As filed with the Securities and Exchange
Commission on October 8, 1996
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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)
______________________
Hawaii 99-0035300
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
31365 Oak Crest Drive,
Westlake Village, California 91361
(818) 879-6600
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Dole Food Company, Inc. Amended and Restated 1991
Stock Option and Award Plan
(Full title of the plan)
_______________
J. Brett Tibbitts, Esq.
Vice President - Corporate General Counsel
Dole Food Company, Inc.
31365 Oak Crest Drive
Westlake Village, California 91361
(818) 879-6600
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_______________
Copy to:
Diana L. Walker, Esq.
O'Melveny & Myers LLP
400 South Hope Street, Suite 1500
Los Angeles, California 90071
_______________
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
Common Stock, 2,500,000 $40.813<1> $102,032,500<1> $35,184.00<1>
no par value shares
<FN>
<1> This Registration Statement covers, in addition to the number of
shares of Common Stock stated above, options and other rights to purchase
or acquire the shares of Common Stock covered by the Prospectus and,
pursuant to Rule 416, an additional indeterminate number of shares
which by reason of certain events specified in the Plan may become
subject to the Plan.
<2> Pursuant to Rule 457(h), the maximum offering price, per share and
in the aggregate, and the registration fee were calculated based upon
the average of the high and low prices of the Common Stock on
October 4, 1996 as reported on the New York Stock Exchange and
published in the Western Edition of the Wall Street Journal.
<3> The Exhibit Index included in this Registration Statement is at
page 6.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant information) will
be sent or given to employees as specified by Rule 428(b)(1) of the Securities
Act of 1933 (the "Securities Act"). Such documents need not be filed with
the Securities and Exchange Commission either a part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
Item 3. Incorporation of Certain Documents by Reference
The following document of Dole Food Company, Inc.
(the "Company") filed with the Securities and Exchange
Commission is incorporated herein by reference:
(a) Registration Statement No. 33-42152 on
Form S-8 as filed on August 9, 1991 relating
to the Company's 1991 Stock Option and Award Plan.
Item 8. Exhibits
See the attached Exhibit Index.
<PAGE>
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 behalf of the undersigned, on this 25th day of
September, 1996.
DOLE FOOD COMPANY, INC.
By: /s/ David H. Murdock
-----------------------------
David H. Murdock
Its: Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed
below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ David H. Murdock Chairman of the Board, Chief September 25, 1996
David H. Murdock Executive Officer and Director
(Director and Principal Executive
Officer)
/s/ David A. Delorenzo President, Chief Operating Officer September 25, 1996
David A. DeLorenzo and Director (Director)
/s/ Michael S. Karsner Senior Vice President and Chief September 25, 1996
Michael S. Karsner Financial Officer (Principal
Financial Officer)
/s/ Patricia A. McKay Vice President- Finance and September 25, 1996
Patricia A. McKay Controller (Principal
Accounting Officer)
/s/ Elaine L. Chao Director September 25, 1996
Elaine L. Chao
/s/ Mike Curb Director September 25, 1996
Mike Curb
/s/ Richard M. Ferry Director September 25, 1996
Richard M. Ferry
/s/ James F. Gary Director September 25, 1996
James F. Gary
/s/ Zoltan Merszei Director September 25, 1996
Zoltan Merszei
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
4.1 Dole Food Company, Inc. Amended 7
and Restated 1991 Stock Option
and Award Plan.
5.0 Opinion of Goodsill Anderson Quinn 34
& Stifel (opinion re legality).
23.1 Consent of Independent Public 35
Accountants.
23.2 Consent of Counsel (included in
Exhibit 5).
<PAGE>
Dole Food Company, Inc.
1991 Stock Option and Award Plan
(as amended through February 1, 1996)
<PAGE>
1991 STOCK OPTION AND AWARD PLAN
(as amended through February 1, 1996)
TABLE OF CONTENTS
I. DEFINITIONS . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . .1
II. GENERAL AND ADMINISTRATIVE PROVISIONS . . . .5
2.1 Purpose . . . . . . . . . . . . . . . . 5
2.2 Administration. . . . . . . . . . . . . .5
2.3 Participation . . . . . . . . . . . . . .6
2.4 Stock Subject to this Plan. . . . . . . .6
2.5 Grant and Maximum Term of Awards. . . . .7
2.6 Exercise of Awards. . . . . . . . . . . .7
III. OPTIONS . . . . . . . . . . . . . . . . . . 7
3.1 Grants. . . . . . . . . . . . . . . . . .7
3.2 Option Price. . . . . . . . . . . . . . .7
3.3 Option Period . . . . . . . . . . . . . .8
3.4 Exercise of Options . . . . . . . . . . .8
3.5 Limitations on Grant of Incentive
Stock Options . . . . . . . . . . . . . .9
IV. STOCK APPRECIATION RIGHTS . . . . . . . . . .9
4.1 Grants. . . . . . . . . . . . . . . . . .9
4.2 Exercise of Stock Appreciation Rights . 10
4.3 Payment . . . . . . . . . . . . . . . . 10
V. RESTRICTED STOCK AWARDS . . . . . . . . . . 11
5.1 Grants. . . . . . . . . . . . . . . . . 11
5.2 Restrictions. . . . . . . . . . . . . . 11
VI. PERFORMANCE SHARE AWARDS. . . . . . . . . . 12
6.1 Grants. . . . . . . . . . . . . . . . . 12
6.2 Section 162(m) Performance-Based
Share Awards . . . . . . . . . . . . . 12
VII. OTHER PROVISIONS. . . . . . . . . . . . . . 13
7.1 Rights of Eligible Employees,
Participants and Beneficiaries . . . . 13
7.2 Adjustments Upon a Reorganization or
Changes in Capitalization . . . . . . . 14
7.3 Effect of Termination of Employment . . 16
7.4 Acceleration of Awards Upon an Event;
Other Changes in Awards . . . . . . . . 17
7.5 Compliance; Government Regulations. . . 18
7.6 Tax Withholding.. . . . . . . . . . . . 18
7.7 Amendment, Termination and Suspension . 19
7.8 Privileges of Stock Ownership;
Nondistributive Intent . . . . . . . . 20
7.9 Effective Date of this Plan . . . . . . 20
7.10Term of this Plan . . . . . . . . . . . 20
7.11Governing Law . . . . . . . . . . . . . 20
7.12Limitations as to Executive Officers. . 20
7.13Captions. . . . . . . . . . . . . . . . 21
7.14No Fractional Interest. . . . . . . . . 21
7.15Non-Exclusivity of Plan.. . . . . . . . 21
<PAGE>
DOLE FOOD COMPANY, INC.
1991 STOCK OPTION AND AWARD PLAN
(as amended through February 1, 1996)
I. DEFINITIONS.
1.1 DEFINITIONS.
(a) "AWARD" shall mean an Option, which may be designated as a
Nonqualified Stock Option or an Incentive Stock Option, a Stock
Appreciation Right, a Restricted Stock Award or Performance Share Award,
in each case granted under this Plan.
