As filed with the Securities and Exchange Commission on February 4, 1997
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DELTA AND PINE LAND COMPANY
(Exact name of registrant as specified in its charter)
Delaware 62-1040440
(State of Incorporation) (I.R.S. Employer Identification No.)
One Cotton Row
Scott, Mississippi 38772
(Address of principal executive offices)
DELTA AND PINE LAND COMPANY 1995
LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
W. THOMAS JAGODINSKI
Vice President - Finance
Delta and Pine Land Company
One Cotton Row
Scott, Mississippi 38772
(601) 742-4000
(Name, address and telephone number of agent for service)
(with copies to:)
SAMUEL D. CHAFETZ, Esq.
Waring Cox, PLC
50 N. Front Street
Suite 1300
Memphis, Tennessee 38103
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share(2) price registration fee
Options, and Shares,
Common Stock, 1,440,000 shares $ 38.375 $55,260,000 $16,746
$0.10 par value
<FN>
(1) Shares to be registered reflect effect of 3 for 2 stock split declared after
the adoption of the Delta and Pine Land Company 1995 Long-Term Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration in
accordance with Rule 457(c) under the Securities Act of 1933, based upon the
average of the high and low prices for the Company's Common Stock as quoted on
the New York Stock Exchange on January 28, 1997.
</FN>
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
1. The Registrant's latest annual report on Form 10-K for the year
ended August 31, 1996 and filed with the Commission on November 27, 1996.
2. All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") since the end of
the fiscal year ended August 31, 1996.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on May 18, 1993 and
amended by Amendment No. 1 to the Registration Statement on Form 8-A filed with
the Commission on June 24, 1993.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part thereof from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
No response is required to this item.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation law provides for
indemnification of a corporation's officers and directors under certain
circumstances. Section 145 of the Delaware General Corporation Law also provides
that a corporation has the power to purchase and maintain insurance on behalf of
its officers and directors against any liability asserted against such person
and incurred by him or her in such capacity, or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him or
her against such liability under the provisions of Section 145 of the Delaware
General Corporation Law. Section 6.7 of the Bylaws of the Company and the Ninth
Article of the Company's Restated Certificate of Incorporation also provide for
indemnification of officers and directors, as authorized by Section 145.
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to limit the personal liability
of members of its board of directors for violations of a director's fiduciary
duty of care. The Section does not, however, limit the liability of a director
for breaching his or her duty of loyalty, failing to act in good faith, engaging
in intentional misconduct or knowingly violating a law, or from any transaction
in which the director derived an improper personal benefit. The Section also
will have no effect on claims arising under the federal securities laws. The
Certificate of Incorporation of the Company limits the liability of its
directors as authorized by Section 102(b)(7).
The Ninth Article of Restated Certificate of Incorporation of the Company
provides:
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) for any transaction from which the director
derived an improper personal benefit, or (iv) under Section 174 of the General
Corporation Law of the State of Delaware. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of this Section A by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
B. (1) Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding", by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee, agent or in any other capacity of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware as the
same exists or may hereafter he amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights
than said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, further, that except as provided in paragraph (2) of
this Section B with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation by a majority vote of a quorum of the
directors who were not parties to such action, suit or proceeding, or if such
quorum is not obtainable, by the stockholders. The right to indemnification
conferred in this Section B shall be a contract right and shall include the
right to be paid by the Corporation and the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that if
the General Corporation Law of the State of Delaware requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not paid in full by the
corporation within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or stockholders) that the claimant
has not met such applicable standard of conduct shall be a defense to the action
or create a presumption that the claimant has not met the applicable standard of
conduct.
(3) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Section B shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate or
incorporation, By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
General Corporation Law of the State of Delaware.
(5) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid by
the Corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any agent of the Corporation to the fullest extent of
the provisions of this Section B with respect to the indemnification and
advancement of expenses of directors, officers, and employees of the
Corporation.
The Company has a liability insurance policy in effect which covers
certain claims against any officer or director of the Company by reason of
certain breaches of duty, neglect, errors or omissions committed by such person
in his or her capacity as an officer or director.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
Item 8. EXHIBITS
Exhibit Number Description
5 Opinion and Consent of Waring Cox
10.28 Delta and Pine Land Company 1995 Long-Term Incentive
Plan
23.1 Consent of Waring Cox (contained in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
5 Power of Attorney (included on the Signature pages)
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scott, State of Mississippi, on the 3rd day of
February, 1997.
DELTA AND PINE LAND COMPANY
By: /s/ W. Thomas Jagodinski
W. Thomas Jagodinski
Vice President-Finance
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officers and
Directors of Delta and Pine Land Company, a Delaware corporation, hereby
constitute and appoint Roger D. Malkin and W. Thomas Jagodinski and each of
them, the true and lawful agents and attorneys-in-fact, and in any one or more
of them, to sign for the undersigned, in their respective names as Officers and
Directors of the Corporation, one or more Registration Statements on Form S-8
(or other appropriate form) to be filed with the Securities and Exchange
Commission, Washington, D.C., under the Securities Act of 1933, as amended, and
any amendment or supplement to such Registration Statement, relating to the 1995
Long-Term Incentive Plan: hereby ratifying and confirming all acts taken by such
agents and attorneys-in-fact, or any one or more of them, as herein authorized.
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 date indicated.
Signature Title Date
/s/ Roger D. Chairman of the Board January 31, 1997
Roger D. Malkin and Chief Executive Officer
(Principal Executive Officer)
/s/ W. Thomas Jagodinski Vice President - Finance January 31, 1997
W. Thomas Jagodinski (Principal Financial and
Accounting Officer)
/s/ Nam-Hai Chua Director January 31, 1997
Nam-Hai Chua
/s/ Jon E.M. Jacoby Director February 3, 1997
Jon E. M. Jacoby
/s/ Joseph M. Murphy Director February 1, 1997
Joseph M. Murphy
Director
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Stanley P. Roth
/s/ Rudi E. Scheidt Director January 31, 1997
Rudi E. Scheidt