MAUI LAND & PINEAPPLE, INC.
RESTRICTED SHARE AGREEMENT FOR XXXXX XXXX
Agreement dated October 6, 2003 ("Agreement"), between
Maui Land & Pineapple, Inc., a Hawaii corporation ("Company"),
whose principal place of business is in the State of Hawaii, and
Xxxxx X. Xxxx ("Grantee").
1. Grant of Restricted Shares. The Company hereby
agrees to grant to Grantee 100,000 shares ("Restricted Shares")
of the Company's common stock ("Company Stock" or "Shares"),
which grant shall be effective as of October 15, 2003 ("Grant
Date"). However, this grant shall be contingent upon the
Company's obtaining shareholder approval of certain amendments to
the Company's Restated Articles of Association as may be required
to increase authorized Shares for implementation of this grant.
The actual transfer of the Restricted Shares shall be made to
Grantee as soon as practicable following such shareholder
approval. This grant of Restricted Shares is made pursuant to
the terms of that certain employment agreement by and between the
Company and Grantee effective as of October 15, 2003 ("Employment
Agreement").
2. Restrictions During Restriction Period.
a. Service Restriction. Except to the extent
otherwise provided in this Agreement, each Restricted Share shall
be forfeited and transferred to the Company upon Grantee's
termination of employment for any reason, whether voluntary or
involuntary, as an employee of the Company or its subsidiary
prior to the expiration of the "Restriction Period" for such
Restricted Share, as that term is defined below; provided,
however, that, for this purpose, (i) any termination of Grantee's
employment that occurs on or after the fourth anniversary of the
Grant Date but not later than the Final Announcement Date, as
defined in Section 2.d below, shall be deemed to have occurred on
the first business day after the Final Announcement Date, and
(ii) any other termination of Grantee's employment by reason of
death (as described in Section 8(a) of the Employment Agreement)
or disability (as described in Section 8(b) of the Employment
Agreement) that occurs on or after July 1 of any year during the
Performance Period (as defined below in Section 2.c(2)) but no
later than the Announcement Date (as defined below in Section
2.c(5)) for that year shall be deemed to have occurred on the
first business day after such Announcement Date. Further, for
this purpose, Grantee's employment shall not be treated as
terminated in the case of a transfer of employment within the
Company and its subsidiaries or in the case of sick leave and
other approved leaves of absence.
b. Transfer Restriction. During the Restriction
Period for a particular Restricted Share or Shares, such Restricted
Share(s) shall not be sold, assigned, pledged, or otherwise
transferred by Grantee except by will or by the laws of descent and
distribution, or to a member of Grantee's immediate family or,
provided that the transferee agrees in writing in a form provided
by the Company to be bound by all provisions of this Agreement, a
trust or family partnership or any other entity customarily used
for estate planning purposes. Any attempted transfer of the
Restricted Shares contrary to the foregoing restriction shall be
ineffective.
c. Restriction Period. For purposes of this
Agreement and with respect to any particular Restricted Share
granted under this Agreement, the term "Restriction Period" shall
mean a period which commences on the Grant Date and terminates upon
the vesting of such Restricted Share as provided in the following
paragraphs.
(1) Up to 25% of the aggregate Restricted
Shares (i.e., up to 25,000 shares) shall be vested based on the
achievement of performance objectives during the one-year
performance period beginning January 1, 2004, and ending on
December 31, 2004. At its sole and complete discretion, the
Compensation Committee of the Company's Board of Directors (the
"Committee") shall assess the Grantee's performance against the
following performance objectives and determine the number of
Restricted Shares which shall be vested based on such assessment:
(i) return of the Company's agricultural group to breakeven by
the end of 2004; (ii) adoption of a strategic plan describing the
Company's chosen markets and methods; (iii) configuration and
alignment of an executive team with the skills and incentives to
implement the strategic plan; and (iv) enrichment and extension
of the Company's reputation as a good corporate citizen on Maui
and throughout Hawaii.
