MAUI LAND & PINEAPPLE COMPANY, INC.
STOCK OPTION AGREEMENT FOR XXXXX XXXX
Agreement dated October 6, 2003 between Maui Land
& Pineapple Company, Inc., a Hawaii corporation ("Company"),
whose principal place of business is in the State of Hawaii,
and Xxxxx X. Xxxx ("Optionee").
1. Grant of Option. The Company hereby agrees to
grant to Optionee, effective as of October 15, 2003 ("Grant
Date"), the right and option ("Option") to purchase from the
Company, for a price equal to the exercise price as described
below ("Exercise Price"), up to 200,000 shares of Company
common stock ("Company Stock" or "Shares"). 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. Although
the Grant Date shall serve to determine certain administrative
issues hereunder (e.g., term of Option, excisable, etc.), the
actual grant date of this Option shall be the date on which
shareholder approval is obtained as described in the preceding
sentence and no Option shall be exercised and no Option Shares
shall be issued until such approval date. This grant of Option
shall constitute a nonqualified stock option which is not a
qualified stock option as defined in Section 422 of the Internal
Revenue Code of 1996, as amended. This grant of Option is made
pursuant to the terms of that certain employment agreement by
and between the Company and Optionee effective as of October 15,
2003 ("Employment Agreement").
2. Terms and Conditions of Option.
a. Exercise Price. The Exercise Price shall
be $19.70 per Share, which is the fair market value per Share as
of August 11, 2003.
b. Term of Option. The term of the Option over
which the Option may be exercised shall commence on the Grant
Date and, subject to the provisions of Section 3.b below, shall
terminate ten years thereafter. The Option shall not be
exercisable after the end of the term of the Option.
c. Exercisability of Option. As to the total
number of Shares with respect to which the Option is granted,
the Option shall be exercisable as follows: (i) one-third of
the Option in the aggregate shall be exercisable on or after
the first anniversary of the Grant Date, and (ii) an additional
one-twelfth of the Option in the aggregate shall become
exercisable on the completion of each quarter (i.e., three-month
period, which need not begin or end at the beginning or end of
calendar months) between the first and third anniversary of the
Grant Date.
In addition, the Option shall become fully exercisable
upon: (i) the termination by Company of Optionee's employment
"without cause" (as described in Sections 8(d) and 8(f) of the
Employment Agreement) or (ii) except as provided in
Section 8(g)(iii) of the Employment Agreement, the Optionee's
resignation for "good reason" (as described in Sections 8(d) and
8(g) of the Employment Agreement).
3. Additional Terms and Conditions.
a. Exercise of Option; Payments for Shares.
This Option may be exercised from time to time with respect to
all or any portion of the number of Shares with respect to which
the Option has become exercisable, in whole or in part, by written
notice to the Corporate Secretary of the Company or other
authorized personnel of the Company. Any notice of exercise of
the Option shall be accompanied by payment of the full Exercise
Price for the Shares being purchased (i) by delivery of a good
check payable to the order of the Company, by delivery to the
Company of a number of Shares already owned by Optionee having a
fair market value equal to such Exercise Price or (iii) by
Optionee's requesting and agreeing in writing to a customary
"net exercise" or "cashless exercise" with the Company or (iv)
via a customary "same-day-sale" or margin account exercise
arrangement (if consistent with applicable margin rules) with
an SEC-registered broker dealer or (v) by a combination of
these payment methods; and, in any case, the Company shall
cooperate reasonably with such exercise and designated method
of payment. The Option shall not be exercised for any
fractional Shares and no fractional Shares shall be issued
or delivered. The date of actual receipt by the Company of
the notice of exercise shall be treated as the date of
exercise of the Option for the Shares being purchased. If
Optionee fails timely to pay for any Option Shares specified
in the notice of exercise or fails promptly to accept delivery
of the Option Shares, Company shall give notice to Optionee of
such failure, demanding immediate cure and stating that, absent
such curative action, the exercise will be ineffective; and, if
such failure is not cured within thirty (30) days thereafter,
the subject exercise shall be ineffective.
b. Termination of Option. Except as otherwise
provided herein, the Option shall terminate and shall not be
exercisable following Optionee's termination of employment.
