sv8
As
filed with the Securities and Exchange Commission on November 30, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DOLE FOOD COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
(State or Other Jurisdiction
of Incorporation or Organization)
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99-0035300
(I.R.S. Employer
Identification Number) |
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One Dole Drive
Westlake Village, California
(Address of Principal Executive Offices)
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91362
(Zip Code) |
DOLE FOOD COMPANY, INC. 2009 STOCK INCENTIVE PLAN
(Full Title of the Plan)
C. Michael Carter
Dole Food Company, Inc.
One Dole Drive
Westlake Village, California 91362
(Name and Address of Agent for Service)
(818) 879-6600
(Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer o |
Accelerated filer o |
Non-accelerated filer þ (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed maximum |
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Proposed maximum |
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Amount of |
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Title of securities |
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Amount to be |
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offering price per |
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aggregate offering |
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registration |
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to be registered |
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registered (1) |
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share (2) |
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price (2) |
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fee |
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Common Stock, par
value $0.001 per
share |
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6,000,000 |
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$11.48 |
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$68,880,000 |
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$3,843.50 |
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(1) |
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities
Act), this Registration Statement also covers such indeterminable number of additional
shares of the Registrants Common Stock as may become issuable to prevent dilution in the
event of stock splits, stock dividends, or similar transactions. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule
457(c) and Rule 457(h) under the Securities Act, based upon the average of the high and low
prices of the Registrants Common Stock on the New York Stock
Exchange on November 27,
2009. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed by Dole Food Company, Inc. (the
Registrant), relating to 6,000,000 shares of its common stock, par value $0.001 per share
(Common Stock), issuable to eligible officers, employees, nonemployee directors and service
providers of the Registrant and its subsidiaries under the Dole Food Company, Inc. 2009 Stock
Incentive Plan (the Plan).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement pursuant to the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Not filed as part of this Registration Statement pursuant to the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have previously been filed by the Registrant with the
Securities and Exchange Commission (the Commission) are incorporated by reference herein and
shall be deemed to be a part hereof:
(1) The prospectus filed by the Registrant with the Commission pursuant to Rule 424(b)(4)
under the Securities Act of 1933, as amended (the Securities Act), on October 26, 2009, relating
to the registration statement on Form S-1, as amended (Registration No. 333-161345), which contains
the Registrants audited financial statements for the latest fiscal year for which such statements
have been filed;
(2) The Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended October 10,
2009, filed with the Commission on November 20, 2009;
(3) The Registrants Current Report on Form 8-K filed with the Commission on October 29, 2009;
and
(4) The description of the Registrants Common Stock contained in the Registrants
Registration Statement on Form 8-A filed with the Commission under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), on October 20, 2009, including any
amendments or reports filed for the purpose of updating such description.
In addition, all reports and other documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment hereto, which indicates that all
securities offered hereunder have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
For purposes of this Registration Statement, any document or any statement contained in a
document incorporated or deemed to be incorporated herein by reference shall be deemed to be
modified or superseded to the extent that a subsequently filed document or a statement contained
herein or in any other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in such document. Any
statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Under no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K
be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law (DGCL) allows a corporation to eliminate
the personal liability of directors of a corporation to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except where the director breached the
duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of
the DGCL or obtained an improper personal benefit.
Section 145 of the DGCL provides for the indemnification of a corporations officers,
directors and other corporate agents in terms sufficiently broad to indemnify such persons under
circumstances for liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. The Registrants certificate of incorporation and bylaws provide for
indemnification of its officers, directors, employees and agents to the extent and under the
circumstances permitted under the DGCL. The Registrants Bylaws also expressly authorize the
Registrant to carry directors and officers insurance providing indemnification to its directors
and officers for some liabilities.
