As filed with the Securities and Exchange Commission on December 18, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
ALEXANDER & BALDWIN, INC.
(Exact name of issuer as specified in its charter)
HAWAII 99-0032630
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
822 BISHOP STREET, HONOLULU, HAWAII 96813
POST OFFICE BOX 3440, HONOLULU, HAWAII 96801
(Address of principal executive offices) (Zip Code)
ALEXANDER & BALDWIN, INC. 1998 STOCK OPTION/STOCK INCENTIVE PLAN
ALEXANDER & BALDWIN, INC. 1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN ALEXANDER & BALDWIN, INC. NON-EMPLOYEE DIRECTOR STOCK RETAINER PLAN
(Full title of the plans)
Michael J. Marks
Vice President, General Counsel and Secretary
ALEXANDER & BALDWIN, INC.
822 BISHOP STREET, HONOLULU, HAWAII 96813
(Name and address of agent for service)
(808) 525-6611
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to Amount to be Offering Aggregate Amount of be Registered Registered(1) Price Offering Price(2) Registration per Share(2) Fee ============================================================================================================= Alexander & Baldwin, Inc. 1998 Stock Option/Stock Incentive Plan -------------- Common Stock, no par value 2,100,000 shares $20.6875 $43,443,750 $12,077.36 Alexander & Baldwin, Inc. 1998 Non-Employee Director Stock Option Plan ----------------- Common Stock, no par value 130,000 shares $20.6875 $ 2,689,375 $ 747.65 Alexander & Baldwin, Inc. Non-Employee Director Stock Retainer Plan ------------------- Common Stock, no par value 20,000 shares $20.6875 $ 413,750 $ 115.02 Aggregate Filing Fee $12,940.03 ============================================================================================================= |
(1) This Registration Statement also shall cover any additional shares of Common Stock which become issuable under the Alexander & Baldwin, Inc. 1998 Stock Option/Stock Incentive Plan, the Alexander & Baldwin, Inc. 1998 Non-Employee Director Stock Option Plan, and/or the Alexander & Baldwin, Inc. Non-Employee Director Stock Retainer Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the Registrant's receipt of consideration, which results in an increase in the number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low selling prices per share of the Registrant's Common Stock on December 14, 1998, as reported by the Nasdaq National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Alexander & Baldwin, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, filed with the SEC on March 27, 1998;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1998, June 30, 1998, and September 30, 1998, filed with the SEC on May 14, 1998, August 12, 1998, and November 13, 1998, respectively;
(c) The Registrant's Current Reports on Form 8-K, filed with the SEC on July 16, 1998 and August 25, 1998, respectively; and
(d) The Registrant's Restated Articles of Association, as restated effective May 5, 1986, together with Amendments dated April 28, 1988 and April 26, 1990, filed with the SEC on May 14, 1990 as Exhibits 3.a.(iii) and (iv) to Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1990, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock.
(e) The Registrant's Registration Statement on Form 8-A filed with the SEC on July 16, 1998, in which there is described the terms, rights and provisions applicable to the Registrant's common stock purchase rights.
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "1934 Act") after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Inapplicable.
Inapplicable.
Section 415-5 of the Hawaii Revised Statutes and the Registrant's Articles of Association contain certain provisions covering indemnification of corporate directors and officers against certain liabilities and expenses incurred as a result of proceedings involving such persons in their capacities as directors, officers or agents of the Registrant. Article VI of the Articles of Association sets forth the extent to which officers or directors of the Registrant may be protected or indemnified against certain liabilities which they may incur. The general effect of such provision is that a person made a party to an action, suit or proceeding by reason of the fact that he/she is or was a director, officer, employee or agent of the Registrant, or of another corporation or other enterprise which he/she served as such at the request of the Registrant, shall be indemnified by the Registrant against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, provided he/she was acting in good faith and in a manner he/she reasonably believed to be in the best interests of the Registrant and only upon a determination in the specific case that the actions of such person met the applicable standard of conduct. Article VI also provides that no director, officer, or assistant officer of the Registrant, or person who serves as a director, officer, or assistant officer of another corporation at the request of the Registrant, shall be liable for any loss or damage suffered by the Registrant due to an act or omission of such person unless he/she shall have been guilty of misconduct or gross negligence. Chapter 415 of the Hawaii Revised Statutes (Hawaii Business Corporation Act) and the Registrant's Articles of Association also permit the Registrant to purchase insurance on behalf of its directors, officers or agents against such liabilities and expenses and the Registrant has purchased such liability insurance.