(b) "AWARD AGREEMENT" shall mean a written agreement setting forth
the terms of an Award.
(c) "AWARD DATE" shall mean the date upon which the Committee took
the action granting an Award or such later date as is prescribed by the
Committee.
(d) "AWARD PERIOD" shall mean the period beginning on an Award Date
and ending on the expiration date of such Award.
(e) "BENEFICIARY" shall mean the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive the
benefits specified under this Plan in the event of a Participant's death.
(f) "BOARD" shall mean the Board of Directors of the Corporation.
(g) "CHANGE IN CONTROL" shall be deemed to have occurred if (a) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any person described in and satisfying the
conditions of Rule 13d1(b)(1) thereunder), other than a person who is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
more than 20% of the outstanding shares of Common Stock at the time of
the adoption of this Plan (or any affiliate, successor, heir, descendent
or related party of or to any such person), becomes the "beneficial
owner" (as defined in rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 20% or more of
the combined voting power of the Corporation's then outstanding
securities; or (b) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless
the election, or the nomination for election by the Corporation's
stockholders, of each new Board member was approved by a vote of at least
three-fourths of the Board members then still in office who were Board
members at the beginning of such period.
(h) "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(i) "COMMISSION" shall mean the Securities and Exchange Commission.
(j) "COMMITTEE" shall mean the Corporate Compensation and Benefits
Committee appointed by the Board and consisting of two or more Board
members, each of whom, during such time as one or more Participants may
be subject to Section 16 of the Exchange Act, shall be a Disinterested
Director.
(k) "COMMON STOCK" shall mean the Common Stock of the Corporation.
(l) "COMPANY" shall mean the Corporation and/or its Subsidiaries.
(m) "CORPORATION" shall mean Dole Food Company, Inc., a Hawaii
corporation, and its successors.
(n) "DEFERRED EFFECTIVE DATE" shall mean the date of the expiration
of the transition period in respect of Rule 16b-3, unless the Corporate
Compensation and Benefits Committee of the Board of Directors of the
Company decides otherwise.
(o) "DISINTERESTED DIRECTOR" shall mean a member of the Board who
was not, during the year prior to being appointed to the Committee, or
during the period of service as an administrator hereunder, granted or
awarded equity securities pursuant to the Plan or pursuant to any other
plan of the Corporation or its affiliates, except to the extent
consistent with the disinterested plan administration requirements under
Rule 16b-3 and Section 162(m) of the Code.
(p) "ELIGIBLE EMPLOYEE" shall mean an officer or key employee of
the Company.
(q) "EVENT" shall mean any of the following:
(1) Approval by the stockholders of the Corporation of the
dissolution or liquidation of the Corporation;
(2) Approval by the stockholders of the Corporation of an
agreement to merge or consolidate, or otherwise reorganize, with or
into one or more entities which are not Subsidiaries, as a result of
which less than 50% of the outstanding voting securities of the
surviving or resulting entity are, or are to be, owned by former
stockholders of the Corporation;
<PAGE>
(3) Approval by the stockholders of the Corporation of the sale
of substantially all of the Corporation's business and/or assets to
a person or entity which is not a Subsidiary; or
(4) A Change in Control.
(r) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
(s) "FAIR MARKET VALUE" shall mean the closing price of the stock
on the Composite Tape, as published in the Western Edition of The Wall
Street Journal, of the principal national securities exchange on which
the stock is so listed or admitted to trade, on such date, or, if there
is no trading of the stock on such date, then the closing price of the
stock as quoted on such Composite Tape on the next preceding date on
which there was trading in such shares; provided, however, that if the
stock is not listed or admitted to trade on a national securities
exchange, the Committee may designate such other exchange, market or
source of data as it deems appropriate for determining such value for
Plan purposes.
(t) "INCENTIVE STOCK OPTION" shall mean an Option which is
designated as an incentive stock option within the meaning of Section 422
of the Code, the award of which contains such provisions as are necessary
to comply with that section.
(u) "NONQUALIFIED STOCK OPTION" shall mean an Option which is
designated as a Nonqualified Stock Option.
(v) "OPTION" shall mean an option to purchase Common Stock under
this Plan. An Option shall be designated by the Committee as a
Nonqualified Stock Option or an Incentive Stock Option.
(w) "PARTICIPANT" shall mean an Eligible Employee who has been
granted an Award.
(x) "PERFORMANCE SHARE AWARD" shall mean an award of shares of
Common Stock, issuance of which is contingent upon attainment of
performance objectives specified by the Committee, and the vesting of
which may be subject to other restrictions, or an award of shares as a
bonus for achievement of objectives or otherwise exceptional individual
performance or business results.
(y) "PERSONAL REPRESENTATIVE" shall mean the person or persons who, upon
the disability or incompetence of a Participant, shall have acquired on
behalf of the Participant, by legal proceeding or otherwise, the power to
exercise the rights and receive the benefits specified in this Plan.
(z) "PLAN" shall mean the Dole Food Company, Inc. 1991 Stock Option
and Award Plan.
(aa) "QDRO" shall mean an order requiring the transfer of an
Award or portion thereof pursuant to a state domestic relations law
to the spouse, former spouse, child or other dependent of a
Participant. Such order must be in a form substantially identical
to a qualified domestic relations order as defined by Code or Title
I of the Employee Retirement Income Security Act of 1974, as
amended.
(bb) "RESTRICTED STOCK" shall mean those shares of Common Stock
issued pursuant to a Restricted Stock Award which are subject to the
restrictions set forth in the related Award Agreement.
(cc) "RESTRICTED STOCK AWARD" shall mean an award of a fixed
number of shares of Common Stock to the Participant subject,
however, to payment of such consideration, if any, and such
forfeiture provisions, as are set forth in the Award Agreement.
(dd) "RETIREMENT" shall mean retirement from active service as
an employee or officer of the Company on or after obtaining age 55
with ten or more years of service or age 65.
(ee) "RULE 16B-3" shall mean Rule 16b-3 promulgated by the
Commission pursuant to the Exchange Act in effect (a) prior to May
1, 1991 during the period prior to the Deferred Effective Date and
(b) on or after May 1, 1991 during the period on and after the
Deferred Effective Date.
(ff) "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended from time to time.
(gg) "STOCK APPRECIATION RIGHT" shall mean a right to receive
a number of shares of Common Stock or an amount of cash, or a
combination of shares and cash, determined as provided in Section
4.3.
(hh) "SUBSIDIARY" shall mean any corporation or other entity
a majority or more of the outstanding voting stock or voting power
of which is beneficially owned directly or indirectly by the
Corporation.
(ii) "TOTAL DISABILITY" shall mean a "permanent and total
disability" within the meaning of Section 22(e)(3) of the Code.
