UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MAUI LAND & PINEAPPLE COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
HAWAII 99-0107542
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
120 Kane Street, P. O. Box 187, Kahului, Hawaii 96733-6687
(Address of Principal Executive Offices) (Zip Code)
MAUI LAND & PINEAPPLE COMPANY, INC.
2003 STOCK AND INCENTIVE COMPENSATION PLAN
(Full Name of Plan)
Adele H. Sumida
Corporate Secretary
Maui Land & Pineapple Company, Inc.
P. O. Box 187
Kahului, Hawaii 96733
(Name and Address of Agent For Service)
(808) 877-3351
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Charles A. Sweet, Esq.
Carlsmith Ball, LLP
1001 Bishop Street
Pacific Tower, Suite 2200
Honolulu, Hawaii 96813
(808) 523-2500
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Maximum Maximum
Class of Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered(1) Share(2) Price Fee
Common Stock 500,000 shares $33.75 $16,873,900 $2,137.92
(1) The Maui Land & Pineapple Company, Inc. 2003 Stock and
Incentive Compensation Plan (the "Plan") authorizes the issuance
of a maximum of 500,000 shares of common stock, no par value
("Common Stock"), all of which are being registered hereunder.
85,000 shares of Common Stock authorized to be issued under the
Plan are subject to outstanding options granted under the Plan
and 415,000 are available for future grants thereunder.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the
purpose of calculating the amount of the registration fee. The
proposed maximum offering price per share was determined by
calculating the weighted average price of (i) the 85,000 shares
of Common Stock being offered under outstanding options at a
weighted average exercise price of $27.39, and (ii) the 415,000
shares of Common Stock being offered at an exercise price of
$35.05 based on the average of the high and low price per share
of the Common Stock on February 13, 2004, as reported by the
American Stock Exchange.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Maui Land &
Pineapple Company, Inc. (the "Company") with the Securities and
Exchange Commission are incorporated by reference in this
Registration Statement:
- Annual Report on Form 10-K for the fiscal year ended
December 31, 2002, filed with the SEC on March 26, 2003.
- Current Report on Form 8-K, filed with the SEC on May 7,
2003.
- Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2003, filed with the SEC on May 8, 2003.
- Current Report on Form 8-K, filed with the SEC on June 11,
2003.
- Current Report on Form 8-K, filed with the SEC on August 8,
2003.
- Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2003, filed with the SEC on August 13, 2003.
- Current Report on Form 8-K, filed with the SEC on October 3,
2003.
- Current Report on Form 8-K, filed with the SEC on
November 5, 2003.
- Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2003, filed with the SEC on November 13, 2003.
- Description of the Common Stock contained in Amendment No. 1
to Registration Statement on Form 8-A/A, filed with the SEC on
January 5, 2004, and all amendments and reports subsequently
filed for the purpose of updating that description.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities and Exchange
Act of 1934 prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of the filing of
such documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Company's Restated Articles of Association, as amended
(the "Articles"), include a provision that provides that the
Company will indemnify each person who is made or is threatened
to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of
the fact that he is or was a director, officer, employee or agent
of the Company or is or was serving at the request of the Company
as a director, officer, employee or agent of the Company or any
division of the Company, or is or was serving as at the request
of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise (an "Indemnified Party"), against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him if he acted in good faith
and in a manner he reasonably believed to be in or not apposed to
the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The Articles also provide that the
Company shall indemnify each person who is or is threatened to be
made a party to any action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact
that he is or was an Indemnified Party against expenses
(including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with the defense or settlement of such matter if he acted in good
faith and in a manner he reasonably believed to be in or not
apposed to the best interests of the Company, and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which he has been adjudged liable for gross
negligence or willful misconduct in the performance of his duty
to the Company unless and only to the extent that the court in
which the action or suit was brought determines that, despite the
adjudication of liability but in view of all the circumstances ,
he is fairly and reasonably entitled to indemnity for expenses
which the court deems to be proper. To the extent that an
Indemnified Party has been successful on the merits or otherwise
in defense of a claim, issue or matter, the required
indemnification is mandatory. Any other required indemnification
is mandatory unless a majority vote of a quorum of disinterested
directors, or (if such a quorum is not obtainable or if such a
quorum directs) independent legal counsel, or (if such a quorum
so directs) a majority vote of the stockholders, determines that
the Indemnified Party failed to meet the applicable standard of
conduct. These provisions are not exclusive of any other rights
to which an Indemnified Party may be entitled.
