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EXHIBIT 10.13
BANCWEST CORPORATION
1998 STOCK INCENTIVE PLAN
(Amended and Restated as of April 19, 2001)
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BANCWEST CORPORATION
1998 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
Article Section Page
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PROLOGUE 1
ARTICLE I DEFINITIONS 2-4
ARTICLE II ADMINISTRATION
Section 2.1 The Committee 5
Section 2.2 Authority of the Committee 5
Section 2.3 Indemnification, Insurance 5
ARTICLE III SHARES SUBJECT TO PLAN
Section 3.1 Number of Shares 6
Section 3.2 Lapsed Awards 6
Section 3.3 Adjustments in Authorized Shares 6
ARTICLE IV ELIGIBILITY AND PARTICIPATION
Section 4.1 Eligibility 7
Section 4.2 Participation 7
ARTICLE V OPTIONS
Section 5.1 Type of Options 8
Section 5.2 ISO's 8
Section 5.3 Reload Options 8
Section 5.4 Award Agreement 8
Section 5.5 Exercise Price 8-9
Section 5.6 Duration of Options 9
Section 5.7 Exercise of Options 9
Section 5.8 Payment 9
Section 5.9 Restrictions on Share Transferability 10
Section 5.10 Termination of Employment due to Death,
Disability, or Retirement 10
Section 5.11 Termination of Employment for Other
Reasons 10-11
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ARTICLE VI RESTRICTED STOCK
Section 6.1 Grant of Restricted Stock 12
Section 6.2 Award Agreement 12
Section 6.3 Transferability 12
Section 6.4 Other Restrictions 12
Section 6.5 Removal of Restrictions 12
Section 6.6 Voting Rights 13
Section 6.7 Dividends and Other Distributions 13
Section 6.8 Escrow 13
Section 6.9 Termination of Employment 13
ARTICLE VII OTHER AWARDS
Section 7.1 Types of Awards 14
Section 7.2 Terms and Conditions 14
ARTICLE VIII TRANSFERABILITY OF AWARDS;
BENEFICIARY RIGHTS
Section 8.1 Transferability of Awards 15
Section 8.2 Beneficiary Rights 15
ARTICLE IX CHANGE IN CONTROL 16
ARTICLE X WITHHOLDING
Section 10.1 Tax Withholding 17
Section 10.2 Share Withholding 17
ARTICLE XI AMENDMENT AND TERMINATION
Section 11.1 Amendment 18
Section 11.2 Awards Previously Granted 18
Section 11.3 Rule 16b-3 18
ARTICLE XII MISCELLANEOUS
Section 12.1 Rights of Participants 19
Section 12.2 Miscellaneous Rules 19
Section 12.3 Performance Criteria under
Section 162(m) of the Code 19-20
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BANCWEST CORPORATION
1998 STOCK INCENTIVE PLAN
(Amended and Restated as of April 19, 2001)
PROLOGUE
The purpose of the BancWest Corporation 1998 Stock Incentive Plan (the
"Plan") is to promote the success and enhance the value of BancWest Corporation
(the "Company") by linking the personal interests of eligible employees to those
of Company stockholders and by providing eligible employees with an incentive
for outstanding performance. The Plan is further intended to provide flexibility
to the Company in its ability to motivate, attract, and retain the services of
employees upon whose judgment, interest, and special effort the successful
conduct of its operation is largely dependent.
The Board of Directors of the Company adopted the Plan on February 19,
1998 and the Company's stockholders approved the Plan on April 16, 1998. In
accordance with Section 11.1 of the Plan, the Board of Directors amended and
restated the Plan in its entirety as set forth herein effective as of April 19,
2001.
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ARTICLE I
DEFINITIONS
As used herein the following terms shall have the following meanings
unless the context clearly requires otherwise.
"Beneficiary" means the person, persons, or legal entity designated by
the Participant to receive his benefits under this Plan in the event of his
death. If a Participant fails to make any designation, the person designated
shall not survive the Participant, or the legal entity designated shall no
longer be in existence or shall be legally incapable of receiving benefits
hereunder, Beneficiary shall mean the estate of the Participant.
