keys,
computers, computer software, computer disks, tapes
printouts, source, HTML and other code, flowcharts,
schematics, designs, graphics, drawings, photographs,
charts, notebooks, customer lists, sound recordings,
other tangible or intangible manifestations of content,
and all other documents whether printed, typewritten,
handwritten, electronic, or stored on computer disks,
tapes, hard drives, or any other tangible medium, as well
as samples, prototypes, models, products and the like,
shall be the exclusive property of the Company and, upon
termination of Executive's employment with Company and/or
upon the request of Company's Board of Directors, all
Company Property including copies thereof, as well as all
other Company property then in Executive's possession or
control, shall be returned to and left with the Company.
Anything in this Section 13(b) to the contrary
notwithstanding, Executive' shall be entitled to retain
any personal property acquired prior to Executive's
employment with Company or during his employment with
Company if purchased with his personal funds so long as
Executive does not disclose any Confidential Information
to any third parties.
14. Inventions Discovered by Executive.
14(a) Executive shall promptly disclose to Company any
invention, improvement, discovery, process, formula or
method or other intellectual property, whether or not
patentable or copyrightable (collectively "Inventions"),
conceived or first reduced to practice by Executive,
either alone or jointly with others, while performing
services hereunder (or, if based on any Confidential
Information within one (1) year after the termination of
Executive's employment with Company).
(i) which pertain to any line of business activity of
the Company, if then conducted or then being
actively planned by the Company, with which
Executive was or is directly involved,
(ii)which is developed using time, material or
facilities of the Company, whether or not during
working hours or on the Company premises; or
(iii) which directly related to any of Executive's
work during his employment with Company whether or
not during normal working hours.
14(b) Executive hereby quitclaims to Company all of
Executive's right, title and interest in and to any such
inventions. During, and after the termination of
Executive's employment with Company, Executive shall
execute any truthful documents necessary to perfect the
quitclaim of such inventions to the Company and to enable
Company to apply for, obtain and enforce patents,
trademarks and copyrights in any and all countries on
such inventions, including, without limitation, the
execution of any instruments and the giving of evidence
and testimony at times and places reasonably convenient
for Executive (i) without further compensation to the
extent such activities take place during Executive's
employment, or (ii) if such activities take place after
the end of such employment, provided that payment is made
for Executive's time, including any preparation, travel
and waiting time, at the rate of $400 per hour. Without
limiting the foregoing, Executive further acknowledges
that all original works of authorship created by
Executive, alone or jointly with others, during and as
part of Executive's employment by Company, and which are
protectable by copyrights, are "works made for hire"
within the meaning of the United States Copyright Act, 17
U.S.C. Section 101, as amended, and the copyright of
which shall be owned solely, completely and exclusively
by the Company. If any Invention is considered to be a
work, not included in the categories of work covered by
the United States Copyright Act, 17 U.S.C., Section 101
as amended, such work is hereby conveyed and transferred
completely and exclusively to Company.
14(c) Executive hereby irrevocably designates counsel
to the Company as Executive's agent and attorney-in-fact
to do all lawful acts necessary to apply for and obtain
patents and copyrights and to enforce the Company's
rights under this section. This Section 14, shall
survive the termination of this agreement. Any
conveyance of copyright hereunder includes all legal or
equitable rights of ownership or use related to any
Inventions of Executive (hereafter collectively called
"Invention Rights") and to the extent any of such
Invention Rights cannot be conveyed under applicable law
and to the extent the following is allowed by the laws in
the various countries where such Invention Rights exist,
Executive hereby waives such Invention Rights and
consents to any action of Company that would violate such
Invention Rights in the absence of such consent. The
Executive agrees to confirm any such waivers and consents
from time to time as requested by Company.
