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.
RESTRICTED SHARE AGREEMENT WITH DAVID C. COLE
(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: Cary K. Hyden, Esq.
Latham & Watkins LLP
650 Town Center Drive, 20th floor
Costa Mesa, CA 92626
(714) 540-1235
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Each To Be Maximum Maximum Registration
Class of Registered Offering Aggregate Fee
Securities (1) Price Per Offering
To Be Share (2) Price(2)
Registered
Common 100,000 $40.86 $4,086,000 $480.92
Stock, no shares
par value
(1) Represents 100,000 shares of common stock, no par value, of
the Registrant ("Common Stock") issued to David C. Cole pursuant
to the Restricted Share Agreement between the Registrant and
David C. Cole. Pursuant to Rule 416(a) of the Securities Act of
1933, as amended, this Registration Statement also covers any
additional shares of Common Stock that may become issuable
pursuant to the Agreement, by reason of stock splits, stock
dividends or other capital adjustments, to preserve, but not
increase, the economic value and consequences of the Agreement.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and Rule 457(h) under
the Securities Act of 1933, as amended, based on the average of
the high and low prices of the Common Stock recorded on the
American Stock Exchange on December 27, 2004.
EXPLANATORY NOTE
This registration statement contains two parts. The first
part contains a reoffer prospectus prepared in accordance with
Part I of Form S-3 under the Securities Act. Our reoffer
prospectus has been prepared pursuant to Instruction C of Form S-
8, in accordance with the requirements of Part I of Form S-3, and
may be used for reofferings and resales on a continuous or
delayed basis in the future of up to an aggregate of 100,000
shares of common stock issued pursuant to the Restricted Share
Agreement between the Registrant and its Chairman, President &
Chief Executive Officer. These shares are subject to certain
vesting requirements, forfeiture and resale restrictions as
described in the Restricted Share Agreement. The second part
contains information required in the registration statement under
Part II of Form S-8.
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified by Part I
of Form S-8 are not being filed with the Securities and Exchange
Commission as permitted by the Note in Part I of Form S-8. This
information will be sent or given to Mr. Cole as specified by
Rule 428 under the Securities Act. These documents and the
documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this registration
statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
MAUI LAND & PINEAPPLE COMPANY, INC.
100,000 Shares
Common Stock
________________
REOFFER PROSPECTUS
________________
This prospectus relates to an offering of up to 100,000
shares of our common stock, or the Shares, that have been issued
to David C. Cole, the "Selling Shareholder", pursuant to the
Restricted Share Agreement between the Selling Shareholder and
the Company (we refer to this agreement as the Restricted Share
Agreement), which has been executed pursuant to the Employment
Agreement between the Selling Shareholder and the Company. The
Shares that have been issued to the Selling Shareholder
constitute "control securities." The 100,000 shares of common
stock issued pursuant to the Restricted Share Agreement are
subject to certain forfeiture and resale restrictions as further
described in the Restricted Share Agreement. These requirements
must be satisfied and restrictions must lapse prior to the sale
of such Shares pursuant to this prospectus.
The Shares being registered are being offered solely for the
account of the "Selling Shareholder," as further described on
page 10 of this prospectus. We will not receive any proceeds
from the sale of the Shares offered under this prospectus.
The Shares may be offered in transactions on the American
Stock Exchange, in negotiated transactions, or through a
combination of methods of distribution, at prices relating to the
prevailing market prices, at negotiated prices or at fixed prices
that may be changed. Please see "Plan of Distribution" on page
10.
Our common stock is quoted on the American Stock Exchange,
or AMEX, under the symbol "MLP". On December 21, 2004, the last
sale price of our common stock, as reported on AMEX, was $41.75
per share.
An investment in our common stock involves a high degree of
risk. You should purchase our common stock only if you can afford
a loss of all or a portion of your investment.
You should consider the risks discussed in "Risk Factors"
beginning on page 5 of this prospectus before you invest in our
common stock.
___________________________________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR PASSED ON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
___________________________________________
The date of this prospectus is December 28, 2004
___________________________________________
Maui Land & Pineapple Company, Inc.