"Board" means the Board of Directors of the Company.
"Cause" means one or more of the following reasons for the termination
of employment:
(a) The willful and continued failure by the Participant to
substantially perform his duties with the Company or a Subsidiary (other than
any such failure resulting from the Participant's Disability or incapacity due
to mental illness) after a written demand for substantial performance is
delivered to the Participant that specifically identifies the manner in which
the Company or Subsidiary believes that the Participant has not substantially
performed his duties, and the Participant has failed to remedy or take
substantial steps to remedy the situation within ten business days of receiving
such notice;
(b) The Participant's conviction for committing a felony (all
rights of appeal having been exhausted); or
(c) The Participant's willfully engaging in gross misconduct that
is materially and demonstrably injurious to the Company or a Subsidiary.
However, no act or failure to act on the Participant's part shall be considered
"willful" unless such act or omission was not in good faith and without
reasonable belief that such action or omission was in the best interest of the
Company or its Subsidiaries.
The Company or the Subsidiary shall notify the Committee if it believes
a Participant's employment has been terminated for Cause. The Committee shall
determine whether a Participant's employment has been terminated for Cause for
purposes of the Plan. The Committee shall notify the Participant in writing if
it has made a preliminary determination that the Participant's employment was
terminated for Cause. The Participant (and, if he chooses, his legal
representative) shall have an opportunity to be heard by the Committee
concerning the Committee's preliminary determination. After taking into
consideration the points raised by the Participant, the Committee shall make a
final determination as to whether the Participant's employment was terminated
for Cause and shall notify the Participant in writing of its final
determination. If the Company or the Subsidiary notifies the Committee that it
believes that a Participant has been terminated for Cause, the Participant shall
not be able to exercise any option, make any other election, or take any action
that would not be permitted under the terms of the Plan following termination of
employment for Cause unless and until the Committee makes its final decision
that the Participant was not terminated for Cause.
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"Change in Control" means any of the following:
(a) Any "person" (within the meaning of Section 3(a)(9) of the
Exchange Act and as used in Sections 13(d) and 14(d) thereof, including a
"group" as defined in Section 13(d) thereof) other than those listed in items
(i), (ii), or (iii) of this Section becomes the "beneficial owner" (within the
meaning of Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing 35% or more of the combined voting power
of the Company's securities then outstanding.
(i) The Trustees under the Will and of the Estate of
Samuel M. Damon, deceased, and any other persons acting together with them.
(ii) A trustee or other fiduciary holding Shares under an
employee benefit plan of the Company or a Subsidiary.
(iii) A corporation owned directly or indirectly by the
stockholders of the Company (in substantially the same proportions as their
ownership of Shares) becomes the beneficial owner (within the meaning of said
Rule 13d-3), directly or indirectly, of securities of the Company representing
35% or more of the combined voting power of the Company's securities then
outstanding.
(b) During any period of two consecutive calendar years,
individuals who at the beginning of such period constitute the Board (and any
new Director whose election by the Company's stockholders was approved by a vote
of at least two-thirds of the Directors then in office who either were Directors
at the beginning of the period or whose election or nomination for election was
so approved) cease for any reason to constitute a majority thereof.
(c) The stockholders of the Company approve:
(i) A plan of complete liquidation of the Company;
(ii) An agreement for the sale or disposition of all or
substantially all the Company's assets; or
(iii) A merger, consolidation, or reorganization of the
Company with or involving any other corporation, other than a merger,
consolidation, or reorganization that would result in the voting stock of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting stock of the surviving
entity) at least 80% of the combined voting power of the stock that is
outstanding immediately after such merger, consolidation, or reorganization,
unless the Board determines by a majority vote prior to such merger,
consolidation, or reorganization that no Change in Control will occur as a
result of such transaction.
(d) The Board agrees by a majority vote that an event has or is
about to occur that, in fairness to the Participant, is tantamount to a Change
in Control.
A Change in Control shall occur on the first day on which any of the
preceding conditions has been satisfied.