<PAGE>
II. GENERAL AND ADMINISTRATIVE PROVISIONS.
2.1 PURPOSE.
The purpose of this Plan is to promote the success of the Company and
the interest of its stockholders by providing a means to attract and
retain key employees by providing them long-term incentives to improve
the financial performance of the Company.
2.2 ADMINISTRATION.
(a) COMMITTEE. This Plan shall be administered by and Awards shall
be authorized by the Committee. Action of the Committee with respect to
the administration of this Plan shall be taken pursuant to a majority
vote or by the unanimous written consent of its members. If action by
the Committee is taken by written consent, the action shall be deemed to
have been taken at the time specified in the consent or, if none is
specified, at the time of the last signature. The Committee may delegate
administrative functions to individuals who are officers or employees of
the Company.
(b) PLAN AWARDS; INTERPRETATION; POWERS OF THE COMMITTEE. Subject
to the express provisions of this Plan, the Committee shall have the
authority to construe and interpret this Plan and any agreements defining
the rights and obligations of the Company and Participants under this
Plan; to further define the terms used in this Plan; to prescribe, amend
and rescind rules and regulations relating to the administration of this
Plan; to determine the duration and purposes of leaves of absence which
may be granted to Participants without constituting a termination of
their employment for purposes of this Plan; to determine who is an
Eligible Employee and the particular Eligible Employees who will receive
Awards; to grant Awards to Eligible Employees, determine the price at
which securities will be offered or awarded and the amount of securities
to be offered or awarded; to determine the other specific terms and
conditions of such Awards, including performance criteria and goals,
consistent with the express limits of this Plan, establish the
installments (if any) in which such Awards shall become exercisable or
shall vest, or determine that no delayed exercisability or vesting is
required, and establish the events of termination or reversion of such
Awards; to approve the forms of Award Agreements (which need not be
identical either as to type of award or among Participants); to cancel,
modify, or waive the Corporation's rights with respect to, or modify,
discontinue, suspend, or terminate any or all outstanding Awards held by
Eligible Employees, subject to any required consent under Section 7.7;
to accelerate or extend the exercisability or extend the term of any or
all such outstanding Awards within the maximum ten-year term of Awards
under Section 2.5; and to make all other determinations necessary or
advisable for the administration of this Plan. The determinations of the
Committee on the foregoing matters shall be conclusive.
(c) BINDING DECISIONS. Any action taken by, or inaction of, the
Corporation, any Subsidiary, the Board or the Committee relating to this
Plan shall be within the absolute discretion of that entity or body and
shall be conclusive and binding upon all persons. No member of the Board
or Committee, or officer of the Corporation or Subsidiary, shall be
liable for any such action or inaction of the entity or body, of another
person or, except in circumstances involving bad faith, of himself or
herself. Subject only to compliance with the express provisions hereof,
the Board and Committee may act in their absolute discretion in matters
related to this Plan. In making any determination or in taking or not
taking any action under this Plan, the Committee or the Board, as the
case may be, may obtain and may rely upon the advice of experts,
including professional advisors to the Corporation. No director, officer
or agent of the Company shall be liable for any such action or
determination taken or made or omitted in good faith.
(d) CHANGES TO COMMITTEE. Subject to the requirements of Section
1.1(j), the Board, at any time it so desires, may increase or decrease
the number of members of the Committee, may remove from membership on the
Committee all or any portion of its members, and may appoint such person
or persons as it desires to fill any vacancy existing on the Committee,
whether caused by removal, resignation or otherwise.
2.3 PARTICIPATION.
Awards may be granted only to Eligible Employees. An Eligible Employee
who has been granted an Award may, if otherwise eligible, be granted
additional Awards if the Committee shall so determine. Members of the Board
who are not officers or employees of the Company, and members of the
Committee, shall not be eligible to receive Awards.
2.4 STOCK SUBJECT TO THIS PLAN.
(a) AVAILABLE SHARES. The stock to be offered under this Plan
shall be shares of the Corporation's authorized but unissued Common
Stock. The maximum number of shares of Common Stock that may be issued
pursuant to Awards granted under this Plan shall not exceed the sum of
5,000,000 shares, subject to adjustments (including the adjustments for
the distribution of shares of Castle & Cooke, Inc. in December 1995) as
set forth in Section 7.2. If any Option and any related Stock
Appreciation Right shall lapse or terminate without having been exercised
in full, or any Common Stock subject to a Restricted Stock Award which
does not vest or any Common Stock subject to a Performance Share Award
which has not been issued or become issuable, the unpurchased or unvested
shares subject thereto, to the extent consistent with Rule 16b-3, shall
again be available for reissue for purposes of this Plan.
(b) INDIVIDUAL MAXIMUM. The maximum number of shares subject to
Options or Stock Appreciation Rights that during any calendar year are
granted to any one person shall be limited to 500,000 and the maximum
number of shares in the aggregate subject to all Awards that during any
calendar year are granted to any individual under this Plan shall be
750,000. Tandem or alternative Awards shall be counted only once for
these purposes, unless otherwise required by Section 162(m). Any Awards
that are cancelled or repriced during the year shall be counted against
this limit, to the extent required by Section 162(m).
(c) ADJUSTMENTS. Each of the foregoing numerical limits in this
Section 2.4 shall be subject to adjustments as contemplated by this
Section 2.4 and Section 7.2.
2.5 GRANT AND MAXIMUM TERM OF AWARDS.
Subject to the express provisions of this Plan, the Committee has the
authority to grant Awards. The grant of an Award is made on the Award
Date. The maximum term of an Award is ten years.
2.6 EXERCISE OF AWARDS.
An Option or Stock Appreciation Right shall be deemed to be exercised when
the Corporation receives written notice of such exercise from the
Participant, together with payment of the purchase price made in accordance
with Section 3.2, except as may be necessary or advisable to be made
following delivery of written notice of exercise in accordance with Section
3.2. Notwithstanding any other provision of this Plan, the Committee may
impose, by rule and/or in an Award Agreement, such conditions upon the
exercise of any Award (including, without limitation, conditions limiting
the time of exercise to specified periods) necessary for those persons
subject to the reporting and liability provisions of Section 16 of the
Exchange Act to avoid liability under Section 16 of the Exchange Act or to
secure the benefits otherwise available under any applicable exemptive or
other rule hereunder with respect to a "plan" or particular award or action
related thereto.
III. OPTIONS.
3.1 GRANTS.
One or more Options may be granted to any Eligible Employee. Each
Option so granted shall be designated in the applicable Award Agreement
by the Committee as either a Nonqualified Stock Option or an Incentive
Stock Option.
