Schedule 13D

DHM HOLDING COMPANY, INC.

DOLE FOOD COMPANY, INC.

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AL2GZTK1eEbFTa9gYMQohdH5hChNxhRhq45iw298VKZKHYhdtkVb5j9yHfzJxze0 H6JDKLBvatptOB3sDF3BLA== 0000950123-09-060477.txt : 20091110 0000950123-09-060477.hdr.sgml : 20091110 20091110060158 ACCESSION NUMBER: 0000950123-09-060477 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20091110 DATE AS OF CHANGE: 20091110 GROUP MEMBERS: CASTLE & COOKE HOLDINGS, INC. GROUP MEMBERS: CASTLE & COOKE INVESTMENTS, INC. GROUP MEMBERS: DAVID H. MURDOCK SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DOLE FOOD CO INC CENTRAL INDEX KEY: 0000018169 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 990035300 STATE OF INCORPORATION: DE FISCAL YEAR END: 0103 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-33795 FILM NUMBER: 091170270 BUSINESS ADDRESS: STREET 1: ONE DOLE DRIVE CITY: WESTLAKE VILLAGE STATE: CA ZIP: 91362 BUSINESS PHONE: 8188796600 MAIL ADDRESS: STREET 1: ONE DOLE DRIVE CITY: WESTLAKE VILLAGE STATE: CA ZIP: 91362 FORMER COMPANY: FORMER CONFORMED NAME: DOLE FOOD COMPANY INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: CASTLE & COOKE INC DATE OF NAME CHANGE: 19910731 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MURDOCK DAVID H CENTRAL INDEX KEY: 0000875392 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: ONE DOLE DRIVE CITY: WESTWESTLAKE VILLAGE STATE: CA ZIP: 91362 SC 13D 1 c92252sc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. )*

DOLE FOOD COMPANY, INC.

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

256603 101

(CUSIP Number)

Roberta Wieman
10900 Wilshire Boulevard
Los Angeles, California 90024
(310) 208-6055

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

October 28, 2009

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No.		256603 101

NAMES OF REPORTING PERSONS

David H. Murdock

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

SOLE VOTING POWER

NUMBER OF

51,710,000

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

51,710,000

WITH

SHARED DISPOSITIVE POWER

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

51,710,000

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

58.6%¹

TYPE OF REPORTING PERSON

IN, HC

1 Based upon 88,276,000 shares of Common Stock outstanding as of the date hereof.


CUSIP No.		256603 101

NAMES OF REPORTING PERSONS

Castle & Cooke Investments, Inc.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

SOLE VOTING POWER

NUMBER OF

11,784,914

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

11,784,914

WITH

SHARED DISPOSITIVE POWER

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

11,784,914

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

13.4%¹

TYPE OF REPORTING PERSON

1 Based upon 88,276,000 shares of Common Stock outstanding as of the date hereof.


CUSIP No.		256603 101

NAMES OF REPORTING PERSONS

Castle & Cooke Holdings, Inc.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) o

(b) þ

SEC USE ONLY

SOURCE OF FUNDS

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

SOLE VOTING POWER

NUMBER OF

11,784,914

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

11,784,914

WITH

SHARED DISPOSITIVE POWER

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

11,784,914

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

13.4%¹

TYPE OF REPORTING PERSON

1 Based upon 88,276,000 shares of Common Stock outstanding as of the date hereof.

Item 1. Security and Issuer

This Schedule 13D is being filed to report each of the reporting persons’ named herein (collectively, the “Reporting Persons”) beneficial ownership of the common stock, par value $0.001 per share (“Common Stock”) of Dole Food Company, Inc., a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at One Dole Drive, Westlake Village, California 91362.

The shares of the Common Stock reported herein as beneficially owned by Mr. David H. Murdock consist of (i) the number of shares of Common Stock owned directly by him as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended (the “Trust”) and (ii) the number of shares of Common Stock owned directly by Castle & Cooke Holdings, Inc., a Delaware Corporation (“Holdings”). Mr. Murdock is the sole trustor, trustee and beneficiary of the Trust. Holdings is wholly-owned by Castle & Cooke Investments, Inc., a Delaware corporation (“Investments”), which is wholly-owned by Mr. Murdock. Investments, as the sole stockholder of Holdings, beneficially owns the shares of Common Stock owned directly by Holdings. Mr. Murdock, as the sole stockholder of Investments, beneficially owns the shares of Common Stock owned directly by Holdings.

Item 2. Identity and Background

This Schedule 13D is being filed by:

(1)

Mr. Murdock, a United States citizen, is Chairman of the Board and a director of the Issuer. He is also the sole proprietor of a number of companies and sole shareholder of a number of corporations which are engaged in the businesses of commercial real estate development, financial investments, mining and processing nonmetallic aggregates, manufacturing vitrified clay products and warehousing operations. The principal business and office address for Mr. Murdock is 10900 Wilshire Boulevard, Los Angeles, California 90024.

(2)

Investments, a Delaware corporation whose principal business is the holding of Mr. Murdock’s interests in Holdings and its subsidiaries, and his interests in Flexi-Van Holdings, Inc. and its subsidiaries, which are engaged in the ownership and leasing of chassis and shipping containers on a world-wide basis. The principal business and office address of Investments is 10900 Wilshire Boulevard, Los Angeles, California 90024.

(3)

Holdings, a Delaware corporation whose principal business is the ownership, operation and development of residential and commercial real estate and resorts. The principal business and office address of Holdings is 10900 Wilshire Boulevard, Los Angeles, California 90024.

Attached as Appendix A is information concerning each executive officer and director of Investments and Holdings other than Mr. Murdock (collectively, the “C&C Parties”) as to which such information is required to be disclosed in response to Item 2 and General Instruction C to Schedule 13D.

During the last five years, none of the Reporting Persons or the C&C Parties have (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such a proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3. Source and Amount of Funds or Other Consideration

The aggregate purchase price paid in connection with the acquisition by Mr. Murdock and Holdings of an aggregate of 1,000 shares of Common Stock that triggered the obligation to file this Schedule 13D was $12,500. This amount was paid for with the cash assets of Mr. Murdock and Holdings. This acquisition and certain other internal restructuring transactions are described below in greater detail in Item 4. As of the date of this filing, and as a result of the internal restructuring transactions described below, the Reporting Persons beneficially own an aggregate of 51,710,000 shares of Common Stock. No consideration was paid by the Reporting Persons in connection with the internal restructuring transactions described below other than as specifically described in this Item 3.

Item 4. Purpose of Transaction

The Reporting Persons acquired the shares of Common Stock reported herein as beneficially owned by the Reporting Persons solely for investment purposes. Mr. Murdock has held a controlling interest in the Issuer (or its predecessor) since 1985. From March 28, 2003, the date of the Issuer’s going private transaction, until immediately prior to the consummation of the initial public offering of the Common Stock completed on October 28, 2009 (the “IPO”), Mr. Murdock has beneficially owned all issued and outstanding shares of Common Stock through DHM Holding Company, Inc., a Delaware corporation (“DHM”), which was owned by him and Holdings.

As previously disclosed in the Issuer’s Registration Statement on Form S-1 (File No. 333-161345) originally filed with the Securities and Exchange Commission (the “SEC”) on August 14, 2009, as amended (the “Registration Statement”), in connection with the IPO, the Issuer and Mr. Murdock effected a series of internal restructuring transactions, which resulted in the Reporting Persons beneficially owning an aggregate of 51,710,000 shares of Common Stock as reported herein. The mechanics of these internal restructuring transactions and the means by which Mr. Murdock and Holdings acquired direct ownership of Common Stock are summarized below, as are the transfer restrictions imposed on the shares of Common Stock held by Mr. Murdock and Holdings in connection with the IPO and the Trust Offering (as defined below). These restructuring transactions did not affect the percentage of Common Stock beneficially owned by the Reporting Persons.

Internal Restructurings

As noted above, prior to the consummation of the IPO, DHM was the direct owner of all 1,000 issued and outstanding shares of Common Stock. On October 27, 2009, DHM entered into a Stock Purchase Agreement (the “Stock Purchase Agreement”) with Mr. Murdock and Holdings pursuant to which DHM agreed to transfer on a pro rata basis to its two stockholders, Mr. Murdock and Holdings, 778 shares of Common Stock and 222 shares of Common Stock, respectively, for a per share purchase price of $12.50 per share, immediately following the Split (as defined below). On October 28, 2009, prior to the merger of DHM with and into the Issuer in which the Issuer was the surviving corporation (the “Merger”), the Issuer effected a 51,710-for-1 forward split (the “Split”) of the Common Stock, resulting in DHM’s direct ownership of 51,710,000 shares of Common Stock. Pursuant to the Stock Purchase Agreement, immediately following the Split, DHM transferred to Mr. Murdock and Holdings, 778 shares of Common Stock and 222 shares of Common Stock, respectively, at a price of $12.50 per share. The foregoing summary of the Stock Purchase Agreement is qualified in entirety by reference to the complete text of the Stock Purchase Agreement, a copy of which is filed herewith as Exhibit 99.5 and is incorporated herein by reference.

At the effective time of the Merger and as a result thereof, (i) all 51,709,000 issued and outstanding shares of Common Stock held directly by DHM were cancelled and retired and ceased to exist and (ii) each issued and outstanding share of Common Stock owned by any person other than DHM, by virtue of the Merger, split into 53,085.2 shares of Common Stock. As a result, immediately following the Merger, Mr. Murdock directly owned 41,200,286 shares of Common Stock and Holdings directly owned 11,784,914 shares of Common Stock. No other shares of Common Stock were issued and outstanding at such time other than the shares of Common Stock owned by them. The foregoing summary of the Merger is qualified in entirety by reference to the complete text of the Agreement and Plan of Merger, dated October 27, 2009, between DHM and the Issuer, a copy of which is filed herewith as Exhibit 99.4 and is incorporated herein by reference.

Following the Merger and prior to the consummation of the IPO, the Issuer redeemed an aggregate of 1,375,200 shares of Common Stock owned directly by Mr. Murdock. Specifically, the Issuer redeemed (i) 415,200 shares of Common Stock in exchange for the transfer to Mr. Murdock’s designee of an 85% interest in Wellbeing Properties, LLC, and the assumption by such designee of $30 million of debt associated with Wellbeing Properties, LLC, and (ii) 960,000 shares of Common Stock in exchange for the transfer to Mr. Murdock’s designee of the Issuer’s ownership interest in one parcel of idle farmland of approximately 1600 acres in Honduras.

As a result of the restructuring transactions described above, at the time of the consummation of the IPO and as of the date of this filing, Mr. Murdock as trustee of the Trust directly owns 39,925,086 shares of Common Stock and Holdings directly owns 11,784,914 shares of Common Stock.

Lock-up Agreements

In connection with the IPO, on October 22, 2009, Mr. Murdock and Holdings entered into a lock-up agreement (“Lockup Agreements”) with the underwriters in respect of the shares of Common Stock held by them, respectively. Pursuant to the Lockup Agreements, subject to certain exceptions described below, they may not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock or any securities of the Issuer that are substantially similar to the Common Stock or any securities that are convertible into, exchangeable for, or that represent the right to receive shares of Common Stock, or any such substantially similar securities, owned now or acquired hereafter, directly or with respect to which Mr. Murdock or Holdings has beneficial ownership within the rules and regulations of the SEC without the prior written consent of Goldman, Sachs & Co. until April 20, 2010 (the “Restricted Period”), unless automatically extended pursuant to the terms of the Lockup Agreements. Pursuant to the Lockup Agreements, the Restricted Period will automatically be extended if (i) during the last 17 days prior to April 20, 2010 the Issuer issues an earnings release or announces material news or a material event; or (ii) prior to the expiration of the Restricted Period, the Issuer announces that it will release earnings results during the 15-day period following April 20, 2010, the restrictions described above will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event. The foregoing restrictions on transfer do not apply to: (i) a transfer of shares as a bona fide gift, where the donee agrees to be bound by such restrictions; (ii) a transfer of shares not involving a disposition for value to (a) any trust for the direct or indirect benefit of the beneficial holder of such shares or his immediate family, or (b) any wholly-owned subsidiary, in each case where the transferee agrees to be bound by such restrictions; (iii) a transfer of shares in connection with the Trust Offering (defined below) and; (iv) from and after January 20, 2010, a pledge as collateral for any loan of up to 30% of the shares held by Mr. Murdock or Holdings, as applicable, not subject to the Trust Offering, where the counterparty to such pledge agrees to be bound by such restrictions, if such pledge does not require any public report or filing with the SEC. The foregoing summaries of the Lockup Agreements are qualified in entirety by reference to the complete text of the Lockup Agreements copies of which are filed herewith as Exhibits 99.2 and 99.3 and are incorporated herein by reference.

2009 Trust Offering

As described in the Registration Statement, concurrent with the IPO, a newly formed trust not affiliated with the Issuer, the 2009 Dole Food Automatic Common Exchange Security Trust (the “2009 Trust”), offered up to 24,000,000 of its $0.875 automatic common exchange securities (the “Securities”), with the option for the initial purchasers to purchase up to an additional 3,600,000 Securities from the 2009 Trust at the initial offering price (the “Trust Offering”). The Securities are exchangeable, at the Trust’s option, for shares of Common Stock or the cash equivalent value of such shares of Common Stock, beginning on November 1, 2012 (the “Exchange Date”).

In connection with the Trust Offering, on October 22, 2009, (i) Mr. Murdock entered into a Forward Purchase Agreement (the “Forward Purchase Agreement”) with the 2009 Trust pursuant to which Mr. Murdock agreed to deliver to the 2009 Trust on the Exchange Date a number of shares of Common Stock equal to the product of the exchange rate times the 24,000,000 Securities offered in the Trust Offering, or 27,600,000 Securities, if the initial purchasers exercise their option to purchase additional Securities; and (ii) Mr. Murdock entered into a Collateral Agreement (the “Collateral Agreement”) with U.S. Bank, National Association, as Collateral Agent (the “Collateral Agent”), and the 2009 Trust, pursuant to which Mr. Murdock agreed to grant a security interest in the maximum number of shares of Common Stock initially deliverable under the Forward Purchase Agreement. The foregoing summaries of the Forward Purchase Agreement and Collateral Agreement are qualified in entirety by reference to the complete text of the Forward Purchase Agreement and Collateral Agreement copies of which are filed herewith as Exhibits 99.6 and 99.7, respectively, and are incorporated herein by reference.

As of the date of this filing, the 2009 Trust sold 24,000,000 Securities, resulting in Mr. Murdock’s pledge to the Collateral Agent of 24,000,000 shares of Common Stock. Pursuant to the Collateral Agreement, Mr. Murdock has the right to vote these shares of Common Stock for so long as such shares are beneficially owned by him and pledged under the Collateral Agreement, unless an event of default occurs under the Forward Purchase Agreement or the Collateral Agreement. In addition, pursuant to the Forward Purchase Agreement and Collateral Agreement, if the initial purchasers exercise their option to purchase an additional 3,600,000 Securities from the 2009 Trust at the initial offering price, Mr. Murdock is obligated to deliver to the 2009 Trust and pledge to the Collateral Agent an additional 3,600,000 shares of Common Stock.

The Reporting Persons intend to review on a continuing basis their investment in the Issuer. The Reporting Persons may decide to increase or, subject to, among other things, the Lockup Agreements, decrease their investment in the Issuer depending upon estate planning considerations, the price and availability of the Issuer’s securities, subsequent developments affecting the Issuer, the Issuer’s business and prospects, other investment and business opportunities available to the Reporting Persons, general stock market and economic conditions, tax considerations and other factors. Mr. Murdock, as a member of the Issuer’s Board of Directors and its Chairman, expects to continue to be involved in the Issuer’s policies and activities.

Except as set forth herein and except for changes in the composition of the Board of Directors of the Issuer previously disclosed in the Registration Statement related to bringing the Board of Directors in compliance with the rules of the New York Stock Exchange regarding director independence in accordance with the transition rules related thereto, the Reporting Persons presently do not have any plans or proposals that relate to or would result in:

(a) The acquisition by any person of additional securities of the Issuer or the disposition of securities of the Issuer.

(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries.

(d) Any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board.

(e) Any material change in the present capitalization or dividend policy of the Issuer.

(f) Any other material change in the Issuer’s business or corporate structure.

(g) Any changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person.

(h) Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association.

(i) A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act.

(j) Any action similar to any of those enumerated above.

Item 5. Interest in Securities of the Issuer

(a) and (b)

Interests of Reporting Persons and Others:

(1)

Mr. Murdock:

As of the date of this filing, Mr. Murdock has beneficial ownership of an aggregate of 51,710,000 shares of Common Stock, or 58.6% of the Common Stock. Of these 51,710,000 shares of Common Stock, Mr. Murdock has (a) sole voting and sole dispositive power with respect to 51,710,000 shares of Common Stock and (b) shared voting and shared dispositive power with respect to 0 shares of Common Stock. Of these 51,710,000 shares of Common Stock, (a) 39,925,086 are owned directly by Mr. Murdock as trustee of the Trust and (b) 11,784,914 are owned directly by Holdings. Mr. Murdock has beneficial ownership of the shares owned directly by Holdings.

(2)

Investments:

As of the date of this filing, Investments has beneficial ownership of an aggregate of 11,784,914 shares of Common Stock, or 13.4% of the Common Stock. Of these 11,784,914 shares of Common Stock, Investments has (a) sole voting and sole dispositive power with respect to 11,784,914 shares of Common Stock and (b) shared voting and shared dispositive power with respect to 0 shares of Common Stock. Of these 11,784,914 shares of Common Stock, all are owned directly by Holdings. Investments, as sole stockholder of Holdings, has beneficial ownership over the shares owned directly by Holdings.

(3)

Holdings:

As of the date of this filing, Holdings has beneficial ownership of an aggregate of 11,784,914 shares of Common Stock, or 13.4% of the Common Stock. Of these 11,784,914 shares of Common Stock, Holdings has (a) sole voting and sole dispositive power with respect to 11,784,914 shares of Common Stock and (b) shared voting and shared dispositive power with respect to 0 shares of Common Stock. Of these 11,784,914 shares of Common Stock, all are owned directly by Holdings.

(c) The following transactions in the Common Stock were effected by the Reporting Persons in the 60 days prior to the date of this filing, each as described above in Item 4:

(1) On October 28, 2009, prior to the Merger, Mr. Murdock acquired 778 shares of Common Stock from DHM for aggregate consideration of $9,725 or $12.50 per share.

(2) On October 28, 2009, prior to the Merger, Holdings acquired 222 shares of Common Stock from DHM for aggregate consideration of $2,775 or $12.50 per share.

(3) On October 28, 2009, as a result of the Merger, each issued and outstanding share of Common Stock owned by the Mr. Murdock and Holdings, by virtue of the Merger, split into 53,085.2 shares of Common Stock.

