Exhibit 10.2


 


REGISTRATION RIGHTS AGREEMENT


 


REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of July 27, 2008, by and among Maui
Land & Pineapple Company, Inc., a Hawaiian corporation, with
headquarters located at P.O. Box 187, Kahului, Maui, Hawaii 96733-6687
(the “Company”), and the
undersigned buyers (each, a “Buyer”,
and collectively, the “Buyers”).


 


WHEREAS:


 


A.            In
connection with the Securities Purchase Agreement by and among the parties
hereto of even date herewith (the “Securities Purchase
Agreement”), the Company has agreed, upon the terms and subject to
the conditions set forth in the Securities Purchase Agreement, to issue and
sell to each Buyer senior secured convertible notes of the Company (the “Notes”), which will, among other things, be convertible into
the Company’s common stock, no par value (the “Common Stock”)
(as converted, collectively, the “Conversion Shares”)
in accordance with the terms of the Notes.


 


B.            In
accordance with the terms of the Securities Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “1933
Act”), and applicable state securities laws.


 


NOW,
THEREFORE, in consideration of the premises and the
mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
each of the Buyers hereby agree as follows:


 


1.     Definitions.


 


Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Securities Purchase Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


a.             “Additional Effective Date” means the date the Additional
Registration Statement is declared effective by the SEC.


 


b.             “Additional Effectiveness Deadline” means
the date which is sixty (60) calendar days after the earlier of the Additional
Filing Date and the Additional Filing Deadline or in the event that the
Registration Statement is subject to a full review by the SEC, ninety (90)
calendar days after the earlier of the Additional Filing Date and the
Additional Filing Deadline.


 


c.             “Additional Filing Date” means the date on which the
Additional Registration Statement is filed with the SEC.


 


d.             “Additional Filing Deadline” means if
Cutback Shares are required to be included in any Additional Registration
Statement, the later of (i) the date sixty (60) days after the date
substantially all of the Registrable Securities registered under the immediately preceding Registration
Statement are sold and (ii) the date six (6) months from the
Initial Effective Date or the most recent Additional Effective Date, as
applicable.


 


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e.             “Additional Registrable Securities” means, (i) any
Cutback Shares not previously included on a Registration Statement and (ii) any
capital stock of the Company issued or issuable with respect to the Notes, the
Conversion Shares or the Cutback Shares as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitations on conversion and/or redemption of the Notes.


 


f.              “Additional Registration Statement” means a
registration statement or registration statements of the Company filed under
the 1933 Act covering any Additional Registrable Securities.


 


g.             “Additional Required Registration Amount”
means any Cutback Shares not previously included on a Registration Statement,
all subject to adjustment as provided in Section 2(f), without regard to
any limitations on conversions and/or redemptions of the Notes.


 


h.             “Business Day” means any day other than
Saturday, Sunday or any other day on which commercial banks in the City of New
York are authorized or required by law to remain closed.


 


i.              “Closing Date” shall have the meaning set
forth in the Securities Purchase Agreement.


 


j.              “Cutback Shares” means any of the Initial Required
Registration Amount (without regard to clause (II) in the definition
thereof) or the Additional Required Registration Amount of Registrable
Securities not included in all Registration Statements previously declared
effective hereunder as a result of a limitation on the maximum number of shares
of Common Stock of the Company permitted to be registered by the staff of the
SEC pursuant to Rule 415.  For the
purpose of determining the Cutback Shares, in order to determine any applicable
Required Registration Amount, the Conversion Shares shall be excluded on a pro
rata basis among the Investors.


 


k.             “Effective Date” means the Initial Effective
Date and the Additional Effective Date, as applicable.


 


l.              “Effectiveness Deadline” means the Initial
Effectiveness Deadline and the Additional Effectiveness Deadline, as
applicable.


 


m.            “Filing Deadline” means the Initial Filing
Deadline and the Additional Filing Deadline, as applicable.


 


n.             “Initial Effective Date”
means the date that the Initial Registration Statement has been declared effective
by the SEC.


 


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o.             “Initial Effectiveness
Deadline” means the date (i) in the event that the Initial
Registration Statement is not subject to a full review by the SEC, ninety (90)
calendar days after the Closing Date or (ii) in the event that the Initial
Registration Statement is subject to a full review by the SEC, one hundred and
twenty (120) calendar days after the Closing Date.


 


p.             “Initial Filing Deadline”
means the date which is thirty (30)
calendar days after the Closing Date.


 


q.             “Initial Registrable Securities” for the
Initial Registration Statement means (i) the Conversion Shares issued or
issuable upon conversion and/or redemption of the Notes and (ii)  any
capital stock of the Company issued or issuable, with respect to the Notes
and/or the Conversion Shares as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitations on conversion and/or redemption of the Notes.


 


r.              “Initial Registration Statement”
means a registration statement or registration statements of the Company filed
under the 1933 Act covering the Initial Registrable Securities.


 


s.             “Initial Required Registration Amount” means
(I) 120% of the maximum number of Conversion Shares issued and issuable
pursuant to the Notes as of the Trading Day immediately preceding the
applicable date of determination, subject to adjustment as provided in Section 2(f),
without regard to any limitations on conversion and/or redemption of the Notes
or (II) such other amount as may be required by the staff of the SEC
pursuant to Rule 415 with any cutback applied pro rata to all Investors.


 


t.              “Investor” means a Buyer or any transferee
or assignee thereof to whom a Buyer assigns its rights under this Agreement and
who agrees to become bound by the provisions of this Agreement in accordance
with Section 9 and any transferee or assignee thereof to whom a transferee
or assignee assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement in accordance with Section 9.


 


u.             “Person” means an individual, a limited
liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency
thereof.


 


v.             “register,” “registered,” and “registration”
refer to a registration effected by preparing and filing one or more
Registration Statements in compliance with the 1933 Act and pursuant to Rule 415
and the declaration or ordering of effectiveness of such Registration Statement(s) by
the SEC.


 


w.            “Registrable Securities” means the Initial
Registrable Securities and the Additional Registrable Securities.


 


x.             “Registration
Period” means, with respect to any investor, the period between the
Closing Date and the earlier of (i) the date as of which such Investor may
sell all of the Registrable Securities covered by such Registration Statement
without restriction or limitation pursuant to Rule 144 and without the
requirement to be in compliance with Rule 144(c)(1) (or any successor
thereto) promulgated under the 1933 Act or (ii) the date on which such
Investor shall have sold all of the Registrable Securities covered by such
Registration Statement.


 


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y.             “Registration Statement” means the Initial
Registration Statement and the Additional Registration Statement, as
applicable.


 


z.             “Required Holders” means the holders of at
least 60% of the Registrable Securities.


 


aa.           “Required
Registration Amount” means either the Initial Required Registration
Amount or the Additional Required Registration Amount, as applicable.


 


bb.          “Rule 415” means Rule 415
promulgated under the 1933 Act or any successor rule providing for
offering securities on a continuous or delayed basis.


 


cc.           “SEC” means the United States Securities and
Exchange Commission.


 


dd.          “Trading Day” means any day on which the Common Stock is
traded on the Principal Market, or, if the Principal Market (as defined in the
Securities Purchase Agreement)is not the principal trading market for the
Common Stock, then on the principal securities exchange or securities market on
which the Common Stock is then traded; provided that “Trading Day” shall not
include any day on which the Common Stock is scheduled to trade on such
exchange or market for less than 4.5 hours or any day that the Common Stock is
suspended from trading during the final hour of trading on such exchange or
market (or if such exchange or market does not designate in advance the closing
time of trading on such exchange or market, then during the hour ending at
4:00:00 p.m., New York Time).


