Registration No. ___________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DELTA AND PINE LAND COMPANY
(Exact name of registrant as specified in its charter)
Delaware 62-1040440
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Cotton Row
Scott, Mississippi 38772
(Address of Principal Executive Offices including zip code)
DELTA AND PINE LAND COMPANY
AMENDED AND RESTATED 1995 LONG TERM INCENTIVE PLAN
(Full title of the plan)
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W. Thomas Jagodinski, Senior Vice President
and Chief Financial Officer
One Cotton Row
Scott, Mississippi 38772
(662) 742-4500
(Name, address, including zip code, and
telephone number, including area code, of
agent for service)
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Copy to:
SAM D. CHAFETZ, ESQ.
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, 21st Floor
Memphis, Tennessee 38103
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount to Offering Aggregate Amount of
Securities to be be Price Per Offering Registra-
Registered Registered Share (1) Price (1) tion Fee
Common Stock 2,560,000 $18.845 $48,243,200 $11,530.12
($.10 par value)
(1) Estimated solely for the purpose of calculating the registration fee and,
pursuant to paragraphs (c) and (h) of Rule 457, based upon the average of the
high and low prices of such common stock on the New York Stock Exchange on
November 21, 2001, as reported on the Yahoo! Finance web site.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission (the
"Commission").
ITEM 2. Registrant Information and Employee Plan Annual Information.
The Company shall provide without charge to any participant in the Plan,
upon written or oral request of such participant, a copy of all material
information regarding the Plan and its operations, the latest prospectus filed
by the Company (provided the financial statements are not incorporated by
reference and contain substantially the information required by Rule 14a-3(b))
and any and all of the documents incorporated by reference in Item 3 of Part II
of this registration statement that have been incorporated by reference herein
(not including exhibits to such documents unless such exhibits are specifically
incorporated by reference herein into the information incorporated herein). Any
such request should be directed to the Secretary of Delta & Pine Land Company,
One Cotton Row, Scott, Mississippi 38772, telephone (662) 742-4500.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
Delta & Pine Land Company (the "Company") incorporates herein by reference
the following documents filed with the Commission:
1. The Registrant's Annual Report on From 10-K for the year ended August
31, 2000.
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, 2000.
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.
4. the Registration Statement on Form S-8 (File No. 333-21049) pertaining
to the Delta and Pine Land Company 1995 Long Term Incentive Plan.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment indicating that all securities offered hereby have
been sold or deregistering all securities then remaining unsold shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
the filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the common stock offered hereby has been opined by Baker,
Donelson, Bearman & Caldwell, PC, counsel for the Company ("Baker Donelson"),
165 Madison Ave., Memphis, Tennessee 38103. Baker Donelson was not employed on a
contingent basis for its opinion, did not receive a substantial interest,
directly or indirectly, in the Company, or any parent or subsidiary and was not
and is not connected with the Company as a promoter, managing underwriter,
voting trustee, director, officer or employee.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
("DGCL") allows corporations "to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the 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 the
person's conduct was unlawful."
DGCL Section 145 also allows corporations "to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper."
DGCL requires corporations to indemnify present and former directors
and officers of the corporation against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense of any action,
suit or proceeding or in defense of any claim, issue or matter therein to the
extent that such person has been successful on the merits or otherwise in any
such defense. Otherwise the DGCL allows indemnification (unless ordered by a
court) only as authorized in a specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because the person has met the applicable standard
of conduct. If the determination is made for a person who is a director or
officer at the time of the determination, it must be made either "by a majority
vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum, ... by a committee of such directors designated
by majority vote of such directors, even though less than a quorum, ... if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders."
DGCL allows "expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding [to] be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the corporation as authorized in this section." DGCL further
provides that indemnification and advancement of expenses under these provisions
are not to be "deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office"
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 Company 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 be 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 attorneys' 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 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 of
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.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 Restated Certificate of Incorporation of Registrant
(incorporated by reference from Registration Statement on
form S-1, File No. 33-61568, filed June 29, 1993).