(4) On October 28, 2009, immediately following the Merger, the Issuer redeemed (i) 415,200 shares of Common Stock held by Mr. Murdock in exchange for the transfer to Mr. Murdock’s designee of an 85% interest in Wellbeing Properties, LLC and the assumption by such designee of $30 million of debt associated with Wellbeing Properties, LLC and (ii) 960,000 shares of Common Stock held by Mr. Murdock in exchange for the transfer to Mr. Murdock’s designee of the Issuer’s ownership interest in one parcel of idle farmland of approximately 1600 acres in Honduras.

(5) On October 28, 2009, in connection with the consummation of the Trust Offering, Mr. Murdock pledged 24,000,000 shares of Common Stock to the Collateral Agent.

(d) Mr. Murdock has the power to direct the receipt of dividends from and the proceeds from the sale of the shares reported herein. Mr. Murdock has the right to receive dividends from and the proceeds from the sale of the shares reported herein, except with respect to the 24,000,000 shares of Common Stock that have been pledged to the Collateral Agent. Pursuant to the Collateral Agreement, Mr. Murdock is obligated to deliver to the Collateral Agent for the benefit of the 2009 Trust any dividends received in respect of the 24,000,000 shares of Common Stock pledged by Mr. Murdock to the Collateral Agent. However, the Collateral Agent is required to pay any such dividends to Mr. Murdock unless (i) Mr. Murdock is in default with respect to its obligations under the Collateral Agreement or (ii) the payment of any or all such dividends to Mr. Murdock would cause the collateral to become insufficient under the Collateral Agreement.

(e) N/A

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

In addition to the agreements described in Item 4, Mr. Murdock and Holdings are also party to a Registration Rights Agreement with the Issuer, which provides them with certain rights with respect to the registration of their shares of Common Stock under the Securities Act of 1933, as amended, including demand, piggyback and Form S-3 shelf registration rights when available.

Except as otherwise described in this Schedule 13D, there are no contracts, arrangements, understandings, or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer.

Item 7. Material to Be Filed as Exhibits


Exhibit 99.1		Joint Filing Agreement, dated November 9, 2009.

Exhibit 99.2		Lock-Up Agreement, dated October 22, 2009, between David H. Murdock as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended and Goldman, Sachs & Co., Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Wells Fargo Securities, LLC, as representatives of the Underwriters.

Exhibit 99.3		Lock-Up Agreement, dated October 22, 2009, between Castle & Cooke Holdings, Inc. and Goldman, Sachs & Co., Deutsche Bank Securities Inc., Merrill Lunch, Pierce, Fenner & Smith Incorporated, and Wells Fargo Securities, LLC, as representatives of the Underwriters.

Exhibit 99.4		Agreement and Plan of Merger entered into as of October 27, 2009, between DHM Holding Company, Inc. and Dole Food Company, Inc.

Exhibit 99.5		Stock Purchase Agreement made as of October 27, 2009, by and among DHM Holding Company, Inc., the David H. Murdock Living Trust dated May 28, 1986, as amended, and Castle & Cooke Holdings, Inc.

Exhibit 99.6		Forward Purchase Agreement, dated as of October 22, 2009, between David H. Murdock, in his individual capacity and as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended and 2009 Dole Food Automatic Common Exchange Security Trust.

Exhibit 99.7		Collateral Agreement, dated as of October 22, 2009, among David H. Murdock, in his individual capacity and as trustee of the David H. Murdock Living Trust dated May 28, 1986 as amended, U.S. Bank National Association, for the benefit of the 2009 Dole Food Automatic Common Exchange Security Trust.

SIGNATURE

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.


/s/ David H. Murdock			November 9, 2009

David H. Murdock, individually and as
trustee of the David H. Murdock Living
Trust dated May 28, 1986, as amended

CASTLE & COOKE INVESTMENTS, INC.

By:	/s/ Scott A. Griswold		November 9, 2009

	Name:	Scott A. Griswold
	Title:	Executive Vice President

CASTLE & COOKE HOLDINGS, INC.

By:	/s/ Scott A. Griswold		November 9, 2009

	Name:	Scott A. Griswold
	Title:	Executive Vice President

APPENDIX A

EXECUTIVE OFFICERS AND DIRECTORS OF INVESTMENTS

Number/ Percentage

of Shares of Common

Principal Business

Stock Beneficially

Name

Title

Business Address

Occupation

Citizenship

Owned¹

Andrew J. Conrad

Director

2440 South Sepulveda Blvd., Suite 235, Los Angeles, CA 90064

Chief Scientific Officer, Laboratory Corporation of America

U.S.

15,000 (less than 0.1%)²

Scott A. Griswold

Director and Executive Vice President

10900 Wilshire Blvd., Los Angeles, CA 90024

Executive Vice President, Dole Food Company, Inc.

U.S.

29,500 (less than 0.1%)³

Rick H. Kline

President

10900 Wilshire Blvd., Los Angeles, CA 90024

President, Castle & Cooke, Inc.

U.S.

Justin M. Murdock

Director

10900 Wilshire Blvd., Los Angeles, CA 90024

Vice President, Dole Food Company, Inc.

U.S.

13,000 (less than 0.1%)⁴

Roberta Wieman

Director and Vice President

10900 Wilshire Blvd., Los Angeles, CA 90024

Executive Vice President, Dole Food Company, Inc.

U.S.

15,167 (less than 0.1%)⁵

Gary J. Wong

Chief Financial Officer

10900 Wilshire Blvd., Los Angeles, CA 90024

Chief Financial Officer, Castle & Cooke, Inc.

U.S.

EXECUTIVE OFFICERS AND DIRECTORS OF HOLDINGS

Number/ Percentage

of Shares of Common

Principal Business

Stock Beneficially

Name

Title

Business Address

Occupation

Citizenship

Owned¹

Scott A. Griswold

Director and Executive Vice President

10900 Wilshire Blvd., Los Angeles, CA 90024

Executive Vice President, Dole Food Company, Inc.

U.S.

29,500 (less than 0.1%)³

Rick H. Kline

President

10900 Wilshire Blvd., Los Angeles, CA 90024

President, Castle & Cooke, Inc.

U.S.

Justin M. Murdock

Director

10900 Wilshire Blvd., Los Angeles, CA 90024

Vice President, Dole Food Company, Inc.

U.S.

13,000 (less than 0.1%)⁴

Roberta Wieman

Director and Vice President

10900 Wilshire Blvd., Los Angeles, CA 90024

Executive Vice President, Dole Food Company, Inc.

U.S.

15,167 (less than 0.1%)⁵

Gary J. Wong

Chief Financial Officer

10900 Wilshire Blvd., Los Angeles, CA 90024

Chief Financial Officer, Castle & Cooke, Inc.

U.S.


¹		Based upon 88,276,000 shares of Common Stock outstanding on the date hereof.

²		5,000 of which are restricted shares vesting in full on October 28, 2012.

³		27,500 of which are restricted shares vesting in full on October 28, 2012.

⁴		All of which are restricted shares vesting in full on October 28, 2012.

⁵		14,167 of which are restricted shares vesting in full on October 28, 2012.

EX-99.1 2 c92252exv99w1.htm EXHIBIT 99.1 Exhibit 99.1

Exhibit 99.1

Joint Filing Agreement

In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.001 per share, of Dole Food Company, Inc., a Delaware corporation, and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filings. In evidence thereof, the undersigned, being duly authorized, have executed this Joint Filing Agreement this 9th day of November, 2009.




David H. Murdock, individually and as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended

CASTLE & COOKE INVESTMENTS, INC.
By:
	Name:
	Title:

CASTLE & COOKE HOLDINGS, INC.
By:
	Name:
	Title:

EX-99.2 3 c92252exv99w2.htm EXHIBIT 99.2 Exhibit 99.2

Exhibit 99.2

Dole Food Company, Inc.

Lock-Up Agreement

October 22, 2009

Goldman, Sachs & Co.
Deutsche Bank Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Wells Fargo Securities, LLC,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004

Re: Dole Food Company, Inc. — Lock-Up Agreement

Ladies and Gentlemen:

The undersigned understands that you, as representatives (the “Representatives”), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with Dole Food Company, Inc., a Delaware corporation (the “Company”), as the surviving corporation in the merger of DHM Holding Company, Inc. with and into Dole Food Company, Inc. prior to the First Time of Delivery (as defined in the Underwriting Agreement), providing for a public offering (the “Offering”) of the common stock, par value $0.001 per share, of the Company (the “Common Stock”; the shares of Common Stock that are the subject of such public offering, the “Shares”) pursuant to a Registration Statement on Form S-1 filed with the Securities and Exchange Commission (the “SEC”).

In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period specified in the following paragraph (the “Lock-Up Period”), the undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock or any securities of the Company that are substantially similar to the Shares, including but not limited to any options or warrants to purchase any shares of Common Stock, or any securities that are convertible into, exchangeable for, or that represent the right to receive, shares of Common Stock or any such substantially similar securities, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the “Undersigned’s Shares”), without the prior written consent of Goldman, Sachs & Co. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned’s Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares.

The Lock-Up Period will commence on the date of this Lock-Up Agreement and continue for 180 days after the date set forth on the final prospectus used to sell the Shares (the “Public Offering Date”) pursuant to the Underwriting Agreement.

Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until (a) in the case of clause (1) above, the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event or (b) in the case of clause (2) above, the expiration of the 18-day period beginning on the date of release of the earnings results, unless Goldman, Sachs & Co. waives, in writing, such extension.

The undersigned hereby acknowledges that the Company has agreed in the Underwriting Agreement to provide written notice of any event that would result in an extension of the Lock-Up Period pursuant to the previous paragraph to the undersigned (in accordance with Section 13 of the Underwriting Agreement) and agrees that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned. The undersigned hereby further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Lock-Up Agreement during the period from the date of this Lock-Up Agreement to and including the 34th day following the expiration of the Lock-Up Period, it will give notice thereof to the Company and will not consummate such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period (as such may have been extended pursuant to the previous paragraph) has expired.

Notwithstanding the foregoing, the undersigned, without the prior written consent of Goldman, Sachs & Co. on behalf of the Underwriters (A) may transfer the Undersigned’s Shares (i) as a bona fide gift or gifts, provided, that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the trustee for the undersigned or his immediate family, provided, that the trustee of any such trust agrees to be bound in writing by the restrictions set forth herein, and provided, further, that any such transfer shall not involve a disposition for value, or (iii) in connection with the offering of automatic common exchange securities exchangeable into Common Stock and the agreements entered into by the undersigned in connection therewith, including the stock purchase agreement, dated as of October 22, 2009, between the 2009 Dole Food Automatic Common Exchange Security Trust and the undersigned, relating to the Common Stock (the “Stock Purchase Agreement”), or (B) from and after the date that is 90 days following the date of this Lock-Up Agreement, may pledge (a “Pledge”) as collateral for any loan up to 30% of the Undersigned’s Shares held by the undersigned at the time of such Pledge and not pledged as collateral to secure the obligations of the undersigned under the Stock Purchase Agreement (such undersigned’s Shares subject to a Pledge, the “Pledged Shares”), so long as (x) the counterparty to such Pledge agrees with the Representatives to be bound by a lock-up agreement with respect

to the Pledged Shares on terms substantially similar to those contained in this Lock-Up Agreement and (y) such Pledge does not require any public report or filing with the Securities and Exchange Commission under Section 13 or Section 16 of the Securities Exchange Act of 1934, as amended, and no such report or filing is made, prior to the expiration of the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. The undersigned as of the consummation of the Offering will have, and, except as contemplated by clauses (A) and (B) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s Shares, free and clear of all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s Shares except in compliance with the foregoing restrictions.

The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s legal representatives, successors, and assigns.


	Very truly yours,

	David H. Murdock, as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended

EX-99.3 4 c92252exv99w3.htm EXHIBIT 99.3 Exhibit 99.3

Exhibit 99.3

Dole Food Company, Inc.

Lock-Up Agreement

October 22, 2009

Goldman, Sachs & Co.
Deutsche Bank Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Wells Fargo Securities, LLC,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004

Re: Dole Food Company, Inc. — Lock-Up Agreement

Ladies and Gentlemen:

Notwithstanding the foregoing, the undersigned, without the prior written consent of Goldman, Sachs & Co. on behalf of the Underwriters (A) may transfer the Undersigned’s Shares (i) as a bona fide gift or gifts, provided, that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the beneficial owner of the all of the capital stock of the undersigned or his immediate family, provided, that the trustee of any such trust agrees to be bound in writing by the restrictions set forth herein, and provided, further, that any such transfer shall not involve a disposition for value, or (iii) to any wholly-owned subsidiary of the undersigned; provided, that such subsidiary agrees to be bound in writing by the restrictions set forth herein, and provided, further, that any such transfer shall not involve a disposition for value, or (B) from and after the date that is 90 days following the date of this Lock-Up Agreement, may pledge (a “Pledge”) as collateral for any loan up to 30% of the Undersigned’s Shares held by the undersigned at the time of such Pledge (such undersigned’s Shares subject to a Pledge, the “Pledged Shares”), so long as (x) the counterparty to such Pledge agrees with the Representatives to be bound by a lock-up agreement with respect to the Pledged Shares on terms substantially similar to those contained in this Lock-Up Agreement and (y) such Pledge does not require any public report or filing with the Securities and Exchange Commission under Section 13 or Section 16 of the

Securities Exchange Act of 1934, as amended, and no such report or filing is made, prior to the expiration of the Lock-Up Period. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. The undersigned as of the consummation of the Offering will have, and, except as contemplated by clauses (A) and (B) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s Shares, free and clear of all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s Shares except in compliance with the foregoing restrictions.


	Very truly yours, CASTLE & COOKE HOLDINGS, INC.
	By:
		Name:
		Title:

EX-99.4 5 c92252exv99w4.htm EXHIBIT 99.4 Exhibit 99.4

Exhibit 99.4

AGREEMENT AND PLAN OF MERGER

DHM HOLDING COMPANY, INC.
a Delaware corporation

WITH AND INTO

DOLE FOOD COMPANY, INC.
a Delaware corporation

This Agreement and Plan of Merger is entered into as of October 27, 2009, between DHM Holding Company, Inc., a Delaware corporation (“Holdings”), and its wholly-owned subsidiary Dole Food Company, Inc., a Delaware corporation (“Dole”) pursuant to Section 251 of the Delaware General Corporation Law, and as adopted and recommended by the Boards of Directors of each corporation and as approved by the stockholders of each corporation:

1. Holdings, the disappearing corporation, shall be merged with and into its wholly-owned subsidiary, Dole, the surviving corporation. The merger shall become effective as of 1:00 AM, eastern time, on October 28, 2009 as specified in the certificate of merger (the “Certificate of Merger”) to be duly filed with the Secretary of State of the State of Delaware (the time the Merger becomes effective being the “Effective Time”).

2. The separate existence of Holdings shall cease upon the Effective Time of the merger.

3. The Certificate of Incorporation of Dole shall be amended and restated in the form attached hereto as Exhibit A and shall be filed with the Secretary of State of the State of Delaware with the Certificate of Merger, and as so amended and restated, shall be the Certificate of Incorporation of the surviving corporation and shall continue in full force and effect until changed, altered, or amended as therein provided and in the manner prescribed by the provisions of the Delaware General Corporation Law.

4. The by-laws of Dole Food Company, Inc., at the Effective Time of the merger shall be the by-laws of the surviving corporation and shall continue in full force and effect until changed, altered, or amended as therein provided and in the manner prescribed by the provisions of the Delaware General Corporation Law and the Certificate of Incorporation of the surviving corporation.

5. The directors and officers in office of Dole Food Company, Inc., at the Effective Time of the merger shall continue as the directors and officers of the surviving corporation, all of whom shall hold such positions until tenure is otherwise terminated in accordance with the Certificate of Incorporation and the by-laws of the surviving corporation.

6. At the Effective Time (A) each issued and outstanding share of Dole owned by Holdings shall, by virtue of the merger and without any action upon the part of the holder thereof, be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor, (B) each issued and outstanding share of Dole owned by any person other than Holdings shall, by virtue of the merger and without any action upon the part of the holder thereof, be split into 53,085.2 shares of common stock and shall remain outstanding as the shares of the surviving corporation and (C) each issued and outstanding share of Holdings shall, by virtue of the merger and without any action upon the part of the holder thereof, be cancelled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor.

7. In accordance with Section 251(d) of the Delaware General Corporation Law, at any time prior to the time that this agreement (or a certificate of merger in lieu thereof) filed with the Secretary of State becomes effective in accordance with Section 103 of the Delaware General Corporation Law, the agreement may be terminated by the Board of Directors of any constituent corporation notwithstanding approval of the agreement by the stockholders of all or any of the constituent corporations; in the event the agreement of merger is terminated after the filing of the agreement (or a certificate in lieu thereof) with the Secretary of State but before the agreement (or a certificate in lieu thereof) has become effective, a certificate of termination of merger shall be filed in accordance with Section 103 of the Delaware General Corporation Law. The boards of directors of the constituent corporations may amend the agreement at any time prior to the time that the agreement (or a certificate in lieu thereof) filed with the Secretary of State becomes effective in accordance with Section 103 of the Delaware General Corporation Law, provided that an amendment made subsequent to the adoption of the agreement by the stockholders of any constituent corporation shall not (1) alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of such constituent corporation, (2) alter or change any term of the certificate of incorporation of the surviving corporation of the surviving corporation to be effected by the merger, or (3) alter or change any of the terms and conditions of the agreement if such alteration or change would adversely affect the holders of any class or series thereof of such constituent corporation; in the event the agreement of merger is amended after the filing thereof with the Secretary of State but before the agreement has become effective, a certificate of amendment of merger shall be filed in accordance with Section 103 of the Delaware General Corporation Law.

8. If at any time after the Effective Time of the merger it shall be necessary or desirable to take any action or execute, deliver or file any instrument or document in order to vest, perfect or confirm of record in the surviving corporation the title to any property or any rights of Holdings, or otherwise to carry out the provisions of this Agreement, the directors and officers of the surviving corporation are hereby authorized and empowered on behalf of Holdings and in its name to take such action and execute, deliver and file such instruments and documents.

9. As of the Effective Time of the merger, the surviving corporation shall thereupon and thereafter possess all rights, privileges, immunities, licenses and permits (whether of a public or private nature) of Holdings; and all property (real, personal and mixed), all debts due on whatever account, all choses in action and all and every other interest of or belonging to or due to Holdings shall continue and be taken and deemed to be transferred to and vested in the surviving corporation, without further act or deed; and the surviving corporation shall thenceforth be responsible and liable for all the liabilities and obligations of Holdings.

10. The parties intend that the merger shall constitute a tax-free reorganization under Section 368(a)(1)(A) of the Internal Revenue Code, and shall take all steps necessary or reasonable to ensure qualification and compliance under such section.

IN WITNESS WHEREOF, each of the corporations referenced herein has caused this Agreement and Plan of Merger to be executed by an authorized officer of the respective corporation this 27th day of October, 2009.