3.2 OPTION PRICE.
(a) MINIMUM PRICE. The purchase price per share of the Common Stock
covered by each Option shall be determined by the Committee, but in the
case of Incentive Stock Options shall not be less than 100% (110% in the
case of a Participant who owns more than 10% of the total combined voting
power of all classes of stock of the Company) of the Fair Market Value of
the Common Stock on the date the Incentive Stock Option is granted. The
purchase price of any shares purchased shall be paid in full at the time of
each purchase in one or a combination of the following methods: (i) in cash,
by electronic funds transfer, or by certified or cashier's check payable to
the order of the Corporation; (ii) if authorized by the Committee or
specified in the applicable Award Agreement, by a promissory note of the
Participant consistent with the requirements of Section 7.5; or (iii) by
delivery of shares of Common Stock of the Corporation already owned by the
Participant; provided, however, the Committee may in its absolute discretion
limit the Participant's ability to exercise an Option by delivering shares,
and (without limiting the generality of the foregoing) any shares delivered
which were initially acquired upon exercise of a stock option must have been
owned by the Participant at least six months as of the date of delivery.
Shares of Common Stock used to satisfy the exercise price of an Option shall
be valued at their Fair Market Value on the date of exercise.
(b) CASHLESS EXERCISE. In addition to the payment methods described in
Section 3.2(a), the Option (or the Committee) may provide that the Option
can be exercised and payment made by delivering a properly executed exercise
notice together with irrevocable instructions to a broker to promptly
deliver to the Corporation the amount of sale proceeds necessary to pay the
exercise price and, unless otherwise disallowed by the Committee, any
applicable tax withholding under Section 7.6. The Corporation shall not be
obligated to deliver certificates for the shares unless and until it
receives full payment of the exercise price therefor and any related
withholding obligations have been satisfied.
3.3 OPTION PERIOD.
Each Option and all rights or obligations thereunder shall expire on such
date as shall be determined by the Committee, but not later than 10 years
after the Award Date, and shall be subject to earlier termination as
provided in or pursuant to Section 7.2 or 7.3.
3.4 EXERCISE OF OPTIONS.
Except as otherwise provided in or pursuant to Sections 7.2, 7.3 and 7.4,
an Option may become exercisable, in whole or in part, on the date or dates
specified in the Award Agreement and thereafter shall remain exercisable
until the expiration or earlier termination of the Option. No shares
issuable upon exercise of an Option shall be exercisable until at least six
months after the Award Date. The Committee may, at any time after grant of
the Option and from time to time, increase the number of shares purchasable
at any time so long as the total number of shares subject to the Option is
not increased. No Option shall be exercisable except in respect of whole
shares. Not less than 100 shares of Common Stock may be purchased at one
time unless the number purchased is the total number at the time available
for purchase under the terms of the Option.
<PAGE>
3.5 LIMITATIONS ON GRANT OF INCENTIVE STOCK OPTIONS.
(a) $100,000 LIMIT. To the extent that the aggregate Fair Market
Value of stock with respect to which incentive stock options first become
exercisable by a Participant in any calendar year exceeds $100,000,
taking into account both Common Stock subject to Incentive Stock Options
under this Plan and stock subject to incentive stock options under all
other plans of the Company, such options shall be treated as nonqualified
stock options. For purposes of determining whether the $100,000 limit
is exceeded, the Fair Market Value of stock subject to options shall be
determined as of the date the options are awarded. In reducing the
number of options treated as incentive stock options to meet the $100,000
limit, the most recently granted options shall be reduced first. To the
extent a reduction of simultaneously granted options is necessary to meet
the $100,000 limit, the Corporation may, in the manner and to the extent
permitted by law, designate which shares of Common Stock are to be
treated as shares acquired pursuant to the exercise of an Incentive Stock
Option under this Plan.
(b) OTHER TERMS. There shall be imposed in any Award Agreement relating
to Incentive Stock Options such terms and conditions as are required in
order that the Option be an "incentive stock option" as that term is defined
in Section 422 of the Code.
(c) 10% OWNERS. No Incentive Stock Option may be granted to any
person who, at the time the Incentive Stock Option is granted, owns (or
is deemed to own) shares of outstanding Common Stock possessing more than
10% of the total combined voting power of all classes of Common Stock of
the Company, unless the exercise price of such Option is at least 110%
of the Fair Market Value of the Common Stock subject to the Option and
such Option by its terms is not exercisable after the expiration of five
years from the date such Option is granted.
IV. STOCK APPRECIATION RIGHTS.
4.1 GRANTS.
In its discretion, the Committee may grant Stock Appreciation Rights
concurrently with the grant of Options or thereafter with respect to an
outstanding Option, on such terms as set forth by the Committee in the
Award Agreement for such Option, including in circumstances involving a
Change in Control or other Event or a termination of employment, or in
anticipation thereof. A Stock Appreciation Right shall extend to all or
a portion of the shares covered by the related Option. A Stock
Appreciation Right shall entitle the Participant who holds the related
Option, upon exercise of the Stock Appreciation Right and surrender of
the related Option, or portion thereof, to the extent the Stock
Appreciation Right and related Option each were previously unexercised,
to receive payment of an amount determined pursuant to Section 4.3. Any
Stock Appreciation Right granted in connection with an Incentive Stock
Option shall contain such terms as may be required to comply with the
provisions of Section 422 of the Code and the regulations promulgated
thereunder.
4.2 EXERCISE OF STOCK APPRECIATION RIGHTS.
(a) TIME/VALUE. A Stock Appreciation Right shall be exercisable
only at such time or times, and to the extent, that the related Option
shall be exercisable and only when the Fair Market Value of the stock
subject to the related Option exceeds the Option price of the related
Option.
(b) SHARE ACCOUNTING. In the event that a Stock Appreciation Right
is exercised, the number of shares of Common Stock subject to the related
Option shall be charged against the maximum amount of Common Stock that
may be issued or transferred pursuant to Awards under this Plan. The
number of shares subject to the Stock Appreciation Right and the related
Option of the Participant shall also be reduced by such number of shares.
(c) ADJUSTMENTS. If a Stock Appreciation Right extends to less than all
the shares covered by the related Option and if a portion of the related
Option is thereafter exercised, the number of shares subject to the
unexercised Stock Appreciation Right shall be reduced only if and to the
extent that the remaining number of shares covered by such related Option
is less than the remaining number of shares subject to such Stock
Appreciation Right.
4.3 PAYMENT.
(a) AMOUNT. Upon exercise of a Stock Appreciation Right and surrender
of an exercisable portion of the related Option, the Participant shall be
entitled to receive payment of an amount determined by multiplying:
(i) the difference obtained by subtracting the Option price per
share of Common Stock under the related Option from the Fair Market Value
of a share of Common Stock on the date of exercise of the Stock
Appreciation Right, by
(ii) the number of shares with respect to which the Stock
Appreciation Right shall have been exercised.