4.2 Amended and Restated By-Laws of the Registrant dated April
26, 1993 (incorporated by reference from Registration
Statement on form S-1, File No. 33-61568, filed June 29,
1993).
4.3 Certificate of Designation, Convertible Preferred Stock of
Delta and Pine Land Company. (incorporated by reference from
Form 8-A, File No. 001-14136, filed September 3, 1996.
4.4 Rights Agreement, dated as of August 13, 1996, between Delta
and Pine Land Company and Harris Trust and Savings Bank,
(incorporated by reference from Form 8-A, File No.
001-14136, filed September 3, 1996).
4.5 Amendment No. 1 to the Rights Agreement dated May 8, 1998,
by and between Delta and Pine Land Company and the Harris
trust and Savings Bank, (incorporated by reference from Form
8-K filed May 14, 1998).
4.6 Amendment No. 2 to the Rights Agreement dated may 8, 1998 by
and between Delta and Pine Land Company and the Harris Trust
and Savings Bank, (incorporated by reference from Form 10-K
filed November 24, 1998).
4.7 Delta & Pine Land Company Amended and Restated 1995 Long
Term Incentive Plan.
5.1 Opinion of Baker, Donelson, Bearman and Caldwell, PC as to
the legality of the shares being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Baker, Donelson, Bearman and Caldwell, PC
(included in Exhibit 5.1 to the Registration Statement.)
24.1 Power of Attorney.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to the
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) 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; provided, however, that sections (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities 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; and
(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 this offering.
(b) The undersigned Registrant hereby undertakes: that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act (and where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange 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 Securities
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 Commission such indemnification is
against public policy as expressed in the 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 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 Town of Scott, State of Mississippi, on this 28th day of
November 2001.
DELTA AND PINE LAND COMPANY
(Registrant)
By: /s/ F. Murray Robinson
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F. Murray Robinson
Chief Executive Officer,
Vice Chairman
By: /s/ W. Thomas Jagodinski
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W. Thomas Jagodinski
Senior Vice President and
Chief Financial Officer
By: /s/ Jon E. M. Jacoby
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Jon E. M. Jacoby
Chairman of the Board
By: /s/ Stanley P. Roth
-------------------------------
Stanley P. Roth
Vice Chairman
By: /s/ Nam-Hai Chua
-------------------------------
Nam-Hai Chua
Director
By: /s/ Joseph M. Murphy
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Joseph M. Murphy
Director
By: /s/ Rudi E. Scheidt
-------------------------------
Rudi E. Scheidt
Director
Exhibit 4.7
DELTA AND PINE LAND COMPANY
AMENDED AND RESTATED
1995 LONG-TERM INCENTIVE PLAN
1. Purpose.
The purpose of the DELTA AND PINE LAND COMPANY AMENDED AND RESTATED
1995 LONG-TERM INCENTIVE PLAN (the "Plan") is to further the earnings of DELTA
AND PINE LAND COMPANY, a Delaware corporation, and its subsidiaries
(collectively, the "Company") by assisting the Company in attracting, retaining
and motivating management employees and directors of high caliber and potential.
The Plan provides for the award of long-term incentives to those officers, other
key employees and directors who make substantial contributions to the Company by
their loyalty, industry and invention.
2. Administration.
The Plan shall be administered by a committee (the "Committee")
selected by the Board of Directors of the Company (the "Board of Directors")
consisting solely of two or more members who are "outside directors" as
described in Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"). Except to the extent permitted under Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "1934 Act") (or any successor
rule of similar import), each Committee member shall be ineligible to receive,
and shall not have been, during the one-year period prior to appointment
thereto, granted or awarded stock options pursuant to this Plan or any other
similar plan of the Company or any affiliate of the Company. Without limiting
the foregoing, the Committee shall have full and final authority in its
discretion to interpret the provisions of the Plan and to decide all questions
of fact arising in its application. Subject to the provisions hereof, the
Committee shall have full and final authority in its discretion to determine the
employees and directors to whom awards shall be made under the Plan; to
determine the type of awards to be made and the amount, size and terms and
conditions of each such award; to determine the time when awards shall be
granted; to determine the provisions of each agreement evidencing an award; and
to make all other determinations necessary or advisable for the administration
of the Plan.
