Exhibit 10.4
MAUI LAND & PINEAPPLE
COMPANY, INC.
2006 EQUITY AND INCENTIVE AWARD
PLAN
RESTRICTED STOCK AWARD GRANT
NOTICE
Maui Land & Pineapple
Company, Inc., a Hawaii corporation (the “
Company ”), pursuant to the provisions of its
2006 Equity and Incentive Award Plan (the “
Plan ”), hereby grants to the holder listed
below (“ Holder ”), the number of shares
of the Company’s common stock, no par value (“
Stock ”), set forth below (the “
Shares ”). This Restricted Stock award is
subject to all of the terms and conditions as set forth herein and
in the Restricted Stock Award Agreement attached hereto as
Exhibit A (the “ Restricted Stock
Agreement ”) and the Plan, each of which are
incorporated herein by reference. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined
meanings in this Restricted Stock Award Grant Notice (the “
Grant Notice ”). Shares that are released
from Forfeiture Restrictions in accordance with Sections 3.2 and
3.3 of the Restricted Stock Agreement are referred to in this Grant
Notice as “Released Shares.”
|
Holder:
|
John P. Durkin
|
|
|
|
|
Grant Date:
|
April 15, 2009
|
|
|
|
|
Total Number of Restricted
Shares:
|
15,000
|
|
|
|
|
Performance Vesting Criteria:
|
Subject to the terms and conditions of the Plan,
this Grant Notice and the Restricted Stock Agreement, up to 3,000
Shares shall vest and become Released Shares following each of the
fiscal years ending December 31, 2009, 2010, 2011, 2012 and
2013 (the “Performance Period”); provided, that the
performance criteria for the applicable fiscal year is achieved, as
determined in the sole and complete discretion of the Committee.
Specific performance criteria for each fiscal year shall be
established by the Committee prior to the end of the first quarter
of fiscal year 2010, 2011, 2012, and 2013, as applicable. Specific
performance criteria for fiscal year 2009 shall be established by
the Committee as soon as practicable.
Any Shares that do not become Released Shares after fiscal year
2009 and any other Shares that do not become Released Shares at
such time as such Shares are eligible to become Released Shares as
a result of not achieving specified performance criteria shall be
carried forward and become eligible for vesting in the subsequent
year of the Performance Period subject to achievement of
performance criteria adopted by the Committee with respect to such
Shares that have been carried forward.
Notwithstanding the foregoing, subject to the Restricted Stock
Agreement, in no event, shall any Shares vest and become Released
Shares following Holder’s Termination of Employment.
Notwithstanding the foregoing, all Shares shall become Released
Shares and shall vest immediately upon a Change in Control as
defined in Section 1.6 of the Plan .
|
By his or her signature below,
Holder agrees to be bound by the terms and conditions of the Plan,
the Restricted Stock Agreement and this Grant Notice. Holder
has reviewed the Restricted Stock
A-1
Agreement, the Plan and this Grant Notice in
their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Grant Notice and fully understands
all provisions of this Grant Notice, the Restricted Stock Agreement
and the Plan. Holder hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board
upon any questions arising under or relating to the Plan, this
Grant Notice or the Restricted Stock Agreement.
|
MAUI LAND & PINEAPPLE COMPANY,
INC.:
|
|
HOLDER:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/S/ WARREN H. HARUKI
|
|
By:
|
/S/ JOHN P. DURKIN
|
|
Print Name:
|
Warren H. Haruki
|
|
Print Name:
|
John P. Durkin
|
|
Title:
|
Executive Chairman
|
|
|
|
|
Address:
|
P.O. Box 187
|
|
Address:
|
|
|
|
Kahului, Maui, Hawaii 96733
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
May 4, 2009
|
|
|
|
Attachments:
The following Exhibits listed
below have been previously distributed to the Holder. Additional
copies are available upon request from the Holder.
