STOCK PURCHASE AGREEMENT
This Agreement is executed and effective this 25th day of
June, 1999, by and between Xxxxxxx X. Case (the "Buyer"), and Xxxxx Xxxxxxxx
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
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outstanding shares of common stock. To the Seller's knowledge, the information
set forth in the Company's proxy statement dated April 2, 1999 regarding the
number of outstanding shares on a fully diluted basis is correct. The Shares
have been duly authorized and validly issued and are fully paid and
nonassessable.
2.2 OWNERSHIP OF SHARES. The Seller owns the Shares free and
clear of any and all covenants, conditions, restrictions, voting trust
arrangements, pledges, liens, security interests, charges, encumbrances, options
and adverse claims or rights whatsoever. The Shares constitute all of the shares
of common stock of the Company owned by the Seller.
2.3 ORGANIZATION. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maryland.
2.4 AUTHORITY. The Seller has full corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and consummate the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by the Seller and the consummation by
the Seller of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the Seller.
2.5 ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Seller and constitutes a legal, valid and binding obligation of
the Seller, enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors generally or the application of general
principles of equity, regardless of whether in a proceeding at law or in equity.
2.6 NO CONFLICT OR BREACH. The execution, delivery and
performance of this Agreement and the consummation by the Seller of the
transactions contemplated hereby will not conflict with, result in a breach of,
or constitute a default under or violation of any of the terms, conditions or
provisions of: (i) any note, mortgage, agreement or other instrument or
obligation to which the Seller is a party or by which the Seller or the Shares
may be bound or subject, (ii) any judgment, order, writ, injunction or decree of
any court or governmental authority applicable to the Seller or the Shares,
(iii) the Articles of Incorporation, Bylaws or other governing documents of the
Seller; or (iv) any law, statute, order, rule or regulation of any governmental
authority applicable to the Seller or the Shares.
2.7 CONSENTS. No consent or approval of, or declaration,
filing or registration with, any non-governmental third party or any
governmental authority is required to permit the execution, delivery and
performance of this Agreement by the Seller or the consummation of the
transactions contemplated hereby, other than the consents and approvals set
forth in Section 4.2.
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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, Xxxxxxx X.
Xxxxxx.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller the
following:
3.1 ENFORCEABILITY. This Agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of the
Buyer, enforceable against him in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors generally or the application of general
principles of equity, regardless of whether in a proceeding at law or in equity.
3.2 NO CONFLICT OR BREACH. The execution, delivery and
performance of this Agreement and the consummation by the Buyer of the
transactions contemplated hereby will not conflict with, result in a breach of,
or constitute a default under or violation of any of the terms, conditions or
provisions of: (i) any note, mortgage, agreement, or other instrument or
obligation to which the Buyer is a party or by which the Buyer may be bound,
(ii) any judgment, order, writ, injunction or decree of any court or
governmental authority applicable to the Buyer, or (iii) any law, statute,
order, rule or regulation of any governmental authority applicable to the Buyer.
3.3 NO BROKER OR FINDER. The Buyer has not had any discussions
with, negotiated with, been represented by or employed any broker or finder or
incurred any liability for any brokerage fees, commission or finder's fees to
any individual or entity in connection with this Agreement or any of the
transactions contemplated hereby, other than Xxxxxxxxx & Xxxxx LLC.
ARTICLE IV
PRE-CLOSING COVENANTS
4.1 RESIGNATIONS. At the Closing, the Seller shall cause
Xxxxxx X. Xxxxxxxxxx, Xx. and Xxxxxx X. 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
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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 ' ' 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 Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended ("HSR") and exercise best efforts to obtain
early termination of the waiting period. The Buyer shall be solely responsible
for payment of the HSR notification report filing fee.
(d) The Buyer shall file, or cause the Company to file, as
quickly as reasonably possible and in no event later than 7 days after the date
hereof, an application with the Hawaii Public Utilities Commission, for approval
of the proposed acquisition pursuant to the PUC Law.
4.3. SELLER'S RIGHTS RETAINED. Nothing herein shall be
construed or is intended to give the Buyer any voting or investment power over
or beneficial ownership of the Shares prior to Closing. The Seller shall retain
all rights to receive any dividends declared by the Company prior to the Closing
and all voting power represented by the Shares.