 


2.     Registration.


 


a.         Initial Mandatory
Registration.  The Company shall
prepare, and, as soon as practicable, but in no event later than the Initial
Filing Deadline, file with the SEC the Initial Registration Statement on Form S-3
covering the resale of all of the Initial Registrable Securities.  In the event that Form S-3 is
unavailable for such a registration, the Company shall use such other form as
is available for such a registration on another appropriate form reasonably
acceptable to the Required Holders, subject to the provisions of Section 2(e).  The Initial Registration Statement prepared
pursuant hereto shall register for resale at least the number of shares of
Common Stock equal to the Initial Required Registration Amount determined as of
the date the Initial Registration Statement is initially filed with the
SEC.  The Initial Registration Statement
shall contain (except if otherwise directed by the Required Holders) the “Selling
Stockholders” and “Plan of Distribution” sections in substantially
the form attached hereto as Exhibit B.  The Company shall use its best efforts to
have the Initial Registration Statement declared effective by the SEC as soon
as practicable, but in no event later than the Initial Effectiveness
Deadline.  By 5:30 p.m. New York time on the Business Day following the
Initial Effective Date, the Company shall file with the SEC in accordance with Rule 424
under the 1933 Act the final prospectus to be used in connection with sales
pursuant to such Initial Registration Statement.


 


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b.         Additional Mandatory
Registrations.  The Company shall
prepare, and, as soon as practicable but in no event later than the Additional
Filing Deadline, file with the SEC an Additional Registration Statement on Form S-3
covering the resale of all of the Additional Registrable Securities not
previously registered on an Additional Registration Statement hereunder.  To the extent the staff of the SEC does not
permit the Additional Required Registration Amount to be registered on an
Additional Registration Statement, the Company shall file Additional
Registration Statements successively trying to register on each such Additional
Registration Statement the maximum number of remaining Additional Registrable
Securities until the Additional Required Registration Amount has been
registered with the SEC.  In the event that
Form S-3 is unavailable for such a registration, the Company shall use
such other form as is available for such a registration on another appropriate
form reasonably acceptable to the Required Holders, subject to the provisions
of Section 2(e).  Pursuant to the
terms of this Section 2(b), each Additional Registration Statement
prepared pursuant hereto shall register for resale at least that number of
shares of Common Stock equal to the Additional Required Registration Amount
determined as of the date such Additional Registration Statement is initially
filed with the SEC.  Each Additional
Registration Statement shall contain (except if otherwise directed by the
Required Holders) the “Selling Stockholders” and “Plan of
Distribution” sections in substantially the form attached hereto as Exhibit B.  The Company shall use its best efforts to
have each Additional Registration Statement declared effective by the SEC as
soon as practicable, but in no event later than the Additional Effectiveness
Deadline.  By 5:30 p.m. New York time on the Business Day following
the Additional Effective Date, the Company shall file with the SEC in
accordance with Rule 424 under the 1933 Act the final prospectus to be
used in connection with sales pursuant to such Additional Registration
Statement.


 


c.         Allocation of Registrable
Securities.  The initial number of
Registrable Securities included in any Registration Statement and any increase
or decrease in the number of Registrable Securities included therein shall be
allocated pro rata among the Investors based on the number of Registrable
Securities held by each Investor at the time the Registration Statement
covering such initial number of Registrable Securities or increase or decrease
thereof is declared effective by the SEC. 
In the event that an Investor sells or otherwise transfers any of such
Investor’s Registrable Securities, each transferee shall be allocated a pro
rata portion of the then remaining number of Registrable Securities included in
such Registration Statement for such transferor.  Any shares of Common Stock included in a
Registration Statement and which remain allocated to any Person which ceases to
hold any Registrable Securities covered by such Registration Statement shall be
allocated to the remaining Investors, pro rata based on the number of Registrable
Securities then held by such Investors which are covered by such Registration
Statement.  In no event shall the Company
include any securities other than Registrable Securities on any Registration
Statement without the prior written consent of the Required Holders.


 


d.         Legal Counsel.  Subject to Section 5 hereof, the
Required Holders shall have the right to select one legal counsel to review and
oversee any registration pursuant to this Section 2 (“Legal Counsel”), which shall be Schulte
Roth & Zabel LLP or such other counsel as thereafter designated by the
Required Holders.  The Company and Legal
Counsel shall reasonably cooperate with each other in performing the Company’s
obligations under this Agreement.


 


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e.         Ineligibility for Form S-3.  In the event that Form S-3 is not
available for the registration of the resale of Registrable Securities
hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the Required
Holders and (ii) undertake to register the Registrable Securities on Form S-3
as soon as such form is available, provided that the Company shall maintain the
effectiveness of the Registration Statement then in effect until such time as a
Registration Statement on Form S-3 covering the Registrable Securities has
been declared effective by the SEC.


 


f.          Sufficient Number of
Shares Registered.  In the event the
number of shares available under a Registration Statement filed pursuant to Section 2(a) or
Section 2(b) is insufficient to cover all of the Registrable
Securities required to be covered by such Registration Statement or an Investor’s
allocated portion of the Registrable Securities pursuant to Section 2(c),
the Company shall amend the applicable Registration Statement, or file a new
Registration Statement (on the short form available therefor, if applicable),
or both, so as to cover at least the Required Registration Amount as of the
Trading Day immediately preceding the date of the filing of such amendment or
new Registration Statement, in each case, as soon as practicable, but in any
event not later than twenty (20) days after the necessity therefor arises.  The Company shall use its best efforts to
cause such amendment and/or new Registration Statement to become effective as
soon as practicable following the filing thereof.  For purposes of the foregoing provision, the
number of shares available under a Registration Statement shall be deemed “insufficient
to cover all of the Registrable Securities” if at any time the number of shares
of Common Stock available for resale under the Registration Statement is less
than the product determined by multiplying (i) the Required Registration
Amount as of such time by (ii) 0.90. 
The calculation set forth in the foregoing sentence shall be made
without regard to any limitations on the conversion and/or redemption of the
Notes and such calculation shall assume that the Notes are then convertible
into shares of Common Stock at the then prevailing Conversion Rate (as defined
in the Notes), assuming the initial outstanding principal amount of the Notes
remains outstanding through the scheduled Maturity Date (as defined in the
Notes) and assuming no conversions or redemptions of the Notes prior to the
scheduled Maturity Date.