If Optionee's employment with the Company or any of its
subsidiaries terminates, the Option shall continue to be
exercisable, to the extent it is exercisable on the date such
employment is terminated, for six months after such termination,
but in no event after the tenth anniversary of the Grant Date.
However, if Optionee's employment terminates because of
Optionee's death (as described in Section 8(a) of the
Employment Agreement) or disability (as described in Section 8(b)
of the Employment Agreement), the Option shall continue to be
exercisable, to the extent it is exercisable on the date such
employment is terminated, for twelve months after such
termination, but in no event after the tenth anniversary of the
Grant Date.
If the Company terminates Optionee's employment for
"cause" (as described in Sections 8(c) and 8(f) of the
Employment Agreement), the Option shall immediately terminate at
such time.
For these purposes, the Optionee's employment shall
not be treated as terminated in the case of a transfer of
employment within or between the Company and its subsidiaries or
in the case of sick leave or other approved leaves of absences.
c. Issuance of Shares; Registration; Withholding
Taxes.
As soon as practicable after the exercise of the Option and
payment therefore as provided above, the Company shall cause to
be issued and delivered to Optionee, or for Optionee's account,
a certificate or certificates for the Option Shares purchased.
The Company may withhold with respect to the payment of any
Option Shares any taxes required to be withheld because of such
payment, including the withholding of Shares otherwise payable
due to exercise of the Option. If, without limiting the
Company's obligations under Section 6 hereof or the rights of
Optionee thereunder, a registration (as that term is defined
below) is not in effect for the issuance of the Shares to
Optionee, the Company may require a customary investment
representation from Optionee and may include a legend on the
share certificate(s) as described in Section 7, below. In any
event, Optionee shall comply with any and all legal requirements
relating to Optionee's resale or other disposition of any Shares
acquired under this Agreement.
d. Nontransferability of Options. The Option
and this Agreement shall not be assignable or transferable by
Optionee other than by will or by the laws of descent and
distribution, or to a family partnership or other entity
customarily used for estate planning purposes, provided that
the transferor agrees in writing in a form provided by the
Company to be bound by all provisions of this Agreement.
During Optionee's lifetime, the Option and all rights of
Optionee under this Agreement may be exercised only by Optionee
(or by his or her legal guardian or legal representative or such
family partnership or similar entity). If the Option is
exercised by such a partnership or similar entity or after
Optionee's death, the Committee may require evidence reasonably
satisfactory to it of the authority of the person exercising the
Option to act in respect thereto. Any delay in furnishing such
evidence, however, shall not make any otherwise valid exercise
invalid as untimely but shall only permit the Company to delay
reasonably the delivery of the certificate(s) for the subject
shares.
4. Share Adjustments. The number and kind of
securities issuable upon exercise of this Option and the
Exercise Price shall be adjusted equitably for any increase or
decrease in the number of issued shares of common stock, or the
exchange of shares of common stock for other securities, by
reason of a merger, reorganization, recapitalization,
reclassification, stock split, stock dividend, or other capital
adjustments so as to preserve, as nearly as may be, but not
increase, the economic value and consequences of this Option and
the exercise hereof. The adjustment required shall be made by
the Committee, whose reasonable determination shall be conclusive.
Except as otherwise provided in this Section 4, no adjustments
shall be made for dividends, distributions, or other rights
(whether ordinary or extraordinary, and whether in cash,
securities or other property) for which the record date is prior
to the date of exercise.
5. No Rights as Shareholder. The execution and
delivery of this Option Agreement does not confer upon Optionee
any rights as a shareholder as to any of the Shares issuable
hereunder. Optionee shall be deemed, and shall have the rights
of, a shareholder as to such Shares upon and to the extent one or
more valid exercise of this Option.
6. Registration of Option Shares.
a. Definitions. 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-8" means such form under the
1933 Act as in effect on the date hereof or any registration form
under the 1933 Act subsequently adopted by the Securities and
Exchange Commission ("SEC") which permits the registration of the
issuance of securities offered hereunder.
