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EXHIBIT 10.11
CHANGE OF CONTROL AGREEMENT
__________________________
__________________________
__________________________
Dear: ____________________
This Change of Control Agreement
("Agreement") is entered into effective
this _____ day of _______________, 2002 between you and Dole Food
Company, Inc.
You are a key executive at Dole and an integral part of its
management. We
recognize that the possibility of a change of control of Dole may
result in the
departure or distraction of management to the detriment of Dole and
its
stockholders. We wish to assure you of fair severance should your
employment
terminate in specified circumstances following a change of control
of Dole and
to assure you of certain other benefits upon a change of control.
The
capitalized terms used in this Agreement either are defined in the
Appendices at
the end of this Agreement or otherwise are defined in the body of
this
Agreement. In consideration of your continued employment with Dole
and other
good and valuable consideration, you and Dole agree as follows:
1. Benefits Following Change of Control
and Termination of Employment:
(a) If,
during the period beginning on the Change of Control Date and
ending on the second anniversary of the
date on which the Change of Control
becomes effective (a "PROTECTED PERIOD"),
your employment is terminated,
you (or your beneficiaries, if you are
deceased at the time of payment)
will receive the amounts and benefits
stated in Exhibit A attached at the
end of this letter agreement, unless your
employment is (i) Terminated by
us for Cause or (ii) Terminated by you
other than for Good Reason, in which
event, section 1(b) will control. A
termination to which this section 1(a)
and Exhibit A applies is called a
"QUALIFIED TERMINATION." For all purposes
of this Agreement, if a Fundamental
Transaction or an Asset Sale becomes
effective or is consummated that
constitutes a Change of Control, you shall
be deemed for all purposes of this
Agreement to be employed by the
Corporation on the Change of Control Date
if you were employed by the
Corporation on the later of (x) the date
of the first public disclosure
that an agreement with respect to such
Fundamental Transaction or Asset
Sale has been entered into or (y) the date
that is 270 calendar days prior
to the date on which such Fundamental
Transaction or Asset Sale becomes
effective or is consummated, and the
Change of Control Date shall be deemed
to be such later date, if, after such
later date and prior to the date on
which such Fundamental Transaction or
Asset Sale becomes effective or is
consummated, your employment with Dole is
either (1) Terminated by you on
account of an event or events that would
constitute Good Reason if such
event or events occurred after a Change of
Control Date, or (2) Terminated
by us other than on account of an event or
events that would constitute
Cause if such event or events occurred
after a Change of Control Date.
(b) If,
during a Protected Period, your employment is (i) Terminated
by us for Cause or (ii) Terminated by you
other than for Good Reason, this
Agreement will terminate and our only
obligation to you under this
Agreement will be the timely payment of
Accrued Obligations. If your
employment is terminated because of death,
we will pay the Accrued
Obligations to your estate or beneficiary,
as applicable, in a lump sum in
cash or equivalent within 30 days of the
date on which we are first
informed of your death.
(c) Any
amount payable under this Agreement that is not paid when due
will accrue interest at the prime rate as
from time to time in effect at
Wells Fargo Bank, N.A., or its successors
or assigns, until paid in full.
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2. Termination: For all purposes of this
Agreement, if your employment is
terminated during a Protected Period (a "Termination"), the
Termination will
fall into one of four possible categories: (a) Termination by us
for Cause; (b)
Termination by us other than for Cause; (c) Termination by you for
Good Reason;
and (d) Termination by you other than for Good Reason. Any
Termination by us for
Cause other than by your death, or Termination by you for Good
Reason, shall be
communicated by Notice of Termination to the other party hereto
given in
accordance with section 15. This Agreement is intended by you and
us only to
define the different ways in which your employment can terminate
during a
Protected Period and the exclusive consequences of that termination
in terms of
payments by us. Nothing in this Agreement shall (1) be construed as
creating an
express or implied contract of employment, changing your status as
an employee
at will, giving you any right to be retained in the employ of Dole,
or giving
you the right to any particular level of compensation or benefits
nor (2)
interfere in any way with the right of Dole to terminate your
employment at any
time with or without Cause, subject in either case to any express
payment
obligations of Dole under Section 1 and Exhibit A in the case of a
Termination.