(b) FORM. The Committee, in its sole discretion, may provide for
payment upon exercise under Section 4.3(a) to be solely in cash, solely
in shares of Common Stock (valued at Fair Market Value on the date of
exercise of the Stock Appreciation Right), or partly in such shares and
partly in cash, or may leave the election to the Participant, subject to
any applicable legal requirements and, in the case of Participants
subject to Section 16 of the Exchange Act, the limitations under Rule
16b-3, if applicable. Absent a determination to the contrary by the
Committee, all Stock Appreciation Rights shall be settled in cash as soon
as practicable after exercise. The exercise price for the Stock
Appreciation Right shall be the exercise price of the related Option.
(c) VARIANCE. Notwithstanding the foregoing, the Committee may, in the
Award Agreement, determine the specific form of payment or may provide for
a different specified amount of cash or stock or a combination thereof to
be delivered upon exercise of a Stock Appreciation Right.
V. RESTRICTED STOCK AWARDS.
5.1 GRANTS.
Subject to Section 2.4, the Committee may, in its discretion, grant one
or more Restricted Stock Awards to any Eligible Employee. Each Restricted
Stock Award Agreement shall specify the number of shares of Common Stock to
be issued to the Participant, the date of such issuance, the price, if any,
to be paid for such shares by the Participant and the restrictions imposed
on such shares, which restrictions shall not terminate earlier than six
months after the Award Date.
5.2 RESTRICTIONS.
Unless the Committee otherwise expressly provides in the Award
Agreement, during the restricted period Restricted Stock Awards shall be
subject to the following restrictions:
(a) the shares may not be sold, assigned, transferred, pledged or
otherwise disposed of or encumbered, either voluntarily or involuntarily,
until such shares have vested;
(b) the holder shall have voting rights but shall not be entitled
to dividends in respect of the restricted shares until they have vested,
at which time accrued and paid dividends on such shares shall also vest;
(c) any cash paid by a holder to acquire restricted shares shall be
returned to the holder, without interest, if the restricted shares do not
vest; and
(d) shares of Restricted Stock (and any related dividends) that are
subject to restrictions at the time of termination of employment, or are
subject to other conditions to vesting that have not been satisfied by the
time specified in the applicable Award Agreement, shall not vest and shall
be returned to the Corporation.
VI. PERFORMANCE SHARE AWARDS.
6.1 GRANTS.
The Committee may, in its discretion, grant Performance Share Awards to
Eligible Employees based upon: the appreciation in the Fair Market Value,
book value or other measure of value of the Common Stock; the performance
of the Company based on earnings or cash flow; or such other factors as the
Committee shall determine. In making such determinations, the Committee
shall consider (among other factors deemed relevant to the specific award
type), the Eligible Employee's contributions to the Company,
responsibilities and other compensation. A Performance Share Award
Agreement shall specify the number of shares of Common Stock subject to the
Performance Share Award, the price, if any, to be paid for such shares by
the Participant and the required amount of appreciation in the Fair Market
Value, book value or other measure of value of Common Stock, the required
amount of change in the performance of the company based on earnings or cash
flow of the Company or specified Subsidiary or other factors and other
conditions determined by the Committee upon which issuance to the
Participant shall be based, which issuance shall not be less than six months
after the Award Date. To the extent a Performance Share Award constitutes
an equity security (as this phrase is defined in Rule 16a-1 under the
Exchange Act) issued by the Corporation and is paid in shares of Common
Stock or cash, the number of shares of Common Stock subject to such
Performance Share Award shall be charged against the maximum amount of
Common Stock that may be issued pursuant to Awards under this Plan.
6.2 SECTION 162(m) PERFORMANCE-BASED SHARE AWARDS.
Without limiting the generality of the foregoing, and in addition to
awards granted under other provisions of this Plan, other performance-
based awards within the meaning of Section 162(m) of the Code
("PERFORMANCE-BASED AWARDS"), whether in the form of restricted stock,
performance stock, phantom stock or other rights, the vesting of which
depends on the performance of the Company on a consolidated, segment,
subsidiary or division basis with reference to net earnings (before or
after tax), cash flow, return on equity or on assets or on net
investment, or cost containment or reduction, or any combination thereof
(the "performance criteria") relative to preestablished performance
goals, may be granted under this Plan. The applicable business criteria
and specific performance goal or goals ("targets") must be approved by
the Committee in advance of any applicable deadline under the Code and
while the performance relating to such targets remains substantially
uncertain. The applicable performance measurement period may be not less
than one nor more than ten years. Performance targets may be adjusted to
mitigate the unbudgeted impact of material, unusual or nonrecurring gains
and losses, accounting changes or other extraordinary events not foreseen
at the time the targets were set.
(a) ELIGIBLE CLASS. The eligible class of persons for Awards under
this Section 6.2 shall be executive officers of the Company.
(b) MAXIMUM AWARD. In no event shall grants made in any calendar
year to any one person under this Section 6.2 relate to more than 500,000
shares or a cash amount of more than $10 million.
(c) COMMITTEE CERTIFICATION. Before any Performance-Based Award
under this Section 6.2 is paid, the Committee must certify that the
material terms of the Performance-Based Award were satisfied.
(d) TERMS AND CONDITIONS OF AWARDS. The Committee will have discretion
to determine the restrictions or other limitations of the individual Awards
under this Section 6.2, including the authority to reduce Awards, payouts
or vesting or to pay no Awards, in its sole discretion, IF the Committee
preserves such authority at the time of grant by language to this effect in
its authorizing resolutions or otherwise.
VII. OTHER PROVISIONS.
7.1 RIGHTS OF ELIGIBLE EMPLOYEES, PARTICIPANTS AND BENEFICIA-RIES.
(a) NO AWARD COMMITMENT. Status as an Eligible Employee shall not be
construed as a commitment that any Award will be made under this Plan to an
Eligible Employee or to Eligible Employees generally.
(b) NO EMPLOYMENT COMMITMENT. Nothing contained in this Plan (or in
Award Agreements or in any other documents related to this Plan or to
Awards) shall confer upon any Eligible Employee or Participant any right to
continue in the employ of the Company or constitute any contract or
agreement of employment, or interfere in any way with the right of the
Company to reduce such person's compensation or other benefits or to
terminate the employment of such Eligible Employee or Participant, with or
without cause, but nothing contained in this Plan or any document related
thereto shall affect any other contractual right of any Eligible Employee
or Participant.
(c) NO TRANSFER OF AWARDS.
(i) LIMIT ON EXERCISE. Except as provided herein and subject to
Section 7.12, Awards may be exercised only by, and amounts payable or
shares issuable pursuant to an Award shall be paid only to (or for the
account of), the Participant or, if the Participant has died, the
Participant's Beneficiary or, if the Participant has suffered a
Disability, the Participant's Personal Representative, if any, or if
there is none, the Participant. Subject to Sections 7.1(c)(ii), 7.5 and
7.12, the Committee may by express written authorization perm to certain
persons or entities related to the Participant who are permitted
transferees of the Participant without consideration, or to such other
persons as the Committee deems appropriate, pursuant to such conditions
and procedures as the Committee in writing may establish and set forth
in or by amendment to an Award Agreement.