15. Non-Solicitation. Executive acknowledges that the
Company has invested substantial time, money and resources in the
development and retention of its Executives, Inventions,
Confidential Information (including trade secrets), customers,
accounts and business partners, and further acknowledges that
during the course of Executive's employment with Company
Executive has had and will have access to the Company's
Inventions and Confidential Information (including Trade
secrets), and will be introduced to existing and prospective
employees, customers, accounts and business partners of the
Company. Executive acknowledges and agrees that any and all
"goodwill" associated with any existing or prospective customer,
account or business partner belongs exclusively to the Company,
including, but not limited to, any goodwill created as a result
of direct or indirect contacts or relationships between Executive
and any existing or prospective customers, accounts or business
partners. Additionally, the parties acknowledge and agree that
Executive possesses skills that are special, unique or
extraordinary and that the value of the Company depends upon his
use of such skills on its behalf.
Accordingly, Executive covenants and agrees that:
1. During the Executive's employment with Company,
and for a period of one (1) year thereafter, Executive shall
not entice, solicit or encourage any Company employee to
leave the employ of Company or any independent contractor to
sever its engagement with Company, absent prior written
consent from the Company's Board of Directors
2. During Executive's employment with Company, and
for a period of one (1) year thereafter, Executive may not,
directly or indirectly, entice, solicit or encourage any
customer or prospective customer of Company to cease doing
business with Company, reduce its relationship with Company
or refrain from establishing or expanding a relationship
with the Company
16. Non-Disparagement. Non-Disclosure. Executive agrees
that during his employment with Company and at all times
thereafter, Executive will not make any public statement, or
engage in any conduct, that is disparaging to the Company, any of
its officers, directors, or shareholders known to Executive,
including, but not limited to, any public statement that
disparages the products, services, finances, financial condition,
capabilities or other aspects of the business of Company, its
shareholders, directors, officers or Executives. Notwithstanding
any term to the contrary herein, the Executive shall not be in
breach of this Section 16 for the making of any truthful
statements under oath or for legitimate business purposes for
Company or, in any case, for making any reasonable and non-
malicious statements not intended or likely to injure the
Company.
17. Provisions Necessary and Reasonable.
17(a) Executive agrees that:
(i) The provisions of Sections 13, 14, 15 and 16
of this Agreement are necessary and
reasonable to protect the Company's
Confidential Information, Inventions and
goodwill;
(ii) The specific temporal, geographic and
substantive provisions set forth in Section
15 of this Agreement are reasonable and
necessary to protect Company's business
interests; and,
(iii) In the event of any breach of any of
the covenants set forth in Sections 13, 14,
15 and 16 herein, the Company would suffer
substantial irreparable harm and would not
have an adequate remedy at law for such
breach.
In recognition of the foregoing, Executive agrees that
in the event of a breach or threatened breach of any of
these covenants, in addition to such remedies as Company
may have at law, Company shall be entitled to seek and
obtain judicial equitable relief, in the form of specific
performance, and/or temporary, preliminary or permanent
injunctive relief, or any other equitable remedy which
then may be available. The seeking of such judicial
equitable relief or order shall not affect Company's
right to seek and obtain damages or other equitable
relief on account of any such actual or threatened breach
pursuant to Section 9 of this Agreement.
17(b) If any of the covenants contained in Sections
13, 14, 15 and 16 hereof, or any part thereof, are
hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenants,
which shall be given full effect without regard to the
invalid portions.
17(c) If any of the covenants contained in Sections 13,
14, 15 and 16 hereof, or any part thereof are held to be
unenforceable by a court of competent jurisdiction
because of the temporal or geographic scope of such
provision or the area covered thereby, the parties agree
that the court making such determination shall have the
power to reduce the duration and/or geographic area of
such provision and, in its reduced form, such provision
shall be enforceable.
18. Representations Regarding Prior Work and Legal
Obligations.
18(a) Executive represents that Executive has no
agreement or other legal obligation with any prior
employer, or any other person or entity, that restricts
the Executive's ability to accept employment with, or to
perform any function for, Company.
18(b) Executive has been advised by Company that at no
time should Executive divulge to or use for the benefit
of Company any trade secret or confidential or
proprietary information of any previous employer.