Chapter 415 of the Hawaii Revised Statutes was amended in 1989 to give corporations the power, provided shareholder approval is obtained, to eliminate or limit the personal liability of directors in actions for monetary damages brought by the corporation or its shareholders against a director for breach of fiduciary duty. The Registrant's shareholders have approved an amendment to the Registrant's Articles of Association which limits such personal liability. Corporations may not, however, eliminate or limit a director's liability for any breach of a duty of loyalty, any act or omission not performed in good faith or involving intentional misconduct or a willful or reckless disregard of the director's fiduciary duty, any transaction from which a director received an improper benefit or any willful or negligent violation of any provision of Chapter 415 of the Hawaii Revised Statutes concerning payment of dividends or purchase or redemption of the corporation's stock. Any elimination or limitation of directors' liability would apply only to acts or causes of action occurring or arising after the effective date of the amendment.
Inapplicable.
Exhibit Number Exhibit -------------- ------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Restated Articles of Association, together with Amendments thereto, and Registrant's Registration Statement on Form 8-A, including the exhibits thereto, which are incorporated herein by reference pursuant to Items 3(d) and 3(e) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of Deloitte & Touche LLP, Independent Auditors. 23.2 Consent of Brobeck, Phleger & Harrison LLP is con- tained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1* Alexander & Baldwin, Inc. 1998 Stock Option/Stock Incentive Plan. 99.2 Form of Stock Option Agreement for initial option grant. 99.3* Alexander & Baldwin, Inc. 1998 Non-Employee Director Stock Option Plan. 99.4* Alexander & Baldwin, Inc. Non-Employee Director Stock Retainer Plan. |
* Exhibits 99.1 and 99.3 are incorporated herein by reference to Exhibits 10.b.1.(xxxii) and 10.b.1.(xxxiii), respectively, of Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1998, filed with the SEC on May 14, 1998. Exhibit 99.4 is incorporated herein by reference to Exhibit 10.b.1.(xxxiv) of Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1998, filed with the SEC on August 12, 1998.
A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registra- tion Statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration State- ment or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into the registration statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unissued upon the termination of the 1998 Stock Option/ Stock Incentive Plan, the 1998 Non-Employee Director Stock Option Plan, and/or the Non-Employee Director Stock Retainer Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnifica- tion against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the under- signed, thereunto duly authorized, in the City of Honolulu, State of Hawaii, on this 18th day of December, 1998.
ALEXANDER & BALDWIN, INC.
