As filed with the Securities and Exchange Commission on December 13, 2004
Registration No. 333-________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
ALEXANDER & BALDWIN, INC.
(Exact name of registrant as specified in its charter)
Hawaii 99-0032630
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
822 Bishop Street
Honolulu, Hawaii 96813
(Address of principal executive offices) (Zip Code)
Alexander & Baldwin, Inc. 1998 Stock Option/ Stock Incentive Plan
Alexander & Baldwin, Inc. 1998 Non-Employee Director Stock Option Plan
(Full title of the Plan(s))
---------------------------------
Allen Doane
President and Chief Executive Officer
Alexander & Baldwin
822 Bishop Street
Honolulu, Hawaii 96813
(Name and address of agent for service)
(808) 525-6611
(Telephone Number, including area code, of agent for service)
-------------------------------
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed Maximum
Amount to be Offering Price per Proposed Maximum Amount of
Title of Securities to be Registered Registered(1) Share(2) Aggregate Offering Price(2) Registration Fee
- ------------------------------------ --------------- ------------------ --------------------------- ----------------
1998 Stock Option/ Stock Incentive
Plan
Common Stock, no par value 1,900,000 shares $43.33 $82,327,000 $10,430.83
1998 Non-Employee Director Stock
Option Plan
Common Stock, no par value 350,000 shares $43.33 $15,165,500 $ 1,921.47
---------------- ----------
2,250,000 shares Aggregate Registration Fee $12,352.30
================ ==========
===================================================================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Stock Option/ Stock
Incentive Plan and the 1998 Non-Employee Director Stock Option Plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the Registrant's receipt of
consideration which results in an increase in the number of the
outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling price per share of the Registrant's Common Stock on
December 9, 2004, as reported by the Nasdaq National Market.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Alexander & Baldwin, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission
(the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2003 filed with the Commission on
March 8, 2004;
(b) The Registrant's Quarterly Reports on Form 10-Q, filed with
the Commission on April 27, 2004, July 28, 2004 and November
1, 2004, for the periods ended March 31, 2004, June 30, 2004
and September 30, 2004, respectively;
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the 1934 Act since the end of the fiscal year covered by the
Registrant's Annual Report referred to in (a) above; and
(d) The Registrant's Registration Statement No. 000-00565 on Form
8-A filed with the Commission on July 16, 1998, pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the
"Exchange Act"), in which there is described the terms, rights
and provisions applicable to the Registrant's Common Stock
purchase rights.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act") after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Sections 414-241 through 414-250 of the Hawaii Revised Statutes and the
Registrant's Articles of Association contain certain provisions covering
indemnification of corporate directors and officers against certain liabilities
and expenses incurred as a result of proceedings involving such persons in their
capacities as directors, officers or agents of the Registrant. Article VI of the
Articles of Association sets forth the extent to which officers or directors of
the Registrant may be protected or indemnified against certain liabilities which
they may incur. The general effect of such provision is that a person made a
party to an action, suit or proceeding by reason of the fact that he/she is or
was a director, officer, employee or agent of the Registrant, or of another
corporation or other enterprise which he/she served as such at the request of
the Registrant, shall be indemnified by the Registrant against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him/her in connection with such action, suit
or proceeding, provided he/she was acting in good faith and in a manner he/she
reasonably believed to be in the best interests of the Registrant and only upon
a determination in the specific case that the actions of such person met the
applicable standard of conduct. Article VI also provides that no director,
officer, or assistant officer of the Registrant, or person who serves as a
director, officer, or assistant officer of another corporation at the request of
the Registrant, shall be liable for any loss or damage suffered by the
Registrant due to an act or omission of such person unless he/she shall have
been guilty of misconduct or gross negligence. Chapter 415 of the Hawaii Revised
Statutes (Hawaii Business Corporation Act) and the Registrant's Articles of
Association also permit the Registrant to purchase insurance on behalf of its
directors, officers or agents against such liabilities and expenses and the
Registrant has purchased such liability insurance.
Chapter 414 of the Hawaii Revised Statutes was amended in 1989
to give corporations the power, provided shareholder approval is obtained, to
eliminate or limit the personal liability of directors in actions for monetary
damages brought by the corporation or its shareholders against a director for
breach of fiduciary duty. The Registrant's shareholders have approved an
amendment to the Registrant's Articles of Association which limits such personal
liability. Corporations may not, however, eliminate or limit a director's
liability for any breach of a duty of loyalty, any act or omission not performed
in good faith or involving intentional misconduct or a willful or reckless
disregard of the director's fiduciary duty, any transaction from which a
director received an improper benefit or any willful or negligent violation of
any provision of Chapter 414 of the Hawaii Revised Statutes concerning payment
of dividends or purchase or redemption of the corporation's stock. Any
elimination or limitation of directors' liability would apply only to acts or
causes of action occurring or arising after the effective date of the amendment.
