ALEXANDER & XXXXXXX, INC.
RESTRICTED STOCK ISSUANCE AGREEMENT
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AGREEMENT made as of ____________, by and between ALEXANDER & XXXXXXX,
INC., a Hawaii corporation (the "Corporation"), and ____________ (the
"Participant").
All capitalized terms in this Agreement shall have the meaning assigned
to them in this Agreement or in the Corporation's 1998 Stock Option/Stock
Incentive Plan, as amended (the "Plan").
A. ISSUANCE OF SHARES
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1. Issuance. In consideration for Services and as an incentive to
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remain in the Service of the Corporation (or any Parent or Subsidiary), the
Participant shall be issued ___________________ shares (the "Issued Shares") of
common stock of the Corporation (the "Common Stock") pursuant to the provisions
of the Stock Issuance Program of the Plan. The Issued Shares shall have an issue
price per share equal to the Fair Market Value per share of Common Stock on the
date of this Agreement, which is $______ per share. The Issued Shares shall be
unvested and shall be subject to cancellation under the terms described in
Paragraph C.2 hereof.
2. Stockholder Rights. Until such time as the Issued Shares vest
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pursuant to the provisions of Paragraph C.1 hereof, the Participant shall have
all the rights of a stockholder (including voting, dividend and liquidation
rights) with respect to the Issued Shares, subject, however, to the restrictions
and conditions of this Agreement.
3. Escrow. The Corporation shall hold the Issued Shares in escrow
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until those shares have vested in accordance with the vesting schedule described
in Paragraph C.1 hereof. The Issued Shares which so vest shall be released from
escrow upon the Participant's payment to the Corporation of the federal and
state income and employment withholding taxes to which the Participant becomes
subject by reason of the Participant's vesting in the Issued Shares.
4. Compliance with Law. Under no circumstances shall shares of
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Common Stock be issued or delivered to the Participant pursuant to the
provisions of this Agreement unless there shall have been compliance with all
applicable requirements of Federal and state securities laws, all applicable
listing requirements of the Nasdaq National Market or any successor system and
all other requirements of law or of any regulatory bodies having jurisdiction
over such issuance and delivery.
B. TRANSFER RESTRICTIONS
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1. Restriction on Transfer. The Participant shall not transfer,
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assign, encumber or otherwise dispose of any of the Issued Shares which are
subject to the cancellation provisions of Paragraph C.2 hereof.
2. Restrictive Legend. The stock certificate(s) for unvested
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Issued Shares shall be endorsed with the following restrictive legend:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY HAVE BEEN ISSUED
PURSUANT TO THE PROVISIONS OF THE STOCK ISSUANCE PROGRAM OF THE
ALEXANDER & XXXXXXX, INC. 1998 STOCK OPTION/STOCK INCENTIVE PLAN, AS
AMENDED ("PLAN") AND ARE SUBJECT TO CANCELLATION BY THE CORPORATION,
UPON THE TERMS AND CONDITIONS SPECIFIED IN A WRITTEN AGREEMENT DATED AS
OF _____________ BETWEEN THE CORPORATION AND THE REGISTERED HOLDER OF
THE SHARES. A COPY OF SUCH AGREEMENT IS MAINTAINED AT THE CORPORATION'S
PRINCIPAL CORPORATE OFFICES. WHILE SUCH CANCELLATION RIGHT IS IN
EFFECT, THE CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR PLEDGED."
C. VESTING/CANCELLATION OF THE ISSUED SHARES
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1. Vesting. The Issued Shares shall initially be unvested and
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subject to cancellation in accordance with the provisions of Paragraph C.2
hereof. The following vesting schedule shall be in effect for the Issued Shares:
One third (33.3%) of the Issued Shares shall vest in three (3)
successive equal annual installments upon Participant's completion of
each year of Service over a three-year period measured from the date of
this Agreement; provided, however, that any unvested shares shall
automatically vest upon the occurrence of:
(i) the Participant's normal retirement (age 65) or approved early
retirement (age 55 plus 5 years Service), or
(ii) the Participant's termination of Service by reason of death or
Permanent Disability.
