Woo vs. Harmon - Witness David Cole, CEO, Maui Land & Pineapple, Inc.

David C. Farmer, Successor-Trustee vs. Harmon

(Formerly Woo vs. Harmon & Nicholson vs. Harmon)

CV05-00030 DAE KSC

U.S. District Court For the District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

—

DEFENDANT’S WITNESS

DAVID C. COLE

Maui Land & Pineapple Company, Inc.
120 Kane St.
Kahului, HI 96732

Fax: (808) 871-0953
Email: dcole@mlpmaui.com
Website: www.mlpmaui.com

CEO/Chairman of the Board, Maui Land and Pineapple, Inc.; Chairman of the Board of Trustees of The Nature Conservancy of Hawaii; Member, Board of Advisors, Kamehameha Schools; Trustee, AOL Sesame Workshop; Director, Hawaii Superferry.

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NEW DISCOVERY (11-08-08): More undisclosed conflicts of interests between Kamehameha Schools, The Nature Conservancy, Bishop Museum, AOL, Hawaii Super Ferry, Maui Land & Pineapple, OHA, Aon, Carlyle Group, Judge Barry Kurren, Faye Kurren, Haunani Apoliona, Steve Case, Suzanne Case, Dan Case, Ray Fuqua, Judith Neustadter Fuqua, Linda Lingle, Oprah Winfrey, David Farmer, Duncan MacNaughton, etc.:

November 8, 2008

Maui Pine's Cole stepping down as losses mount

Company $8.7 million in red in third quarter

By RICK DAYSOG, Advertiser Staff Writer

David Cole, who oversaw the downsizing of Maui Land & Pineapple Co.'s pineapple operations, is stepping down as the company's CEO and chairman at the end of the year.

Cole's resignation from the $4.1 million-a-year post was disclosed yesterday after MLP posted an $8.7 million loss for third quarter 2008.

The 56-year-old Cole, the company's CEO since 2003, will be replaced by Chief Operating Officer Robert Webber.

MLP also announced that former Hawaiian Tel CEO Warren Haruki will become chairman of the company's board on Jan. 1.

"(The) board has elected Robert Webber to succeed me as the president and CEO," Cole said in a news release.

"Rob has served as the company's chief operating officer since March 2008 and CFO since May 2006 and is exceptionally well equipped to steer the company through these challenging times."

Shares of MLP dropped 15 cents to close at $14.86 on the New York Stock Exchange yesterday.

The stock hit a 52-week low of $12.54 last week after the company disclosed that Lehman Brothers, the chief lender on the $370 million Ritz-Carlton Club and Residences at Kapalua Bay, filed for bankruptcy in New York and cut off funding on the project.

Company spokeswoman Terri Freitas Gorman said Cole's decision was not related to the company's economic situation or problems in the pineapple growing business but is part of "a planned transition" which began earlier this year when Webber was named as the company's COO.

Gorman said Cole, who owns a home in Kula, will remain on Maui and will serve on MLP's board.

He also is a director of the Hawaii Superferry and Hawaii Bioenergy LLC, a local renewable energy concern. MLP is an investor in both companies.

When he joined the company in 2003, Cole was hailed as a high-tech entrepreneur who would save MLP's agricultural operations.

But when the company laid off 274 workers in July, Cole became the target of criticism in the close-knit Maui community.

Douglas MacCluer, former vice president of MLP's pineapple operations, said Cole's tenure at the company is marked by a number of costly mistakes.

Cole sold MLP's promising Costa Rica plantation and sold off hundreds of acres of fertile pineapple-producing lands in Hali'imaile in Upcountry Maui, he said.

When Cole came on board in 2003, pineapple accounted for more than half of the company's revenues.

Today, it represents less than a third of MLP's business.

"I would say that the company has done terribly under his leadership," said MacCluer. "I think that change was inevitable and is probably good for the company."

Cole's defenders have said Cole and MLP's management has done their best to preserve pineapple, which lost more than $60 million in the past three years due in large part to low-cost foreign competition.

Yesterday, MLP disclosed that its agricultural unit posted an operating loss of $9.5 million in third quarter 2008, which compares with a loss of $5.6 million in the year-earlier quarter.

Operating profits at the company's community development arm declined to $2.5 million during the third quarter from the year-earlier's $9 million.

