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SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
MAUI LAND & PINEAPPLE COMPANY, INC.
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(NAME OF ISSUER)
COMMON STOCK
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(TITLE OF CLASS OF SECURITIES)
577345-10-1
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(CUSIP Number of Class of Securities)
Stephen M. Case
c/o The Stephen Case Foundation
1650 Tysons Boulevard, Suite 610
McLean, VA 22102
Copy To:
William E. Donnelly
Washington Square, Suite 1200
1050 Connecticut Avenue, NW
Washington, D.C. 20036-5317
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(NAME, ADDRESS, TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS)
August 31, 1999
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(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and if filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. / /
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SCHEDULE 13D
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CUSIP NO. PAGE 1 OF 1 PAGES
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- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stephen M. Case
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4
PF
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
US
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SOLE VOTING POWER
7
NUMBER OF
-2,962,036-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY -0-
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EACH SOLE DISPOSITIVE POWER
9
REPORTING
-2,962,036-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
-2,962,036-
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
-41.2%-
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TYPE OF REPORTING PERSON*
14
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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Item 1. Security and Issuer
This statement on Schedule 13D (the "Statement") relates to shares of
common stock, no par value ("Common Stock") of Maui Land & Pineapple Company,
Inc., a Hawaii corporation (the "Issuer"). The address of the Issuer's
principal executive office is 120 Kane Street, P.O. Box 187, Kahului, Maui,
Hawaii 96733-6687.
Item 2. Identity and Background
a. This Schedule is filed on behalf of Stephen M. Case
b-c. Mr. Case is the Chairman of the Board and Chief Executive Officer
of America Online, Inc., a Delaware corporation ("AOL"). The principal business
address of AOL is 22000 AOL Way, Dulles, VA 20166-9323.
d. During the past five years, Mr. Case has not been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
e. During the past five years, Mr. Case has not been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or a finding of any
violation with respect to such laws.
f. Mr. Case is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration
The amount of funds used to purchase the Common Stock was $39,246,977
all of which amount was funded by available cash of Mr. Case.
Item 4. Purpose of Transaction
Mr. Case acquired 2,962,036 shares of Common Stock of the Issuer
pursuant to the HJW Agreement and the HWFF Agreement (defined in Item 5(c)
herein) reported herein for investment purposes. As contemplated by the HWFF
Agreement, Samuel R. Himmelrich, Sr. and Morton B. Plant have resigned from the
Board of Directors of the Issuer, effective August 31, 1999, and Mr. Case has
nominated Daniel H. Case and David A. Heenan to the Board of Directors of the
Issuer as candidates to fill the vacancies created by these resignations. Daniel
H. Case is the father of Mr. Case and is a shareholder/director of Case Bigelow
& Lombardi, a law corporation in Honolulu, Hawaii. Mr. Heenan is a trustee of
the Estate of James Campbell, a large Hawaii landholding trust. The Board of
Directors has informed Mr. Case that it intends to call a special meeting of
directors to consider the appointment of these nominees.
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Mr. Case has agreed, pursuant to the HJW Agreement and the HWFF
Agreement, not to commence any Rule 13e-3 transaction for two years following
the closing of these agreements.
In addition, Mr. Case is party to a Right of First Refusal Agreement
with the Cameron Stockholders (defined in Item 6 herein) pursuant to which Mr.
Case will have in certain circumstances a right of first refusal to purchase the
1,001,635 shares of Common Stock of the Issuer owned by the Cameron Stockholders
and the Cameron Stockholders will have a similar right of first refusal as to an
equal number of shares owned by Mr. Case.
Mr. Case intends to exercise his rights as a substantial stockholder of
the Issuer.
Apart from the foregoing, Mr. Case has no other plans or proposals
which relate to or would result in: (a) the acquisition by any person of
additional securities of the Issuer or the disposition of securities of the
Issuer; (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or any of
its subsidiaries; (d) any change in the present Board of Directors or management
of the Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board; (e) any material
change in the present capitalization or dividend policy of the Issuer; (f) any
other material change in the Issuer's business or corporate structure; (g)
changes in the Issuer's articles of incorporation, constitution, bylaws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person; (h) causing a class of
securities of the Issuer to be deleted from a national securities exchange or to
cease to be authorized or quoted in an inter-dealer quotation system of a
registered national securities association; (i) a class of equity securities of
the Issuer becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act; or (j) any action similar to any of those
enumerated above.
In the future, Mr. Case may determine to purchase additional shares of
the Issuer's Common Stock or may determine to sell shares of the Issuer's Common
Stock. Any such determination will depend on a number of factors, including
market prices, the Issuer's prospects and the prospects of Mr. Case and
alternative investments.
Item 5. Interest in Securities of the Issuer
a. Mr. Case beneficially owns an aggregate of 41.2% of the
outstanding shares of Common Stock.
b. Mr. Case has the sole power to vote and dispose of all 2,962,036
shares of Common Stock of the Issuer beneficially owned by him, subject to the
obligation, under certain circumstances, to offer a right of first refusal to
the Cameron Stockholders as more fully described in Item 6 below.
c. On August 31, 1999, Mr. Case purchased 2,669,780 shares of Common
Stock of the Issuer from Harry Weinberg Family Foundation, Inc., a Maryland
corporation, pursuant to a
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Stock Purchase Agreement, dated June 25, 1999, for $13.25 per share (the "HWFF
Agreement"). Also on August 31, 1999, pursuant to a Stock Purchase Agreement
between Mr. Case and The Harry and Jeanette Weinberg Foundation, Inc., a
Maryland corporation and 300 Corporation, a Maryland corporation, dated June 25,
1999, (the "HJW Agreement"), Mr. Case purchased 292,256 shares of Common Stock
of the Issuer for $13.25 per share. There have been no other transactions in the
Issuer's Common Stock that were effected by or on behalf of Mr. Case in the past
60 days.
d. Pursuant to both the HWFF Agreement and the HJW Agreement, Mr.