Restricted Stock Award Agreement (
Exhibit A )
Form of Internal Revenue Code
Section 83(b) Election and Instructions (
Exhibit B )
·
Election under Internal
Revenue Code Section 83(b) ( Attachment 1 to
Exhibit B )
·
Sample Cover Letter to
Internal Revenue Service ( Attachment 2 to Exhibit B
)
Maui Land & Pineapple
Company, Inc. 2006 Equity and Incentive Award Plan (
Exhibit C)
A-2
EXHIBIT A
TO RESTRICTED STOCK AWARD GRANT
NOTICE
RESTRICTED STOCK AWARD
AGREEMENT
Pursuant to the Restricted Stock
Award Grant Notice (“ Grant Notice ”) to
which this Restricted Stock Award Agreement (this “
Agreement ”) is attached, Maui Land &
Pineapple Company, Inc., a Hawaii corporation (the “
Company ”), has granted to Holder the number of
shares of the Company’s common stock, no par value (“
Stock ”), set forth in the Grant Notice (the
“ Shares ”), upon the terms and
conditions set forth in the Company’s 2006 Equity and
Incentive Award Plan (the “ Plan ”), the
Grant Notice and this Agreement.
ARTICLE I
GENERAL
1.1
Defined
Terms . Capitalized terms not
specifically defined herein shall have the meanings specified in
the Grant Notice or, if not defined therein, the Plan.
1.2
Incorporation
of Terms of Plan . The Shares are
subject to the terms and conditions of the Plan which are
incorporated herein by reference.
ARTICLE II
GRANT OF RESTRICTED STOCK
2.1
Grant of
Restricted Stock . In consideration of
Holder’s past and/or continued service to the Company or its
Subsidiaries and for other good and valuable consideration,
effective as of the Grant Date set forth in the Grant Notice (the
“ Grant
Date ”),
the Company
hereby agrees to issue to Holder the Shares, upon the terms and conditions
set forth in the Plan, the Grant Notice and this
Agreement.
2.2
Issuance of
Shares . The issuance of the
Shares under this Agreement shall occur at the principal office of
the Company simultaneously with the execution of the Grant Notice
by the parties or on such other date as the Company and Holder
shall agree (the “ Issuance Date ”). Subject to
the provisions of Article IV, the Company shall issue the
Shares (which shall be issued in Holder’s name) on the
Issuance Date.
2.3
Conditions to
Issuance of Stock Certificates . The Shares, or any
portion thereof, may be either previously authorized but unissued
shares or issued shares which have then been reacquired by the
Company. Such Shares shall be fully paid and
nonassessable. The Company shall not be required to issue or
deliver any Shares prior to fulfillment of all of the following
conditions:
(a)
The admission of such Shares to
listing on all stock exchanges on which the Stock is then
listed;
(b)
The completion of any registration
or other qualification of such Shares under any state or federal
law or under rulings or regulations of the Securities and Exchange
Commission or of any other governmental regulatory body, which the
Board shall, in its absolute discretion, deem necessary or
advisable;
A-3
(c)
The obtaining of any approval or
other clearance from any state or federal governmental agency which
the Board shall, in its absolute discretion, determine to be
necessary or advisable;
(d)
The lapse of such reasonable period
of time following the Issuance Date as the Board may from time to
time establish for reasons of administrative convenience;
and
(e)
The receipt by the Company of full
payment for all amounts (if any) which, under federal, state or
local tax law, the Company (or other employer corporation) is
required to withhold upon issuance of such Shares.