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However, notwithstanding the above, in no event shall a Change in
Control be deemed to have occurred, with respect to a Participant, if the
Participant is part of a purchasing group that consummates the Change in Control
transaction. A Participant shall be deemed "part of a purchasing group" for
purposes of the preceding sentence if he is an equity participant in the
purchasing company or group, except for (i) passive ownership of less than 3% of
the common stock of the purchasing company or (ii) ownership of equity
participation in the purchasing company or group that is otherwise not
significant, as determined prior to the Change in Control by a majority of the
continuing Directors who are not employees of the Company or a Subsidiary.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or such other provision of law of similar purport as may at any time be
substituted therefor.
"Committee" means the Plan's administrative committee appointed pursuant
to Article II.
"Company" means BancWest Corporation.
"Director" means any individual who is a member of the Board.
"Disability" means a disability, as determined by the Social Security
Administration, that is not the result of self-inflicted injury or criminal
conduct on the part of the Participant, and in the case of a determination with
respect to an ISO, meets any additional requirements that may be necessary to
qualify as a permanent and total disability under Section 22(e)(3) of the Code.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or such other provision of law of similar purport as may at
any time be substituted therefor.
"Fair Market Value" means the average of the high and low sales prices
of a Share on the New York Stock Exchange on the relevant date. If there are no
sales on such date, the Fair Market Value shall be determined as of the
immediately preceding date on which there were Share transactions.
"ISO" means an option to purchase Shares that is designated by the
Committee as an incentive stock option intended to meet the requirements of
Section 422 of the Code.
"Participant" means an employee of the Company or a Subsidiary who has
received an award under the Plan.
"Retirement" means the termination of service as an employee of the
Company and the Subsidiaries on or after (i) attainment of age 65, (ii)
attainment of age 55 and completion of five years of Vesting Service (as defined
in the BancWest Corporation Defined Contribution Plan), or (iii) attainment of
age 62 with the approval of the Committee.
"Shares" means shares of common stock of the Company.
"Subsidiary" means any corporation, partnership, joint venture, or
business trust of which 50% or more of the control thereof is owned, directly or
indirectly, by the Company, provided that for ISO purposes, "Subsidiary" shall
be defined as provided in Section 424(f) of the Code.
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ARTICLE II
ADMINISTRATION
Section 2.1 The Committee.
The Committee shall be composed of at least two members of the Board as
designated from time to time by the Board.
Section 2.2 Authority of the Committee.
(a) The Committee shall select the employees to whom awards shall be
granted under the Plan; determine the size, types, terms, and conditions of
awards; cancel and reissue awards; construe and interpret the Plan and any
agreement or instrument entered into under the Plan; establish, amend, or waive
rules and regulations for the Plan's administration; amend, subject to Article
XI, the terms and conditions of any outstanding award to the extent such terms
and conditions are within its discretion; and make any determination that may be
necessary or advisable for administration of the Plan.
(b) The Committee may from time to time delegate to any subcommittee
composed of Committee members any or all of its powers hereunder. The Committee
may from time to time delegate to any other person or persons any or all of its
ministerial functions hereunder.
(c) All determinations and decisions of the Committee shall be final,
conclusive, and binding on all persons.
Section 2.3 Indemnification, Insurance.
The Company and the Subsidiaries shall indemnify and save harmless
and/or insure each member of the Committee or any subcommittee thereof against
any and all claims, losses, damages, expenses, and liabilities arising from his
responsibilities in connection with this Plan, if the member acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and the Subsidiaries.
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ARTICLE III
SHARES SUBJECT TO PLAN
Section 3.1 Number of Shares.
(a) Subject to adjustment as provided in Section 3.3, the total number
of Shares available for grant under the Plan shall not exceed 8,000,000, which
Shares shall be reacquired or treasury shares.
(b) Notwithstanding any other provision of this Plan, no employee shall
be granted awards in excess of 400,000 Shares during any calendar year. This
limitation is intended to satisfy the requirements of Section 162(m) of the Code
so that compensation attributable to awards hereunder qualify as
performance-based compensation under Section 162(m) of the Code. The limitation
under this Section 3.1(b) shall be subject to adjustment under Section 3.3
hereof, but only to the extent permitted under Section 162(m) of the Code.
