SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
File by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement [ ] Confidential, For
Use of the Commission
Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material pursuant to Rule 14a-11(c) or Rule 14a-12
Maui Land & Pineapple Company, Inc.
(Name of Registrant as Specified in Its Charter)
________________________________________________________________
(Name of Person(s) Filing Proxy Statement, if Other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No Fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-
6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction
applies.
_________________________________________________________________
(2) Aggregate number of securities to which transaction applies:
_________________________________________________________________
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the amount
on which the filing fee is calculated and state how it was
determined):
_________________________________________________________________
(4) Proposed maximum aggregate value of transaction:
_________________________________________________________________
(5) Total fee paid:
_________________________________________________________________
[ ] Fee paid previously with preliminary materials:
_________________________________________________________________
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the form or schedule
and the date of its filing.
(1) Amount previously paid:
_________________________________________________________________
(2) Form, Schedule or Registration Statement no.:
_________________________________________________________________
(3) Filing Party:
_________________________________________________________________
(4) Date Filed:
<PAGE>
MAUI LAND & PINEAPPLE COMPANY, INC.
120 Kane Street, P. O. Box 187
Kahului, Maui, Hawaii 96733-6687
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
August 23, 1999
TO THE STOCKHOLDERS OF MAUI LAND & PINEAPPLE COMPANY, INC.:
A special meeting of Stockholders of Maui Land & Pineapple
Company, Inc. (the "Company") will be held on Monday, August 23,
1999 at 4:00 p.m. in the Corporate Office courtyard, 120 Kane
Street, Kahului, Hawaii, for the following purpose:
To consider approval under the Hawaii Control Share Acquisitions
Act of the proposed acquisition by Stephen M. Case of 2,962,036
shares of Common Stock of the Company constituting approximately
41.2% of the outstanding shares of Common Stock of the Company.
The close of business on July 15, 1999 is the record date
for determining stockholders entitled to notice of and to vote at
the special meeting or any postponements or adjournments thereof.
BY ORDER OF THE CONTROL SHARE ACQUISITION COMMITTEE OF THE BOARD
OF DIRECTORS,
/S/ ADELE H. SUMIDA
ADELE H. SUMIDA
Secretary
Dated: July 26, 1999
<PAGE>
MAUI LAND & PINEAPPLE COMPANY, INC.
120 Kane Street, P. O. Box 187
Kahului, Maui, Hawaii 96733-6687
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
August 23, 1999
This Proxy Statement is furnished by Maui Land & Pineapple
Company, Inc. (the "Company"), a Hawaii corporation in connection
with the solicitation by the Company of proxies to be voted at
the Special Meeting of Stockholders to be held on August 23,
1999, and all adjournments or postponements thereof.
The person giving the proxy may revoke it at any time before
it is voted by delivering a written revocation or a signed proxy
card bearing a later date to the Company's Secretary, provided
that such revocation or proxy card is actually received by the
Secretary before it is used. Shares of the Company's common
stock that are eligible to vote, represented by properly executed
proxies received by the Company at or prior to the meeting and
not subsequently revoked, will be voted as directed in such
proxies. If a proxy is signed and no directions are given,
shares eligible to vote represented thereby will be voted in
favor of the proposal. The proxy confers discretionary authority
on the persons named therein as to all other matters that may
come before the meeting.
This Proxy Statement is first being mailed to stockholders
on or about July 26, 1999.
MATTERS TO BE CONSIDERED AT THE MEETING
The meeting has been called to consider the approval under
the Hawaii Control Share Acquisitions Act (the "CSA Act") of the
proposed acquisition by Stephen M. Case of 2,962,036 shares of
the Common Stock of the Company, constituting approximately 41.2%
of the outstanding shares of Common Stock of the Company (the
"Transaction"). Stephen M. Case is Chairman of the Board and
Chief Executive Officer of America Online, Inc. and is
hereinafter referred to as "Mr. Case" or the "Acquiring Person."
VOTING SECURITIES AND RIGHT TO VOTE
Holders of record of shares of Common Stock of the Company
that are not beneficially owned by the Acquiring Person at the
close of business on July 15, 1999 (the "Record Date") will be
entitled to vote at the meeting with each such share entitling
its owner to one vote. Under the CSA Act, approval of the
Transaction must be obtained by the affirmative vote of a
majority of shares entitled to vote, exclusive of shares
beneficially owned by the Acquiring Person. The CSA Act provides
that "beneficial ownership" shall be determined pursuant to
Section 13 of the Securities Exchange Act of 1934 and the rules
promulgated thereunder, as amended. Mr. Case has advised the
Company that he does not beneficially own any shares of Common
Stock of the Company, and based upon such representation, all of
the 7,188,500 shares of Common Stock that were outstanding on the
Record Date will be entitled to vote. The Company reserves the
right to make further inquiries regarding the beneficial
ownership of the Acquiring Person if it so determines in its sole
discretion.
A majority of the outstanding shares of Common Stock of the
Company are required to be represented at the meeting either in
person or by proxy to constitute a quorum for the conduct of
business. Abstentions, but not broker non-votes, will be treated
as present at the meeting for these purposes. At least 3,594,251
shares (or more than 50%) must vote in favor of the Transaction
for approval assuming 7,188,500 shares are entitled to vote.
Stockholders holding shares entitled to vote approximately
58% of the shares of Common Stock of the Company have advised the
Company of their intent to vote to approve the Transaction.
Accordingly, approval of the Transaction is assured if they vote
in accordance with their stated intent. For further information,
see "Voting by Certain Stockholders."
PROPOSED CONTROL SHARE ACQUISITION
BY STEPHEN M. CASE
The information set forth in this Proxy Statement concerning
the terms and conditions of the Transaction, the agreements that
have been entered into in connection therewith and the intentions
of Mr. Case has been provided by Mr. Case in an information
statement provided to the Company on July 1, 1999 (hereinafter
referred to as the "Statement"). The accuracy or completeness of
such information has not been independently verified by the
Company. All information herein concerning the Transaction is
qualified in its entirety by the information and documents set
forth in or as part of the Statement, which is attached to this
Proxy Statement as Exhibit A.
The Statement discloses that on June 25, 1999, Mr. Case
entered into two stock purchase agreements (the "Agreements")
providing for the purchase of all of the shares of Common Stock
of the Company held by the Harry Weinberg Family Foundation, Inc.
(2,669,780 shares), The Harry & Jeanette Weinberg Foundation,
Inc. (89,568 shares) and 300 Corporation (202,688 shares) (such
persons are hereinafter collectively referred to as the
"Sellers") for a price of $13.25 per share in cash to be paid at
closing plus certain agreements for price protection for certain
possible events after closing. The 2,962,036 shares of Common
Stock subject to the Agreements constitute approximately 41.2% of
the shares of outstanding Common Stock of the Company. Mr. Case
has advised the Company that the purchase price will be paid from
Mr. Case's personal funds. Copies of the Agreements are attached
to the Statement, which is attached to this Proxy Statement as
Exhibit A.
The closing of the Transaction (the "Closing") is subject to
various conditions, including approval by the Company's
stockholders in accordance with the CSA Act, the approval by the
Hawaii Public Utilities Commission in accordance with Section 269-
17.5 of the Hawaii Revised Statutes and compliance with the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 ("HSR"). As of
July 6, 1999, application to the Hawaii Public Utilities
Commission for approval of the Transaction and information for
compliance with HSR is in the process of being prepared. The
Closing of the Transaction is scheduled to occur within 10 days
after all of the necessary consents and approvals have been
obtained. Mr. Case and the Sellers have agreed to exercise their
best efforts to obtain all necessary approvals as quickly as
possible. A party can terminate an Agreement in the event that
its conditions to Closing are not satisfied by October 31, 1999.
The Company is not a party to the Agreements.
The Agreements provide that if Mr. Case sells or enters into
a binding agreement to sell any of the acquired shares within one
year after the Closing he will pay to the Sellers two-thirds of
any gain he realizes upon the sale of such shares. If Mr. Case
sells or executes a binding agreement to sell any of the acquired
shares in the second year after the Closing, Mr. Case will pay to
the Sellers one-third of any gain realized upon the sale of such
shares. Mr. Case has agreed not to engage in or initiate any
"Rule 13e-3 transaction" (a so-called "going private"
transaction) with respect to the Common Stock of the Company
within the two-year period following the Closing.
The Agreement with the Harry Weinberg Family Foundation,
Inc. (the "Foundation") provides for the resignation at the
Closing of Samuel K. Himmelrich, Sr. and Morton B. Plant as
directors of the Company. Messrs. Himmelrich and Plant are also
directors of the Foundation. Under the Company's Bylaws, any
resulting vacancy on the Board of Directors may be filled by an
appointment of a new director approved by the remaining members
of the Board of Directors. Mr. Case has advised the Company that
he plans to submit, for the Board of Directors' consideration,
the names of two individuals to fill the vacancies that may be
created by such resignations, but has not yet identified such
persons.
Mr. Case has advised the Company that he "has no plans or
proposals to change materially the Corporation's management or
policies of employment; change the location of its principal
executive office or of a material portion of its business
activities; liquidate the Corporation; sell all or substantially
all of its assets; merge it or exchange its shares with any other
person; alter materially its relationship with suppliers or
customers or the communities in which it operates; or make any
other material change in its business, corporate structure,
management or personnel, other than the resignation of Mr.
Himmelrich and Mr. Plant and the nomination of Mr. Case's
representatives to fill vacant seats on the Board." Reference is
made to the Statement, which is attached to this Proxy Statement
as Exhibit A, for further information.
The Statement also discloses that on June 25, 1999, Mr. Case
entered into a separate right of first refusal agreement (the
"RFR Agreement") with Richard H. Cameron, Claire C. Sanford,
Jared B. H. Sanford, Douglas B. Cameron, and the Allan G. Sanford
Trust (collectively referred to as the "Cameron Family
Stockholders"). Richard H. Cameron is the Chairman of the Board
of Directors of the Company. Claire C. Sanford is a director of
the Company. Mary C. Sanford, a director emeritus and a former
director and Chairman of the Board of the Company, is the sole
Trustee of the Allan G. Sanford Trust. Jared B. H. Sanford and
Douglas B. Cameron are related to Richard H. Cameron, Claire C.
Sanford and Mary C. Sanford. For further information see
"Interest of Certain Persons In Or Opposition To Matters To Be
Acted Upon." Shares of Common Stock of the Company currently
owned by the Cameron Family Stockholders totaling 1,011,634
(approximately 14% of the outstanding shares), as well as shares
that they may later acquire are subject to the RFR Agreement.
The J. Walter Cameron Family Group, which includes the Cameron
Family Stockholders and other affiliates, own of record or
beneficially another 1,516,236 shares or approximately 21% of
Common Stock of the Company. For further information, see
"Security Ownership of Certain Beneficial Owners and Management."
The Company is not a party to the RFR Agreement. A copy of the
RFR Agreement is attached as part of the Statement, which is
attached to this Proxy Statement as Exhibit A.
Under the RFR Agreement, the Cameron Family Stockholders and
Mr. Case have granted to each other a right of first refusal as
to all of the shares held by the Cameron Family Stockholders and
an equal amount of shares that Mr. Case will acquire in the
Transaction. Certain transfers for estate planning purposes or
to family members or pledges for certain loans are exempt from
the terms of the RFR Agreement. The RFR Agreement provides that
before selling any shares to a third party the person must offer
to sell them to the other party to the RFR Agreement. If it is a
privately negotiated transaction, the person desiring to sell the
shares shall first offer to sell the shares to the other party at
the price and upon the terms offered by the third party. In the
case of an open market sale, the sales price is to be equal to
the volume-weighted average sales price of the Company's common
stock over the preceding 180 days. The RFR Agreement is subject
to termination if the Transaction is not approved by the
Company's stockholders or does not close within 180 days from its
date. The closing of any sale of shares under the RFR Agreement
is subject to compliance with the CSA Act, if applicable.
Consummation of the Transaction will not result in any
material differences in the rights of security holders of the
Company, but will result in Mr. Case becoming the largest single
stockholder of the Company. The Transaction will have no federal
income tax consequences to the Company or to the stockholders
other than to Mr. Case and the Sellers.
The Company will derive no direct benefit from the
Transaction, but will incur certain costs to call the meeting as
required by Hawaii law under the CSA Act, to prepare, print and
mail this Proxy Statement to stockholders, to solicit proxies and
to hold the meeting.
CONTROL SHARE ACQUISITIONS ACT
Stockholders of the Company are being asked to consider
approval of the Transaction under the CSA Act. The following is
a brief description of the CSA Act and is qualified in its
entirety by the text of the CSA Act, which is attached as Exhibit
B to this Proxy Statement.
The acquisition of shares of an issuing public corporation
that results in beneficial ownership of a range of voting power
as specified in the CSA Act (a "Control Share Acquisition") is
subject to the requirements of the CSA Act. The Company is an
issuing public corporation within the meaning of the CSA Act and
the Transaction is a Control Share Acquisition, which is subject
to the CSA Act.
Stockholders of the issuing public corporation must approve
a Control Share Acquisition. If an acquisition is made without
the requisite approval, then for a period of one year the shares
acquired by the acquiring person will (i) be denied voting
rights, (ii) be non-transferable, and (iii) be subject to
redemption at the option of the Company at a price equal to
either the price at which the shares were acquired or at book
value per share as of the last day of the fiscal quarter ended
prior to the date of the call for redemption. Stockholders will
not have dissenter's rights in connection with the approval of
the transaction. Approval requires the affirmative vote of a
majority of the shares entitled to vote, exclusive of shares
beneficially owned by an acquiring person. The CSA Act provides
that "beneficial ownership" shall be determined pursuant to
Section 13 of the Securities Exchange Act of 1934 and the rules
promulgated thereunder, as amended.
The CSA Act sets forth a number of technical requirements
for obtaining stockholder approval of a Control Share
Acquisition. First, the acquiring person must submit to the
issuing public corporation an information statement (the "CSA
Statement") setting out, among other things, the number of shares
of the issuing public corporation beneficially owned by the
acquiring person, the range of voting power and the election of
directors that would result from the Control Share Acquisition,
and the terms of the proposed Control Share Acquisition. Second,
a proxy relating to a meeting of stockholders on the question of
approving the Control Share Acquisition must be solicited
separately from an offer to purchase the shares and must not be
solicited sooner than 30 days before the meeting held pursuant to
the CSA Act unless otherwise agreed. Third, a majority of the
shares of the issuing public corporation entitled to vote that
are not beneficially owned by the acquiring person must approve
the Control Share Acquisition. Fourth, the Control Share
Acquisition must be consummated within 180 days after shareholder
approval.