120 Kane Street, P. O. Box 187
Kahului, Hawaii 96733-6687
(808) 877-3351
TABLE OF CONTENTS
SUMMARY 5
RISK FACTORS 5
THE COMPANY 8
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE 9
DETERMINATION OF OFFERING PRICE 10
SELLING SHAREHOLDER 10
PLAN OF DISTRIBUTION 10
USE OF PROCEEDS 12
LEGAL MATTERS 12
EXPERTS 12
You should rely only on the information contained in this
prospectus and not on any unauthorized information or
representations. Neither Maui Land & Pineapple Company, Inc. nor
any of its representatives has authorized anyone to provide
prospective investors with any information or to represent
anything not contained in or incorporated by reference in this
prospectus. Furthermore, no dealer, salesperson or other person
is authorized to give any information or to represent anything
not contained in or incorporated by reference in this prospectus.
This prospectus is an offer to sell only the shares offered by
this prospectus, but only under the circumstances and in
jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of its date,
regardless of the time of the delivery of this prospectus or any
sale of these securities.
SUMMARY
This prospectus has been prepared pursuant to General
Instruction C of Form S-8, in accordance with the requirements of
Part I of Form S-3 under the Securities Act solely with regard to
the resale of the Shares by the Selling Shareholder.
RISK FACTORS
Our business is subject to a number of risks, some of which
are discussed below. Before deciding to invest in our company or
to maintain or increase your investment, you should carefully
consider the risks described below, in addition to the other
information contained in our Annual Report on Form 10-K, our
Quarterly Reports on 10-Q; and in our other filings with the
Commission. The risks and uncertainties described below are not
the only ones that we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial
may also affect our business and results of operations. These
risks could adversely affect the market price for our common.
Our common stock is thinly traded and the market price of our
common shares has experienced significant volatility and could
decline considerably.
Our common stock has experienced long-term price volatility.
Over the five-year period ending December 1, 2004, the closing
price of our common stock ranged from $8.69 per share to
$39.17 per share. During the last ninety days, daily volume for
our common stock has ranged from 0 shares traded to 19,200 shares
traded with an average of approximately 3,500 shares traded on a
daily basis. Such price and volume volatility may occur in the
future. Factors that could affect the trading price and volume
of the Company's common stock include: macroeconomic conditions;
actual or anticipated fluctuations in quarterly results of
operations; government approvals and disapprovals of development
projects; and fluctuations in the price of pineapple and general
trends in our industry. The fluctuations in price and volume for
our stock do not always follow financial performance or public
announcements regarding our business.
We are dependent on certain key personnel.
We are currently dependent upon the ability and experience
of certain key management employees. We believe that the success
of the Company depends on the continued service of these key
people and there can be no assurance that we will be able to
retain their services. We do not currently carry key man
insurance on any of these individuals, and loss of one or more
can have a material adverse effect on financial results.
Real Estate Investments are subject to numerous risks.
We are subject to the risks that generally relate to
investments in real property because we develop and sell real
property, primarily for residential use. Also, beginning in
August of 2004, we have a 51% ownership interest in the Kapalua
Bay Hotel. When interest rates increase, the cost of acquiring,
developing, expanding or renovating real property increases and
real property values may decrease as the number of potential
buyers decreases. Similarly, as financing becomes less
available, it becomes more difficult both to acquire and to sell
real property. Under eminent domain laws, governments can take
real property. Sometimes this taking is for less compensation
than the owner believes the property is worth. Any of these
factors could have a material adverse impact on our results of
operations or financial condition. In addition, equity real
estate investments are difficult to sell quickly and we may not
be able to adjust our portfolio of properties quickly in response
to economic or other conditions.
If we are unable to complete our land development projects within
our forecasted timing and budgeting, or at all, our financial
results may be negatively affected.