By /s/ W. Allen Doane _______________________________ W. Allen Doane President and Chief Executive Officer and Director |
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of ALEXANDER & BALDWIN, INC., a Hawaii corporation, do hereby constitute and appoint R. J. Pfeiffer, W. Allen Doane, and Michael J. Marks and each of them, the lawful attorneys and agents, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or any of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date ---------- ----- ---- /s/ R. J. Pfeiffer ___________________________ Chairman of the Board December 18, 1998 R. J. Pfeiffer /s/ W. Allen Doane ___________________________ President and Chief Executive Officer W. Allen Doane (Principal Executive Officer) and Director December 18, 1998 /s/ Glenn R. Rogers ___________________________ Executive Vice President, December 18, 1998 Glenn R. Rogers Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) /s/ Michael J. Chun ___________________________ Director December 18, 1998 Michael J. Chun /s/ John C. Couch ___________________________ Director December 18, 1998 John C. Couch /s/ Leo E. Denlea, Jr. ___________________________ Director December 18, 1998 Leo E. Denlea, Jr. /s/ Walter A. Dods, Jr. ___________________________ Director December 18, 1998 Walter A. Dods, Jr. /s/ Charles G. King ___________________________ Director December 18, 1998 Charles G. King /s/ Carson R. McKissick ___________________________ Director December 18, 1998 Carson R. McKissick /s/ C. Bradley Mulholland ___________________________ Director December 18, 1998 C. Bradley Mulholland /s/ Lynn M. Sedway ___________________________ Director December 18, 1998 Lynn M. Sedway /s/ Maryanna G. Shaw ___________________________ Director December 18, 1998 Maryanna G. Shaw /s/ Charles M. Stockholm ___________________________ Director December 18, 1998 Charles M. Stockholm |
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ALEXANDER & BALDWIN, INC.
Exhibit Number Exhibit ------- ------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Restated Articles of Association, together with Amendments thereto, and Registrant's Registration Statement on Form 8-A, including the exhibits thereto, which are incorporated herein by reference pursuant to Items 3(d) and 3(e) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of Deloitte & Touche LLP, Independent Auditors. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1* Alexander & Baldwin, Inc. 1998 Stock Option/Stock Incentive Plan. 99.2 Form of Stock Option Agreement for initial option grant. 99.3* Alexander & Baldwin, Inc. 1998 Non-Employee Director Stock Option Plan. 99.4* Alexander & Baldwin, Inc. Non-Employee Director Stock Retainer Plan. |
* Exhibits 99.1 and 99.3 are incorporated herein by reference to Exhibits 10.b.1.(xxxii) and 10.b.1.(xxxiii), respectively, of Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1998, filed with the SEC on May 14, 1998. Exhibit 99.4 is incorporated herein by reference to Exhibit 10.b.1.(xxxiv) of Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1998, filed with the SEC on August 12, 1998.
EXHIBIT 5
OPINION OF BROBECK, PHLEGER & HARRISON LLP
December 18, 1998
Alexander & Baldwin, Inc.
822 Bishop Street
Post Office Box 3440
Honolulu, Hawaii 96801
Re: Alexander & Baldwin, Inc. Registration Statement for Offering of an Aggregate of 2,250,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel to Alexander & Baldwin, Inc., a Hawaii
corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
(i) 2,100,000 shares of the Company's common stock for issuance under the
Company's 1998 Stock Option/Stock Incentive Plan (the "Incentive Plan"),
(ii) 130,000 shares of the Company's common stock for issuance under the
Company's 1998 Non-Employee Director Stock Option Plan (the "Non-Employee
Director Option Plan"), and (iii) 20,000 shares of the Company's common stock
for issuance under the Company's Non-Employee Director Stock Retainer Plan (the
"Stock Retainer Plan").
This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the establishment of the Incentive Plan, Non-Employee Director Option Plan and the Stock Retainer Plan. Based on such review, we are of the opinion that, if, as and when the shares of the Company's common stock are issued and sold (and the consideration therefor received) pursuant to (a) the provisions of option agreements duly authorized under the Incentive Plan or the Non-Employee Director Option Plan, and in accordance with the Registration Statement, or (b) duly authorized direct stock issuances in accordance with the Incentive Plan or Stock Retainer Plan and in accordance with the Registration Statement, such shares will be duly authorized, legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement.
This opinion letter is rendered as of the date first written above, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Incentive Plan, Non-Employee Director Option Plan, Stock Retainer Plan, or the shares of the Company's common stock issuable under such plans or options.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
Alexander & Baldwin, Inc.:
We consent to the incorporation by reference in this Registration Statement of Alexander & Baldwin, Inc. and its subsidiaries on Form S-8 of our report dated January 22, 1998, appearing in and incorporated by reference in the Annual Report on Form 10-K of Alexander & Baldwin, Inc. and its subsidiaries for the year ended December 31, 1997.