3. Stock Subject to the Plan.
The Company may grant awards under the Plan with respect to not more
than a total of 5,120,000 shares of $.10 par value common stock of the Company
(the "Shares") (subject, however, to adjustment as provided in paragraph 17,
below). Such Shares may be authorized and unissued Shares or treasury Shares.
Except as otherwise provided herein, any Shares subject to an option or right
which for any reason is surrendered before exercise or expires or is terminated
unexercised as to such Shares shall again be available for the granting of
awards under the Plan.
4. Eligibility to Receive Awards.
Persons eligible to receive awards under the Plan shall be limited to
those officers, other key employees and directors of the Company who are in
positions in which their decisions, actions and counsel have a significant
impact upon the profitability and success of the Company (but excluding members
of the Committee, except as provided in paragraph 6(h)).
5. Form of Awards.
Awards may be made from time to time by the Committee in the form of
stock options to purchase Shares. Stock options may be options which are
intended to qualify as incentive stock options ("Incentive Stock Options")
within the meaning of Section 422(b) of the Code, or options which are not
intended to so qualify ("Nonqualified Stock Options").
6. Stock Options.
Stock options for the purchase of Shares shall be evidenced by written
agreements in such form not inconsistent with the Plan as the Committee shall
approve from time to time; provided that the maximum number of options which may
be granted to any one grantee during any twelve-month period is 75,000 (as
adjusted pursuant to paragraph 17, below). Such agreement shall contain the
terms and conditions applicable to the options, including in substance the
following terms and conditions:
(a) Type of Option. Each option agreement shall identify the options
represented thereby as Incentive Stock Options or Nonqualified Stock Options, as
the case may be, and shall set forth the number of Shares subject to the
options.
(b) Option Price. The option exercise price to be paid by the optionee
to the Company for each Share purchased upon the exercise of an option shall be
determined by the Committee, but shall in no event be less than 100% of the fair
market value per Share on the date the option is granted, as determined by the
Committee.
(c) Exercise Term. Each option agreement shall state the period or
periods of time within which the option may be exercised, in whole or in part,
as determined by the Committee and subject to such terms and conditions as are
prescribed for such purpose by the Committee, provided that no option shall be
exercisable after ten years from the date of grant thereof. The Committee, in
its discretion, may provide in the option agreement circumstances under which
the option shall become immediately exercisable, in whole or in part, and,
notwithstanding the foregoing, may accelerate the exercisability of any option,
in whole or in part, at any time.
(d) Payment for Shares. The purchase price of the Shares with respect
to which an option is exercised shall be payable in full at the time of exercise
in cash, Shares at fair market value, or a combination thereof, as the Committee
may determine and subject to such terms and conditions as may be prescribed by
the Committee for such purpose. Payment may also be made, in the discretion of
the Committee, by delivery (including by facsimile transmission) to the Company
or its designated agent of an executed irrevocable option exercise form,
together with irrevocable instructions to a broker-dealer to sell (or margin) a
sufficient portion of the Shares, and deliver the sale (or margin loan) proceeds
directly to the Company to pay for the purchase price. If the purchase price is
paid by tendering Shares, the Committee in its discretion may grant the optionee
a new stock option for the number of Shares used to pay the purchase price.
(e) Rights Upon Termination. In the event of Termination (as defined
below) of an optionee's status as an employee or director of the Company for any
cause other than Retirement (as defined below), death or Disability (as defined
below), the optionee shall have the right to exercise the option during its term
within a period of three months after such Termination to the extent that the
option was exercisable at the time of Termination, or within such other period,
and subject to such terms and conditions, as may be specified by the Committee.