(ii) LIMIT ON TRANSFER. No option, right or other Award granted
under this Plan including, without limitation, any undistributed
performance share or share of Restricted Stock that has not vested, shall
be transferrable by the Participant or shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance
or charge (other than to the Corporation), except (i) by will or the laws
of descent and distribution, or (ii) pursuant to any other exception to
transfer restrictions expressly permitted by the Committee and set forth
in the Award Agreement (or an amendment thereto) and, in the case of
Awards intended to satisfy the conditions of Rule 16b-3, to the extent
permitted by Rule 16b-3, and (iii) in the case of Awards comprising
Incentive Stock Options, as permitted by the Code. Any attempted
transfer in violation of these provisions shall be void and shall be
disregarded.
(c) DESIGNATION OF BENEFICIARY. The designation of a Beneficiary shall
not constitute a transfer prohibited by the foregoing provisions.
(d) PLAN NOT FUNDED. Awards payable under this Plan shall be
payable in shares or from the general assets of the Corporation, and no
special or separate reserve, fund or deposit shall be made to assure
payment of such Awards. No Participant, Beneficiary or other person
shall have any right, title or interest in any fund or in any specific
asset (including shares of Common Stock) of the Company by reason of any
Award granted hereunder. Neither the provisions of this Plan (or of any
documents related hereto), nor the creation or adoption of this Plan, nor
any action taken pursuant to the provisions of this Plan shall create,
or be construed to create, a trust of any kind or a fiduciary
relationship between the Company and any Participant, Beneficiary or
other person. To the extent that a Participant, Beneficiary or other
person acquires any rights in respect of an Award hereunder, such rights
shall be no greater than the rights of any unsecured general creditor of
the Company.
7.2 ADJUSTMENTS UPON A REORGANIZATION OR CHANGES IN CAPITALI-ZATION.
(a) GENERAL. If the outstanding shares of Common Stock are changed into
or exchanged for cash or a different number or kind of shares, securities,
or other property, or if additional shares or new or different securities
or, other property are distributed with respect to the outstanding shares
of the Common Stock, through a merger, combination, consolidation, or other
reorganization or a recapitalization, reclassification, stock split, stock
dividend, reverse stock split, stock consolidation, dividend or distribution
of property to the stockholders of the Corporation which in the judgment of
the Committee materially affects the value of the Common Stock, or if some
other capital change or adjustment affecting the Common Stock shall be made,
the Committee shall in such manner and to such extent as it deems an
appropriate, equitable, and proportionate adjustment to the number and kind
of securities, obligations or other consideration (including cash of other
property) that is subject to or may be delivered under this Plan and
pursuant to outstanding Awards and in any applicable performance standards
and (if applicable) subsequent Awards, subject (i) in the case of a
transaction that the Corporation does not survive as a legal entity to any
required approval of the surviving or successor entity (or a parent or
subsidiary thereof); (ii) in the case of a transaction to be accounted for
as a pooling of interests, to any applicable limitations under generally
accepted accounting principles; and (iii) to the provisions of Section 7.4
below. A corresponding adjustment to the consideration payable with respect
to Awards granted prior to any such change and to the price, if any, to be
paid in connection with Restricted Stock Awards or Performance Share Awards
shall also be made. Corresponding adjustments shall be made with respect
to Stock Appreciation Rights related to Options based upon the adjustments
made to the Options to which they are related. Further, in the case of an
extraordinary dividend or other distribution, recapitalization,
reclassification, reorganization, merger, consolidation, combination, sale
of assets, split up, exchange, or spin off, the Committee may make provision
for a cash payment or for the substitution or exchange of any or all
outstanding Awards or the cash, securities, or property deliverable to the
holder of any or all outstanding Awards based upon the distribution or
consideration payable to holders of the Common Stock of the Corporation upon
or in respect of such event; provided, however, in each case, that with
respect to Awards of Incentive Stock Options, no such adjustment shall be
made which would cause the Plan to violate Section 424(a) of the Code or any
successor provisions thereto without the written consent of holders
materially adversely affected thereby. In any of such events, the Committee
may take such action sufficiently prior to such event if it deems such
action necessary or appropriate to permit the Participant to realize the
benefits intended to be conveyed with respect to the underlying shares in
the same manner as is or will be available to stockholders generally.
(b) SECTION 16 DEFERRAL. The foregoing adjustments to Awards
granted to such Participants may be suspended or deferred for so long as
the Committee determines that such adjustments adversely affect the
ability of persons subject to the reporting and liability provisions of
Section 16 of the Exchange Act to avoid liability under Section 16 of the
Exchange Act.
(c) ASSUMPTION; SUBSTITUTION; OTHER SETTLEMENT ADJUST-MENTS. Whether
or not an Award is vested at the time of an Event, the Committee, prior to
the Event but subject to any applicable limitations (in the case of a
transaction to be accounted for as a pooling of interests) under generally
accepted accounting principles, may in its discretion further provide in
respect of any or all outstanding Awards:
(i) for the assumption of the outstanding Awards by a successor
entity, or a parent or subsidiary thereof, with appropriate
adjustments to the type of securities or property to be delivered,
or
(ii) for the substitution for the outstanding Awards of new
Awards covering securities, obligations or consideration (including
cash or other property), or any combination thereof, of or from the
Corporation or a successor entity, or a parent or subsidiary
thereof, in either case with appropriate, proportionate, equitable
adjustments as to number and kind of securities, obligations and/or
other consideration deliverable in respect of the vesting or on
exercise of an Award and the applicable exercise or other prices and
conditions in respect thereof; or
(iii) for the payment of the fair value of the outstanding
Awards in complete settlement of all rights of the Participant
thereunder; and
(iv) if such provision is made under this Section 7.2(c), the
Committee as constituted prior to the Event also may terminate the
original Award upon such assumption, substitution or payment.
(d) OTHER BENEFITS. In addition, the Committee may grant such
additional rights in the foregoing circumstances as the Committee deems
to be in the best interest of the Participants and the Corporation in
order to preserve for the Participants the benefits of their Awards.
(e) RELIANCE. In adjusting Awards to reflect the changes described
in this Section 7.2, or in determining that no such adjustment is
necessary, the Committee may rely upon the advice of independent counsel
and accountants of the Corporation, and the determination of the
Committee shall be conclusive.
7.3 EFFECT OF TERMINATION OF EMPLOYMENT.
Unless the Committee otherwise expressly provides in or by amendment to
the Award Agreement:
(a) OPTIONS - RESIGNATION; DISMISSAL WITHOUT CAUSE. If the
Participant's employment by the Company terminates for any reason other
than Retirement, Total Disability or death, the Participant shall have,
subject to earlier termination pursuant to or as contemplated by Section
3.3, three months from the date of termination of employment to exercise
any Option to the extent it shall have become exercisable on the date of
termination of employment, and any Option to the extent not exercisable
on that date shall terminate.