/s/ Deloitte & Touche LLP December 18, 1998 |
EXHIBIT 99.2
ALEXANDER & BALDWIN, INC.
1998 STOCK OPTION/STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of ___________, 1998, by and between ALEXANDER & BALDWIN, INC., a Hawaii corporation (the "Company"), and ________________ (the "Optionee").
A. The Company has, with the approval of the shareholders, adopted the Alexander & Baldwin, Inc. 1998 Stock Option/Stock Incentive Plan (the "Plan") for the purpose of providing eligible persons with the opportunity to acquire a proprietary interest, or otherwise increase their proprietary interest, in the Company as an incentive for them to join and/or remain in the service of the Company or its subsidiaries.
B. Optionee is an individual who is to render valuable services to the Company or its subsidiaries, and this Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the Company's grant of a stock option to Optionee.
D. For purposes of this Agreement, the following definitions shall be in effect:
NOW, THEREFORE, it is hereby agreed as follows:
(i) Except as otherwise provided in subparagraphs
(ii) through (vi) below, should Optionee cease to remain in the Service of the
Company at any time during the option term, then the period for exercising this
option shall be reduced to a three-year period commencing with the date of such
cessation of Service. During such three-year period, this option may not be
exercised for more than that number of Optioned Shares (if any) for which this
option is exercisable at the time of Optionee's cessation of Service. In no
event, however, shall this option be exercisable at any time after the
Expiration Date.
(ii) Should Optionee's Service be terminated by the Company other than for Misconduct (as defined in subparagraph (v) below) or Cause (as defined in the Employment Agreement between Optionee and the Company dated as of July 27, 1998), then the exercisability of this option, to the extent it is not otherwise at the time fully exercisable, shall be automatically accelerated so that such option shall become fully exercisable with respect to the total number of Optioned Shares at the time subject to this option, and this option shall cease to be exercisable upon the earlier of (A) the expiration of three-year period commencing with the date of such termination by the Company, or (B) the Expiration Date.
(iii) Should Optionee die while this option is outstanding, then (A) the exercisability of this option, to the extent it is not otherwise at the time fully exercisable, shall be automatically accelerated so that such option shall become fully exercisable with respect to the total number of Optioned Shares at the time subject to this option, and (B) the personal representative of Optionee's estate (or the person or persons to whom the option is transferred pursuant to Optionee's will or in accordance with the laws of descent and distribution) shall have the right to exercise this option for any or all of the Optioned Shares. Such right shall lapse, and this option shall cease to be exercisable, upon the earlier of (A) the expiration of the twelve-month period measured from the date of Optionee's death or (B) the Expiration Date.
(iv) Should Optionee become disabled and cease by reason thereof to remain in the Service of the Company at any time during the option term, then Optionee shall have a period of three years (commencing with the date of such cessation of Service) to exercise this option for any or all of the Optioned Shares for which this option either is exercisable at the time of Optionee's cessation of Service or becomes exercisable during the subsequent three-year period. In no event, however, shall this option be exercised at any time after the Expiration Date. For purposes of this Agreement, Optionee shall be deemed to be disabled if Optionee is, by reason of any medically- determinable physical or mental impairment (A) which is expected to result in death or (B) which is expected to be, or is, of continuous duration of twelve consecutive months or more, unable to perform his/her usual duties for the Company (or any Subsidiary or Parent) employing his/her services.
