Dole Food Company,
Inc.
Non-Employee Directors Deferred
Cash Compensation Plan
Amended and Restated
Effective January 1, 2009
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Contents
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1
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1
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1.2 Restatement and Applicability of the
Plan
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1
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1
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3
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3
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3
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3
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3
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2.5 Change of Control for Grandfathered
Amounts
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3
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5
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5
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2.8 Company or Corporation
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5
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5
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5
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5
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5
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5
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2.14 Grandfathered Amount
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5
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6
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2.16 Meeting and Other Fees
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6
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2.17 Nongrandfathered Amount
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6
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6
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6
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6
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6
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2.22 Separation from Service
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6
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6
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7
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Article 4. Deferral
Elections
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8
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8
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Article 5. Deferral
Accounts
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10
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10
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11
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5.3 Distribution of Benefits for Grandfathered
Amounts
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11
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Contents
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5.4 Distribution of Benefits for
Nongrandfathered Amounts
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12
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5.5 Company’s Right to Withhold
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14
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Article 6. Administration
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15
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15
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15
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15
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6.4 Indemnity and Liability
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16
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Article 7. Plan Changes and
Termination
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17
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17
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17
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18
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8.1 Limitation on Participants’
Rights
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18
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18
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8.3 Benefits Not Assignable; Obligations Binding
Upon Successors
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18
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8.4 Governing Law; Severability
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18
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19
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19
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8.7 Headings Not Part of Plan
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19
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8.8 Relationship to the 1993 Deferred
Compensation Plan
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19
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8.9 Limited Exception to Irrevocability of
Payout Elections for Grandfathered Amounts
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19
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8.10 Permissible Delays or
Accelerations
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19
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This Plan shall
be known as Dole Food Company, Inc. Non-Employee Directors Deferred
Cash Compensation Plan. The purpose of this Plan is to attract,
motivate and retain experienced and knowledgeable non-employee
directors of the Company by permitting them to defer cash
compensation. Capitalized terms with special meanings are defined
in Article 2.
1.2
Restatement and Applicability of the Plan
Effective as of
January 1, 2009, the Company hereby amends and restates the
Plan as reflected in this document. In all cases, a
Participant’s Grandfathered Amount shall be payable only
under the terms of the Plan in effect on October 3, 2004.
Unless otherwise explicitly provided in this Plan restatement, the
Plan provisions, operation and administration in effect prior to
this restatement shall continue to govern the terms and conditions
of the Plan prior to January 1, 2009.
Notwithstanding
any provision to the contrary and to assure that there is no
material modification of the Plan as in effect on October 3,
2004, nothing contained in this restatement shall be interpreted as
materially modifying, within the meaning of Treasury Regulation
section 1.409A-6(a)(4), the prior restatement of the Plan with
respect to Grandfathered Amounts.
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(a)
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Compliance with Code
Section 409A . The Plan is intended to comply
with Code section 409A and the final Treasury Regulations issued
thereunder with respect to Nongrandfathered Amounts. For the period
beginning on January 1, 2005, and ending on December 31,
2008, the Plan was operated in good-faith compliance with Code
section 409A, the final and temporary Treasury Regulations issued
thereunder, Notice 2005-1 and other applicable guidance.
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(b)
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Nonqualified Plan
. The Plan is not
qualified within the meaning of Code section 401(a). The Plan is
intended to provide an unfunded and unsecured promise to pay money
in the future and thus not to involve, pursuant to Treasury
Regulations section 1.83-3(e), the transfer of
“property” for purposes of Code section 83. Likewise,
allocations and accruals under this Plan are not intended to confer
an economic benefit upon the Participant nor is the right to the
receipt of future benefits under the Plan intended to result in any
Participant or Beneficiary being in constructive receipt of any
amount so as to result in any benefit due under the Plan being
includable in the gross income of any Participant or Beneficiary in
advance of the date on which payment of any benefit due under the
Plan is actually made.
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(c)
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No Guarantees of Intended Tax
Treatment .
The Plan shall be administered and interpreted so as to satisfy the
requirements for the intended tax treatment under the Code
described in this Section 1.3. However, the treatment
of
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benefits earned
under and benefits received from this Plan, for purposes of the
Code and other applicable tax laws (such as state income and
employment tax laws), shall be determined under the Code and other
applicable tax laws and no guarantee or commitment is made to any
Participant or Beneficiary with respect to the treatment of
accruals under or benefits payable from the Plan for purposes of
the Code and other applicable tax laws.