We intend to develop resort properties, as suitable
opportunities arise, taking into consideration the general
economic climate. New project development has a number of risks,
including risks associated with:
- construction delays or cost overruns that may increase
project costs;
- receipt of zoning, occupancy and other required governmental
permits and authorizations;
- development costs incurred for projects that are not pursued
to completion;
- earthquakes, hurricanes, floods or fires that could
adversely impact a project;
- defects in design or construction that may result in
additional costs to remedy or require all or a portion of a
property to be closed during the period required to rectify the
situation;
- ability to raise capital;
- governmental restrictions on the nature or size of a project
or timing of completion; and
- potential lack of adequate building/construction capacity
for large development projects.
If any development project is not completed on time or within
budget, our financial results may be materially affected.
If we are unable to obtain required land use entitlements at
reasonable costs, or at all, our operating results would be
adversely affected.
Our financial results are highly dependant on our real
estate development business segment. The financial performance
of our real estate development segment is closely related to our
success in obtaining land use entitlements for proposed
development projects. Land entitlement is a lengthy process of
obtaining the required county, state and federal approvals to
proceed with planned development and use of land. The
entitlement process requires that we satisfy all conditions and
restrictions imposed in connection with such governmental
approvals, including among other things, construction of
infrastructure improvements, payment of impact fees, restrictions
on permitted uses of the land and provision of affordable
housing. Obtaining all of the necessary entitlements to develop
a parcel of land is often times difficult, costly and may take
several years, or more, to complete. In some situations, we may
be unable to obtain the necessary entitlements to proceed with a
real estate development or we may be required to alter our plans
for the development.
If the planning and construction of infrastructure in Maui is not
improved, particularly in the area of transportation, this could
result in additional difficulty or the inability of the Company
to move forward with its planned development projects, which
could negatively impact our financial results.
The roads and highways in Maui are inadequate to serve the
residents and visitors. Planning and construction of this
infrastructure has not been done with a long-term perspective and
in coordination with the needs of the community. The result has
been that heavily traveled highways in Maui are congested and a
comprehensive planning approach to co-locating housing, schools
and employment has not been adopted by the planning authorities.
This lack of comprehensive planning can result in continued
infrastructure stress in Maui and can be a major impediment to
future development. Infrastructure stress can also lead to a
deterioration of the visitor experience and the quality of life
for residents, which in turn can impact the Company's ability to
attract discriminating customers, employees, vendors and
contractors.
The historical price and market for luxury real estate on Maui
has been highly cyclical and if the market for luxury real estate
were to decrease, our operating results could be adversely
affected.
Our real estate development segment is focused primarily on
luxury real estate on Maui. The price and market for luxury real
estate on Maui has in the past been highly cyclical and we
believe that these cycles will continue based upon interest
rates, the popularity of Hawaii, the general condition of the
economy in the United States and Asia and the relationship of the
dollar to other foreign currencies. Furthermore, the highs and
lows in the market cycle can prevail for multiple years at a
time. During low periods of demand, real estate product may
remain in inventory for much longer than expected or be sold at
lower than expected returns, or even at a loss, which could
impair our liquidity and ability to proceed with additional land
development projects and negatively affect our operating results.
If we are unable to successfully compete with other developers of
luxury real estate on Maui, our financial results could be
materially affected.
Our real estate product faces competition from other luxury
resort real estate properties on Maui, and from other luxury
resort residential property in Hawaii and the mainland United
States. In many cases, our competitors are larger than we are
and have greater access to capital. If we are unable to compete
with these larger competitors, our financial results could be
materially affected.
If we cannot attract and retain skilled workers for our resort
operations, our financial results could be negatively impacted.
There is a potential lack of adequate skilled workers on Maui for
larger development projects.
Our three golf courses require a large number of course and
facility maintenance and operations workers; our hotel and villas
require housekeepers, food and beverage servers, front desk, and
other operational and hospitality workers. Overall, our resort
operations require a large number of workers to maintain the
quality and level of service that we strive to provide to our
customers. Our plans for development projects require that there
be adequate labor in all of the construction trades. The labor
market on Maui is very tight, with the labor premium in West Maui
being even greater than elsewhere on Maui. The cost and
insufficient supply of housing and the absence of adequate public
services, such as schools, continue to be an impediment to
attracting and retaining labor. If the Company and other Maui
businesses are unable to work with the government to allow for
the expansion of affordable housing and to implement plans to
provide a higher level of public services, including schools,
further development in West Maui could be severely restricted.