(v) Should Optionee's Service be terminated by the Company for Misconduct (as defined below) or Cause (as defined in the Employ- ment Agreement between Optionee and the Company dated as of July 27, 1998), or should Optionee (a) engage in any post-Service activity, whether as an Employee, consultant, advisor, or otherwise, competitive with the business operations of the Company (or any Subsidiary or Parent), or (b) engage in any other conduct, while in Service or following cessation of Service, materially detrimental to the business or affairs of the Company (or any Subsidiary or Parent), as determined in the sole discretion of the Plan Administrator, then this option shall terminate immediately and cease to be outstanding. Misconduct shall mean the commission of any act of fraud, embezzlement or dishonesty by Optionee, any unauthorized use or disclosure by Optionee of confidential information or trade secrets of the Company (or any Subsidiary or Parent), or any other intentional misconduct by Optionee adversely affecting the business or affairs of the Company (or any Subsidiary or Parent) in a material manner. The foregoing definition shall not be deemed to be inclusive of all the acts or omissions which the Company (or any Subsidiary or Parent) may consider as grounds for the dismissal or discharge of Optionee or other person in the Service of the Company (or any Subsidiary or Parent).
(vi) Except as otherwise provided in subparagraphs
(ii) through (iv) above, should Optionee cease Service for any reason prior to
the expiration of the six- (6) month period measured from the Commencement
Date, then this option shall immediately terminate and cease to be outstanding
without ever becoming exercisable for any of the Optioned Shares.
a. In the event any change is made to the Common Stock by reason of any stock dividend, stock split, combination of shares or other change affecting the outstanding Common Stock as a class without the Company's receipt of consideration, the number and/or class of shares purchasable under this option and the Option Price payable per share shall be adjusted appropriately to prevent the dilution or enlargement of Optionee's benefits hereunder.
b. If this option remains outstanding following any merger or other business combination involving the Company, then this option shall be adjusted appropriately to apply and pertain to the number and class of securities which would have been issuable, in the consummation of such merger or business combination, to an actual holder of Common Stock for the same number of shares as are subject to this option immediately prior to such merger or business combination. Appropriate adjustments also shall be made to the Option Price payable per share; provided, however, that the aggregate Option Price shall remain the same.
(i) a merger or consolidation approved by the Company's stock- holders in which securities possessing 35% or more of the total combined voting power of the Company's outstanding securities are transferred to a person or persons different from the persons holding those securities immediately prior to such transaction,
(ii) any approval by the stockholders of the Company of a plan of complete liquidation or dissolution of the Company, or any sale, transfer or other disposition of all or substantially all of the Company's assets, other than a sale, transfer or other disposition by the Company of all or substantially all of the Company's assets to an entity, at least 75% of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale, or
(iii) any other change in control of a nature required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A under the 1934 Act, whether or not the Company is at the time required to comply with such Regulation 14A, provided that, without limitation, a change in control shall in all events be deemed to have occurred if (a) any person (as defined in Rule 13d-3 of the 1934 Act) becomes the beneficial owner (within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing 35% or more of the total combined voting power of the Company's outstanding securities, or (b) there is a change in the composition of the Company's Board of Directors (the "Board") over a period of twenty-four (24) consecutive months or less such that a majority of the Board members ceases to consist of individuals who either (I) have served continuously as Board members since the beginning of such period or (II) have been elected or nominated for election as Board members during such period by a vote of at least two-thirds of the Board members described in clause (I) who were still in office at the time the Board approved such election or nomination, other than, in the case of either (I) or (II) above, a Board member whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of directors of the Company.
then the exercisability of this option, to the extent it is not otherwise at the time fully exercisable, shall be automatically accelerated so that such option shall, immediately prior to the specified effective date of the Change in Control, become fully exercisable for the total number of Optioned Shares at the time subject to this option and may be exercised for all or any portion of such Optioned Shares. Immediately following the consummation of the Change in Control, all outstanding options shall terminate and cease to be outstanding, except to the extent assumed by the successor corporation (or parent thereof) or otherwise expressly continued in full force and effect pursuant to the terms of the Change in Control trans- action.
a. In order to exercise this option for one or more of the Optioned Shares, Optionee (or in the case of exercise after Optionee's death, Optionee's legal representative, executor, administrator, heir or legatee, as the case may be) must take the following actions:
(i) Deliver to the Secretary of the Company, or his/her designee, a written notice of exercise (the "Exercise Notice") in which there is specified the number of Optioned Shares for which the Option is being exercised.