 


g.         Effect of Failure to
File and Obtain and Maintain Effectiveness of Registration Statement.  If (i) a Registration Statement covering
all of the Registrable Securities required to be covered thereby and required
to be filed by the Company pursuant to this Agreement is (A) not filed
with the SEC on or before the respective Filing Deadline (a “Filing Failure”) or (B) not declared
effective by the SEC on or before the respective Effectiveness Deadline (an “Effectiveness Failure”) or (ii) on any
day after the Effective Date sales of all of the Registrable Securities
required to be included on such Registration Statement cannot be made (other
than during an Allowable Grace Period (as defined in Section 3(r))
pursuant to such Registration Statement (including, without limitation, because
of the suspension of trading or any other limitation imposed by an Eligible
Market (as defined in the Securities Purchase Agreement), a failure to keep
such Registration Statement effective, a failure to disclose such information
as is necessary for sales to be made pursuant to such Registration Statement, a
failure to register a sufficient number of shares of Common Stock or to
maintain the listing of the Common Stock) (a “Maintenance
Failure”) then, as partial relief for the damages to any holder by
reason of any such delay in or reduction of its ability to sell the underlying
shares of Common Stock (which remedy shall not be exclusive of any other 


 


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remedies available at law or in equity), the
Company shall pay to each holder of Registrable Securities relating to such
Registration Statement an amount in cash equal to one percent (1.0%) of the
aggregate Purchase Price (as such term is defined in the Securities Purchase
Agreement) of such Investor’s Registrable Securities whether or not included in
such Registration Statement, on each of the following dates:  (i) on every thirtieth day after the day
of a Filing Failure  and thereafter
until such Filing Failure is cured (all
such periods to be pro rated for periods totaling less than thirty days);
(ii) on every thirtieth day after the day of an Effectiveness Failure and
thereafter until such Effectiveness Failure is cured (all such periods to be pro rated for periods totaling less than thirty
days); and (iii) on every thirtieth day after the initial day of a
Maintenance Failure and thereafter until such Maintenance Failure is cured (all such periods to be pro rated for periods
totaling less than thirty days). 
The payments to which a holder shall be entitled pursuant to this Section 2(g) are
referred to herein as “Registration Delay
Payments”.  Registration Delay Payments shall be paid on
the earlier of (I) the dates set forth above and (II) the third
Business Day after the event or failure giving rise to the Registration Delay
Payments is cured.  Notwithstanding the
foregoing, Registration Delay Payments payable pursuant to this Section 2(g) shall
cease to accrue after the date that is six (6) months after the Closing
Date.  In the event the Company fails to
make Registration Delay Payments in a timely manner, such Registration Delay
Payments shall bear interest at the rate of one and one half percent (1.5%) per
month (prorated for partial months) until paid in full.


 


3.     Related
Obligations.


 


At such time
as the Company is obligated to file a Registration Statement with the SEC
pursuant to Section 2(a), 2(b), 2(e) or 2(f), the Company will use
its best efforts to effect the registration of the Registrable Securities in
accordance with the intended method of disposition thereof and, pursuant
thereto, the Company shall have the following obligations:


 


a.     The Company shall promptly
prepare and file with the SEC a Registration Statement with respect to the
Registrable Securities and use its best efforts to cause such Registration
Statement relating to the Registrable Securities to become effective as soon as
practicable after such filing (but in no event later than the Effectiveness
Deadline).  The Company shall keep each
Registration Statement effective pursuant to Rule 415 at all times until
the expiration of the Registration
Period.  The Company shall ensure
that each Registration Statement (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein (in the case of
prospectuses, in the light of the circumstances in which they were made) not
misleading.  The term “best efforts”
shall mean, among other things, that the Company shall submit to the SEC,
within two (2) Business Days after the later of the date that (i) the
Company learns that no review of a particular Registration Statement will be
made by the staff of the SEC or that the staff has no further comments on a
particular Registration Statement, as the case may be, and (ii) the
approval of Legal Counsel pursuant to Section 3(c) (which approval is
immediately sought), a request for acceleration of effectiveness of such
Registration Statement to a time and date not later than two (2) Business
Days after the submission of such request. 
The Company shall respond in writing to comments made by the SEC in
respect of a Registration Statement as soon as practicable, but in no event
later than fifteen (15) days after the receipt of comments by or notice from
the SEC that an amendment is required in order for a Registration Statement to
be declared effective.


 


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b.         The Company shall prepare
and file with the SEC such amendments (including post-effective amendments) and
supplements to a Registration Statement and the prospectus used in connection
with such Registration Statement, which prospectus is to be filed pursuant to Rule 424
promulgated under the 1933 Act, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof as set forth in such Registration
Statement.  In the case of amendments and
supplements to a Registration Statement which are required to be filed pursuant
to this Agreement (including pursuant to this Section 3(b)) by reason of
the Company filing a report on Form 10-Q, Form 10-K or any analogous
report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the SEC on the
same day on which the 1934 Act report is filed which created the requirement
for the Company to amend or supplement such Registration Statement.


 


c.         The Company shall (A) permit
Legal Counsel to review and comment upon (i) a Registration Statement at
least four (4) Business Days prior to its filing with the SEC and (ii) all
amendments and supplements to all Registration Statements (except for Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K, and any similar or successor reports) within a reasonable
number of days prior to their filing with the SEC, and (B) not file any
Registration Statement or amendment or supplement thereto in a form to which
Legal Counsel reasonably objects.  The
Company shall not submit a request for acceleration of the effectiveness of a
Registration Statement or any amendment or supplement thereto without the prior
approval of Legal Counsel, which consent shall not be unreasonably
withheld.  The Company shall furnish to
Legal Counsel, without charge, (i) copies of any correspondence from the
SEC or the staff of the SEC to the Company or its representatives relating to
any Registration Statement, (ii) promptly after the same is prepared and
filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto,
including financial statements and schedules, all documents incorporated
therein by reference, if requested by an Investor, and all exhibits (unless
such Registration Statement is available on EDGAR) and (iii) upon the
effectiveness of any Registration Statement, one copy of the prospectus
included in such Registration Statement and all amendments and supplements
thereto.  The Company shall reasonably
cooperate with Legal Counsel in performing the Company’s obligations pursuant
to this Section 3.


 


d.         The Company shall furnish
to each Investor whose Registrable Securities are included in any Registration
Statement, without charge, (i) promptly after the same is prepared and
filed with the SEC, at least one copy of such Registration Statement and any
amendment(s) thereto, including financial statements and schedules, all
documents incorporated therein by reference, if requested by an Investor, all
exhibits and each preliminary prospectus (unless such Registration Statement is
available on EDGAR), (ii) upon the 


 


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effectiveness of any Registration Statement,
one (1) copy of the prospectus included in such Registration Statement and
all amendments and supplements thereto (unless such Registration Statement and
such amendments and supplements are available on EDGAR) and (iii) such
other documents, including copies of any of the foregoing (regardless of whether
such documents are available on EDGAR or any preliminary or final prospectus,
as such Investor may reasonably request from time to time in order to
facilitate the disposition of the Registrable Securities owned by such
Investor.


 


e.         The Company shall use its
best efforts to (i) register and qualify, unless an exemption from
registration and qualification applies, the resale by Investors of the
Registrable Securities covered by a Registration Statement under such other
securities or “blue sky” laws of all applicable jurisdictions in the United
States, (ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all times during
the Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(e), (y) subject itself to general
taxation in any such jurisdiction, or (z) file a general consent to
service of process in any such jurisdiction. 
The Company shall promptly notify Legal Counsel and each Investor who
holds Registrable Securities of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification of any of
the Registrable Securities for sale under the securities or “blue sky” laws of
any jurisdiction in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.


 


f.          The Company shall notify
Legal Counsel and each Investor in writing of the happening of any event, as
promptly as practicable after becoming aware of such event, as a result of
which the prospectus included in a Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
(provided that in no event shall such notice contain any material, nonpublic
information), and, subject to Section 3(r), promptly prepare a supplement
or amendment to such Registration Statement to correct such untrue statement or
omission and deliver ten (10) copies of such supplement or amendment to
Legal Counsel and each Investor (or such other number of copies as Legal
Counsel or such Investor may reasonably request) (unless such supplements or
amendments are available on EDGAR).  The
Company shall also promptly notify Legal Counsel and each Investor in writing (i) when
a prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be delivered to
Legal Counsel and each Investor by facsimile or e-mail on the same day of such
effectiveness and by overnight mail), (ii) of any request by the SEC for
amendments or supplements to a Registration Statement or related prospectus or
related information, and (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.  By 5:30 p.m. New York
City time on the date following the date any post-effective amendment has
become effective, the Company shall file with the SEC in accordance with
Rule 424 under the 1933 Act the final prospectus to be used in connection
with sales pursuant to such Registration Statement.