(As used herein, "Termination" means, (i) in the case of an employee, the
cessation of the grantee's employment by the Company for any reason, and (ii) in
the case of a director, the cessation of the grantee's service as a director of
the Company; and "Terminates" has the corresponding meaning. As used herein,
"Retirement" means retirement from active employment (in the case of an
employee), or active service (in the case of a director), with the Company on or
after age 65, or such earlier age with the express written consent for purposes
of the Plan of the Company at or before the time of such retirement, and
"Retires" has the corresponding meaning. As used herein, "Disability" means a
condition that, in the judgment of the Committee, has rendered a grantee
completely and presumably permanently unable to perform any and every duty of
his regular occupation, and "Disabled" has the corresponding meaning). In the
event that an optionee Retires, dies or becomes Disabled prior to the expiration
of his option and without having fully exercised his option, the optionee or his
Beneficiary (as defined below) shall have the right to exercise the option
during its term within a period of (i) one year after Termination due to
Retirement, death or Disability, or (ii) one year after death if death occurs
either within one year after Termination due to Retirement or Disability or
within three months after Termination for other reasons, to the extent that the
option was exercisable at the time of death or Termination, or within such other
period, and subject to such terms and conditions, as may be specified by the
Committee. (As used herein, "Beneficiary" means the person or persons designated
in writing by the grantee as his Beneficiary with respect to an award under the
Plan; or, in the absence of an effective designation or if the designated person
or persons predecease the grantee, the grantee's Beneficiary shall be the person
or persons who acquire by bequest or inheritance the grantee's rights in respect
of an award). In order to be effective, a grantee's designation of a Beneficiary
must be on file with the Committee before the grantee's death, but any such
designation may be revoked and a new designation substituted therefor at any
time before the grantee's death.
(f) Nontransferability. Except as provided in Paragraph 13(b), options
granted under the Plan shall not be sold, assigned, transferred, exchanged,
pledged, hypothecated, or otherwise encumbered, other than by will or by the
laws of descent and distribution. Except as provided in Paragraph 13(b), during
the lifetime of the optionee the option is exercisable only by the optionee.
(g) Incentive Stock Options. In the case of an Incentive Stock Option,
each option shall be subject to such other terms conditions and provisions as
the Committee determines necessary or desirable in order to qualify such option
as an incentive stock option within the meaning of Section 422(b) of the Code
(or any amendment or substitute or successor thereto or regulation thereunder),
including in substance, without limitation, the following:
(i) The purchase price of stock subject to an Incentive Stock
Option shall not be less than 100 percent of the fair market value of such stock
on the date the option is granted, as determined by the Committee.
(ii) The aggregate fair market value (determined as of the
time the option is granted) of the stock with respect to which incentive stock
options are exercisable for the first time by an optionee in any calendar year
(under all plans of the Company and its subsidiary corporations (which term, as
used hereinafter, shall have the meaning ascribed thereto in Section 424(f) of
the Code (or successor provision of similar import))) shall not exceed $100,000.
(iii) No Incentive Stock Option shall be granted to any
employee if at the time the option is granted the individual owns stock
possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or of a subsidiary corporation of the Company,
unless at the time such option is granted the option price is at least 110
percent of the fair market value (as determined by the Committee) of the stock
subject to the option and such option by its terms is not exercisable after the
expiration of five years from the date of grant.
(iv) Directors who are not employees of the Company shall
not be eligible to receive Incentive Stock Options.
(v) In the event of Termination of employment by reason of
Retirement, if an Incentive Stock Option is exercised after the expiration of
the exercise periods that apply for purposes of Section 422 of the Code, the
option will thereafter be treated as a Nonqualified Stock Option.
(h) Automatic Grant of Options to Directors.
(i) There shall automatically be granted to each person
who is an Employee Director or Non-Employee Director at the date of the annual
meeting of the stockholders of the Company in each of the five (5) years
following the meeting of the Company's stockholders at which this provision is
adopted (and to each person who is thereafter first elected an Employee director
or a Non-Employee Director, at date of the annual meeting of the stockholders of
the Company in each of the five (5) years following the meeting of the Company's
stockholders as which such person is first elected a Director), a Nonqualified
Stock Option to purchase 2,666 Shares (as adjusted pursuant to paragraph 17
below).
(ii) If, during the period beginning on December 1, 1995 and
ending with the 2006 annual meeting of the stockholders of the Company ("Annual
Meeting"), a person is first elected or appointed as an Employee or Non-employee
Director of the Company, such person shall thereupon be granted a Nonqualified
Stock Option to purchase 62,222 Shares (as adjusted pursuant to paragraph 17,
below).