Under the CSA Act the Company must call a special meeting of
stockholders to consider the transaction within five days after
the receipt of the CSA Statement, mail notice of the meeting and
other materials, including a copy of the CSA Statement provided
by the acquiring person, to stockholders not later than 25 days
after receipt of the CSA Statement and hold the meeting (subject
to potential adjustment) not less than 30 days and not more than
55 days after the date of the receipt of the CSA Statement.
In the event a majority of the shares that are not
beneficially owned by the acquiring person approve the
transaction, then the three punitive provisions of the CSA Act
listed above will not apply. If approval is not obtained, then
such provisions of the CSA Act will apply to any shares acquired.
A copy of the CSA Statement provided to the Company by Mr.
Case is attached to this Proxy Statement as Exhibit A and is
referred to herein as the Statement.
VOTING BY CERTAIN STOCKHOLDERS
The Sellers have advised the Company that they intend to
vote the 2,962,036 shares of the Common Stock of the Company,
which they own to approve the Transaction. Richard H. Cameron,
the Chairman of the Board of Directors of the Company, Mary C.
Sanford, a director emeritus and a former director and Chairman
of the Board of the Company and Claire C. Sanford, a director of
the Company, have sole voting power over 1,176,213 shares of
Common Stock of the Company and have advised the Company that
they intend to vote such shares to approve the Transaction.
Accordingly, if the foregoing stockholders having a right to vote
approximately 58% of the shares of Common Stock of the Company
vote in favor of the Transaction, approval is assured.
RECOMMENDATION OF THE COMPANY
At a meeting of the Board of Directors held on June 25,
1999, the Chairman of the Board of the Company appointed the
Control Share Acquisition Committee (the "Committee") consisting
of Mr. Randolph G. Moore and Mr. Fred E. Trotter III, independent
members of the Board of Directors of the Company. Such
appointment was ratified and confirmed by the Board of Directors
and the Committee was given the authority to take or authorize
any and all action that the Board of Directors could take or
authorize in connection with the Transaction, except such action
that is prohibited to a committee under law or the Articles of
Incorporation or Bylaws of the Company. The Committee was formed
to minimize potential conflicts of interest since directors
Samuel K. Himmelrich, Sr. and Morton B. Plant are directors of
the Foundation (one of the Sellers) and directors Richard H.
Cameron and Claire C. Sanford and persons related to them are
parties to the RFR Agreement.
The CSA Act requires the Company to state its recommendation
with respect to the approval of the Control Share Acquisition.
At a meeting of the Committee held on June 28, 1999, the
Committee unanimously recommended acceptance of the Control Share
Acquisition and approval of the Transaction. The Board of
Directors unanimously adopted such recommendation on July 2,
1999.
Accordingly, the Company recommends acceptance of the
Control Share Acquisition and approval of the Transaction.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
Security Ownership of Certain Beneficial Owners
The following table sets forth information as of June 30,
1999 with respect to all persons known to the Company to be the
beneficial owners of more than 5% of the Company's Common Stock,
other than those listed under "Security Ownership of Management."
Number Percent
Name and Address of Shares of Class
The J. Walter Cameron Family Group 2,527,870 (1)(4) 35.1%
P. O. Box 550
Wailuku, Hawaii 96793
Maui Publishing Company, Ltd. 423,756 (4) 5.9%
P. O. Box 550
Wailuku, Hawaii 96793
Cameron Family Partnership 399,104 (1) 5.6%
P. O. Box 550
Wailuku, Hawaii 96793
Harry Weinberg Family
Foundation, Inc. 2,669,780 (2) 37.1%
101 West Mount Royal Avenue
Baltimore, Maryland 21201
Maui Land & Pineapple Company, Inc.
Employee Stock Ownership Plan 513,881 (3) 7.1%
c/o Pacific Century Trust, Trustee
P. O. Box 3170
Honolulu, Hawaii 96802
(1) The J. Walter Cameron Family Group holdings include
599,280 shares owned by Mary C. Sanford; 163,861 shares
owned by Claire C. Sanford; 173,240 shares owned by
Jared B. H. Sanford; 264,812 shares owned by Richard H.
Cameron, his spouse and minor children (includes 5,456
shares allocated to his account in the Maui Land &
Pineapple Company, Inc. Employee Stock Ownership Plan
["ESOP"]); 266,261 shares owned by Douglas B. Cameron;
156,116 shares owned by the Allan G. Sanford Trust, of
which Mary C. Sanford is the trustee; 399,104 shares
owned by the Cameron Family Partnership, whose general
partners are Mary C. Sanford, Richard H. Cameron,
Claire C. Sanford and Frances E. C. Ort; 81,440 shares
owned by the J. Walter Cameron Trust, of which Mary C.
Sanford, Richard H. Cameron, Margaret A. C. Alvidrez,
Claire C. Sanford and Pacific Century Trust are co-
trustees; and 423,756 shares owned by Maui Publishing
Company, Ltd., of which Claire C. Sanford is a
director, Richard H. Cameron is an officer and director
and Mary C. Sanford is an officer, director and
shareholder (see Note (4) below). Voting and
investment decisions with respect to shares held by the
foregoing trusts with three or more trustees and shares
held by the Cameron Family Partnership generally
require approval of a majority of the trustees or
general partners. However, all of the Cameron Family
Partnership general partners must approve dispositions
of the Company's shares. Mrs. Alvidrez has disclaimed
sole or shared voting or dispositive power with respect
to shares held by the trusts of which she is one of the
trustees. Mrs. Ort has disclaimed sole or shared
voting power and sole dispositive power with respect to
the shares held by the partnership of which she is a
general partner. Except as indicated above, share
ownership figures for the J. Walter Cameron Family
Group exclude shares owned by the Company's ESOP (see
Note (3) below).
(2) The Harry Weinberg Family Foundation, Inc., a
charitable foundation, owns 2,669,780 shares. The
directors are Michael Bronfein, Howard K. Cohen,
Darrell D. Friedman, Toba Weinberg Grant, Stewart
Greenebaum, Amy Weinberg Gur, Samuel K. Himmelrich,
Sr., Traci Lerner, Morton B. Plant, Bernard Siegel, Jay
Weinberg, Nathan Weinberg and Stevan Weinberg.
(3) Gary L. Gifford, President of the Company, Paul J.
Meyer, Douglas R. Schenk and Donald A. Young, Executive
Vice Presidents of the Company, are members of the
Administrative Committee of the Company's ESOP, which
was adopted by the Company on December 27, 1978. The
Administrative Committee directs and authorizes the
trustee as to various actions, however, the ESOP
requires the trustee to inquire of each plan
participant, on a confidential basis, how to vote the
shares allocated to the plan participant's individual
account. The trustee is required to vote shares
allocated to participants' accounts for which no
instructions are received and to vote any shares not
then allocated to participants' accounts in the same
proportions as the aggregate shares allocated to
participants' accounts are voted pursuant to
participants' instructions.
(4) Maui Publishing Company, Ltd. owns 423,756 shares.
Claire C. Sanford is a director, Richard H. Cameron is
an officer and director and Mary C. Sanford is an
officer, director and shareholder of Maui Publishing
Company, Ltd. The shares are included in the holdings
of the J. Walter Cameron Family Group (see Note (1)
above).
Security Ownership of Management
The following table sets forth information as of June 30,
1999 with respect to the Company's voting Common Stock
beneficially owned by directors and executive officers, and by
all directors and executive officers of the Company as a group:
Number
of Shares
Beneficially Percent
Owned of Class
Mary C. Sanford, non-voting
director emeritus 1,659,696(1) 23.1%
Richard H. Cameron 1,169,112(2) 16.3%
Claire C. Sanford 1,068,161(3) 14.9%
Donald A. Young 11,575(4) *
Paul J. Meyer 10,288(4) *
Douglas R. Schenk 9,061(4) *
Gary L. Gifford 7,422(4) *
Randolph G. Moore 4,000 *
Warren A. Suzuki 1,742(4) *
Scott A. Crockford 1,037(4) *
Morton B. Plant -- --
Samuel K. Himmelrich, Sr. -- --
Fred E. Trotter III -- --
All directors and executive officers
as a group (13) 2,572,995(5) 35.8%
* less than 1%
(1) Mary C. Sanford, mother of Claire C. Sanford and aunt of
Richard H. Cameron, owns of record 599,280 shares and
beneficially 1,060,416 shares.
(2) Richard H. Cameron owns of record 252,156 shares and
beneficially 916,956 shares. Included are 5,456 shares allocated
to him as a participant in the Company's ESOP (see Note (3)
regarding the Company's ESOP in the preceding table). He is a
Class Three Director and Chairman of the Board.
(3) Claire C. Sanford owns of record 163,861 shares and
beneficially 904,300 shares. She is a Class Two Director.
(4) Amounts include shares allocated to these executive officers
as participants in the Company's ESOP: Gifford-5,049;
Meyer-8,327; Schenk-5,492; Young-10,075; Suzuki-1,742;
Crockford-1,037. (See Note (3) regarding the Company's ESOP
in the preceding table.)
(5) Includes 2,527,870 shares beneficially owned by the J.
Walter Cameron Family Group, but does not include
513,881 shares owned by the Company's ESOP (see Note
(3) regarding the Company's ESOP in the preceding
table).
The closing of the Transaction will result in Mr. Case
becoming the largest single stockholder of the Company holding
approximately 41.2% of the outstanding shares of Common Stock of
the Company. If Cameron Family Stockholders were to seek to sell
a sufficient number of shares and Mr. Case purchased such under
the terms of the RFR Agreement, then such additional stock
ownership of Mr. Case could result in a change of control of the
Company.
CHANGE-IN-CONTROL AGREEMENTS
Various executives of the Company are subject to Change-in-
Control Agreements (the "Change-in-Control Agreements").
Consummation of the Transaction would constitute a "change-in-
control" under the Change-in-Control Agreements, thus making such
executives potentially eligible for payouts thereunder if their
employment terminates. The following executives are party to the
Change-in-Control Agreements:
Executive Position
Gary L. Gifford President and Chief Executive Officer
Paul J. Meyer Executive Vice President/Finance
Douglas R. Schenk Executive Vice President/Pineapple
Donald A. Young Executive Vice President/Resort
Scott A. Crockford Vice President/Retail Property
Warren A. Suzuki Vice President/Land Management
and Development
The Change-in-Control Agreements with each executive officer
provide that a "change-in-control" means one or more of the
following occurrences with respect to the Company or a Subsidiary
(1) any person or group who is not on the date of the Agreements
a beneficial owner of 25% or more of the voting shares of the
Company or a Subsidiary becomes the beneficial owner of 25% or
more of the total number of voting shares of that entity; (2) any
person or group who is not on the date of the Agreements the
beneficial owner of 50% or more of the shares of the Company or a
Subsidiary becomes the beneficial owner of 50% or more of the
total number of voting shares of that entity; (3) the persons who
were directors of the Company or a Subsidiary before a cash
tender or exchange offer, merger or other business combination,
sale of assets or contested election cease to constitute a
majority of the Board of Directors of that entity or a successor
thereto; (4) a merger or consolidation of the entity occurs in
which the survivor is neither the Company nor a direct or
indirect wholly owned subsidiary of the Company; (5) a sale,
transfer or other disposition of all or substantially all (as
defined) of the assets of the Company or Subsidiary; and, in
addition, in the case of a Subsidiary, a disposition of 50% or
more of such Subsidiary's outstanding voting securities; or (6) a
spin-off, split-off, split-up or similar divisive reorganization
affecting the Company and/or its Subsidiaries. "Subsidiary"
means Maui Pineapple Company, Ltd. and Kapalua Land Company, Ltd.
except that if the executive is the Vice President/Retail
Property, the term "Subsidiary" is limited to Kaahumanu Center
Associates.
The Change-in-Control Agreements with each executive officer
entitle the executive to severance payments if a change-in-
control occurs and within 36 months (in the case of Messrs.
Gifford, Meyer, Schenk and Young) or 24 months (in the case of
Messrs. Suzuki and Crockford) thereafter (1) the executive's
employment terminates involuntarily without just cause (as
defined) or (2) the executive voluntarily terminates employment
for good reason (as defined).
Severance payments include (1) a lump sum cash payment of
2.99 times (for Messrs. Gifford, Meyer, Schenk and Young) or 2
times (for Messrs. Suzuki and Crockford) the executive's annual
base salary in effect on the effective date of termination (or,
if greater, in effect ninety days prior to the change-in-
control); (2) a payout under the Company's annual incentive plan
(if any), in accordance with the terms of such plan; (3) a
continuation of all welfare benefits at normal employee cost for
three full years (for Messrs. Gifford, Meyer, Schenk and Young)
or two full years (for Messrs. Suzuki and Crockford) from the
effective date of termination; (4) special retirement benefits
equal to the retirement benefit that the executive would have
received under the Maui Land & Pineapple Company, Inc. Pension
Plan for Non-Bargaining Unit Employees, the Supplemental
Executive Retirement Plan, and Executive Supplemental Insurance
Plan/Executive Deferred Compensation Plan, or any successor plans
or arrangements to such plans, had the executive's employment
continued for 36 months (in the case of Messrs. Gifford, Meyer,
Schenk and Young) or 24 months (in the case of Messrs. Suzuki and
Crockford) following the executive's effective date of
termination; and (5) standard outplacement services as selected
by the executive for a period of up to 36 months (in the case of
Messrs. Gifford, Meyer, Schenk and Young) or 24 months (in the
case of Messrs. Suzuki and Crockford) from the effective date of
termination.
The Change-in-Control Agreements provide that if any portion
of the severance payment or payment under any other agreement or
plan of the Company would constitute an "excess parachute
payment," then the payment to the executive will be reduced if
such reduction results in an increase in the executive's net
benefit. If it is ultimately determined pursuant to a final
determination by the Internal Revenue Service that any portion of
the severance payment is a "parachute payment" subject to excise
tax, which was not contemplated to be a "parachute payment" at
the time of payment, the executive will be entitled to a lump sum
cash payment sufficient to place the executive in the same net
after tax position that would have existed if such payment had
not been subject to the excise tax.