ARTICLE V
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
The obligations of the Buyer to complete the Closing under
this Agreement are subject to the fulfillment of the following conditions:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Seller shall be true, correct and complete
as of the date of this Agreement and as of the date of the Closing.
5.2 PERFORMANCE OF OBLIGATIONS The Seller shall have performed
all the obligations required to be performed by the Seller at or prior to the
Closing.
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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 Xxxx-Xxxxx-Xxxxxx 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.
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6.2 PERFORMANCE OF OBLIGATIONS. The Buyer shall have performed
all the obligations required to be performed by the Buyer at or prior to the
Closing.
6.3 NO ACTION OR PROCEEDING. No action or proceeding shall
have been brought or threatened to prevent, or to seek damages by reason of, the
execution and delivery of this Agreement or the consummation of any of the
transactions contemplated hereby; no governmental authority shall have claimed
that any transaction contemplated hereby constitutes a violation of any law,
rule or regulation, or gives rise to liability on the part of the Seller.
6.4 CERTAIN APPROVALS. The acquisition of the Shares by the
Buyer shall have been approved in accordance with the requirements of the CSA
and PUC Law. If applicable, the waiting period imposed under the
Xxxx-Xxxxx-Xxxxxx 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 Xxxxxxxxx and
Xxxxx, LLC ("H&Q"), Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, 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;
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(ii) Written resignations of Xxxxxx X. Xxxxxxxxxx, Xx. and
Xxxxxx X. Plant as directors of the Company;
(iii) Certificate of good standing for the Seller issued on a
recent date by the Secretary of the State of Maryland;
(iv) Any other documents or instruments reasonably required
to be delivered by the Seller to consummate the transactions contemplated
hereby.
7.3 DELIVERY BY THE BUYER. At the Closing, the Buyer shall
deliver to the Seller:
(i) The Purchase Price as set forth in Section 1.2 herein;
and
(ii) Any other documents or instruments reasonably required
from the Buyer to consummate the transactions contemplated hereby.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1 PRICE PROTECTION.
(a) In the event that the Buyer sells any of the Shares within
the first twelve (12) months after the Closing Date (the "First Year Period") or
executes a binding contract to sell (including an option to sell) any of the
Shares within the First Year Period and anytime thereafter sells such Shares
pursuant to such contract, then the Buyer agrees to pay to the Seller, as
additional consideration for the Shares, an amount equal to the two-thirds of
the gain realized by the Buyer upon the sale of such Shares, if any.
(b) In the event that the Buyer sells any of the Shares during
the second twelve months following the Closing Date (the "Second Year Period")
or executes a binding contract to sell (including an option to sell) any Shares
during the Second Year Period and anytime thereafter sells such Shares pursuant
to such contract, then the Buyer agrees to pay to the Seller, as additional
consideration for the Shares, an amount equal to the one-third of the gain
realized by the Buyer upon the sale of such Shares, if any.
(c) For purposes of this section, "the gain realized by the
Buyer" upon the sale of any Shares shall be the amount by which the gross
proceeds received by the Buyer for such Shares exceeds the Buyer's tax basis for
such Shares and all reasonable fees and expenses incurred by the Buyer in
connection with the sale of such Shares, including reasonable legal or
investment advisory fees and expenses or broker's commissions. Any amounts owed
to the Seller under this Section
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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. ' 240.13e-3) with respect to the Company's common stock
within the two-year period following the Closing. Nothing herein shall restrict
the ability of the Company or any of its affiliates (other than the Buyer and
any other entity controlled by the Buyer) to engage in a Rule 13e-3 transaction,
which is not initiated by the Buyer or any other entity which is controlled by
the Buyer, or the right, duties or obligations of any directors nominated to the
Company's board of directors by the Buyer to exercise their independent judgment
with respect thereto.