(2) Thereafter, the remaining 75% of
aggregate Restricted Shares shall become vested annually based on
the achievement of performance criteria during the annual
performance periods beginning January 1, 2005, and ending on
December 31, 2007 (those three years, taken together, being
referred to herein as the "Performance Period"). Specifically,
for each of those three calendar years, a block of 25% of the
aggregate Restricted Shares (i.e., 25,000 shares) shall be
subject to vesting based on achieving, during such year, a level
of "Return on Equity" ("XXX", as described below) within a range
of XXX from a threshold of 10% to a maximum of 20%. The amount
of the block that is vested for each of those calendar years
shall be determined by multiplying the block of Restricted Shares
(i.e., 25,000 shares) by a fraction (not exceeding 1.0), the
numerator of which is the amount by which the XXX for the year
exceeds the threshold XXX of 10%, and the denominator of which is
10%. Thus, for example, assume that for the year 2005 the XXX is
determined to be 15%. Half of the 25,000 Restricted Shares for
2005 will become vested following the end of 2005 (i.e., based on
a fraction of (15% XXX minus 10% threshold XXX)/10%).
Notwithstanding the foregoing, in the event that Grantee's
employment is terminated by reason of death or disability that
occurs on or after July 1 of any year in the Performance Period
but no later than the Announcement Date for that year and is
therefore deemed to have occurred on the first business day after
such Announcement Date pursuant to Section 2.a, then the number
of Restricted Shares that otherwise would vest pursuant to the
above calculation shall be multiplied by a fraction (not
exceeding 1.0), the numerator of which is the number of days in
the year of Grantee's death or disability prior to such death or
disability, and the denominator of which is 365.
(3) Further, the blocks of 25,000 shares for
the calendar years 2005, 2006 and 2007 shall be subject to
additional vesting based on a determination of the average XXX
for the two-year and three-year periods ending at the end of the
second and third calendar years in the Performance Period.
Specifically, the additional Restricted Shares vested for a given
calendar year shall be determined following the end of the second
calendar year and the third calendar year within the Performance
Period and shall be equal to: (i) the vested amount of the block
of 25,000 Restricted Shares for the given calendar year as
determined by applying the above fraction, except by substituting
the average XXX for the two-year or three-year period, as
applicable, in lieu of the XXX for the given calendar year, minus
(ii) the amount of shares for the given calendar year that has
vested based on the XXX for that year alone (or, in the case of
evaluation of vesting of the block of 25,000 shares for 2005 in
light of the three-year average XXX for 2005, 2006 and 2007,
minus the amount that had vested based on XXX for 2005 and minus
any additional amount that had vested based on the average XXX
for 2005 and 2006). Thus, for example, again assume that for the
year 2005 the XXX is determined to be 15%, and the 25,000 share
block of Restricted Shares for 2005 becomes 50% vested following
the end of 2005 (i.e., based on a fraction of (15% XXX minus 10%
threshold XXX)/10%). Thereafter, if the average XXX as of the
end of 2006 is determined to be 16%, then the 25,000 share block
of Restricted Shares for 2005 shall be subject to an additional
10% vesting, equal to 60% vesting based on the average XXX (i.e.,
fraction of (16% average XXX minus 10% threshold XXX)/10%) minus
50% prior vesting based on XXX for 2005. In other words, to the
extent that the average XXX for the Performance Period determined
as of the end of 2006 or 2007 exceeds the XXX for a particular
calendar year within the Performance Period as calculated for
that year alone, an additional amount of the 25,000 share block
of Restricted Shares for that calendar year shall become vested.
Without limiting the generality of the foregoing but for greater
clarity: (i) additional vesting of the 25,000 share block for
2005 might occur not only on the basis of the two-year average
for 2005 and 2006 but also on the basis of the three-year average
for 2005, 2006, and 2007; and (ii) an additional amount of the
25,000 share block for 2007 (beyond the amount thereof that
vested based on the XXX for 2007 alone) will become vested based
on such average XXX calculation for the entire three-year period
if the average XXX for the entire three-year period is higher
than the XXX for 2007 alone. Notwithstanding the foregoing, in
the event that Grantee's employment is terminated by reason of
death or disability that occurs on or after July 1 of any year in
the Performance Period but no later than the Announcement Date
for that year and is therefore deemed to have occurred on the
first business day after such Announcement Date pursuant to
Section 2.a, then the number of additional Restricted Shares that
otherwise would vest pursuant to the above calculation shall be
multiplied by a fraction (not exceeding 1.0), the numerator of
which is the number of days in the year of Grantee's death or
disability prior to such death or disability, plus 365 times the
number of previous years in the Performance Period (if any), and
the denominator of which is 365 times the number of years in the
Performance Period (through and including the year of Grantee's
death or disability).
