Exhibit 10.5


 


EMPLOYMENT
AGREEMENT


 


This
Employment Agreement (“Agreement”) is entered into as of May 1, 2006 (“Effective
Date”) between Maui Land & Pineapple Company, Inc. (“Company”) and Robert
I. Webber (“Executive”).


 


RECITALS


 


Company wishes
to employ Executive and Executive wishes to accept such employment under the
terms and conditions set forth in this Agreement.


 


IT
IS AGREED as follows:


 


1.                                       Employment. Company hereby employs Executive
as its Chief Financial Officer and Senior Vice President of Business
Development.


 


2.                                       Term. The term of employment under this
Agreement shall commence on the Effective Date and shall continue until April
30, 2008, unless otherwise terminated earlier under Section 10. If neither
party provides written notice of termination to the other within thirty (30)
days of this Agreement’s original expiration date, or any extensions thereof,
the term of this Agreement may be extended for successive additional year
periods.


 


3.                                       Duties.


 


(a)                                  Executive
shall report directly to the Chief Executive of the Company. In matters
relating to financial controls and policy compliance, Executive shall report to
the Audit Committee of the Board of Directors.


 


(b)                                 Executive
shall:  (1) have primary responsibility
for the Company’s financial planning, reporting, compliance, risk management
and controls; (2) overall responsibility for corporate and business
development, including working closely with business segment managers and their
colleagues to improve business performance and execute on new opportunities;
and (3) work with the Company’s directors and fellow officers to initiate and
monitor policies and programs designed to improve the overall competitive
fitness of the Company, as well as the quality of life for its employees and
shareholders. However, it is understood by the parties that the specific duties
and responsibilities of the Executive are subject to modification,
supplementation, change or deletion by the Chief Executive Officer of the
Company and/or the Audit Committee of the Company’s Board of Directors.


 


(c)                                  Executive
shall devote his full-time efforts to the proper and faithful performance of
all duties customarily discharged by a Chief Financial Officer and Senior Vice
President of Business Development, consistent with Company policies and
directives of the Company’s Chief Executive Officer and the Audit Committee of
the Board of Directors. Executive shall provide services to any subsidiary or
affiliate of the Company without additional compensation and benefits beyond
those set forth in this Agreement. If requested, Executive shall serve on the


 

















 


Board(s) of
Directors of Company and any affiliate or subsidiary. Executive agrees to use
his best efforts and comply with all fiduciary and professional standards in
the performance of his duties.


 


(d)                                 During
the term of this Agreement, the Executive shall provide services exclusively on
behalf of the Company and shall render services to no other person,
organization or company except as may be approved in writing by the Chief
Executive of the Company.


 


4.                                       Compensation.


 


(a)                                  Annual Base Salary. During his
first year of employment with the Company, Executive shall be paid a base
salary of Three Hundred Thousand Dollars ($300,000.00). During his second year
of employment with the Company, Executive shall be paid a base salary of Three
Hundred Fifty Thousand Dollars ($350,000.00). Thereafter, Executive’s base
salary shall be negotiated on an annual basis with the Chief Executive of the
Company, and is subject to approval by the Compensation Committee of the
Company’s Board of Directors (Compensation Committee).


 


(b)                                 Annual Incentive Pay. Executive shall receive a $50,000 sign on bonus. During his
first year of employment with the Company, Executive shall receive an annual incentive
payment of Fifty Thousand Dollars ($50,000.00). Beginning the second year of
employment and every year thereafter, the bonus shall be based upon the
achievement of criteria and in amounts as set forth in a bonus plan established
by the Compensation Committee. It is understood and agreed by the parties that,
barring unforeseen business issues, Executive’s annual incentive payment shall
be a minimum of Fifty Thousand Dollars ($50,000.00).


 


(c)                                  Payments and Withholdings. Executive’s compensation
hereunder shall be paid in accordance with the Company’s regular pay practices.
All compensation shall be less applicable withholdings and deductions.


 


5.                                       Stock Options.


 


(a)                                  Executive
shall be eligible to participate in the Company’s 2006 Equity and Incentive
Compensation Plan, with an initial stock option grant of 25,000 stock options
to vest at a rate of 20% per year over a five year period. Executive’s
participation shall be governed by the terms of the Plan and the related Stock
Option Agreement. All options shall vest upon a Change of Control.


 


(b)                                 In
addition to participation in the Plan set forth in Section 5(a) above,
Executive shall be eligible to receive 25,000 restricted shares, vesting over a
five year period, and based upon performance metrics determined annually by the
Compensation Committee of the Board. The terms and conditions of this program
are set forth in the Restricted Stock Agreement. Provided that


 


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Executive’s
employment is not terminated pursuant to a Change of Control transaction, all
restricted shares shall vest upon a Change of Control.


 


6.                                       Benefits.


 


(a)                                  Executive
may participate in the following benefit plans and programs currently provided
by the Company:  health care benefits
(including medical, dental and vision coverage); group life insurance and
AD&D coverage; travel accident insurance; temporary and long-term
disability insurance; retirement programs (including a defined benefit pension
plan and an “excess” supplemental plan with initial vesting period of five
years); a 401(k) plan and/or an executive deferred compensation plan; and such
other benefit plans generally available from time to time to other senior
executives. Executive’s participation in and benefits under any benefit plan or
program shall be on the terms and subject to the conditions specified in such
plan or program.


