-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JCzA2HpeDcgceEfgdsMupo3YiIqDIzT33pHuvEHTe8nsHQr9flxTT+o7CbuQpM3M 2tfZr+4936OnCIK/DJBQPg== 0000928385-99-002766.txt : 19990909 0000928385-99-002766.hdr.sgml : 19990909 ACCESSION NUMBER: 0000928385-99-002766 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990908 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MAUI LAND & PINEAPPLE CO INC CENTRAL INDEX KEY: 0000063330 STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FRUITS, VEG & PRESERVES, JAMS & JELLIES [2033] IRS NUMBER: 990107542 STATE OF INCORPORATION: HI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-06117 FILM NUMBER: 99707837 BUSINESS ADDRESS: STREET 1: PO BOX 187 STREET 2: 120 KANE ST CITY: KAHULUI MAUI STATE: HI ZIP: 96732 BUSINESS PHONE: 8088773351 MAIL ADDRESS: STREET 1: PO BOX 187 CITY: KAHULUI STATE: HI ZIP: 96732 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CASE STEPHEN M CENTRAL INDEX KEY: 0001094581 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O STEPHEN CASE FOUNDATION STREET 2: 1650 TYSONS BLVD STE 610 CITY: MCLEAN STATE: VA ZIP: 22102 BUSINESS PHONE: 2028571708 MAIL ADDRESS: STREET 1: C/O STEPHEN CASE FOUNDATION STREET 2: 1650 TYSONS BLVD STE 610 CITY: MCLEAN STATE: VA ZIP: 22102 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 MAUI LAND & PINEAPPLE COMPANY, INC. ------------------------------------------------ (NAME OF ISSUER) COMMON STOCK ------------------------------------------------ (TITLE OF CLASS OF SECURITIES) 577345-10-1 ------------------------------------------------ (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 ------------------------------------------------ (NAME, ADDRESS, TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS) August 31, 1999 ------------------------------------------------ (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. / / SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. PAGE 1 OF 1 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Stephen M. Case - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [_] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 PF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 US - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -2,962,036- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY -0- ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -2,962,036- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 -0- - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 -2,962,036- - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 -41.2%- - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 IN - ------------------------------------------------------------------------------ *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. 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. 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 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 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. 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 --------------------- (Date) /s/ Stephen M. Case --------------------- (Signature) Stephen M. Case --------------------- (Name) EX-1 2 EXHIBIT 1 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 --------------------------- 1.1 Purchase of the Shares from the Sellers. On the terms and --------------------------------------- subject to the conditions set forth herein, the Sellers shall sell to the Buyer, and the Buyer shall purchase from the Sellers, all of the Shares. 1.2 Purchase Price. In consideration for the Shares, the Buyer shall -------------- pay the Sellers the sum of Three Million Eight Hundred Seventy Two Thousand Three Hundred Ninety Two and No/100 Dollars ($3,872,392.00)(the "Purchase Price"), which represents a price of $13.25 per share, in cash or immediately available funds at Closing (as defined herein). ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLERS --------------------------------------------- The Sellers hereby represent and warrant to the Buyer as follows: 2.1 Authorized Capital Stock. Based solely on the Company proxy ------------------------ statement dated April 2, 1999, the number of issued and outstanding shares of common stock of the Company as of March 8, 1999, is 7,188,500, and the Shares represent approximately 4.07% of the Company's issued and outstanding shares of common stock. To the Sellers' knowledge, the information set forth in the Company's proxy statement dated April 2, 1999 regarding the number of outstanding shares on a fully diluted basis is correct. The Shares have been duly authorized and validly issued and are fully paid and nonassessable. 2.2 Ownership of Shares. The Sellers own the Shares free and clear ------------------- of any and all covenants, conditions, restrictions, voting trust arrangements, pledges, liens, security interests, charges, encumbrances, options and adverse claims or rights whatsoever. The Shares constitute all of the shares of common stock of the Company owned by the Sellers. 2.3 Organization. Each of the Sellers is a corporation duly ------------ organized, validly existing and in good standing under the laws of the State of Maryland. 2.4 Authority. Each of the Sellers has full corporate power and --------- authority to execute, deliver and perform its obligations under this Agreement and consummate the transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement by the Sellers and the consummation by the Sellers of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Sellers. 2.5 Enforceability. This Agreement has been duly executed and -------------- delivered by the Sellers and constitutes a legal, valid and binding obligation of the Sellers, enforceable against them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors generally or the application of general principles of equity, regardless of whether in a proceeding at law or in equity. 