SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS
This Settlement Agreement and General Release of Claims ("Release")
is
entered into by and among C. Bradley
Mulholland, an individual ("Mulholland"),
Matson Navigation Company, Inc., a
corporation ("Matson"), and Alexander &
Baldwin, Inc., a corporation ("A&B")
(hereafter collectively referred to as the
"parties"), and is based upon the
following:
RECITALS
A. Mulholland has been employed by Matson for approximately 39
years.
In furtherance of a Succession Plan that
was established in mid-2001 and refined
in the summer of 2002, Mulholland moved
from his position as President and Chief
Executive Officer of Matson to Vice
Chairman of the Matson Board of Directors.
Mulholland is also an Executive Vice
President of Matson's parent company, A&B,
and is also a member of the A&B Board
of Directors.
B. As an outgrowth of the aforementioned Succession Plan,
several
issues have arisen among the parties,
including a difference of opinion as to
the applicability of Matson's personnel
policy relating to severance pay.
Mulholland has asserted that he is entitled
to receive compensation under the
terms of Matson's severance pay policy (the
"severance claim"); Matson and A&B
dispute the severance claim, and believe
that Mulholland is not entitled to
receive any compensation under the terms of
the severance policy.
C. Mulholland, Matson and A&B desire to settle fully and
finally any
and all differences existing among them
with respect to the severance claim, and
any other claim or dispute relating to
Mulholland's employment with Matson and
A&B, the termination thereof, and any
other matter or event occurring up to the
date of this Release, and the parties wish
to avoid the prospect and expense of
litigation.
NOW THEREFORE, it is understood and agreed by and among each of
the
parties to this Release that in full,
sufficient and complete consideration of
the mutual promises and covenants contained
herein, Mulholland, Matson and A&B
agree as follows:
AGREEMENT
1. No Admission of Liability. Matson and A&B enter into this
Release
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for two basic reasons: first, in
recognition and appreciation of Mulholland's
many years of service to Matson and A&B
in various executive capacities, and
their desire that the aforementioned
Succession Plan be implemented; and second,
in order to avoid the time, distraction and
expense involved in potential
litigation. Therefore, this Release shall
in no way be construed as an admission
by Matson, A&B, or any of the Releasees
(as defined in paragraph 5 below), of
any wrongful conduct with respect to
Mulholland, or that Mulholland has any
rights whatsoever against Matson, A&B
or any of the Releasees. Matson and A&B
specifically disclaim any liability to or
wrongful acts against Mulholland on
the part of Matson, A&B or any of the
Releasees.
2. Payment. Matson agrees that when its counsel of record receives
the
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fully executed original of this Release, as
well as copies of the resignation
letters referred to in paragraph 4 below,
then, upon expiration of the
revocation period described in paragraph 21
below, Matson shall transmit to
Mulholland's attorney of record, William E.
Adams, Esq., a check in the gross
amount of Two Hundred Sixty-One Thousand
Five Hundred Dollars ($261,500.00),
less customary employee withholdings, made
payable to C. Bradley Mulholland.
This check is intended as payment in full
for Mulholland's Release of the
severance claim, as well as any and all
claims relating to Mulholland's
employment with Matson and A&B, the
termination thereof, or any other matter or
event occurring up to the date of this
Release. Mulholland acknowledges that
upon receipt of the settlement check,
Matson, A&B and the Releasees will have no
further obligations of any kind to him
apart from the benefits referred to in
paragraph 3 below.
3. Benefits Upon Mulholland's Retirement. Mulholland, Matson and
A&B
-------------------------------------
agree that Mulholland is entitled to
receive the benefits resulting from his
retirement, as specifically set forth in
the December 4, 2003 Interoffice
Correspondence from John Gasher to
Mulholland, a true and correct copy of which
is attached hereto as Exhibit A and by this
reference incorporated fully herein.
Regarding the Performance Improvement
Incentive Plan ("PIIP") referred to in
Exhibit A, there will be no direct or
indirect offset in Mulholland's award
under such PIIP based on the settlement
amount in paragraph 2.
4. Retirement and Resignation from Boards. Mulholland agrees that
he
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will retire from Matson and A&B
effective January 1, 2004, and that he will
resign from the Matson and A&B Boards
of Directors effective December 31, 2003.
To that end, Mulholland agrees that on or
before December 31, 2003, he will
submit two letters of resignation, one
confirming his resignation as Vice
Chairman of the Board of Matson and as a
member of the Matson Board of
Directors, and his retirement from Matson,
and the other confirming his
resignation as Executive Vice President of
A&B and as a member of the A&B Board
of Directors, and his retirement from
A&B. True and correct copies of the forms
of resignation letters are attached hereto
as Exhibits B and C, respectively,
and by this reference incorporated fully
herein. The parties further agree that
Mulholland will be given an opportunity to
review and comment on any internal or
external announcement of his
retirement.
