EXHIBIT 2
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
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1.1 Purchase of the Shares from the Seller. On the terms and subject
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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
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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
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The Seller hereby represents and warrants to the Buyer as follows:
2.1 Capital Stock. Based solely on the Company proxy statement dated
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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
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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 Seller.
2.3 Organization. The Seller is a corporation duly organized,
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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
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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
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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
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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
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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 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
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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, other than its investment adviser, Xxxxxxx X.
Xxxxxx.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
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The Buyer hereby represents and warrants to the Seller 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 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.
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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 Xxxxxxxxx & Xxxxx LLC.
ARTICLE IV
PRE-CLOSING COVENANTS
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4.1 Resignations. At the Closing, the Seller shall cause Xxxxxx X.
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Himmelrich, Sr. and Xxxxxx X. Plant, to tender their resignations as directors
of the Company.
4.2 Consents and Approvals.
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(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 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
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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
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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 Seller 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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5.2 Performance of Obligations The Seller shall have performed all
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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
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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, 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
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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 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:
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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.
ARTICLE VI
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
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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
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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
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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
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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
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shall have been approved in accordance with the requirements of the CSA and PUC
Law. If applicable, the waiting period
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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
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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 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
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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 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
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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
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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 (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
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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
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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
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9.1 Termination. This Agreement may be terminated (i) by the mutual
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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
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Agreement shall survive the Closing.
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9.3 Expenses. Except as otherwise specifically provided herein, each
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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
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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
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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
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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
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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,
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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
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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
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included for convenience purposes only and shall not affect the interpretation
of this Agreement.
9.11 Notice. All notices, requests, demands and other communications
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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:
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
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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: 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,
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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.
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9.14 Waiver. No waiver of a breach or violation of any provision of
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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
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expressed herein are cumulative and not exclusive of any rights and remedies
otherwise available.
9.16 Gender and Pronouns. Throughout this Agreement, the masculine
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shall include the feminine and neuter and the singular shall include the plural
and vice versa as the context requires.
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9.17 Entire Agreement. This document constitutes the entire
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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
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by the laws of the State of Hawaii.
9.19 Counterparts. This Agreement may be executed in two or more
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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
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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:
XXXXX XXXXXXXX FAMILY FOUNDATION, INC.
a Maryland corporation
By: /s/ Xxxxxx Xxxxxxxx
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Its Vice President
BUYER:
/s/ Xxxxxxx X. Case
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XXXXXXX X. CASE
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