EX-99.5 6 c92252exv99w5.htm EXHIBIT 99.5 Exhibit 99.5

Exhibit 99.5

STOCK PURCHASE AGREEMENT

This STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of October 27, 2009, by and among DHM Holding Company, Inc., a Delaware corporation (the “Seller”), the David H. Murdock Living Trust dated May 28, 1986, as amended (the “Trust”), and Castle & Cooke Holdings, Inc., a Delaware corporation (“CCH” and, collectively with the Trust, the “Purchasers”).

RECITAL

WHEREAS, Seller wishes to sell to the Purchasers, and the Purchasers wish to purchase from Seller, shares of the common stock (the “Common Stock”), par value $.001 per share, of Dole Food Company, Inc., a Delaware corporation (“Dole”), on the terms and subject to the conditions contained herein.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Purchaser and Seller hereby agree as follows:

1. Purchase and Sale of Shares of Common Stock. Seller agrees to sell to the Trust, and the Trust agrees to buy from Seller, 778 shares of Common Stock (the “Trust Shares”) for a per share price of Twelve Dollars and Fifty Cents ($12.50) and an aggregate purchase price of Nine Thousand Seven Hundred Twenty Five Dollars ($9,725.00) (the “Trust Purchase Price”). Seller agrees to sell to CCH, and CCH agrees to buy from Seller, 222 shares of Common Stock (the “CCH Shares” and, collectively with the Trust Shares, the “Shares”) for a per share price of Twelve Dollars and Fifty Cents ($12.50) and an aggregate purchase price of Two Thousand Seven Hundred Seventy Five Dollars ($2,775.00) (the “CCH Purchase Price”).

2. Closing. The closing (the “Closing”) of the purchase and sale of the Shares contemplated hereby shall take place on October 28, 2009 immediately following the effective time of the stock split with respect to the Common Stock as set forth in the Amendment to the Amended and Restated Certificate of Incorporation of Dole as filed with the Secretary of State of the State of Delaware on October 27, 2009 (the “Closing Date”). At the Closing, each Purchaser shall pay to Seller an amount equal to Trust Purchase Price or the CCH Purchase Price, as applicable, and Seller shall deliver such certificate or certificates representing the Shares.

3. Representations and Warranties. THE PURCHASERS AND SELLER EACH ACKNOWLEDGE THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NONE OF THE SELLER OR THE PURCHASERS HAS MADE, AND EACH HEREBY EXPRESSLY DISCLAIMS AND NEGATES, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT COMMON LAW, BY STATUE OR OTHERWISE RELATING TO, AND THE PURCHASERS AND SELLER HEREBY EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION AGAINST THE OTHER IN CONNECTION WITH, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

4. Amendment and Modification. This Agreement may not be amended, modified or supplemented, except by an instrument in writing signed on behalf of each party and otherwise as expressly set forth herein.

5. Entire Agreement. This Agreement constitutes the entire agreement between the Purchasers and Seller, and supersedes all prior written agreements, arrangements and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the Purchasers and Seller with respect to the subject matter hereof.

6. Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware.

7. Severability. If any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law, such invalidity, illegality or unenforceability shall not affect any other provision hereof.

8. Counterparts. This Agreement may be executed by facsimile and in counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.

[Signature pages follows.]

IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be executed as of the date first written above.


	SELLER: DHM HOLDING COMPANY, INC.
	By:
		Name:
		Title:

	PURCHASERS: David H. Murdock, as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended CASTLE & COOKE HOLDINGS, INC.
	By:
		Name:
		Title:


	By:
		Name:
		Title:

EX-99.6 7 c92252exv99w6.htm EXHIBIT 99.6 Exhibit 99.6

Exhibit 99.6

FORWARD PURCHASE AGREEMENT

Between

DAVID H. MURDOCK, IN HIS INDIVIDUAL CAPACITY AND AS TRUSTEE OF THE
DAVID H. MURDOCK LIVING TRUST DATED MAY 28, 1986, AS AMENDED,
as Seller

and

2009 DOLE FOOD AUTOMATIC COMMON EXCHANGE SECURITY TRUST,
as Purchaser

Dated as of October 22, 2009

TABLE OF CONTENTS


		Page

ARTICLE I

DEFINITIONS; INTERPRETATION

Section 1.1	Defined Terms		2
Section 1.2	Interpretation		6

ARTICLE II

SALE AND PURCHASE

Section 2.1	Sale and Purchase		7
Section 2.2	Purchase Price		8
Section 2.3	Payment for and Delivery of Contract Stock		8

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1	Representations and Warranties of Seller		10
Section 3.2	Representations and Warranties of Purchaser		10

ARTICLE IV

CONDITIONS TO PURCHASER’S OBLIGATIONS

Section 4.1	Condition to Delivery of Firm Purchase Price		10
Section 4.2	Condition to Delivery of Additional Purchase Price		10

ARTICLE V

COVENANTS

Section 5.1	Covenants of Seller		10
Section 5.2	Further Assurances		12

ARTICLE VI

ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE AND INITIAL PRICE; REORGANIZATION EVENTS

Section 6.1	Dilution Adjustments		12
Section 6.2	Adjustment for Consolidation, Merger or Other Reorganization Event		16

-i-


		Page

Section 6.3	Spin-Off Distributions		17
Section 6.4	Adjustments with Respect to Marketable Securities		18

ARTICLE VII

ACCELERATION UPON AN EVENT OF DEFAULT; TRANSFER AGENT INSTRUCTIONS

Section 7.1	Events of Default		18
Section 7.2	Transfer Agent Instructions		19

ARTICLE VIII

MISCELLANEOUS

Section 8.1	Adjustments of Exchange Rate; Selection of Independent Investment Banking Firm		19
Section 8.2	No Assumption of Liability		20
Section 8.3	Notices		20
Section 8.4	Governing Law; Severability		20
Section 8.5	Entire Agreement		20
Section 8.6	Amendments; Waivers		20
Section 8.7	Non-Assignability		21
Section 8.8	No Third Party Rights; Successors and Assigns		21
Section 8.9	Counterparts		21

-ii-

FORWARD PURCHASE AGREEMENT

FORWARD PURCHASE AGREEMENT (this “Agreement”), dated as of October 22, 2009, between David H. Murdock, in his individual capacity and as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended, a trust organized under the laws of the State of California (“Seller”), and the 2009 Dole Food Automatic Common Exchange Security Trust, a trust organized under the laws of the State of New York under and by virtue of an Amended and Restated Trust Agreement, dated as of October 22, 2009 (the “Trust Agreement”; such trust and the trustees thereof acting in their capacity as such being referred to in this Agreement as “Purchaser”).

WITNESSETH:

WHEREAS, Seller as of the date hereof owns shares of Common Stock (“Common Stock”), par value $.001 per share, of Dole Food Company, Inc., a Delaware corporation (the “Company”), and Seller will own such shares of Common Stock as of the First Time of Delivery (as defined below) and as of the Second Time of Delivery (as defined below); and

WHEREAS, Purchaser has prepared an offering circular contemplating the offering of up to 27,600,000 $0.875 Trust Issued Automatic Common Exchange Securities (the “Securities”), the terms of which contemplate delivery by Purchaser to the holders of such Securities of a number of shares of Common Stock (or, in certain circumstances, cash or other property in lieu of such Common Stock) on, or, in certain circumstances, prior to, the Exchange Date referred to below; and

WHEREAS, Seller has agreed, pursuant to the Collateral Agreement, dated as of October 22, 2009 (together with any substitute agreement therefor entered into pursuant to Section 2.2(a) of the Trust Agreement, the “Collateral Agreement”), among Seller, as Pledgor, U.S. Bank National Association, as Collateral Agent (as defined below), and Purchaser to grant to the Collateral Agent, for the benefit of Purchaser, a security interest in shares of Common Stock and, in certain circumstances, certain other collateral to secure the obligations of Seller under this Agreement; and

WHEREAS, Purchaser has agreed, effective as of the First Time of Delivery, pursuant to the Securities Purchase Agreement, dated October 22, 2009 (the “Securities Purchase Agreement”), among Purchaser, Seller, the Company, and Goldman, Sachs & Co., Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC (collectively, the “Initial Purchasers”), to issue and sell to the Initial Purchasers an aggregate of 24,000,000 Securities (the “Firm Securities”) and, at the Initial Purchasers’ option as provided herein, up to 3,600,000 additional Securities (such additional Securities as the Initial Purchaser shall actually purchase pursuant to the Securities Purchase Agreement, the “Optional Securities”);

NOW, THEREFORE, the parties to this Agreement, intending to be bound, agree as follows:

ARTICLE I

DEFINITIONS; INTERPRETATION

Section 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:

“Accelerated Portion” means, in relation to any Cash Merger, the portion of the Merger Consideration, other than Marketable Securities, that has a Value equal to the amount determined by multiplying the Basic Reorganization Event Amount by a fraction, (i) the numerator of which is the Value of the portion of the Merger Consideration received in exchange for a single share of Common Stock that consists of assets other than Marketable Securities, and (ii) the denominator of which is the Transaction Value.

“Additional Purchase Price” has the meaning specified in Section 2.2(b).

“Additional Share Base Amount” means a number equal to the number of Optional Securities that the Initial Purchasers elect to purchase under the Securities Purchase Agreement.

“Additional Shares” has the meaning specified in Section 2.1(b).

“Additional Treasury Securities” means the U.S. Government Securities purchased by Purchaser pursuant to Section 2.3(b)(ii) of the Trust Agreement for settlement at the Second Time of Delivery.

“Administrator” means U.S. Bank National Association, administrator for Purchaser under the Administration Agreement, dated as of October 22, 2009 between the Administrator and Purchaser, or its successor in such capacity, or any other Administrator appointed pursuant to the Trust Agreement and the Administration Agreement.

“Administration Agreement” means the Administration Agreement, dated as of October 22, 2009, between the Administrator and Purchaser.

“Agreement” has the meaning set forth in the Preamble.

“Appreciation Threshold Price” has the meaning specified in Section 2.1(c).

“Average Market Price” per share of Common Stock or Marketable Securities on any date means the average Closing Price per share of Common Stock or Marketable Securities for the Calculation Period consisting of the 20 Trading Days immediately prior to but not including the third Trading Day prior to such date.

“Basic Reorganization Event Amount” has the meaning specified in Section 6.2(a).

“Business Day” means a day on which the NYSE is open for trading and that is not a day on which commercial banks in The City of New York are authorized or obligated by law to close.

-2-

“Calculation Period” means any period of Trading Days for which an average security price must be determined pursuant to this Agreement.

“Cash Merger” has the meaning specified in Section 6.2(b).

“Cash Percentage” has the meaning specified in Section 2.3(d).

“Cash Settlement Alternative” has the meaning specified in Section 2.3(d).

“Closing Price” of a share of Common Stock (or any other common equity security, including any Marketable Securities) on any Trading Day means (i) the last reported sale price per share (or, if no last sale price is reported, the average of the bid and ask prices per share or, if more than one in either case, the average of the average bid and the average ask prices per share) on such day reported by the NYSE, or, if the Common Stock (or such other property) is not listed on the NYSE, as reported by the principal U.S. national or regional securities exchange on which the Common Stock (or such other property) is listed, (ii) if the Common Stock (or such other property) is not traded on a U.S. national or regional securities exchange, the last quoted bid price on that day for the Common Stock (or such other property) in the over-the-counter market as reported by Pink OTC Markets Inc. or a similar organization or (iii) if the Common Stock (or such other property) is not traded on a U.S. national or regional securities exchange or so quoted by Pink OTC Markets Inc. or a similar organization, the market price of the Common Stock (or such other property) on that day as determined by a nationally recognized independent investment banking firm retained by the Administrator for this purpose, whose determination shall be conclusive; provided, that if any event that results in an adjustment to the number of shares of Common Stock or Marketable Securities deliverable under this Agreement pursuant to Article VI occurs during any Calculation Period, the Closing Price as determined pursuant to the foregoing for each Trading Day in the Calculation Period occurring prior to the date on which such adjustment is effected will be appropriately adjusted to reflect the occurrence of such event.

“Collateral Agent” means U.S. Bank National Association, in its capacity as Collateral Agent under the Collateral Agreement, or its successor in such capacity, or any other Collateral Agent appointed pursuant to the Trust Agreement and the Collateral Agreement.

“Collateral Agreement” has the meaning specified in the recitals to this Agreement.

“common equity security” means any security of any class of capital stock (whether voting or non-voting) that has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the issuer of such capital stock and that is not subject to redemption by the issuer of such capital stock.

“Common Stock” has the meaning specified in the recitals to this Agreement.

“Company” has the meaning specified in the recitals to this Agreement.

“Company Successor” has the meaning specified in Section 6.2(a).

“Contract Shares” has the meaning specified in Section 2.1(b).

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“Custodian” means U.S. Bank National Association, as custodian for Purchaser under the Custodian Agreement, dated as of October 22, 2009, between the Custodian and Purchaser, or its successor in such capacity, or any other Custodian appointed pursuant to the Trust Agreement and the Custodian Agreement.

“Custodian Agreement” means the Custodian Agreement, dated as of October 22, 2009, between the Custodian and Purchaser.

“Dilution Adjustment” means any fraction or number by which the Exchange Rate shall be multiplied pursuant to Section 6.1(a), (b), (c), (d) or (e).

“Event of Default” has the meaning specified in Section 7.1.

“Exchange Date” means November 1, 2012, provided that if the number of shares of Common Stock deliverable to the Purchaser on that date would exceed 15% of the then outstanding shares of Common Stock, such excess portion will be delivered on successive Business Days (with no delivery on any Business Day of a number of shares of Common Stock in excess of 15% of the then outstanding share of Common Stock) until such entire excess portion has been delivered. Each reference in this Agreement to the Exchange Date shall be deemed a reference to November 1, 2012 and each such other Business Day.

“Exchange Rate” has the meaning specified in Section 2.1(c).

“Expiration Time” has the meaning specified in Section 6.1(e).

“Firm Purchase Price” has the meaning specified in Section 2.2(a).

“Firm Securities” has the meaning specified in the recitals to this Agreement.

“Firm Share Base Amount” means 24,000,000 shares of Common Stock.

“Firm Shares” has the meaning specified in Section 2.1(a).

“First Time of Delivery” has the meaning specified in Section 2.3(a).

“Full Share Number” has the meaning in Section 2.3(d).

“Initial Price” has the meaning specified in Section 2.1(c).

“Initial Purchasers” has the meaning specified in the recitals to this Agreement.

“Initial Treasury Securities” means the U.S. Government Securities purchased by Purchaser pursuant to Section 2.3(b)(i) of the Trust Agreement for settlement at the First Time of Delivery.

“Liens” means any lien, mortgage, security interest, pledge, charge, encumbrance or adverse claim of any kind.

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“Market Disruption Event” means the occurrence or existence on any scheduled trading day for the Common Stock (or any other applicable security or other property) of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock (or such other property) or in any options, contracts or futures contracts relating to the Common Stock (or such other property), and such suspension or limitation occurs or exists at any time within 30 minutes prior to the closing time of the relevant stock exchange on such day.

“Marketable Securities” means any common equity securities (whether voting or non-voting) listed on a U.S. national or regional securities exchange.

“Merger Consideration” has the meaning specified in Section 6.2(a).

“NYSE” means the New York Stock Exchange, Inc.

“Optional Securities” has the meaning specified in the recitals to this Agreement.

“Purchaser” has the meaning specified in the preamble to this Agreement.

“Reorganization Event” has the meaning specified in Section 6.2(a).

“Second Time of Delivery” has the meaning specified in Section 2.3(b).

“Securities” has the meaning specified in the recitals to this Agreement.

“Securities Purchase Agreement” has the meaning specified in the recitals to this Agreement.

“Seller” has the meaning specified in the preamble to this Agreement.

“Spin-Off Distribution” means a distribution by the Company to holders of Common Stock of Marketable Securities issued by an issuer other than the Company.

“Tender Offer Valuation Period” has the meaning specified in Section 6.1(e).

“Then-Current Market Price” of the Common Stock means the average Closing Price per share of Common Stock for the applicable Calculation Period.

“Trading Day” means any day on which (i) there is no Market Disruption Event and (ii) (x) the NYSE is open for trading, or, if the Common Stock (or any other applicable security or other property) is not listed on the NYSE, the principal U.S. national or regional securities exchange on which the Common Stock (or such other property) is listed is open for trading, (y) if the Common Stock (or such other property) is not traded on a U.S. national or regional securities exchange but is quoted on the over-the-counter market by Pink OTC Markets Inc. or a similar organization, Pink OTC Markets Inc. or such similar organization, as applicable, is open for quoting or (z) if the Common Stock (or such other property) is not traded on a U.S. national or regional securities exchange or quoted by Pink OTC Markets Inc. or a similar organization, such day is a Business Day. A “Trading Day” only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the relevant exchange or trading system or, if applicable, regular quoting on the relevant quotation system.

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“Transaction Value” means the sum of: (i) for any cash received in the Reorganization Event, the amount of the cash received per share of Common Stock; (ii) for any property other than cash or Marketable Securities received in the Reorganization Event, an amount equal to the market value on the date the Reorganization Event is consummated of the property received per share of Common Stock (as determined by a nationally recognized independent investment banking firm retained for this purpose by the Administrator, whose determination shall be conclusive); and (iii) for any Marketable Securities received in the Reorganization Event, an amount equal to the average Closing Price of those Marketable Securities on the Exchange Date (or, in the case of a Cash Merger, the average Closing Price for the 20 Trading Days immediately before the date the Reorganization Event is consummated), multiplied by the number of those Marketable Securities received for each share of Common Stock. The number of Marketable Securities included in the calculation of Transaction Value for purposes of the preceding clause (iii) will be adjusted if a dilution event of the type described in Article VI hereof occurs with respect to the issuer of the Marketable Securities between the time of the Reorganization Event and the Exchange Date.

“Transfer Restrictions” has the meaning specified in the Collateral Agreement.

“Transferred Securities” has the meaning specified in Section 2.3(e).

“Trust Agreement” has the meaning specified in the preamble to this Agreement.

“Trustees” has the meaning specified in the Trust Agreement.

“U.S. Government Securities” means direct obligations of the United States of America.

“Value” means (i) in respect of cash, the amount of such cash; (ii) in respect of any property other than cash or Marketable Securities, an amount equal to the market value on the date the Reorganization Event is consummated (as determined by a nationally recognized independent investment banking firm retained for this purpose by the Administrator, whose determination shall be conclusive); and (iii) in respect of any share of Marketable Securities, an amount equal to the average Closing Price per share of those Marketable Securities for the 20 Trading Days immediately before the date the Reorganization Event is consummated.

Section 1.2 Interpretation.

(a) When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits or Schedules to, this Agreement unless otherwise indicated.

(b) The table of contents and headings contained in this Agreement are for reference purposes only and are not part of this Agreement, and shall not be deemed to limit or otherwise affect any of the provisions of this Agreement.

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(c) Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.

(d) Any reference to any statute, regulation or agreement is a reference to such statute, regulation or agreement as supplemented or amended from time to time.

ARTICLE II

SALE AND PURCHASE

Section 2.1 Sale and Purchase.