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Whenever the
following terms are used in this Plan they have the meaning
specified below, unless the context clearly indicates the
contrary:
“Account” means a notional Account,
maintained for recordkeeping purposes only, that reflects the
amount credited to a Participant under the terms of the Plan.
Unless the context otherwise requires, the term
“Account” also includes the Participant’s
Rollover Account (if applicable).
“Award
Date” means the following:
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(a)
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Meeting and Other Fees
. The Award Date for
Meeting and Other Fees is the date of the meeting or other event
for which the Compensation is payable; and
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(b)
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Retainer . The Award Date for the Retainer is
the last day of the applicable quarter. However, if the Participant
terminates service as a member of the Board of Directors prior to
the end of the quarter, the Award Date shall be the date of the
Participant’s termination of service as a member of the Board
of Directors.
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“Beneficiary” has the meaning set
forth in Section 8.2(b).
“Board of
Directors” means the Board of Directors of the
Company.
2.5 Change
of Control for Grandfathered Amounts
A “Change
of Control” is deemed to occur, for purposes of the
Grandfathered Amounts, if and as of the first day that any one or
more of the following conditions are satisfied, whether
accomplished directly or indirectly, or in one or a series of
related transactions:
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(a)
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Any
“Person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than (a) David H. Murdock
or (b) following the death of David H. Murdock, the trustee or
trustees of a trust created by David H. Murdock, 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;
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(b)
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Individuals who, as of
March 23, 2001, constitute the Board of Directors of the
Corporation (the “Incumbent Board of Directors”) cease
for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual who becomes a
director subsequent to March 23, 2001 whose election, or
nomination for election by the Corporation’s shareholders,
was
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approved by a
vote of at least two-thirds of the directors then comprising the
Incumbent Board of Directors shall be considered as though such
individual were a member of the Incumbent Board of Directors,
unless the individual’s initial assumption of office occurs
as a result of either an actual or threatened election contest or
other actual or threatened tender offer, solicitation of proxies or
consents by or on behalf of a Person other than the Board of
Directors;
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(c)
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A
reorganization, merger, consolidation, recapitalization, tender
offer, exchange offer or other extraordinary transaction involving
Dole (a “Fundamental Transaction”) becomes effective or
is consummated, unless:
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(1)
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more than 50% of the outstanding
voting securities of the surviving or resulting entity (including,
without limitation, an entity (“parent”) which as a
result of such transaction owns the Corporation or all or
substantially all of the Corporation’s assets either directly
or through one or more subsidiaries) (“Resulting
Entity”) are, or are to be, Beneficially Owned, directly or
indirectly, by all or substantially all of the Persons who were the
Beneficial Owners of the outstanding voting securities of the
Corporation immediately prior to such Fundamental Transaction
(excluding, for such purposes, any Person who is or, within two
years prior to the consummation date of such Fundamental
Transaction, was, an Affiliate or Associate (other than an
Affiliate of Dole Food Company, Inc. immediately prior to such
consummation date) (as each of Affiliate and Associate are defined
in Rule 12b-2 promulgated under the Exchange Act) of a party
to the Fundamental Transaction) in substantially the same
proportions as their Beneficial Ownership, immediately prior to
such Fundamental Transaction, of the outstanding voting securities
of the Corporation; and
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(2)
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more than half of the members of the
board of directors or similar body of the Resulting Entity (or its
parent) were members of the Incumbent Board of Directors at the
time of the execution of the initial agreement providing for such
Fundamental Transaction; or
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(d)
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A
sale, transfer or any other disposition (including, without
limitation, by way of spin-off, distribution, complete liquidation
or dissolution) of all or substantially all of the
Corporation’s business and/or assets (an “Asset
Sale”) is consummated, unless, immediately following such
consummation, all of the requirements of Sections 2.5(c)(1)
and (2) of this definition of Change of Control are satisfied,
both with respect to the Corporation and with respect to the entity
to which such business and/or assets have been sold, transferred or
otherwise disposed of or its parent (a “Transferee
Entity”).
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The
consummation or effectiveness of a Fundamental Transaction or an
Asset Sale shall be deemed not to constitute a Change of Control if
more than 50% of the outstanding voting securities of the Resulting
Entity or the Transferee Entity, as appropriate, are, or are to be,
Beneficially Owned by David H. Murdock.
“Code” means the Internal Revenue
Code of 1986, as amended, or any other provision of law of similar
purpose as may at any time be substituted therefore.
“Committee” means the Board of
Directors or a Committee of the Board of Directors acting in
accordance with Article 6.