Section 3.2 Lapsed Awards.
Subject to any applicable rules under Section 16 of the Exchange Act, if
any award granted under this Plan is canceled, is forfeited, terminates,
expires, or lapses for any reason, any Shares subject to such award shall be
available for the grant of an award under the Plan.
Section 3.3 Adjustments in Authorized Shares.
In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, stock dividend, stock split,
split-up, share combination, or other change in the corporate structure of the
Company affecting the number or value of Shares, then the number, class, and
price of Shares subject to outstanding awards under the Plan shall be adjusted
as the Committee may determine in its sole discretion to be appropriate or
equitable to prevent dilution or enlargement of rights. The number of Shares
subject to any award shall always be a whole number. Any adjustment of an ISO
under this Section 3.3 shall be made in such manner so as not to constitute a
"modification" within the meaning of Section 425(h)(3) of the Code.
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ARTICLE IV
ELIGIBILITY AND PARTICIPATION
Section 4.1 Eligibility.
To be eligible to participate in the Plan, an individual must be an
officer or employee of the Company or a Subsidiary who by the nature and scope
of his position influences the results or success of the Company. The Committee
in its sole discretion shall determine if an officer or employee is eligible. A
Director who is not an employee of the Company or a Subsidiary shall not be
eligible to participate in the Plan.
Section 4.2 Participation.
The Committee shall determine from time to time eligible employees to
whom awards shall be granted and the nature and amount of each award. No
eligible employee shall have any right to be granted an award under this Plan.
In addition, nothing in this Plan shall interfere with or limit in any way the
right of the Company or a Subsidiary to terminate any Participant's employment
at any time, nor confer upon any Participant any right to continue in the employ
of the Company or a Subsidiary.
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ARTICLE V
OPTIONS
Section 5.1 Type of Options.
The Committee shall designate at the time of the grant of an option
whether it is a nonqualified stock option or ISO and whether such option shall
be in whole or in part a reload option.
Section 5.2 ISOs.
(a) No ISO may be granted under this Plan after January 21, 2008.
(b) No employee may receive an award of ISOs that are first exercisable
during any calendar year to the extent that the aggregate Fair Market Value of
the Shares (determined at the time the ISOs are granted) exceeds $100,000.
(c) Nothing in this Section 5.2 shall be deemed to prevent the grant of
nonqualified stock options in excess of the maximum amount that may be granted
to a Participant as ISOs under Section 422 of the Code.
Section 5.3 Reload Options.
The Committee may grant reload options subject to such conditions and
provisions as the Committee shall determine. Reload options shall not exceed the
number of Shares used to pay the exercise price of the underlying options and
shall not include any Shares used to satisfy any tax withholding requirements on
account of the exercise of the underlying options. The reload option may not be
exercised during a period longer than the exercise period of the underlying
option that it replaces. The grant of a reload option shall become effective
upon the exercise of the underlying option through the use of Shares. The option
price for a reload option shall not be less than the Fair Market Value of the
Shares on the date the grant of the reload option becomes effective.
Section 5.4 Award Agreement.
Each option grant shall be evidenced by an award agreement that shall
specify the exercise price, the duration of the option, the number of Shares to
which the option pertains, and such other provisions as the Committee shall
determine. The award agreement also shall specify whether the option is intended
to be an ISO.
Section 5.5 Exercise Price.
(a) The exercise price of options shall be determined by the Committee,
provided, however, that the exercise price per Share (including options granted
under Article VII) shall not be less than the Fair Market Value of a Share on
the date the option is granted.
(b) An ISO granted to a Participant who at the time of grant owns
(taking into account Section 424(d) of the Code) Shares representing more than
10% of the total combined voting
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power of all classes of stock of the Company (herein a "Ten Percent
Stockholder") shall have an exercise price that is at least 110% of the Fair
Market Value of the Shares subject to the option.
Section 5.6 Duration of Options.