(4) For purposes of this Agreement,
Return on Equity or XXX shall mean the Company's net income after
tax, exclusive of extraordinary items such as discontinued
operations, asset sales outside the ordinary course of business,
and major impairment losses, divided by beginning stockholders'
equity, all determined, unless otherwise agreed by the Company
and Grantee, in accordance with generally accepted accounting
principles, consistently applied ("GAAP").
(5) With proper regard to GAAP and sound
accounting judgments and the agreements of the Company and
Grantee, the Committee shall announce the extent of vesting of
the block of Restricted Shares for each year during the
Performance Period as soon as reasonable possible after audited
financial statements are available for such year and again, if
applicable, as soon as practicable after audited financial
statements become available for the following one or two calendar
years. As to shares that vest, the Restriction Period shall
terminate as of the date on which the Committee so announces
vesting.
d. Other Termination of Restriction Period.
Notwithstanding Section 2.c above, the Restriction Period shall
terminate as to all of the Restricted Shares, and all such shares
shall vest, immediately upon: (i) any termination by the Company
"without cause" of Grantee's employment on or before the date of
the Committee's announcement of vesting as to 2007 and any
additional vesting as to the 25,000 share blocks for 2005 and 2006
(the "Final Announcement Date"); or (ii) except as provided in
Section 8(g)(iii) of the Employment Agreement, the Grantee's
resignation for "good reason" on or before the Final Announcement
Date. For these purposes, termination of Grantee's employment by
Company "without cause" and Grantee's resignation "for good
reason" shall be understood as those terms are explained in
Sections 8(d), 8(f), and 8(g) of the Employment Agreement.
e. Lapse of Restrictions. The restrictions set
forth in Sections 2.a and 2.b above shall lapse and no longer apply
as to any Share(s) upon the termination of the Restriction Period
as to such Share(s) (i.e., upon their vesting).
f. Forfeiture Following Performance Period. To
the extent that the Restriction Period for the Restricted Shares
does not terminate or lapse based on performance through December 31,
2007, any remaining nonvested Restricted Shares shall be
forfeited and transferred to the Company as soon as practicable
following the Final Announcement Date.
3. Issuance of Shares; Registration; Withholding
Taxes.
a. As part of the grant under this Agreement,
certificates for the Restricted Shares shall be issued in
Grantee's name and shall be held by the Company until (i) such
Shares vest (so that the restrictions on such shares lapse), or
(ii) such Shares are forfeited as provided herein. A certificate
or certificates representing the Restricted Shares as to which
the Restriction Period has terminated (i.e. shares that have
vested) shall be delivered to Grantee promptly upon
such termination (i.e., vesting). No certificate representing
forfeited Restricted Shares shall be delivered to the Grantee.
b. The Company may require customary
investment representation from Grantee and may include legends on
the stock certificate(s) as described in Section 7 below. The
Company may withhold Shares to the extent required under
applicable tax withholding laws, including the withholding of
Shares otherwise payable as part of the grant. In any event,
Grantee shall comply with any and all legal requirements relating
to Grantee's resale or other disposition of any Shares acquired
under this Agreement.
4. Share Exchanges and Extraordinary Distributions.
If there should occur, while any of the Restricted Shares are
being held by Company as provided in Section 3, above, either (a)
an exchange of Company shares for other securities or (b) an
extraordinary distribution to Company shareholders of cash (other
than an ordinary cash dividend), additional securities, or other
property, Company shall: (i) hold and/or (ii) distribute to
Grantee and/or (iii) treat as forfeited the exchanged securities
or the cash, securities, or other property comprising the
extraordinary distribution proportionately as it would have done
as to the Shares so exchanged or as it does to the Shares in
respect of which such extraordinary distribution is made. This
provision is intended to apply, as applicable, in the case of a
merger, reorganization, recapitalization, reclassification, stock
split, stock dividend, spin-off, large special distribution, etc.
5. Rights as Shareholder. Unless otherwise specifically
provided herein, Grantee shall be entitled to all of the rights
of a shareholder with respect to the Restricted Shares, including
the right to vote such Shares and to receive ordinary dividends
(not including exchanged securities or extraordinary
distributions provided for in Section 4 above) payable with
respect to such Shares since the Grant Date. Grantee's rights as
a shareholder shall terminate in the event of Grantee's
forfeiture of the Restricted Shares.
6. Registration of Restricted Shares.
a. As used in this Section 6, the following
terms shall have the following respective meanings:
(1) "1933 Act" means the Securities Act of
1933, as amended.