We may be subject to certain environmental regulations under
which we may have additional liability and experience additional
costs for land development.
Various federal, state, and local environmental laws,
ordinances and regulations regulate our properties and could make
us liable for the costs of removing or cleaning up hazardous or
toxic substances on, under, or in property we currently own or
operate or that we previously owned or operated. These laws
could impose liability without regard to whether we knew of, or
were responsible for, the presence of hazardous or toxic
substances. The presence of hazardous or toxic substances, or
the failure to properly clean up such substances when present,
could jeopardize our ability to develop, use, sell or rent the
real property or to borrow using the real property as collateral.
If we arrange for the disposal or treatment of hazardous or toxic
wastes, we could be liable for the costs of removing or cleaning
up wastes at the disposal or treatment facility, even if we never
owned or operated that facility. Certain laws, ordinances and
regulations, particularly those governing the management or
preservation of wetlands, coastal zones and threatened or
endangered species, could limit our ability to develop, use, sell
or rent our real property.
Our pineapple operations face significant competition from
companies with greater financial resources and from foreign
competition with lower cost structures.
The Company sells its products in competition with both foreign and Un
ited States companies. Our principal competitors are three
United States companies, Dole Food Company, Inc., Del Monte Food
Co., and Del Monte Fresh Produce Company, which produce
substantial quantities of pineapple products, a significant
portion of which is produced in Central America and Southeast
Asia. Other producers of pineapple products in Central America,
Thailand and Indonesia also are a major source of competition.
Producers of pineapple in foreign countries have substantially
lower labor cost than us.
The Company's marketing strategy is to compete based on the
premium quality of our fresh pineapple product and being the only
United States canner of pineapple. If we cannot compete
effectively with these larger companies and lower cost producers,
our financial results could be adversely affected.
One customer has provided a substantial portion of our canned
pineapple sales; the loss of this customer may have a material
adverse effect on our operating results.
The United States government represented approximately 30%
and 20% of our canned pineapple sales for the first nine months
of 2004 and for the full year 2003, respectively. It is
difficult to predict whether the United States government will
continue to represent such a significant portion of our canned
pineapple sales in the future, because we do not have a long-term
contract to supply pineapple to the government. If we were to
lose this customer, our operating results would be negatively
affected.
If we are unable to successfully compete with other producers of
fresh and canned pineapple, our financial results could be
materially affected.
The fresh and canned pineapple markets are highly
competitive. A decline in the price of pineapple or increases in
the price of fuel or packaging materials, could materially
increase our cost to produce pineapple. The growing, planting
and harvesting of our crops can be affected by adverse weather
conditions, thereby increasing costs and eroding profit margins.
Agricultural chemicals used in the past have resulted in
contingent liabilities that could result in future claims against
us.
Because we are located in Hawaii and therefore apart from the
mainland United States, we are more sensitive to certain economic
factors, which may adversely affect our operating results.
The real estate Development segment and the Resort
operations segment are dependent on attracting visitors to
Kapalua and to Maui and the state of Hawaii as a whole. Economic
factors that affect the number of visitors, their length of stay
or expenditure levels will affect our financial performance.
Factors such as the cost of energy, events in the airline
industry that affect passenger capacity or traveling cost, and
the threat or perceived threat of heightened terrorist activity
in the United States, could affect a potential visitors' choice
of vacation destination or second home location.
Our pineapple operations are dependent on ocean, surface and
airfreight to get canned and fresh pineapple to our customers on
the mainland United States. Increases in the cost of energy, and
other factors that affect the cost and reliability of ocean,
surface and airfreight will affect the financial results from our
pineapple operations.
THE COMPANY
Maui Land & Pineapple Company, Inc. is a Hawaii corporation,
the successor to a business organized in 1909. We consist of a
landholding and operating parent company and its principal
subsidiaries, including Maui Pineapple Company, Ltd. and Kapalua
Land Company, Ltd. The "Company," "we," or "us" as used herein,
refers to the parent and all of its subsidiaries.