Mr. Case has advised the Company that he has no plans or
proposals to change materially the corporation's management or
policies of employment.
INTEREST OF CERTAIN PERSONS IN OR OPPOSITION TO
MATTERS TO BE ACTED UPON
The Sellers of the shares in the Transaction are the
Foundation, The Harry & Jeanette Weinberg Foundation, Inc. and
300 Corporation. Samuel K. Himmelrich, Sr. and Morton B. Plant,
are directors of the Foundation. Messrs. Himmelrich and Plant
were nominated to the Board of Directors of the Company by the
Foundation.
Richard H. Cameron, the Chairman of the Board of Directors
of the Company, Mary C. Sanford (as trustee of the Alan G.
Sanford Trust), a director emeritus and a former director and
Chairman of the Board of the Company, and Claire C. Sanford, a
director of the Company, as well as Jared B. H. Sanford (son of
Mary C. Sanford, brother of Claire C. Sanford and cousin of
Richard H. Cameron) and Douglas B. Cameron (brother of Richard H.
Cameron, nephew of Mary C. Sanford and cousin of Claire C.
Sanford) executed the RFR Agreement with Mr. Case. Such
stockholders are part of the J. Walter Cameron Family Group,
which beneficially owns 35.1% of the shares of common stock of
the Company. For further information see "Proposed Control Share
Acquisition by Stephen M. Case" and "Security Ownership of
Certain Beneficial Owners and Management."
OTHER MATTERS
The Board knows of no other matters that may be brought
before the meeting. However, if any other matters are properly
brought before the meeting, the persons named in the enclosed
proxy or their substitutes will vote in accordance with their
best judgment on such matters, and discretionary authority to do
so is included in the proxy.
SOLICITATION OF PROXIES
The entire cost of soliciting proxies will be borne by the
Company. The Company may make arrangements with brokerage
houses, banks and other custodians, nominees and fiduciaries to
forward proxies and proxy material to the beneficial owners of
the common stock of the Company and to request authority for the
execution of proxies. In such cases, the Company may reimburse
such brokerage houses, banks, custodians, nominees and
fiduciaries for their expenses in connection therewith. Proxies
may be solicited in person or by telephone, mail, facsimile or
other electronic means by certain directors and officers of the
Company without additional compensation for such services, or by
its Transfer Agent, and the cost will be borne by the Company.
STOCKHOLDER PROPOSALS AND NOMINATIONS
Proposals of stockholders intended to be presented pursuant
to Rule 14a-8 under the Securities Exchange Act of 1934 (the
"Exchange Act") must be received at the executive offices of the
Company on or before December 4, 1999 in order to be considered
for inclusion in the proxy statement and proxy card for the year
2000 annual meeting.
The Company's Bylaws contain additional requirements that
must be satisfied for any proposal of stockholders made outside
of Rule 14a-8 or any nomination by a stockholder of directors to
be considered at an annual or special meeting. Such proposals or
nominations may not be brought before an annual meeting by a
stockholder unless the stockholder has given timely written
notice in proper form of such proposal or nomination to the
Chairman of the Board, the President or the Secretary of the
Company. Such proposals or nominations may be made only by
persons who are stockholders of record on the date on which such
notice is given and on the record date for determination of
stockholders entitled to vote at that meeting.
Stockholder notices of any proposals or nominations intended
to be considered at the 2000 annual meeting will be timely only
if received at the Company's executive offices no earlier than
January 1, 2000 and no later than January 31, 2000. However, if
the 2000 annual meeting is called for a date that is not within
thirty days before or after April 30, 2000, any such notice will
be timely only if it is received no later than the close of
business on the tenth day following the date of the Company's
first mailing of the notice of the 2000 annual meeting or the
date of the Company's public disclosure of the date of the 2000
annual meeting, whichever is earlier.
To be in proper written form, a stockholder's notice
concerning a proposal to be presented at an annual meeting must
set forth as to each matter the stockholder proposes to bring
before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name
and record address of such stockholder, (iii) the number of
shares of stock of the Company owned by such stockholder (x)
beneficially and (y) of record, (iv) a description of all
arrangements or understandings between such stockholder and any
other person or persons (including their names) in connection
with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person
or by proxy at the annual meeting to bring such business before
the meeting.
To be in proper written form, a notice concerning a
nomination for election to the Board of Directors must set forth
(i) as to each person whom the stockholder proposes to nominate
for election as a director (a) the name, age, business address
and residence address of the person, (b) the principal occupation
or employment of the person, (c) the number of shares of stock of
the Company owned by the person (x) beneficially and (y) of
record, and (d) any other information relating to the person that
would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated
thereunder; and (ii) as to the stockholder giving the notice (a)
the name and record address of such stockholder, (b) the number
of shares of stock of the Company owned by such stockholder (x)
beneficially and (y) of record, (c) a description of all
arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such
stockholder, (d) a representation that such stockholder intends
to appear in person or by proxy at the meeting to nominate the
persons named in its notice and (e) any other information
relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. Such notice must
be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director, if elected.
In addition, no person will be eligible for election to the
class of directors to be elected in the year 2000 and each third
year thereafter unless such person is an "independent director"
within the meaning of Section 121 of the Listing Standards,
Policies and Requirements of the American Stock Exchange LLC (or
any successor provision).
Any notice concerning proposals or nominations sought to be
considered at the 2000 annual meeting should be addressed to the
Company's Chairman, President or Secretary at 120 Kane Street,
P.O. Box 187, Kahului, Maui, Hawaii 96733-6687. The full text
of the bylaw provisions referred to above (which also set forth
requirements and limitations as to stockholder proposals or
nominations to be considered at any special meeting) may be
obtained by contacting the Company's Secretary at the foregoing
address, by telephone at 808-877-3351 or facsimile 808-877-1614.
PROXY INSTRUCTIONS
A form of proxy for the meeting is enclosed. You are
requested to sign and return your proxy promptly to make certain
your shares will be voted at the meeting. As previously stated,
you may revoke your proxy at any time before it is voted by
delivering a written revocation or a signed proxy card bearing a
later date to the Company's Secretary, provided that such
revocation or proxy card is actually received by the Secretary
before it is used. Attendance at the meeting will not in itself
constitute revocation of a proxy. If you attend the meeting, you
may vote your shares in person if you so decide. For your
convenience, a self-addressed envelope is enclosed; it requires
no postage if mailed in the United States.
BY ORDER OF THE CONTROL SHARE ACQUISITION COMMITTEE OF THE BOARD
OF DIRECTORS
/S/ ADELE H. SUMIDA
ADELE H. SUMIDA
Secretary
Kahului, Maui, Hawaii
July 26, 1999
<PAGE>
EXHIBIT A
INFORMATION STATEMENT
OF STEPHEN M. CASE
MADE UNDER SECTION 415-172 OF
THE HAWAII CONTROL SHARE ACQUISITIONS ACT
To Maui Land & Pineapple Company, Inc. and its Board of Directors
and Stockholders:
On June 25, 1999, Stephen M. Case entered into two stock
purchase agreements providing for the purchase of all of the
shares of common stock of Maui Land & Pineapple Company, Inc.
(the "Corporation") held by the Harry Weinberg Family Foundation,
Inc., The Harry & Jeanette Weinberg Foundation, Inc. and 300
Corporation. These entities collectively own 2,962,036 shares of
the Corporation's common stock, which represents approximately
41% of the outstanding shares of the Corporation's common stock.
This Information Statement is being delivered to you
pursuant to Section 415-172 of the Hawaii Control Share
Acquisitions statutes (the "Control Share Acquisitions Act"),
which requires the person who intends to make a control share
acquisition to deliver an information statement containing
certain specified information to the Company prior to acquiring
the subject shares. A control share acquisition is an
acquisition of shares which results in the acquiring person
having beneficial ownership of a new range of voting power in the
election of the Corporation's directors.
Mr. Case does not currently own, either directly or
beneficially, any shares of the Corporation's common stock.
If the proposed acquisition is consummated, Mr. Case will
acquire voting power in the election of directors in the
statutory range of at least forty percent, but less than a
majority. The proposed acquisition will, therefore, constitute a
control share acquisition subject to the Hawaii Control Share
Acquisitions Act.
The Proposed Acquisition
Stephen M. Case proposes to acquire 2,962,036 shares of the
Corporation's common stock from the Harry Weinberg Family
Foundation, Inc., The Harry & Jeanette Weinberg Foundation, Inc.
and 300 Corporation at a purchase price of $13.25 per share. The
purchase price is to be paid in full at closing. The purchase
price will be paid out of Mr. Case's personal funds.
The closing of the proposed acquisition (the "Closing") is
subject to various conditions, including approval of the proposed
acquisition by the Company's shareholders in accordance with the
Control Share Acquisitions Act and by the Hawaii Public Utilities
Commission in accordance with Section 269-17.5 of the Hawaii
Revised Statutes and, if applicable, compliance with the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 ("HSR").
The Closing is to occur within 10 days after all of the
necessary consents and approvals have been obtained. The parties
have agreed to exercise their best efforts to obtain all
necessary approvals as quickly as possible.
The purchase agreements further provide that if Mr. Case
sells any of the acquired shares within one year after the
Closing or executes a binding contract to sell any of the
acquired shares within one year after the Closing and anytime
thereafter sells such shares pursuant to such contract, he will
pay to the sellers two-thirds of any gain he realizes upon the
sale of such shares. If Mr. Case sells any of the acquired
shares during the second year after the Closing or executes a
binding contract to sell any of the acquired shares during the
second year after the Closing and anytime thereafter sells such
shares pursuant to such contract, Mr. Case will pay to the
sellers one-third of any gain realized upon sale of such shares.
Pursuant to the purchase agreements, Mr. Case has agreed
that neither he nor any entity which he controls shall initiate
or engage in a "Rule 13e-3 transaction" (as such term is defined
in 17 C.F.R. Section 240.13e-3) with respect to the Corporation's
common stock within the two-year period following the Closing;
provided that such agreement shall not restrict the ability of
the Company or any of its affiliates (other than Mr. Case and any
other entity controlled by Mr. Case) to engage in a Rule 13e-3
transaction, which is not initiated by Mr. Case or any other
entity which is controlled by Mr. Case, or the right, duties or
obligations of any of the directors nominated to the Board of
Directors by Mr. Case to exercise their independent judgment with
respect thereto.
The agreement with the Harry Weinberg Family Foundation
provides for the resignation at Closing of the two directors who
are affiliated with the Foundation, Samuel K. Himmelrich, Sr. and
Morton B. Plant.
Under the purchase agreements, the sellers retain all voting
rights and rights to distributions and dividends through the
Closing. No beneficial ownership rights as to the sellers'
shares shall be transferred to Mr. Case until the Closing.
Copies of the purchase agreements are attached hereto as
Exhibit A and B and incorporated herein by reference.
Mr. Case, who was born and raised in Hawaii, is acquiring
the shares for long-term investment purposes. Mr. Case is
supportive of current management and its strategic direction.
Upon the resignation of Mr. Himmelrich and Mr. Plant, Mr. Case
plans to submit, for the Board of Directors' consideration, the
names of two individuals to fill the vacancies created by their
resignation. Other than being represented on the Board, Mr. Case
will not have any role in the Company and he will continue to
dedicate his full time and attention to America Online, Inc.,
where he serves as Chairman and Chief Executive Officer.
Mr. Case has no plans or proposals to change materially the
Corporation's management or policies of employment; change the
location of its principal executive office or of a material
portion of its business activities; liquidate the Corporation;
sell all or substantially all of its assets; merge it or exchange
its shares with any other person; alter materially its
relationship with suppliers or customers or the communities in
which it operates; or make any other material change in its
business, corporate structure, management or personnel, other
than the resignation of Mr. Himmelrich and Mr. Plant and the
nomination of Mr. Case's representatives to fill their vacant
seats on the Board.
Right of First Refusal Agreement
In connection with the proposed acquisition, Mr. Case has
entered into a separate right of first refusal agreement with
Richard H. Cameron, Claire C. Sanford, Jared B. H. Sanford,
Douglas B. Cameron, and the Allan G. Sanford Trust (the "Cameron
Family Stockholders"). Under this agreement, the Cameron Family
Stockholders and Mr. Case have agreed to grant a right of first
refusal as to an equal number of each other's shares of the
Corporation's common stock. The agreement applies to all of the
shares now owned and hereafter acquired by the Cameron Family
Stockholders, which currently totals 1,011,635 shares, and an
equal number of shares that Mr. Case hereafter acquires.
The agreement provides that before selling any shares to a
third party in a privately negotiated transaction or through the
open market, the person desiring to sell the shares shall first
offer to sell the shares to the other party at the price and upon
the terms offered by the third party or, in the case of an open
market sale, at a price equal to the volume-weighted average
sales price of the Corporation's common stock over the preceding
180 days.
The agreement is subject to termination if the proposed
control share acquisition is not approved by the Corporation's
shareholders and/or does not close within 180 days from the date
of the agreement.
The agreement does not grant either party any voting or
investment power over the other party's shares. Each party
retains all voting rights and rights to distributions and
dividends as to all of the shares that they own respectively,
unless and until the shares are tendered and sold to the other
party pursuant to the agreement. Each party retains full
beneficial ownership of his or her shares and no beneficial
ownership rights are being transferred or granted to the other
party.
A copy of the right of first refusal agreement is attached
as Exhibit C and incorporated herein by reference.
Request for Approval
Based on the foregoing, Stephen M. Case requests that his
proposed acquisition of 41.2% of the Corporation's common stock
be approved by the stockholders in accordance with the Hawaii
Control Share Acquisitions Act.
Dated: July 1, 1999
/s/ Stephen M. Case
STEPHEN M. CASE
EXHIBIT A TO INFORMATION STATEMENT OF STEPHEN M. CASE
STOCK PURCHASE AGREEMENT
This Agreement is executed and effective this 25th day of June,
1999, by and between Stephen M. Case (the "Buyer"), and Harry
Weinberg Family Foundation, Inc., a Maryland corporation (the
"Seller").