(a) Firm Shares. Upon the terms and subject to the conditions of this Agreement, and subject to Seller’s cash settlement alternative as provided in Section 2.3(d), Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the number of shares of Common Stock (the “Firm Shares”) equal to the product of the Firm Share Base Amount and the Exchange Rate.

(b) Additional Shares. Upon the terms and subject to the conditions of this Agreement, if the Initial Purchasers exercise the option to purchase Optional Securities pursuant to the Securities Purchase Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the number of additional shares of Common Stock (the “Additional Shares”) equal to the product of the Additional Share Base Amount and the Exchange Rate. If the Initial Purchasers exercise their option to purchase Optional Securities pursuant to the Securities Purchase Agreement, Purchaser shall notify Seller in writing that Purchaser will purchase the Additional Shares, which notice shall specify the Additional Share Base Amount and the Second Time of Delivery. The Firm Shares and the Additional Shares (if any) are collectively referred to in this Agreement as the “Contract Shares”.

(c) Exchange Rate. The “Exchange Rate” shall be the rate determined in accordance with the following formula, subject to adjustment as a result of certain events as provided in Article VI:

(i) if the Average Market Price is less than $15.00 (the “Appreciation Threshold Price”) but equal to or greater than $12.50 (the “Initial Price”), the Exchange Rate will be a fraction (rounded upward or downward to the nearest 1/10,000th or, if there is not a nearest 1/10,000th, to the next lower 1/10,000th) equal to the Initial Price divided by the Average Market Price;

(ii) if the Average Market Price is equal to or greater than the Appreciation Threshold Price, the Exchange Rate will be 0.8333; and

(iii) if the Average Market Price is less than the Initial Price, the Exchange Rate will be 1.000.

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Section 2.2 Purchase Price.

(a) Firm Purchase Price. The purchase price for the Firm Shares (the “Firm Purchase Price”) shall be an amount equal to the difference between (i) the aggregate proceeds to Purchaser from the sale of the Firm Securities and (ii) the aggregate cost to Purchaser, as notified by Purchaser to Seller at the First Time of Delivery, of the Initial Treasury Securities.

(b) Additional Purchase Price. The purchase price for the Additional Shares (the “Additional Purchase Price”) shall be an amount equal to the difference between (i) the aggregate proceeds to Purchaser from the sale of the Optional Securities and (ii) the aggregate cost to Purchaser, as notified by Purchaser to Seller at the Second Time of Delivery, of the Additional Treasury Securities.

Section 2.3 Payment for and Delivery of Contract Stock.

(a) First Time of Delivery. Upon the terms and subject to the conditions of this Agreement, Purchaser shall deliver to Seller the Firm Purchase Price on October 28, 2009 (the “First Time of Delivery”), at the offices of Sullivan & Cromwell LLP, 1888 Century Park East, Los Angeles, CA 90067, or at such other place as shall be agreed upon by Purchaser and Seller, paid by wire transfer to an account designated by Seller, in Federal (immediately available) funds.

(b) Second Time of Delivery. Upon the terms and subject to the conditions of this Agreement, Purchaser shall deliver to Seller the Additional Purchase Price on the date of delivery of the Optional Securities to the Initial Purchasers (the “Second Time of Delivery”), at the offices of Sullivan & Cromwell LLP, 1888 Century Park East, Los Angeles, CA 90067, or at such other place as shall be agreed upon by Purchaser and Seller, paid by wire transfer to an account designated by Seller, in Federal (immediately available) funds.

(c) Sale and Delivery of Contract Shares. Seller agrees to deliver, except as otherwise provided in this Agreement, the Contract Shares to Purchaser on the Exchange Date. Unless Seller elects the Cash Settlement Alternative as provided in Section 2.3(d), delivery shall be effected by delivery by the Collateral Agent to the Custodian, for the account of Purchaser, of shares of Common Stock then held by the Collateral Agent as collateral under the Collateral Agreement, in an amount equal to the number of Contract Shares, rounded down to the nearest whole number. Alternatively, in accordance with Section 5.2 of the Collateral Agreement, Seller may elect to deliver shares of Common Stock in an amount equal to the number of Contract Shares, rounded down to the nearest whole number, to the Custodian for the account of Purchaser on the Exchange Date by notifying the Collateral Agent and the Custodian on or prior to the Exchange Date of such election, in which case, the Collateral Agent shall deliver to the Seller the shares of Common Stock then held by the Collateral Agent as collateral under the Collateral Agreement on the Exchange Date. Seller agrees to make a cash payment in respect of any fractional shares included in the Contract Shares at the Exchange Date, in an amount equal to the value of such fractional shares at the Average Market Price. In addition, if the difference between (A) the aggregate proceeds of any sale (net of any brokerage or related expenses) of any Common Stock or Marketable Securities sold by Purchaser pursuant to Section 2.4(f)(ii) of the Trust Agreement and (B) the product of the number of shares of Common Stock or Marketable

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Securities so sold and the Average Market Price, is negative, Seller shall pay such difference to Purchaser. If such difference is positive, Purchaser shall pay the difference to Seller. Notwithstanding the foregoing, if a Reorganization Event shall have occurred prior to the Exchange Date then, in lieu of the foregoing, delivery shall be effected as follows: (i) in the case of any cash required to be delivered on the Exchange Date as provided in Section 6.2, by wire transfer to an account designated by Purchaser, in Federal (immediately available) funds; (ii) in the case of any Marketable Securities elected by Seller to be delivered in lieu of cash, as provided in Section 6.2, by delivery by the Collateral Agent to the Custodian, for the account of Purchaser, of the applicable number of Marketable Securities then held as collateral under the Collateral Agreement, as provided in Section 5.7 of the Collateral Agreement; and (iii) in the case of any cash included in the Accelerated Portion as provided in Section 6.2(b), by wire transfer as provided in clause (i) above or in the case of any non-cash assets included in such Accelerated Portion, by delivery of such assets to the Custodian, for the account of Purchaser. Alternatively, Seller may elect to deliver shares of Marketable Securities in lieu of cash, as provided in Section 6.2, to the Custodian for the account of Purchaser on the Exchange Date by notifying the Collateral Agent and the Custodian on or prior to the Exchange Date of such election, in which case, the Collateral Agent shall deliver to the Seller the shares of Marketable Securities then held by the Collateral Agent as collateral under the Collateral Agreement on the Exchange Date.

(d) Cash Settlement Alternative. At its option, Seller may deliver to Purchaser on the Exchange Date, in lieu of the Contract Shares, in whole or in part, an amount in cash (the “Cash Settlement Alternative”) equal to the value, based on the Average Market Price of the Contract Shares at the Exchange Date, of the number of shares Seller would otherwise be required to deliver on the Exchange Date (the “Full Share Number”), multiplied by the Cash Percentage (as defined below), paid by wire transfer to an account designated by Purchaser, in Federal (immediately available) funds, in which case the number of Contract Shares to be delivered by Seller on the Exchange Date will be the product of (x) 100% less the Cash Percentage and (y) the Full Share Number. If the Seller elects the Cash Settlement Alternative, it may do so by notice to Purchaser, the Collateral Agent and the Custodian (including as to the portion to be settled in cash as a fixed percentage between 0% and 100% (the “Cash Percentage”)) not less than 60 days, nor more than 90 days, preceding the Exchange Date then in effect, including with respect to the portion to be delivered in cash. If Seller elects the Cash Settlement Alternative, Purchaser shall provide notice of such election to the holders of the Securities, not less than 45 days, nor more than 90 days, prior to the Exchange Date as then in effect.

(e) Satisfaction of Obligations. Notwithstanding any other provision of this Agreement, if on or prior to the Exchange Date, Seller transfers Securities to Purchaser, free and clear of any Liens and Transfer Restrictions, for cancellation (any Securities so transferred being referred to in this Agreement as the “Transferred Securities”) then the number of Contract Shares, or the cash in lieu thereof in the event the Cash Settlement Alternative is elected, deliverable by Seller pursuant to this Agreement shall be reduced by a number equal to the product of (i) the number of Contract Shares before giving effect to any such transfers and (ii) a fraction, the numerator of which is the number of Transferred Securities and the denominator of which is the sum of the Firm Share Base Amount and the Additional Share Base Amount (rounded down to the nearest whole share).

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ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1 Representations and Warranties of Seller. Seller represents and warrants to Purchaser that each representation and warranty made by Seller pursuant to Section 1(b) of the Securities Purchase Agreement is true and correct on the date of this Agreement.

Section 3.2 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller that each representation and warranty made by Purchaser pursuant to Section 1(a) of the Securities Purchase Agreement is true and correct on the date of this Agreement.

ARTICLE IV

CONDITIONS TO PURCHASER’S OBLIGATIONS

Section 4.1 Condition to Delivery of Firm Purchase Price. The obligation of Purchaser to deliver the Firm Purchase Price at the First Time of Delivery is subject to the condition that the purchase by the Initial Purchasers of the Firm Securities pursuant to the Securities Purchase Agreement shall have been consummated as contemplated under the Securities Purchase Agreement and that Seller shall have delivered to Purchaser such forms as set forth in Section 5.1(a)(ii) below.

Section 4.2 Condition to Delivery of Additional Purchase Price. The obligation of Purchaser to deliver the Additional Purchase Price at the Second Time of Delivery is subject to the condition that the purchase by the Initial Purchasers of the Optional Securities shall have been consummated as contemplated under the Securities Purchase Agreement and that Seller shall have delivered to Purchaser such forms as set forth in Section 5.1(a)(ii) below.

ARTICLE V

COVENANTS

Section 5.1 Covenants of Seller.

(a) Taxes.

(i) Seller shall pay any and all documentary, stamp, transfer or similar taxes and charges that may be payable in respect of the execution of this Agreement and the transfer and delivery of the Contract Shares (or any cash or Marketable Securities or other property in lieu of the Contract Shares) and the sale by the purchaser of any assets pursuant to this Agreement. Purchaser may withhold from any payment under this Agreement any tax required by law, and Seller may withhold from any payment under this Agreement to the extent such withholding is the result of Purchaser failing to provide the Seller with an IRS Form W-9 setting forth an exemption from withholding, provided the Seller is eligible under law to deliver such IRS Form W-9 to the Purchaser.

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(ii) As of the First Time of Delivery and the Second Time of Delivery, Seller shall deliver to Purchaser a non-foreign person affidavit duly certifying that the Seller is not a foreign person in the form that satisfies the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and is reasonably acceptable to the Purchaser and any other duly executed form reasonably requested by the Purchaser in order to avoid withholding tax on any payment under this Agreement. Seller shall immediately notify Purchaser when a statement included in such certificates or forms is no longer accurate.

(b) Forward Contract. Each of Seller and Purchaser hereby agree that: (i) it will not treat this Agreement, any portion of this Agreement, or any obligation under this Agreement as giving rise to any interest expense or income or other inclusions or expense of ordinary income; (ii) it will not treat the delivery of any portion of the Contract Shares, cash, Marketable Securities or other property to be delivered pursuant to this Agreement as the payment of interest or ordinary income; (iii) it will treat this Agreement in its entirety as a forward contract for the delivery of such Contract Shares, cash, Marketable Securities or other property; and (iv) it will not take any action (including filing any tax return or form or taking any position in any tax proceeding, other than in connection with good faith negotiations in settlement of a tax proceeding) that is inconsistent with the obligations contained in clauses (i) through (iii) of this Section 5.1(b). Notwithstanding the preceding sentence Purchaser may in its discretion withhold tax on payments to the security holders in the Purchaser regardless of the legal theory or characterization supporting such withholding. Seller and Purchaser may also take any action or position required by law provided, that Seller or Purchaser, as the case may be, provides an opinion of counsel, nationally recognized as expert in Federal tax matters, to the effect that such action or position is required by a statutory change, Treasury regulation, or applicable court decision published after the date of this Agreement.

(c) Limitations on Trading During Certain Days. Seller hereby agrees that it will not buy Common Stock for its own account during the 60 days prior to the Exchange Date.

(d) Notices. Seller will cause to be delivered to Purchaser:

(i) Immediately upon the occurrence of any Event of Default, or upon Seller’s obtaining knowledge that any of the conditions or events described in Section 7.1(a) or (b) hereof shall have occurred with respect to the Company, notice of such occurrence; and

(ii) If at any time prior to the Exchange Date Seller receives notice, or otherwise obtains knowledge, that any event requiring an adjustment to be effected pursuant to Article VI hereof shall have occurred or be pending, then Seller shall promptly cause to be delivered to Purchaser a notice identifying such event and stating, if known to Seller, the date on which such event occurred or is to occur and, if applicable, the record date relating to such event. Seller shall cause further notices to be delivered to Purchaser if Seller shall subsequently receive notice, or otherwise obtain knowledge, of any further or revised information regarding the terms or timing of such event or any record date relating to such event.

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Section 5.2 Further Assurances. From time to time on and after the date of this Agreement through the Exchange Date, each of the parties to this Agreement shall use its commercially reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement in accordance with the terms and conditions of this Agreement, including (i) using commercially reasonable efforts to remove any legal impediment to the consummation of such transactions and (ii) the execution and delivery of all such deeds, agreements, assignments and further instruments of transfer and conveyance reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement in accordance with the terms and conditions of this Agreement.

ARTICLE VI

ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD
PRICE AND INITIAL PRICE; REORGANIZATION EVENTS

Section 6.1 Dilution Adjustments. The Exchange Rate, Appreciation Threshold Price and Initial Price shall be subject to adjustment from time to time as follows:

(a) Stock Dividends, Splits, Etc. If the Company shall, after the date of this Agreement,

(i) pay a stock dividend or make a distribution with respect to the Common Stock in shares of Common Stock;

(ii) subdivide or split the outstanding shares of Common Stock into a greater number of shares of Common Stock; or

(iii) combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock;

then, in each such case, the Exchange Rate shall be multiplied by a Dilution Adjustment equal to the fraction, (x) the numerator of which shall be the number of shares of Common Stock outstanding immediately after the effective time of the adjustment relating to such event (giving effect to such event as of such effective time), and (y) the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to the effective time of the adjustment relating to such event. The Appreciation Threshold Price and Initial Price shall also be adjusted in the manner described in Section 6.1(f).

(b) Right or Warrant Issuances. If the Company shall, after the date of this Agreement, issue, or declare a record date in respect of an issuance of, rights or warrants to all holders of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Then-Current Market Price of the Common Stock (other than rights to purchase Common Stock pursuant to a plan for the reinvestment of dividends or interest) for the five Trading Days ending on, and including, the Trading Day immediately preceding the ex-dividend date for such issuance, then, in each such case, the Exchange Rate shall be multiplied by a Dilution Adjustment equal to a fraction, (i) the numerator of which shall

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be the number of shares of Common Stock outstanding immediately before the time (determined as described below) the adjustment is effected by reason of the issuance of those rights or warrants, plus the number of additional shares of Common Stock offered for subscription or purchase pursuant to those rights or warrants, and (ii) the denominator of which shall be the number of shares of Common Stock outstanding immediately before the time (determined as described below) the adjustment is effected by reason of the issuance of those rights or warrants, plus the number of additional shares of Common Stock that the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at the Then-Current Market Price of the Common Stock for the five Trading Days ending on, and including the Trading Day immediately preceding the ex-dividend date for such issuance, which shall be determined by multiplying the total number of shares so offered for subscription or purchase by the exercise price of such rights or warrants and dividing the product so obtained by such Then-Current Market Price. For purposes of this Section 6.1(b), in determining whether any rights or warrants entitle the holders to subscribe for or purchase, or exercise a conversion right for, Common Stock at less than the applicable Then-Current Market Price, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration the Company receives for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by a nationally recognized independent investment banking firm retained for this purpose by the Administrator, whose determination shall be conclusive. The Appreciation Threshold Price and Initial Price shall also be adjusted in the manner described in Section 6.1(f).

(c) Distributions of Other Assets. If the Company shall, after the date of this Agreement, declare or pay a dividend or make a distribution to all holders of Common Stock, in either case, consisting of evidences of its indebtedness or other non-cash assets (excluding (A) any dividends or distributions referred to in Section 6.1(a) and (B) any Spin-Off Distributions) or shall issue to all holders of Common Stock rights or warrants to subscribe for or purchase any of its securities (other than rights or warrants referred to in Section 6.1(b)), then, in each such case, the Exchange Rate shall be multiplied by a Dilution Adjustment equal to a fraction, (i) the numerator of which shall be the Then-Current Market Price per share of Common Stock for the five Trading Days ending on, and including, the Trading Day immediately preceding the ex-dividend date for such distribution, and (ii) the denominator of which shall be such Then-Current Market Price per share of Common Stock for the five Trading Days ending on, and including, the Trading Day immediately preceding the ex-dividend date for such distribution, less the fair market value (as determined by a nationally recognized independent investment banking firm retained for this purpose by the Administrator, whose determination shall be conclusive) as of the time the adjustment is effected of the portion of those evidences of indebtedness or non-cash assets or rights or warrants applicable to one share of Common Stock. An adjustment to each Exchange Rate made pursuant to this Section 6.1(c) shall be made successively whenever any such distribution is made. The Appreciation Threshold Price and Initial Price shall also be adjusted in the manner described in Section 6.1(f).

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(d) Cash Dividends. If the Company shall, after the date of this Agreement, declare a record date in respect of a distribution of cash (other than any cash distributed in consideration of fractional shares of Common Stock and any cash distributed in a Reorganization Event), by dividend or otherwise, to all holders of Common Stock, then the Exchange Rate will be multiplied by a Dilution Adjustment equal to a fraction, (i) the numerator of which shall be the Then-Current Market Price per share of Common Stock for the five Trading Days ending on, and including, the Trading Day immediately preceding the ex-dividend date for such dividend or distribution, and (ii) the denominator of which shall be such Then-Current Market Price per share of Common Stock for the five Trading Days ending on, and including, the Trading Day immediately preceding the ex-dividend date for such dividend or distribution, less the amount in cash per share that the Company distributes to holders of Common Stock. The Appreciation Threshold Price and Initial Price shall also be adjusted in the manner described in Section 6.1(f).

(e) Tender or Exchange Offers. If the Company or any of its subsidiaries shall, after the date of this Agreement, make a payment in respect of a tender or exchange offer for the Common Stock (other than a tender offer solely to holders of fewer than 100 shares of Common Stock), and the cash and the value (as determined by a nationally recognized independent investment banking firm retained for this purpose by the Administrator, whose determination shall be conclusive), of any other consideration included in the payment per share of Common Stock exceeds the Then-Current Market Price for the five consecutive Trading Day period commencing on the Trading Day next succeeding the last day on which tenders or exchanges may be made pursuant to such tender or exchange offer, then the Exchange Rate will be multiplied by a Dilution Adjustment equal to a fraction, (i) the numerator of which shall be the sum of (A) the aggregate cash and the value (as determined by a nationally recognized independent investment banking firm retained for this purpose by the Administrator, whose determination shall be conclusive), on the expiration date, of the other consideration paid or payable for shares accepted for purchase or exchange in such tender or exchange offer, plus (B) the product of (x) the Then-Current Market Price per share of Common Stock for the five consecutive Trading Day period commencing on the Trading Day next succeeding the expiration date (such period, the “Tender Offer Valuation Period”), multiplied by (y) the number of shares of Common Stock outstanding immediately after the time (the “Expiration Time”) such tender or exchange offer expires (after giving effect to such tender offer or exchange offer), and (ii) the denominator of which shall be such Then-Current Market Price per share of Common Stock for the Tender Offer Valuation Period multiplied by the number of shares of Common Stock outstanding immediately prior to the Expiration Time (prior to giving effect to such tender offer or exchange offer). If the application of the foregoing formula would result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate will be made. The Appreciation Threshold Price and Initial Price shall also be adjusted in the manner described in Section 6.1(f).