3. No Mitigation of Damages;
Withholding.
(a) Your
rights under this Agreement will be considered severance pay
in consideration of your past service and
your continued service from the
date of this Agreement. You will not have
any duty to mitigate your damages
or reduce our payments to you under this
Agreement by seeking future
employment. The amounts payable to you
under this Agreement will not be
reduced or subject to repayment to us as a
result of any compensation you
may receive from future employment.
(b) All
payments required to be made by us to you under this Agreement
will be subject to the withholding of such
amounts, if any, relating to tax
and other payroll deductions as we may
reasonably determine we should
withhold pursuant to law or
regulation.
(c) Except
as set forth in Exhibit A, our obligation to make the
payments provided for in this Agreement
and otherwise to perform our
obligations under this Agreement will not
be subject to any set-off,
counterclaim, recoupment, defense or other
claim, right or action that we
may have against you.
4. RELEASE. NOTWITHSTANDING ANYTHING TO
THE CONTRARY IN THIS AGREEMENT, OUR
OBLIGATION TO MAKE ANY PAYMENT PROVIDED FOR IN THIS AGREEMENT UPON
OR AFTER A
TERMINATION OF SERVICE IS EXPRESSLY MADE SUBJECT TO AND CONDITIONED
UPON (A)
YOUR PRIOR EXECUTION OF A RELEASE SUBSTANTIALLY IN THE FORM OF
EXHIBIT C,
ATTACHED AT THE END OF THIS AGREEMENT, WITHIN 90 DAYS AFTER THE
DATE OF
TERMINATION AND (B) YOUR NON-REVOCATION OF SUCH RELEASE IN
ACCORDANCE WITH ITS
TERMS. PENDING THE DELIVERY OF THE RELEASE AND EXPIRATION OF ANY
AND ALL
APPLICABLE STATUTORY WAITING PERIODS, NO SUCH PAYMENT WILL BE DUE
HEREUNDER.
5. Indemnification: In any circumstance
where, under our certificate of
incorporation orby-laws, we have the power to indemnify or advance
expenses to
you in respect of any judgments, fines, settlements, losses, costs
or expenses
(including attorneys' fees) of any nature relating to or arising
out of your
activities as an agent, employee, officer or director of Dole or in
any other
capacity on behalf of or at the request of Dole, we agree that, if
you have
undergone a Qualified Termination, we will promptly, on written
request,
indemnify and advance expenses to you to the fullest extent
permitted by
applicable law, including but not limited to making such findings
and
determinations and taking any and all such actions as we may, under
applicable
law, be permitted to have the discretion to take so as to
effectuate such
indemnification or advancement. Such agreement by Dole will not be
deemed to
impair any other obligation of Dole respecting indemnification of
you otherwise
arising out of this or any other agreement or promise of Dole or
under our
certificate of incorporation or by-laws.
6. Binding Agreement. This Agreement will
be binding upon and inure to the
benefit of you and Dole and will be enforceable by your personal or
legal
representatives or successors. If you die during a
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Protected Period while any amounts would still be payable to you
under this
Agreement at the time of your death, then such amounts will be paid
to your
estate, or such rights will remain exercisable by your estate,
respectively, in
accordance with the terms of this Agreement. This Agreement will
not otherwise
be assignable by you.
7. Successors. This Agreement will inure
to and be binding upon Dole's
successors, including, without limitation, any successor to all or
substantially
all of Dole's business and/or assets. Dole will require any such
successor to
all or substantially all of the business and/or assets of Dole by
sale,
transfer, merger (where Dole is not the surviving corporation),
consolidation,
recapitalization, reorganization, lease, distribution, spin-off or
otherwise, to
expressly assume in writing this Agreement, unless it is assumed by
operation of
law. This Agreement will not otherwise be assignable by Dole.
