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.
STOCK OPTION AGREEMENT FOR DAVID 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:
Jonn R. Beeson, Esq.
Latham & Watkins
650 Town Center Drive, 20th Floor
Costa Mesa, Ca 92626
(714) 540-1235
Total Pages 9
Exhibit Index on Page 5
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered(1) Share(2) Price Fee
Common Stock 200,000 shares $19.70 $3,940,000 $499.20
(1) The Maui Land & Pineapple Company, Inc. Stock Option
Agreement for David Cole (the "Agreement") grants options to
purchase 200,000 shares of common stock, no par value, of the
Registrant ("Common Stock"), all of which are being registered
hereunder. This Registration Statement on Form S-8 shall also
cover any additional Common Stock that may become issuable
pursuant to this 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) Represents the actual option exercise price as stated in the
Agreement.
Proposed issuances to take place as soon after the
effective date of the Registration Statement as options
granted under the Agreement are exercised.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of the Form S-8 is not being
filed with or included in this Form S-8 (by incorporation by
reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission.
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.
- Current Report on Form 8-K, filed with the SEC on
August 31, 2004.
- Current Report on Form 8-K, filed with the SEC on
September 7, 2004.
- Current Report on Form 8-K, filed with the SEC on
September 29, 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 supersceded, 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 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
5.1 Opinion of Cades Schutte LLP regarding legality of
securities being registered.
10.1 Maui Land & Pineapple Company, Inc. Stock Option
Agreement for David Cole, dated October 6, 2003,
incorporated by reference to Exhibit 10.3(ix) to for
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 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.
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
18th day of October, 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 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 C. COLE Date 10/18/04
David C. Cole
Chairman of the Board, President &
Chief Executive Officer
(Principal Executive Officer)
By /S/ JOHN H. AGEE Date 10/18/04
John H. Agee
Director
By /S/ RICHARD H. CAMERON Date 10/18/04
Richard H. Cameron
Director
By /S/ WALTER A. DODS, JR. Date 10/18/04
Walter A. Dods, Jr.
Director
By /S/ THOMAS M. GOTTLIEB Date 10/18/04
Thomas M. Gottlieb
Director
By /S/ DAVID A. HEENAN Date 10/18/04
David A. Heenan
Director
By /S/ KENT T. LUCIEN Date 10/18/04
Kent T. Lucien
Director
By /S/ DUNCAN MACNAUGHTON Date 10/18/04
Duncan MacNaughton
Director
By /S/ FRED E. TROTTER III Date 10/18/04
Fred E. Trotter III
Director
By /S/ FRED W. RICKERT Date 10/18/04
Fred W. Rickert
Vice President/Chief Financial Officer
(Principal Financial Officer)
By /S/ ADELE H. SUMIDA Date 10/18/04
Adele H. Sumida
Controller & Secretary
(Principal Accounting Officer)