(f) Corresponding Adjustments to Initial Price, Appreciation Threshold Price and Closing Price.

(i) If any adjustment is made to the Exchange Rate pursuant to Section 6.1(a), (b), (c), (d) or (e), the Appreciation Threshold Price and the Initial Price shall also be adjusted by dividing each of the Appreciation Threshold Price and the Initial Price by the applicable Dilution Adjustment.

(ii) If, during any Calculation Period used in calculating the Average Market Price or the Then-Current Market Price, an adjustment to the Exchange Rate becomes effective pursuant to this Section 6.1, then the average Closing Prices used to calculate such Average Market Price or Then-Current Market Price for the trading days preceding the effective date of the adjustment in the Exchange Rate shall be adjusted proportionally to the corresponding adjustments to the Initial Price and Threshold Appreciation Price.

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(g) Timing of Dilution Adjustments. Each Dilution Adjustment shall be effected:

(i) in the case of any adjustment made pursuant to Section 6.1(a), immediately after 5:00 p.m., New York City time, on the date fixed for determination of the holders of Common Stock entitled to receive such dividend or distribution or the effective date of such subdivision, split or combination, as applicable;

(ii) in the case of any adjustment made pursuant to Section 6.1(b), immediately after 5:00 p.m., New York City time, on the date fixed for the determination of holders of Common Stock entitled to receive such rights or warrants;

(iii) in the case of any adjustment made pursuant to Section 6.1(c), immediately after 5:00 p.m., New York City time, on the date fixed for determination of the holders of Common Stock entitled to receive such distribution;

(iv) in the case of any adjustment made pursuant to Section 6.1(d), immediately after 5:00 p.m., New York City time, on the date fixed for the determination of the holders of Common Stock entitled to receive such dividend or distribution; and

(v) in the case of any adjustment made pursuant to Section 6.1(e), immediately after 5:00 p.m., New York City time, on the final Trading Day of the Tender Offer Valuation Period; provided, that if the Exchange Date occurs within the five consecutive Trading Days next succeeding the expiration date, references with respect to “five consecutive Trading Day period” in Section 6.1(e) shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date and the Exchange Date in determining the applicable Exchange Rate.

(h) General; Failure of Dilution Event to Occur. All Dilution Adjustments shall be rounded upward or downward to the nearest 1/10,000th or, if there is not a nearest 1/10,000th, to the next lower 1/10,000th. No adjustment in the Exchange Rate shall be required unless such adjustment would require an increase or decrease of at least one percent in the Exchange Rate; provided, however, that any adjustments that by reason of this sentence are not required to be made shall be carried forward and taken into account in any subsequent adjustment. If any dividend or distribution of the type described in Section 6.1(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not subdivided, split or combined, as the case may be, each new Exchange Rate shall be immediately readjusted, effective as of the date the board of directors of the Company determines not to pay such dividend or distribution or to effect such subdivision, dividend, distribution, split or combination, to the Exchange Rate that would then be in effect if such subdivision, dividend, distribution, share split or share combination had not been declared or announced. If any rights or warrants described in Section 6.1(b) are not so issued, the Exchange Rate shall be readjusted, effective as of the date the Company’s board of directors publicly announces its decision not to issue such rights or warrants, to the Exchange Rate that would then be in effect if such issuance had not been declared. If any rights or warrants described in Section 6.1(b) are not exercised or converted

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prior to the expiration of the exercisability or convertibility thereof, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if the adjustments made upon the issuance of such right or warrant had been made on the basis of the delivery of only the number of shares of the Common Stock actually delivered. If any dividend or distribution described in Section 6.1(d) is declared but not so paid or made, each new Exchange Rate shall be readjusted, effective as of the date the Company’s board of directors publicly announces its decision not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. If the Company or one of its subsidiaries is obligated to purchase shares of Common Stock pursuant to any tender or exchange offer described in Section 6.1(e), but the Company or such subsidiary is permanently prevented by applicable law from effecting any such purchase, or all such purchases are rescinded, then each new Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made. If a Reorganization Event shall occur after the occurrence of one or more events requiring an adjustment pursuant to this Section 6.1, the Dilution Adjustments previously applied to the Exchange Rate in respect of such events shall not be rescinded but shall be applied to the new Exchange Rate provided for under Section 6.2.

Section 6.2 Adjustment for Consolidation, Merger or Other Reorganization Event.

(a) In the event of (i) any consolidation or merger of the Company, or any surviving entity or subsequent surviving entity of the Company (a “Company Successor”), with or into another entity (other than a merger or consolidation in which the Company is the continuing corporation and in which the Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another corporation), (ii) any sale, transfer, lease or conveyance to another corporation of the property of the Company or any Company Successor as an entirety or substantially as an entirety, (iii)(x) any statutory exchange of securities of the Company or any Company Successor with another corporation or (y) any sale of all or substantially all of the outstanding equity securities of the Company or any Company Successor, including pursuant to any plan of arrangement or similar scheme with the Company’s stockholders under any applicable law, rule or regulation or order of any court or governmental authority (in the case of each of the preceding clauses (x) and (y), other than in connection with a consolidation or merger referred to in clause (i) immediately above), or (iv) any liquidation, dissolution or winding up of the Company or any Company Successor (any such event described in clause (i), (ii), (iii) or (iv), a “Reorganization Event”), Seller shall deliver on the Exchange Date, in lieu of the Contract Shares, cash in an amount (the “Basic Reorganization Event Amount”) equal to the product of (x) the sum of the Firm Shares and the Additional Shares and (y)(i) if the Transaction Value is less than the Appreciation Threshold Price but equal to or greater than the Initial Price, the Initial Price, (ii) if the Transaction Value is equal to or greater than the Appreciation Threshold Price, 0.8333 multiplied by the Transaction Value, and (iii) if the Transaction Value is less than the Initial Price, the Transaction Value. Notwithstanding the foregoing, if the consideration received by the holders of the Common Stock in the Reorganization Event (the “Merger Consideration”) includes any Marketable Securities, Seller may, at its option, deliver those Marketable Securities on the Exchange Date in lieu of delivering an amount of cash equal to the value of those Marketable Securities as described above based on the Average Market Price of the Marketable Securities on the Exchange Date.

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(b) Notwithstanding Section 6.2(a), if at least 30% of the Merger Consideration in any Reorganization Event consists of property, other than Marketable Securities (a “Cash Merger”), then Seller shall be required (i) within five Business Days after Seller receives the Merger Consideration, to deliver the Accelerated Portion to Purchaser; provided, that to the extent the Accelerated Portion consists of property other than cash or cash equivalents, Seller may, at its option, deliver, in lieu of such other property, cash in an amount equal to the Value of such other property; and (ii) on the Exchange Date, to deliver to Purchaser the number of Marketable Securities equal to the product of (x) the sum of the Firm Share Base Amount and the Additional Share Base Amount and (y) the Exchange Rate, adjusted as described in the next sentence, and the provisions of Section 2.3(c) shall apply mutatis mutandis to such Marketable Securities, provided that Seller may exercise the Cash Settlement Alternative in respect of such Marketable Securities, in which case Section 2.3(d) shall apply to such election mutatis mutandis to such Marketable Securities, and Seller shall deliver cash equal to the value, based on the Average Market Price of the Marketable Securities at the Exchange Date, of the number of Marketable Securities that the Seller would otherwise be required to deliver on the Exchange Date. For purposes of calculating such Exchange Rate, (A) the Initial Price and Appreciation Threshold Price shall each be adjusted by multiplying the Initial Price and Appreciation Threshold Price, as applicable, as then in effect, by a fraction, (i) the numerator of which is the Value of a share of the Marketable Securities, and (ii) the denominator of which shall be the Transaction Value; and (B) the Exchange Rate shall be adjusted by multiplying the Exchange Rate (computed on the basis of the adjusted Initial Price and Appreciation Threshold Price and the Average Market Price of the Marketable Securities) by a fraction, (i) the numerator of which is the aggregate Value of the Marketable Securities included in the Merger Consideration received in exchange for a single share of Common Stock, and (ii) the denominator of which is the Value of a share of the Marketable Securities.

(c) If a Cash Merger occurs during a Calculation Period used to calculate the Average Market Price, average Closing Price or Transaction Value, then the average Closing Prices used to calculate such Average Market Price, the average Closing Price or the average Closing Price referred to in clause (iii) of the definition of Transaction Value, in each case for the Trading Days preceding the effective date of the adjustment in the Exchange Rate, shall be adjusted proportionally to the corresponding adjustments to the Initial Price and Threshold Appreciation Price.

(d) For the avoidance of doubt, if 100% of the Merger Consideration in a Cash Merger consists of cash, then delivery of the entire Merger Consideration will be accelerated as set forth in Section 6.2(b) above.

Section 6.3 Spin-Off Distributions. (a) If the Company shall, after the date of this Agreement or during the term of this Agreement, make a Spin-Off Distribution, then for all purposes of this Agreement, from and after the record date in respect of such Spin-Off Distribution, (i) the Contract Shares shall be deemed to include both (A) that number of shares of Common Stock equal to the product of (x) the sum of the Firm Share Base Amount and the Additional Share Base Amount and (y) the Exchange Rate, and (B) that number of Marketable Securities of the class distributed in respect of the Contract Shares in such Spin-Off Distribution equal to the product of (x) the sum of the Firm Share Base Amount and the Additional Share Base Amount, (y) the Exchange Rate, and (z) the number of shares of such Marketable Securities

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distributed per share of Common Stock in the Spin-Off Distribution; (ii) Seller’s obligations under Section 2.3 shall include delivery of such Marketable Securities together with the Common Stock comprising the Contract Shares and the provisions of Section 2.3(c) shall apply mutatis mutandis to such Marketable Securities; and (iii) the “Closing Price” of the Common Stock, for purposes of calculating the Exchange Rate and for all other purposes under the Agreement, shall thereafter be deemed to be equal to the sum of (A) the Closing Price per share of Common Stock and (B) the product of (x) the Closing Price per share of the spun-off Marketable Securities and (y) the number of shares of such Marketable Securities distributed per share of Common Stock in the Spin-Off Distribution. The formula for determining the “Closing Price” in this Section 6.3(a) will be adjusted if any event that would, if it had occurred with respect to the Common Stock or the Company, have required an adjustment pursuant to the provisions described under Article VI hereof occurs with respect to those Marketable Securities or their issuer between the time of the Spin-Off Distribution and the Exchange Date.

(b) Instead of delivering Marketable Securities on the Exchange Date, Seller may exercise the Cash Settlement Alternative in respect of such Marketable Securities, in which case Section 2.3(d) shall apply to such election mutatis mutandis to such Marketable Securities, and Seller shall deliver cash equal to the value, based on the Average Market Price of the Marketable Securities at the Exchange Date, of the number of Marketable Securities that the Seller would otherwise be required to deliver on the Exchange Date.

Section 6.4 Adjustments with Respect to Marketable Securities. The number of any Marketable Securities included in any calculation pursuant to this Agreement shall be subject to adjustment if any event that would, had it occurred with respect to the Common Stock or the Company, have required an adjustment pursuant to Article VI hereof, shall occur with respect to such Marketable Securities or the issuer of such Marketable Securities between the time of the Spin-Off Distribution or Reorganization Event and the Exchange Date. Adjustment for such subsequent events shall be as nearly equivalent as practicable to the adjustments provided for in Article VI hereof.

ARTICLE VII

ACCELERATION UPON AN EVENT OF DEFAULT; TRANSFER AGENT
INSTRUCTIONS

Section 7.1 Events of Default. If one or more of the following events (each an “Event of Default”) shall occur:

(a) Seller or David H. Murdock shall commence a voluntary case or other proceeding seeking a liquidation, reorganization or other relief with respect to such person’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of such person or any substantial part of such person’s property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against such person, or shall make a general assignment for the benefit of creditors, or shall take any action to authorize any of the foregoing; or

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(b) an involuntary case or other proceeding shall be commenced against Seller or David H. Murdock seeking liquidation, reorganization or other relief with respect to such person or such person’s debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of such person or any substantial part of such person’s property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against such person under the federal bankruptcy laws as now or hereafter in effect; or

then, upon the occurrence of any such event, Seller’s obligations under this Agreement will automatically be accelerated and Seller shall become obligated to deliver the Contract Shares (or, after a Reorganization Event or Spin-Off Distribution, the Marketable Securities or cash or other assets or a combination of Marketable Securities or cash or other assets deliverable instead of or in addition to those shares of Common Stock) then deliverable under this Agreement, or any U.S. Government Securities or other property then pledged as collateral under the Collateral Agreement for Seller’s obligations. Purchaser and Seller agree that such amount is a reasonable preestimate of loss and not a penalty. Such amount is payable for the loss of bargain and Purchaser will not be entitled to recover additional damages as a consequence of any loss resulting from an Event of Default.

Section 7.2 Transfer Agent Instructions. Seller agrees to provide the transfer agent for the Common Stock or any Marketable Securities with standing instructions to pay over directly to the Collateral Agent for the benefit of Purchaser all cash or other property received in respect of distributions or dividends on the Common Stock or Marketable Securities or in connection with a Reorganization Event. Purchaser agrees to instruct the Collateral Agent, and to cause the Collateral Agent, to promptly pay over to Seller any dividends, interest, principal or other payments received by the Collateral Agent on any collateral pledged by Seller, including any substitute collateral, unless Seller is in default on its obligations under the Collateral Agreement (including Seller’s obligation to pledge additional shares of Common Stock when required under the Collateral Agreement), or unless the payment of that amount to Seller would cause the collateral to become insufficient under the Collateral Agreement. Seller will have the right to vote any pledged shares of Common Stock or Marketable Securities for so long as those shares are owned by it and pledged under the Collateral Agreement, unless an event of default occurs under this Agreement or the Collateral Agreement.

ARTICLE VIII

MISCELLANEOUS

Section 8.1 Adjustments of Exchange Rate; Selection of Independent Investment Banking Firm. Purchaser shall be responsible for the effectuation and calculation of any adjustment pursuant to Article VI hereof and shall furnish Seller notice of any such adjustment and shall provide Seller reasonable opportunity to review the calculations pertaining to any such adjustment. If, pursuant to the terms and conditions of this Agreement, the Administrator shall be required to retain a nationally recognized independent investment banking firm for any purpose provided in this Agreement, such nationally recognized independent investment banking firm shall be selected and retained by the Administrator only after consultation with Seller.

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Section 8.2 No Assumption of Liability. By executing this Agreement, none of the Trustees assumes any personal liability under this Agreement.

Section 8.3 Notices.

(b) Each notice given pursuant to Section 8.3(a) shall be effective (i) if sent by certified mail (return receipt requested), 72 hours after being deposited in the United States mail, postage prepaid; (ii) if given by telex or telecopier, when such telex or telecopied notice is transmitted (with electronic confirmation of transmission or verbal confirmation of receipt); or (iii) if given by any other means, when delivered at the address specified in this Section 8.3.

Section 8.4 Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. To the extent permitted by law, the unenforceability or invalidity of any provision or provisions of this Agreement shall not render any other provision or provisions contained in this Agreement unenforceable or invalid.

Section 8.5 Entire Agreement. Except as expressly set forth in this Agreement, this Agreement constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, among the parties with respect to the subject matter of this Agreement.

Section 8.6 Amendments; Waivers. Any provision of this Agreement may be amended or waived (either generally or in a particular instance and either retrospectively or prospectively) if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Purchaser and Seller or, in the case of a waiver, by the party against whom the waiver is to be effective. Purchaser agrees that it will not, without Seller’s written consent, agree to amend or waive any provision of the Trust Agreement in any manner that materially and adversely affects the rights or obligations of Seller hereunder. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver of such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.

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Section 8.7 Non-Assignability. This Agreement and the rights and obligations of the parties under this Agreement may not be assigned or delegated by either party without the prior written consent of the other party, and any purported assignment without such consent shall be void.

Section 8.8 No Third Party Rights; Successors and Assigns. This Agreement is not intended and shall not be construed to create any rights in any person other than Seller and Purchaser and their respective successors and assigns and no person shall assert any rights as third party beneficiary under this Agreement. Whenever any of the parties to this Agreement is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and agreements contained in this Agreement by or on behalf of Seller and Purchaser shall bind and be enforceable by, and inure to the benefit of, their respective successors and assigns whether so expressed or not, and shall be enforceable by and inure to the benefit of Purchaser and Seller and their respective successors and assigns.

Section 8.9 Counterparts. This Agreement may be executed, acknowledged and delivered in any number of counterparts, each of which shall be an original, but all of which shall constitute a single agreement, with the same effect as if the signatures on each such counterpart were upon the same instrument. A copy of a counterpart sent by facsimile machine or other electronic means must be treated as an original counterpart, is sufficient evidence of the execution of the original and may be produced in evidence for all purposes in place of the original.

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the first date set forth above.