8. Arbitration. Any controversy or claim
arising out of or relating to this
Agreement, or the breach thereof, will be submitted to final and
binding
arbitration, to be held in Los Angeles County, California, before a
single
arbitrator, in accordance with California Civil Procedure Code
Sections 1280 et
seq. The arbitrator will be selected by mutual agreement of you and
us or, if
you and we cannot agree, then by striking from a list of
arbitrators supplied by
the American Arbitration Association. The arbitrator will issue a
written
opinion revealing, however briefly, the essential findings and
conclusions upon
which the arbitrator's award is based. Judgment upon the award
rendered by the
arbitrator(s) may be entered in any court having jurisdiction. We
will pay the
arbitrator's fees and arbitration expenses and any other costs
associated with
the arbitration hearing. You and we will each bear our respective
deposition,
witness, expert and attorneys' fees and other expenses as and to
the same extent
as if the matter were being heard in court. If, however, any party
prevails on a
statutory claim that affords the prevailing party attorneys' fees
and costs, or
if there is a written agreement providing for fees and costs, then
the
arbitrator will award reasonable fees to the prevailing party in
accordance with
the statute or the written agreement, as appropriate. Any dispute
as to the
reasonableness of any fee or cost will be resolved by the
arbitrator. Nothing in
this section 8 will affect your or our ability to seek from a court
injunctive
or equitable relief.
9. Confidentiality. Except as may be
necessary to enter or execute judgment
upon an arbitration award or to the extent required by applicable
law, all
claims, defenses and proceedings (including, without limitation,
the existence
of a controversy, the fact that there is an arbitration proceeding
and the
content of the pleadings, papers, orders, hearings, trials or
awards in the
arbitration) will be treated in a confidential manner by the
arbitrator, the
parties and their counsel, each of their agents and employees and
all others
acting on behalf of or in concert with them. Any controversy
relating to the
arbitration, including, without limitation, any action to prevent
or compel
arbitration or to confirm, correct, vacate or otherwise enforce an
arbitration
award, will be filed under seal with the court, to the extent
permitted by law.
10. Restraint on Alienation. None of your
benefits, payments, proceeds or
claims under this Agreement will be subject to any claim of any
creditor and, in
particular, the same will not be subject to attachment or
garnishment or other
legal process by any creditor, nor will you have any right to
alienate,
anticipate, commute, pledge, encumber or assign any of the benefits
or payments
of proceeds that you may expect to receive, contingently or
otherwise, under
this Agreement. Notwithstanding the preceding sentence, benefits
that are in pay
status may be subject to a garnishment or wage assignment or
authorized or
mandatory deductions made pursuant to a court order, a tax levy or
applicable
law or your elections.
11. TERMINATION PRIOR TO CHANGE OF CONTROL
DATE. NOTWITHSTANDING SECTION
14, BUT SUBJECT TO THE LAST SENTENCE OF SECTION 1(A), IF, PRIOR TO
THE FIRST
CHANGE OF CONTROL DATE, YOUR EMPLOYMENT WITH DOLE TERMINATES, THEN
ALL OF YOUR
RIGHTS UNDER THIS AGREEMENT TERMINATE, AND THIS AGREEMENT WILL BE
DEEMED TO HAVE
BEEN TERMINATED ON THE DATE OF YOUR TERMINATION.
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12. Strict Compliance; Severability;
Integration. Your or our failure to
insist upon strict compliance with any provision of this Agreement
or the
failure to assert any right you or Dole may have hereunder,
including, without
limitation, your right to terminate for Good Reason or our right to
terminate
for Cause, will not be deemed to be a waiver of such provision or
right with
respect to any subsequent lack of compliance, or of any other
provision of or
right under this Agreement. The invalidity or unenforceability of
any provision
of this Agreement will not affect the validity or enforceability of
any other
provision of this Agreement. This Agreement contains the entire
agreement
between you and Dole with respect to the subject matter hereof and
supersedes,
with respect to the subject matter hereof, all prior or
contemporaneous
agreements, understandings and negotiations, whether oral or
written, between
you and Dole, including without limitation any employment
agreement, change of
control agreement, offer letter or other agreement, if any; and any
such
employment agreement, change of control agreement, offer letter or
other
agreement, if any, shall be null and void to the extent it provides
for any
payment or benefit to you contingent upon the occurrence (alone or
with other
events) of a Change of Control or an event that is otherwise deemed
to be
comprehended by the term "change of control." You and Dole
acknowledge and agree
that no representations, inducements, promises or agreements,
orally or
otherwise, have been made by you or Dole regarding the subject
matter hereof
that are not contained in this Agreement, and that no other
agreement, statement
or promise not contained herein shall be valid or binding with
respect to the
subject matter hereof.