(2) "1934 Act" means the Securities Exchange
Act of 1934, as amended.
(3) "Form S-3" means SEC Form S-3 under the
1933 Act as in effect on the date hereof or any other
registration form under the 1933 Act which, at the applicable
time, permits the registration of Shares as and in the manner
provided herein and the incorporation by reference of substantial
information for other documents filed with the SEC.
(4) The terms "register", "registered" and
"registration" refer to a registration effected by preparing and
filing a registration statement or similar document in compliance
with the 1933 Act, and the declaration or ordering of the
effectiveness of such registration statement or document with the
SEC.
(5) The term "Registrable Securities" means:
(i) Restricted Shares which have vested (and as to which,
therefore, the Restriction Period has terminated) and (ii) any
Company Stock issued by way of a stock split, stock dividend,
recapitalization, merger or other distribution with respect to,
or in exchange for, or in replacement of, such Restricted Shares;
but excluding in all cases, however, any Registrable Securities
sold or otherwise transferred by Grantee in a transaction in
which his rights under this Section 6 are not effectively
assigned.
b. The Company shall use its best efforts (i) to
effect the registration for resale by Grantee or his permitted
transferee on Form S-3 and on a "shelf registration" basis, of
each 25% block of the Restricted Shares (and any other related
Registrable Securities) prior to the time for announcement of
vesting of such 25% block of Restricted Shares pursuant to
Section 2.c hereof; and (ii) to maintain such registration in
effect continuously until the expiration of Grantee's
registration rights as provided for in the immediately following
Section 6.c hereof; and (iii) to effect all such other
registrations, qualifications and compliance as may be requested
and as would permit or facilitate the sale and distribution of
all or such portion of such Registrable Securities; provided,
however, that the Company shall not be obligated to effect any
such registration, qualification or compliance pursuant to this
Section 6 in any particular state or jurisdiction in which the
Company would be required to qualify to do business or to execute
a general consent to the service of process in effecting such
registration, qualification or compliance.
c. The Grantee's registration rights shall
expire upon the earlier to occur of the following: (i) when all
shares of Company Stock held by and issuable to the Grantee have
vested and may be sold by Grantee under Rule 144 during any
ninety (90) day period; or (ii) at such time as all Registrable
Securities may be sold by Grantee under SEC Rule 144(k).
d. Whenever required under this Section 6 to
effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(1) Prepare and file with the SEC a
registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become effective and to keep such registration
statement effective until the expiration of Grantee's
registration rights as provided for in the preceding Section 6.c.
(2) Prepare and file with the SEC such
amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as
may be necessary to comply with the provisions of the 1933 Act
with respect to the disposition of all securities covered by such
registration statement until the termination of registration
rights as set forth in Section 6.c above.
(3) Furnish to the Grantee such numbers of
copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such other
documents as he may reasonably request in order to facilitate the
disposition of Registrable Securities owned by him.
(4) Use its best efforts to register and
qualify the securities covered by such registration statement
under the securities laws of such jurisdictions as shall be
reasonably appropriate for the distribution of the securities
covered by the registration statement; provided, however, that
the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such jurisdiction.
(5) Notify the Grantee at any time when a
prospectus relating thereto is required to be delivered under the
1933 Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light
of the circumstances then existing. In such instance, Company
shall use its best efforts to amend or supplement such prospectus
to cure any such statement or omission so as to render such
statement or omission not misleading.
e. In connection with any action pursuant to
this Section 6, the Grantee shall furnish to the Company such
information regarding himself, the Registrable Securities held by
him, and the intended method of disposition of such securities as
shall be required to effect the registration of his Registrable
Securities. In that connection, the Grantee shall be required to
represent to the Company that all such information which is given
is both complete and accurate in all material respects when made.
Notwithstanding the foregoing, the Grantee may not dispose of the
Registrable Securities in an underwritten public offering without
the prior written consent of the Company, which consent shall not
be unreasonably withheld or conditioned.
f. (1) For purposes of this Section 6,
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with any of the provisions in this Section
6, including, without limitation, all registration, filing and
qualification fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and disbursements, and the
expense of any special audits incident to or required by any
registration pursuant to Section 6.b.
(2) For purposes of this Section 6, "Selling
Expenses" shall mean all selling commissions applicable to the
sale of the Registrable Securities in the registration, all stock
transfer taxes and all fees and disbursements of any special
counsel retained in connection with each such registration by the
Grantee.