(b) OPTIONS - RETIREMENT, DISABILITY OR DEATH. If the Partici-
pant's employment by the Company terminates as a result of Retirement,
Total Disability, or death, the Participant or Participant's Personal
Representative or his or her Beneficiary, as the case may be, shall have,
subject to earlier termination pursuant to or as contemplated by Section
3.3, 12 months from the date of termination of employment to exercise any
Option to the extent it shall have become exercisable by the date of
termination of employment, and any Option to the extent not exercisable
on that date shall terminate.
(c) SARS. Each Stock Appreciation Right granted concurrently with
an Option shall have the same termination provisions and exercisability
periods as the Option to which it relates. The exercisability period of
a Stock Appreciation Right shall not exceed that provided in Section 3.3
or in the related Award Agreement and the Stock Appreciation Right shall
expire at the end of such exercisability period.
(d) RESTRICTED AND PERFORMANCE SHARES. In the event of a termi-
nation of employment with the Company for any reason, (i) shares of
Common Stock subject to the Participant's Restricted Stock Award shall
be forfeited in accordance with the provisions of the related Award
Agreement to the extent such shares have not become vested on that date;
and (ii) shares of Common Stock subject to the Participant's Performance
Share Award shall be forfeited in accordance with the provisions of the
related Award Agreement to the extent such shares have not been issued
or become issuable on that date.
(e) ADJUSTMENT. In the event or in anticipation of a termination of
employment with the Company for any reason, other than discharge for cause,
the Committee may, in its discretion (subject to the provisions of Sections
2.5, 3.4, 5.1 and 6.1 and 7.5, 7.7 and 7.12) accelerate exercisability or
vesting or extend the exercisability or vesting period of an Award, or make
other changes to or provide for alternative settlement of an Award.
(f) CHANGE IN OWNERSHIP OF SUBSIDIARY. If an entity ceases to be
a Subsidiary, such action shall be deemed for purposes of this Section
7.3 to be a termination of employment of each employee of that entity who
does not continue as an employee of another entity within the Company.
7.4 ACCELERATION OF AWARDS UPON AN EVENT; OTHER CHANGES IN AWARDS.
Unless prior to an Event the Committee determines that, upon its
occurrence, there shall be no acceleration of Awards or determines those
Awards which shall be accelerated and the extent to which they shall be
accelerated, upon the occurrence of an Event (i) each Option and each
related Stock Appreciation Right shall become immediately exercisable to the
full extent theretofore not exercisable, (ii) Restricted Stock shall
immediately vest free of restrictions, and (iii) the number of shares
covered by each Performance Share Award shall be issued to the Participant.
Acceleration of Awards shall comply with applicable regulatory requirements,
including without limitation Rule 16b-3 and Section 422 of the Code.
7.5 COMPLIANCE; GOVERNMENT REGULATIONS.
This Plan, the granting and vesting of Awards under this Plan and the
offer, issuance or delivery of shares of Common Stock (and/or the payment
of money or other property or securities) pursuant to this Plan or Awards
are subject to compliance with all applicable federal and state laws,
rules and regulations and to such approvals by any listing, regulatory
or governmental agency (including without limitation "no action"
positions of the Commission) as may, in the opinion of counsel for the
Corporation, be necessary or advisable in connection therewith. In
connection with any stock issuance or transfer, the person acquiring the
shares shall, if requested by the Corporation, give assurances
satisfactory to counsel to the Corporation in respect of such matters as
the Corporation may deem necessary or desirable to assure compliance with
all applicable legal requirements.
7.6 TAX WITHHOLDING.
Upon the disposition by a Participant or other person of shares of
Common Stock acquired pursuant to the exercise of an Incentive Stock
Option prior to satisfaction of the holding period requirements of
Section 422 of the Code, or upon the exercise of a Nonqualified Stock
Option, the exercise of a Stock Appreciation Right, the vesting of a
Restricted Stock Award, or the payment of a Performance Share Award, the
Company shall have the right to (i) require such Participant or such
other person to pay by cash, or certified or cashier's check payable to
the Company, the amount of any taxes which the Company may be required
to withhold with respect to such transaction or (ii) deduct from amounts
paid in cash the amount of any taxes which the Company may be required
to withhold with respect to such cash amounts. The above
notwithstanding, in any case where a tax is required to be withheld in
connection with the issuance, transfer or vesting of shares of Common
Stock under this Plan, the Participant may elect, pursuant to such rules
and subject to such conditions as the Committee may establish (which
conditions may require its specific approval, on a case-by-case basis),
to have the Company reduce the number of such shares issued or
transferred by the appropriate number of shares to accomplish such
withholding. The Committee may impose conditions on the payment of any
withholding obligation necessary in the case of persons subject to the
reporting and liability provisions of Section 16 of the Exchange Act to
enable them to avoid liability under Section 16 of the Exchange Act or
to secure the benefits otherwise available under any applicable exemptive
or other rule thereunder with respect to a "plan" or particular award or
action related thereto. In any event, the Corporation shall not be
obligated to issue or deliver shares and/or distribute cash to the
Participant upon exercise or vesting of any Award, unless such
withholding (or offset) as of or prior to the date of such issue or
delivery is sufficient to cover all such sums due or which may be due
with respect to such exercise or vesting.
7.7 AMENDMENT, TERMINATION AND SUSPENSION.
(a) PLAN CHANGES. The Board may, at any time, terminate or, from
time to time, amend, modify or suspend this Plan (or any part hereof),
including without limitation, amendments or modifications as may be
necessary to enable Participants to avoid liability under Section 16 of
the Exchange Act or to secure the benefits otherwise available under any
applicable exemptive or other rule thereunder with respect to a "plan"
or particular award or action related thereto. In addition, the
Committee may, from time to time, amend or modify any provision of this
Plan, except Section 7.2 or 7.4. No Awards may be granted during any
suspension of this Plan or after its termination, but the Committee shall
retain jurisdiction hereunder in respect of Awards granted prior thereto
and may consistent with the terms hereof modify such Awards unless the
Board otherwise provides.
(b) CHANGES TO OUTSTANDING AWARDS. The Committee may, with the
consent of the Participant, as to any adverse change make such
modifications of the terms and conditions of such Participant's Award as
it shall deem advisable. The Committee, with the consent of the
Participant, may also amend the terms of any Option to provide that the
purchase price under the Option of the shares remaining subject to the
original Award shall be reestablished at a price not less than 100% of
the Fair Market Value of the Common Stock on the effective date of the
amendment. No modification of any other term or provision of any Option
which is amended in accordance with the foregoing shall be required,
although the Committee may, in its discretion, make such further
modifications of any such Option as are not inconsistent with or
prohibited by this Plan. Changes pursuant to Section 7.2 or 7.4 are not
limited by or subject to this Section 7.7(b).