(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 effectiveness of such registration
statement or document with the SEC.
b. Registration. By no later than the first
anniversity of the Grant Date, the Company shall take steps
reasonably and advisedly chosen (i) to prevent the Option Shares
issued to Optionee upon the exercise of this Option from being
"restricted securities," as that term is used in Rule 144 under
the 1933 Act, thereby preventing the "holding period" requirements
in part "d" of that Rule from being applicable to resales under
the Rule of such Option Shares by Optionee or (ii) to provide
Optionee with substantially the same benefits. The Company has
represented to Optionee that the objective set forth above in
this paragraph will be accomplished by the registration, prior
to the first anniversary of the Grant Date, of the issuance of
the underlying Option Shares to Optionee. Based on this
representation and subject to its correctness, Optionee agrees
that Company's compliance with the obligation set out in the
first sentence of this paragraph may take the form of using
Company's best efforts: (a) to register such issuance on Form S-
8, on or before the first anniversary of the Grant Date, and (b)
to effect all such other registrations, qualifications and
compliances as may be requested and as would permit and
facilitate, by no later than the first anniversary of the Grant
Date, the issuance to the Optionee of such Option Shares upon
exercise of the Option from time to time, in transactions that
will not result in such shares being "restricted securities" as
described above. If for any reason the Company determines that
it cannot use Form S-8 to accomplish the foegoing, then it shall
promptly notify Optionee thereof. In such event, Optionee shall
have identical rights with regard to the Option Shares as set
forth in Section 6 of the Restricted Share Agreement dated as of
the date hereof between the Company and Optionee, with regard to
the "Restricted Shares" described therein.
c. Filings. Whenever it effects the
registration of any Option Shares under this Section 6, the
Company shall, as expeditiously as reasonably possible:
(1) Prepare and file with the SEC a
registration statement with respect to such Option Shares
and use its best efforts to cause such registration statement
to become effective, and keep such registration statement
effective until all purchase rights hereunder have been
exercised or have terminated (or, if earlier, until shares of
Company stock cease to be publicly traded).
(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 and the rules and regulations thereunder and to
allow the exercise by the Optionee of the Options in transactions
that will not result in the Option Shares being "restricted
securities" as described above.
d. Registration Expenses. For purposes of this
Section 6, "Registration Expenses" shall mean all expenses
incurred by the Company in complying with Section 6.b. and 6.c
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. or 6.c. The Company shall
bear all Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Section
6.b. or 6.c.
e. Other Company Obligations. With a view to
making available to the Optionee 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 Optionee 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 Optionee, so long as he
owns any Option Shares, 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; (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 Optionee to avail itself of any rule or
regulation of the SEC or any state securities authority which
permits the selling of any such securities without registration.
7. Restrictive Legends. If, without limiting the
Company's obligations under Section 6 hereof or the rights of
Optionee thereunder, (a) a registration statement under the
Securities Act of 1933 with respect to the issuance of the shares
issuable upon exercise of any option granted under the Plan is not
in effect at the time of exercise or (b) a registration statement
with respect to the issuance of said shares to the Optionee is
in effect but not with respect to the Optionee's resale thereof
and the Optionee is an "affiliate" of the Company, then, in
either such case: (i) as a condition of the issuance of the
shares, the person exercising such Option shall give the Company
a written acknowledgement substantially in the form attached
hereto as Attachment A or Attachment B, hereto, as the case may
be, acknowledging that said shares may be reoffered or resold by
the Optionee only pursuant to a separate registration statement
under said Act 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 (ii)
in the former case only, the Company may place upon the stock
certificate(s) for shares issued upon exercise of such Option
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
Option 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, Optionee shall be entitled to exchange such
certificate with the Company for a certificate representing the
same number of Shares but without such legend.
8. Employment Rights. This grant of Option is made
in accordance with the Employment Agreement between the Optionee
and the Company, which Employment Agreement governs the terms
and conditions of the Optionee'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 Optionee hereunder absent the written consent of Optionee.