 


(b)                                 In
addition to the foregoing benefits, Executive shall also receive the following
individual benefits:


 


(i)                                     Four
(4) weeks of paid vacation per year, effective upon hire.


 


(ii)                                  Supplemental
cash payments up to a maximum of Thirty-Six Thousand Dollars ($36,000) per year
to defray living and other expenses, including, without limitation, personal
and family travel to the mainland, and private schooling costs. These supplemental
cash payments will be subject to taxation.


 


7.                                       Reimbursement of Expenses. The Company will
reimburse Executive for the ordinary and necessary expenses incurred by him in
the performance of his duties under this Agreement in accordance with the Company’s
policies in effect from time to time, including, but not limited to membership
in professional organizations and participation in executive education
programs, as approved by the Chief Executive Officer.


 


8.                                       Termination of Employment.


 


(a)                                  By the Company: 
Notwithstanding any other provision of this Agreement, Executive’s
employment under this Agreement may be terminated by the Company:


 


(i)                                     Upon
death of Employee;


 


(ii)                                  Whenever
the Executive is not qualified — legally, physically, mentally or otherwise —
to perform the duties assigned to him, with or without reasonable
accommodation;


 


(iii)                               Without
cause, upon thirty (30) days notice to the other party; or


 


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(iv)                              For
good cause, at any time, without prior notice. “Cause” shall consist of any of
the following:


 


(1)                                  the
Executive is convicted of, or has pleaded guilty or entered a plea of nolo
contendere to, a felony (under the laws of the United States or any state
thereof);


 


(2)                                  fraudulent
conduct by the Executive in connection with the business or other affairs of
the Company or any related company or the theft, embezzlement, or other
criminal misappropriation of funds by the Executive from the Company or any
related company; or


 


(3)                                  the
Executive’s gross negligence to comply with reasonable directives of the Chief
Executive Officer and Board of Directors which are communicated to him in
writing, after reasonable written notice has been provided of such
non-performance by the Chief Executive Officer and Board of Directors, and, if
such failure is curable, Executive has not cured such failure within a
reasonable period following such notice.


 


(b)                                 By Executive. Executive may terminate his employment under
this Agreement under the following circumstances:


 


(i)                                     Upon
his retirement;


 


(ii)                                  Without
cause, upon thirty (30) days notice to the other party; or


 


(iii)                               Upon
a change in control of the Company. “Change in Control” means:


 


(1)                                  a
sale or other disposition of all or substantially all of the assets of the
Company;


 


(2)                                  a
merger or consolidation in which the Company is not the surviving entity and in
which the shareholders of the Company immediately prior to such consolidation
or merger own less than fifty percent (50%) of the surviving entity’s voting
power immediately after the transaction;


 


(3)                                  a
reverse merger or going private transaction in which the Company is the
surviving entity but the shares of the Company’s Common Stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash, or otherwise; or


 


(4)                                  any
other capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged.


 


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(c)                                  Notice of Termination. Any termination of this Agreement by
either party shall be communicated by written notice to the other party. Said
notice shall state in reasonable detail the facts and circumstances deemed to
provide the basis for such termination.


 


(d)                                 Payment Upon Termination.


 


(i)                                     Upon
termination of Executive’s employment pursuant to Sections 8.a.(i), (ii), (iii)
or 8(b)(iii) above, Executive shall be entitled to receive one (1) year of his base
salary and any benefits vested as of the date of such termination. All stock
options (but excluding unvested restricted shares), shall be considered vested.


 


(ii)                                  Upon
termination of Executive’s employment pursuant to Sections 8(a)(iv) or
8(b)(ii), Executive shall only be entitled to receive any base salary earned or
benefits vested as of the effective date of his termination, including any
vested options or restricted shares.


 


(iii)                               In
the event Executive’s employment is terminated pursuant to Section 8(b)(i),
Executive shall receive any base salary and incentive pay earned as of his
retirement date, as well as any benefits or stock options vested as of his
retirement date.


 


9.                                       Covenant Not to Compete; Confidentiality


 


(a)                                  Confidential Information. During Executive’s
employment with the Company and at all times after the termination of such
employment, regardless of the reason for such termination, Executive shall hold
all Confidential Information relating to the Company in strict confidence and
shall not use, disclose or otherwise communicate the Confidential Information
to anyone other than the Company without the prior written consent of the Company.
“Confidential Information” includes, without limitation, business, operations
and financial information (such as costs, profits and plans for future
expansion or development, plans for rendering additional services, methods of
operation and marketing concepts of Employer, as well as employment policies
and plans), trade secrets, and other proprietary business information of the Company.
“Confidential Information” shall not include information which is or becomes in
the public domain through no action by Executive or information which is
generally disclosed by the Company to third parties without restrictions on
such third parties. Executive shall return all Confidential Information to the
Company upon termination of employment.