We operate in three primary business segments:
- Pineapple-The Pineapple operating segment includes growing,
packing and processing, and marketing of canned and fresh
pineapple. The fruit grown by the Company principally consists
of three types of pineapple: Champaka (largely used for canning),
Hawaiian GoldTM (usually sold as fresh, whole fruit) and organic
pineapple, a new product sold as fresh whole fruit.
- Resort-The Resort segment consists of ongoing operations at
the Kapalua Resort in Maui, Hawaii. These operations include
three championship golf courses, a tennis facility, a vacation
rental program (The Kapalua Villas), a real estate sales office
(Kapalua Realty), ten retail outlets and Public Utilities
Commission regulated water and sewage transmission operations.
The Resort segment also includes the management of several
leases, including the ground lease for the Kapalua, Ritz-Carlton
Hotel.
- Development-The Development segment primarily includes the
Company's real estate entitlement, development, construction and
sales activities. We have approximately 1,500 acres of land in
Maui that are at various stages in the land entitlement process.
The Development segment also includes the Company's equity in
Kapalua Bay Holdings, LLC, the limited liability company that
owns the Kapalua Bay Hotel in Maui, Hawaii.
Our principal offices are located at 120 Kane Street,
Kahului, Hawaii 96733-6687, and our telephone number is (808)
877-3351.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We file annual, quarterly and current reports, proxy
statements and other information with the Securities and Exchange
Commission, or "SEC". You may read and copy any reports,
statements or other information that we have filed at the SEC's
public reference rooms. You may read and copy any document we
file with the SEC at its public reference facilities at 450 Fifth
Street, N.W., Washington, D.C. 20549. You may also obtain copies
of this information by mail from the public reference section of
the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, at prescribed rates. Please call the SEC at 1-800-SEC-0330
for further information on the operation of the public reference
facilities. Our SEC filings are also available to the public from
commercial document retrieval services and through the SEC's
EDGAR system at the web site maintained by the SEC at
www.sec.gov. You may inspect information that we file with the
American Stock Exchange at the offices of the American Stock
Exchange at 86 Trinity Place New York, NY 10006.
The SEC allows us to "incorporate by reference" the
information we file with the SEC, which means that we can
disclose important information to you by referring to the other
information we have filed with the SEC. The information that we
incorporate by reference is considered a part of this prospectus
and information that we file later with the SEC will
automatically update and supersede the information contained in
this prospectus. We incorporate by reference the following
documents we filed with the SEC pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended:
- Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, filed with the SEC on March 25, 2004.
- Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2004, June 30, 2004, and September 30, 2004.
- Current Reports on Form 8-K, filed with the SEC on August
31, 2004, September 7, 2004, September 29, 2004, and November 1,
2004.
- Amended Current Report on Form 8-K/A, filed with the SEC on
November 19, 2004.
- Proxy Statement filed on March 25, 2004.
- 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.
We are also incorporating by reference additional documents
that we may file with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of
this prospectus and before the offering of the securities
described in this prospectus is stopped. These documents include
periodic reports, such as annual reports on Form 10-K, quarterly
reports on Form 10-Q and current reports on Form 8-K, as well as
proxy statements. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
prospectus 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 superseded, to
constitute a part of this prospectus. Current Reports on Form 8-K
that we "furnish" to the SEC are not incorporated by reference
herein.
If you are a shareholder, we may have sent you some of the
documents incorporated by reference, but you can obtain any of
them through us or the SEC. Documents incorporated by reference
are available from us without charge, excluding all exhibits
unless we have specifically incorporated by reference the exhibit
in this prospectus. You may obtain documents incorporated by
reference in this prospectus by requesting them in writing or by
telephone from the us at:
Investor Relations
Maui Land & Pineapple Company, Inc.
120 Kane Street, P. O. Box 187
Kahului, Hawaii 96733-6687
(808) 877-3351
DETERMINATION OF OFFERING PRICE
The Selling Shareholder may sell the Shares from time to
time on the American Stock Exchange, or otherwise, at prices and
terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. See "Selling
Shareholder" and "Plan of Distribution."