Each option shall expire at such time as the Committee shall determine
at the time of grant, provided that no ISO shall be exercisable later than the
tenth anniversary date of its grant. Notwithstanding the prior sentence, an ISO
granted to a Ten Percent Stockholder shall not be exercisable later than the
fifth anniversary date of its grant.
Section 5.7 Exercise of Options.
Options granted under the Plan shall be exercisable at such times and be
subject to such restrictions and conditions as the Committee shall in each
instance approve, which times, restrictions, and conditions need not be the same
for each grant or for each Participant.
Section 5.8 Payment.
(a) Options shall be exercised by the delivery of a written notice of
exercise to the Secretary of the Company that sets forth the number of Shares
with respect to which the option is to be exercised and is accompanied by full
payment for the exercise price of the Shares. The exercise price shall be
payable to the Company in full either:
(i) in cash or cash equivalent, or
(ii) if approved by the Committee (which approval may be granted
in the award agreement or may be pursuant, and subject, to rules and policies
adopted from time to time by the Committee) by tendering previously acquired
Shares having a Fair Market Value at the time of exercise equal to the total
exercise price pursuant to the options being exercised.
(b) The Committee also may allow cashless exercise of options as
permitted under any law or regulation applicable to the Company or by any other
means that the Committee determines to be consistent with the Plan's purpose.
(c) As soon as practicable after receipt of a written notification of
exercise in proper form and payment in a form approved by the Committee, the
Company shall deliver to the Participant or permitted assignee, Share
certificates in an appropriate amount based upon the number of options
exercised.
(d) The proceeds from such a payment shall be added to the general funds
of the Company and shall be used for general corporate purposes.
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Section 5.9 Restrictions on Share Transferability.
The Committee shall impose such restrictions on any Shares acquired
pursuant to the exercise of an option under the Plan as it may deem advisable,
including without limitation restrictions under applicable Federal securities
laws, the requirements of any stock exchange or market upon which the Shares are
then listed and/or traded, and any blue sky or state securities laws applicable
to the Shares. The Committee shall legend the certificates representing the
Shares to give appropriate notice of such restrictions.
Section 5.10 Termination of Employment Due to Death, Disability, or Retirement.
If the employment of a Participant is terminated by reason of death,
Disability, or Retirement, options granted to the Participant under this Plan
may be exercised only as follows:
(a) Death. If the Participant's employment is terminated by reason of
death, all outstanding options granted to such Participant shall become fully
vested as of the date of his death and shall, subject to Section 5.6, be
exercisable at any time prior to their expiration date or for one year after the
date of his death, whichever period is shorter. The options may be exercised by
the Participant's Beneficiary or by such persons who have acquired the
Participant's rights under the options by will or by the laws of descent and
distribution or permitted transfer.
(b) Disability. If the Participant's employment is terminated by reason
of Disability, all outstanding options granted to such Participant shall become
fully vested as of the date his employment terminates and shall be exercisable
at any time prior to their expiration date or for one year after the date that
his Disability is determined by the Social Security Administration, whichever
period is shorter.
(c) Retirement. If the Participant's employment is terminated by reason
of Retirement, all outstanding options granted to such Participant shall become
fully vested as of the effective date of his Retirement and shall be exercisable
at any time prior to their expiration date or for three years after his date of
Retirement, whichever period is shorter.
(d) Exercise Limitations on ISOs. Notwithstanding Sections 5.10(a), (b),
and (c), the right of a Participant to exercise an ISO shall be subject to the
limitations of Section 422 of the Code.
Section 5.11 Termination of Employment for Other Reasons.
(a) If the employment of a Participant shall terminate for any reason
other than the reasons set forth in Section 5.10 (other than for Cause), all
nonvested options held by the Participant shall vest only if the Committee
determines in its sole discretion to vest all or any portion of such options.
Thereafter, all vested options shall remain exercisable at any time prior to
their expiration date or for three months after the date that the Participant's
employment was terminated, whichever period is shorter. If the Committee does
not vest such options, the options shall be deemed for all purposes to have
remained unvested upon the termination of the Participant's employment.