More recently, the company's development of the 146-unit Ritz-Carlton Club and Residences was affected by lender Lehman's failure to deliver more than $50 million in necessary funding.

The project — a partnership between MLP, Marriott International and former America Online co-founder Steve Case's Exclusive Resorts LLC — is 83 percent complete and more than $200 million of the project's $370 million in financing has already been funded.

But MLP and Marriott had to provide an emergency bridge loan due to the lending shortfall.

The partners also are looking to refinance the Lehman debt with new lenders.

Prior to joining MLP, Cole, a Kailua native and University of Hawai'i-Manoa graduate, served as a senior executive at AOL and headed software company Ashton-Tate Inc.

Last year, he earned $4.1 million, making him the second-highest paid CEO in Hawai'i behind Alexander & Baldwin Inc.'s Allen Doane, who received $8.6 million.

Cole's 2007 compensation was more than double his 2006 pay of $1.5 million.

The 48-year-old Webber joined MLP in 2006 after serving as president of DynTek Inc., an Irvine, Calif.-based provider of professional technology services.

He earned $856,958 as MLP's CFO last year.

"It has been a privilege to serve alongside David Cole and we will execute his vision for our company," Webber said in a news release.

"We have a very strong management team in place and we are well positioned to tackle the challenges ahead."

March 27, 2006

The Exchange

By Anthony Pignataro, Maui Times

WHO GAVE: John Garibaldi — President, Hawaii Superferry, Inc.

WHO RECEIVED: Governor Linda Lingle

AMOUNT: $2,800

Lost in all the discussion over what will happen with the state Senate’s compromise bill that requires a full Environmental Impact Statement on the proposed Superferry (at taxpayer expense) but allows Hawaii Superferry, Inc. (HSF) to start operations this July is what will happen if the bill manages to make it all the way to Governor Linda Lingle’s desk. Don’t expect it to be pretty. In addition to Garibaldi’s contribution cited above, here’s what HSF principals and investors gave to Lingle during the 2006 campaign:

• John Lehman (HSF Chairman): $3,000

• Christopher McKenna (Lehman Brothers): $2,500

• Tig Krekel (HSF Vice Chairman): $3,000

• David Cole (HSF Director/Maui Land & Pineapple President, Chairman and CEO): $4,000

• Margaret Cole (David Cole’s wife): $6,000

• Stephen Case (HSF investor): $3,000

When all that’s added to Garibaldi’s $2,800 contribution, HSF, its directors and investors gave Lingle $24,300 in total during her 2006 reelection campaign. Where I come from, that translates into the bill being Dead On Arrival when Lingle gets it.

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From The Hawaii Superferry website:

David C. Cole is president, chairman and chief executive officer of Maui Land & Pineapple Co. Cole earned a bachelor’s degree in liberal studies from the University of Hawaii. Cole is also currently president of Aquaterra, Inc., an investment management firm. He was chief executive officer at the software company Ashton-Tate, president of the computer magazine publisher Ziff Communications and the Ziff-Davis Publishing Group, and chairman, president and chief executive officer of the Internet-based software company NaviSoft Inc. He was also an officer at America Online after it acquired NaviSoft in 1994.

Cole is currently chairman of the 425-acre Sunnyside Farms, a specialty consumer products retailer and supplier of premium organic meats and produce in Virginia. He is also a director of Twin Farms Collection, a luxury resort company with properties in Vermont and California, Grove Farm Co., Inc., Island Press, Sesame Workshop and PBS.

Other affiliations include Chancellor's Advisory Council of Maui Community College, Maui Economic Development Board, Maui Chamber of Commerce, and Kamehameha Schools Board of Advisors. Cole is a former director of The Nature Conservancy and World Wildlife Fund and presently serves as chairman of The Nature Conservancy of Hawaii.

www.kycbs.net/Hawaii-Superferry-Directors.mht

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April 10, 2005

Old leaders question
new ones at ML&P
By HARRY EAGAR, Maui News

KAHULUI – One way to quantify the difference between the old Maui Land & Pineapple Co. and the new ML&P is to compare two employee housing projects – Kapua Village and Pulelehua.

Kapua Village was the 11-acre employee housing project at Mahinahina that ML&P began planning in the early 1990s, receiving initial approvals in 1997. But opposition from surrounding residents blocked development for more than five years, with construction and sales finally allowed in 2003.