SELLING SHAREHOLDER
The 100,000 Shares have been issued to the Selling
Shareholder pursuant to the Restricted Shares Agreement. The
Shares, however, are subject to certain vesting requirements,
forfeitures and resale restrictions. These requirements must be
satisfied and restrictions must lapse prior to any sale of such
Shares. The table below sets forth information with respect to
the beneficial ownership of our Common Stock by the Selling
Shareholder immediately prior to this offering and as adjusted to
reflect the sale of Shares pursuant to the offering. The table
assumes that the Selling Shareholder sells all of the Shares
offered by the Selling Shareholder in the offering. We are
unable, however, to determine the exact number of Shares that
will actually be sold or when or if these sales will occur.
Since October 15, 2003, the Selling Shareholder has served as our
President and Chief Executive Officer. Since December 2003, the
Selling Shareholder has served as our director, and since March
2004, he has served as the Chairman of our Board of Directors.
The Selling Shareholder's beneficial ownership after the
offering is less than 1% of our outstanding Common Stock.
Beneficial ownership assumes that all of the Shares offered are
sold.
Name Beneficial Shares to be Beneficial
Ownership Sold Ownership
Prior to After
Offering Offering
Number of Number of
Shares Shares
David C. Cole 183,332(1) 100,000 83,332
(1) Includes options covering 83,332 Shares that are
currently exercisable or exercisable within 60 days following
December 21, 2004.
PLAN OF DISTRIBUTION
The sale of the Shares offered in this prospectus by the
Selling Shareholder may be effected from time-to-time directly,
or by one or more broker-dealers or agents, in one or more
transactions on the American Stock Exchange or other exchanges on
which our common stock may be listed for trading, in negotiated
transactions, or through a combination of such methods of
distribution, at prices related to prevailing market prices, at
negotiated prices or at fixed prices, which may be changed. The
Selling Shareholder will act independently of us in making
decisions with respect to the timing, manner and size of each
sale. There is no assurance that the Selling Shareholder will
offer for sale or sell any or all of the Shares registered
pursuant to this prospectus.
We will not receive any proceeds from the Shareholder sale
of the Shares by the Selling Shareholder, but we have agreed to
pay the following expenses, estimated to be $15,000, for the
registration of the resale of the Shares:
- all registration and filing fees;
- fees and expenses for complying with securities or blue sky
laws, including reasonable fees and disbursements of counsel in
connection with blue sky qualifications; and
- the fees and expenses incurred in connection with listing
our common stock on each securities exchange on which our similar
securities issued are then listed.
We have no obligation to pay any underwriting fees,
discounts or commissions attributable to the sale of the Shares.
We also have no obligation to pay any out-of-pocket expenses of
the Selling Shareholder, or any agents who manage his accounts,
or any transfer taxes relating to the registration or sale of the
Shares.
The Shares may be sold from time to time to purchasers
directly by the Selling Shareholder. Alternatively, the Selling
Shareholder may from time to time offer the Shares through
dealers or agents, who may receive compensation in the form of
commissions from the Selling Shareholder and the purchasers of
the Shares for whom they may act as agent. The sale of the Shares
by the Selling Shareholder may be effected from time to time in
one or more negotiated transactions at negotiated prices or in
transactions on any exchange or automated quotation system on
which the securities may be listed or quoted. The Selling
Shareholder and any dealers or agents that participate in the
distribution of the Shares may be deemed to be underwriters
within the meaning of the Securities Act and any profit on the
sale of Shares by them and any commissions received by any such
dealers or agents might be deemed to be underwriting commissions
under the Securities Act.
The Shares offered in this prospectus are subject to certain
vesting requirements and performances before the Shares may be
sold or transferred. In general and without giving effect to
certain acceleration rights, not more than 25,000 Shares may vest
each year during the four year period covered by the agreement,
based in part on our previous fiscal year performance.
