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DOLE > SEC Filings for DOLE > Form 8-K on 12-Aug-2013All Recent SEC Filings

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Form 8-K for DOLE FOOD CO INC


12-Aug-2013

Entry into a Material Definitive Agreement, Other Events, Financial Statements a


Item 1.01 Entry into a Material Definitive Agreement.

On August 11, 2013, Dole Food Company, Inc., a Delaware corporation (the "Company"), entered into an Agreement and Plan of Merger (the "Merger Agreement") with David H. Murdock, the Chairman of the Board of Directors of the Company (the "Board"), Chief Executive Officer of the Company and the beneficial owner of approximately 40% of the outstanding common stock, par value $.001 per share, of the Company (the "Common Stock"), DFC Holdings, LLC, a Delaware limited liability company ("Parent"), and DFC Merger Corp., a Delaware corporation ("Purchaser"), whose sole stockholder is Parent. Pursuant to the Merger Agreement, on the terms and subject to the conditions set forth therein and in accordance with the applicable provisions of the Delaware General Corporation Law, Purchaser will be merged with and into the Company, with the Company continuing as the surviving corporation (the "Merger"), and each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (the "Effective Time"), except for shares held by Mr. Murdock, Parent or Purchaser, treasury shares and dissenting shares, will be converted into the right to receive $13.50 per share in cash (the "Merger Consideration"), without interest and subject to deduction for any required withholding taxes, upon surrender of certificates representing such shares of Common Stock.

Pursuant to the Merger Agreement, as of and immediately prior to and conditioned upon the occurrence of the Effective Time:

each holder (other than Mr. Murdock) of a then outstanding option to purchase shares of Common Stock, whether vested or unvested, will be entitled to receive cash, without interest and net of applicable withholding taxes, in an amount equal to the product of (i) the Merger Consideration minus the applicable exercise price per share of such option and (ii) the number of shares of Common Stock that such option may purchase upon exercise, and such amount will be payable within 15 days after the Effective Time;

any time-based restricted stock unit award or time-based restricted stock award granted under any compensation plan or arrangement of the Company, and any performance-based restricted stock unit award, in each case that is outstanding immediately prior to the Effective Time, will be converted into the right to receive an amount in cash, without interest, and subject to deduction for any required withholding taxes, equal to the product of (i) the Merger Consideration and (ii) the number of shares of Company Common Stock subject to such award, and such amount will be payable within 15 days after the vesting date, subject to the continued employment of the holder thereof with the Company or any of its Subsidiaries through the vesting date, and, in the case of performance-based awards, subject to adjustment of the performance metric; and

with respect to any Company cash-based awards under the 2013 Self-Funded Cash Long-Term Incentive Plan ("LTIP") that are outstanding as of immediately prior to the Effective Time, such awards shall continue to be in effect after the Effective Time according to their terms and the terms of the LTIP.

A special committee consisting solely of independent and disinterested members of the Board (the "Special Committee") unanimously determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of the Company and the stockholders of the Company other than Mr. Murdock, Parent, Purchaser and their respective affiliates (the "Disinterested Stockholders"), and that it is advisable for the Company to enter into the Merger Agreement, and recommended that the Board approve and declare advisable the Merger Agreement and the transactions contemplated thereby and determine to recommend that the stockholders of the Company vote to adopt the Merger Agreement. Based on the Special Committee's recommendation, the Board unanimously, with Mr. Murdock abstaining,
(i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the Company and the Disinterested Stockholders, (ii) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, and
(iii) resolved to recommend that the Company's stockholders vote to adopt the Merger Agreement.