Item 7. Exemption from Registration Claimed
------------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement
No. 000-00565 on Form 8-A, together with any exhibits
thereto, which are incorporated herein by reference
pursuant to Item 3(d) to this Registration Statement.
5.1 Opinion and consent of Cades Schutte LLP
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Cades Schutte LLP is contained in Exhibit 5.1.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1* 1998 Stock Option/Stock Incentive Plan.
99.2** Amendment No. 1 to the 1998 Stock Option /Stock Incentive
Plan.
99.3*** Amendment No. 2 to the 1998 Stock Option/Stock Incentive Plan.
99.4* 1998 Non-Employee Director Stock Option Plan.
99.5** Amendment No. 1 to the 1998 Non-Employee Director Stock Option
Plan.
99.6**** Amendment No. 2 to the 1998 Non-Employee Director Stock Option
Plan.
99.7***** Amendment No. 3 to the 1998 Non-Employee Director Stock Option
Plan.
* Exhibits 99.1 and 99.4 are incorporated by reference to Exhibits
10.b.1.(xxxii) and 10.b.1.(xxxiii), respectively, to Registrant's Quarterly
Report on Form 10-Q for the Quarter ended March 31, 1998.
** Exhibits 99.2 and 99.5 are incorporated by reference to Exhibits
10.b.1.(xi) and 10.b.1.(xiii), respectively, to Registrant's Annual Report
on Form 10-K for the year ended December 31, 2000.
*** Exhibit 99.3 is incorporated by reference to Exhibit 10.b.1.(xlvi) to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended March 31,
2002.
**** Exhibit 99.6 is incorporated by reference to Exhibit 10.b.1.(xiv) to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended March 31,
2004.
***** Exhibit 99.7 is incorporated by reference to Exhibit 10.b.1.(xvi) to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended June 30,
2004.
Item 9. Undertakings
------------
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement: (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference into this Registration
Statement; (2) that for the purpose of determining any liability under the 1933
Act each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and (3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the Registrant's 1998 Stock Option/ Stock Incentive Plan and the
1998 Non-Employee Director Stock Option Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8, and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Honolulu, State of Hawaii
on this 13th day of December, 2004.
ALEXANDER & BALDWIN, INC.
By: /s/ Allen Doane
----------------------------------------
Allen Doane
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Alexander &
Baldwin, a Hawaii corporation, do hereby constitute and appoint Allen Doane,
President and Chief Executive Officer and Christopher J. Benjamin, Vice
President and Chief Financial Officer, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms that all said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Allen Doane President and Chief December 13, 2004
- --------------------------- Executive Officer
Allen Doane (Principal Executive Officer)
/s/ Christopher J. Benjamin Vice President and Chief December 13, 2004
- --------------------------- Financial Officer
Christopher J. Benjamin (Principal Financial
Officer)
/s/ Thomas A. Wellman Vice President, Controller December 13, 2004
- --------------------------- and Treasurer
Thomas A. Wellman (Principal Accounting
Officer)
/s/ Michael J. Chun Director December 13, 2004
- ---------------------------
Michael J. Chun
/s/ Walter A. Dods, Jr. Director December 13, 2004
- ---------------------------
Walter A. Dods, Jr.
/s/ Charles G. King Director December 13, 2004
- ---------------------------
Charles G. King
/s/ Constance H. Lau Director December 13, 2004
- ---------------------------
Constance H. Lau
/s/ Carson R. McKissick Director December 13, 2004
- ---------------------------
Carson R. McKissick
/s/ Maryanna G. Shaw Director December 13, 2004
- ---------------------------
Maryanna G. Shaw
/s/ Charles M. Stockholm Director December 13, 2004
- ---------------------------
Charles M. Stockholm
/s/ Jeffrey N. Watanabe Director December 13, 2004
- ---------------------------
Jeffrey N. Watanabe
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement
No. 000-00565 on Form 8-A, together with any exhibits
thereto, which are incorporated herein by reference
pursuant to Item 3(d) to this Registration Statement.
5.1 Opinion and consent of Cades Schutte LLP
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Cades Schutte LLP is contained in Exhibit 5.1.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1* 1998 Stock Option/Stock Incentive Plan.