RECITALS:
A. The Seller owns 2,669,780 shares (the "Shares") of
common stock of Maui Land & Pineapple Company, Inc., a Hawaii
corporation (the "Company"), which represents approximately 37.1%
of the outstanding shares of the Company's common stock; and
B. The Seller desires to sell, and the Buyer desires
to purchase, all of the Shares upon and subject to the terms set
forth below.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, the Seller and the Buyer agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase of the Shares from the Seller. On the
terms and subject to the conditions set forth herein, the Seller
shall sell to the Buyer, and the Buyer shall purchase from the
Seller all of the Shares.
1.2 Purchase Price. In consideration for the Shares,
the Buyer shall pay the Seller the sum of Thirty Five Million
Three Hundred Seventy Four Thousand Five Hundred Eighty-Five and
No/100 Dollars ($35,374,585.00) (the "Purchase Price"), which
represents a price of $13.25 per share, in cash or immediately
available funds at Closing (as defined herein).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer
as follows:
2.1 Capital Stock. Based solely on the Company proxy
statement dated April 2, 1999, the number of issued and
outstanding shares of common stock of the Company as of March 8,
1999, is 7,188,500, and the Shares represent approximately 37.1%
of the Company's issued and outstanding shares of common stock.
To the Seller's knowledge, the information set forth in the
Company's proxy statement dated April 2, 1999 regarding the
number of outstanding shares on a fully diluted basis is correct.
The Shares have been duly authorized and validly issued and are
fully paid and nonassessable.
2.2 Ownership of Shares. The Seller owns the Shares
free and clear of any and all covenants, conditions,
restrictions, voting trust arrangements, pledges, liens, security
interests, charges, encumbrances, options and adverse claims or
rights whatsoever. The Shares constitute all of the shares of
common stock of the Company owned by the Seller.
2.3 Organization. The Seller is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Maryland.
2.4 Authority. The Seller has full corporate power
and authority to execute, deliver and perform its obligations
under this Agreement and consummate the transactions contemplated
by this Agreement. The execution, delivery and performance of
this Agreement by the Seller and the consummation by the Seller
of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part
of the Seller.
2.5 Enforceability. This Agreement has been duly
executed and delivered by the Seller and constitutes a legal,
valid and binding obligation of the Seller, enforceable against
it in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors generally or the
application of general principles of equity, regardless of
whether in a proceeding at law or in equity.
2.6 No Conflict or Breach. The execution, delivery
and performance of this Agreement and the consummation by the
Seller of the transactions contemplated hereby will not conflict
with, result in a breach of, or constitute a default under or
violation of any of the terms, conditions or provisions of: (i)
any note, mortgage, agreement or other instrument or obligation
to which the Seller is a party or by which the Seller or the
Shares may be bound or subject, (ii) any judgment, order, writ,
injunction or decree of any court or governmental authority
applicable to the Seller or the Shares, (iii) the Articles of
Incorporation, Bylaws or other governing documents of the Seller;
or (iv) any law, statute, order, rule or regulation of any
governmental authority applicable to the Seller or the Shares.
2.7 Consents. No consent or approval of, or
declaration, filing or registration with, any non-governmental
third party or any governmental authority is required to permit
the execution, delivery and performance of this Agreement by the
Seller or the consummation of the transactions contemplated
hereby, other than the consents and approvals set forth in
Section 4.2.
2.8 No Broker or Finder. The Seller has not had any
discussions with, negotiated with, been represented by or
employed any broker or finder or incurred any liability for any
brokerage fees, commission or finder's fees to any individual or
entity in connection with this Agreement or any of the
transactions contemplated hereby, other than its investment
adviser, William G. Byrnes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller
the following:
3.1 Enforceability. This Agreement has been duly
executed and delivered by Buyer and constitutes a legal, valid
and binding obligation of the Buyer, enforceable against him in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting
the rights of creditors generally or the application of general
principles of equity, regardless of whether in a proceeding at
law or in equity.
3.2 No Conflict or Breach. The execution, delivery
and performance of this Agreement and the consummation by the
Buyer of the transactions contemplated hereby will not conflict
with, result in a breach of, or constitute a default under or
violation of any of the terms, conditions or provisions of: (i)
any note, mortgage, agreement, or other instrument or obligation
to which the Buyer is a party or by which the Buyer may be bound,
(ii) any judgment, order, writ, injunction or decree of any court
or governmental authority applicable to the Buyer, or (iii) any
law, statute, order, rule or regulation of any governmental
authority applicable to the Buyer.
3.3 No Broker or Finder. The Buyer has not had any
discussions with, negotiated with, been represented by or
employed any broker or finder or incurred any liability for any
brokerage fees, commission or finder's fees to any individual or
entity in connection with this Agreement or any of the
transactions contemplated hereby, other than Hambrecht & Quist
LLC.
ARTICLE IV
PRE-CLOSING COVENANTS
4.1 Resignations. At the Closing, the Seller shall
cause Samuel K. Himmelrich, Sr. and Morton B. Plant, to tender
their resignations as directors of the Company.
4.2 Consents and Approvals.
(a) The Seller and the Buyer shall cooperate and
exercise their best efforts to obtain, as quickly as reasonably
possible, all necessary consents and approvals necessary to
consummate the transactions contemplated hereby, including the
approval of the Buyer's acquisition of the Shares pursuant to the
Hawaii Control Share Acquisition statutes, Hawaii Revised
Statutes Sections 415-171 and 415-172 (the "CSA"), and Section
269-17.5, Hawaii Revised Statutes (the "PUC Law"), and such other
consents as may be necessary to effectuate the transactions
contemplated hereby.
(b) The Buyer shall file, as quickly as reasonably
possible and in no event later than 7 days after the date hereof,
the information statement required under the CSA with respect to
the proposed acquisition, and shall not request an extension of
the period within which the meeting of the shareholders must be
held under the CSA.
(c) If required by law, the Buyer and Seller shall
file, as quickly as reasonably possible and in no event later
than 7 days after the date hereof, the notification reports
required under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR") and exercise best efforts to obtain
early termination of the waiting period. The Buyer shall be
solely responsible for payment of the HSR notification report
filing fee.
(d) The Buyer shall file, or cause the Company to
file, as quickly as reasonably possible and in no event later
than 7 days after the date hereof, an application with the Hawaii
Public Utilities Commission, for approval of the proposed
acquisition pursuant to the PUC Law.
4.3. Seller's Rights Retained. Nothing herein shall
be construed or is intended to give the Buyer any voting or
investment power over or beneficial ownership of the Shares prior
to Closing. The Seller shall retain all rights to receive any
dividends declared by the Company prior to the Closing and all
voting power represented by the Shares.
ARTICLE V
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
The obligations of the Buyer to complete the Closing
under this Agreement are subject to the fulfillment of the
following conditions:
5.1 Accuracy of Representations and Warranties. The
representations and warranties of the Seller shall be true,
correct and complete as of the date of this Agreement and as of
the date of the Closing.
5.2 Performance of Obligations The Seller shall have
performed all the obligations required to be performed by the
Seller at or prior to the Closing.
5.3 No Action or Proceeding. No action or proceeding
shall have been brought or threatened to prevent, or to seek
damages by reason of, the execution, delivery and performance of
this Agreement or the consummation of any of the transactions
contemplated hereby. No governmental authority shall have
claimed that any transaction contemplated hereby constitutes a
violation of any law, rule or regulation, or gives rise to
liability on the part of the Buyer, or seeks an order or ruling
which would, in the reasonable exercise of the Buyer's judgment,
adversely affect the Buyer's rights as the owner of the Shares or
the value of the Shares.
5.4 Certain Approvals. The acquisition of the Shares
by the Buyer shall have been approved in accordance with the
requirements of the CSA and the PUC Law, and all other consents
and approvals necessary to consummate the transactions
contemplated hereby shall have been received by the Buyer. If
applicable, the waiting period imposed under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 and the regulations
promulgated thereunder shall have expired or been terminated.
5.5 Absence of Change. Between the date hereof and
the Closing:
(a) There shall be no material change made to the
Company's Articles of Incorporation or Bylaws, which would, in
the reasonable exercise of the Buyer's judgment, adversely affect
the Buyer's rights as the owner of the Shares or the value of the
Shares, except as agreed by the Buyer;
(b) There shall be no material change in the number of
issued and outstanding shares of the Company on a fully diluted
basis and no material change in the capital structure of the
Company; and
(c) There shall be no material adverse change in the
financial condition, results of operations, assets, liabilities,
prospects or business of the Company, and no event or condition
shall occur which materially affects the financial condition,
results of operations, prospects, assets, liabilities or business
of the Company in an adverse manner.
ARTICLE VI
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to complete Closing under
this Agreement is subject to fulfillment to the following
conditions:
6.1 Accuracy of Representations and Warranties. The
representations and warranties of the Buyer shall be true,
correct and complete as of the date of this Agreement and as of
the date of the Closing.
6.2 Performance of Obligations. The Buyer shall have
performed all the obligations required to be performed by the
Buyer at or prior to the Closing.
6.3 No Action or Proceeding. No action or proceeding
shall have been brought or threatened to prevent, or to seek
damages by reason of, the execution and delivery of this
Agreement or the consummation of any of the transactions
contemplated hereby; no governmental authority shall have claimed
that any transaction contemplated hereby constitutes a violation
of any law, rule or regulation, or gives rise to liability on the
part of the Seller.
6.4 Certain Approvals. The acquisition of the Shares
by the Buyer shall have been approved in accordance with the
requirements of the CSA and PUC Law. If applicable, the waiting
period imposed under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 and the regulations promulgated thereunder shall have
expired or been terminated.
ARTICLE VII
CLOSING
7.1 Place and Time.
(a) The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place within ten (10)
days after the date when all of the consents and approvals
necessary to consummate the subject transactions have been
obtained, or such later date as may be mutually agreed upon by
the parties (the "Closing Date"); provided that the Closing shall
occur no later than October 31, 1999. If the Closing does not
occur by October 31, 1999, either party shall have the right to
terminate this Agreement by delivery of written notice of
termination to the other party, if the party delivering such
notice is not in breach of its obligations under this Agreement
as of the date of delivery of such notice.
(b) The Closing shall occur at the offices of
Hambrecht and Quist, LLC ("H&Q"), One Bush Street, San Francisco,
California 94104, or such other place as is mutually agreed upon
by the parties.
7.2 Delivery by the Seller. At the Closing, the
Seller shall deliver the following documents to the Buyer:
(i) A certificate representing all of the Shares, free
and clear of liens or encumbrances, duly endorsed in blank for
transfer;
(ii) Written resignations of Samuel R. Himmelrich, Sr.
and Morton B. Plant as directors of the Company;
(iii) Certificate of good standing for the Seller
issued on a recent date by the Secretary of the State of
Maryland;
(iv) Any other documents or instruments reasonably
required to be delivered by the Seller to consummate the
transactions contemplated hereby.
7.3 Delivery by the Buyer. At the Closing, the Buyer
shall deliver to the Seller:
(i) The Purchase Price as set forth in Section 1.2
herein; and
(ii) Any other documents or instruments reasonably
required from the Buyer to consummate the transactions
contemplated hereby.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1 Price Protection.
(a) In the event that the Buyer sells any of the
Shares within the first twelve (12) months after the Closing Date
(the "First Year Period") or executes a binding contract to sell
(including an option to sell) any of the Shares within the First
Year Period and anytime thereafter sells such Shares pursuant to
such contract, then the Buyer agrees to pay to the Seller, as
additional consideration for the Shares, an amount equal to the
two-thirds of the gain realized by the Buyer upon the sale of
such Shares, if any.
(b) In the event that the Buyer sells any of the
Shares during the second twelve months following the Closing Date
(the "Second Year Period") or executes a binding contract to sell
(including an option to sell) any Shares during the Second Year
Period and anytime thereafter sells such Shares pursuant to such
contract, then the Buyer agrees to pay to the Seller, as
additional consideration for the Shares, an amount equal to the
one-third of the gain realized by the Buyer upon the sale of such
Shares, if any.
(c) For purposes of this section, "the gain realized
by the Buyer" upon the sale of any Shares shall be the amount by
which the gross proceeds received by the Buyer for such Shares
exceeds the Buyer's tax basis for such Shares and all reasonable
fees and expenses incurred by the Buyer in connection with the
sale of such Shares, including reasonable legal or investment
advisory fees and expenses or broker's commissions. Any amounts
owed to the Seller under this Section 8.1 shall be paid in full
within thirty (30) days after the closing of the sale of the
Shares and the receipt of payment for the Shares.
(d) The Buyer agrees that neither he nor any entity
which he controls shall initiate or engage in a "Rule 13e-3
transaction" (as such term is defined in 17 C.F.R. Section
240.13e-3) with respect to the Company's common stock within the
two-year period following the Closing. Nothing herein shall
restrict the ability of the Company or any of its affiliates
(other than the Buyer and any other entity controlled by the
Buyer) to engage in a Rule 13e-3 transaction, which is not
initiated by the Buyer or any other entity which is controlled by
the Buyer, or the right, duties or obligations of any directors
nominated to the Company's board of directors by the Buyer to
exercise their independent judgment with respect thereto.
8.2 Indemnification. Each party agrees to indemnify
and hold harmless the other party from and against, and reimburse
and pay to the other party the full amount of, any and all loss,
damage, liability, cost, obligation or expense (including
reasonable expenses and fees of counsel) incurred by the other
party, resulting from or relating to: (a) a breach of any
representation or warranty by the indemnifying party contained in
this Agreement or in any certificate delivered in connection with
this Agreement, (b) a failure by the indemnifying party to
perform or comply with any covenant, agreement or obligation
required by this Agreement to be performed or complied with by
such party, or (c) the charge, complaint or allegation by any
third party (including any governmental authority) of the
existence of any liability, obligation, agreement, claim, lien,
security interest, commitment, violation, or other condition or
state of facts which if it existed would constitute a breach of
any representation or warranty of the indemnifying party
contained in this Agreement or in any certificate delivered by
such party in connection with this Agreement.
ARTICLE XI
MISCELLANEOUS
9.1 Termination. This Agreement may be terminated (i)
by the mutual consent of the Buyer and the Seller; (ii) by the
Buyer in the event of any of the conditions set forth in Article
V hereof are not fulfilled or waived by Buyer on or before
October 31, 1999; or (iii) by the Seller in the event any of the
conditions set forth in Article VI hereof are not fulfilled or
waived by the Seller on or before October 31, 1999. Upon
termination in accordance with the above, this Agreement shall be
null and void and neither party shall have any liability with
respect thereto.