(3) The Company shall bear all Registration
Expenses. All Selling Expenses shall be borne by the Grantee.
g. In the event any Registrable Securities are
included in a registration statement under this Section 6:
(1) To the extent permitted by law, the
Company will indemnify and hold harmless the Grantee, any
underwriter (as defined in the 0000 Xxx) for the Grantee and each
person, if any, who controls such Grantee or underwriter within
the meaning of the 1933 Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they
may become subject under the 1933 Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact
contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any state securities law
or any rule or regulation promulgated under the 1933 Act, the
1934 Act or any state securities law; and the Company will
reimburse the Grantee and each such underwriter or controlling
person for any reasonable and documented legal or other expenses
reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the Company's
indemnity contained in this Section 6.g shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for
any such loss, claim, damage, liability, or action to the extent
that it arises out of or is based upon a Violation which occurs
in reliance upon and in conformity with written information
furnished in writing and expressly stated for use in connection
with such registration by Grantee or such underwriter or
controlling person. The Company shall not be required to
indemnify any person against any liability arising out of the
failure of the Grantee or person acting on behalf of the Grantee
to deliver a prospectus as required by the 1933 Act. The
indemnity provided for in this Section 6.g shall remain in full
force and effect regardless of any investigation made by or on
behalf of such Grantee, underwriter, participating person or
controlling person and shall survive transfer of such securities
by the Grantee.
(2) To the extent permitted by law, the
Grantee will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within
the meaning of the 1933 Act, any underwriter (within the meaning
of the 0000 Xxx) for the Company, any person who controls such
underwriter, and any other Company shareholder selling securities
in such registration statement or any of its partners, directors
or officers or any person who controls such Company shareholder,
against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become
subject, under the 1933 Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by the Grantee
expressly stated in a writing for use in connection with such
registration; and the Grantee will reimburse any reasonable and
documented legal or other expenses, as incurred, where same are
reasonably incurred by any person intended to be indemnified
pursuant to this Section 6.g, in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
Section 6.g shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement
is effected without the consent of the Grantee, which consent
shall not be unreasonably withheld. Notwithstanding the
foregoing, the liability of the Grantee under this Section 6.g
shall be limited to an amount equal to the net proceeds from the
offering price of the shares sold by the Grantee.
(3) Promptly after receipt by an indemnified
party under this Section 6.g of notice of the commencement of any
action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 6.g notify the
indemnifying party in writing of the commencement thereof, and
the indemnifying party shall have the right to participate in
and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have
the right to retain its own counsel, with the reasonable and
documented fees and expenses to be paid by the indemnifying party
if the indemnified party reasonably determines that
representation of such indemnified party by the counsel retained
by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding.
The failure to notify an indemnifying party within a reasonable
time of the commencement of any such action, to the extent
prejudicial to its ability to defend such action (but only to
such extent), shall relieve such indemnifying party of any
liability to the indemnified party under this Section 6.g, but
the omission so to notify the indemnifying party will not relieve
it of any liability that it may have to any indemnified party
otherwise than under this Section 6.g.
(4) In order to provide for just and
equitable contribution to joint liability under the 1933 Act in
any case in which either (i) any indemnified party makes a claim
under this Section 6.g or any controlling person of such
indemnified party makes such a claim but is judicially determined
(by entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial
of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section
6.g provides for indemnification in such case, or (ii)
contribution under the 1933 Act may be required on the part of
any such person seeking indemnity under the terms of this Section
6.g; then, and in each such case, the Company and such person
will contribute to the aggregate losses, claims, damages, or
liabilities to which they may be subject (after contribution from
others) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of
the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability,
claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or
by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission; provided, however, that, in
any such case, (A) the Grantee shall not be required to
contribute any amount in excess of the net proceeds from the
offering price of all such Registrable Securities sold by him
pursuant to such registration statement; and (B) no person or
entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
h. With a view to making available to the
Grantee the benefits of Rule 144 promulgated under the 1933 Act
and any other rule or regulation of the SEC that may at any time
permit the Grantee to sell securities of the Company to the
public without registration, the Company agrees to:
(1) use its best efforts to make and keep
public information available, as those terms are understood and
defined in Rule 144, at all times;
(2) use its best efforts to file with the
SEC in a timely manner all reports and other documents required
of the Company under the 1933 Act and the 1934 Act; and
(3) furnish to the Grantee, so long as he
owns any Registrable Securities, forthwith upon request: (i) a
written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934
Act, or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3; (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports
and documents so filed by the Company; and (iii) such other
information as may be reasonably requested in order to permit the
Grantee to avail himself of any rule or regulation of the SEC or
any state securities authority which permits the selling of any
such securities without registration or pursuant to such form.