(c) STOCKHOLDER APPROVAL. If an amendment would (i) materially
increase the benefits accruing to Participants under this Plan, (ii)
materially increase the aggregate number of securities which may be
issued under this Plan, or (iii) materially modify the requirements of
eligibility for participation in this Plan, the amendment shall be
approved by the Board and, to the extent then required by Section 424 of
the Code or as may be necessary or desirable to avoid liability under
Section 16 of the Exchange Act or to secure the benefits otherwise
available under any applicable exemptive or other rule thereunder with
respect to a "plan" or particular award or action related thereto or
required by any other applicable law, or any successor provision thereto,
by the requisite number of stockholders.
(d) EFFECT OF PLAN AMENDMENT ON OUTSTANDING AWARD. Any amendment,
suspension or termination of this Plan shall not, without specific action
of the Board or the Committee and the consent of the Participant as to
any adverse change, in any way modify, amend, alter or impair any rights
or obligations under any Award previously granted under this Plan.
7.8 PRIVILEGES OF STOCK OWNERSHIP; NONDISTRIBUTIVE INTENT.
A Participant shall not be entitled to the privilege of stock ownership
as to any shares of Common Stock not actually issued to him or her. Upon the
issuance and transfer of shares to the Participant, unless a registration
statement is in effect under the Securities Act and applicable state
securities law relating to such issued and transferred Common Stock and
there is available for delivery a prospectus meeting the requirements of
Section 10 of the Securities Act, the Common Stock may be issued and
transferred to the Participant only if he or she represents and warrants in
writing to the Corporation that the shares are being acquired for investment
and not with a view to the resale or distribution thereof.
7.9 EFFECTIVE DATE OF THIS PLAN.
The effective date of this Plan was May 15, 1991. Material amendments
to this Plan effective February 1, 1996, are subject to approval by the
stockholders of the Corporation at their next annual meeting.
7.10 TERM OF THIS PLAN.
Unless previously terminated by the Board, this Plan shall terminate
at the close of business on May 14, 2001, and no Awards shall be granted
under it thereafter, but such termination shall not affect any Award
theretofore granted or the authority of the Committee with respect to
Awards then outstanding.
7.11 GOVERNING LAW.
This Plan and the documents evidencing Awards and all other related
documents shall be governed by, and construed in accordance with, the laws
of the State of California. If any provision shall be held by a court of
competent jurisdiction to be invalid and unenforceable, the remaining
provisions of this Plan shall continue to be fully effective.
7.12 LIMITATIONS AS TO EXECUTIVE OFFICERS.
(a) RULE 16b-3; BIFURCATION. It is the intent of the Corporation
that this Plan and Awards hereunder satisfy and be interpreted in a
manner that in the case of Participants who are or may be subject to
Section 16 of the Exchange Act satisfies the applicable requirements of
Rule 16b-3 so that such persons (unless they otherwise agree) will be
entitled to the benefits of Rule 16b-3 or other exemptive rules under
Section 16 of the Exchange Act and will not be subjected to avoidable
liability there-under.
If any provision of this Plan or of any Award would otherwise frustrate
or conflict with the intent expressed above, that provision to the extent
possible shall be interpreted and deemed amended so as to avoid such
conflict, but to the extent of any remaining irreconcilable conflict with
such intent as to such persons in the circumstances, such provision shall
be disregarded. Notwithstanding anything to the contrary in this Plan, the
provisions of this Plan may at any time be bifurcated by the Board or the
Committee in any manner so that certain provisions of this Plan or any Award
Agreement intended (or required in order) to satisfy the applicable
requirements of Rule 16b-3 are only applicable to Section 16 Persons and to
those Awards to Section 16 Persons intended to satisfy the requirements of
Rule 16b-3.
(b) SECTION 162(m). It is the further intent of the Corporation
that Options or SARs with an exercise or base price not less than Fair
Market Value on the date of grant and performance awards under Section
6.2 of this Plan that are granted to or held by a Section 16 Person shall
(if so designated by the Committee) qualify as performance-based
compensation under Section 162(m) of the Code, and this Plan shall be
interpreted consistent with such intent.
(c) RULE 16b-3 TRANSITION PERIOD PROVISIONS. During the transition
period in respect of Rule 16b-3, any derivative security the grant of
which is intended to be exempt from Rule 16b-3 shall not be transferable
other than as permitted by former Rule 16b-3(d)(ii); the exercise price
or other consideration for any exempt grant or Award (and the timing of
any right to elect to purchase Restricted Stock) shall conform to any
additional time and price limitations under former Rule 16b-3; and no
member of the Board of Directors who is not an officer or employee of the
Corporation shall be eligible for any Award under this Plan.
7.13 CAPTIONS.
Captions and headings are given to the sections and subsections of this
Plan solely as a convenience to facilitate reference. Such headings
shall not be deemed in any way material or relevant to the construction
or interpretation of this Plan or any provision thereof.
7.14 NO FRACTIONAL INTEREST.
No fractional shares of stock shall be issued under this Plan, but
fractional interests may be accumulated or paid in cash.
7.15 NON-EXCLUSIVITY OF PLAN.
Nothing in this Plan shall limit or be deemed to limit the authority
of the Board or the Committee to grant awards or authorize any other
compensation, with or without reference to the Common Stock, under any
other plan or authority.
<PAGE>
<PAGE>
EXHIBIT 5
GOODSILL ANDERSON QUINN & STIFEL
ALII PLACE, SUITE 1800
1099 ALAKEA STREET
HONOLULU, HAWAII 96813
TELEPHONE: (808) 547-5600
October 4, 1996
Dole Food Company, Inc.
31355 Oak Crest Drive
Westlake Village, CA 91359-5132
Re: Registration on Form S-8 of
Dole Food Company, Inc. Amended and
Restated 1991 Stock Option and Award Plan
------------------------------------------
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by Dole
Food Company, Inc., a Hawaii corporation (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act
of 1933, as amended, covering 2,500,000 shares of Common Stock, without par
value (the "Shares") of the Company to be issued pursuant to the Dole Food
Company, Inc. Amended and Restated 1991 Stock Option and Award Plan (the
"Plan").
We have examined such appropriate records of the Company and other
documents as we have deemed pertinent as a basis for this opinion.
Based upon such examination and upon such matters of fact and law
as we have deemed relevant, we are of the opinion that when the shares are
issued and paid for in accordance with authorization by the Company's board
of directors and appropriate Committee action under the Plan and with the
provisions of the Plan and agreements duly authorized by and completed in
accordance with the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Goodsill Anderson Quinn & Stifel
--------------------------------------
Goodsill Anderson Quinn & Stifel
<PAGE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Dole Food Company, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated
February 5, 1996 included in the Dole Food Company, Inc. Annual Report on
Form 10-K for the fiscal year ended December 30, 1995 and to all references
to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
--------------------------------
ARTHUR ANDERSEN LLP
Los Angeles, California
October 8, 1996