(ii) Pay the aggregate Option Price for the purchased shares in one of the following alternative forms:
full payment in cash or cash equivalents, such as a certified check, bank draft, personal check or postal or express money order made payable to the Company's order; or
full payment in shares of Common Stock held by the Optionee for the requisite period necessary to avoid a charge to the Company's reported earnings and valued at Fair Market Value on the Exercise Date; or
full payment in a combination of the foregoing.
(iii) Furnish to the Company appropriate documentation that the person or persons exercising the option, if other than Optionee, have the right to exercise this option.
b. For purposes of this Agreement, the following definitions shall be in effect:
c. As soon as practicable after the Exercise Date, the Company shall issue to Optionee (or to the other person or persons exercising this option) a certificate or certificates representing the purchased shares.
d. In no event may this option be exercised for any fractional shares.
a. The exercise of this option and the issuance of Optioned Shares upon such exercise shall be subject to compliance by the Company and Optionee with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange on which shares of the Common Stock may be listed at the time of such exercise and issuance.
b. In connection with the exercise of this option, Optionee shall execute and deliver to the Company such representations in writing as may be requested by the Company in order for it to comply with the applicable requirements of federal and state securities laws.
a. If the Optioned Shares covered by this Agreement exceed, as of the Grant Date, the number of shares of Common Stock which may without stockholder approval be issued under the Plan, then this option shall be void with respect to such excess shares unless stockholder approval of an amendment to the Plan sufficiently increasing the number of shares of Common Stock issuable thereunder is obtained.
b. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and sale of any Common Stock pursuant to this option shall relieve the Company of any liability with respect to the non-issuance or sale of the Common Stock as to which such approval shall not have been obtained. However, the Company shall use reasonable efforts to obtain all such approvals.
a. The Company's obligation to deliver shares of Common Stock upon the exercise of this option shall be subject to the satisfaction of all applicable Federal, State and local income and employment tax withholding requirements.
b. Optionee may elect to have the Company withhold, at the time this option is exercised, a portion of the shares purchased under the option with an aggregate Fair Market Value equal to the designated percentage (any multiple of 5% up to 100% as specified by Optionee) of the applicable Federal and State income tax withholding liability incurred by Optionee in connection with the option exercise (the "Withholding Taxes").
Any such exercise of the election must be effected in accordance with the following terms and conditions:
(i) The election must be made on or before the date the amount of the Withholding Taxes incurred by Optionee in connection with the exercise of the option is determined (the "Tax Determination Date").
(ii) The election shall be irrevocable.
(iii) The election shall be subject to the approval of the Plan Administrator, either at the time the election is made or at any earlier time, and none of the shares purchased under the option actually shall be withheld in satisfaction of the Withholding Taxes incurred in connection with the exercise of the option, except to the extent the election is so approved by the Plan Administrator.
(iv) The shares withheld pursuant to the election shall be valued at Fair Market Value on the Tax Determination Date in accordance with the valuation provisions of paragraph 9.b of this Agreement.
(v) In no event may the number of shares of Common Stock requested to be withheld exceed in Fair Market Value the dollar amount of the Withholding Taxes incurred by Optionee in connection with the exercise of the option.
c. Optionee may elect to deliver to the Company, at the time the option is exercised, shares of Common Stock previously acquired by such individual (other than in connection with such option exercise) with an aggregate Fair Market Value equal to the designated percentage (any multiple of 5% up to 100% as specified by Optionee) of the Withholding Taxes incurred by Optionee in connection with the option exercise.