13. Choice of Law: This Agreement is made
in, and will be governed by, the
laws of the State of California, without regard to the choice of
laws or
conflict of laws principles or rules of the State of California or
of any other
jurisdiction.
14. Modification or Termination of this
Agreement: After the first Change
of Control Date, this Agreement may only be modified or terminated
by a writing
signed by both you and us. Before the first Change of Control Date,
we may
unilaterally modify or terminate this Agreement, but such
unilateral
modification or termination will not be effective until the second
anniversary
of the date on which we first give you express written notice of
the unilateral
modification or termination (the "MODIFICATION EFFECTIVE Date");
provided,
however, that the unilateral modification or termination shall
never become
effective if (1) a Change of Control Date occurs before the
Modification
Effective Date and (2) your employment is terminated during the
Protected Period
in respect of such Change of Control Date. Nothing in this section
14 shall in
any way eliminate, diminish or restrict the effect of section 11.
This Agreement
shall continue in full force and effect until it is terminated in
accordance
with the terms of this Agreement.
15. Notices. All notices and other
communications under this Agreement must
be in writing and must be given by hand delivery to the other
party, by
reputable overnight courier or by registered or certified mail,
return receipt
requested, postage prepaid, addressed as follows:
If to you:
If to Dole:
Dole Food Company, Inc.
One Dole Drive
Westlake Village, California 91362-7300
Attention: President
or to such other address as either party will have furnished to the
other in
writing in accordance herewith. Notice and communications will be
effective when
actually received by the addressee.
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Please indicate your acceptance of and
agreement to the terms of this
Change of Control Agreement by signing and dating below, where
indicated, and
returning a signed copy to us.
Sincerely,
DOLE FOOD COMPANY, INC.
By:
---------------------------------
Title:
------------------------------
Agreed and Accepted:
-------------------------------------
Date:
-------------------------------
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APPENDIX
1
DEFINITIONS
"ACCRUED OBLIGATIONS" shall mean the sum
of (1) your annual base salary
through the date of Termination to the extent not theretofore paid
and (2) any
compensation previously deferred by you (together with any accrued
interest or
earnings thereon) pursuant to outstanding elections and/or any
accrued vacation
pay or paid time off, in each case to the extent not theretofore
paid; provided,
that if your employment is Terminated by us for Cause, other than
your death,
the date of Termination, for purposes of this definition of Accrued
Obligations,
shall be deemed to be the date on which Notice of Termination was
given.
"AFFILIATE" shall have the meaning
ascribed in Rule 12b-2 promulgated under
the Exchange Act.
"ASSOCIATE" shall have the meaning
ascribed in Rule 12b-2 promulgated under
the Exchange Act.
"CHANGE OF CONTROL" shall have the meaning
set forth in Appendix 2.
"CHANGE OF CONTROL DATE" shall mean the
first date after the date of this
Agreement on which a Change of Control occurs, except as set forth
in the last
sentence of Section 1(a).
"DAVID H. MURDOCK" shall mean David H.
Murdock, a California resident, who,
on the date of this Agreement, is the Chairman and Chief Executive
Officer of
Dole.
"DISABILITY" shall mean your absence from,
or inability to perform duties
for, Dole on a full-time basis for 90 consecutive business days or
120 business
days in any period of 180 business days as a result of mental or
physical
illness or injury that is total and permanent, as determined by a
physician
selected by us or our insurers and acceptable to you or your
legal
representative (such agreement as to acceptability not to be
withheld
unreasonably) and that is not susceptible to reasonable
accommodation.