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(b) If a Participant's employment is terminated for Cause, all of his
outstanding options shall immediately be surrendered to the Company and no
additional exercise periods shall be allowed, regardless of the otherwise vested
status of the options.
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ARTICLE VI
RESTRICTED STOCK
Section 6.1 Grant of Restricted Stock.
The Committee may grant Shares of restricted stock to eligible employees
in such amounts as the Committee shall determine in its sole discretion. Such
Shares of restricted stock may be issued for no consideration other than
services rendered.
Section 6.2 Award Agreement.
Each restricted stock grant shall be evidenced by an award agreement
that specifies the period (or periods) of restriction, the number of Shares of
restricted stock granted, and such other provisions as the Committee shall
determine.
Section 6.3 Transferability.
Except as provided in this Article VI or in the award agreement, Shares
of restricted stock may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated until the end of the applicable period of
restriction or upon earlier satisfaction of any other conditions as specified by
the Committee in its sole discretion and set forth in the award agreement.
Subject to Committee approval (which approval may be granted in the award
agreement or may be pursuant, and subject, to rules and policies adopted from
time to time by the Committee), Shares of restricted stock may be surrendered to
satisfy the exercise price of options, or satisfy withholding requirements
resulting from exercise of options, before the period of restriction lapses for
other dispositions of the restricted stock.
Section 6.4 Other Restrictions.
The Committee (i) may impose such other restrictions on any Shares of
restricted stock as it deems advisable, including without limitation
restrictions based upon the achievement of specific performance goals
(Company-wide, subsidiary, or business unit of the Company, and/or individual),
(ii) shall impose restrictions upon transfer of Shares after the period of
restriction as may be required under applicable Federal or state securities
laws, and (iii) may legend the certificates representing restricted stock to
give appropriate notice of such restrictions.
Section 6.5 Removal of Restrictions.
Except as otherwise provided in this Article VI, Shares of restricted
stock shall become freely transferable by the Participant after the last day of
the period of restriction. Once the restrictions on such Shares lapse, the
Participant shall be entitled to have any legend that was added pursuant to
Section 6.4 removed from his Share certificate.
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Section 6.6 Voting Rights.
During the period of restriction, the Participant may exercise full
voting rights with respect to his Shares of restricted stock.
Section 6.7 Dividends and Other Distributions.
Participants holding Shares of restricted stock shall be entitled to
receive all dividends and other distributions paid with respect to such Shares
while they are held during the period of restriction. The Committee shall
establish in its discretion the time at which the Participant shall receive such
dividends and distributions, which time may be any time from the date on which
they are paid generally to stockholders to the end of the period of restriction.
If any such dividends and distributions are paid in Shares, such Shares shall be
subject to the same restrictions on transferability and vesting as the Shares of
restricted stock with respect to which they were paid.
Section 6.8 Escrow.
Even though the certificates evidencing Shares of restricted stock shall
be issued in the name of the Participant, such certificates shall be held by the
Company in escrow subject to delivery to the Participant or to the Company at
such times and in such amounts as shall be directed by the Committee.
Certificates evidencing whole Shares issued as a stock dividend on or split-up
of Shares held in escrow shall be held in escrow on the terms set forth above.
Any fractional Shares so issued and any Shares acquired by a Participant's
exercise of subscription rights in respect of Shares held in escrow shall not be
subject to the escrow provisions and shall be the property of the Participant.
Section 6.9 Termination of Employment.
(a) The number of Shares of restricted stock that are vested as of the
date a Participant's employment terminates shall be determined in accordance
with the terms of the award agreement described in Section 6.2. The
Participant's nonvested Shares of restricted stock shall vest only if the
Committee determines in its sole discretion that they shall vest.
(b) With the exception of termination of employment for Cause, the
Committee in its sole discretion may provide that the restrictions shall lapse
on restricted stock after termination of employment, upon such terms and
provisions as it deems proper. If the Committee does not do so, the restrictions
upon restricted shares shall be deemed for all purposes not to have lapsed.
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ARTICLE VII
OTHER AWARDS
Section 7.1 Types of Awards.