i. The rights to cause the Company to register
Registrable Securities pursuant to this Section 6: (a) shall
accompany the Restricted Shares in any transfer by will or by the
laws of descent and distribution (to the extent of the transfer),
and (b) may be assigned by the Grantee to any member of Grantee's
immediate family, trust or family partnership or other entity
customarily used for estate planning purposes to whom or which
any of the Restricted Shares are transferred (to the extent of
the Restricted Shares transferred to such person); provided that,
in the case of either clause "a" or clause "b" above: (i) the
person or entity receiving such Shares and rights timely executes
and delivers to the Company a written agreement to be bound by
the terms of this Agreement applicable to registration and/or
sale or other disposition of such Shares and the liabilities and
obligations in connection therewith, and (ii) the transfer of
such Shares is permissible hereunder and under all applicable
securities laws.
7. Restrictive Legends. Without limiting the
Company's obligations under Section 6 hereof, or the rights of
Grantee thereunder, as a condition of the issuance of the
Restricted Shares, the Grantee shall give the Company a written
acknowledgement substantially in the form attached hereto as
Attachment A, acknowledging that said shares may be reoffered or
resold by the Grantee only pursuant to a separate registration
statement under the Securities Act of 1933 (including without
limitation a registration statement filed pursuant to Section 6
hereof) or pursuant to an exemption from such registration
requirements (such as compliance with the provisions of Rule 144
under the Securities Act of 1933) and the Company may place upon
the stock certificate(s) for such Restricted Shares the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
WITH RESPECT TO THEM UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF. THE ISSUER MAY REQUIRE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT THE PROPOSED TRANSFER IS
IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
If, in the reasonable opinion of the Company and its
counsel, such legend is placed on any certificate representing
Restricted Shares, and then, under relevant provisions of the
federal securities laws and regulations and the case law and
interpretive and "no-action" guidance thereunder, such legend is
no longer required, Grantee shall be entitled to exchange such
certificate with the Company for a certificate representing the
same number of Shares but without such legend.
Further, during the Restriction Period, all
certificates evidencing Restricted Shares issued under this
Agreement shall bear the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE
SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO
THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) OF
THE EMPLOYMENT AGREEMENT AND RESTRICTED SHARE
AGREEMENT ENTERED INTO BY AND BETWEEN THE
REGISTERED OWNER AND MAUI LAND & PINEAPPLE
COMPANY, INC. COPIES OF SUCH AGREEMENTS ARE ON
FILE IN THE OFFICES OF MAUI LAND & PINEAPPLE
COMPANY, INC.
Such legend shall be removed from the certificates
representing Restricted Shares as to which the Restriction Period
has terminated (i.e., shares that have vested) and that are
delivered to Grantee pursuant to Section 3.a hereof.
8. Employment Rights. The grant of Restricted Shares
is made in accordance with the Employment Agreement between
Grantee and the Company, which Employment Agreement shall govern
the terms and conditions of the Grantee's employment with the
Company.
9. Amendment. This Agreement may be amended by the
Company at any time based on its determination that the amendment
is necessary or advisable in light of any addition to, or change
in, the Internal Revenue Code of 1986, as amended, or regulations
issued thereunder, or any federal or state securities law or
other law or regulation; provided, however, that no such
amendment shall adversely affect any of the rights of Grantee
hereunder absent the written consent of Grantee.
10. Notices. Any notice or other communication made
in connection with this Agreement shall be deemed duly given in
accordance with Section 25 of the Employment Agreement.
11. Miscellaneous. If litigation, arbitration, or
similar proceedings should be instituted based on, arising out
of, or in connection with, this agreement, the prevailing party
shall be entitled to an award of such party's costs and expenses
in connection therewith, including reasonable and documented
attorney fees and including reasonable and documented costs and
expenses in any appeal. This Agreement sets forth the final and
entire agreement between the parties with respect to the
Restricted Shares, which shall be governed by and shall be
construed in accordance with the laws of the State of Hawaii
without regard to any otherwise applicable principles of
conflicts of laws. This Agreement shall bind and benefit
Grantee, the heirs, distributees, personal representative, and
permitted assign(s) of Grantee, and the Company and its
successors and assigns.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement on the date first above written.