 


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g.         The Company shall use its
best efforts to prevent the issuance of any stop order or other suspension of
effectiveness of a Registration Statement, or the suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction
and, if such an order or suspension is issued, to obtain the withdrawal of such
order or suspension at the earliest possible moment and to notify Legal Counsel
and each Investor who holds Registrable Securities being sold of the issuance
of such order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.


 


h.         If any Investor is
required under applicable securities laws to be described in the Registration
Statement as an underwriter or an Investor believes that it could reasonably be
deemed to be an underwriter of Registrable Securities, at the reasonable
request of such Investor, the Company shall furnish to such Investor, on the
date of the effectiveness of the Registration Statement and thereafter from
time to time on such dates as an Investor may reasonably request (i) a
letter, dated such date, from the Company’s independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the Investors, and (ii) an opinion, dated as of
such date, of counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to the Investors.


 


i.          If any Investor is
required under applicable securities laws to be described in the Registration
Statement as an underwriter or an Investor believes that it could reasonably be
deemed to be an underwriter of Registrable Securities, the Company shall, upon
the reasonable request of such Investor, make available for inspection by (i) such
Investor, (ii) Legal Counsel and (iii) one firm of accountants or
other agents retained by the Investors (collectively, the “Inspectors”), all pertinent financial and
other records, and pertinent corporate documents and properties of the Company
(collectively, the “Records”), as
shall be reasonably deemed necessary by each Inspector, and cause the Company’s
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree to
hold in strict confidence and shall not make any disclosure (except to an
Investor) or use of any Record or other information which the Company
determines in good faith to be confidential, and of which determination the Inspectors
are so notified, unless (a) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration Statement or is
otherwise required under the 1933 Act, (b) the release of such Records is
ordered pursuant to a final, non-appealable subpoena or order from a court or
government body of competent jurisdiction, or (c) the information in such
Records has been made generally available to the public other than by
disclosure in violation of this Agreement. 
Each Investor agrees that it shall, upon learning that disclosure of
such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential.  Nothing herein (or in any
other confidentiality agreement between the Company and any Investor) shall be
deemed to limit the Investors’ ability to sell Registrable Securities in a
manner which is otherwise consistent with applicable laws and regulations.


 


10

















 


j.          The Company shall hold
in confidence and not make any disclosure of information concerning an Investor
provided to the Company unless (i) disclosure of such information is
necessary to comply with federal or state securities laws, (ii) the
disclosure of such information is necessary to avoid or correct a misstatement
or omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-appealable
order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this Agreement or any other agreement.  The Company agrees that it shall, upon
learning that disclosure of such information concerning an Investor is sought
in or by a court or governmental body of competent jurisdiction or through
other means, give prompt written notice to such Investor and allow such
Investor, at the Investor’s expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.


 


k.         The Company shall use its
best efforts either to (i) cause all of the Registrable Securities covered
by a Registration Statement to be listed on each securities exchange on which
securities of the same class or series issued by the Company are then listed,
if any, if the listing of such Registrable Securities is then permitted under
the rules of such exchange or (ii) secure the inclusion for quotation
of all of the Registrable Securities on The New York Stock Exchange or (iii) if,
despite the Company’s best efforts, the Company is unsuccessful in satisfying
the preceding clauses (i) and (ii), to secure the inclusion for quotation
on The NASDAQ Global Select Market, The NASDAQ Global Market, The NASDAQ
Capital Market or the American Stock Exchange for such Registrable Securities
and, without limiting the generality of the foregoing, to use its best efforts
to arrange for at least two market makers to register with the Financial
Industry Regulatory Authority (“FINRA”) as such
with respect to such Registrable Securities. 
The Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section 3(k).


 


l.          The Company shall
cooperate with the Investors who hold Registrable Securities being offered and,
to the extent applicable, facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
Investors may reasonably request and registered in such names as the Investors
may request.


 


m.        If requested by an
Investor, the Company shall as soon as practicable (i) incorporate in a
prospectus supplement or post-effective amendment such information as an
Investor reasonably requests to be included therein relating to the sale and
distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering; (ii) make
all required filings of such prospectus supplement or post-effective amendment
after being notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment; and (iii) supplement or make
amendments to any Registration Statement if reasonably requested by an Investor
holding any Registrable Securities.


 


11

















 


n.         The Company shall use its
best efforts to cause the Registrable Securities covered by a Registration
Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to consummate the disposition of such
Registrable Securities.


 


o.         The Company shall make
generally available to its security holders as soon as practical, but not later
than ninety (90) days after the close of the period covered thereby, an
earnings statement (in form complying with, and in the manner provided by, the
provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the Company’s fiscal quarter next
following the applicable Effective Date of a Registration Statement.


 


p.         The Company shall
otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC in connection with any registration hereunder.


 


q.         Within two (2) Business
Days after a Registration Statement which covers Registrable Securities is
ordered effective by the SEC, the Company shall deliver, and shall cause legal
counsel for the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Investors whose Registrable Securities are
included in such Registration Statement) confirmation that such Registration
Statement has been declared effective by the SEC in the form attached hereto as
Exhibit A.


 


r.          Notwithstanding anything
to the contrary herein, at any time after the Effective Date, the Company may
delay the disclosure of material, non-public information concerning the Company
the disclosure of which at the time is not, in the good faith opinion of the
Board of Directors of the Company and its counsel, in the best interest of the
Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company
shall promptly (i) notify the Investors in writing of the existence of
material, non-public information giving rise to a Grace Period (provided that
in each notice the Company will not disclose the content of such material,
non-public information to the Investors) and the date on which the Grace Period
will begin, and (ii) notify the Investors in writing of the date on which
the Grace Period ends; and, provided further, that no Grace Period shall exceed
ten (10) consecutive days and during any three hundred sixty five (365)
day period such Grace Periods shall not exceed an aggregate of thirty (30) days
and the first day of any Grace Period must be at least five (5) Trading
Days after the last day of any prior Grace Period (each, an “Allowable Grace Period”).  For purposes of determining the length of a
Grace Period above, the Grace Period shall begin on and include the date the
Investors receive the notice referred to in clause (i) and shall end on
and include the later of the date the Investors receive the notice referred to
in clause (ii) and the date referred to in such notice.  The provisions of Section 3(g) hereof
shall not be applicable during the period of any Allowable Grace Period.  Upon expiration of the Grace Period, the
Company shall again be bound by the first sentence of Section 3(f) with
respect to the information giving rise thereto unless such material, non-public
information is no longer applicable. 
Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a transferee of
an Investor in accordance with the terms of the Securities Purchase Agreement
in connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale, prior to the Investor’s receipt
of the notice of a Grace Period and for which the Investor has not yet settled.


 


12
















 


s.         Neither the Company nor any Subsidiary
or affiliate thereof shall identify any Investor as an underwriter in any
public disclosure or filing with the SEC or any Principal Market (as defined in
the Securities Purchase Agreement) or Eligible Market and any Buyer being
deemed an underwriter by the SEC shall not relieve the Company of any
obligations it has under this Agreement or any other Transaction Document (as
defined in the Securities Purchase Agreement); provided, however,
that the foregoing shall not prohibit the Company from including the disclosure
found in the “Plan of Distribution” section attached hereto as Exhibit B
in the Registration Statement.