Pulelehua is a 312-acre project district planned as a mixed-use residential development primarily for ML&P workers, which ML&P is trying to get permitted almost 10 times as fast. New Chief Executive Officer/Chairman David Cole unveiled the concept last year and expects shovels in the ground by this time next year.

The qualitative differences are more difficult to put a finger on.

But they do not sit well with two former directors: members of the Cameron family that put together, and managed ML&P over nearly four decades.

Mary “Maizie” Cameron Sanford says, “I feel sorry for the old-timers, not just the executive ones but the workers.

“They haven’t come to me (to complain), but I have certainly heard when I have listened to them. They miss the old days. It’s not the same company anymore.”

The man who is changing it, Chairman Cole, would hardly accept such a critique without qualifications.

He is trying to restructure ML&P from the ground up. He says that when he came aboard (as president, at first) in late 2003 and did a 100-day assessment, “the company was broken in every single line of business.”

Last month, he told employees that, without changes, Kapalua Resort was “heading for extinction.”

At the same time, he contends that the business changes can be made without giving up the qualities that made ML&P, the largest company with headquarters on Maui, a community stalwart. Qualities that Sanford sums up as “integrity.”

Under her father, J. Walter Cameron, and her brother, Colin Cameron, she says, ML&P “did have integrity. It was a company to be relied upon.”

It was not unique in Hawaii, but it was a notable example of a company that made it its business to get involved in lots of things – from the founding of the J. Walter Cameron Center to the Maui Pacific Center to the Kapalua Music Festival.

Cole, who got to know Colin Cameron through The Nature Conservancy, also considers that he is carrying forward that tradition of being a corporation concerned with more than profit-and-loss statements.

Cole was recently elected chairman of The Nature Conservancy of Hawaii, for example.

As ML&P chairman, Cole worked with employees to devise a written mission statement. He appears to consider it as a more formal expression of the spirit in which the Camerons directed their enterprise, even if their style was less given to formal statements and huge meetings with staff.

Cameron style was more along the lines of company picnics and connections made through generations of living together as employer-employee (or luna-worker in plantation days) on a small, isolated island....

Maizie Sanford admits that much of her distress at Cole’s direction of the company is “sentimental.”

More specific criticisms of the business policies of the new ML&P come from Sanford’s daughter, Claire Sanford.

Sanford, who lives in Massachusetts, was on the board of directors and was the only member of the old board to vote against offering the presidency to Cole, with a contract that she felt was outrageously overpriced in stock options.

Shortly after Cole came in October 2003, he discovered a box of gold pineapple pins in the corporate offices. Nobody could remember their origin, but they appeared to have been given out as retirement or longevity markers at one time.

A year ago, Cole gave the pins to some of the longest-serving Maui Pineapple Co. employees at his first big confab with the staff at Maui Arts & Cultural Center.

About the same time, at a board meeting, he gave pins to the two Sanfords.

According to Maizie Sanford, her daughter asked if that meant she “was being retired, too,” and that Cole responded along the lines of, “Of course not, you know how much we love you.”

However, Claire Sanford was not renominated when her term expired, and Maizie Sanford, who was a director emeritus (with no vote), was also let go.

Claire Sanford, in a telephone interview, said, “I can only speculate as to why I was not renominated.

“They could say they were looking for strong business background.”

Cole says: “I felt it was a corporation going stale,” so he went for a board of “broader expertise . . I didn’t see any point in continuing emeritus members.”

There were two at the time. The other was Daniel Case, a Honolulu lawyer and the father of Steve Case, Cole’s business associate and the owner of the largest block of ML&P stock.

At any rate, says Claire Sanford, “I was the only person voting against what David Cole was requesting. . . I could be looked on as somewhat of a troublemaker.”

For a while last year, the Camerons were under the impression that they would have no representation on the ML&P board as of January.

That would have been extraordinary. Steve Case owns more than 40 percent of the stock, but the Cameron family has nearly 40 percent.

In the past, it was voted together, and along with another, smaller block of stock in an Employee Stock Ownership Plan, gave the family control of the company, even if it did not hold a majority of the shares.

Although ML&P is a thinly held public company, so comparisons with more widely held companies are not necessarily valid, it would ordinarily be unusual for an ownership interest so large not to take a seat (or seats) on a corporate board, if it wanted them.