2.8 Company
or Corporation
“Company” or
“Corporation” means Dole Food Company, Inc., a Delaware
Corporation, and its successors and assigns.
“Compensation” means the Retainer
and Meeting and Other Fees earned by a Participant while he or she
is an Eligible Director. Compensation paid after a Participant has
a Separation from Service is not eligible for deferral under this
Plan.
2.10
Controlled Group Member
“Controlled Group Member” means any
of the following:
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(b)
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Any
corporation that, together with the Company, is part of a
controlled group of corporations with the meaning of Code
Section 414(b); and
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(c)
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Any
trade or business that, together with the Company, is under common
control, within the meaning of Code Section 414(c).
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“Daily
Interest Rate” means the Interest Rate divided by 365.
Although a daily interest is used for calculations under the Plan,
interest is compounded quarterly, not daily.
“Eligible
Director” means an active member of the Board of Directors
who is both (a) not an officer or employee of the Company, and
(b) compensated in the capacity of a director. An Eligible
Director shall cease to qualify as an Eligible Director on the date
that he or she becomes an officer or employee of the Company even
if he or she continues to render service as a member of the Board
of Directors.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended
from time to time.
2.14
Grandfathered Amount
“Grandfathered Amount” means the
balance in a Participant’s Account that relates to deferrals
of Compensation with Award Dates prior to January 1, 2005,
plus all interest credits attributable to such amounts.
“Interest
Rate” means the annual interest rate declared by the
Corporate Compensation and Benefits Committee of the Board of
Directors on or before December 31 of the Year, to be applied
in the following Year. The Interest Rate is compounded
quarterly.
2.16 Meeting
and Other Fees
“Meeting
and Other Fees” means all meeting fees (including committee
meeting fees) and other fees (except for the Retainer) that are
payable by the Company to an Eligible Director for services as a
director of the Company.
2.17
Nongrandfathered Amount
“Nongrandfathered Amount” means the
balance in a Participant’s Account that relates to deferrals
of Compensation paid for services performed on or after
January 1, 2005, plus all interest credits attributable to
such amounts.
“Participant” means any person who
has an Account balance under this Plan.
“Plan” means the Dole Food Company,
Inc. Non-Employee Directors Deferred Cash Compensation Plan, as
amended.
“Retainer” means the annual retainer
payable by the Company to an Eligible Director.
“Rollover
Account” means the bookkeeping account maintained by the
Company on behalf of a Participant with respect to his or her prior
account balance under the Company’s 1993 Board of Directors
Deferred Compensation Plan that has been transferred to this Plan
pursuant to Section 8.8.
2.22
Separation from Service
A
“Separation from Service” has occurred on the earliest
date after an Eligible Director ceases to be a member of the
Company’s Board of Directors and is not serving as a member
of the board of directors of any Controlled Group Member.
Notwithstanding the foregoing, an Eligible Director will have a
Separation of Service for purposes of this Plan if he or she
becomes an employee of the Company or any Controlled Group Member,
so long as he or she does not serve as a member of the board of
directors for any such entity.
“Year” means the calendar
year.
Each Eligible
Director may elect to defer, subject to the provisions set forth in
Section 4.1 of this Plan, his or her Compensation for any
Year.
Article 4. Deferral Elections
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(a)
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Time and Types of
Elections .
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(1)
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General Rule. On or before
December 31 of each Year, each Eligible Director may make an
irrevocable election to defer all or part of his or her
Compensation (subject to Section 4.1(b) hereof) payable for
services to be rendered by the Eligible Director during the next
Year.
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(2)
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Special Rule for Newly Eligible
Directors. Any individual who first becomes an Eligible Director
and first becomes eligible to participate in the Plan during the
Year may make an irrevocable election to defer all or part of his
or her Compensation (subject to Section 4.1(b) hereof) within
30 days after election to the Board of Directors. The election
made in this Section 4.1(a)(2) only applies to Compensation
payable for services rendered after the date of the irrevocable
election.
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(A)
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Meetings and Other Fees. Meetings
and Other Fees with Award Dates after the day that
Participant’s deferral election becomes irrevocable are
eligible for deferral under this Section 4.1(a)(2).
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(B)
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Retainer. Only the portion of the
Retainer earned after the deferral election becomes irrevocable is
eligible for deferral under this Section 4.1(a)(2). In order
to calculate the amount of the Retainer eligible for deferral under
this Section 4.1(a)(2), the amount of the Retainer earned in
the quarter is multiplied by a fraction. The numerator of the
fraction is the number of days between the date that the
Participant’s deferral election becomes irrev
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