2.6 No Conflict or Breach. The execution, delivery and performance --------------------- of this Agreement and the consummation by the Sellers of the transactions contemplated hereby will not conflict with, result in a breach of, or constitute a default under or violation of any of the terms, conditions or provisions of: (i) any note, mortgage, agreement or other instrument or obligation to which the Foundation or 300 Corp. is a party or by which the Foundation or 300 Corp. or the Shares may be bound or subject, (ii) any judgment, order, writ, injunction or decree of any court or governmental authority applicable to the Foundation or 300 Corp. or the Shares, (iii) the Articles of Incorporation, Bylaws or other governing documents of the Foundation or 300 Corp.; or (iv) any law, statute, order, rule or regulation of any governmental authority applicable to the Foundation or 300 Corp. or the Shares. 2.7 Consents. No consent or approval of, or declaration, filing or -------- registration with, any non-governmental third party or any governmental authority is required to permit the execution, delivery and performance of this Agreement by the Sellers or the consummation of the transactions contemplated hereby, other than the consents and approvals set forth in Section 4.2. 2.8 No Broker or Finder. The Sellers have not had any discussions ------------------- with, negotiated with, been represented by or employed any broker or finder or incurred any liability for any brokerage fees, commission or finder's fees to any individual or entity in connection with this Agreement or any of the transactions contemplated hereby. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE BUYER ------------------------------------------- The Buyer hereby represents and warrants to the Sellers the following: 3.1 Enforceability. This Agreement has been duly executed and -------------- delivered by Buyer and constitutes a legal, valid and binding obligation of the Buyer, enforceable against him in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors generally or the application of general principles of equity, regardless of whether in a proceeding at law or in equity. 3.2 No Conflict or Breach. The execution, delivery and performance --------------------- of this Agreement and the consummation by the Buyer of the transactions contemplated hereby will not conflict with, result in a breach of, or constitute a default under or violation of any of the terms, conditions or provisions of: (i) any note, mortgage, agreement, or other instrument or obligation to which the Buyer is a 2 party or by which the Buyer may be bound, (ii) any judgment, order, writ, injunction or decree of any court or governmental authority applicable to the Buyer, or (iii) any law, statute, order, rule or regulation of any governmental authority applicable to the Buyer. 3.3 No Broker or Finder. The Buyer has not had any discussions with, ------------------- negotiated with, been represented by or employed any broker or finder or incurred any liability for any brokerage fees, commission or finder's fees to any individual or entity in connection with this Agreement or any of the transactions contemplated hereby, other than Hambrecht & Quist LLC. ARTICLE IV PRE-CLOSING COVENANTS --------------------- 4.1 Consents and Approvals. ---------------------- (a) The Sellers and the Buyer shall cooperate and exercise their best efforts to obtain, as quickly as reasonably possible, all necessary consents and approvals necessary to consummate the transactions contemplated hereby, including the approval of the Buyer's acquisition of the Shares pursuant to the Hawaii Control Share Acquisition statutes, Hawaii Revised Statutes 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 ------------------------ intended to give the Buyer any voting or investment power over or beneficial ownership of the Shares prior to Closing. The Sellers shall retain all rights to receive any dividends declared by the Company prior to the Closing and all voting power represented by the Shares. ARTICLE V CONDITIONS TO BUYER'S OBLIGATION TO CLOSE ----------------------------------------- The obligations of the Buyer to complete the Closing under this Agreement are subject to the fulfillment of the following conditions: 5.1 Accuracy of Representations and Warranties. The representations ------------------------------------------ and warranties of the Sellers shall be true, correct and complete as of the date of this Agreement and as of the date of the Closing. 3 5.2 Performance of Obligations. The Sellers shall have performed all -------------------------- the obligations required to be performed by the Sellers at or prior to the Closing. 5.3 No Action or Proceeding. No action or proceeding shall have been ----------------------- brought or threatened to prevent, or to seek damages by reason of, the execution, delivery and performance of this Agreement or the consummation of any of the transactions contemplated hereby. No governmental authority shall have claimed that any transaction contemplated hereby constitutes a violation of any law, rule or regulation, or gives rise to liability on the part of the Buyer. 5.4 Certain Approvals. The acquisition of the Shares by the Buyer ----------------- shall have been approved in accordance with the requirements of the CSA and the PUC Law, and all other consents and approvals necessary to consummate the transactions contemplated hereby shall have been received by the Buyer. If applicable, the waiting period imposed under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the regulations promulgated thereunder shall have expired or been terminated. 