 


4.     Obligations of the
Investors.


 


a.         At least three (3) Business
Days prior to the first anticipated Filing Date of a Registration Statement,
the Company shall notify each Investor in writing of the information the
Company requires from each such Investor if such Investor elects to have any of
such Investor’s Registrable Securities included in such Registration
Statement.  It shall be a condition
precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable Securities of a
particular Investor that such Investor shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as
shall be reasonably required to effect and maintain the effectiveness of the
registration of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably request.


 


b.         Each Investor, by such
Investor’s acceptance of the Registrable Securities, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the
preparation and filing of any Registration Statement hereunder, unless such
Investor has notified the Company in writing of such Investor’s election to
exclude all of such Investor’s Registrable Securities from such Registration
Statement.


 


c.         Each Investor agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(g) or the first sentence of 3(f),
such Investor will immediately discontinue disposition of Registrable
Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until such Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or
the first sentence of 3(f) or receipt of notice that no supplement or
amendment is required.  Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to deliver
unlegended shares of Common Stock to a transferee of an Investor in accordance
with the terms of the Securities Purchase Agreement in connection with any sale
of Registrable Securities with respect to which an Investor has entered into a
contract for sale prior to the Investor’s receipt of a notice from the Company
of the happening of any event of the kind described in Section 3(g) or
the first sentence of 3(f) and for which the Investor has not yet settled.


 


13

















 


d.         Each Investor covenants and agrees that
it will comply with the prospectus delivery requirements of the 1933 Act as
applicable to it or an exemption therefrom in connection with sales of
Registrable Securities pursuant to the Registration Statement.


 


5.     Expenses of Registration.


 


All reasonable
expenses, other than underwriting discounts and commissions, incurred in
connection with registrations, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements
of counsel for the Company shall be paid by the Company.  The Company shall also reimburse the
Investors for the fees and disbursements of Legal Counsel in connection with
registration, filing or qualification pursuant to Sections 2 and 3 of this
Agreement which amount shall be limited to $10,000 for each such registration,
filing or qualification.


 


6.     Indemnification.


 


In the event
any Registrable Securities are included in a Registration Statement under this
Agreement:


 


a.         To the fullest extent permitted by law,
the Company will, and hereby does, indemnify, hold harmless and defend each
Investor, the directors, officers, members, partners, employees, agents,
representatives of, and each Person, if any, who controls any Investor within
the meaning of the 1933 Act or the 1934 Act (each, an “Indemnified Person”), against any losses,
claims, damages, liabilities, judgments, fines, penalties, charges, costs,
reasonable attorneys’ fees, amounts paid in settlement or expenses, joint or
several, (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: 
(i) any untrue statement or alleged untrue statement of a material
fact in a Registration Statement or any post-effective amendment thereto or in
any filing made in connection with the qualification of the offering under the
securities or other “blue sky” laws of any jurisdiction in which Registrable
Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading, (iii) any
violation or alleged violation by the Company of the 1933 Act, the 1934 Act,
any other law, including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to a Registration Statement or (iv) any violation of
this Agreement (the matters in the foregoing 


 


14

















 


clauses (i) through (iv) being,
collectively, “Violations”).  Subject to Section 6(c), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are incurred
and are due and payable, for any legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such
Claim.  Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this Section 6(a):  (i) shall not apply to a Claim by an
Indemnified Person arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person for such Indemnified Person expressly for
use in connection with the preparation of the Registration Statement or any
such amendment thereof or supplement thereto, if such prospectus was timely
made available by the Company pursuant to Section 3(d); and (ii) shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld or delayed. 
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investors pursuant to Section 9.


 


b.         In connection with any Registration
Statement in which an Investor is participating, each such Investor agrees to
severally and not jointly indemnify, hold harmless and defend, to the same
extent and in the same manner as is set forth in Section 6(a), the
Company, each of its directors, each of its officers who signs the Registration
Statement and each Person, if any, who controls the Company within the meaning
of the 1933 Act or the 1934 Act (each, an “Indemnified
Party”), against any Claim or Indemnified Damages to which any of
them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with
such Registration Statement; and, subject to Section 6(c), such Investor
shall reimburse the Indemnified Party, for any legal or other expenses
reasonably incurred by an Indemnified Party in connection with investigating or
defending any such Claim; provided, however, that the indemnity agreement contained
in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written consent of
such Investor, which consent shall not be unreasonably withheld or delayed;
provided, further, however, that the Investor shall be liable under this Section 6(b) for
only that amount of a Claim or Indemnified Damages as does not exceed the net
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. 
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of the Registrable Securities by the Investors pursuant to Section 9.


 


c.         Promptly after receipt by an
Indemnified Person or Indemnified Party under this Section 6 of notice of
the commencement of any action or proceeding (including any governmental action
or proceeding) involving a Claim, such Indemnified Person or Indemnified Party
shall, if a Claim in respect thereof is to be made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written
notice of the commencement thereof, and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party 


 


15

















 


similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that an Indemnified Person or Indemnified Party shall have
the right to retain its own counsel with the fees and expenses of not more than
one counsel for all such Indemnified Person or Indemnified Party to be paid by
the indemnifying party, if, in the reasonable opinion of counsel retained by
the Indemnified Person or Indemnified Party, as applicable, the representation
by such counsel of the Indemnified Person or Indemnified Party and the
indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person or Indemnified Party and any other
party represented by such counsel in such proceeding.  In the case of an Indemnified Person, legal
counsel referred to in the immediately preceding sentence shall be selected by
the Investors holding at least 60%  in
interest of the Registrable Securities included in the Registration Statement
to which the Claim relates.  The
Indemnified Party or Indemnified Person shall reasonably cooperate with the
indemnifying party in connection with any negotiation or defense of any such
action or Claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim.  The indemnifying party shall keep the Indemnified
Party or Indemnified Person fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto.  No indemnifying party shall be liable for any
settlement of any action, claim or proceeding effected without its prior
written consent; provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent.  No indemnifying party shall, without the
prior written consent of the Indemnified Party or Indemnified Person, consent
to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party or Indemnified Person of a release from all
liability in respect to such Claim or litigation, and such settlement shall not
include any admission as to fault on the part of the Indemnified Party.  Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties,
firms or corporations relating to the matter for which indemnification has been
made.  The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement
of any such action shall not relieve such indemnifying party of any liability
to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability
to defend such action.


 


d.         The indemnification required by this Section 6
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or Indemnified
Damages are incurred.


 


e.         The indemnity agreements contained
herein shall be in addition to  (i) any
cause of action or similar right of the Indemnified Party or Indemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.


 


16

















 


7.     Contribution.


 


To the extent
any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to
any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that:  (i) no Person involved in the sale of
Registrable Securities which Person is guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) in connection
with such sale shall be entitled to contribution from any Person involved in
such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the amount of net proceeds received by
such seller from the sale of such Registrable Securities pursuant to such
Registration Statement.


 


8.     Reports Under the 1934
Act.


 


With a view to
making available to the Investors the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that
may at any time permit the Investors to sell securities of the Company to the
public without registration (“Rule 144”),
the Company agrees to:


 


a.         make and keep public information
available, as those terms are understood and defined in Rule 144;


 


b.         file with the SEC in a timely manner
all reports and other documents required of the Company under the 1933 Act and
the 1934 Act so long as the Company remains subject to such requirements and
the filing of such reports and other documents is required for the applicable
provisions of Rule 144; and


 


c.         furnish to each Investor so long as
such Investor owns Registrable Securities, promptly upon request, (i) a
written statement by the Company, if true, that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act, (ii) a
copy of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested to permit the Investors to sell such
securities pursuant to Rule 144 without registration.