As it happened, however, at a board meeting earlier this year, Richard Cameron, who was chairman when Case bought into the company in 1999, was asked to stay on the board.

Referring to the wholesale replacement of Maui residents – both Camerons and veteran executives that he ousted – Cole said he recognized “the special needs the people of Hawaii and of Maui have from their business leaders.

“Richard is an extremely valuable board member in that respect. He’s been connected for a long time through the Kapalua Charities.”

Richard Cameron is chairman of Kapalua Charities, which raised and distributed $353,536 to community-service organizations this year through the Mercedes Championship golf tournament.

With a foot in each camp now, Richard Cameron said he did not want to discuss the internal workings of the board....

While Maizie Sanford is more concerned with the feeling of the company, Claire Sanford is skeptical of the business direction.

This has to be looked at in two parts: Maui Pine, the core company; and Kapalua Land Co., Colin Cameron’s innovation when he decided to remake a plantation into a resort and real estate enterprise.

Maui Pineapple is continuing a strategy that began under the old board, moving from canned to fresh. Only, the new Maui Pine is moving much faster.

Claire Sanford considers that pine wasn’t doing as badly as Cole has claimed. She says that if you eliminate a costly legal battle over ownership of the Maui Gold variety (won by Maui Pine) and some other expenses, pine was not in such terrible shape.

Cole shook up both his employees and the Camerons when he announced the end of pine at Honolua in West Maui.

But, after bringing in Oahu experts in growing pine for the fresh fruit trade, he changed his mind, and plantings have been expanded at Honolua.

While his predecessors at ML&P were cutting back the largely unprofitable canned product, he has slashed it ruthlessly.

At the employees’ meeting, Maui Pine President Brian Nishida said Maui Pine is abandoning its attempt to compete with foreign canned pine for places on supermarket shelves....

Continuity is not quite so linear at Kapalua, however.

The resort has lost a good deal of its eclat, especially the Kapalua Bay Hotel. ML&P, which had sold the hotel but kept the land under it, watched as a series of owners ran the property down.

Under Cole, it exchanged the land for a 51 percent interest in the land and the hotel. And then announced that it would be torn down.

That shocked many, including Maizie Sanford, who said the hotel had been her brother’s “pride and joy.”

She says she has heard, secondhand, that the employees also are “unhappy,” as well they might be, since many will be out of work from 2006 to 2008, unless Cole can find alternative work for them, which he is trying to do.

The extensive changes to the resort also shocked many, including some longtime patrons of the Kapalua Bay Hotel. Some complained when they learned that it will be replaced with a membership club, which will cost $375,000 to join.

One couple, who had honeymooned at the Kapalua Bay Hotel and returned every year, e-mailed The Maui News that they were heartsick at the thought of not being able to return.

Claire Sanford says “the jury is still out” on whether the massive reinvestment and redirection of the resort will make money.

She contends that Cole has spent so much ML&P money on things like the Hawaii Superferry (a $1 million investment) and lawsuits, not to mention high executive compensation, that it puts the company in a financially precarious position.

“It’s hard to say,” she says, because now that she is no longer on the board she no longer knows as much about the internal financial arrangements. “I am not privy to the strengths and weaknesses.”

But she worries.

She has no intention of selling her sizable stock holdings, and her mother says she “cannot bear” to think of selling her even larger block, though both could realize millions over what the stock was worth when Cole took over.

Though the price varies, the stock price has roughly doubled.

The focus on stock value – not surprising when the principal owner is the man who made a great deal of money for himself on stock price swings and lost even more for investors – disturbs Maizie Sanford.

“I was brought up to think that the important thing was that the company cared for its employees and the stock was to generate dividends,” she says. “That’s what we (the family) relied on.”

She acknowledges that “Maui Land and Pine was not paying dividends for a while,” because it was losing money most years.

As Claire Sanford points out, it still isn’t paying a dividend.

When the negotiations over hiring Cole were under way, she says, “One of the things we spoke about was we all felt very strongly that a good indicator of a strong operation is paying dividends.”

Cole “gave us the answers we were looking for,” but, “I think he was speaking out of both sides of his mouth.

“I don’t think the company in any better position now. Dividends have not been forthcoming.”