Stockholders of the Company will be asked to vote on the adoption of the Merger Agreement at a special stockholders meeting that will be held on a date to be announced. The closing of the Merger is subject to the condition that the Merger Agreement be adopted by the affirmative vote of the holders of (i) at least a majority of all


outstanding shares of Common Stock and (ii) at least a majority of all outstanding shares of Common Stock held by the Disinterested Stockholders (together, the "Stockholder Approvals"). Consummation of the Merger is also subject to other customary conditions regarding the absence of any law, injunction or judgment that prohibits or makes illegal the consummation of the Merger, the absence of material adverse changes since the execution of the agreement and the expiration or early termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Each party's obligation to consummate the Merger also is subject to additional conditions regarding the accuracy of the other party's representations and warranties contained in the Merger Agreement (subject to certain materiality qualifiers) and the other party's compliance with its covenants and agreements contained in the Merger Agreement (subject to certain materiality qualifiers). The Merger Agreement does not contain a financing condition.

The Merger Agreement contains representations and warranties customary for transactions of this type. The Company has agreed to various customary covenants and agreements, including, among others, agreements to conduct its business in the ordinary course during the period between the execution of the Merger Agreement and the Effective Time, not to engage in certain kinds of transactions during this period, and to convene and hold a meeting of its stockholders for the purpose of obtaining the Stockholder Approvals.

Parent has obtained binding financing commitments from (i) Deutsche Bank AG New York Branch and certain of its affiliates, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and The Bank of Nova Scotia, and
(ii) Mr. Murdock for the transactions contemplated by the Merger Agreement, the aggregate proceeds of which, together with the unrestricted cash of the Company, will be used to consummate the Merger and the other transactions contemplated by the Merger Agreement, including the payment of the aggregate Merger Consideration and cash amounts payable to option holders, the refinancing of certain existing indebtedness of the Company and the payment of all related fees and expenses, and to pay any other amounts required to be paid in connection with the consummation of the transactions contemplated by the Merger Agreement. In addition to Mr. Murdock's equity commitment, the Company and Mr. Murdock entered into a letter agreement (the "Letter Agreement"), dated August 11, 2013, pursuant to which Mr. Murdock has agreed to contribute to Parent, within two business days of written notice by the Company, equity in an amount not to exceed $50,000,000, in the event that the aggregate proceeds of Mr. Murdock's debt and equity financing, together with the unrestricted cash of the Company at the closing of the Merger, are insufficient to fund the amounts due in connection with the Merger as set forth above.

The Merger Agreement contains a "go-shop" provision, pursuant to which, during the period beginning on the date of the Merger Agreement and continuing until 12:01 a.m. (Eastern time) on the 30th calendar day thereafter (the "No-Shop Period Start Date"), the Company (acting through the Special Committee) and its representatives may initiate, solicit and encourage any alternative transaction proposals from third parties, provide nonpublic information to such third parties and participate in discussions and negotiations with such third parties regarding alternative transaction proposals. Beginning on the No-Shop Period Start Date, the Company is precluded from soliciting or facilitating, directly or indirectly, any proposals or engaging in any discussions regarding, a transaction proposal, except in the event that, prior to the stockholder vote on the Merger, the Board (acting through the Special Committee) determines in good faith with its outside financial and legal advisors that such transaction proposal constitutes, or would reasonably be expected to result in, a Superior Proposal, as defined below. However, the Company may continue to engage in the foregoing activities with any third party that submits a transaction proposal during the go-shop period that the Special Committee determines no later than five business days after the end of the go-shop period constitutes or could reasonably be expected to lead to a Superior Proposal. A "Superior Proposal" is a bona fide proposal or offer by a third party to acquire 50% or more of the . . .



Item 8.01. Other Information.

On August 12, 2013, the Company issued a press release announcing that it has signed a Merger Agreement with David H. Murdock and his affiliates. The press release is filed as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated by reference into this Item 8.01.



Item 9.01. Financial Statements and Exhibits.

(d) Exhibits:

 2.1*     Merger Agreement, dated as of August 11, 2013, among DFC Holdings, LLC,
          DFC Merger Corp., David H. Murdock and Dole Food Company, Inc.

99.1      Letter Agreement, dated August 11, 2013, by and between David H. Murdock
          and Dole Food Company, Inc.

99.2      Press Release, dated August 12, 2013, announcing the Merger Agreement.



* Certain schedules and exhibits to this agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request.


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