5. Release. As a material inducement to Matson and A&B to enter
into
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this Release, Mulholland hereby irrevocably
and unconditionally releases,
acquits and forever discharges Matson,
A&B, and all of Matson's and A&B's
respective subsidiaries, affiliates,
divisions, successors, predecessors,
related corporate entities, assigns, and
current and former employees, officers,
directors, shareholders, agents,
representatives and attorneys, and all persons
acting by, through, under or in concert
with any of them (hereafter collectively
the "Releasees"), from any and all causes
of action, judgments, liens,
indebtedness, costs, damages, obligations,
attorneys' fees, losses, claims,
liabilities and demands of whatever kind
and character arising out of or in any
way relating to Mulholland's employment
with Matson and A&B, the termination
thereof, or any other matter or event
occurring up to the date of this Release.
Without limiting the generality of the foregoing, Mulholland
releases
Releasees from any and all claims and
disputes arising out of any federal or
state (including, without limitation,
California and Hawaii) statute or
regulation, municipal ordinance, or common
law, including without limitation
claims for wrongful termination based on
public policy, claims under state or
federal wage and hour laws; claims under
ERISA; claims for discrimination under
Title VII of the Civil Rights Act of 1964,
as amended, the Civil Rights Act of
1991, the Age Discrimination in Employment
Act, and comparable state statutes
and regulations, including without
limitation, the California Fair Employment
and Housing Act, the Hawaii Employment
Practices Act and Hawaii Civil Rights
Act; and any and all other claims
whatsoever based on contract, quasi-contract,
implied contract, tort, breach of the
covenant of good faith and fair dealing,
defamation, libel, slander, conspiracy,
infliction of emotional distress,
discrimination on any basis prohibited by
statute or public policy, fraud,
negligent misrepresentation, negligence or
interference with business
opportunity or with contract, or any claims
for bonus or severance pay. This
Release extends to any current or former
Matson and A&B officer, director,
employee, consultant, agent and attorney,
whether or not acting in his/her
representative, individual or other
capacity. However, this Release shall not
release Matson and A&B from any
obligation to indemnify Mulholland under
applicable law or under Matson's or
A&B's bylaws or Directors and Officers
liability coverage.
6. Return of Company Property. Mulholland agrees that on or
before
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December 31, 2003, he will have returned to
Matson any personal property in his
possession or control that belongs to or
was issued by Matson and A&B,
including, without limitation,
company-issued credit cards and company-issued
computer and software, as well as all
papers, files, documents, data and
information, whether in paper, electronic,
or other format, belonging or
relating to Matson and A&B, or any of
the other Releasees.
7. Covenant Not to Sue. Mulholland represents that he presently has
no
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charges, claims or lawsuits of any kind
pending against Matson, A&B or any of
the Releasees, arising out of or in any way
related to his employment with
Matson and A&B, the termination
thereof, or any other matter or event occurring
up to the date of this Release. Mulholland
represents and agrees that he will
not pursue, initiate or cause to be
instituted at any time in the future any
charge, claim or lawsuit against Matson,
A&B or any of the Releasees, before any
state or federal court, or any state or
federal agency or other governmental
entity arising out of or related to his
employment with Matson and A&B, the
termination thereof, or any other matter or
event occurring up to the date of
this Release.
8. No Future Employment. Mulholland agrees that he will not
seek
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employment or consulting work with Matson,
A&B or any of the other Releasees at
any time in the future, nor will he file
any charge, claim or lawsuit against
Matson or any of the Releasees which
relates in any way to any failure or
refusal by Matson or any of the Releasees
to employ Mulholland as an employee,
consultant or contractor at any time in the
future.
9. Waiver of All Claims. Mulholland hereby expressly waives any and
all
--------------------
rights under Section 1542 of the California
Civil Code, which reads as follows:
Section 1542. A general Release does not extend to claims
------------
which the creditor does not know or suspect to exist in her
favor at the time of executing the Release, which if known by
him, must have materially affected her settlement with the
debtor.
Mulholland acknowledges that Matson and A&B have separately
bargained
for the foregoing waiver of unknown claims,
and that he has had an opportunity
to review this provision with attorney
Adams, and that he specifically
acknowledges that this waiver of unknown
claims is a material term of this
Release.
10. Confidentiality. Subject to the exceptions set forth below,
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Mulholland agrees that he will keep the
terms of this Release completely
confidential and that he will not disclose
to anyone the terms of this Release;
provided, however, that Mulholland may
disclose the terms of this Release to his
spouse, or if required to do so by law, or
as may be needed to obtain legal
and/or tax advice.
11. Obligations to Protect Proprietary Information. Mulholland
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acknowledges and agrees that he will
preserve and protect, and that he will not
use or disclose to any third party, any
trade secrets, sensitive or confidential
information proprietary to Matson and to
A&B.
12. No Transfer. Mulholland represents that he has not
heretofore
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assigned or transferred any claim, or any
portion thereof, which he has or
claims to have, against Matson, A&B, or
the Releasees, and Mulholland further
agrees to indemnify, defend and hold
Matson, A&B and Releasees harmless from and
against any and all claims based on or
arising out of any such assignment or
transfer, or purported assignment or
transfer of any such claim or any portion
thereof or interest therein.
13. Product of Negotiation. The parties acknowledge that this
Release
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