In addition to the indemnification provided by the Registrants certificate of incorporation
and bylaws, the Registrant has entered into agreements to indemnify its directors and executive
officers. These agreements, among other things, require the Registrant to indemnify these
directors and officers for certain expenses, including attorneys fees, judgments, fines and
settlement amounts incurred by any such person in any action or proceeding, including any action by
or in the Registrants right, arising out of that persons services as a director or officer of the
Registrant or any of its subsidiaries or any other company or enterprise to which the person
provides services at the Registrants request.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the
Registrant with the Commission, each of the following exhibits is filed herewith:
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Exhibit No. |
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Exhibit Description |
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4.1
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Amended and Restated Certificate of Incorporation of Dole Food Company, Inc., effective
October 28, 2009 (incorporated by reference to Exhibit 3.1 to the Registrants Current Report
on Form 8-K filed with the Commission on October 29, 2009). |
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4.2
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Amended and Restated Bylaws of Dole Food Company, Inc., effective October 28, 2009
(incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K filed
with the Commission on October 29, 2009). |
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4.3
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.18 to the
Registrants Registration Statement on Form S-1/A (Registration No. 333-161345) filed with the
Commission on October 22, 2009). |
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5.1*
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Opinion of Gibson, Dunn & Crutcher LLP. |
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23.1*
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Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1). |
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23.2*
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Consent of Deloitte & Touche LLP. |
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24.1*
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Power of Attorney (included on signature page hereto). |
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99.1
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Dole Food Company, Inc. 2009 Stock Incentive Plan (incorporated by reference to Exhibit 10.14
to the Registrants Registration Statement on Form S-1/A (Registration No. 333-161345) filed
with the Commission on October 9, 2009). |
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective registration
statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; 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 offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the 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 Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all 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 Westlake Village, State of
California, on this
30th day of
November, 2009.
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DOLE FOOD COMPANY, INC.
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By |
/s/ C. Michael Carter |
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C. Michael Carter |
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Executive Vice President, General Counsel and
Corporate Secretary |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints David A. DeLorenzo and C. Michael Carter, and each of them, his or her true and lawful
attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration Statement, and any
registration statement relating to the offering covered by this Registration Statement and filed
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully so
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ David H. Murdock
David H. Murdock |
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Chairman and Director
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November 30, 2009 |
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Signature |
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Title |
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/s/ David A. DeLorenzo
David A. DeLorenzo |
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President and Chief
Executive Officer (Principal
Executive Officer) and
Director
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November 30, 2009 |
/s/ Elaine Chao
Elaine Chao |
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Director
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November 30, 2009 |
/s/ Andrew Conrad
Andrew Conrad |
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Director
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November 30, 2009 |
/s/ Sherry Lansing
Sherry Lansing |
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Director
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November 30, 2009 |
/s/ Justin Murdock
Justin Murdock |
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Vice President, New Products
and Corporate Development
and Director
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November 30, 2009 |
/s/ Dennis Weinberg
Dennis Weinberg |
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Director
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November 30, 2009 |
/s/ Yoon J. Hugh
Yoon J. Hugh |
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Vice President, Corporate
Controller and Chief
Accounting Officer
(Principal Accounting
Officer)
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November 30, 2009 |
/s/ Joseph S. Tesoriero
Joseph S. Tesoriero |
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Vice President and Chief
Financial Officer (Principal
Financial Officer)
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November 30, 2009 |
EXHIBIT INDEX
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Exhibit No. |
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Exhibit Description |
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4.1
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Amended and Restated Certificate of Incorporation of Dole Food Company, Inc., effective
October 28, 2009 (incorporated by reference to Exhibit 3.1 to the Registrants Current Report
on Form 8-K filed with the Commission on October 29, 2009). |
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4.2
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Amended and Restated Bylaws of Dole Food Company, Inc., effective October 28, 2009
(incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K filed
with the Commission on October 29, 2009). |
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4.3
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.18 to the
Registrants Registration Statement on Form S-1/A (Registration No. 333-161345) filed with the
Commission on October 22, 2009). |
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5.1*
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Opinion of Gibson, Dunn & Crutcher LLP. |
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23.1*
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Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1). |
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23.2*
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Consent of Deloitte & Touche LLP. |
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24.1*
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Power of Attorney (included on signature page hereto). |
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99.1
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Dole Food Company, Inc. 2009 Stock Incentive Plan (incorporated by reference to Exhibit 10.14
to the Registrants Registration Statement on Form S-1/A (Registration No. 333-161345) filed
with the Commission on October 9, 2009). |