"NOTICE OF TERMINATION" shall mean a
written notice which (1) indicates the
specific termination provision in this Agreement relied upon, and
(2) to the
extent applicable, sets forth in reasonable detail the facts and
circumstances
claimed to provide a basis for termination of your employment under
the
provision so indicated.
"TERMINATION BY US FOR CAUSE," "TERMINATED
BY US FOR CAUSE" and "CAUSE"
shall mean Dole's termination of your employment with Dole (during
a Protected
Period) pursuant (except under clause (e), below, in which case
Dole need not
send a Notice of Termination) to a Notice of Termination given
within 120 days
following our becoming aware of the occurrence of any one or more
of the
following to the extent (in the case of clause (b) or (c) if
remediable) not
remedied in a reasonable period of time after receipt by you of
written notice
from us specifying such occurrence (any termination of your
employment by Dole
that is not a Termination by us for Cause will be deemed to be a
"TERMINATION BY
US OTHER THAN FOR CAUSE"):
(a) You are
convicted of, or plead guilty or nolo contendere to, a
felony;
(b) You
commit an act of gross misconduct in connection with the
performance of your duties;
(c) You
demonstrate habitual negligence in the performance of your
duties;
(d) You
commit an act of fraud, misappropriation of funds or
embezzlement in connection with your
employment by Dole;
(e) Your
death; or
(f) Your
Disability.
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Notwithstanding the foregoing, you shall
not be deemed to have been
Terminated by us for Cause under clauses (b)--(d) or (f) until the
later to
occur of (i) the 30th day after Notice of Termination is given and
(ii) the
delivery to you of a certified copy of a resolution duly adopted by
the
affirmative vote of not less than a majority of the total number of
our
directors at a meeting duly called and held (after reasonable
notice to you),
and at which you, together with your counsel, were given an
opportunity to be
heard, finding that one or more of the events described in clauses
(b)--(d) or
(f) above occurred, and specifying the particulars thereof in
detail; provided,
however, we may suspend you and withhold payment of your base
salary, other
compensation and benefits from the date that Notice of Termination
is given
until the earliest to occur of (i) Termination by us for Cause
effected in
accordance with the foregoing procedures (in which case you shall
not be
entitled to your base salary, other compensation or benefits for
such period),
(ii) a determination by a majority of our directors that none of
the events
described in clauses (b)--(d) or (f) above occurred (in which case
you shall be
reinstated and paid any of your previously unpaid base salary,
other
compensation and benefits for such period), or (iii) the 90th day
after Notice
of Termination is given (in which case you shall be reinstated and
paid any of
your previously unpaid base salary, other compensation and benefits
for such
period).
"TERMINATION BY YOU FOR GOOD REASON"
"TERMINATED BY YOU FOR GOOD REASON"
and "GOOD REASON" means your resignation of employment with Dole
(during the
Protected Period) within 120 days following the occurrence of one
or more of the
following to the extent not remedied in a reasonable period of time
after
receipt by Dole of written notice from you specifying such
occurrence, without
your express written consent (any termination of your employment by
you that is
not a Termination by you with Good Reason will be deemed to be a
"TERMINATION BY
YOU OTHER THAN FOR GOOD REASON"):
(a) Whether
direct or indirect, a significant diminution of your
authority, duties, responsibilities or
status inconsistent with and below
those held, exercised and assigned in the
ordinary course during the 90 day
period immediately preceding the Change of
Control Date, excluding any such
significant diminution that (i) begins
prior, and ends on or prior, to the
date on which a Fundamental Transaction or
Asset Sale becomes effective or
is consummated that constitutes a Change
of Control, and (ii) results from
the affirmative and negative pre-closing
operating covenants applicable to
Dole contained in the definitive
transaction agreements providing for such
Fundamental Transaction or Asset Sale.
(b) The
assignment to you of duties that are inconsistent (in any
significant respect) with, or that impair
(in any significant respect) your
ability to pe