(iii) Immediately and automatically upon the Amendment of the
Plan on March 30, 2000, there shall be granted to each person who is an Employee
Director or a Non-employee Director a Nonqualified Stock Option to purchase
80,000 Shares (as adjusted pursuant to paragraph 17, below).
(ii) The automatic grants described in this paragraph 6(h)
shall constitute the only awards under the Plan permitted to be made to
Non-employee Directors of the Company.
(i) Grants of Non-employee Directors. Notwithstanding any
other provision of the Plan, the grant of options hereunder to directors who are
not also employees of the Company ("Non-employee Directors") shall be subject to
the following terms and conditions:
(i) The purchase price of stock subject to an option granted
to Non-employee Directors under Section 6(h) shall be equal to 100 percent of
the fair market value of such stock on the date the option is granted.
(ii) Except as provided in paragraph 15, each option granted
to Non-employee Directors under paragraph 6(h) shall become exercisable in
installments as follows: to the extent of 20 percent of the number of Shares
originally covered by the option, at any time after the commencement of the
second year of the term of the option, and to the extent of an additional 20
percent of such number of Shares, at any time after the commencement of each of
the third, fourth, fifth and sixth years of the term of the option; provided,
however, that the stock option agreements for options granted under paragraph
6(h) shall provide that if the tenure of such Non-employee Director shall
terminate by reason of Retirement at or after age 65, such options shall be
fully exercisable with respect to all Shares not previously purchased,
commencing on the date of retirement of such Director and continuing for a
period of three months.
(iii) Unless otherwise provided in the Plan, all provisions
with respect to the terms of Nonqualified Stock Options hereunder shall be
applicable to options granted to Non-employee Directors under paragraph 6(h).
7. Loans and Supplemental Cash.
The Committee, in its sole discretion to further the purpose of the
Plan, may provide for supplemental cash payments or loans to individuals in
connection with all or any part of an award under the Plan. Supplemental cash
payments shall be subject to such terms and conditions as shall be prescribed by
the Committee at the time of grant, provided that in no event shall the amount
of payment exceed the excess fair market value of a Share on the date of
exercise over the option price multiplied by the number of Shares for which such
option is exercised. Any loan shall be evidenced by a written loan agreement or
other instrument in such form and containing such terms and conditions
(including, without limitation, provisions for interest, payment schedules,
collateral, forgiveness or acceleration) as the Committee may prescribe from
time to time.
8. General Restrictions.
Each award under the Plan shall be subject to the requirement that if
at any time the Company shall determine that (i) the listing, registration or
qualification of the Shares subject or related thereto upon any securities
exchange or under any state or federal law, or (ii) the consent or approval of
any regulatory body, or (iii) an agreement by the recipient of an award with
respect to the disposition of Shares, or (iv) the satisfaction of withholding
tax or other withholding liabilities is necessary or desirable as a condition of
or in connection with the granting of such award or the issuance or purchase of
Shares thereunder, such award shall not be consummated in whole or in part
unless such listing, registration, qualification, consent, approval, agreement,
or withholding shall have been effected or obtained free of any conditions not
acceptable to the Company. Any such restriction affecting an award shall not
extend the time within which the award may be exercised; and neither the Company
nor its directors or officers nor the Committee shall have any obligation or
liability to the grantee or to a Beneficiary with respect to any Shares with
respect to which an award shall lapse or with respect to which the grant,
issuance or purchase of Shares shall not be effected, because of any such
restriction.
9. Single or Multiple Agreements.
Multiple awards, multiple forms of awards, or combinations thereof may
be evidenced by a single agreement or multiple agreements, as determined by the
Committee.
10. Rights of the Shareholder.
The recipient of any award under the Plan, shall have no rights as a
shareholder with respect thereto unless and until certificates for Shares are
issued to him, and the issuance of Shares shall confer no retroactive right to
dividends.
11. Rights to Terminate.
Nothing in the Plan or in any agreement entered into pursuant to the
Plan shall confer upon any person the right to continue in the employment of the
Company or to serve as a director, or affect any right which the Company may
have to terminate the employment or directorship of such person.