 


(b)                                 Solicitation of Customers. During his
employment with the Company and for a period after the termination of Executive’s
employment, regardless of the reason for the termination, equal to one (1) year
(the “Non-Competition Period”), Executive shall not influence or attempt to
influence, directly or indirectly, any customer of the Company to divert its
business away from the Company.


 


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(c)                                  Soliciting Employees. Executive agrees that
during his employment with the Company and during the Non-Competition Period,
he will not directly or indirectly solicit any person who is then, or at any
time within six months prior thereto was, an employee of the Company to work
for any person or entity then in competition with the Company.


 


(d)                                 Non-Competition. During his employment with
the Company and during the Non-Competition Period, Executive shall not,
directly or indirectly, in any capacity:


 


(i)                                     Engage,
own or have any interest in; or


 


(ii)                                  Manage,
operate, join, participate in, accept employment with, render advice to, or
become interested in or be connected with;


 


any person or entity that competes with the
business of the Company. Notwithstanding the foregoing, holding five percent
(5%) or less of an interest in the equity, stock options or debt of any
publicly traded company, nor serving as a consultant to or member of the board
of directors of any entity approved by the Chief Executive Officer, shall not
be considered a violation of this Section 10.


 


(e)                                  Company Property. All information obtained in the course of
Executive’s work shall belong to Employer, and shall not be the subject of
publication or use without the written consent of the Chief Executive, whether
during or after the term of this Agreement. It is understood and agreed that
Executive shall not be entitled to retain any of the files or records of the
Company at any time. Upon termination or demand by the Chief Executive,
Executive shall promptly return all keys, equipment, books, records, files and
other property belonging to the Company.


 


(f)                                    Remedies. If Executive commits a breach or
threatens to commit a breach of any of the provisions of this Section 10, the Company
shall have the right and remedy to have the provisions of this Section 10
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company. Such right and remedy shall be in addition to,
and not in lieu of, any other rights and remedies available to the Company
under law or equity.


 


10.                                 Arbitration


 


(a)                                  Except
as provided in Section 10 above, in the event of a dispute arising out of the
terms and conditions of this Agreement, such dispute shall, absent settlement
of the parties, be promptly resolved by final and binding arbitration in the
State of Hawaii in accordance with the provisions of the Hawaii Uniform
Arbitration Act, Haw. Rev. Stat. Chapter 658A, by a single arbitrator mutually
agreed upon by the parties. The arbitrator shall be required to abide by the
provisions of this


 


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Agreement and
the arbitrator shall not modify or alter same. A judgment upon the award may be
entered in any court having jurisdiction of the parties.


 


(b)                                 In
arbitrations under this Agreement, each party shall bear the costs, fees and expenses
of presenting its own case, and one-half of the arbitrator’s fees and
administration expenses, unless otherwise ordered by the arbitrator for good
cause shown.


 


11.                                 Severability and Savings. Each provision in
this Agreement is separate. If necessary to effectuate the purpose of a
particular provision, the Agreement shall survive the termination of Executive’s
employment with the Company. If any provision of this Agreement, in whole or in
part, is held to be invalid or unenforceable, the parties agree that any such
provision shall be deemed modified to make such provision enforceable to the
maximum extent permitted by applicable law. As to any provision held to be
invalid or unenforceable, the remaining provisions of this Agreement shall
remain in effect.


 


12.                                 Binding Effect. This Agreement shall be
binding upon and shall inure to the benefit of Company and its successors and
assigns. This Agreement shall be binding upon and inure to the benefit of Executive,
his heirs and personal representatives. This Agreement is not assignable by Executive.


 


13.                                 Entire Agreement. This Agreement embodies
the entire agreement of the parties hereto respecting the matters within its
scope. This Agreement supersedes all prior agreements of the parties hereto on
the subject matter hereof. There are no representations, warranties, or
agreements, whether express or implied, or oral or written, with respect to the
subject matter hereof, except as set forth in this Agreement.


 


14.                                 Miscellaneous.


 


(a)                                  No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the Company
and Executive. The waiver or nonenforcement by the Company of a breach by Executive
of any provision of this Agreement shall not be construed as a waiver of any
subsequent breach by Executive.


 


(b)                                 Any
notice under this Agreement must be in writing and delivered personally or by
overnight courier, sent by facsimile transmission or mailed by registered or
certified mail to the parties at their respective addresses.


 


(c)                                  This
Agreement shall be governed by the laws of the State of Hawaii.


 


(d)                                 This
Agreement may be executed in counterparts, which together shall constitute one
Agreement.


 


(e)                                  By
their signatures below, the parties acknowledge that they have had sufficient
opportunity to read and consider, and that they have carefully read and
considered, each provision of this Agreement and that they are voluntarily
signing this Agreement.


 


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This Agreement is executed this 4th day of August, 2006.


 


 


	
   

  	
   

  	
   

  	
  /S/ ROBERT I WEBBER

  	
   

  
	
   

  	
  Robert I. Webber

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Maui Land & Pineapple Company, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
  /S/ DAVID C. COLE

  	
   

  
	
   

  	
   

  	
  David C. Cole

  
	
   

  	
  Its

  	
  Chairman, President & CEO

  
						



 


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