 


9.             Assignment of Registration
Rights.


 


The rights
under this Agreement shall be automatically assignable by the Investors to any
transferee of all or any portion of such Investor’s Registrable Securities
if:  (i) the Investor agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect
to which such registration rights are being transferred or assigned; (iii) immediately
following such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act or
applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence
the transferee or assignee agrees in writing with the Company to be bound by
all of the provisions contained herein; and (v) such transfer shall have
been made in accordance with the applicable requirements of the Securities
Purchase Agreement.


 


17

















 


10.           Amendment of Registration Rights.


 


Provisions of
this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders.  Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon each
Investor and the Company.  No such
amendment shall be effective to the extent that it applies to less than all of
the holders of the Registrable Securities. 
No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of this Agreement unless
the same consideration also is offered to all of the parties to this Agreement.


 


11.           Miscellaneous.


 


a.         A Person is deemed to be a holder of
Registrable Securities whenever such Person owns or is deemed to own of record
such Registrable Securities.  If the
Company receives conflicting instructions, notices or elections from two or
more Persons with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from such
record owner of such Registrable Securities.


 


b.         Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered:  (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) Business Day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same.  The addresses and facsimile numbers for such
communications shall be:


 


	
  If to the
  Company:

  
	
   

  
	
  Maui
  Land & Pineapple Company, Inc.

  
	
  P. O. Box
  187

  
	
  Kahului,
  Maui, Hawaii 96733-6687

  
	
  Telephone:

  	
   

  	
  (808)
  877-3351

  
	
  Facsimile:

  	
   

  	
  (808)
  871-0953

  
	
  Attention:

  	
   

  	
  Robert I.
  Webber

  



 


18

















 


	
  With a copy (for informational purposes
  only) to:

  
	
   

  
	
  Stradling
  Yocca Carlson & Rauth

  
	
  660 Newport
  Center Drive, Suite 1600

  
	
  Newport
  Beach, California 92660

  
	
  Telephone:

  	
   

  	
  (949) 725-4121

  
	
  Facsimile:

  	
   

  	
  (949) 823-5121

  
	
  Attention:

  	
   

  	
  Christopher Ivey, Esq.

  
	
   

  	
   

  	
   

  
	
  If to the Transfer Agent:

  
	
   

  
	
  BNY Mellon
  Shareowner Services LLC

  
	
  525 Market
  Street - 35th Floor

  
	
  San
  Francisco, CA 94105

  
	
  Telephone:

  	
   

  	
  (415)
  951-4188

  
	
  Facsimile:

  	
   

  	
  (415) 951-
  4181

  
	
  Attention:

  	
   

  	
  Joshua P. McGinn

  
	
   

  
	
  If to Legal Counsel:

  
	
   

  
	
  Schulte Roth & Zabel LLP

  
	
  919 Third Avenue

  
	
  New York, New York 10022

  
	
  Telephone:

  	
   

  	
  (212) 756-2000

  
	
  Facsimile:

  	
   

  	
  (212) 593-5955

  
	
  Attention:

  	
   

  	
  Eleazer N. Klein, Esq.

  



 


If to a Buyer,
to its address and facsimile number set forth on the Schedule of Buyers
attached hereto, with copies to such Buyer’s representatives as set forth on
the Schedule of Buyers, or to such other address and/or facsimile number and/or
to the attention of such other Person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change.  Written
confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date,
recipient facsimile number and an image of the first page of such
transmission or (C) provided by a courier or overnight courier service
shall be rebuttable evidence of personal service, receipt by facsimile or
receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.


 


c.         Failure of any party to exercise any
right or remedy under this Agreement or otherwise, or delay by a party in
exercising such right or remedy, shall not operate as a waiver thereof.


 


19

















 


d.         All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of New
York.  Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting
in The City of New York, Borough of Manhattan, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. 
Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.  EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 


e.         If any provision of this Agreement is
prohibited by law or otherwise determined to be invalid or unenforceable by a
court of competent jurisdiction, the provision that would otherwise be
prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the
remaining provisions of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter hereof and the prohibited nature, invalidity
or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be conferred
upon the parties.  The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or
unenforceable provision(s) with a valid provision(s), the effect of which
comes as close as possible to that of the prohibited, invalid or unenforceable
provision(s).


 


f.          This Agreement, the other Transaction
Documents (as defined in the Securities Purchase Agreement) and the instruments
referenced herein and therein constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
and therein.  This Agreement, the other
Transaction Documents and the instruments referenced herein and therein
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.


 


g.         Subject to the requirements of Section 9,
this Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.


 


h.         The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


20

















 


i.          This Agreement may be executed in
identical counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement.  This Agreement, once executed by a party, may
be delivered to the other party hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.


 


j.          Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.


 


k.         All consents and other determinations
required to be made by the Investors pursuant to this Agreement shall be made,
unless otherwise specified in this Agreement, by the Required Holders.


 


l.          The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent and no rules of strict construction will be applied against any
party.


 


m.        This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns,
and is not for the benefit of, nor may any provision hereof be enforced by, any
other Person.


 


n.         The obligations of each Investor
hereunder are several and not joint with the obligations of any other Investor,
and no provision of this Agreement is intended to confer any obligations on any
Investor vis-à-vis any other Investor. 
Nothing contained herein, and no action taken by any Investor pursuant
hereto, shall be deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated herein.


 


* * * * * *


 


[Signature Page Follows]


 


21
















 


IN WITNESS
WHEREOF, each Buyer and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first
written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MAUI LAND & PINEAPPLE COMPANY, 

  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
    /s/ Robert
  I. Webber

  
	
   

  	
   

  	
  Robert I. Webber

  
	
   

  	
   

  	
  Chief
  Operating Officer, Chief Financial

  
	
   

  	
   

  	
  Officer,
  and Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
    /s/ Adele
  H. Sumida

  
	
   

  	
   

  	
  Adele H. Sumida

  
	
   

  	
   

  	
  Controller and
  Secretary

  



 


	
   

  	
  [Signature
  Page to Registration Rights Agreement]

  



 

















 


IN WITNESS
WHEREOF, each Buyer and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first
written above.


 


 


	
   

  	
  BUYERS:

  
	
   

  	
   

  
	
   

  	
  RCG PB, LTD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
    /s/ Owen
  Littman

  
	
   

  	
   

  	
  Owen Littman

  
	
   

  	
   

  	
  Authorized Signatory

  



 


	
   

  	
  [Signature
  Page to Registration Rights Agreement]

  



 

















 


IN WITNESS
WHEREOF, each Buyer and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first
written above.


 


 


	
   

  	
  BUYERS:

  
	
   

  	
   

  
	
   

  	
  RCG
  ENTERPRISE, LTD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Owen Littman  

  
	
   

  	
   

  	
  Owen
  Littman

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


	
   

  	
  [Signature
  Page to Registration Rights Agreement]

  



 

















 


IN WITNESS
WHEREOF, each Buyer and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first
written above.