In connection with distribution of the Shares of common
stock covered by this prospectus:
- the Selling Shareholder may enter into hedging transactions
with broker-dealers;
- the broker-dealers may engage in short sales of the Shares
in the course of hedging the position they assume with the
Selling Shareholder;
- the Selling Shareholder may write non-traded options;
- the Selling Shareholder may enter into option or other
transactions with broker-dealers that involve the delivery of the
Shares to the broker-dealers, who may then resell or otherwise
transfer the Shares;
- the Selling Shareholder may also loan or pledge the Shares
to a broker-dealer and the broker-dealer may sell the Shares so
loaned or upon a default may sell or otherwise transfer the
pledged Shares.
Persons participating in the distribution of the Shares
offered by this prospectus may engage in transactions that
stabilize the price of our common stock. The anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales
of common stock in the market and to the activities of the
Selling Shareholder.
In order to comply with the securities laws of various
states, the Shares will not be sold in a particular state unless
the Shares have been registered or qualified for sale in such
state or an exemption from registration or qualification is
available and is complied with.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the
Shares by the Selling Shareholder, rather, the Selling
Shareholder will receive all sales proceeds directly.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed
upon for us by Cades Schutte LLP.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K for the year ended
December 31, 2003 have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their
reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
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, 2003, filed with the SEC on March 25, 2004.
- Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2004, filed with the SEC on May 11, 2004.
- Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2004, filed with the SEC on August 13, 2004.
- Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2004, filed with the SEC on November 12, 2004.
- Current Report on Form 8-K, filed with the SEC on
November 1, 2004.
- Amended Current Report on Form 8-K/A, filed with the SEC on
November 19, 2004.
- 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 or 15(d) of the Securities and Exchange
Act of 1934 after the date of this Registration Statement and
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.
A report furnished on Form 8-K under the Exchange Act of 1934
shall not be incorporated by reference into this Registration
Statement.
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 superseded, 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 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 opposed 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
opposed 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 shareholders, 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
5.1 Opinion of Cades Schutte LLP regarding legality of
the securities being registered.
10.1 Maui Land & Pineapple Company, Inc. Employment
Agreement with David Cole, dated October 6, 2003,
incorporated by reference to Exhibit 10.3(viii) to the
10-K for the fiscal year ended December 31, 2003.
10.2 Maui Land & Pineapple Company, Inc. Restricted
Share Agreement with David Cole, dated October 6, 2003,
incorporated by reference to Exhibit 10.3(x) to the 10-
K for the fiscal year ended December 31, 2003.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cades Schutte LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 16).
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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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 of 1933, 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 28th day of December, 2004.
MAUI LAND & PINEAPPLE COMPANY, INC.
By: /S/ DAVID C. COLE
David C. Cole
Chairman, President & Chief
Executive Officer
Power of Attorney
Each person whose signature appears below hereby constitutes and
appoints each of David C. Cole and Fred W. Rickert, 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 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 C. COLE Date DECEMBER 23, 2004
David C. Cole
Chairman of the Board, President and
Chief Executive Officer
(Principal Executive Officer)
By /S/ JOHN H. AGEE Date DECEMBER 28, 2004
John H. Agee
Director
By /S/ RICHARD H. CAMERON Date DECEMBER 28, 2004
Richard H. Cameron
Director
By /S/ WALTER A. DODS, JR. Date DECEMBER 28, 2004
Walter A. Dods, Jr.
Director
By /S/ THOMAS M. GOTTLIEB Date DECEMBER 28, 2004
Thomas M. Gottlieb
Director
By /S/ DAVID A. HEENAN Date DECEMBER 28, 2004
David A. Heenan
Director
By /S/ KENT T. LUCIEN Date DECEMBER 28, 2004
Kent T. Lucien
Director
By /S/ DUNCAN MACNAUGHTON Date DECEMBER 28, 2004
Duncan MacNaughton
Director
By /S/ FRED E. TROTTER III Date DECEMBER 28, 2004
Fred E. Trotter III
Director
By /S/ FRED W. RICKERT Date DECEMBER 28, 2004
Fred W. Rickert
Vice President/Chief Financial Officer
(Principal Financial Officer)
By /S/ ADELE H. SUMIDA Date DECEMBER 28, 2004
Adele H. Sumida
Controller & Secretary
(Principal Accounting Officer)