“To say raising the value on the stock market is the right thing to do – to my mind – is not it,” Maizie Sanford says.

Never sold on Steve Case, who swapped AOL stock for the giant Time-Warner company, then watched the combined companies shrink in the eyes of Wall Street to the value of what either one had been worth alone, Claire Sanford wonders what is really behind the deals of three Case-controlled companies: ML&P, Exclusive Resorts and Miraval, Life in Balance.

“It leaves you wondering who truly benefits from decisions the board is making right now,” she says. “I’m not benefitting.”

Exclusive Resorts is the outfit that sells the right to pay to stay in the yet-to-be-built Kapalua Bay Hotel (or others in its stable) for $375,000. It is a partner in rebuilding the hotel.

Miraval, an Arizona spa, is partnering with Kapalua to build three spas, also as part of the redevelopment of the old hotel.

Steve Case is the major shareholder in ML&P and the majority shareholder in both Miraval and Exclusive....

Case bought into ML&P in 1999, working out a right-of-first-refusal arrangement with the Camerons, by which he would get their shares at a negotiated price if they wished to sell. (The negotiated price turned out to be problematic, and some of the transactions went to arbitration, but neither side is commenting.)

Claire Sanford was not happy. She said the family really didn’t know Case, except as a celebrity businessman.

“He perhaps gets more press in the East, certainly a lot more negative press,” she says.

But he was presented to the family as a “white knight” who would help them out of a conundrum with the Harry & Jeannette Weinberg Foundation.

Harry Weinberg, the most successful stock speculator in Hawaii history, had been at loggerheads with Colin Cameron, a hard-nosed businessman who manipulated his board to keep Weinberg off when he thought Weinberg was out to break up the company.

But when Weinberg died, his block of stock went to the foundation, which was on excellent terms with the family and the old management.

However, Weinberg wrote a will that put his foundation in a bind for cash – it could not stand to hold such a large block of stock that was not paying dividends.

ML&P hired Dan Case, who had done legal work for it before, to investigate how to rescue the foundation without either breaking up the company or bringing in incompatible new investors.

“The Weinberg representatives were very respectful of the family’s heritage and feeling toward the island,” says Claire Sanford, whose husband served on the Weinberg board in Baltimore and grew to understand and admire its members.

She was not, and still is not, persuaded that Case or Cole have the same feelings, despite their backgrounds as “local (Oahu) boys.”

“I thought Steve Case was not really a very good alternative,” says Claire Sanford. But she said, “I didn’t have a viable alternative.” So she went along.

She describes other members of the family as “extraordinarily naive” in accepting Dan Case’s description of Steve Case as a white knight.

“I did not like the way that Steve Case’s father brought him to us,” she says. “He had been our lawyer, he knew exactly where we stood.

“We were practically naked before Steve Case, but we knew very little about him.”

In his filings with the Securities and Exchange Commission, Steve Case said he had no plans to change the company, and in the early years he didn’t.

In fact, says Claire Sanford, he wasn’t around and didn’t talk to people much.

But she is critical of what Dan Case did, without being specific.

“His father was extremely involved, in my opinion inappropriately, pressuring Gary Gifford to do different things.”

She says she thought Dan Case was “overstepping his bounds as a board member,” though when Dan Case became an emeritus member that slowed down.

Dan Case did not return calls for this story, nor did Gifford, who was the chief executive officer until retired – actually forced out – by Dan Case two years ago. Richard Cameron, board chairman at the time, also stepped down, although he remained as a board member.

Whether Dan Case already had Cole in mind to run ML&P is unknown, but Cole says they had been involved in several business deals together. AOL bought a software company headed by Cole, and Cole became president of AOL’s New Enterprises Group.

When Cole left AOL, a no-competition agreement kept him from returning to the digital economy, so he started an organic farm in Virginia and a small but pricey resort, Twin Farms, in Vermont.

Steve Case was his partner in some of these and other ventures, including real estate deals.

Cole, for example, is on the board of Grove Farm on Kauai, another old-time Hawaii company with lots of land and little income that Steve Case bought control of....

http://www.mauinews.com/story.aspx?id=7757

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August 20, 2001

Island-raised Cole moves
from software to farming

By Joan Namkoong, Advertiser Food Editor

He's a techie in every sense of the word, a leader in the world of computers and the Internet and a man who has made a fortune in it. Now he's growing food, one of man's most basic low-tech endeavors, but doing it with a high-tech mind set and according to principles that help to sustain the earth.