SELLER: DAVID H. MURDOCK, in his individual capacity and as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended
By:
	Name:	David H. Murdock


PURCHASER: 2009 DOLE FOOD AUTOMATIC COMMON EXCHANGE SECURITY TRUST
By:
	Donald J. Puglisi, as Trustee


By:
	William R. Latham III, as Trustee


By:
	James B. O’Neill, as Trustee

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EX-99.7 8 c92252exv99w7.htm EXHIBIT 99.7 Exhibit 99.7

Exhibit 99.7

COLLATERAL AGREEMENT

Among

DAVID H. MURDOCK, IN HIS INDIVIDUAL CAPACITY AND AS TRUSTEE OF THE
DAVID H. MURDOCK LIVING TRUST DATED MAY 28, 1986, AS AMENDED,
As Pledgor,

U.S. BANK NATIONAL ASSOCIATION,
As Collateral Agent

and

2009 DOLE FOOD AUTOMATIC COMMON EXCHANGE SECURITY TRUST

Dated as of October 22, 2009

TABLE OF CONTENTS


ARTICLE I

DEFINITIONS; INTERPRETATION

Section 1.1	Defined Terms	1
Section 1.2	Interpretation	6

ARTICLE II

THE SECURITY INTERESTS

Section 2.1	Grant of Security Interests	6

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1	Representations and Warranties of Pledgor	7
Section 3.2	Representations and Warranties of the Collateral Agent	8

ARTICLE IV

CERTAIN COVENANTS OF PLEDGOR

Section 4.1	Certain Covenants of Pledgor	8

ARTICLE V

ADMINISTRATION OF THE COLLATERAL AND VALUATION OF THE SECURITIES

Section 5.1	Valuation of Collateral	10
Section 5.2	Substitution of Collateral	10
Section 5.3	Additional Collateral	11
Section 5.4	Delivery of Collateral	11
Section 5.5	Insufficiency Determination	12
Section 5.6	Release of Excess Collateral	13
Section 5.7	Delivery of Contract Consideration	13
Section 5.8	Investment of Cash Collateral	14


ARTICLE VI

INCOME AND VOTING RIGHTS ON COLLATERAL

Section 6.1	Income on Collateral	14
Section 6.2	Voting of Collateral	14

ARTICLE VII

REMEDIES UPON EVENTS OF DEFAULT

Section 7.1	Rights of Secured Party	15
Section 7.2	Power of Attorney	16
Section 7.3	Application of Collateral and Proceeds	16

ARTICLE VIII

THE COLLATERAL AGENT

Section 8.1	Conditions to Duties of the Collateral Agent	17
Section 8.2	Merger	18
Section 8.3	Resignation	19
Section 8.4	Removal	19
Section 8.5	Effectiveness of Resignation or Removal	19
Section 8.6	Appointment of Successor	19
Section 8.7	Acceptance by Successor	19
Section 8.8	Compensation	20
Section 8.9	Indemnification	20

ARTICLE IX

MISCELLANEOUS

Section 9.1	Termination	20
Section 9.2	No Assumption of Liability	20
Section 9.3	Notices	20
Section 9.4	Governing Law; Severability	21
Section 9.5	Entire Agreement	21
Section 9.6	Amendments; Waivers	21
Section 9.7	Non-Assignability	21
Section 9.8	No Third Party Rights; Successors and Assigns	22
Section 9.9	Counterparts	22

EXHIBITS

Exhibit A — Notice of Pledge Value
Exhibit B — Certificate for Substituted Collateral
Exhibit C — Certificate for Additional Collateral

COLLATERAL AGREEMENT

COLLATERAL AGREEMENT (this “Agreement”), dated as of October 22, 2009, among David H. Murdock, in his individual capacity and as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended, a trust organized under the laws of the State of California (“Pledgor”), U.S. Bank National Association, a national banking association, as collateral agent hereunder (the “Collateral Agent”) for the benefit of the 2009 Dole Food Automatic Common Exchange Security Trust, a trust organized under the laws of the State of New York under and by virtue of an Amended and Restated Trust Agreement, dated as of October 22, 2009 (the “Trust Agreement”; such trust and the trustees thereof acting in their capacity as such being referred to in this Agreement as “Purchaser”), and Purchaser.

WITNESSETH:

WHEREAS, pursuant to the Forward Purchase Agreement, dated as of October 22, 2009 (the “Contract”), between Pledgor and Purchaser, Pledgor has agreed to sell and Purchaser has agreed to purchase shares of Common Stock, par value $0.001 per share (the “Common Stock”), of Dole Food Company, Inc., a Delaware corporation (the “Company”), subject to the terms and conditions of the Contract;

NOW, THEREFORE, to secure the performance by Pledgor of its obligations under the Contract and to secure the observance and performance of the covenants and agreements contained in this Agreement and in the Contract, the parties, intending to be bound, agree as follows:

ARTICLE I

DEFINITIONS; INTERPRETATION

Section 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:

“Accelerated Portion” has the meaning specified in the Contract.

“Additional Purchase Price” has the meaning specified in the Contract.

“Additional Share Base Amount” has the meaning specified in the Contract.

“Agreement” has the meaning specified in the preamble to this Agreement.

“Authorized Representative” of Pledgor means any trustee or other representative as to whom Pledgor shall have delivered notice to the Collateral Agent that such trustee or other representative is authorized to act hereunder on behalf of Pledgor.

“Business Day” means a day on which the New York Stock Exchange, Inc. is open for trading and that is not a day on which commercial banks in The City of New York are authorized or obligated by law to close.

“Cash Delivery Obligations” means, at any time (A) if no Reorganization Event shall have occurred prior to such time, zero, and (B) from and after any Reorganization Event, the Exchange Rate (as adjusted by any Dilution Adjustment (or successive Dilution Adjustments) that shall have been applied to the Exchange Rate pursuant to Section 6.1 of the Contract at or prior to the Reorganization Event), times the product of: (i) the Firm Share Base Amount plus the Additional Share Base Amount (if any) and (ii) the Transaction Value (as defined in the Contract) of any Merger Consideration other than Marketable Securities delivered in the related Reorganization Event, provided that if the Reorganization Event is a Cash Merger, the Cash Delivery Obligations shall again be zero after Pledgor has delivered the Accelerated Portion to the Purchaser as required under the Contract.

“Cash Merger” has the meaning specified in the Contract.

“Closing Price” has the meaning specified in the Contract.

“Collateral” has the meaning specified in Section 2.1(a).

“Collateral Agent” means U.S. Bank National Association, in its capacity as collateral agent under this Agreement, or its successor in such capacity appointed in accordance with Section 8.5.

“Collateral Event of Default” means, at any time, the occurrence of any of the following: (A) if no U.S. Government Securities shall be pledged as substitute Collateral at such time, failure of the aggregate Market Value of the Collateral to equal or exceed the Pledge Value Requirement; (B) revocation or withdrawal by the Pledgor of the standing instructions described in Section 7.2 of the Contract; (C) if any U.S. Government Securities shall be pledged as substitute Collateral at such time, failure of the Market Value of any U.S. Government Securities pledged at such time (not including any U.S. Government Securities pledged in respect of Cash Delivery Obligations at such time) to have an aggregate Market Value of at least 150% of the Market Value of a number of shares of Common Stock and, from and after any Spin-Off Distribution, of the Marketable Securities distributed in such Spin-Off Distribution (or, from and after any Reorganization Event, the Marketable Securities distributed in such Reorganization Event in lieu of such shares of Common Stock or Marketable Securities) equal in each case to (x) the Maximum Deliverable Number of such securities minus (y) the number of such securities pledged as Collateral hereunder at such time; or (D) from and after any Reorganization Event in which consideration other than Marketable Securities shall have been delivered, failure of the U.S. Government Securities pledged in respect of Cash Delivery Obligations to have an aggregate Market Value at least equal to 105% of the Cash Delivery Obligations at such time, if, in the case of a failure or revocation or withdrawal described in clauses (A), (B), (C) or (D), such failure or revocation or withdrawal shall continue to be in effect at 4:00 p.m., New York City time, on the fifth Business Day following the day on which written notice in respect of such failure shall have been given pursuant to Section 5.5(a).

“Collateral Requirement” means, as of any date and with respect to: (i) any Common Stock, 100%; (ii) any Marketable Securities, 100%; (iii) any U.S. Government Securities pledged in respect of Cash Delivery Obligations, 105%; and (iv) any other U.S. Government Securities, 150%, provided that upon and after any failure to cure an Insufficiency Determination by 4:00 p.m. New York City time on the fifth Business Day following written notice of such Insufficiency Determination as described in Section 5.5(b), the Collateral Requirement relating to any U.S. Government Securities shall be 200%. The portion of any pledged U.S. Government Securities that shall be deemed to be pledged in respect of Cash Delivery Obligations at any time shall be a portion having a Market Value equal to 105% of the Cash Delivery Obligations at such time or, if less, the aggregate Market Value of all U.S. Government Securities pledged at such time.

“Common Stock” has the meaning specified in the recitals to this Agreement.

“Company” has the meaning specified in the recitals to this Agreement.

“Contract” has the meaning specified in the recitals to this Agreement.

“Delivery Date” has the meaning specified in Section 7.1.

“Dilution Adjustment” has the meaning specified in the Contract.

“Distribution Date” has the meaning specified in the Trust Agreement.

“Eligible Collateral” means (i) unless and until a Reorganization Event shall occur, Common Stock and, if a Spin-Off Distribution occurs, the Marketable Securities distributed in such Spin-Off Distribution; (ii) U.S. Government Securities; and (iii) from and after any Reorganization Event, the Marketable Securities distributed in such Reorganization Event; provided, in each case, that Pledgor has good and marketable title to such securities, free of all Liens (other than the Liens created by this Agreement) and Transfer Restrictions and that the Collateral Agent has a valid, first priority perfected security interest therein and first lien thereon; and provided, further, that to the extent the number of shares of Common Stock or Marketable Securities pledged hereunder exceeds at any time the Maximum Deliverable Number of such securities, such excess shares shall not be Eligible Collateral.

“Event of Default” means the occurrence of: (i) an event described in Section 7.1(a) or (b) of the Contract, (ii) a Collateral Event of Default, (iii) a failure by Pledgor to have caused the Collateral to meet the requirements described in Section 4.1(d) on the Exchange Date, or (iv) if a Reorganization Event shall have occurred prior to the Exchange Date, failure by Pledgor to cause to be delivered to Purchaser on the Exchange Date the consideration then required to be delivered pursuant to Section 6.2 of the Contract.

“Exchange Date” has the meaning specified in the Contract.

“Exchange Rate” has the meaning specified in the Contract.

“Firm Purchase Price” has the meaning specified in the Contract.

“Firm Share Base Amount” has the meaning specified in the Contract.

“First Time of Delivery” has the meaning specified in the Contract.

“Indemnity Agreement” means the Indemnity Agreement, dated October 22, 2009 among Seller, U.S. Bank National Association and Purchaser.

“Insufficiency Determination” has the meaning specified in Section 5.5(a).

“Lien” means any lien, mortgage, security interest, pledge, charge, encumbrance or adverse claim of any kind.

“Marketable Securities” has the meaning specified in the Contract.

“Market Value” means, as of any date: (a) with respect to any Common Stock (except as otherwise provided in Section 5.5(b)), the Closing Price of the Common Stock on such date multiplied by the number of shares of such Common Stock; (b) with respect to any U.S. Government Security, the product of (x)(i) the average unit bid price for such security as published on the Trading Day prior to such date in the New York edition of The Wall Street Journal or The New York Times or the average unit bid price set forth on the applicable page of the Bloomberg system, or, if not so published, (ii) the lower bid price quoted (which quotation shall be evidenced in writing) on the Trading Day prior to such date by either of two nationally recognized dealers making a market in such security which are members of the Financial Industry Regulatory Authority, Inc. and (y) the number of such units comprised of the outstanding principal amount of such security; and (c) with respect to any Marketable Securities, the Closing Price of such Marketable Securities on the Trading Day prior to such date multiplied by the number of shares of such Marketable Securities; provided that the “Market Value” of any Collateral that does not constitute Eligible Collateral shall be zero.

“Maximum Deliverable Number” means, on any date, (i) with respect to the Common Stock, the product of the Firm Share Base Amount plus the Additional Share Base Amount (if any), multiplied by the Exchange Rate (as adjusted by each Dilution Adjustment by which the Exchange Rate shall have been adjusted on or prior to such date pursuant to the Dilution Adjustments provided for under Section 6.1 of the Contract); and (ii) with respect to the Marketable Securities of any class or series, the product of (A) the Firm Share Base Amount plus the Additional Share Base Amount (if any) multiplied by (B) the number of Marketable Securities included in the Merger Consideration in the applicable Reorganization Event or distributed in the applicable Spin-Off Distribution for each share of Common Stock, multiplied successively by (x) the Exchange Rate (as adjusted by each Dilution Adjustment by which the Exchange Rate with respect to the Common Stock shall have been multiplied on or prior to the date of such Reorganization Event or Spin-Off Distribution pursuant to the adjustments provided for under Article VI of the Contract), and (y) the Exchange Rate (as adjusted by each Dilution Adjustment by which the Exchange Rate with respect to such Marketable Securities shall have been multiplied on or prior to such date and after the date of such Reorganization Event or Spin-Off Distribution pursuant to the adjustments provided for under Article VI of the Contract).

“Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Pledge Value” means, as of any date, an amount equal to the sum of the aggregate Market Value of each particular type of Collateral, as of such date, in each case divided by the Collateral Requirement for such type of Collateral.

“Pledge Value Requirement” means, as of any date, (a) the aggregate Market Value on such date of the Maximum Deliverable Number of shares of Common Stock on such date or, from and after a Reorganization Event, the Maximum Deliverable Number of the Marketable Securities included in the Merger Consideration in such Reorganization Event plus (b) from and after a Reorganization Event, the Cash Delivery Obligations, plus (c) from and after a Spin-Off Distribution, the Market Value on such date of the Maximum Deliverable Number of the Marketable Securities distributed in such Spin-Off Distribution.

“Pledged Items” means, as of any date, any and all securities, instruments, cash and other property delivered by Pledgor to be held by the Collateral Agent under this Agreement as Collateral, whether or not constituting Eligible Collateral and whether or not then required to be held by the Collateral Agent hereunder.

“Pledgor” has the meaning specified in the preamble to this Agreement.

“Prior Collateral” has the meaning specified in Section 5.2(a).

“Purchaser” has the meaning specified in the preamble to this Agreement.

“Reorganization Event” has the meaning specified in the Contract.

“Responsible Officer” means, when used with respect to the Collateral Agent, any vice president, assistant vice president, assistant treasurer or assistant secretary located in the division or department of the Collateral Agent responsible for performing the obligations of the Collateral Agent under this Agreement.

“Second Time of Delivery” has the meaning specified in the Contract.

“Spin-off Distribution” has the meaning specified in the Contract.

“Trading Day” has the meaning specified in the Contract.

“Transfer Restriction” means, with respect to any item of Collateral, any condition to or restriction on the ability of the holder of such item to sell, assign or otherwise transfer such item of Collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including (i) any requirement that any sale, assignment or other transfer or enforcement of such item of Collateral be consented to or approved by any Person, including the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such item of Collateral, (iii) any requirement to deliver any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such item of Collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such item of Collateral, and (iv) any registration or qualification requirement for such item of Collateral pursuant to any federal or state securities law that has not been satisfied; provided, however, that the required delivery of any legal opinion or assignment from the seller, pledgor, assignor or transferor of such item of Collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute a “Transfer Restriction”.

“Trustee” or “Trustees” means any trustee or trustees of Purchaser named in the Trust Agreement, or any successor as such trustee or trustees.

“UCC” means the Uniform Commercial Code as in effect in the State of New York.

“U.S. Government Securities” means direct obligations of the United States of America that mature on a date that is one year or less from the date such obligations are pledged hereunder, but in any event prior to the Exchange Date then in effect.

Section 1.2 Interpretation.

(c) Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.

(d) Any reference to any statute, regulation or agreement is a reference to such statute, regulation or agreement as supplemented or amended from time to time.

ARTICLE II

THE SECURITY INTERESTS

Section 2.1 Grant of Security Interests. Effective upon and subject to the receipt by Pledgor of the Firm Purchase Price at the First Time of Delivery, in order to secure the performance by Pledgor of its obligations under the Contract and to secure the observance and performance of the covenants and agreements contained in this Agreement and in the Contract:

(a) Security Interests. Pledgor hereby grants, sells, conveys, assigns, transfers and pledges to the Collateral Agent, as agent of and for the benefit of Purchaser, a security interest in and to, and a lien upon and right of set-off against, all of its right, title and interest in, to and under (i) the Pledged Items described in paragraphs (b) and (c); (ii) all additions to and substitutions for such Pledged Items; (iii) all income, products and proceeds and collections received or to be received, or derived or to be derived, now or any time hereafter from or in connection with the Pledged Items; and (iv) all powers and rights now owned or hereafter acquired under or with respect to the Pledged Items (such Pledged Items, additions, substitutions, income, products and proceeds, collections, powers and rights being collectively called the “Collateral”). The Collateral Agent shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourses afforded to the Collateral Agent by this Agreement.

(b) First Time of Delivery. Effective upon and subject to receipt by Pledgor of the Firm Purchase Price, at the First Time of Delivery, Pledgor shall either (1) deliver to the Collateral Agent in pledge hereunder one or more certificates representing in the aggregate at least 24,000,000 shares of Common Stock, registered in the name of the Collateral Agent or its nominee or duly endorsed in blank or accompanied by undated stock powers duly endorsed in blank, or (2) if such shares of Common Stock are not held in certificated form but are held in book-entry form by The Depository Trust Company or any other comparable depositary, transfer such shares of Common Stock to an account of the Collateral Agent or to an account (other than an account of Pledgor) designated by the Collateral Agent with The Depository Trust Company or such other depositary, as applicable.

(c) Second Time of Delivery. Effective upon and subject to the receipt by Pledgor of the Additional Purchase Price at the Second Time of Delivery, Pledgor shall either (1) deliver to the Collateral Agent in pledge hereunder one or more certificates representing in the aggregate at least the Additional Share Base Amount of Common Stock, registered in the name of the Collateral Agent or its nominee or duly endorsed in blank or accompanied by undated stock powers duly endorsed in blank, or (2) if such shares of Common Stock are not held in certificated form but is held in book-entry form by The Depository Trust Company or any other comparable depositary, transfer such shares of Common Stock to an account of the Collateral Agent or to an account (other than an account of Pledgor) designated by the Collateral Agent with The Depository Trust Company or such other depositary, as applicable.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1 Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to the Collateral Agent and Purchaser that:

(a) No Transfer Restrictions. No Transfer Restrictions exist with respect to or otherwise apply to the pledge or assignment of, or transfer by Pledgor of, any items of Collateral to the Collateral Agent hereunder, or the subsequent sale or transfer of such items of Collateral by the Collateral Agent pursuant to the terms of this Agreement.

(b) Title to Collateral; Perfected Security Interest. At the First Time of Delivery, Pledgor will have good and marketable title to the Pledged Items, free of all Liens (other than the Lien created by this Agreement) and Transfer Restrictions. Upon delivery of the Pledged Items pursuant to Sections 2.1(b) and (c), the Collateral Agent will obtain a valid, first priority perfected security interest in, and a first lien upon, such Pledged Items subject to no other Lien. None of the Collateral is or shall be pledged by Pledgor as collateral for any other purpose.

Section 3.2 Representations and Warranties of the Collateral Agent. The Collateral Agent represents and warrants to Pledgor and Purchaser that:

(a) Corporate Existence and Power. The Collateral Agent is a national association, duly organized, validly existing and in good standing under the laws of the United States of America, and has all corporate powers and all governmental licenses, authorizations, consents and approvals governing its banking and fiduciary powers required to enter into, and perform its obligations under, this Agreement.

(b) Authorization and Non-Contravention. The execution, delivery and performance by the Collateral Agent of this Collateral Agreement have been duly authorized by all necessary corporate action on the part of the Collateral Agent (no action by the shareholders of the Collateral Agent being required) and do not and will not violate, contravene or constitute a default under any provision of applicable banking or fiduciary law or regulation or of the charter or by-laws of the Collateral Agent or of any material agreement, judgment, injunction, order, decree or other instrument binding upon the Collateral Agent.

(c) Binding Effect. This Agreement constitutes a valid and binding agreement of the Collateral Agent enforceable against the Collateral Agent in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity.