 


 


	
   

  	
  BUYERS:

  
	
   

  	
   

  
	
   

  	
  HIGHBRIDGE
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Adam J. Chill

  
	
   

  	
   

  	
  Adam
  J. Chill

  
	
   

  	
   

  	
  Managing
  Director

  



 


	
   

  	
  [Signature
  Page to Registration Rights Agreement]

  



 

















 


IN WITNESS
WHEREOF, each Buyer and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first
written above.


 


 


	
   

  	
  BUYERS:

  
	
   

  	
   

  
	
   

  	
  INTERLACHEN CONVERTIBLE INVESTMENTS

  LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Gregg T. Colburn

  
	
   

  	
   

  	
  Gregg
  T. Colburn

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


	
   

  	
  [Signature
  Page to Registration Rights Agreement]

  



 

















 


SCHEDULE OF BUYERS


 


	
   

  	
   

  	
  Buyer Address

  	
   

  	
  Buyer’s Representative’s Address

  
	
  Buyer

  	
   

  	
  and Facsimile Number

  	
   

  	
  and Facsimile Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RCG PB, Ltd

  	
   

  	
  c/o Ramius LLC

  	
   

  	
  Schulte Roth &
  Zabel LLP

  
	
   

  	
   

  	
  599 Lexington Avenue, 20th
  Floor

  	
   

  	
  919 Third Avenue

  
	
   

  	
   

  	
  New York, NY 10022

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Attention: 

  	
  Jeffrey Smith

  	
   

  	
  Attn: Eleazer
  Klein, Esq.

  
	
   

  	
   

  	
   

  	
   Owen Littman

  	
   

  	
  Facsimile: (212) 593-5955

  
	
   

  	
   

  	
  Facsimile:

  	
   

  	
  Telephone: (212) 756-2000

  
	
   

  	
   

  	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
  Residence: Cayman Islands

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RCG Enterprise, Ltd

  	
   

  	
  c/o Ramius LLC

  	
   

  	
  Schulte Roth &
  Zabel LLP

  
	
   

  	
   

  	
  599 Lexington Avenue, 20th
  Floor

  	
   

  	
  919 Third Avenue

  
	
   

  	
   

  	
  New York, NY 10022

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Attention: 

  	
  Jeffrey Smith

  	
   

  	
  Attn: Eleazer
  Klein, Esq.

  
	
   

  	
   

  	
   

  	
   Owen Littman

  	
   

  	
  Facsimile: (212) 593-5955

  
	
   

  	
   

  	
  Facsimile:

  	
   

  	
  Telephone: (212) 756-2000

  
	
   

  	
   

  	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
  Residence: Cayman Islands

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Highbridge International LLC

  	
   

  	
  c/o Highbridge Capital

  	
   

  	
   

  
	
   

  	
   

  	
  Management, LLC

  	
   

  	
   

  
	
   

  	
   

  	
  9 West 57th Street, 27th
  Floor

  	
   

  	
   

  
	
   

  	
   

  	
  New York, New York 10019

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: Adam J. Chill

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
  Residence: Cayman Islands

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interlachen Convertible Investments Limited

  	
   

  	
  c/o Interlachen Capital
  Group LP

  Attention: Gregg T. Colburn and Legal

  	
   

  	
   

  
	
   

  	
   

  	
  800 Nicollet Mall,
  Suite 2500

  	
   

  	
   

  
	
   

  	
   

  	
  Minneapolis, MN 55402

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
  Residence: Cayman Islands

  	
   

  	
   

  
							



 

















 


EXHIBIT A


 


FORM OF NOTICE OF EFFECTIVENESS

OF REGISTRATION STATEMENT


 


VIA
FEDEX and FACSIMILE (415-951-4181)


 


BNY
Mellon Shareowner Services LLC


525
Market Street - 35th Floor


San
Francisco, CA 94105


Attention:              Joshua P. McGinn


 


Re:          Maui Land & Pineapple Company, Inc.


 


Ladies
and Gentlemen:


 


[We
are][I am] counsel to Maui Land & Pineapple Company, Inc., a
Hawaiian corporation (the “Company”),
and have represented the Company in connection with that certain Securities
Purchase Agreement (the “Securities Purchase Agreement”) entered into
by and among the Company and the buyers named therein (collectively, the “Holders”) pursuant to which the Company
issued to the Holders senior secured convertible notes (the “Notes”) which shall be convertible into the Company’s common
stock, no par value (the “Common Stock”).  Pursuant to the Securities Purchase
Agreement, the Company also has entered into a Registration Rights Agreement
with the Holders (the “Registration Rights
Agreement”) pursuant to which the Company agreed, among other
things, to register the Registrable Securities (as defined in the Registration
Rights Agreement), including the shares of Common Stock issuable upon
conversion of the Notes, under the Securities Act of 1933, as amended (the “1933 Act”). 
In connection with the Company’s obligations under the Registration
Rights Agreement, on                        ,
200  , the Company filed a Registration Statement on Form S-3
(File No. 333-                       )
(the “Registration Statement”)
with the Securities and Exchange Commission (the “SEC”) relating to the Registrable Securities which names each
of the Holders as a selling stockholder thereunder.


 


In connection with the
foregoing, [we][I] advise you that a member of the SEC’s staff has advised
[us][me] by telephone that the SEC has entered an order declaring the
Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER
DATE OF EFFECTIVENESS] and [we][I]
have no knowledge, after telephonic inquiry of a member of the SEC’s staff,
that any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC and
the Registrable Securities are available for resale under the 1933 Act pursuant
to the Registration Statement.


 


A-1

















 


This letter shall serve as
our standing instruction to you that the shares of Common Stock are freely
transferable by the Holders pursuant to the Registration Statement.  You need not require further letters from us to
effect any future legend-free issuance or reissuance of shares of Common Stock
to the Holders as contemplated by the Company’s Irrevocable Transfer Agent
Instructions dated July  , 2008.


 


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [ISSUER’S
  COUNSEL]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



CC:          [LIST
NAMES OF HOLDERS]


 


A-2

















EXHIBIT B


 


SELLING STOCKHOLDERS


 


The
shares of common stock being offered by the selling stockholders are those
issuable to the selling stockholders upon conversion of the convertible
notes.  For additional information
regarding the issuance of those convertible notes, see “Private Placement of
Convertible Notes” above.  We are
registering the shares of common stock in order to permit the selling
stockholders to offer the shares for resale from time to time.  Except for the ownership of the convertible
notes issued pursuant to the Securities Purchase Agreement, the selling
stockholders have not had any material relationship with us within the past
three years.


 


The
table below lists the selling stockholders and other information regarding the
beneficial ownership of the shares of common stock by each of the selling
stockholders.  The second column lists
the number of shares of common stock beneficially owned by each selling
stockholder, based on its ownership of the convertible notes, as of              ,
2008, assuming conversion of all convertible notes held by the selling
stockholders on that date.


 


The
third column lists the shares of common stock being offered by this prospectus
by the selling stockholders.


 


In
accordance with the terms of a registration rights agreement with the selling
stockholders, this prospectus generally covers the resale of at least 120% of
the maximum number of shares of common stock issuable upon conversion of the
convertible notes as of the Trading Day immediately preceding the date the
registration statement is initially filed with the SEC.  Because the conversion
price of the convertible notes may be adjusted, the number of shares that will
actually be issued may be more or less than the number of shares being offered
by this prospectus.  The fourth column
assumes the sale of all of the shares offered by the selling stockholders
pursuant to this prospectus.