COMPANY: Maui Land & Pineapple GRANTEE:
Company, Inc.
By: /S/ XXXXX X. XXXXXX /S/ XXXXX X. XXXX
Name: Xxxxx X. Xxxxxx Xxxxx X. Xxxx
Title: Chairman of the Board
Attachments:
Attachment A: Acknowledgement Regarding Resale
ATTACHMENT A TO RESTRICTED SHARE AGREEMENT
ACKNOWLEDGEMENT REGARDING RESALE
All capitalized terms used in this Acknowledgement
shall have the meanings provided in the Restricted Share
Agreement dated October 6, 2003 (the "Agreement") between Maui
Land & Pineapple Company, Inc. and Xxxxx X. Xxxx.
In connection with the issuance of the Restricted
Shares:
1. Grantee acknowledges that the offer and sale of
the Restricted Shares to Grantee has not been registered under
the Securities Act of 1933, as amended (the "Securities Act") or
under any state securities act, in reliance, in part, on
Grantee's representations, warranties and agreements herein.
2. Grantee understands that the Restricted Shares are
"restricted securities" under the Securities Act of 1933, as
amended (the "Securities Act") in that such shares will be
acquired from Company in a transaction not involving a public
offering, that the Restricted Shares may be reoffered and resold
or otherwise transferred without registration under the
Securities Act only in certain limited circumstances, and that in
the absence of an effective registration statement under the
Securities Act (including without limitation a registration
statement filed by the Company pursuant to Section 6 of the
Restricted Share Agreement) or an exemption under the Securities
Act, the Restricted Shares must be held indefinitely. In this
connection, Grantee understands the resale limitations imposed by
the Securities Act.
3. Grantee represents and warrants to the Company
that he acquiring the Option Shares for investment and not for
resale or with a view to distribution other than pursuant to a
registration statement filed by the Company pursuant to Section 6
of the Restricted Share Agreement. Grantee further represents
that he [(i) is an "accredited investor" within the meaning of
Rule 501(a) under the Securities Act, and (ii)] possesses, either
alone or with his "purchaser representative" within the meaning
of Rule 501(h) under the Securities Act, such knowledge and
experience in financial and business matters that he is capable
of evaluating the merits and risks of an investment in the
Company.
4. Grantee acknowledges that he will not make any
disposition or other transfer of all or any part of the
Restricted Shares that will result in the violation by Grantee or
the Company of any applicable law, rule or regulation, including
the Securities Act or any applicable state securities law.
Without limiting the foregoing, Grantee agrees not to make any
offer, sale or other disposition or transfer of all or any part
of the Restricted Shares unless and until:
(a) There is then in effect a registration
statement under the Securities Act covering such offer, sale or
other disposition (including without limitation a registration
statement filed by the Company pursuant to Section of the
Restricted Share Agreement), and such offer, sale or other
disposition is made in accordance with such registration
statement and any applicable state securities laws; or
(b) Grantee has notified the Company of the
proposed disposition and has furnished the Company with a
detailed statement of the circumstances surrounding the proposed
disposition and, if and to the extent requested by the Company,
Grantee has furnished Company with a written opinion of counsel,
satisfactory to Company in its sole discretion, that such offer,
sale or other disposition or transfer will not require
registration under the Securities Act, or the consent of, or a
permit from, appropriate authorities under any applicable state
securities law.
5. Grantee acknowledges that he has a pre-existing
relationship with the Company and has has received and reviewed
all other documents and information he considers necessary and
appropriate for deciding whether to invest in Restricted Shares.
Grantee acknowledges that he has had an opportunity to ask
questions and receive answers regarding the terms and conditions
of the investment in Restricted Shares and regarding the
business, financial affairs, and other aspects of the Company,
and has further had the opportunity to obtain all information (to
the extent the Company possesses or can acquire such information
without unreasonable expense or effort) that he deems necessary
to evaluate the investment and to verify the accuracy of
information otherwise provided to Grantee.
6. Nothing in this acknowledgement shall abridge or
otherwise qualify Grantee's rights under the Agreement, including
without limitation his rights under Section 6 thereof.
DATE:____________________________ GRANTEE:
Xxxxx X. Xxxx