ARTICLE IV

CERTAIN COVENANTS OF PLEDGOR

Section 4.1 Certain Covenants of Pledgor. Pledgor agrees that, so long as any of its obligations under the Contract remain outstanding:

(a) Title to Collateral. Pledgor shall at all times hereafter have and maintain good and marketable title to the Collateral pledged by it, free of all Liens (other than the Lien created by this Agreement) and Transfer Restrictions, and, subject to the terms of this Agreement, will at all times hereafter have and maintain good, right and lawful authority to assign, transfer and pledge such Collateral and all such additions to such Collateral and substitutions for such Collateral under this Agreement.

(b) Pledge Value Requirement. Pledgor shall cause the aggregate Pledge Value of the Collateral to be equal to or greater than the Pledge Value Requirement at all times, and shall pledge additional Collateral in the manner described in Section 5.4 as necessary to cause such requirement to be met.

(c) Pledge Upon Reorganization Event. Upon the occurrence of a Reorganization Event, Pledgor shall immediately cause to be delivered to the Collateral Agent, in the manner provided in Section 5.4: (i) cash in an amount equal to 100% of Pledgor’s Cash Delivery Obligations (or U.S. Government Securities having an aggregate Market Value when pledged and at daily mark-to-market valuations thereafter at least equal to 105% of the Cash Delivery Obligations); and (ii) Marketable Securities in an amount at least equal to the Maximum Deliverable Number of such securities, or, at Pledgor’s election, U.S. Government Securities having an aggregate Market Value when pledged and at daily mark-to-market valuations thereafter at least equal to 150% of such Maximum Deliverable Number of Marketable Securities, in each case to be held as substitute Collateral hereunder.

(d) Pledge Upon Spin-Off Distribution. Upon the occurrence of a Spin-Off Distribution, Pledgor shall immediately cause to be delivered to the Collateral Agent, in the manner provided in Section 5.4, Marketable Securities in an amount at least equal to the Maximum Deliverable Number of such securities, or, at Pledgor’s election, U.S. Government Securities having an aggregate Market Value at least equal to 150% of such Maximum Deliverable Number of Marketable Securities, in each case to be held as additional Collateral hereunder.

(e) Pledge of Contract Consideration. Notwithstanding Pledgor’s right to substitute Collateral pursuant to Section 5.2, Pledgor shall cause the Collateral to include, on the Exchange Date, (i) unless a Reorganization Event shall have occurred, a number of shares of Common Stock at least equal to the number of shares of Common Stock (and, if a Spin-Off Distribution has occurred, the number of Marketable Securities distributed in such Spin-Off Distribution) required to be delivered under the Contract on the Exchange Date, and (ii) if a Reorganization Event has occurred, any Marketable Securities or other property required to be delivered under the Contract on the Exchange Date.

(f) Pledge Upon Collateral Event of Default After Dilution Adjustment. If a Dilution Adjustment is effected pursuant to Section 6.1 of the Contract and a Collateral Event of Default occurs, to the extent not already in the possession of the Collateral Agent, the Pledgor shall immediately cause to be delivered to the Collateral Agent, in the manner provided in Section 5.4, any and all property distributed by the Company that resulted in such Dilution Adjustment, in each case to be held as additional Collateral hereunder.

(g) Further Assurances. Pledgor shall, at its expense and in such manner and form as Purchaser or the Collateral Agent may reasonably require, give, execute, deliver, file and record any financing statement, notice, instrument, document, agreement or other papers that may be necessary or desirable in order to create, preserve, perfect, substantiate or validate any security interest granted pursuant to this Agreement or to enable the Collateral Agent to exercise and enforce its rights and the rights of Purchaser hereunder with respect to such security interest. To the extent permitted by applicable law, Pledgor hereby authorizes the Collateral Agent to execute and file, in the name of Pledgor or otherwise, UCC financing or continuation statements (which may be carbon, photographic, photostatic or other reproductions of this Agreement or of a financing statement relating to this Agreement) which the Collateral Agent may reasonably deem necessary or appropriate to further perfect, or maintain the perfection of, the security interests granted hereby.

(h) Certain Notices. The Pledgor agrees, reasonably promptly in advance of the consummation of a Reorganization Event, Spin-Off Distribution or event or occurrence giving rise to a Dilution Adjustment, to provide to the Collateral Agent notice thereof in reasonable detail of which Pledgor is aware.

ARTICLE V

ADMINISTRATION OF THE COLLATERAL AND
VALUATION OF THE SECURITIES

Section 5.1 Valuation of Collateral. The Collateral Agent shall determine as of 4:00 p.m., New York City time, on each Business Day whether the Pledge Value is at least equal to the Pledge Value Requirement and whether an Insufficiency Determination or Collateral Event of Default shall have occurred and, from and after any Reorganization Event, Spin-Off Distribution or substitution of U.S. Government Securities for pledged shares of Common Stock or Marketable Securities pursuant to Section 5.2, shall determine the Pledge Value and the Pledge Value Requirement on each Business Day and shall provide written notice of the Pledge Value and the Pledge Value Requirement, in the form of Exhibit A, to Pledgor.

Section 5.2 Substitution of Collateral. Pledgor may substitute Collateral in accordance with the following provisions:

(a) Unless an Event of Default or a failure by Pledgor to meet any of its obligations under Article IV or V has occurred and is continuing, Pledgor shall have the right at any time and from time to time to deposit Eligible Collateral with the Collateral Agent in substitution for Pledged Items previously deposited hereunder (“Prior Collateral”) and to obtain the release of such Prior Collateral from the Lien created by this Agreement.

(b) If Pledgor wishes to deposit Eligible Collateral with the Collateral Agent in substitution for Prior Collateral, it shall (i) give written notice from an Authorized Representative to the Collateral Agent identifying the Prior Collateral to be released from the Lien created by this Agreement, (ii) deliver to the Collateral Agent concurrently with such Eligible Collateral a certificate of Pledgor substantially in the form of Exhibit B and dated the date of such delivery, (A) identifying the items of Eligible Collateral being substituted for the Prior Collateral and the Prior Collateral that is to be transferred to Pledgor and (B) certifying that with respect to such items of additional Pledged Collateral the representations and warranties contained in Exhibit B are true and correct on and as of the date of such certificate, and (iii) deliver to the Collateral Agent concurrently with such Eligible Collateral an opinion, dated the date of such delivery, of counsel addressed to the Collateral Agent confirming the representations contained in the first sentence of paragraph 3(a) of Exhibit B insofar as it relates to securities laws and in the second sentence of paragraph 3(b) of Exhibit B. Pledgor hereby covenants and agrees to pay all fees, taxes and expenses related to the substitution of the Collateral and take all actions required under Section 5.4 and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority perfected security interest in, and a first lien upon, such Eligible Collateral deposited with the Collateral Agent in substitution for Prior Collateral.

(c) No such substitution shall be made unless and until the Collateral Agent shall have determined that the aggregate Pledge Value of all of the Collateral at the time of such proposed substitution, after giving effect to the proposed substitution, shall at least equal the Pledge Value Requirement.

Section 5.3 Additional Collateral. Pledgor may pledge additional Collateral hereunder at any time and shall pledge additional collateral when required under this Agreement. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver (i) a certificate of Pledgor substantially in the form of Exhibit C, signed by an Authorized Representative, and dated the date of such delivery, (A) identifying the items of additional Eligible Collateral being pledged and (B) certifying that with respect to such items of additional Pledged Collateral the representations and warranties contained in Exhibit C are true and correct on and as of the date of such certificate, and (ii) an opinion, dated the date of such delivery, of counsel addressed to the Collateral Agent confirming the representations contained in the first sentence of paragraph 2(a) of Exhibit C insofar as it relates to securities laws and in the second sentence of paragraph 2(b) of Exhibit C. Pledgor hereby covenants and agrees to take all actions required under Section 5.4 and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority perfected security interest in, and a first lien upon, such additional Eligible Collateral.

Section 5.4 Delivery of Collateral. Pledgor shall deliver the Collateral to the Collateral Agent in accordance with the following provisions:

(a) Pledged Common Stock. In the case of Collateral consisting of shares of Common Stock, by either (1) delivery to the Collateral Agent of one or more certificates representing such shares of Common Stock, registered in the name of the Collateral Agent or its nominee or duly endorsed in blank or accompanied by undated stock powers duly endorsed in blank, or (2) if such shares of Common Stock are not held in certificated form but are held in book-entry form by The Depository Trust Company or any other comparable depositary, transfer of such shares of Common Stock to an account of the Collateral Agent or to an account (other than an account of Pledgor) designated by the Collateral Agent with The Depository Trust Company or such other depositary, as applicable;

(b) Pledged U.S. Government Securities. In the case of Collateral consisting of U.S. Government Securities, by transfer of such U.S. Government Securities through the Book Entry System of the Federal Reserve System to the account of the Collateral Agent or to an account (other than an account of Pledgor) designated by the Collateral Agent; and

(c) Pledged Marketable Securities. In the case of Collateral consisting of Marketable Securities, by either (1) delivery of certificates evidencing such Marketable Securities, registered in the name of the Collateral Agent or its nominee or duly endorsed in blank or accompanied by stock powers duly executed in blank, or (2) if such Marketable Securities are not held in certificated form but are held in book-entry form by The Depository Trust Company or any other comparable depositary, by transfer to an account of the Collateral Agent or to an account (other than an account of Pledgor) designated by the Collateral Agent with The Depository Trust Company or such other depositary, as applicable. Each such delivery of Marketable Securities shall be accompanied by an opinion of counsel satisfactory to the Collateral Agent that the Collateral Agent has obtained a valid, first priority perfected security interest in, and a first lien upon, such Marketable Securities.

(d) Delivery of Other Property. In the case of Collateral consisting of property other than Common Stock, U.S. Government Securities or Marketable Securities, by any and all action necessary for the Collateral Agent to obtain a valid, first priority perfected security interest in, and a first lien upon, such property. Each such delivery of such property shall be accompanied by an opinion of counsel reasonably satisfactory to the Collateral Agent that the Collateral Agent has obtained a valid, first priority perfected security interest in, and a first lien upon, such property. For the avoidance of doubt, no such other property shall constitute Eligible Collateral.

Upon delivery of any Pledged Item under this Agreement, the Collateral Agent shall examine such Pledged Item and any opinions and certificates and other instruments delivered pursuant to Sections 5.2 or 5.3, this Section 5.4 or otherwise pursuant to the terms of this Agreement in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral. Pledgor hereby designates the Collateral Agent as the Person in whose name any Collateral held in book-entry form in the Federal Reserve System shall be registered.

Section 5.5 Insufficiency Determination.

(a) If as of 4:00 p.m., New York City time, on any Business Day the Collateral Agent determines that the aggregate Pledge Value of the Collateral is less than the Pledge Value Requirement (any such determination, an “Insufficiency Determination”), the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Representative of Pledgor followed by a written confirmation of such call.

(b) If, by 4:00 p.m., New York City time on the fifth Business Day following the day on which written notice shall have been given pursuant to the preceding paragraph 5.5(a), Pledgor shall have failed to deliver, in the manner set forth in Sections 5.3 and 5.4, sufficient additional Eligible Collateral so that, after giving effect to such delivery, the aggregate Pledge Value of the Collateral, as of such next business day, is at least equal to the Pledge Value Requirement, then (x) the Collateral Requirement with respect to any U.S. Government Securities pledged hereunder (other than in respect of Cash Delivery Obligations) shall be increased from 150% to 200%, and (y) unless a Collateral Event of Default shall have occurred and be continuing, the Collateral Agent shall:

(i) commence sales, in the manner described in Section 5.5(c), of such portion of the Collateral consisting of U.S. Government Securities as may be required to be sold in order to generate proceeds sufficient to purchase shares of Common Stock or, after a Reorganization Event or Spin-Off Distribution, Marketable Securities of the applicable type as described in the following clause (ii); and

(ii) commence purchases, in the manner described in Section 5.5(c), of shares of Common Stock or, after a Reorganization Event or Spin-Off Distribution, Marketable Securities of the applicable type, in an amount sufficient to cause the aggregate Pledge Value of the Collateral to be at least equal to the Pledge Value Requirement.

Notwithstanding the foregoing, the Collateral Agent shall discontinue sales and purchases pursuant to the preceding clauses (i) and (ii), respectively, if at any time a Collateral Event of Default shall have occurred and be continuing. The Collateral Agent shall determine the Market Value and the Pledge Value of the Collateral after each purchase of shares of Common Stock or Marketable Securities pursuant to the preceding clause (ii) in order to determine whether the Pledge Value Requirement is met and whether a Collateral Event of Default has occurred. Solely for purposes of such calculation, the Market Value of the shares of Common Stock or Marketable Securities shall be: (A) the most recent sales price as reported in the composite transactions for the principal securities exchange on which the shares of Common Stock or Marketable Securities, as the case may be, are then listed or, if such securities are not so listed, the last quoted ask price for such securities as reported by Pink OTC Markets Inc. or a similar organization; or (B) if higher, in the case of Common Stock, the most recent available Closing Price.

(c) Collateral sold and shares of Common Stock or Marketable Securities purchased by the Collateral Agent pursuant to the preceding Sections 5.5(a) and (b) may be sold and purchased on any securities exchange or in any over-the-counter market or in any private purchase transaction, and at such price or prices, in each case as the Collateral Agent may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents, pay all fees and transfer taxes and take such other action as the Collateral Agent deems necessary or advisable in order that any such sales and purchases may be made in compliance with law.

Section 5.6 Release of Excess Collateral. If on any Business Day the Collateral Agent determines that the aggregate Pledge Value of Pledgor’s Eligible Collateral exceeds the Pledge Value Requirement and no Event of Default or failure by Pledgor to meet any of its obligations under Articles IV or V has occurred and is continuing, Pledgor may obtain the release from the Lien created by this Agreement of any Collateral having an aggregate Pledge Value on such Business Day less than or equal to such excess, upon delivery to the Collateral Agent of a written notice from an Authorized Representative of Pledgor indicating the items of Collateral to be released. Such Collateral shall be released only after the Collateral Agent shall have determined that the aggregate Pledge Value of all of the Collateral remaining after such release as determined on such Business Day is at least equal to the Pledge Value Requirement.

Section 5.7 Delivery of Contract Consideration. On the Exchange Date, unless (i) a Reorganization Event shall have occurred prior to the Exchange Date or (ii) if permitted under the Contract, Seller shall have elected the Cash Settlement Alternative pursuant to Section 2.3(d) of the Contract and made the cash payment required by that Section, the Collateral Agent shall deliver to Purchaser from the shares of Common Stock and, if a Spin-Off Distribution has occurred, Marketable Securities then held by it hereunder representing the number of shares of Common Stock and Marketable Securities that were distributed in such Spin-Off Distribution then required to be delivered by Pledgor under the Contract. If a Reorganization Event shall have occurred prior to the Exchange Date, then, (A) if so instructed by Pledgor by the close of business on the Business Day preceding the Exchange Date, the Collateral Agent shall deliver to Purchaser, to the extent Marketable Securities are to be delivered on such date under Section 6.2 of the Contract, the Marketable Securities then held by the Collateral Agent hereunder; and (B) if such Reorganization Event is a Cash Merger, the Collateral Agent shall deliver to Purchaser all cash or other assets then held by the Collateral Agent and required to be delivered under the Contract at the time when such delivery is required to be made under the Contract. Upon such delivery, Purchaser shall hold such shares of Common Stock or Marketable Securities, cash or other property, as the case may be, absolutely and free from any claim or right whatsoever. If directed by the Trust upon Seller’s transfer of Securities to the Trust, free and clear of any Liens and Transfer Restrictions, for cancellation, pursuant to Section 2.3(e) of the Contract, the Collateral Agent shall release to the Pledgor the Collateral associated with the cancelled Securities and thereafter the Maximum Deliverable Number hereunder shall be adjusted accordingly.

Section 5.8 Investment of Cash Collateral. The Collateral Agent shall invest any cash received by it pursuant to Section 6.2 of the Contract in U.S. Government Securities maturing before November 1, 2012 as directed by the Managing Trustee.

ARTICLE VI

INCOME AND VOTING RIGHTS ON COLLATERAL

Section 6.1 Income on Collateral. Unless an Event of Default or failure by Pledgor to meet any of its obligations under Article IV or V has occurred and is continuing, Pledgor shall be entitled to receive for its own account all dividends, interest and, if any, principal and premium relating to all of the Collateral if permitted and in accordance with the requirements of Section 5.6. The Collateral Agent agrees to remit to Pledgor on the Business Day received or the first Business Day thereafter all such payments received by it. If an Event of Default or failure by Pledgor to meet any of its obligations under Article IV or V has occurred and is continuing, all such payments made or accrued after and during the continuance of such default or failure shall be retained by the Collateral Agent, and any such payments which are received by Pledgor shall be received in trust for the benefit of Purchaser, shall be segregated from other funds of Pledgor and shall forthwith be paid over to the Collateral Agent. Any such payments so retained by, or paid over to, the Collateral Agent shall be held by the Collateral Agent as Collateral hereunder.

Section 6.2 Voting of Collateral. Unless an Event of Default has occurred and is continuing, Pledgor shall have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to the Collateral, and the Collateral Agent shall, upon receiving a written request from Pledgor, deliver to Pledgor or as specified in such request such proxies, powers of attorney, consents, ratifications and waivers in respect of any of the Collateral which is registered in the name of the Collateral Agent or its nominee as shall be specified in such request and be in form and substance satisfactory to the Collateral Agent. If an Event of Default shall have occurred and be continuing, the Collateral Agent shall have the right to the extent permitted by law, and Pledgor shall take all such action as may be necessary or appropriate to give effect to such right, to vote and to give consents, ratifications and waivers, and take any other action with respect to any or all of the Collateral with the same force and effect as if the Collateral Agent were the absolute and sole owner of the Collateral and, in such event, shall take any such actions in accordance with written instructions of the Managing Trustee.

ARTICLE VII

REMEDIES UPON EVENTS OF DEFAULT

Section 7.1 Rights of Secured Party. If any Event of Default shall have occurred and be continuing, the Collateral Agent may exercise on behalf of Purchaser all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as provided in this Agreement or as may be required by mandatory provisions of law, shall: (i) deliver all Collateral consisting of shares of Common Stock or Marketable Securities (but not, in either case, in excess of the number of shares deliverable under the Contract at such time) or other property to Purchaser on the date of such Event of Default (in either case, the “Delivery Date”), whereupon Purchaser shall hold such shares of Common Stock or Marketable Securities or other property absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor which may be waived, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal which it has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Contract, sell all of the remaining Collateral, or such lesser portion of the remaining Collateral as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Contract, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as the Collateral Agent may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sales may be made with the least amount of costs and taxes and in compliance with law. Upon any such sale the Collateral Agent shall have the right to deliver, assign and transfer the Collateral so sold to the purchaser of such Collateral. Each purchaser at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor which may be waived, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal which it has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Article 9 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion of such Collateral so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obligated to make any such sale pursuant to any such notice. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser of such Collateral, but the Collateral Agent shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Collateral Agent, instead of exercising the power of sale conferred upon it in this Agreement, may proceed by a suit or suits at law or in equity to foreclose the security interests and sell the Collateral, or any portion of such Collateral, under a judgment or decree of a court or courts of competent jurisdiction.