12. Withholding.
Prior to the issuance or transfer of Shares under the Plan, the
recipient shall remit to the Company an amount sufficient to satisfy any
federal, state or local withholding tax requirements. The recipient may satisfy
the withholding requirement in whole or in part by electing to have the Company
withhold Shares having a value equal to the amount required to be withheld. The
value of the Shares to be withheld shall be the fair market value, as determined
by the Committee, of the stock on the date that the amount of tax to be withheld
is determined (the "Tax Date"). Such election must be made prior to the Tax
Date, must comply with all applicable securities law and other legal
requirements, as interpreted by the Committee, and may not be made unless
approved by the Committee, in its discretion.
13. Non-Assignability.
(a) Except as provided in Paragraph 13(b), no award under the Plan
shall be sold, assigned, transferred, exchanged, pledged, hypothecated, or
otherwise encumbered, other than by will or by the laws of descent and
distribution, or by such other means as the Committee may approve. Except as
provided in Paragraph 13(b) or as otherwise provided herein, during the life of
the recipient, such award shall be exercisable only by such person or by such
person's guardian or legal representative.
(b) The Committee may, in its sole discretion, permit assignability of
any Nonqualified Stock Option to a member of the optionee's "Immediate Family"
or to a "Charitable Organization."
(c) As used herein, members of the optionee's "Immediate Family" shall
include only (1) any person who, at the time of transfer, is the optionee's
spouse or natural or adoptive lineal ancestors or descendants, (2) any trust for
the exclusive benefit of the optionee, or one or more Immediate Family members
or Charitable Organizations, and (3) any partnership, corporation, limited
liability company or other entity owned exclusively by the optionee, or one or
more Immediate Family members or Charitable Organizations.
(d) As used herein, the term "Charitable Organization" means any
organization which is described in Code Sections 170(c)(2), 2055(a) or 2522(a)
(or any successor provision).
14. Non-Uniform Determinations.
The Committee's determinations under the Plan (including without
limitation determinations of the persons to receive awards, the form, amount and
timing of such awards, the terms and provisions of such awards and the
agreements evidencing same, and the establishment of values and performance
targets) need not be uniform and may be made selectively among persons who
receive, or are eligible to receive, awards under the Plan, whether or not such
persons are similarly situated.
15. Change In Control Provisions.
(a) In the event of (1) a Change in Control (as defined) or (2) a
Potential Change in Control (as defined), but only if and to the extent so
determined by the Board of Directors at or after grant (subject to any right of
approval expressly reserved by the Board of Directors at the time of such
determination), the following acceleration and valuation provisions shall apply:
(i) Any stock options awarded under the Plan not previously
exercisable and vested shall become fully exercisable and vested.
(ii) The value of all outstanding stock options to the extent
vested, shall, unless otherwise determined by the Committee in its sole
discretion at or after grant but prior to any Change in Control, be cashed out
on the basis of the Change in Control Price (as defined) as of the date such
Change in Control or such Potential Change in Control is determined to have
occurred or such other date as the Committee may determine prior to the Change
in Control.
(b) As used herein, the term "Change in Control" means the happening of
any of the following:
(i) Any person or entity, including a "group" as defined in
Section 13(d)(3) of the 1934 Act, other than the Company, a subsidiary of the
Company, or any employee benefit plan of the Company or its subsidiaries,
becomes the beneficial owner of the Company's securities having 20 percent or
more of the combined voting power of the then outstanding securities of the
Company that may be cast for the election for directors of the Company (other
than as a result of an issuance of securities initiated by the Company in the
ordinary course of business), or
(ii) As the result of, or in connection with, any cash tender
or exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions, less than
a majority of the combined voting power of the then outstanding securities of
the Company or any successor corporation or entity entitled to vote generally in
the election of directors of the Company or such other corporation or entity
after such transaction, are held in the aggregate by holders of the Company's
securities entitled to vote generally in the election of directors of the
Company immediately prior to such transactions; or
(iii) During any period of two consecutive years, individuals
who at the beginning of any such period constitute the Board of Directors cease
for any reason to constitute at least a majority thereof, unless the election,
or the nomination for election by the Company's stockholders, of each director
of the Company first elected during such period was approved by a vote of at
least two-thirds of the directors of the Company then still in office who were
directors of the Company at the beginning of any such period.