99.2** Amendment No. 1 to the 1998 Stock Option /Stock Incentive
Plan.
99.3*** Amendment No. 2 to the 1998 Stock Option/Stock Incentive Plan.
99.4* 1998 Non-Employee Director Stock Option Plan.
99.5** Amendment No. 1 to the 1998 Non-Employee Director Stock Option
Plan.
99.6**** Amendment No. 2 to the 1998 Non-Employee Director Stock Option
Plan.
99.7***** Amendment No. 3 to the 1998 Non-Employee Director Stock Option
Plan.
* Exhibits 99.1 and 99.4 are incorporated by reference to Exhibits
10.b.1.(xxxii) and 10.b.1.(xxxiii), respectively, to Registrant's Quarterly
Report on Form 10-Q for the Quarter ended March 31, 1998.
** Exhibits 99.2 and 99.5 are incorporated by reference to Exhibits
10.b.1.(xi) and 10.b.1.(xiii), respectively, to Registrant's Annual Report
on Form 10-K for the year ended December 31, 2000.
*** Exhibit 99.3 is incorporated by reference to Exhibit 10.b.1.(xlvi) to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended March 31,
2002.
**** Exhibit 99.6 is incorporated by reference to Exhibit 10.b.1.(xiv) to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended March 31,
2004.
***** Exhibit 99.7 is incorporated by reference to Exhibit 10.b.1.(xvi) to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended June 30,
2004.
EXHIBIT 4
INSTRUMENTS DEFINING THE RIGHTS OF STOCKHOLDERS
REFERENCE IS MADE TO REGISTRANT'S REGISTRATION STATEMENT NO. 000-00565 ON
FORM 8-A, TOGETHER WITH ANY EXHIBITS THERETO, WHICH ARE INCORPORATED HEREIN BY
REFERENCE PURSUANT TO ITEM 3(d) TO THIS REGISTRATION STATEMENT.
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration
Statement of Alexander & Baldwin, Inc. on Form S-8 of our report dated
February 6, 2004, appearing in the Annual Report on Form 10-K
of Alexander & Baldwin, Inc. and subsidiaries for the year ended
December 31, 2003.
/s/ Deloitte & Touche, LLP
- -------------------------
Deloitte & Touche, LLP
December 13, 2004
EXHIBIT 24
POWER OF ATTORNEY
REFERENCE IS MADE TO PAGE II-4 OF THIS REGISTRATION STATEMENT.
EXHIBIT 23.2
CONSENT OF CADES SCHUTTE LLP IS CONTAINED IN EXHIBIT 5.1
EXHIBIT 5.1
OPINION AND CONSENT OF CADES SCHUTTE LLP
December 13, 2004
Alexander & Baldwin, Inc.
822 Bishop Street
Honolulu, Hawaii 96813
Re: Alexander & Baldwin, Inc. - Registration Statement for
Offering of an Aggregate of 2,250,000 Shares of Common Stock
(the "Shares")
Dear Ladies and Gentlemen:
We have acted as counsel to Alexander & Baldwin, Inc., a
Hawaii corporation (the "Company"), in connection with the registration on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended,
of 1,900,000 shares of the Company's common stock issuable under the Company's
1998 Stock Option/ Stock Incentive Plan and 350,000 shares of the Company's
common stock issuable under the Company's 1998 Non-Employee Director Stock
Option Plan (collectively, the "Plans").
This opinion is being furnished in accordance with the
requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the
corporate proceedings taken by the Company with respect to the establishment and
amendment of the Plans. Based on such review, we are of the opinion that, if, as
and when the Shares have been issued and sold (and the consideration therefor
received) pursuant to the provisions of stock option agreements duly authorized
under the Plans and in accordance with the Registration Statement, such Shares
will have been duly authorized, and such shares will be validly issued, fully
paid and nonassessable.
We do not express any opinion as to the laws of any
jurisdiction other than the corporate laws of the State of Hawaii, including
statutory and reported decisional law thereunder, and we do not
express any opinion as to the effect of any other laws on the opinion stated
herein.
We consent to your filing this letter as Exhibit 5.1 to the
Registration Statement. In giving the opinion set forth in this letter, we do
not hereby admit that we are acting within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules or regulations of the Securities and Exchange Commission thereunder.
This opinion letter is rendered as of the date first written
above and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above and we render no opinion,
whether by implication or otherwise, as to any other matters relating to the
Company, the Plans or the Shares.
Very truly yours,
/s/ Cades Schutte LLP
Cades Schutte LLP