Case has agreed that, if he sells any of the Common Stock acquired pursuant to
these agreements or executes a binding contract to sell any of such Common Stock
within the first twelve months following the closing of these agreements, he
will pay to the sellers under the agreements two-thirds of any gain he realizes
on the sale. Mr. Case has further agreed that if he sells any of the Common
Stock acquired pursuant to these agreements, or executes a binding contract to
sell such Common Stock, within the second twelve months following the closing of
the agreements, he will pay to the sellers under the agreements one-third of any
gain realized on the sale. Apart from the foregoing, no person or entity other
than Mr. Case has the right to receive, or the power to direct the receipt of,
dividends from, or the proceeds from the sale of, the Common Stock owned by him.
e. Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Mr. Case entered into a Right of First Refusal Agreement on June 25,
1999 with 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 Stockholders"). Pursuant to this agreement,
1,001,635 shares of Common Stock of the Issuer, constituting all of the shares
of Common Stock of the Issuer owned by the Cameron Stockholders, are subject to
a right of first refusal by Mr. Case in certain instances. Currently 1,001,635
shares of Common Stock of the Issuer owned by Mr. Case are subject to a similar
right of first refusal by the Cameron Stockholders in certain cases. The number
of shares of Common Stock owned by Mr. Case subject to this restriction is equal
to the number of shares of Common Stock of the Issuer owned by the Cameron
Stockholders.
Mr. Case has agreed, pursuant to the HJW Agreement and the HWFF
Agreement, not to commence any Rule 13e-3 transaction for two years following
the closing of these agreements. However, if such a transaction is initiated by
a party not controlled by Mr. Case, then the members of the Company's Board of
Directors, including the Directors nominated by Mr. Case, have the right to
exercise independent judgement in respect to the proposal of a Rule 13e-3
transaction.
As of the date of this Schedule, Mr. Case is not a party to any other
contract, arrangement, understanding or relationship with any person with
respect to any securities of the
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Issuer, including but not limited to transfer or voting of any of the Common
Stock, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, the giving or
withholding of proxies, or otherwise subject to a contingency the occurrence of
which would give another person voting or investment power over the Common
Stock.
Item 7. Material to be Filed as Exhibits
Stock Purchase Agreement, between Mr. Case and The Harry and Jeanette
Weinberg Foundation, Inc., a Maryland corporation and 300 Corporation, a
Maryland corporation, dated June 25, 1999.
Stock Purchase Agreement, between Mr. Case and Harry Weinberg Family
Foundation, Inc., a Maryland corporation, dated June 25, 1999.
Right of First Refusal Agreement , between Mr. Case and 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, dated June 25, 1999.
EXHIBIT INDEX
Exhibit 1: Stock Purchase Agreement, between Mr. Case and The Harry
and Jeanette Weinberg Foundation, Inc., a Maryland
corporation and 300 Corporation, a Maryland corporation,
dated June 25, 1999.
Exhibit 2: Stock Purchase Agreement, between Mr. Case and Harry
Weinberg Family Foundation, Inc., a Maryland corporation,
dated June 25, 1999.
Exhibit 3: Right of First Refusal Agreement , between Mr. Case and
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, dated June 25, 1999.
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SIGNATURE
After reasonable inquiry and to the best of the knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
Statement on Schedule 13D is true, complete and correct.
September 8, 1999
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(Date)
/s/ Stephen M. Case
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(Signature)
Stephen M. Case
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(Name)
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EXHIBIT 1
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
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1.1 Purchase of the Shares from the Sellers. On the terms and
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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
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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
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The Sellers hereby represent and warrant to the Buyer as follows:
2.1 Authorized Capital Stock. Based solely on the Company proxy
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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
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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.
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2.3 Organization. Each of the Sellers is a corporation duly
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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
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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
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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
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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
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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
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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
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The Buyer hereby represents and warrants to the Sellers the following:
3.1 Enforceability. This Agreement has been duly executed and
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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
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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
2
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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,
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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
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4.1 Consents and Approvals.
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(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 Section 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
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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
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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
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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.
3
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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
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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
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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:
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(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
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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
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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.
4
<PAGE>
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
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7.1 Place and Time.
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(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
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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
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8.1 Price Protection.
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(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.
5
<PAGE>
(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 IX
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.
6
<PAGE>
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
7
<PAGE>
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.
8
<PAGE>
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
9
<PAGE>
EXHIBIT 2
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.
<PAGE>
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.
2
<PAGE>
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.
3
<PAGE>
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
4
<PAGE>
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
5
<PAGE>
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 IX
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.
6
<PAGE>
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
7
<PAGE>
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.
8
<PAGE>
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
9
<PAGE>
EXHIBIT 3
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.
<PAGE>
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
2
<PAGE>
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 '' 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 ASMC 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
3
<PAGE>
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 '' 415-171 and 415-172 (the "CSA"), the closing of the purchase of the
SMC
4
<PAGE>
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.
5
<PAGE>
(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
-------------
6
<PAGE>
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
7
<PAGE>
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 25/th/ 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
8
<PAGE>
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
9