(a) In addition to awards granted under Articles V and VI, the Committee
may grant under this Plan any other type of arrangement with an employee that by
its terms involves or might involve the issuance of (i) Shares or (ii) a
derivative security (as such term is defined in Rule 16a-1 of the Exchange Act,
as such Rule may be amended from time to time) with an exercise or conversion
privilege at a price related to the Shares or with a value derived from the
value of the Shares.
(b) Such awards are not restricted to any specified form or structure
and may include, without limitation, sales or bonuses of stock, restricted
stock, ISOs, nonqualified stock options, reload stock options, stock purchase
warrants, other rights to acquire stock, securities convertible into or
redeemable for stock, stock appreciation rights, limited stock appreciation
rights, phantom stock, dividend equivalents, performance units or performance
shares, and an award may consist of one such security or benefit, or two or more
of them in tandem or in the alternative.
(c) Shares may be issued pursuant to an award for any lawful
consideration as determined by the Committee, including, without limitation,
services rendered by the recipient of such award.
Section 7.2 Terms and Conditions.
Subject to the provisions of this Plan, the Committee, in its sole and
absolute discretion, shall determine all of the terms and conditions of each
award granted under this Article VII, which terms and conditions may include,
among other things, a provision permitting the recipient of such award,
including any recipient who is a director or officer of the Company, to pay the
purchase price of the Shares or other property issuable pursuant to such award,
or such recipient's tax withholding obligation with respect to such issuance, in
whole or in part, by any one or more of the following:
(i) the delivery of previously owned Shares (including
"pyramiding") or other property, provided that the Company is not then
prohibited from purchasing or acquiring Shares or such other property,
(ii) a reduction in the amount of Shares or other property
otherwise issuable pursuant to such Award, or
(iii) the delivery of a promissory note, the terms and
conditions of which shall be determined by the Committee.
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ARTICLE VIII
TRANSFERABILITY OF AWARDS;
BENEFICIARY RIGHTS
Section 8.1 Transferability of Awards.
Each ISO granted under the Plan shall not be transferable other than by
will or the laws of descent or distribution. Except as otherwise set forth in
the Plan, any other award under the Plan may be transferable subject to the
terms and conditions as may be established by the Committee and set forth in the
award agreement.
Section 8.2 Beneficiary Rights.
To the extent permitted under the Plan and the award agreement, after a
Participant's death his Beneficiary may elect within the applicable period to
(i) exercise the Participant's vested awards, (ii) have restrictions removed on
restricted stock, and (iii) make such other elections and take such other
actions as permitted under the Plan and the award agreement.
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ARTICLE IX
CHANGE IN CONTROL
If a Change in Control occurs, then (i) any and all awards held by a
Participant shall become immediately vested and exercisable, (ii) any period of
restrictions and other restrictions on restricted stock shall lapse, (iii)
within ten business days after the occurrence of a Change in Control, the stock
certificates representing Shares of restricted stock shall be delivered to the
Participant without any restrictions or legends thereon (except such
restrictions or legends that are required by Federal or state securities laws),
and (iv) the Committee may modify an award as it deems appropriate prior to the
effective date of the Change in Control.
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ARTICLE X
WITHHOLDING
Section 10.1 Tax Withholding.
The Company may deduct or withhold, or require the Participant to remit
to the Company, such withholding taxes as may be required by law in connection
with the Plan.
Section 10.2 Share Withholding.
(a) A Participant may elect, subject to the Committee's approval (which
approval may be granted in the award agreement or may be pursuant, and subject,
to rules and policies adopted from time to time by the Committee), to satisfy
any withholding taxes incurred in connection with a transaction or event under
the Plan by having the Company withhold from the Shares to be issued Shares, or
by tendering to the Company Shares, having a Fair Market Value on the date in an
amount sufficient to satisfy federal and state withholding taxes as required by
law on the applicable transaction or event. If the Participant is subject to
Rule 16b-3 of the Exchange Act, any such election must comply with the
requirements, if any, of said Rule and be approved by the Committee.