Section 7.2 Power of Attorney. Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, the Collateral Agent is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale and instruments of assignment, transfer or conveyance of the property thus delivered or sold. For that purpose the Collateral Agent may execute all such documents and instruments. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms all that its attorneys acting under such power, or such attorneys’ successors or agents, shall lawfully do by virtue of this Agreement. If so requested by the Collateral Agent, by the Trustees or by any purchaser of the Collateral or a portion of the Collateral, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to the Collateral Agent, to the Trustees or to such purchaser or purchasers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance of transfer and releases as may be designated in any such request.

Section 7.3 Application of Collateral and Proceeds. In the case of an Event of Default, the Collateral Agent may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any one time, as the Collateral Agent shall determine in its sole discretion subject to the foregoing provisions of this Article VII. The proceeds of any sale of, or other realization upon, or other receipt from, any such Collateral shall be applied by the Collateral Agent in the following order of priorities: first, to the payment to the Collateral Agent of the expenses of such sale or other realization, including reasonable compensation to the Collateral Agent and its agents and counsel, and all expenses, liabilities and advances incurred or made by the Collateral Agent in connection therewith, including brokerage fees in connection with the sale by the Collateral Agent of any Pledged Item; second, to the payment to Purchaser of an amount equal to: (A) the aggregate Market Value of a number of shares of Common Stock and, if a Spin-Off Distribution has occurred, Marketable Securities distributed in such Spin-Off Distribution equal to (1) the number of shares of Common Stock or Marketable Securities, as the case may be, required to be delivered under the Contract on the Delivery Date minus (2) the number of shares of Common Stock or Marketable Securities, as the case may be, delivered by the Collateral Agent to Purchaser on the Delivery Date as described above; or (B) from and after a Reorganization Event, the sum of (1) the Cash Delivery Obligations on the Delivery Date and (2) the aggregate Market Value on the Delivery Date of a number of Marketable Securities distributed in such Reorganization Event equal to (x) the number of such Marketable Securities permitted to be delivered on the Delivery Date under Section 6.2 of the Contract minus (y) the number of such Marketable Securities delivered by the Collateral Agent to Purchaser on the Delivery Date as described above; together with, in either of cases (A) and (B), any amounts due to Purchaser from Pledgor pursuant to Section 2.4(i)(ii) of the Trust Agreement; and finally, if all of the obligations of Pledgor hereunder and under the Contract have been fully discharged or sufficient funds have been set aside by the Collateral Agent at the request of Pledgor for the discharge of such obligations, any remaining proceeds shall be released to Pledgor.

ARTICLE VIII

THE COLLATERAL AGENT

Section 8.1 Conditions to Duties of the Collateral Agent. The Collateral Agent accepts its duties and responsibilities hereunder as agent for Purchaser, on and subject to the following terms and conditions:

(a) Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth in this Agreement and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Agreement against the Collateral Agent. No provision of this Agreement shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, bad faith, wilful misconduct or reckless disregard of its duties. In performing its duties, the following shall apply:

(i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.

(ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Agreement or (ii) in accordance with any direction or request of the Trustees.

(iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.

(iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.

(v) No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance of the preceding sentence, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.

(vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the Collateral or (ii) the income or other distributions thereon.

(viii) Unless and until the Collateral Agent shall have received notice from Pledgor, Purchaser or any other Person, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral.

The Collateral Agent shall not be responsible for the correctness of the recitals and statements in this Agreement that are made by Pledgor or for any statement or certificate delivered by Pledgor pursuant to this Agreement, provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral. Except as specifically provided in this Agreement, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Contract or the Lien on the Collateral purported to be created hereby.

(b) Knowledge. The Collateral Agent shall not be deemed to have knowledge of any Event of Default (except a Collateral Event of Default), unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge of such Event of Default or the Collateral Agent shall have received written notice, delivered in accordance with Section 9.3, of such Event of Default. The Collateral Agent shall not be deemed to have knowledge of any Spin-Off Distribution, Reorganization Event or Dilution Adjustment unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge of such event or the Collateral Agent shall have received written notice.

(c) Following an Event of Default by Pledgor, the Collateral Agent shall exercise such remedies as provided in Article VII, Section 6.2 and as permitted at law in accordance with the written instructions of the Managing Trustee.

Section 8.2 Merger. Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become the successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties to this Agreement, anything in this Agreement to the contrary notwithstanding.

Section 8.3 Resignation. Subject to Section 8.5, the Collateral Agent and any successor Collateral Agent may at any time resign by giving 60 days’ written notice by registered or certified mail to Pledgor and notice to Purchaser in accordance with the provisions of Section 9.3.

Section 8.4 Removal.

(a) Subject to Section 8.5, the Collateral Agent may be removed at any time by an instrument or concurrent instruments in writing delivered to the Collateral Agent and to Pledgor and signed by Purchaser.

(b) Subject to Section 8.5, the Collateral Agent shall be removed immediately upon (i) termination of the Trust Agreement, (ii) termination of the Administration Agreement (as defined in the Trust Agreement), (iii) termination of the Paying Agent Agreement (as defined in the Trust Agreement), (iv) termination of the Custodian Agreement (as defined in the Trust Agreement), or the resignation or removal of the Administrator, the Paying Agent or the Custodian (in each case as defined in the Trust Agreement).

Section 8.5 Effectiveness of Resignation or Removal. No resignation or removal of the Collateral Agent shall be effective until a successor Collateral Agent shall have been appointed and shall have accepted the duties of the Collateral Agent. If, within 30 days after notice by the Collateral Agent to the Trust or by the Trust to the Collateral Agent of any such resignation or removal, no successor Collateral Agent shall have been selected and accepted the duties of the Collateral Agent, the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a successor Collateral Agent.

Section 8.6 Appointment of Successor.

(a) If the Collateral Agent hereunder shall resign or be removed, or be dissolved or shall be in the course of dissolution or liquidation or otherwise become incapable of action hereunder, or if it shall be taken under the control of any public officer or officers or of a receiver appointed by a court, a successor may be appointed by Purchaser by an instrument or concurrent instruments in writing signed by Purchaser or by its attorneys in fact duly authorized. A copy of such instrument or concurrent instruments shall be sent by registered mail to Pledgor.

(b) Every such temporary or permanent successor Collateral Agent appointed pursuant to the provisions of this Agreement shall be a trust company or bank in good standing, having a reported capital, surplus and retained earnings of not less than $100,000,000 and capable of holding the Collateral in the State of New York, if there be such an institution willing, qualified and able to accept the duties of the Collateral Agent hereunder upon customary terms.

Section 8.7 Acceptance by Successor. Every temporary or permanent successor Collateral Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to Pledgor and Purchaser an instrument in writing accepting such appointment hereunder, whereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, duties and obligations of its predecessors. Such predecessor shall, nevertheless, on the written request of its successor or Pledgor, execute and deliver an instrument transferring to such successor all the estates, properties, rights and powers of such predecessor hereunder. Every predecessor Collateral Agent shall deliver all Collateral held by it as the Collateral Agent hereunder to its successor. Should any instrument in writing from Pledgor be required by a successor Collateral Agent for more fully and certainly vesting in such successor the estates, properties, rights, powers, duties and obligations hereby vested or intended to be vested in the predecessor, any and all such instruments in writing shall, at the request of the temporary or permanent successor Collateral Agent, be forthwith executed, acknowledged and delivered by Pledgor.

Section 8.8 Compensation. For services to be rendered by the Collateral Agent pursuant to this Agreement, the Administrator shall receive only such fees and expenses as shall be paid to it pursuant to the terms of the Indemnity Agreement and shall have no recourse to the assets of Purchaser for the payment of any such amounts.

Section 8.9 Indemnification. The Trust shall indemnify and hold the Collateral Agent, its agents, servants, officers, employees and directors, harmless from and against any loss, damages, cost or expense (including the costs of investigation, preparation for and defense of legal and/or administrative proceedings related to a claim against it and reasonable attorneys’ fees and disbursements), liability or claim incurred by reason of any inaccuracy in information furnished to the Collateral Agent by the Trust or the Pledgor, or any act or omission in the course of, connected with or arising out of any services to be rendered hereunder, provided that the Collateral Agent shall not be indemnified and held harmless from and against any such loss, damages, cost, expense, liability or claim incurred by reason of its willful misfeasance, bad faith or gross negligence in the performance of its duties, or its reckless disregard of its duties and obligations hereunder. Such indemnity shall survive the resignation, removal or discharge of the Collateral Agent and the termination of this Agreement.

ARTICLE IX

MISCELLANEOUS

Section 9.1 Termination. This Agreement and the rights hereby granted by Pledgor in the Collateral shall cease, terminate and be void upon fulfillment of all of the obligations of Pledgor under the Contract, and Pledgor shall have no further liability hereunder upon such termination. Any Collateral remaining at the time of such termination (including any shares of Common Stock held following Seller’s election of the Cash Settlement Alternative and payment in respect of the Cash Settlement Alternative pursuant to the Contract), shall be fully released and discharged from the Lien created by this Agreement and delivered to Pledgor by the Collateral Agent, all at the expense of Pledgor.

Section 9.2 No Assumption of Liability. By executing this Agreement, none of the Trustees assumes any personal liability under this Agreement.

Section 9.3 Notices.

(a) All notices and other communications provided for in this Agreement, unless otherwise specified, shall be in writing and shall be given at the addresses set forth in the following sentence or at such other addresses as may be designated by notice duly given in accordance with this Section 9.3 to each other party to this Agreement. Until such notice is given, (i) notices to Pledgor shall be directed to it at 10900 Wilshire Blvd., 1600, Los Angeles, CA 90024, Telecopier No. (310) 824-7756, Attention: David H. Murdock; (ii) notices to the Collateral Agent shall be directed to it at U.S. Bank National Association, Corporate Trust Services, 633 West 5th Street, 24th Floor, [***], Los Angeles, CA 90071, Telecopier No. (213) 615-6197, Attention: 2009 Dole Food Automatic Common Exchange Security Trust; and (iii) notices to Purchaser shall be directed to the Trustees at 850 Library Avenue, Suite 204, Newark, Delaware 19711, Telecopier No. (302) 738-7210, with a copy to the Administrator at U.S. Bank National Association, Corporate Trust Services, 633 West 5th Street, 24th Floor, [***], Los Angeles, CA 90071, Telecopier No. (213) 615-6197, Attention: 2009 Dole Food Automatic Common Exchange Security Trust.

(b) Each notice given pursuant to Section 9.3(a) shall be effective (i) if sent by certified mail (return receipt requested), 72 hours after being deposited in the United States mail, postage prepaid; (ii) if given by telex or telecopier, when such telex or telecopied notice is transmitted (with electronic confirmation of transmission or verbal confirmation of receipt); or (iii) if given by any other means, when delivered at the address specified in this Section 9.3.

Section 9.4 Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of New York; provided that as to Collateral located in any jurisdiction other than the State of New York, the Collateral Agent on behalf of Purchaser shall have all of the rights to which a secured party is entitled under the laws of such other jurisdiction. To the extent permitted by law, the unenforceability or invalidity of any provision or provisions of this Agreement shall not render any other provision or provisions contained in this Agreement unenforceable or invalid.

Section 9.5 Entire Agreement. Except as expressly set forth in this Agreement, this Agreement constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, among the parties with respect to the subject matter of this Agreement.

Section 9.6 Amendments; Waivers. Any provision of this Agreement may be amended or waived (either generally or in a particular instance and either retrospectively or prospectively) if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Pledgor, the Collateral Agent and Purchaser or, in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver of such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 9.7 Non-Assignability. This Agreement and the rights and obligations of the parties under this Agreement may not be assigned or delegated by either party without the prior written consent of the other party (except, with respect to the Collateral Agent, to a successor Collateral Agent appointed pursuant to Section 8.6), and any purported assignment without such consent shall be void.

Section 9.8 No Third Party Rights; Successors and Assigns. This Agreement is not intended and shall not be construed to create any rights in any person other than Pledgor, the Collateral Agent and Purchaser and their respective successors and assigns and no person shall assert any rights as third party beneficiary under this Agreement. Whenever any of the parties to this Agreement is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and agreements in this Agreement contained by or on behalf of Pledgor, the Collateral Agent and Purchaser shall bind, and inure to the benefit of, their respective successors and assigns whether so expressed or not, and shall be enforceable by and inure to the benefit of Purchaser and its successors and assigns.

Section 9.9 Counterparts. This Agreement may be executed, acknowledged and delivered in any number of counterparts, each of which shall be an original, but all of which shall constitute a single agreement, with the same effect as if the signatures on each such counterpart were upon the same instrument.

IN WITNESS WHEREOF, the parties have caused this Collateral Agreement to be duly executed and delivered as of the first date set forth above.


	THE COLLATERAL AGENT: U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
	By:
		Name:
		Title:

	PURCHASER: 2009 DOLE FOOD AUTOMATIC COMMON EXCHANGE SECURITY TRUST
	By:
		Donald J. Puglisi, as Trustee



	By:
		William R. Latham, III, as Trustee



	By:
		James B. O’Neill, as Trustee

[Signature Page to Collateral Agreement]


PLEDGOR: DAVID H. MURDOCK, in his individual capacity and as trustee of the DAVID H. MURDOCK LIVING TRUST dated May 28, 1986, as amended
By:
	Name:	David H. Murdock

Exhibit A
to Collateral Agreement

NOTICE OF PLEDGE VALUE

To:

DAVID H. MURDOCK, in his individual capacity and as trustee of the DAVID H. MURDOCK LIVING TRUST dated May 28, 1986, as amended, Telecopier No.

U.S. Bank National Association, as Collateral Agent (the “Collateral Agent”) under the Collateral Agreement, dated as of October 22, 2009 (the “Collateral Agreement”), among you, as Pledgor, the Collateral Agent and the 2009 Dole Food Automatic Common Exchange Security Trust, hereby notifies you, pursuant to Section 5.1 of the Collateral Agreement, that as of 4:00 p.m. New York City time on , :

1. The Pledge Value was $ ; and

2. The Pledge Value Requirement was $ .

Capitalized terms not otherwise defined in this Notice have the respective meanings specified in the Collateral Agreement.


	U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
	By:
		Name:
		Title:

Exhibit B
to Collateral Agreement

CERTIFICATE FOR SUBSTITUTED COLLATERAL

The undersigned, David H. Murdock, as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended (the “Pledgor”), hereby certifies, pursuant to Section 5.2(b) of the Collateral Agreement, dated as of October 22, 2009 (the “Collateral Agreement”), among Pledgor, U.S. Bank National Association, as Collateral Agent, and the 2009 Dole Food Automatic Common Exchange Security Trust, that:

1. Pledgor is delivering the following securities to the Collateral Agent to be held by the Collateral Agent as substituted Collateral (the “Substituted Collateral”):

[INSERT DESCRIPTION OF SUBSTITUTE COLLATERAL]

2. Pledgor requests that the Collateral Agent transfer to Pledgor the following Prior Collateral, pursuant to Section 5.2 of the Collateral Agreement:

[INSERT DESCRIPTION OF PRIOR COLLATERAL]

3. Pledgor hereby represents and warrants to the Collateral Agent and Purchaser that:

(a) Consents to Transfer. No Transfer Restrictions exist with respect to or otherwise apply to the pledge or assignment of, or transfer by Pledgor of, any items of Substituted Collateral to the Collateral Agent under the Collateral Agreement, or the subsequent sale or transfer of such items of Substituted Collateral by the Collateral Agent pursuant to the terms of the Collateral Agreement.

(b) Title to Collateral; Perfected Security Interest. Pledgor has good and marketable title to the Substituted Collateral, free of all Liens (other than the Lien created by the Collateral Agreement) and Transfer Restrictions and has good, right and lawful authority to assign, transfer and pledge such Substitute Collateral under the Collateral Agreement. Upon delivery of the Substituted Collateral to the Collateral Agent under the Collateral Agent, the Collateral Agent will obtain a valid, first priority perfected security interest in, and a first lien upon, such Substituted Collateral subject to no other Lien. None of such Substituted Collateral is or shall be pledged by Pledgor as collateral for any other purpose.

This Certificate may be relied upon by Purchaser as fully and to the same extent as if this Certificate had been specifically addressed to Purchaser. Capitalized terms not otherwise defined Certificate have the respective meanings specified in the Collateral Agreement.

IN WITNESS WHEREOF, the undersigned has executed this Certificate this day of , .


DAVID H. MURDOCK, in his individual capacity and as trustee of the DAVID H. MURDOCK LIVING TRUST dated May 28, 1986, as amended
By:
	Name:	David H. Murdock

Exhibit C
to Collateral Agreement

CERTIFICATE FOR ADDITIONAL COLLATERAL

The undersigned, David H. Murdock, as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended (the “Pledgor”), hereby certifies, pursuant to Section 5.3 of the Collateral Agreement, dated as of October 22, 2009 (the “Collateral Agreement”), among Pledgor, U.S. Bank National Association, as Collateral Agent, and the 2009 Dole Food Automatic Common Exchange Security Trust, that:

1. Pledgor is delivering the following securities to the Collateral Agent to be held by the Collateral Agent as additional Collateral (the “Additional Collateral”):

[INSERT DESCRIPTION OF ADDITIONAL COLLATERAL]

2. Pledgor hereby represents and warrants to the Collateral Agent and Purchaser that:

(a) Consents to Transfer. No Transfer Restrictions exist with respect to or otherwise apply to the pledge or assignment of, or transfer by Pledgor of, any items of Additional Collateral to the Collateral Agent under the Collateral Agreement, or the subsequent sale or transfer of such items of Additional Collateral by the Collateral Agent pursuant to the terms of the Collateral Agreement.

(b) Title to Collateral; Perfected Security Interest. Pledgor has good and marketable title to the Additional Collateral, free of all Liens (other than the Lien created by the Collateral Agreement) and Transfer Restrictions and has good, right and lawful authority to assign, transfer and pledge such Additional Collateral under the Collateral Agreement. Upon delivery of the Additional Collateral to the Collateral Agent, the Collateral Agent will obtain a valid, first priority perfected security interest in, and a first lien upon, such Additional Collateral subject to no other Lien. None of such Additional Collateral is or shall be pledged by Pledgor as collateral for any other purpose.

This Certificate may be relied upon by Purchaser as fully and to the same extent as if this Certificate had been specifically addressed to Purchaser.

Capitalized terms not otherwise defined Certificate have the respective meanings specified in the Collateral Agreement.

IN WITNESS WHEREOF, the undersigned has executed this Certificate this day of , .


DAVID H. MURDOCK, in his individual capacity and as trustee of the DAVID H. MURDOCK LIVING TRUST dated May 28, 1986, as amended
By:
	Name:	David H. Murdock

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