8.2 INDEMNIFICATION. Each party agrees to indemnify and hold
harmless the other party from and against, and reimburse and pay to the other
party the full amount of, any and all loss, damage, liability, cost, obligation
or expense (including reasonable expenses and fees of counsel) incurred by the
other party, resulting from or relating to: (a) a breach of any representation
or warranty by the indemnifying party contained in this Agreement or in any
certificate delivered in connection with this Agreement, (b) a failure by the
indemnifying party to perform or comply with any covenant, agreement or
obligation required by this Agreement to be performed or complied with by such
party, or (c) the charge, complaint or allegation by any third party (including
any governmental authority) of the existence of any liability, obligation,
agreement, claim, lien, security interest, commitment, violation, or other
condition or state of facts which if it existed would constitute a breach of any
representation or warranty of the indemnifying party contained in this Agreement
or in any certificate delivered by such party in connection with this Agreement.
ARTICLE XI
MISCELLANEOUS
9.1 TERMINATION. This Agreement may be terminated (i) by the
mutual consent of the Buyer and the Seller; (ii) by the Buyer in the event of
any of the conditions set forth in Article V hereof are not fulfilled or waived
by Buyer on or before October 31, 1999; or (iii) by the Seller in the event any
of the conditions set forth in Article VI hereof are not fulfilled or waived by
the Seller on or before October 31, 1999. Upon termination in accordance with
the above, this Agreement shall be null and void and neither party shall have
any liability with respect thereto.
9.2 SURVIVAL. The representations and warranties contained in
this Agreement shall survive the Closing.
9.3 EXPENSES. Except as otherwise specifically provided
herein, each of the parties hereto shall pay all of its respective expenses
relating hereto, including fees and
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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. Xxxxxx Xxxxxxx 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.
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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:
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If to the Seller:
Xxxxx Xxxxxxxx Family Foundation, Inc.
c/o The Associated: Jewish Community Federation
Attention: Xxxxxx X. Plant
000 Xxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
With copies to:
Shale X. Xxxxxxx, Esq.
Piper & Xxxxxxx
Xxxxxxx Center South
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
Xxxxxxx X. Xxxxxx
Georgetown University
School of Business
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to the Buyer:
Xxxxxxx X. Case
c/o The Xxxxx Xxxx Foundation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
XxXxxx, XX 00000
Facsimile: 000-000-0000
With a copy to:
Xxxxxx X. Case
Case Xxxxxxx & Xxxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
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Any such notice or communication, if given or made by prepaid,
registered or certified mail or by recorded express delivery, shall be deemed to
have been made when actually received, but not later than three (3) business
days after the same was posted or given to such express delivery service and if
made properly by facsimile transmission such notice or communication shall be
deemed to have been made at the time of dispatch.
9.12 SEVERABILITY. If any portion of this Agreement is held
invalid, illegal or unenforceable, such determination shall not impair the
enforceability of the remaining terms and provisions herein.
9.13 TIME FOR PERFORMANCE. Time is of the essence in this
Agreement.
9.14 WAIVER. No waiver of a breach or violation of any
provision of this Agreement shall operate or be construed as a waiver of any
subsequent breach or limit or restrict any right or remedy otherwise available.
9.15 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
expressed herein are cumulative and not exclusive of any rights and remedies
otherwise available.
9.16 GENDER AND PRONOUNS. Throughout this Agreement, the
masculine shall include the feminine and neuter and the singular shall include
the plural and vice versa as the context requires.
9.17 ENTIRE AGREEMENT. This document constitutes the entire
agreement of the parties and supersedes any and all other prior agreements, oral
or written, with respect to the subject matter contained herein.
9.18 GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of Hawaii.
9.19 COUNTERPARTS. This Agreement may be executed in two or
more counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.20 FACSIMILE SIGNATURES. This Agreement shall be binding and
effective upon facsimile transmission of signed counterparts of this Agreement
by each party to the other. Each party shall thereafter promptly deliver
physically signed original counterparts to the other party, but the Agreement
containing counterparts with facsimile signatures shall remain binding and
effective even if the physically signed original counterparts are not so
delivered.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year aforesaid.
SELLER:
XXXXX XXXXXXXX FAMILY FOUNDATION, INC.
a Maryland corporation
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Its Vice President
BUYER:
/s/ Xxxxxxx X. Case
-------------------------------------------
XXXXXXX X. CASE
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