5.5 Absence of Change. Between the date hereof and the Closing: ----------------- (a) There shall be no material change made to the Company's Articles of Incorporation or Bylaws, which would, in the reasonable exercise of the Buyer's judgment, adversely affect the Buyer's rights as the owner of the Shares or the value of the Shares, except as agreed by the Buyer; (b) There shall be no material change in the number of issued and outstanding shares of the Company on a fully diluted basis and no material change in the capital structure of the Company; and (c) There shall be no material adverse change in the financial condition, results of operations, assets, liabilities, prospects or business of the Company, and no event or condition shall occur which materially affects the financial condition, results of operations, prospects, assets, liabilities or business of the Company in an adverse manner. 5.6 Harry Weinberg Family Foundation Shares. The Buyer shall have --------------------------------------- purchased all of the shares of the Company's common stock held by the Harry Weinberg Family Foundation, Inc., a Maryland corporation. ARTICLE VI CONDITIONS TO SELLERS' OBLIGATION TO CLOSE ------------------------------------------ The obligation of the Sellers to complete the Closing under this Agreement is subject to fulfillment to the following conditions: 6.1 Accuracy of Representations and Warranties. The representations ------------------------------------------ and warranties of the Buyer shall be true, correct and complete as of the date of this Agreement and as of the date of the Closing. 6.2 Performance of Obligations. The Buyer shall have performed all -------------------------- the obligations required to be performed by the Buyer at or prior to the Closing. 6.3 No Action or Proceeding. No action or proceeding shall have been ----------------------- brought or threatened to prevent, or to seek damages by reason of, the execution and delivery of this Agreement or the consummation of any of the transactions contemplated hereby; no governmental authority shall have claimed that any transaction contemplated hereby constitutes a violation of any law, rule or regulation, or gives rise to liability on the part of the Sellers. 4 6.4 Certain Approvals. The acquisition of the Shares by the Buyer ----------------- shall have been approved in accordance with the requirements of the CSA and PUC Law. If applicable, the waiting period imposed under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the regulations promulgated thereunder shall have expired or been terminated. ARTICLE VII CLOSING ------- 7.1 Place and Time. -------------- (a) The closing of the transactions contemplated by this Agreement (the "Closing") shall take place within ten (10) days after the date when all of the consents and approvals necessary to consummate the subject transactions have been obtained, or such later date as may be mutually agreed upon by the parties (the "Closing Date"); provided that the Closing shall occur no later than October 31, 1999. If the Closing does not occur by October 31, 1999, either party shall have the right to terminate this Agreement by delivery of written notice of termination to the other party, if the party delivering such notice is not in breach of its obligations under this Agreement as of the date of delivery of such notice. (b) The Closing shall occur at the offices of Hambrecht and Quist, LLC ("H&Q"), One Bush Street, San Francisco, California 94104, or such other place as is mutually agreed upon by the parties. 7.2 Delivery by the Sellers. At the Closing, the Sellers shall ----------------------- deliver the following documents to the Buyer: (i) A certificate representing all of the Shares, free and clear of liens or encumbrances, duly endorsed in blank for transfer; (ii) Certificates of good standing for the Sellers issued on a recent date by the Secretary of the State of Maryland; (iv) Any other documents or instruments reasonably required to be delivered by the Sellers to consummate the transactions contemplated hereby. 7.3 Delivery by the Buyer. At the Closing, the Buyer shall deliver to --------------------- the Sellers: (i) The Purchase Price as set forth in Section 1.2 herein; and (ii) Any other documents or instruments reasonably required from the Buyer to consummate the transactions contemplated hereby. ARTICLE VIII POST-CLOSING COVENANTS ---------------------- 8.1 Price Protection. ---------------- (a) In the event that the Buyer sells any of the Shares within the first twelve (12) months after the Closing Date (the "First Year Period") or executes a binding contract to sell any of the Shares within the First Year Period and anytime thereafter sells such Shares pursuant to such contract, then the Buyer agrees to pay to the Sellers, as additional consideration for the Shares, an amount equal to the two-thirds of the gain realized by the Buyer upon the sale of such Shares, if any. 5 (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 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 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 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 EX-2 3 EXHIBIT 2 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. 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 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 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 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 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 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 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 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 EX-3 4 EXHIBIT 3 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. 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 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 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 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 (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 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 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 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 -----END PRIVACY-ENHANCED MESSAGE-----