 


Under
the terms of the convertible notes, a selling stockholder may not convert the
convertible notes to the extent such conversion would cause such selling
stockholder, together with its affiliates, to beneficially own a number of
shares of common stock which would exceed 4.99% of our then outstanding shares
of common stock following such conversion, excluding for purposes of such
determination shares of common stock issuable upon conversion of the
convertible notes which have not been converted.  The number of shares in the second column
reflects this limitation.  The selling
stockholders may sell all, some or none of their shares in this offering.  See “Plan of Distribution.”


 


B-1

















 


	
  Name of Selling Stockholder

  	
   

  	
  Number of Shares of 

  Common Stock Owned 

  Prior to Offering

  	
   

  	
  Maximum Number of Shares 

  of Common Stock to be Sold 

  Pursuant to this Prospectus

  	
   

  	
  Number of Shares of 

  Common Stock Owned 

  After Offering

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RCG PB, Ltd (1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RCG Enterprise, Ltd (2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)           Ramius Advisors, LLC (“Ramius
Advisors”) is the investment adviser of RCG PB, Ltd. (“RCG PB”) and
consequently has voting control and investment discretion over securities held
by RCG PB.  Ramius LLC (“Ramius”) is the
sole member of Ramius Advisors and consequently has voting control and
investment discretion over securities held by RCG PB.  Each of Ramius Advisors and Ramius disclaims
beneficial ownership of the shares held by RCG PB.  Peter A. Cohen, Morgan B. Stark, Thomas W.
Strauss and Jeffrey M. Solomon are the sole managing members of C4S& Co.,
LLC, the sole managing member of Ramius. 
As a result, Messrs. Cohen, Stark, Strauss and Solomon may be
considered beneficial owners of any shares deemed to be beneficially owned by
Ramius.  Messrs. Cohen, Stark,
Strauss and Solomon disclaim beneficial ownership of these shares.


 


(2)           Ramius is the investment
adviser of RCG Enterprise, Ltd (“RCG Enterprise”) and consequently has voting
control and investment discretion over securities held by RCG Enterprise.  Ramius disclaims beneficial ownership of the
shares held by RCG Enterprise.  Peter A.
Cohen, Morgan B. Stark, Thomas W. Strauss and Jeffrey M. Solomon are the sole
managing members of C4S& Co., LLC, the sole managing member of Ramius.  As a result, Messrs. Cohen, Stark,
Strauss and Solomon may be considered beneficial owners of any shares deemed to
be beneficially owned by Ramius.  Messrs. Cohen,
Stark, Strauss and Solomon disclaim beneficial ownership of these shares.


 


B-2

















 


PLAN OF DISTRIBUTION


 


We
are registering the shares of common stock issuable upon conversion of the
convertible notes to permit the resale of these shares of common stock by the
holders of the convertible notes from time to time after the date of this
prospectus.  We will not receive any of
the proceeds from the sale by the selling stockholders of the shares of common
stock.  We will bear all fees and
expenses incident to our obligation to register the shares of common stock.


 


The
selling stockholders may sell all or a portion of the shares of common stock
beneficially owned by them and offered hereby from time to time directly or
through one or more underwriters, broker-dealers or agents.  If the shares of common stock are sold through
underwriters or broker-dealers, the selling stockholders will be responsible
for underwriting discounts or commissions or agent’s commissions.  The shares of common stock may be sold in one
or more transactions at fixed prices, at prevailing market prices at the time
of the sale, at varying prices determined at the time of sale, or at negotiated
prices.  These sales may be effected in
transactions, which may involve crosses or block transactions,


 


·                  on any national securities exchange or
quotation service on which the securities may be listed or quoted at the time
of sale;


 


·                  in the over-the-counter market;


 


·                  in transactions otherwise than on these
exchanges or systems or in the over-the-counter market;


 


·                  through the writing of options, whether such
options are listed on an options exchange or otherwise;


 


·                  ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers;


 


·                  block trades in which the broker-dealer will
attempt to sell the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;


 


·                  purchases by a broker-dealer as principal and
resale by the broker-dealer for its account;


 


·                  an exchange distribution in accordance with
the rules of the applicable exchange;


 


·                  privately negotiated transactions;


 


·                  short sales;


 


·                  sales pursuant to Rule 144;


 


·                  broker-dealers may agree with the selling
securityholders to sell a specified number of such shares at a stipulated price
per share;


 


·                  a combination of any such methods of sale;
and


 


·                  any other method permitted pursuant to
applicable law.


 


B-3

















 


If
the selling stockholders effect such transactions by selling shares of common
stock to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholders or commissions from
purchasers of the shares of common stock for whom they may act as agent or to
whom they may sell as principal (which discounts, concessions or commissions as
to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved).  In connection with sales of the shares of
common stock or otherwise, the selling stockholders may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of
the shares of common stock in the course of hedging in positions they
assume.  The selling stockholders may
also sell shares of common stock short and deliver shares of common stock
covered by this prospectus to close out short positions and to return borrowed
shares in connection with such short sales. 
The selling stockholders may also loan or pledge shares of common stock
to broker-dealers that in turn may sell such shares.


 


The
selling stockholders may pledge or grant a security interest in some or all of
the convertible notes or shares of common stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or
secured parties may offer and sell the shares of common stock from time to time
pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933, as amended, amending,
if necessary, the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this
prospectus.  The selling stockholders
also may transfer and donate the shares of common stock in other circumstances
in which case the transferees, donees, pledgees or other successors in interest
will be the selling beneficial owners for purposes of this prospectus.


 


The
selling stockholders and any broker-dealer participating in the distribution of
the shares of common stock may be deemed to be “underwriters” within the
meaning of the Securities Act, and any commission paid, or any discounts or
concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act.  At the time a particular offering of the
shares of common stock is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares of common stock
being offered and the terms of the offering, including the name or names of any
broker-dealers or agents, any discounts, commissions and other terms
constituting compensation from the selling stockholders and any discounts,
commissions or concessions allowed or reallowed or paid to broker-dealers.


 


Under
the securities laws of some states, the shares of common stock may be sold in
such states only through registered or licensed brokers or dealers.  In addition, in some states the shares of
common stock may not be sold unless such shares have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.


 


B-4

















 


There
can be no assurance that any selling stockholder will sell any or all of the
shares of common stock registered pursuant to the registration statement, of
which this prospectus forms a part.


 


The
selling stockholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may limit the
timing of purchases and sales of any of the shares of common stock by the selling
stockholders and any other participating person.  Regulation M may also restrict the ability of
any person engaged in the distribution of the shares of common stock to engage
in market-making activities with respect to the shares of common stock.  All of the foregoing may affect the
marketability of the shares of common stock and the ability of any person or
entity to engage in market-making activities with respect to the shares of
common stock.


 


We
will pay all expenses of the registration of the shares of common stock
pursuant to the registration rights agreement, estimated to be
$[     ] in total, including, without limitation,
Securities and Exchange Commission filing fees and expenses of compliance with
state securities or “blue sky” laws; provided, however, that a selling
stockholder will pay all underwriting discounts and selling commissions, if
any.  We will indemnify the selling
stockholders against liabilities, including some liabilities under the
Securities Act, in accordance with the registration rights agreements, or the
selling stockholders will be entitled to contribution.  We may be indemnified by the selling
stockholders against civil liabilities, including liabilities under the Securities
Act, that may arise from any written information furnished to us by the selling
stockholder specifically for use in this prospectus, in accordance with the
related registration rights agreement, or we may be entitled to contribution.


 


Once
sold under the registration statement, of which this prospectus forms a part,
the shares of common stock will be freely tradable in the hands of persons
other than our affiliates.


 


B-5