The Articles also include a provision eliminating the
personal liability to the Company of any director, officer,
employee or agent of the Company and any person serving at the
request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise, and any heir, executor or administrator for
such a person, for any loss or damage if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, unless with respect to an
action or suit by or in right of the Company to procure a
judgment in its favor he has been adjudged to be liable for gross
negligence or willful misconduct in the performance of his duty
to the Company.
The Company maintains a standard directors and officers
liability insurance policy that will reimburse the Company for
payments it may make in indemnification of directors and officers
and pay other expenses, counsel fees, settlements, judgments or
costs arising from proceedings involving any director or officer
of the Company in his capacity as such, subject to certain
limitations and exclusions.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
3 (i) Restated Articles of Association, as of February 24,
2000, incorporated by reference from Exhibit 3(i)
to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, as filed with the
SEC on March 24, 2000.
3.1 (i) Articles of Amendment to Restated Articles of
Association, filed December 11, 2003, incorporated by
reference from Exhibit 3.1(i) to Amendment No. 1 to
Registration Statement on Form 8-A/A, as filed with
the SEC on January 5, 2004.
3 (ii) Amended Bylaws of the Company, incorporated by
reference from Exhibit 3(ii) to Amendment No. 1 to
Registration Statement on Form 8-A/A, as filed with the
SEC on January 5, 2004.
4.1 Maui Land & Pineapple Company, Inc. 2003 Stock and
Incentive Compensation Plan, incorporated by reference
from the Appendix B to the Definitive Proxy Statement
on Schedule 14A filed with the SEC on November 10,
2003.
5.1 Opinion of Carlsmith Ball LLP regarding legality
of securities being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Carlsmith Ball LLP (included in Exhibit
5.1).
24.1 Power of Attorney (included on page 8).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act
that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement related to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
said Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on
Form S-8 and has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Kahului, State of Hawaii on this
18th day of February, 2004.
MAUI LAND & PINEAPPLE COMPANY, INC.
By: /S/ DAVID C. COLE
David C. Cole
President & Chief Executive Officer
Power of Attorney
Each person whose signature appears below hereby constitutes and
appoints each of David C. Cole and Paul J. Meyer, jointly and
severally, with full power to act without the other, as such
person's true and lawful attorney-in-fact and agent, each with
full power of substitution, for the undersigned and in the
undersigned's name, place and stead, in any and all capacities,
to sign any and all amendments and post-effective amendments to
this registration statement, and to file the same with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of
1933, granting unto said attorney-in-fact full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or any substitute therefore, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of
1933, this Registration Statement on Form S-8 has been signed
below by the following persons on behalf of the Registrant and in
the capacities and on the dates indicated.
By /S/ DAVID A. HEENAN Date February 18, 2004
David A. Heenan
Chairman of the Board
By /S/ DAVID C. COLE Date February 18, 2004
David C. Cole
President, Chief Executive
Officer & Director
By /S/ JOHN H. AGEE Date February 18, 2004
John H. Agee
Director
By /S/ RICHARD H. CAMERON Date February 18, 2004
Richard H. Cameron
Director
By /S/ RANDOLPH G. MOORE Date February 18, 2004
Randolph G. Moore
Director
By /S/ CLAIRE C. SANFORD Date February 18, 2004
Claire C. Sanford
Director
By /S/ FRED E. TROTTER III Date February 18, 2004
Fred E. Trotter III
Director
By /S/ PAUL J. MEYER Date February 18, 2004
Paul J. Meyer
Executive Vice President/Finance
(Principal Financial Officer)
By /S/ ADELE H. SUMIDA Date February 18, 2004
Adele H. Sumida
Controller & Secretary
(Principal Accounting Officer)