Any such exercise of the election must be effected in accordance with the following terms and conditions:
(i) The election must be made on or before the Tax Determination Date.
(ii) The election shall be irrevocable.
(iii) The election shall be subject to the approval of the Plan Administrator, either at the time the election is made or at any earlier time, and none of the delivered shares shall be accepted in satisfaction of the Withholding Taxes, except to the extent the election is so approved by the Plan Administrator.
(iv) The delivered shares shall be valued at Fair Market Value on the Tax Determination Date in accordance with the valuation provisions of paragraph 9.b of this Agreement.
(v) In no event may the number of delivered shares exceed in Fair Market Value the dollar amount of the Withholding Taxes incurred by the Optionee in connection with the exercise of the option.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in duplicate on its behalf by its duly authorized officer, and Optionee also has executed this Agreement in duplicate, all as of the day and year indicated above.
ALEXANDER & BALDWIN, INC.
By ________________________________
Its Vice President
Attest: __________________________ ___________________________________ Assistant Secretary Optionee Address: ___________________________________ ___________________________________ |
ADDENDUM
TO
NON-QUALIFIED STOCK OPTION AGREEMENT
The provisions of this Addendum hereby are incorporated into, and made a part of, that certain Non-Qualified Stock Option Agreement dated August 27, 1998 (the "Option Agreement"), by and between the Company and Optionee, evidencing the option grant (the "Original Option") made on such date to Optionee under the terms of the Company's 1998 Stock Option/Stock Incentive Plan (the "Plan"). All capitalized terms in this Addendum shall have the meanings assigned to them in the Option Agreement.
RELOAD OPTION GRANT
(i) The Original Option is exercised prior to the expiration of the five- (5) year period measured from its Grant Date.
(ii) The Option Price is, in connection with such exercise, paid in shares of Common Stock held by the Optionee for a period of at least six (6) months.
(iii) The Original Option is exercised by Optionee, and not by the legal representative, heirs or legatees of the Optionee's estate.
On each occasion on which the Original Option is so exercised by Optionee, Optionee automatically shall be granted at that time (the "Reload Grant Date") a new option (the "Reload Option") to purchase the same number of shares of Common Stock as is delivered in payment of the Option Price. No reload option will be granted for shares of Common Stock delivered or withheld in satisfaction of the withholding tax liability arising from such exercise.
A. In the event of a Change in Control, the Reload Option immediately will become exercisable for all the shares of Common Stock at the time subject to that option, and may be exercised for any or all of those shares immediately prior to such Change in Control.
B. Upon the consummation of the Change in Control, the Reload Option shall terminate and cease to be outstanding, except to the extent assumed by the successor corporation or its parent company or otherwise expressly continued in full force and effect pursuant to the terms of the Change in Control transaction.
C. If the Company is the surviving entity in any merger or other business combination which does not result in the termination of the Reload Option, then the Reload Option shall be adjusted appropriately to apply and pertain to the number and class of securities which would be issuable, in consummation of such merger or business combination, to an actual holder of the same number of shares of Common Stock as is subject to such Reload Option immediately prior to such merger or business combination. Appropriate adjustments shall be made to the Reload Option Price per share payable under the Reload Option, provided the aggregate Reload Option Price shall remain the same.
D. The grant of any Reload Option pursuant to this Addendum shall in no way affect the right of the Company to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.
A. The Company's obligation to deliver shares of Common Stock upon the exercise of each Reload Option shall be subject to the satisfaction of all applicable Federal, State and local income and employment tax withholding requirements.
B. To the extent the Optionee has the right to have a portion of the shares purchased under the Original Option withheld by the Company in satisfaction of the applicable withholding taxes incurred in connection with the exercise of that Option (or otherwise to deliver existing shares of Common Stock in satisfaction of such tax liability), the Optionee shall have the similar right with respect to the withholding tax liability incurred in connection with the exercise of the Reload Option.