Upon vesting, the Participant shall acquire a fully-vested interest
in, and the transfer restrictions of Paragraph B hereof and the
cancellation provisions of Paragraph C.2 hereof shall terminate with
respect to, the vested Issued Shares.
For purposes of the vesting provisions of this Paragraph C.1,
Service shall mean the Participant's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an
Employee or a non-employee member of the board of directors of any
Subsidiary. Participant shall be deemed to cease such Service
immediately upon the occurrence of either of the following events: (i)
Participant no longer performs services in any of the foregoing
capacities for the Corporation (or any Parent or Subsidiary) or (ii)
the entity for which Participant performs such services ceases to
remain a Parent or Subsidiary of the Corporation, even though
Participant may subsequently continue to perform services for that
entity. Service shall not be deemed to cease during a period of
military leave, sick leave or other personal leave approved by the
Corporation; provided, however, that except to the extent otherwise
required by law or expressly authorized by the Plan Administrator or
the Corporation's written leave of absence policy, no Service credit
shall be given for vesting purposes for any period the Participant is
on a leave of absence.
2. Cancellation of Issued Shares. Should the Participant cease
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Service for any reason prior to the completion of the vesting schedule described
in Paragraph C.1 hereof, then all of the unvested Issued Shares shall be
immediately cancelled, and the stock certificates for those Issued Shares shall
be immediately cancelled, without any cash or other payment due from the
Corporation with respect to the cancelled Issued Shares, and the Participant
shall no longer be entitled to any rights as a stockholder with respect to those
shares or to any other entitlement or interest with respect to such shares.
3. Recapitalization. Any new, substituted or additional securities
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or other property (including cash paid other than as a regular cash dividend)
which the Participant might have the right to receive with respect to unvested
Issued Shares by reason of any stock dividend, stock split, recapitalization,
combination of shares, exchanges of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, shall be issued subject to the cancellation provisions and the
escrow requirements hereunder.
4. Change in Control. In the event of a Change in Control during
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the Participant's period of Service, then the cancellation provisions of
Paragraph C.2 hereof shall lapse in their entirety, and the Issued Shares shall
vest in full.
D. GENERAL PROVISIONS
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1. At Will Employment. Nothing in this Agreement or in the Plan
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shall confer upon the Participant any right to continue in Service for any
period of specific duration or interfere with or otherwise restrict in any way
the rights of the Corporation (or any Subsidiary employing or retaining the
Participant) or of the Participant, which rights are hereby expressly reserved
by each, to terminate the Participant's Service at any time for any reason, with
or without cause.
2. Notices. Any notice required to be given under this Agreement
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shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the U.S. mail, registered or certified, postage prepaid and properly
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this paragraph
to all other parties to this Agreement.
3. No Waiver. No waiver of any breach or condition of this
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Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
4. Cancellation of Shares. Should the cancellation provision
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contained in Paragraph C.2 hereof become applicable in connection with the
Participant's termination of Service, then from and after that time, the person
from whom such shares are to be cancelled shall no longer have any rights as a
holder of such shares. Such shares shall be deemed cancelled in accordance with
the applicable provisions hereof, and the Corporation shall be deemed the owner
and holder of such shares, whether or not the certificates therefor have been
delivered to the Corporation.
5. Participant Undertaking. The Participant hereby agrees to take
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whatever additional action and execute whatever additional documents the
Corporation may deem necessary or advisable in order to carry out or effect one
or more of the obligations or restrictions imposed on either the Participant or
the Issued Shares pursuant to the provisions of this Agreement.
6. Agreement and Plan Constitute Entire Contract. This Agreement
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and the Plan constitute the entire contract between the parties hereto with
regard to the subject matter hereof. This Agreement is made pursuant to the
provisions of the Plan and shall in all respects be construed in conformity with
the terms of the Plan.
7. Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Hawaii without resort to
that State's choice of law rules.
8. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
9. Successors and Assigns. The provisions of this Agreement shall
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inure to the benefit of, and be binding upon, the Corporation and its successors
and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
ALEXANDER & XXXXXXX, INC.
By _______________________________
Its Vice President
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Participant
Address:
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