9.2 Survival. The representations and warranties
contained in this Agreement shall survive the Closing.
9.3 Expenses. Except as otherwise specifically
provided herein, each of the parties hereto shall pay all of its
respective expenses relating hereto, including fees and
disbursements of its respective counsel, accountants, investment
bankers and financial advisors, whether or not the transactions
hereunder are consummated.
9.4 Confidentiality. Except as otherwise required by
applicable law or agreed by the parties, no party hereto shall,
and each party hereto shall use all reasonable endeavors to
ensure that no person under its direct or indirect control shall,
disclose to any other person (other than the Company, its
counsel, senior management, and board of directors, the members
of the J. Walter Cameron family, the Seller's directors and
voting members, and each party's respective counsel, accountants,
and advisors) information relating to this Agreement or its
subject matter and shall treat as confidential all information
and documents relating thereto, until such information is
disclosed in the Seller's filings with the Securities and
Exchange Commission and/or disclosed in the Buyer's information
statement and delivered to the Company and the American Stock
Exchange pursuant to the CSA. Any press releases or other public
disclosures which are made in connection with the transactions
contemplated by this Agreement shall, to the extent reasonably
practicable, be mutually agreed upon by the Buyer and the Seller.
9.5 Assignment. This Agreement and the rights,
obligations and duties of the parties hereto shall not be
assignable or otherwise transferable without the prior written
consent of the other party. The Buyer may designate an entity
owned and controlled by the Buyer as his nominee to take title to
the Shares without the consent of the Seller, but the Buyer shall
remain liable for performance of his obligations under this
Agreement.
9.6 Fees of Legal Counsel. In the event any party to
this Agreement shall employ legal counsel to protect its rights
hereunder or to enforce any term or provision hereof, the party
prevailing in any such action shall have the right to recover
from the other party all of its reasonable attorneys' fees and
expenses incurred in relation to such claims.
9.7 Further Assurances. The parties agree that from
time to time hereafter, upon request, each of them will execute,
acknowledge and deliver such other instruments and documents and
take such further action as may be reasonably necessary to carry
out the intent of this Agreement.
9.8 Modification. No provision contained herein may
be modified, amended or waived except by written agreement or
consent signed by the party to be bound thereby.
9.9 Binding Effect and Benefit. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties
hereto, their heirs, executors, administrators, personal
representatives, successors and permitted assigns.
9.10 Headings and Captions. Subject headings and
captions are included for convenience purposes only and shall not
affect the interpretation of this Agreement.
9.11 Notice. All notices, requests, demands and other
communications permitted or required hereunder shall be in
writing, and either (i) delivered in person, (ii) sent by express
mail or other overnight delivery service providing receipt of
delivery, (iii) mailed by certified or registered mail, postage
prepaid, return receipt requested, or (iv) sent by facsimile
transmission as follows:
If to the Seller:
Harry Weinberg Family Foundation, Inc.
c/o The Associated: Jewish Community Federation
Attention: Morton B. Plant
101 West Mount Royal Avenue
Baltimore, MD 21201-5781
Facsimile: 410-752-1177
With copies to:
Shale D. Stiller, Esq.
Piper & Marbury
Charles Center South
36 South Charles Street
Baltimore, MD 21201-3018
Facsimile: 410-576-1688
William G. Byrnes
Georgetown University
School of Business
Washington, DC 20057
Facsimile: 202-944-3761
If to the Buyer:
Stephen M. Case
c/o The Steve Case Foundation
1650 Tysons Boulevard, Suite 610
McLean, VA 22102
Facsimile: 703-748-6052
With a copy to:
Daniel H. Case
Case Bigelow & Lombardi
737 Bishop Street, Suite 2600
Honolulu, Hawaii 96813
Facsimile: 808-523-1888
Any such notice or communication, if given or made by
prepaid, registered or certified mail or by recorded express
delivery, shall be deemed to have been made when actually
received, but not later than three (3) business days after the
same was posted or given to such express delivery service and if
made properly by facsimile transmission such notice or
communication shall be deemed to have been made at the time of
dispatch.
9.12 Severability. If any portion of this Agreement is
held invalid, illegal or unenforceable, such determination shall
not impair the enforceability of the remaining terms and
provisions herein.
9.13 Time for Performance. Time is of the essence in
this Agreement.
9.14 Waiver. No waiver of a breach or violation of any
provision of this Agreement shall operate or be construed as a
waiver of any subsequent breach or limit or restrict any right or
remedy otherwise available.
9.15 Rights and Remedies Cumulative. The rights and
remedies expressed herein are cumulative and not exclusive of any
rights and remedies otherwise available.
9.16 Gender and Pronouns. Throughout this Agreement,
the masculine shall include the feminine and neuter and the
singular shall include the plural and vice versa as the context
requires.
9.17 Entire Agreement. This document constitutes the
entire agreement of the parties and supersedes any and all other
prior agreements, oral or written, with respect to the subject
matter contained herein.
9.18 Governing Law. This Agreement shall be subject to
and governed by the laws of the State of Hawaii.
9.19 Counterparts. This Agreement may be executed in
two or more counterparts each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
9.20 Facsimile Signatures. This Agreement shall be
binding and effective upon facsimile transmission of signed
counterparts of this Agreement by each party to the other. Each
party shall thereafter promptly deliver physically signed
original counterparts to the other party, but the Agreement
containing counterparts with facsimile signatures shall remain
binding and effective even if the physically signed original
counterparts are not so delivered.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement effective as of the day and year aforesaid.
SELLER:
HARRY WEINBERG FAMILY FOUNDATION, INC.
a Maryland corporation
By: /s/ Nathan Weinberg
Its Vice President
BUYER:
/s/ Stephen M. Case
STEPHEN M. CASE
EXHIBIT B TO INFORMATION STATEMENT OF STEPHEN M. CASE
STOCK PURCHASE AGREEMENT
This Agreement is executed and effective this 25th day
of June, 1999, by and between Stephen M. Case (the "Buyer"), and
The Harry and Jeanette Weinberg Foundation, Inc., a Maryland
corporation (the "Foundation") and 300 Corporation, a Maryland
corporation ("300 Corp.") (collectively, the "Sellers").
RECITALS:
A. The Sellers own 292,256 shares (the "Shares") of
common stock of Maui Land & Pineapple Company, Inc., a Hawaii
corporation (the "Company"), which represents approximately 4.07%
of the outstanding shares of the Company's common stock; and
B. The Sellers desire to sell, and the Buyer desires
to purchase, all of the Shares upon and subject to the terms set
forth below.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, the Sellers and the Buyer agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase of the Shares from the Sellers. On the
terms and subject to the conditions set forth herein, the Sellers
shall sell to the Buyer, and the Buyer shall purchase from the
Sellers, all of the Shares.
1.2 Purchase Price. In consideration for the Shares,
the Buyer shall pay the Sellers the sum of Three Million Eight
Hundred Seventy Two Thousand Three Hundred Ninety Two and No/100
Dollars ($3,872,392.00)(the "Purchase Price"), which represents a
price of $13.25 per share, in cash or immediately available funds
at Closing (as defined herein).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers hereby represent and warrant to the Buyer
as follows:
2.1 Authorized Capital Stock. Based solely on the
Company proxy statement dated April 2, 1999, the number of issued
and outstanding shares of common stock of the Company as of March
8, 1999, is 7,188,500, and the Shares represent approximately
4.07% of the Company's issued and outstanding shares of common
stock. To the Sellers' knowledge, the information set forth in
the Company's proxy statement dated April 2, 1999 regarding the
number of outstanding shares on a fully diluted basis is correct.
The Shares have been duly authorized and validly issued and are
fully paid and nonassessable.
2.2 Ownership of Shares. The Sellers own the Shares
free and clear of any and all covenants, conditions,
restrictions, voting trust arrangements, pledges, liens, security
interests, charges, encumbrances, options and adverse claims or
rights whatsoever. The Shares constitute all of the shares of
common stock of the Company owned by the Sellers.
2.3 Organization. Each of the Sellers is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland.
2.4 Authority. Each of the Sellers has full corporate
power and authority to execute, deliver and perform its
obligations under this Agreement and consummate the transactions
contemplated by this Agreement. The execution, delivery and
performance of this Agreement by the Sellers and the consummation
by the Sellers of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on
the part of the Sellers.
2.5 Enforceability. This Agreement has been duly
executed and delivered by the Sellers and constitutes a legal,
valid and binding obligation of the Sellers, enforceable against
them in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors generally or the
application of general principles of equity, regardless of
whether in a proceeding at law or in equity.
2.6 No Conflict or Breach. The execution, delivery
and performance of this Agreement and the consummation by the
Sellers of the transactions contemplated hereby will not conflict
with, result in a breach of, or constitute a default under or
violation of any of the terms, conditions or provisions of: (i)
any note, mortgage, agreement or other instrument or obligation
to which the Foundation or 300 Corp. is a party or by which the
Foundation or 300 Corp. or the Shares may be bound or subject,
(ii) any judgment, order, writ, injunction or decree of any court
or governmental authority applicable to the Foundation or 300
Corp. or the Shares, (iii) the Articles of Incorporation, Bylaws
or other governing documents of the Foundation or 300 Corp.; or
(iv) any law, statute, order, rule or regulation of any
governmental authority applicable to the Foundation or 300 Corp.
or the Shares.
2.7 Consents. No consent or approval of, or
declaration, filing or registration with, any non-governmental
third party or any governmental authority is required to permit
the execution, delivery and performance of this Agreement by the
Sellers or the consummation of the transactions contemplated
hereby, other than the consents and approvals set forth in
Section 4.2.
2.8 No Broker or Finder. The Sellers have not had any
discussions with, negotiated with, been represented by or
employed any broker or finder or incurred any liability for any
brokerage fees, commission or finder's fees to any individual or
entity in connection with this Agreement or any of the
transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Sellers
the following:
3.1 Enforceability. This Agreement has been duly
executed and delivered by Buyer and constitutes a legal, valid
and binding obligation of the Buyer, enforceable against him in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting
the rights of creditors generally or the application of general
principles of equity, regardless of whether in a proceeding at
law or in equity.
3.2 No Conflict or Breach. The execution, delivery
and performance of this Agreement and the consummation by the
Buyer of the transactions contemplated hereby will not conflict
with, result in a breach of, or constitute a default under or
violation of any of the terms, conditions or provisions of: (i)
any note, mortgage, agreement, or other instrument or obligation
to which the Buyer is a party or by which the Buyer may be bound,
(ii) any judgment, order, writ, injunction or decree of any court
or governmental authority applicable to the Buyer, or (iii) any
law, statute, order, rule or regulation of any governmental
authority applicable to the Buyer.
3.3 No Broker or Finder. The Buyer has not had any
discussions with, negotiated with, been represented by or
employed any broker or finder or incurred any liability for any
brokerage fees, commission or finder's fees to any individual or
entity in connection with this Agreement or any of the
transactions contemplated hereby, other than Hambrecht & Quist
LLC.
ARTICLE IV
PRE-CLOSING COVENANTS
4.1 Consents and Approvals.
(a) The Sellers and the Buyer shall cooperate and
exercise their best efforts to obtain, as quickly as reasonably
possible, all necessary consents and approvals necessary to
consummate the transactions contemplated hereby, including the
approval of the Buyer's acquisition of the Shares pursuant to the
Hawaii Control Share Acquisition statutes, Hawaii Revised
Statutes Sections 415-171 and 415-172 (the "CSA"), and Section
269-17.5, Hawaii Revised Statutes (the "PUC Law"), and such other
consents as may be necessary to effectuate the transactions
contemplated hereby.
(b) The Buyer shall file, as quickly as reasonably
possible and in no event later than 7 days after the date hereof,
the information statement required under the CSA with respect to
the proposed acquisition, and shall not request an extension of
the period within which the meeting of the shareholders must be
held under the CSA.
(c) If required by law, the Buyer and Seller shall
file, as quickly as reasonably possible and in no event later
than 7 days after the date hereof, the notification reports
required under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR") and exercise best efforts to obtain
early termination of the waiting period. The Buyer shall be
solely responsible for payment of the HSR notification report
filing fee, if applicable.
(d) The Buyer shall file, or cause the Company to
file, as quickly as reasonably possible and in no event later
than 7 days after the date hereof, an application with the Hawaii
Public Utilities Commission, for approval of the proposed
acquisition pursuant to the PUC Law.
4.2 Sellers' Rights Retained. Nothing herein shall
be construed or is intended to give the Buyer any voting or
investment power over or beneficial ownership of the Shares prior
to Closing. The Sellers shall retain all rights to receive any
dividends declared by the Company prior to the Closing and all
voting power represented by the Shares.
ARTICLE V
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
The obligations of the Buyer to complete the Closing
under this Agreement are subject to the fulfillment of the
following conditions:
5.1 Accuracy of Representations and Warranties. The
representations and warranties of the Sellers shall be true,
correct and complete as of the date of this Agreement and as of
the date of the Closing.
5.2 Performance of Obligations The Sellers shall have
performed all the obligations required to be performed by the
Sellers at or prior to the Closing.
5.3 No Action or Proceeding. No action or proceeding
shall have been brought or threatened to prevent, or to seek
damages by reason of, the execution, delivery and performance of
this Agreement or the consummation of any of the transactions
contemplated hereby. No governmental authority shall have
claimed that any transaction contemplated hereby constitutes a
violation of any law, rule or regulation, or gives rise to
liability on the part of the Buyer.
5.4 Certain Approvals. The acquisition of the Shares
by the Buyer shall have been approved in accordance with the
requirements of the CSA and the PUC Law, and all other consents
and approvals necessary to consummate the transactions
contemplated hereby shall have been received by the Buyer. If
applicable, the waiting period imposed under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 and the regulations
promulgated thereunder shall have expired or been terminated.