(c) As used herein, the term "Potential Change in Control" means the
happening of any of the following:
(i) The approval by stockholders of an agreement by the
Company, the consummation of which would result in a Change in Control of the
Company; or
(ii) The acquisition of beneficial ownership, directly or
indirectly, by any entity, person or group (other than the Company, a
wholly-owned subsidiary thereof or any employee benefit plan of the Company or
its subsidiaries (including any trustee of such plan acting as such trustee)) of
securities of the Company representing 5 percent or more of the combined voting
power of the Company's then outstanding securities and the adoption by the Board
of Directors of a resolution to the effect that a Potential Change in Control of
the Company has occurred for purposes of this Plan.
(d) As used herein, the term "Change in Control Price" means the
highest price per share paid in any transaction reported on the National
Association of Securities Dealers Automated Quotation System (or the New York
Stock Exchange or other national securities exchange, as the case may be), or
paid or offered in any bona fide transaction related to a Potential or actual
Change in Control of the Company at any time during the 60 day period
immediately preceding the occurrence of the Change in Control (or, where
applicable, the occurrence of the Potential Change in Control event), in each
case determined by the Committee except that, in the case of Incentive Stock
Options, such price shall be based only on transactions reported, where
applicable, for the date on which cash out occurs under paragraph 15(a)(ii).
16. Non-Competition Provision.
Unless the award agreement relating to a stock option specifies
otherwise, a grantee shall forfeit all unexercised, unearned and/or unpaid
awards, including, but not by way of limitation, awards earned but not yet paid,
all unpaid dividends and dividend equivalents, and all interest, if any, accrued
on the foregoing if, (i) in the opinion of the Committee, the grantee without
the written consent of the Company, engages directly or indirectly in any manner
or capacity as principal, agent, partner, officer, director, employee or
otherwise, in any business or activity competitive with the business conducted
by the Company or any of its subsidiaries; or (ii) the grantee performs any act
or engages in any activity which in the opinion of the Chief Executive Officer
of the Company is inimical to the best interests of the Company.
17. Adjustments.
In the event of any change in the outstanding common stock of the
Company, by reason of a stock dividend or distribution, recapitalization,
merger, consolidation, reorganization, split-up, combination, exchange of Shares
or the like, the Board of Directors, in its discretion, may adjust
proportionately the number of Shares which may be issued under the Plan, the
number of Shares subject to outstanding awards, and the option exercise price of
each outstanding option, and may make such other changes in outstanding options
as it deems equitable in its absolute discretion to prevent dilution or
enlargement of the rights of grantees, provided that any fractional Shares
resulting from such adjustments shall be eliminated.
18. Amendment.
The Board of Directors may terminate, amend, modify or suspend the Plan
at any time, except that the Board shall not, without the authorization of the
holders of a majority of Company's voting securities, increase the maximum
number of Shares which may be issued under the Plan (other than increases
pursuant to paragraph 17 hereof), extend the last date on which awards may be
granted under the Plan, extend the date on which the Plan expires, change the
class of persons eligible to receive awards, or change the minimum option price.
No termination, modification, amendment or suspension of the Plan shall
adversely affect the rights of any grantee or Beneficiary under an award
previously granted, unless the grantee or Beneficiary shall consent; but it
shall be conclusively presumed that any adjustment pursuant to paragraph 17
hereof does not adversely affect any such right.
19. Effect on Other Plans.
Participation in this Plan shall not affect a grantee's eligibility to
participate in any other benefit or incentive plan of the Company. Any awards
made pursuant to this Plan shall not be used in determining the benefits
provided under any other plan of the Company unless specifically provided
therein.