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 Option,
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 Optionee, the heirs,
distributees, personal representative, and permitted assign(s)
of Optionee, and the Company and its successors and assigns.
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the date first above written.
COMPANY: Maui Land & Pineapple
Company, Inc. OPTIONEE:
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 (No
Registration in Effect at time of Issuance)
Attachment B: Acknowledgement Regarding Resale
("Affiliate" Resale Restrictions Only)
ATTACHMENT A TO STOCK OPTION AGREEMENT
ACKNOWLEDGEMENT REGARDING RESALE (NO REGISTRATION IN EFFECT AT
TIME OF ISSUANCE)
All capitalized terms used in this Acknowledgement
shall have the meanings provided in the Stock Option Agreement
dated October 6, 2003 (the "Agreement") between Maui Land &
Pineapple Company, Inc. and Xxxxx X. Xxxx.
In connection with the exercise of Options for
__________ Option Shares:
1. Optionee acknowledges that the offer and sale of
the Option Shares to Optionee 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
Optionee's representations, warranties and agreements herein.
2. Optionee understands that the Option 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 Option 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 or an exemption under the Securities Act, the
Option Shares must be held indefinitely. In this connection,
Optionee understands the resale limitations imposed by the
Securities Act.
3. Optionee represents and warrants to the Company
that he acquiring the Option Shares for investment and not for
resale or with a view to distribution. Optionee 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. Optionee acknowledges that he will not make any
disposition or other transfer of all or any part of the Option
Shares that will result in the violation by Optionee or the
Company of any applicable law, rule or regulation, including the
Securities Act or any applicable state securities law. Without
limiting the foregoing, Optionee agrees not to make any offer,
sale or other disposition or transfer of all or any part of the
Option Shares unless and until:
(a) There is then in effect a registration
statement under the Securities Act covering such offer, sale or
other disposition, and such offer, sale or other disposition is
made in accordance with such registration statement and any
applicable state securities laws; or
(b) Optionee 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,
Optionee 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. Optionee 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 Option Shares.
Optionee acknowledges that he has had an opportunity to ask
questions and receive answers regarding the terms and conditions
of the investment in Option 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 Optionee.
6. Nothing in this acknowledgement shall abridge or
otherwise qualify Optionee's rights under the Agreement,
including without limitation his rights under Section 6 thereof.
Date: OPTIONEE:
Xxxxx X. Xxxx
ATTACHMENT B TO STOCK OPTION AGREEMENT
ACKNOWLEDGEMENT REGARDING RESALE ("AFFILIATE" RESALE RESTRICIONS
ONLY)
All capitalized terms used in this Acknowledgement
shall have the meanings provided in the Stock Option Agreement
dated October 6, 2003 (the "Agreement") between Maui Land &
Pineapple Company, Inc. and Xxxxx X. Xxxx.
In connection with the exercise of Options for
__________ Option Shares:
1. Optionee acknowledges that he may be deemed to be
an "affiliate" of the Company within the meaning of Rule 144
under the Securities Act of 1933, as amended (the "Securities
Act").
2. Optionee understands that as a consequence of his
affiliate status, the Option 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 or an exemption under the Securities Act, the
Option Shares must be held indefinitely. In this connection,
Optionee understands the resale limitations imposed by the
Securities Act.
3. Optionee acknowledges that he will not make any
disposition or other transfer of all or any part of the Option
Shares that will result in the violation by Optionee of any
applicable law, rule or regulation, including the Securities Act
or any applicable state securities law. Without limiting the
foregoing, Optionee agrees not to make any offer, sale or other
disposition or transfer of all or any part of the Option Shares
unless and until:
(a) There is then in effect a registration
statement under the Securities Act covering such offer, sale or
other disposition, and such offer, sale or other disposition is
made in accordance with such registration statement and any
applicable state securities laws; or
(b) 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.
4. Nothing in this acknowledgement shall abridge or
otherwise qualify Optionee's rights under the Agreement,
including without limitation his rights under Section 6 thereof.
Date: OPTIONEE:
Xxxxx X. Xxxx