5.5 Absence of Change. Between the date hereof and
the Closing:
(a) There shall be no material change made to the
Company's Articles of Incorporation or Bylaws, which would, in
the reasonable exercise of the Buyer's judgment, adversely affect
the Buyer's rights as the owner of the Shares or the value of the
Shares, except as agreed by the Buyer;
(b) There shall be no material change in the number of
issued and outstanding shares of the Company on a fully diluted
basis and no material change in the capital structure of the
Company; and
(c) There shall be no material adverse change in the
financial condition, results of operations, assets, liabilities,
prospects or business of the Company, and no event or condition
shall occur which materially affects the financial condition,
results of operations, prospects, assets, liabilities or business
of the Company in an adverse manner.
5.6 Harry Weinberg Family Foundation Shares. The
Buyer shall have purchased all of the shares of the Company's
common stock held by the Harry Weinberg Family Foundation, Inc.,
a Maryland corporation.
ARTICLE VI
CONDITIONS TO SELLERS' OBLIGATION TO CLOSE
The obligation of the Sellers to complete the Closing
under this Agreement is subject to fulfillment to the following
conditions:
6.1 Accuracy of Representations and Warranties. The
representations and warranties of the Buyer shall be true,
correct and complete as of the date of this Agreement and as of
the date of the Closing.
6.2 Performance of Obligations. The Buyer shall have
performed all the obligations required to be performed by the
Buyer at or prior to the Closing.
6.3 No Action or Proceeding. No action or proceeding
shall have been brought or threatened to prevent, or to seek
damages by reason of, the execution and delivery of this
Agreement or the consummation of any of the transactions
contemplated hereby; no governmental authority shall have claimed
that any transaction contemplated hereby constitutes a violation
of any law, rule or regulation, or gives rise to liability on the
part of the Sellers.
6.4 Certain Approvals. The acquisition of the Shares
by the Buyer shall have been approved in accordance with the
requirements of the CSA and PUC Law. If applicable, the waiting
period imposed under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 and the regulations promulgated thereunder shall have
expired or been terminated.
ARTICLE VII
CLOSING
7.1 Place and Time.
(a) The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place within ten (10)
days after the date when all of the consents and approvals
necessary to consummate the subject transactions have been
obtained, or such later date as may be mutually agreed upon by
the parties (the "Closing Date"); provided that the Closing shall
occur no later than October 31, 1999. If the Closing does not
occur by October 31, 1999, either party shall have the right to
terminate this Agreement by delivery of written notice of
termination to the other party, if the party delivering such
notice is not in breach of its obligations under this Agreement
as of the date of delivery of such notice.
(b) The Closing shall occur at the offices of
Hambrecht and Quist, LLC ("H&Q"), One Bush Street, San Francisco,
California 94104, or such other place as is mutually agreed upon
by the parties.
7.2 Delivery by the Sellers. At the Closing, the
Sellers shall deliver the following documents to the Buyer:
(i) A certificate representing all of the Shares, free
and clear of liens or encumbrances, duly endorsed in blank for
transfer;
(ii) Certificates of good standing for the Sellers
issued on a recent date by the Secretary of the State of
Maryland;
(iv) Any other documents or instruments reasonably
required to be delivered by the Sellers to consummate the
transactions contemplated hereby.
7.3 Delivery by the Buyer. At the Closing, the Buyer
shall deliver to the Sellers:
(i) The Purchase Price as set forth in Section 1.2
herein; and
(ii) Any other documents or instruments reasonably
required from the Buyer to consummate the transactions
contemplated hereby.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1 Price Protection.
(a) In the event that the Buyer sells any of the
Shares within the first twelve (12) months after the Closing Date
(the "First Year Period") or executes a binding contract to sell
any of the Shares within the First Year Period and anytime
thereafter sells such Shares pursuant to such contract, then the
Buyer agrees to pay to the Sellers, as additional consideration
for the Shares, an amount equal to the two-thirds of the gain
realized by the Buyer upon the sale of such Shares, if any.
(b) In the event that the Buyer sells any of the
Shares during the second twelve months following the Closing Date
(the "Second Year Period") or executes a binding contract to sell
any Shares during the Second Year Period and anytime thereafter
sells such Shares pursuant to such contract, then the Buyer
agrees to pay to the Sellers, as additional consideration for the
Shares, an amount equal to the one-third of the gain realized by
the Buyer upon the sale of such Shares, if any.
(c) For purposes of this section, the "gain realized
by the Buyer" upon the sale of any Shares shall be the amount by
which the gross proceeds received by the Buyer for such Shares
exceeds the Buyer's tax basis for such Shares and all reasonable
fees and expenses incurred in connection with the sale of such
Shares by the Buyer, including reasonable legal or investment
advisory fees and expenses or broker's commissions. Any amounts
owed to the Sellers under this Section 8.1 shall be paid in full
within thirty (30) days after the closing of the sale of the
Shares and the receipt of payment for the Shares.
(d) The Buyer agrees that neither he nor any entity
which he controls shall initiate or engage in a "Rule 13e-3
transaction" (as such term is defined in 17 C.F.R. Section
240.13e-3) with respect to the Company's common stock within the
two-year period following the Closing. Nothing herein shall
restrict the ability of the Company or any of its affiliates
(other than the Buyer and any other entity controlled by the
Buyer) to engage in a Rule 13e-3 transaction, which is not
initiated by the Buyer or any other entity which is controlled by
the Buyer, or the right, duties or obligations of any directors
nominated to the Company's board of directors by the Buyer to
exercise their independent judgment with respect thereto.
8.2 Indemnification. Each party agrees to indemnify
and hold harmless the other party from and against, and reimburse
and pay to the other party the full amount of, any and all loss,
damage, liability, cost, obligation or expense (including
reasonable expenses and fees of counsel) incurred by the other
party, resulting from or relating to: (a) a breach of any
representation or warranty by the indemnifying party contained in
this Agreement or in any certificate delivered in connection with
this Agreement, (b) a failure by the indemnifying party to
perform or comply with any covenant, agreement or obligation
required by this Agreement to be performed or complied with by
such party, or (c) the charge, complaint or allegation by any
third party (including any governmental authority) of the
existence of any liability, obligation, agreement, claim, lien,
security interest, commitment, violation, or other condition or
state of facts which if it existed would constitute a breach of
any representation or warranty of the indemnifying party
contained in this Agreement or in any certificate delivered by
such party in connection with this Agreement.
ARTICLE XI
MISCELLANEOUS
9.1 Termination. This Agreement may be terminated (i)
by the mutual consent of the Buyer and the Sellers; (ii) by the
Buyer in the event of any of the conditions set forth in Article
V hereof are not fulfilled or waived by Buyer on or before
October 31, 1999; or (iii) by the Sellers in the event any of the
conditions set forth in Article VI hereof are not fulfilled or
waived by the Sellers on or before October 31, 1999. Upon
termination in accordance with the above, this Agreement shall be
null and void and neither party shall have any liability with
respect thereto.
9.2 Survival. The representations and warranties
contained in this Agreement shall survive the Closing.
9.3 Expenses. Except as otherwise specifically
provided herein, each of the parties hereto shall pay all of its
respective expenses relating hereto, including fees and
disbursements of its respective counsel, accountants, investment
bankers and financial advisors, whether or not the transactions
hereunder are consummated.
9.4 Confidentiality. Except as otherwise required by
applicable law or agreed by the parties, no party hereto shall,
and each party hereto shall use all reasonable endeavors to
ensure that no person under its direct or indirect control shall,
disclose to any other person (other than the Company, its
counsel, senior management, and board of directors, the members
of the J. Walter Cameron family, the Sellers' directors and
voting members, and each party's respective counsel, accountants,
and advisors) information relating to this Agreement or its
subject matter and shall treat as confidential all information
and documents relating thereto, until such information is
disclosed in the Buyer's information statement and delivered to
the Company and the American Stock Exchange pursuant to the CSA
or in any filings made by the Sellers with the Securities and
Exchange Commission. Any press releases or other public
disclosures which are made in connection with the transactions
contemplated by this Agreement shall, to the extent reasonably
practicable, be mutually agreed upon by the Buyer and the
Sellers.
9.5 Assignment. This Agreement and the rights,
obligations and duties of the parties hereto shall not be
assignable or otherwise transferable without the prior written
consent of the other party. The Buyer may designate an entity
owned and controlled by the Buyer as his nominee to take title to
the Shares without the consent of the Sellers, but the Buyer
shall remain liable for performance of his obligations under this
Agreement.
9.6 Fees of Legal Counsel. In the event any party to
this Agreement shall employ legal counsel to protect its rights
hereunder or to enforce any term or provision hereof, the party
prevailing in any such action shall have the right to recover
from the other party all of its reasonable attorneys' fees and
expenses incurred in relation to such claims.
9.7 Further Assurances. The parties agree that from
time to time hereafter, upon request, each of them will execute,
acknowledge and deliver such other instruments and documents and
take such further action as may be reasonably necessary to carry
out the intent of this Agreement.
9.8 Modification. No provision contained herein may
be modified, amended or waived except by written agreement or
consent signed by the party to be bound thereby.
9.9 Binding Effect and Benefit. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties
hereto, their heirs, executors, administrators, personal
representatives, successors and permitted assigns.
9.10 Headings and Captions. Subject headings and
captions are included for convenience purposes only and shall not
affect the interpretation of this Agreement.
9.11 Notice. All notices, requests, demands and other
communications permitted or required hereunder shall be in
writing, and either (i) delivered in person, (ii) sent by express
mail or other overnight delivery service providing receipt of
delivery, (iii) mailed by certified or registered mail, postage
prepaid, return receipt requested, or (iv) sent by facsimile
transmission as follows:
If to the Sellers:
The Harry and Jeanette Weinberg Foundation, Inc.
Attention: Bernard Siegel, President
7 Park Center Court
Ownings Mills, MD 21117
Facsimile: 410-654-4900
With a copy to:
Shale D. Stiller, Esq.
Piper & Marbury
Charles Center South
36 South Charles Street
Baltimore, MD 21201-3018
Facsimile: 410-576-1688
If to the Buyer:
Stephen M. Case
c/o The Steve Case Foundation
1650 Tysons Boulevard, Suite 610
McLean, VA 22102
Facsimile: 703-748-6052
With a copy to:
Daniel H. Case
Case Bigelow & Lombardi
737 Bishop Street, Suite 2600
Honolulu, Hawaii 96813
Facsimile: 808-523-1888
Any such notice or communication, if given or made by
prepaid, registered or certified mail or by recorded express
delivery, shall be deemed to have been made when actually
received, but not later than three (3) business days after the
same was posted or given to such express delivery service and if
made properly by facsimile transmission such notice or
communication shall be deemed to have been made at the time of
dispatch.
9.12 Severability. If any portion of this Agreement is
held invalid, illegal or unenforceable, such determination shall
not impair the enforceability of the remaining terms and
provisions herein.
9.13 Time for Performance. Time is of the essence in
this Agreement.
9.14 Waiver. No waiver of a breach or violation of any
provision of this Agreement shall operate or be construed as a
waiver of any subsequent breach or limit or restrict any right or
remedy otherwise available.
9.15 Rights and Remedies Cumulative. The rights and
remedies expressed herein are cumulative and not exclusive of any
rights and remedies otherwise available.
9.16 Gender and Pronouns. Throughout this Agreement,
the masculine shall include the feminine and neuter and the
singular shall include the plural and vice versa as the context
requires.
9.17 Entire Agreement. This document constitutes the
entire agreement of the parties and supersedes any and all other
prior agreements, oral or written, with respect to the subject
matter contained herein.
9.18 Governing Law. This Agreement shall be subject to
and governed by the laws of the State of Hawaii.
9.19 Counterparts. This Agreement may be executed in
two or more counterparts each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
9.20 Facsimile Signatures. This Agreement shall be
binding and effective upon facsimile transmission of signed
counterparts of this Agreement by each party to the other. Each
party shall thereafter promptly deliver physically signed
original counterparts to the other party, but the Agreement
containing counterparts with facsimile signatures shall remain
binding and effective even if the physically signed original
counterparts are not so delivered.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement effective as of the day and year aforesaid.
SELLERS:
THE HARRY AND JEANETTE WEINBERG
FOUNDATION, INC.,
a Maryland corporation
By: /s/ Alvin Awaya
Its Vice President
300 CORPORATION,
a Maryland corporation
By: /s/ Alvin Awaya
Its Vice President
BUYER:
/s/ Stephen M. Case
STEPHEN M. CASE
EXHIBIT C TO INFORMATION STATEMENT OF STEPHEN M. CASE
RIGHT OF FIRST REFUSAL AGREEMENT
THIS AGREEMENT is made this 25th day of June, 1999, between
Richard H. Cameron, Claire C. Sanford, Jared B. H. Sanford,
Douglas B. Cameron, and Mary C. Sanford, as Trustee of the Allan
G. Sanford Trust (collectively, the "Cameron Family
Stockholders"), and Stephen M. Case.
R E C I T A L S:
A. The Cameron Family Stockholders own certain shares of
common stock of Maui Land & Pineapple Company, Inc., a Hawaii
corporation (the "Corporation"), as set forth in Exhibit A
attached hereto.
B. Stephen M. Case ("SMC") intends to make an offer to
purchase all or a substantial portion of the shares of common
stock of the Corporation owned by the Harry Weinberg Family
Foundation, Inc. ("HWFF"), which represents approximately 37% of
the common stock of the Corporation.
C. SMC has requested that the Cameron Family Stockholders
enter into this Agreement, providing for a mutual right of first
refusal as to the shares of the Corporation's common stock now
owned or hereafter acquired by the Cameron Family Stockholders
and an equal number of the shares of the Corporation's common
stock hereafter acquired by SMC (the "Shares").
D. The Cameron Family Stockholders and SMC are willing to
grant each other a right of first refusal as to an equal number
of their respective shareholdings on the terms set forth below.
NOW, THEREFORE, the Cameron Family Stockholders and SMC
(collectively, the "Stockholders") agree as follows:
ARTICLE I
RESTRICTIONS ON STOCK
1.1 Transfer Restrictions. No Stockholder shall sell,
assign, encumber, pledge, transfer or otherwise dispose of any of
the Shares now owned or hereafter acquired by the Stockholder
without first complying with the provisions of this Agreement.
Any transfer or purported transfer in contravention of this
Agreement shall be null and void. The purported transferee shall
have no rights or standing as a stockholder of the Corporation
and shall not be entitled to receive a new stock certificate or
any dividends or other distributions on or with respect to the
Shares.