Executive expressly acknowledges that Executive has not
divulged or used any such information for the benefit of
Company.
18(c) Executive acknowledges that Company is basing
important business decisions on these representations,
and affirms that all of the statements included herein
are true.
19. Entire Agreement. This Agreement contains the entire
understanding and agreement between the parties concerning the
subject matter of this Agreement including but not limited to
Executive's recruitment, employment and termination of employment
with Company and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or
oral, between the parties with respect thereto.
20. Amendment Or Waiver. No provision in this Agreement may
be amended or waived unless such amendment is in writing and
signed by Executive and signed by Executive and by an authorized
representative of the Company. No waiver by either party of any
breach by the other party of any condition or provision contained
in this Agreement to be performed by such other party shall be
deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time.
21. Severability. In the event that any provision or
portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect to the fullest extent
permitted by law.
22. Survivorship. The respective rights and obligations of
the parties hereunder shall survive any termination of
Executive's employment to the extent necessary to the intended
preservation of such rights and obligations and shall be binding
upon and inure to the benefit of Company's successors and
assigns, and Executive's heirs and personal representatives.
23. Interpretation. Company and Executive have each been
represented by experienced legal counsel in the negotiation and
drafting of this agreement and agree that this Agreement will not
be interpreted as the product of either party alone.
24. Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of Hawaii
without reference to any otherwise applicable principles of
conflict of laws. Any judicial proceeding involving any claim
arising out of this agreement or Executive's recruitment by,
employment with, or termination from Company shall be conducted
in Hawaii.
25. Notices. Any notice given to a party shall be in
writing and shall be deemed to have been given when delivered
personally or sent by registered mail, postage prepaid, return
receipt requested, duly addressed to the Party concerned at the
address indicated below or to such changed address as such party
may subsequently give such notice of:
If to Company, to: Maui Land & Pineapple Company, Inc.
P. O. Xxx 000
Xxxxxxx, Xxxxxx 00000
With a copy to: Xxxxxx X. Xxxx, Esq.
Torkildson, Katz, Xxxxxxx, Xxxxx
& Xxxxxxxxxxxx
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
If to Executive, to: Xxxxx X. Xxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
With a copy to: Xxxxx X. Xxxxxxx
Xxxxxx & Xxxxxx
1900 Avenue of the Stars, 00xx Xxx.
Xxx Xxxxxxx, XX 00000
26. Headings. The headings of the sections contained in
this Agreement are for convenience only and shall not be deemed
to control or affect the meaning or construction of any provision
of this Agreement.
27. Counterparts. This Agreement may be executed in one (1)
or more counterparts, and by facsimile signature, each of which
will be deemed to be an original copy of this Agreement and all
of which when taken together will be deemed to constitute one and
the same Agreement.
28. Costs and Attorney Fees. If litigation, arbitration, or
similar proceedings should be instituted based on, arising out
of, or in connection with, this agreement or the employment
relationship provided for herein (including, without limitation,
the compensation, indemnification, or other aspects thereof), the
prevailing party shall be entitled to an award of such party's
costs and expenses in connection therewith, including reasonable
attorney fees and including costs and expenses in any appeal.
COMPANY EXECUTIVE
MAUI LAND & PINEAPPLE
COMPANY, INC.
/S/ XXXXX X. XXXX
By: /S/ XXXXX X. XXXXXX XXXXX X. XXXX
Its Chairman of the Board
Date: October 10, 2003
Date: October 6, 2003
Attachments:
Exhibit 1: Maui Land & Pineapple Company, Inc.
Stock Option Agreement For Xxxxx Xxxx
Exhibit 2: Maui Land & Pineapple Company, Inc.
Restricted Share Agreement For Xxxxx Xxxx
Exhibit 3: Maui Land & Pineapple Company, Inc.
Code of Ethics for Members of the Board
of Directors
Exhibit 4: Maui Land & Pineapple Company, Inc.
Policy on Business Ethics and Conflicts
of Interest