David Cole is a local boy who has made good.

Technically, Cole is not a keiki o ka 'aina; he was born in Pennsylvania. But he came to Hawai'i as an infant, his father an electrical engineer recruited to Hawai'i by RCA. "He was an inventor," said Cole, who has two sisters and a brother. "My parents live in the same house in Kailua that I grew up in."...

He grew up in the public school system, is an alumnus of the University of Hawai'i, where he was a liberal arts major and served as vice president of Associated Students. After graduation, Cole left Hawai'i to pursue a law degree at Antioch College in Washington, D.C. But he dropped out to work for Prentice Hall, a publisher of college textbooks and professional reference books. It was there that he developed an interest in computer software as he talked with scientists and engineers in the then fledgling world of computers. He signed up authors to write software but was fired because Prentice Hall was a book publisher, not a software company.

It was a pivotal turning point for Cole: "I was born as an entrepreneur."

As a strategist for the then-young Microsoft, as a key player in the evolving BYTE magazine for techies, Cole knew that there was a market for information about the coming microcomputer revolution in the late 1970s. The economics of software publishing became the topic of seminars he sold and then produced. The consumers of his seminars and information became his clients, and soon he was involved in the production of software products and pioneered the strategy of licensing software.

Moving from company to company, he helped launch programs that organized data (DBase II at Ashton Tate), developed consumer computer publications (at Ziff Communications) and worked on international strategies, local online services, business-to-business groups and telecommunications (at America Online).

In between, Cole and his family returned to Hawai'i, settling in a house on Makiki Heights, sending his four children to Punahou School and becoming involved in the community, primarily with the Nature Conservancy. But after several years, he returned to the Mainland to settle in the Washington, D.C. area, though maintaining a residence here.

It was at Ashton Tate that Cole struck gold in stock options, forming the financial base from which his future endeavors evolved. He doesn't like to talk about money; he has it and has been generous with it, financing a personal family charitable foundation, donating to the Nature Conservancy, the Academy of Arts, the Contemporary Museum, Punahou and other Hawai'i charitable organizations....

Farm owner

Five years ago, Cole purchased 425-acre Sunnyside Farms in Washington, Va., from descendants of the original owners. "Maggie wanted to put roots down and have a place to call home," said Cole of his high school sweetheart and wife of 31 years.

But Cole was not about to become just a gentleman farmer; he had a vision and strategy for Sunnyside Farms and he is pursuing it with focus, determination and energy.

When he left AOL, Cole was faced with a one-year noncompete agreement. "I couldn't do anything I knew," said Cole. "Biology was a great interest, so I spent my non-compete time learning about farming — organic farming. The year gave me time to do intensive research and recruit people."...

Cole is immersed in farming now. "David sets his mind on things with laser like intensity and he applies this to everything in his life," said close friend Kelvin Taketa, president and CEO of the Hawaii Community Foundation. "He's a person who sets the bar high for himself."...

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David Cole is expected to testify regarding his business, professional and personal relationships with Linda Lingle, James “Kimo” Apana, Kamehameha Schools, Dr. Elizabeth Buyers, Eric Martinson, Crystal K. Rose, Judith Neustadter Fuqua, Maui County Planning Commission, Hawaii Land Use Commission, J.P. Schmidt, Dee Jay Mailer, Colbert Matsumoto, Stanley Hong, Jeff Watanabe, Jack Abramoff, Henry Paulson, Kekoa Paulsen, Peter Savio, Faye Kurren, The Nature Conservancy of Hawaii, Chris Yuen, Suzanne Case, Dan Case, Steve Case, Jeffrey Case, Ed Case, Oprah Winfrey, Office of Hawaiian Affairs, Haunani Apoliona, Gilbert Tam, Robert K.U. Kihune, Sandwich Isles Communications, Summit Communications, AOL Sesame Workshop, Sanford Murata, Queen Emma Foundation, Peter Young, John Garibaldi, Hawaii Superferry, Guido Giacometti, Susan Tius, Tim Johns, Kelvin Taketa, The Hawaii Community Foundation, James Nicholson, David Farmer, June Jones, and other entities to be named upon discovery.