2.4
Rights as
Stockholder . Except as otherwise
provided herein, upon delivery of the Shares to the escrow agent
pursuant to Article IV, Holder shall have all the rights of a
stockholder with respect to said Shares, subject to the
restrictions herein, including the right to vote the Shares and to
receive all dividends or other distributions paid or made with
respect to the Shares; provided, however, that any and all
extraordinary cash dividends paid on such Shares and any and all
shares of Stock, capital stock or other securities or property
received by or distributed to Holder with respect to the Shares as
a result of any stock dividend, stock split, reverse stock split,
recapitalization, combination, reclassification, or similar change
in the capital structure of the Company shall also be subject to
the Forfeiture Restriction (as defined in Section 3.1) and the
restrictions on transfer in Section 3.4 until such
restrictions on the underlying Shares lapse or are removed pursuant
to this Agreement (or, if such Shares are no longer outstanding,
until such time as such Shares would have been released from the
Forfeiture Restriction pursuant to this Agreement). In
addition, in the event of any merger, consolidation, share exchange
or reorganization affecting the Shares, including, without
limitation, a Change in Control, then any new, substituted or
additional securities or other property (including money paid other
than as a regular cash dividend) that is by reason of any such
transaction received with respect to, in exchange for or in
substitution of the Shares shall also be subject to the Forfeiture
Restriction (as defined in Section 3.1) and the restrictions
on transfer in Section 3.4 until such restrictions on the
underlying Shares lapse or are removed pursuant to this Agreement
(or, if such Shares are no longer outstanding, until such time as
such Shares would have been released from the Forfeiture
Restriction pursuant to this Agreement). Any such assets or
other securities received by or distributed to Holder with respect
to, in exchange for or in substitution of any Unreleased Shares (as
defined in Section 3.3) shall be immediately delivered to the
Company to be held in escrow pursuant to
Section 4.1.
ARTICLE III
RESTRICTIONS ON SHARES
3.1
Forfeiture
Restriction . Subject to the
provisions of Section 3.2, if Holder has a Termination of
Employment for any or no reason, all of the Unreleased Shares (as
defined in Section 3.3) shall be forfeited immediately and
automatically transferred to the Company without further action by
the Company (the “Forfeiture Restriction”); provided,
however, that for this purpose, (i) any termination of
Holder’s employment by the Company or any of its subsidiaries
that occurs on or after the Performance Period, but not later than
the date the Announcement Date, shall be deemed to have occurred on
the first business day after the Announcement Date, and
(ii) any other termination of Holder’s employment by
reason of death or permanent and total disability that occurs on or
after July 1 of any year during the Performance Period, but no
later than the Announcement Date for that year shall be deemed to
have occurred on the first business day after such Announcement
Date. Further, for this purpose, Holder’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. Upon the
occurrence of such a forfeiture, the Company shall become the legal
and beneficial owner of the Shares
A-4
being forfeited and all
rights and interests therein or relating thereto and the Company
shall have the right to retain and transfer to its own name the
number of Shares being forfeited by Holder. In the event any
of the Unreleased Shares are forfeited under this Section 3.1,
any cash, cash equivalents, assets or securities received by or
distributed to Holder with respect to, in exchange for or in
substitution of such Shares and held by the escrow agent pursuant
to Section 4.1 and the Joint Escrow Instructions shall be
promptly transferred by the escrow agent to the
Company.
3.2
Release of
Shares from Forfeiture Restriction . The Shares shall be
released from the Forfeiture Restriction as indicated in the Grant
Notice effective as of the date Holder receives written the written
Notice of Release set forth in Section 3.5 below. Any of
the Shares released from the Forfeiture Restriction shall thereupon
be released from the restrictions on transfer under
Section 3.4. In the event any of the Shares are released
from the Forfeiture Restriction, any dividends or other
distributions paid on such Shares and held by the escrow agent
pursuant to Section 4.1 and the Joint Escrow Instructions
shall be promptly paid by the escrow agent to Holder.
3.3
Unreleased
Shares . Any of the Shares
which, from time to time, have not yet been released from the
Forfeiture Restriction are referred to herein as
“ Unreleased
Shares .”
3.4
Restrictions
on Transfer . Unless otherwise
permitted by the Board pursuant to the Plan, no Unreleased Shares
or any dividends or other distributions thereon or any interest or
right therein or part thereof, shall be liable for the debts,
contracts or engagements of Holder or his or her successors in
interest or shall be subject to sale or
|