1.2 Legend. Within ten (10) days after the receipt of
notice from SMC that he has purchased all or a substantial
portion of the shares of common stock held by HWFF (the
"Closing"), the Stockholders shall surrender their certificates
to the Secretary of the Corporation, who shall inscribe the
following legend thereon (in addition to the legend required
under applicable state and federal securities laws) and on all
certificates issued hereafter:
The shares of stock represented by this
certificate are transferable only upon compliance
with the provisions of that certain Right of First
Refusal Agreement dated June 25, 1999, among
certain stockholders, a copy of which may be
inspected at the principal office of the
Corporation, and all provisions of that agreement
are incorporated by reference in this certificate.
A copy of this Agreement shall be delivered to the Secretary
of the Corporation and shall be made available to any person
making inquiry about this Agreement. For purposes of this
Agreement, the term "substantial portion of the shares held by
HWFF" shall mean not less than 25% of the outstanding shares of
common stock of the Corporation.
1.3 Selling Window. No Stockholder shall sell any Shares
through the open market ("Open Market Sale) except during a
Selling Window in a Brokers Transaction and only after first
complying with the terms of this Agreement. For purposes of this
Agreement, the term "Selling Window" shall mean a period of
twenty one (21) days commencing on the next business day in which
the major stock exchanges are open for trading after the
Corporation publicly announces its quarterly or annual earnings.
The term "Brokers Transaction" shall mean "brokers transactions"
within the meaning of section 4(4) of the Securities Act of 1933,
and Rule 144(g) promulgated by the Securities and Exchange
Commission, as amended, and transactions directly with a "market
maker" as that term is defined in section 3(a)(38) of the
Securities Act of 1934, as amended.
ARTICLE II
RIGHT OF FIRST REFUSAL
2.1 Right of First Refusal as to Cameron Family Stockholder
Shares.
(a) Except as expressly permitted herein, each Cameron
Family Stockholder agrees not to sell, transfer or otherwise
dispose of any Shares, including an involuntary transfer or
transfer by operation of law or court decree, without first
offering such Shares to Stephen M. Case ("SMC") under the terms
and procedures set forth below.
(b) Any Cameron Family Stockholder desiring to sell or
dispose of any Shares (the "Offering Stockholder") shall give
written notice to SMC (the "Offer Notice") of his, her or their
intention to sell or otherwise dispose of such Shares (the
"Offered Shares"). The Offer Notice shall state the name of the
Offering Stockholder, the number of Offered Shares and the
proposed manner of sale.
If the Offering Stockholder intends to sell the Offered
Shares through an Open Market Sale in an upcoming Selling Window
(the "Next Selling Window"), the Offer Notice shall set forth the
weighted average sale price of all shares of the Corporation's
common stock sold during the one hundred and eighty (180) days
immediately preceding the date of the Offer Notice (the "Offer
Price"), and shall be delivered to SMC not less than thirty (30)
days and not more than sixty (60) days prior to the Next Selling
Window. For purposes of this Agreement, the "weighted average
sale price" shall be based upon the average of the high and the
low sale price on each day multiplied by the volume of shares
traded on such day.
If the Offering Stockholder intends to sell or
otherwise dispose of the Offered Shares in a transaction other
than an Open Market Sale (a "Private Sale"), the Offer Notice
shall state the bona fide price or other consideration per share,
the terms upon which the disposition shall be made, and the name
of the person to whom such disposition is to be made. The Offer
Notice shall be accompanied by copies of any documents relating
to the proposed Private Sale.
(c) The Offer Notice, when delivered to SMC, shall
constitute an offer by the Offering Stockholder to sell all (but
not less than all) of the Offered Shares to SMC (i) in the case
of a proposed Open Market Sale, at the Offer Price, with the
purchase price to be paid in cash within fifteen (15) days of the
date of acceptance of the offer, or (ii) in the case of a
proposed Private Sale, at the price and upon terms stated in the
Offer Notice, provided that the closing of the sale shall occur
no earlier than sixty (60) days after the date of acceptance of
the offer unless otherwise agreed by the parties.
(d) SMC shall have thirty (30) days from the date of
delivery of the Offer Notice (the "Offer Period") to accept or
reject the offer to purchase all (and not less than all) of the
Offered Shares by delivering written notice of such acceptance or
rejection to the Offering Stockholder within the Offer Period.
(e) If SMC rejects or fails to deliver to the Offering
Stockholder written notice of acceptance of the offer to purchase
all (and not less than all) of the Offered Shares within the
Offer Period, the Offering Stockholder shall be authorized to:
(i) in the case of an Open Market Sale, sell the
Offered Shares through the open market in one or more
brokers or market maker transactions during the Next Selling
Window, or
(ii) in the case of a Private Sale, transfer
such Shares to the transferee named in the Offer Notice at
the price and upon terms no more favorable to the transferee
than those described in the Offer Notice, within one hundred
twenty (120) days from the date of delivery of the Offer
Notice.
Upon completion of such sale or transfer, the transferee shall
own the Offered Shares free and clear of this Agreement and shall
not be entitled to any of the rights provided under, and shall
not be bound by any of the obligations imposed by, this
Agreement.
If such sale or transfer is not completed within the
Next Selling Window or said 120-day period, as the case may be, a
new Offer Notice must be given in accordance with Section 2.1(b)
before the Offering Stockholder may sell or otherwise dispose of
the Offered Shares.
(f) If SMC accepts the offer to purchase all (and not
less than all) of the Offered Shares within the Offer Period, and
the purchase of the Offered Shares would trigger the shareholder
approval requirement of the Hawaii Control Share Acquisition Act,
Hawaii Revised Statutes Sections 415-171 and 415-172 (the "CSA"),
the closing of the purchase of the Offered Shares shall be
subject to and conditioned upon compliance with the CSA and
obtaining the requisite shareholder approval, if required by law.
(g) Notwithstanding anything herein to the contrary,
SMC's right of first refusal shall only apply to that number of
Shares held by the Cameron Family Stockholders which is equal to
the number of Shares held by SMC as of the date of the Offer
Notice. For example, if SMC holds 1,000,000 Shares as of the
date of the Offer Notice, only the first 1,000,000 Shares to be
sold by the Cameron Family Stockholders shall be subject to SMC's
right of first refusal, and the Cameron Family Stockholders shall
be authorized to transfer any Shares in excess of that amount
without complying with the terms of this Agreement.
2.2 Right of First Refusal as to SMC Shares.
(a) Except as expressly permitted herein, SMC agrees
not to sell, transfer or otherwise dispose of any Shares,
including an involuntary transfer or transfer by operation of law
or court decree, without first offering such Shares to the
Cameron Family Stockholders under the terms and procedures set
forth below.
(b) If SMC desires to sell or dispose of any Shares,
SMC shall give written notice to the Cameron Family Stockholders
(the "SMC Offer Notice") of his intention to sell or otherwise
dispose of such Shares (the "SMC Offered Shares"). The SMC Offer
Notice shall state the number of SMC Offered Shares and the
proposed manner of sale.
If SMC intends to sell the SMC Offered Shares through
an Open Market Sale during the Next Selling Window, the SMC Offer
Notice shall set forth the weighted average sale price of all
shares of the Corporation's common stock sold during the one
hundred and eighty (180) days immediately preceding the date of
the SMC Offer Notice (the "SMC Offer Price") and shall be
delivered to the Cameron Family Stockholders not less than thirty
(30) days and not more than sixty (60) days prior to the Next
Selling Window.
If SMC intends to sell or otherwise dispose of the
Offered Shares through a Private Sale, the SMC Offer Notice shall
state the bona fide price or other consideration per share, the
terms upon which the disposition shall be made, and the name of
the person to whom such disposition is to be made. The SMC Offer
Notice shall be accompanied by copies of any documents relating
to the proposed Private Sale.
(c) The SMC Offer Notice, when delivered to the
Cameron Family Stockholders, shall constitute an offer by SMC to
sell all (but not less than all) of the SMC Offered Shares to the
Cameron Family Stockholders (i) in the case of a proposed Open
Market Sale, at the SMC Offer Price, with the purchase price to
be paid in cash within fifteen (15) days of the date of
acceptance of the offer, (ii) in the case of a proposed Private
Sale, at the price and upon terms stated in the SMC Offer Notice,
provided that the closing of the sale shall occur no earlier than
sixty (60) days after the date of acceptance of the offer unless
otherwise agreed by the parties.
(d) The Cameron Family Stockholders shall have thirty
(30) days from the date of delivery of the SMC Offer Notice (the"
SMC Offer Period") to accept or reject the offer to purchase all
(and not less than all) of the SMC Offered Shares by delivering
written notice of such acceptance or rejection to SMC within the
SMC Offer Period.
As between the Cameron Family Stockholders, each
Cameron Family Stockholder shall be entitled to purchase a pro
rata portion of the SMC Offered Shares based on the ratio of the
number of Shares he or she then owns to the total number of
Shares then owned by all of the Cameron Family Stockholders. If
any of the Cameron Family Stockholders does not elect to purchase
his or her pro rata portion of the SMC Offered Shares within
fifteen (15) days of the date of delivery of the SMC Offer
Notice, such portion shall then be available for purchase by the
other Cameron Family Stockholders so electing on a pro rata
basis.
(e) If the Cameron Family Stockholders reject or fail
to deliver to SMC written notice of acceptance of the offer to
purchase all (and not less than all) of the SMC Offered Shares
within the SMC Offer Period, SMC shall be authorized to:
(i) in the case of an Open Market Sale, sell the
SMC Offered Shares through the open market in one or more
brokers or market maker transactions during the next Selling
Window, or
(ii) in the case of a Private Sale, transfer the
SMC Offered Shares to the transferee named in the SMC Offer
Notice at the price and upon terms no more favorable to the
transferee than those described in the SMC Offer Notice,
within one hundred twenty (120) days from the date of
delivery of the SMC Offer Notice.
Upon completion of such sale or transfer, the transferee shall
own the Offered Shares free and clear of this Agreement and shall
not be entitled to any of the rights provided under, and shall
not be bound by any of the obligations imposed by, this
Agreement.
If such sale or transfer is not completed within the
Next Selling Window or said 120-day period, as provided above, a
new SMC Offer Notice must be given in accordance with Section
2.1(b) before SMC may sell or otherwise dispose of the SMC
Offered Shares.
(f) If the Cameron Family Stockholders accept the
offer to purchase all (and not less than all) of the SMC Offered
Shares within the SMC Offer Period, and the purchase of the SMC
Offered Shares would trigger the shareholder approval requirement
of the Hawaii Control Share Acquisition Act, Hawaii Revised
Statutes Sections 415-171 and 415-172 (the "CSA"), the closing of
the purchase of the SMC Offered Shares shall be subject to and
conditioned upon compliance with the CSA and obtaining the
requisite shareholder approval, if required by law.
(g) Notwithstanding anything herein to the contrary,
the Cameron Family Stockholders' right of first refusal shall
only apply to that number of Shares held by SMC which is equal to
the number of Shares held by the Cameron Family Stockholders as
of the date of the SMC Offer Notice. For example, if the Cameron
Family Stockholders hold 1,000,000 Shares as of the date of the
SMC Offer Notice, only the first 1,000,000 Shares to be sold by
SMC shall be subject to the Cameron Family Stockholders's right
of first refusal, and SMC shall be authorized to transfer any
Shares in excess of that amount without complying with the terms
of this Agreement.
2.3 Enforcement. Time shall be of the essence in
consummating the transfer of Shares pursuant to this Article II.
The Cameron Family Stockholders and SMC shall each have the right
to seek specific performance to enforce the provisions of this
Article II, in addition to such rights and remedies as they may
have in law or equity.
2.4 Indirect Transfers. Any indirect transfers of Shares,
including without limitation, the sale or transfer of a majority
of the shares of a corporation holding Shares or the sale of a
majority of the interests of a partnership or limited liability
company holding Shares, merger or consolidation of an entity
holding shares, shall be deemed a transfer of Shares for purposes
of this Article II.
2.5 Stock Dividends, Splits and Recapitalizations. This
Agreement shall apply to any shares issued or received by the
Stockholders from the Corporation through a stock dividend, stock
split, recapitalization or similar transaction.
ARTICLE III
PERMITTED TRANSFERS
3.1 Permitted Transfers. The following transfers
(collectively, "Permitted Transfers") shall be exempt from the
restrictions described in Sections 2.1 and 2.2, provided that the
transferee shall first agree in writing to be bound by the terms
of this Agreement:
(a) Any transfer of Shares by a Stockholder to that
Stockholder's revocable intervivos trust ("Living Trust");
provided that (a) the Stockholder retains the right to revoke the
Living Trust, is the sole trustee or co-trustee of the Living
Trust (or retains the right to direct the trustee), and is a
lifetime beneficiary of the Living Trust, (b) the trustee of the
Living Trust agrees in writing to be bound by the terms of this
Agreement, and (c) the beneficiaries of the Living Trust
following the death of the Stockholder are all members of the
Stockholder's immediate family and their respective spouses or
lineal descendants.
(b) Any transfer of Shares between the Stockholders,
the members of their immediate family and their respective
estates, personal representatives, spouses and lineal
descendants.
(c) Any transfer of Shares approved by all of the
Stockholders.
(d) Any transfer of Shares between members of the
Cameron Family or between members of the Cameron Family and any
corporation, partnership, trust, or limited liability company
which is majority owned and controlled by members of the Cameron
Family, including without limitation the Allan G. Sanford Trust,
of which Mary C. Sanford is the trustee; the Cameron Family
Partnership, whose general partners are Mary C. Sanford, Richard
H. Cameron, Claire C. Sanford and Frances E.C. Ort; the J. Walter
Cameron Trust, of which Mary C. Sanford, Richard H. Cameron,
Margaret A.C. Alvidrez, Claire C. Sanford and Pacific Century
Trust are co-trustees; and Maui Publishing Company, Ltd.
(e) Any transfer of Shares between members of the Case
Family or between members of the Case Family and any
corporation, partnership, trust, or limited liability company
which is majority owned and controlled by members of the Case
Family.
(f) Any pledge of Shares to Bank of Hawaii or First
Hawaiian Bank (the "Lender") to secure a loan to one or more
Cameron Family Stockholders or to SMC, and any sale of the
pledged Shares by the Lender pursuant to its power of sale under
the pledge agreement.