20. Effective Date and Duration of the Plan.
The Plan shall become effective when adopted by the Board of Directors,
provided that the Plan is approved by the holders of a majority of the Company's
voting securities on the date of its adoption by the Board or before the first
anniversary of that date. Unless it is sooner terminated in accordance with
paragraph 18 hereof, the Plan shall remain in effect until all awards under the
Plan have been satisfied by the issuance of Shares or have expired or otherwise
terminated, but no award shall be granted more than ten years after the earlier
of the date the Plan is adopted by the Board of Directors or is approved by the
holders of the Company's voting securities.
21. Unfunded Plan.
The Plan shall be unfunded. Neither the Company nor any affiliate shall
be required to segregate any assets that may be represented by stock options,
and neither the Company nor any affiliate shall be deemed to be a trustee of any
amounts to be paid under any stock option. Any liability of the Company or any
affiliate to pay any grantee or Beneficiary with respect to an option shall be
based solely upon any contractual obligations created pursuant to the provisions
of the Plan; no such obligations will be deemed to be secured by a pledge or
encumbrance on any property of the Company or an affiliate.
22. Governing Law.
The Plan shall be construed and its provisions enforced and
administered in accordance with the laws of the State of Mississippi except to
the extent that such laws may be superseded by any federal law.
ADOPTED BY THE BOARD OF DIRECTORS OF DELTA AND PINE LAND COMPANY ON THE 30TH DAY
OF MARCH, 2000 TO BE EFFECTIVE AS OF APRIL 1, 2000.
By:
/s/ W. Thomas Jagodinski
W. Thomas Jagodinski
Senior Vice President and
Chief Financial Officer
Exhibit 5.1
November 29, 2001
Delta & Pine Land Company
One Cotton Row
Scott, Mississippi 38772
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Delta & Pine Land Company, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, with
respect to 2.56 million shares of the Company's common stock (the "Stock"),
issuable under the terms of the Company's Amended and Restated 1995 Long Term
Incentive Plan as referenced in the Registration Statement.
In connection therewith, we have relied upon, among other things, our
examination of such documents, records of the Company, and certificates of its
officers and public officials, as we have deemed necessary for purposes of the
opinion expressed below.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
(i) The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware; and
(ii) The Stock covered by the Registration Statement has been duly
authorized for issuance and, when issued pursuant to the terms
of the Plan, will be legally issued, fully paid and
nonassessable.
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and is not to be used, quoted or
otherwise referred to for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as Exhibit 5.1 to, and to the
use of our name in, the Registration Statement.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL
By: /s/ Sam D. Chafetz
------------------
Sam D. Chafetz, Esq.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference into the Registration Statement (Form S-8) pertaining to the Delta
and Pine Land Company 1995 Amended and Restated Long-Term Incentive Plan of our
report dated November 15, 1999, with respect to the consolidated financial
statements of Delta and Pine Land Company in its Annual Report on Form 10-K for
the year ended August 31, 2000, filed with the Securities and Exchange
Commission.
ARTHUR ANDERSEN, LLP
Memphis, Tennessee
November 29, 2001
EXHIBIT 24.1
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 W. Thomas Jagodinski the true and lawful agent and
attorney-in-fact 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 Delta and Pine Land Company Amended and Restated 1995 Long Term
Incentive Plan; hereby ratifying and confirming all acts taken by such agent and
attorney-in-fact 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
- --------- ----- ----
Jon E. M. Jacoby /s/ Jon E. M. Jacoby November 29, 2001
----------------------------------
Chairman of the Boardr
F. Murray Robinson /s/ F. Murray Robinson November 29, 2001
----------------------------------
Vice Chairman and Chief Executive
Officer
Stanley P. Roth /s/ Stanley P. Roth November 29, 2001
----------------------------------
Vice Chairman
W. Thomas Jagodinski /s/ W. Thomas Jagodinski November 29, 2001
----------------------------------
Senior Vice President and Chief
Financial Officer
Nam-Hai Chua /s/ Nam-Hai Chua November 29, 2001
----------------------------------
Director
Joseph M. Murphy /s/ Joseph M. Murphy November 29, 2001
----------------------------------
Director
Rudi E. Scheidt /s/ Rudi E. Scheidt November 29, 2001
----------------------------------
Director