(b) Except with the express consent of the Committee, such withholding
shall not exceed the minimum statutory withholding, based on minimum statutory
withholding rates for federal and state purposes, including payroll taxes that
are applicable to such supplemental taxable income.
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ARTICLE XI
AMENDMENT AND TERMINATION
Section 11.1 Amendment, Termination.
(a) The Board may amend the Plan at any time in its absolute discretion.
Any amendment, termination, or modification that (i) increases the total number
of Shares that may be issued under the Plan, (ii) materially increases the cost
of the Plan or the benefits to Participants, or (iii) changes the Plan
provisions regarding the exercise price shall be subject to approval of the
stockholders of the Company if such approval is required by the Code; Section 16
of the Exchange Act; any national securities exchange or system on which Shares
are then listed, traded, or reported; or any regulatory body having jurisdiction
with respect thereto.
(b) The Plan shall continue in existence until terminated by the Board.
The Board may terminate the Plan at any time in its absolute discretion.
Section 11.2 Awards Previously Granted.
No amendment or termination of the Plan shall in any manner adversely
affect any award previously granted under the Plan without the written consent
of the affected Participant.
Section 11.3 Rule 16b-3.
The Plan is intended to comply with Rule 16b-3 of the Exchange Act. If
the requirements of Rule 16b-3 change, the Board may amend the Plan to comply
with such changes.
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Rights of Participants.
(a) No Participant shall, by reason of his participation in this Plan,
have any interest in any specific asset or assets of the Company or a
Subsidiary.
(b) Neither the adoption of this Plan, the granting of any awards under
this Plan, nor any action of the Board or the Committee in connection with the
Plan shall be held or construed to confer upon any person any legal right to be
continued as an officer or employee of the Company or a Subsidiary.
(c) No Participant shall have the right to assign, pledge, encumber, or
otherwise dispose of (except to a Beneficiary upon his death) any of his
interest in this Plan; nor shall his interest be subject to garnishment,
attachment, transfer by operation of law, or any legal process.
Section 12.2 Miscellaneous Rules.
(a) Wherever used herein the masculine gender shall include the feminine
and the singular number shall include the plural, unless the context clearly
indicates otherwise.
(b) The headings of articles and sections are included herein solely for
convenience of reference, and if there is any conflict between such headings and
the text of the Plan, the text shall be controlling.
(c) To the extent not preempted by Federal law, the Plan shall be
governed, construed, administered, and regulated according to the laws of the
State of Hawaii.
(d) The provisions of this Plan are, in the case of grants, awards, or
other acquisitions of Shares by persons who are subject to Section 16(b) of the
Exchange Act, intended to satisfy exemption requirements under Rule 16b-3, and
the Plan shall be construed accordingly. Any Committee, Board, or shareholder
approval of a transaction that is subject to Section 16(b) of the Exchange Act
may be given in a manner permitted by Rule 16b-3 (e.g., by including an exercise
or tax withholding right in an award agreement, as contemplated by Note (3) to
Rule 16b-3).
(e) The Company's obligations with respect to awards granted under the
Plan shall be binding on any successor to the Company.
(f) The Committee may condition any award under the Plan upon the
Participant's agreement that all disputes under the Plan be settled by
arbitration or another procedure prescribed by the Committee.
Section 12.3 Performance Criteria under Section 162(m) of the Code.
(a) The performance criteria for any award made to any "covered
employee" (as defined in Section 162(m) of the Code) that (i) does not satisfy
the requirements of Treasury Regulation Section 1.162-27(e)(2)(vi) and (ii) is
intended to satisfy the requirements of Section 162(m) of the
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Code shall consist of objective tests based on one or more of the following:
earnings, revenue, operating or net cash flows, financial return ratios, total
stockholder return, or market share.
(b) Performance criteria may relate to the total Company or to any
business unit. Performance targets may be set at a specific level or may be
expressed as relative to the comparable measures at comparison companies or a
defined index. The Committee shall establish specific targets for recipients.
(c) Nothing herein shall preclude the Committee from making any payments
or granting any awards whether or not such payments or awards qualify for tax
deductibility under Section 162(m) of the Code.
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