3.2 Cameron Family. For purposes of this Agreement, the
term "Cameron Family" shall include Mary C. Sanford, Richard H.
Cameron, Claire C. Sanford, Jared B. H. Sanford, Douglas B.
Cameron, Margaret A.C. Alvidrez, Frances E.C. Ort, the members of
their immediate families, and their respective spouses and
lineal descendants.
3.3 Case Family. For purposes of this Agreement, the term
"Case Family" shall include Stephen M. Case, the members of his
immediate family, and their respective spouses and lineal
descendants.
3.4 Permitted Transferees Subject To Terms Of This
Agreement. Any Shares transferred through a Permitted Transfer
pursuant to this Article III shall remain subject to the terms of
this Agreement, and no transfer of Shares pursuant to this
Article III shall be effective unless the transferee agrees in
writing to be bound by the terms of this Agreement as to the
Shares transferred through the Permitted Transfer.
ARTICLE IV
TERMINATION
4.1 Termination of Agreement. This Agreement shall
terminate on the occurrence of any of the following events:
(a) Cessation of the Corporation's business;
(b) Bankruptcy, receivership, or dissolution of the
Corporation; or
(c) The voluntary agreement in writing of all
Stockholders who are then bound by the terms
hereof.
(d) SMC elects to terminate his negotiations for the
purchase of the shares held by HWFF by delivery
of written notice of such termination to the
Cameron Family Stockholders.
(e) If SMC does not enter into a binding agreement
within sixty (60) days of the date hereof to
purchase all or a substantial portion of the
shares of common stock of the Corporation owned by
HWFF, or SMC does not purchase all or a
substantial portion of the shares of common stock
of the Corporation owned by HWFF within one
hundred eighty (180) days of the date hereof, the
Cameron Family Stockholders elect to terminate
this Agreement by delivery of written notice of
such termination to SMC.
(f) The proposed acquisition by SMC of all or a
substantial portion of the shares of common stock
of the Corporation owned by HWFF is not approved
by the Corporation's shareholders in accordance
with the CSA at a meeting called for such purpose.
ARTICLE V
MISCELLANEOUS
5.1 Amendment of Agreement. This Agreement shall not be
modified or amended except by a writing signed by each
Stockholder and by an officer duly authorized to act upon behalf
of the Corporation.
5.2 Notices. All notices, requests, demands and other
communications permitted or required hereunder shall be in
writing, and either (i) delivered in person, (ii) sent by express
mail or other overnight delivery service providing receipt of
delivery, (iii) mailed by certified or registered mail, postage
prepaid, return receipt requested or (iv) sent by telex,
telegraph or other facsimile transmission; and such notices shall
be addressed: (i) if to the Corporation, to the principal office
of the Corporation; and (ii) if to a Stockholder, to the address
of the Stockholder as reflected in the stock records of the
Corporation. Any such notice or communication, if given or made
by prepaid, registered or certified mail or by recorded express
delivery, shall be deemed to have been made when actually
received, but not later than five (5) business days after the
same was posted or given to such express delivery service, and if
made properly by telex, telecopy or other facsimile transmission
such notice or communication shall be deemed to have been made at
the time of dispatch.
5.3 Severability. If any provision of this Agreement is
held invalid or unenforceable, the validity and enforceability of
the other provisions of this Agreement will remain unaffected.
5.4 Integration. This writing is intended by the parties
as a final expression of their agreement and is intended also as
a complete and exclusive statement of the terms of their
agreement.
5.5 Incorporation by Reference. All exhibits and documents
referred to in this Agreement shall be deemed incorporated herein
by any reference thereto as if fully set forth herein.
5.6 Headings and Captions. Subject headings and captions
are included for convenience purposes only and shall not affect
the interpretation of this Agreement.
5.7 Gender and Pronouns. Throughout this Agreement, the
masculine shall include the feminine and neuter and the singular
shall include the plural and vice versa as the context requires.
5.8 Waiver. No waiver of a breach or violation of any
provision of this Agreement shall operate or be construed as a
waiver of any subsequent breach or limit or restrict any right or
remedy otherwise available.
5.9 Counterparts. This Agreement may be executed in two or
more counterparts each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
5.10 Legal Fees. In the event any party to this Agreement
shall employ legal counsel to protect its rights hereunder or to
enforce any term or provision hereof, the party prevailing in any
such action shall have the right to recover from the other party
all of its reasonable attorneys' fees and expenses incurred in
relation to such claims.
5.11 Governing Law. This Agreement is governed by and shall
be construed in accordance with the laws of the State of Hawaii.
5.12 Mediation and Arbitration. In the event a dispute
arises between the parties hereto regarding the application,
interpretation or enforcement of any provision of this Agreement,
the dispute may, at the option of any party, be submitted for
mediation between the parties involved in the dispute with a
mutually acceptable third-party to act as mediator. If the
dispute cannot be resolved within ten (10) business days after
commencement of the mediation process or if no party desires to
submit the matter to mediation, the dispute may, at the option of
any party, be resolved by arbitration pursuant to the rules of
arbitration of the American Arbitration Association then in
effect. The request for arbitration shall be in writing and
delivered to the other parties hereto, and shall set forth in
detail the claims to be arbitrated, the amount involved, if any,
and the remedy sought. At the request of any party, such
arbitration shall be conducted in an expedited manner so that a
final decision shall be made by the arbitrators as quickly as
possible and in any event not more than sixty (60) days after the
request for arbitration was first made. Except as otherwise
agreed by the parties involved, a single arbitrator shall be
designated by the American Arbitration Association. The decision
of the arbitrator shall be final and binding and may be enforced
in any court of competent jurisdiction. All proceedings before
the arbitrator shall be held in Honolulu, Hawaii. The non-
prevailing party as determined by the arbitrator shall pay the
costs and expenses of the prevailing party or parties, including
reasonable attorney's fees and the arbitrator's costs and fees;
provided, however, if the arbitrator decides that neither party
is the prevailing party, each party involved in the dispute shall
bear his or her own costs and expenses and prorata share of the
arbitrator's costs and fees.
5.13 Binding on Successors and Assigns. This Agreement
shall be binding on the parties to this Agreement and their
respective heirs, legal representatives, successors and permitted
assigns.
5.14 No Assignment. The rights provided under this
Agreement may not be assigned by any party to any person, except
in connection with a Permitted Transfer, and only if the
transferee shall first agree in writing to be bound by the terms
of this Agreement. Any assignment or purported assignment in
contravention of this Agreement shall be null and void. The
purported assignee shall have no rights under this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Right
of First Refusal Agreement this 25th day of June, 1999.
/s/ Stephen M. Case
STEPHEN M. CASE
/s/ Richard H. Cameron
RICHARD H. CAMERON
/s/ Claire C. Sanford
CLAIRE C. SANFORD
/s/ Jared B. H. Sanford
JARED B. H. SANFORD
/s/ Douglas B. Cameron
DOUGLAS B. CAMERON
/s/ Mary C. Sanford
MARY C. SANFORD,
TRUSTEE OF THE
ALLAN G. SANFORD TRUST
EXHIBIT A [to Right of First Refusal Agreement]
STOCKHOLDERS OF
MAUI LAND & PINEAPPLE COMPANY, INC.
Name of Stockholder No. of Shares
Claire C. Sanford 163,861
Jared B. H. Sanford 173,240
Richard H. Cameron 252,156
Douglas B. Cameron 266,262
Allan G. Sanford Trust 156,116
Total 1,011,635
<PAGE>
EXHIBIT B
HAWAII CONTROL SHARE ACQUISITIONS ACT
415-171 DEFINITIONS.
As used in this part, unless the context otherwise
requires:
"Acquiring person" means a person who is required to
deliver an information statement under this part.
"Beneficial ownership" shall be determined pursuant to
section 13 of the federal Securities Exchange Act of 1934 and the
rules promulgated thereunder, as amended.
"Control share acquisition" means an acquisition of
shares of an issuing public corporation resulting in beneficial
ownership by an acquiring person of a new range of voting power
specified in this part, but does not include an acquisition:
(1) Before, or pursuant to an agreement entered into
before the effective date of this part;
(2) By a donee pursuant to an inter vivos gift not
made to avoid this part or by a distributee as defined in chapter
560;
(3) Pursuant to a security agreement not created to
avoid this part;
(4) Under chapter 417E, if the issuing public
corporation is a party to the transaction; or
(5) From the issuing public corporation.
"Issuing public corporation" means a corporation
incorporated in this State with at least one hundred shareholders
having its principal place of business or substantial assets
located in this State.
415-172 CONTROL SHARE ACQUISITIONS.
(a) Unless otherwise expressly provided in the
articles of incorporation of an issuing public corporation, this
section applies to a control share acquisition.
(b) All shares acquired by an acquiring person in
violation of subsection (e) shall be denied voting rights for one
year after acquisition, the shares shall be nontransferable on
the books of the corporation for one year after acquisition and
the corporation, during the one-year period, shall have the
option to call the shares for redemption either at the price at
which the shares were acquired or at book value per share as of
the last day of the fiscal quarter ended prior to the date of the
call for redemption. Such a redemption shall occur on the date
set in the call notice but not later than sixty days after the
call notice is given.
(c) A person proposing to make a control share
acquisition shall deliver to the issuing public corporation at
its principal executive office an information statement
containing all of the following:
(1) The identity of the person;
(2) A reference that the statement is made under
this section;
(3) The number of shares of the issuing public
corporation beneficially owned by the person;
(4) A specification of which of the following
ranges of voting power in the election of directors would result
from consummation of the control share acquisition:
(A) At least ten percent but less than
twenty percent;
(B) At least twenty percent but less than
thirty percent;
(C) At least thirty percent but less than
forty percent;
(D) At least forty percent but less than a
majority; or
(E) At least a majority; and
(5) The terms of the proposed control share
acquisition, including, but not limited to, the source of funds
or other consideration and the material terms of the financial
arrangements for the control share acquisition; any plans or
proposals of the acquiring person to liquidate the issuing public
corporation, sell all or substantially all of its assets, or
merge it or exchange its shares with any other person, change the
location of its principal executive office or of a material
portion of its business activities, change materially its
management or policies of employment, alter materially its
relationship with suppliers or customers or the communities in
which it operates, or make any other material change in its
business, corporate structure, management or personnel, and such
other information which would affect the decision of a
shareholder with respect to voting on the proposed control share
acquisition.
(d) Within five days after receipt of an information
statement pursuant to subsection (c), a special meeting of the
shareholders of the issuing public corporation shall be called
pursuant to section 415-28, to vote on the proposed control share
acquisition. The meeting shall be held:
(1) No later than fifty-five days after receipt of
the information statement, unless the acquiring person agrees to
a later date; and
(2) No sooner than thirty days after receipt of
the information statement, unless the acquiring person so
requests in writing when delivering the information statement.
The notice of the meeting shall at a minimum be accompanied by a
copy of the information statement and a statement disclosing that
the issuing public company recommends:
(1) Acceptance of;
(2) Expresses no opinion and is remaining neutral
toward; or
(3) Is unable to take a position with respect to
the proposed control share acquisition. The notice of meeting
shall be given within twenty-five days after receipt of the
information statement.
Notwithstanding any contrary provision of this chapter,
a proxy relating to a meeting of shareholders required under this
subsection:
(1) Must be solicited separately from the offer to
purchase or solicitation of an offer to sell shares of the
issuing public corporation; and
(2) Must not be solicited sooner than thirty days
before the meeting unless otherwise agreed in writing by the
acquiring person and the issuing public corporation.
(e) The acquiring person may consummate the proposed
control share acquisition if and only if both the following
occur:
(1) The proposed control share acquisition is
approved by the affirmative vote of the holders of a majority of
the voting power of all shares entitled to vote which are not
beneficially owned by the acquiring person. A class or series of
shares of the corporation is entitled to vote as a class or
series if any provision of the control share acquisition would,
if contained in a proposed amendment to the articles, entitle the
class or series to vote as a class or series; and
(2) The proposed control share acquisition is
consummated within one hundred eighty days after shareholder
approval.
<PAGE>
PROXY
MAUI LAND & PINEAPPLE COMPANY, INC.
120 KANE STREET, P. O. BOX 187
KAHULUI, MAUI, HAWAII 96733-6687
THIS PROXY IS SOLICITED ON BEHALF OF THE COMPANY AND NOT THE
BOARD OF DIRECTORS FOR THE SPECIAL MEETING TO BE HELD AUGUST 23,
1999
The undersigned hereby makes, constitutes and appoints GARY
L. GIFFORD, PAUL J. MEYER and ADELE H. SUMIDA and each of them as
attorneys and proxies of the undersigned, with full power of
substitution, for and in the name of the undersigned to represent
the undersigned at the Meeting of Stockholders of Maui Land &
Pineapple Company, Inc. (the "Company") to be held at 4:00 P.M.
on Monday, August 23, 1999, in the Corporate Office courtyard,
120 Kane Street, Kahului, Hawaii, and any postponements or
adjournments thereof, and to vote all shares of the stock of the
Company standing in the name of the undersigned with all the
powers the undersigned would possess if personally present at
such meeting. This Proxy may be revoked by the undersigned at
any time. The undersigned directs that this Proxy be voted as
follows:
____ FOR ____ AGAINST ____ ABSTAIN
Approval of the proposed acquisition by Stephen M. Case of
2,962,036 shares of Common Stock of the Company constituting
approximately 41.2% of the outstanding shares of Common Stock of
the Company.
THIS PROXY WILL BE VOTED AS DIRECTED. IF THE PROXY IS
PROPERLY SIGNED AND RETURNED AND NO DIRECTIONS ARE GIVEN, THE
VOTE WILL BE IN FAVOR OF THE PROPOSAL ABOVE. DISCRETIONARY
AUTHORITY IS HEREBY CONFERRED AS TO ALL OTHER MATTERS THAT MAY
COME BEFORE THE MEETING.
The undersigned hereby acknowledges receipt of the Notice of
the Special Meeting and accompanying Proxy Statement.
Date:________________, 1999
Please sign EXACTLY as name(s) appears at left:
_______________________________________
_______________________________________
_______________________________________
If the proxy is signed by an attorney-in-fact, executor,
administrator, trustee or guardian, give full title. PLEASE
DATE, SIGN AND RETURN PROMPTLY.
