ALEXANDER & XXXXXXX, INC.
RESTRICTED STOCK ISSUANCE AGREEMENT
-----------------------------------
AGREEMENT made as of ________, 20__, 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
------------------
1. Issuance. In consideration for Services and as an incentive to 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 be unvested and subject to
the Service vesting requirements set forth in Paragraphs C.1 and C.4 hereof. To
the extent such vesting requirements are not satisfied, the Issued Shares shall
be subject to cancellation under the terms described in Paragraph C.2 hereof.
2. Stockholder Rights. Except to the extent all or a portion of the Issued
------------------
Shares are cancelled pursuant to the provisions of Paragraph C.2 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 until those
------
shares have vested in accordance with the vesting provisions of Paragraphs C.1
and C.4 hereof. The Issued Shares which so vest shall be released from escrow,
subject to the Corporation's collection of the applicable Withholding Taxes in
accordance with Section D hereof. For purposes of this Agreement, the
Withholding Taxes mean the minimum federal, state and local income taxes and the
employee portion of the federal, state and local employment taxes (including
FICA taxes) required to be withheld by the Corporation in connection with the
Participant's vesting in the Issued Shares.
4. Compliance with Law. Under no circumstances shall shares of 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 Global Select Market or any other national securities
exchange on which the Common Stock is at the time listed for trading and all
other requirements of law or of any regulatory bodies having jurisdiction over
such issuance and delivery.
B. TRANSFER RESTRICTIONS
---------------------
1. Restriction on Transfer. The Participant shall not transfer, 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 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 ___________, 20__ 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
-----------------------------------------
1. Vesting. The Issued Shares shall initially be unvested and 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:
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 cessation of Service by reason of
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. The vested Issued Shares shall be released from escrow as soon
as administratively practicable, subject to the Corporation's collection of
the applicable Withholding Taxes.
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. To the extent the Participant does not vest in
-----------------------------
the Issued Shares in accordance with either the performance vesting or the
Service vesting requirements set forth in Paragraph C.1 hereof or the vesting
acceleration provisions of Paragraph C.4 hereof, those unvested Issued Shares,
together with the stock certificates evidencing those 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 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, spin-off transaction, extraordinary
dividend 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 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 and shall be released from escrow as soon as administratively practicable,
subject to the Corporation's collection of the applicable Withholding Taxes in
accordance with Section D hereof.
D. SATISFACTION OF WITHHOLDING TAXES THROUGH SHARE WITHHOLDING
-----------------------------------------------------------
1. The Participant is hereby provided with the right (the "Share Withholding
Right"), exercisable in accordance with the terms and conditions set forth in
Paragraph D.2 below, to satisfy the Withholding Taxes which become due upon the
vesting of the Issued Shares under this Agreement by directing the Corporation
to withhold, from the vested Issued Shares to be released from escrow and
delivered to the Participant at that time, a portion of those Issued Shares with
a Fair Market Value (measured as of the vesting date) equal to the percentage of
the applicable Withholding Taxes (not to exceed one hundred percent (100%))
designated by the Participant; provided, however, that the amount of Issued
Shares which the Corporation shall be required to so withhold shall not exceed
the amount necessary to satisfy the Corporation's required tax withholding
obligations using the minimum statutory withholding rates for federal and state
tax purposes, including payroll taxes, that are applicable to supplemental
taxable income.
2. The Participant may only exercise the Share Withholding Right by providing
written notice to the Corporation's Vice President-Human Resources:
- at least three (3) months prior to the scheduled vesting
date for the Issued Shares, and
- during an open window period in which trading in the
Corporation's securities is not precluded by the Corporation's xxxxxxx xxxxxxx
policies.
The notice, once given, shall be irrevocable and cannot be
modified or revised in any manner.
3. Should the Participant not exercise the Share Withholding Right in accordance
with the applicable timing requirements of Paragraph D.2, then none of the
Issued Shares shall be applied to the satisfaction of the Withholding Taxes due
upon the vesting of the Issued Shares, and the Participant must deliver to the
Corporation a check in the amount of those Withholding Taxes at or before the
time the Issued Shares vest.
4. Should the Participant exercise the Share Withholding Right in accordance
with the requirements of Xxxxxxxxx X.0, then the number of vested Issued Shares
which shall be delivered to him or her shall be reduced by the number of Issued
Shares withheld by the Corporation to satisfy the percentage of the applicable
Withholding Taxes specified by the Participant in his or her notice of exercise
of such right. No fractional Issued Shares shall be withheld pursuant to such
Share Withholding Right. To the extent the number of Issued Shares withheld is
not sufficient to cover all the applicable Withholding Taxes, the Participant
shall pay the remaining amount to the Corporation in check payable to the
Corporation's order.
E. GENERAL PROVISIONS
------------------
1. At Will Employment. Nothing in this Agreement or in the Plan 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 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 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 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 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 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 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, 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 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
----------------------------------------------------
Participant
Address:
----------------------------------------------------
----------------------------------------------------
