-----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, DnTkDjpxftCmJr8tsB3B8z9JS3cw/2lIslDeI7ONV7teRxyThqm3cpN2vGq02wHZ H1mjV3V5mU1rgojamVmbOg== 0000101063-98-000085.txt : 19980720 0000101063-98-000085.hdr.sgml : 19980720 ACCESSION NUMBER: 0000101063-98-000085 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980714 EFFECTIVENESS DATE: 19980714 SROS: BSE SROS: NYSE SROS: PCX FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIQUITA BRANDS INTERNATIONAL INC CENTRAL INDEX KEY: 0000101063 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 041923360 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59085 FILM NUMBER: 98666089 BUSINESS ADDRESS: STREET 1: 250 E FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5137848011 FORMER COMPANY: FORMER CONFORMED NAME: UNITED BRANDS CO DATE OF NAME CHANGE: 19900403 S-8 1 1998 STOCK OPTION AND INCENTIVE PLAN As filed with the Securities and Exchange Commission on July __, 1998 Registration No. 333-_______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CHIQUITA BRANDS INTERNATIONAL, INC. (Exact name of issuer as specified in its charter) New Jersey 04-1923360 (State of incorporation) (I.R.S. Employer Identification No.) 250 East Fifth Street, Cincinnati, Ohio 45202 (Address of Principal Executive Offices) (Zip Code) CHIQUITA 1998 STOCK OPTION AND INCENTIVE PLAN (Full title of the plan) ROBERT W. OLSON, ESQ. Senior Vice President, General Counsel and Secretary Chiquita Brands International, Inc. 250 East Fifth Street Cincinnati, Ohio 45202 (Name and address of agent for service) Telephone number, including area code, of agent for service: (513) 784-8804 CALCULATION OF REGISTRATION FEE
CALCULATION OF REGISTRATION FEE Proposed Proposed Title of maximum maximum securities Amount offering aggregate Amount of to be to be price offering registration registered registered(1) per share(2) price(2) fee(3) __________ __________ _________ _________ ____________ Common Stock, 10,800,000 $14.00 $151,200,000 $41,300.00 par value $.01 shares Includes 800,000 unsold shares transferred from Form S-8 Registration Statement No. 33-53993. This registration statement also covers such indeterminable number of additional shares of Common Stock of Chiquita Brands International, Inc. as may become issuable with respect to all or any of the registered shares pursuant to antidilution provisions in the plan. Estimated solely for purposes of computing the registration fee pursuant to Rule 457(h) and based on the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on July 7, 1998 of $14.00 per share. Pursuant to Rule 429(b), represents an aggregate fee of $44,604.00 less $3,304.00 attributable to the 800,000 shares transferred from Form S-8 Registration Statement No. 33-53993 for which the registration fee has been paid previously. A post-effective amendment to Registration Statement No. 33-53993 is being filed to deregister such shares.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents of the registrant are incorporated by reference into and made a part of this registration statement. In addition, all documents subsequently filed by the registrant pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents. (a) The registrant's Annual Report on Form 10-K for the year ended December 31, 1997; (b) All other reports filed by the registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, since December 31, 1997; and (c) The description of the registrant's Common Stock contained in its Registration Statement on Form 8-A/A (Amendment No. 1) filed on June 18, 1998 under the Securities Exchange Act of 1934. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel The legality of the securities being registered has been passed upon by Robert W. Olson, Esq., Senior Vice President, General Counsel and Secretary of the registrant. Mr. Olson presently holds shares of Common Stock in the registrant's Savings and Investment (401(k)) Plan as well as employee stock options to purchase additional shares of Common Stock and participates in the registrant's 1997 Amended and Restated Deferred Compensation Plan. Item 6. Indemnification of Directors and Officers Article VI of the registrant's By-Laws provides directors and officers with the right to indemnification and advancement of expenses to the fullest extent not prohibited by the New Jersey Business Corporation Act. Directors and officers of the registrant are indemnified generally against expenses and liabilities incurred in connection with any proceedings, including proceedings by or on behalf of the registrant, relating to their service to or at the request of the registrant. However, no indemnification may be made if a final adjudication establishes that a person's acts or omissions (a) breached the person's duty of loyalty to the registrant or its shareholders, (b) were not in good faith or involved a knowing violation of the law, or (c) resulted in receipt by the person of an improper personal benefit. Section VIII of the registrant's Second Restated Certificate of Incorporation also limits the liability of the registrant's directors and officers, to the fullest extent permitted by the New Jersey Business Corporation Act, to the registrant or its shareholders for monetary damages for breach of any duty, except in the situations set forth in (a) through (c) above. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits Exhibit Number _______ 5 Opinion of Counsel 23.1 Consent of Ernst & Young LLP 23.2 Consent of Deloitte & Touche LLP 23.3 Consent of Counsel (included in Exhibit 5) 24 Power of Attorney Item 9. Undertakings *(a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. *(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. *(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. ____________________ * Paragraph references correspond to those of Item 512 of Regulation S-K. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati, State of Ohio as of the 14th day of July, 1998. CHIQUITA BRANDS INTERNATIONAL, INC. By:/s/ Carl H. Lindner ___________________________________ Carl H. Lindner, Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated as of the 14th day of July, 1998. Signature Title /s/ Carl H. Lindner Chairman of the Board and ________________________ Chief Executive Officer Carl H. Lindner /s/ Keith E. Lindner Vice Chairman of the Board ________________________ Keith E. Lindner /s/ Steven G. Warshaw Director, President and Chief ________________________ Operating Officer Steven G. Warshaw /s/ Fred J. Runk Director ________________________ Fred J. Runk /s/ Jean Head Sisco Director ________________________ Jean Head Sisco ________________________ Director William W. Verity /s/ Oliver W. Waddell Director ________________________ Oliver W. Waddell /s/ Warren J. Ligan Senior Vice President and Chief Financial ________________________ Officer Warren J. Ligan /s/ William A. Tsacalis Vice President and Controller ________________________ (Chief Accounting Officer) William A. Tsacalis EX-5 2 OPINION OF COUNSEL Exhibits 5 and 23.3 Robert W. Olson Senior Vice President, General Counsel and Secretary Chiquita Brands International Inc. 250 East Fifth Street Cincinnati, Ohio 45202 July 14, 1998 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Chiquita 1998 Stock Option and Incentive Plan Dear Sir or Madam: I have acted as counsel to Chiquita Brands International, Inc., a New Jersey corporation ("Chiquita"), in connection with the registration of 10,800,000 shares of Chiquita's Common Stock, $.01 par value (the "Shares"), which may be issued pursuant to the Chiquita 1998 Stock Option and Incentive Plan (the "Plan"). I have examined such records and documents and have made such investigations of law and fact as I have deemed necessary for purposes of this opinion and, based upon such review, I am of the opinion that the Shares have been duly and validly authorized and, when issued or sold in accordance with the terms of the Plan, will be legally issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement on Form S-8 to be filed by Chiquita to effect registration under the Securities Act of 1933 of the Shares. Very truly yours, /s/ Robert W. Olson ___________________ EX-23.1 3 CONSENT OF AUDITORS Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 1998 Stock Option and Incentive Plan of Chiquita Brands International, Inc. of our report dated February 11, 1998, with respect to the consolidated financial statements of Chiquita Brands International, Inc. incorporated by reference in its Annual Report on Form 10-K for the year ended December 31, 1997, and the related financial statement schedule included therein, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP _____________________ ERNST & YOUNG LLP Cincinnati, Ohio July 14, 1998 EX-23.2 4 CONSENT OF AUDITORS Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement on Form S-8 and related prospectus pertaining to the 1998 Stock Option and Incentive Plan of Chiquita Brands International, Inc. of our report dated June 19, 1997 (October 10, 1997 as to Note L), with respect to the financial statements of Stokely USA, Inc., for the year ended March 31, 1997, and incorporated by reference in the Chiquita Brands International, Inc. Report on Form 8-K dated January 16, 1998. /s/ Deloitte & Touche LLP _________________________ DELOITTE & TOUCHE LLP Milwaukee, Wisconsin July 9, 1998 EX-24 5 POWER OF ATTORNEY Exhibit 24 POWER OF ATTORNEY We, the undersigned directors of Chiquita Brands International, Inc., hereby appoint William A. Tsacalis and Robert W. Olson, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our names and on our behalf in our capacities indicated below, which said attorneys and agents, or each of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with a Registration Statement on Form S-8 to be filed in connection with the registration of shares for the corporation's 1998 Stock Option and Incentive Plan including, without limitation, power and authority to sign for us, or any of us, in our names in the capacities indicated below, any and all amendments to such Registration Statement, and we hereby ratify and confirm all that said attorneys and agents, or each of them, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Power of Attorney has been signed below by the following persons as of the 14th day of July, 1998 in the capacities indicated: Signature Title /s/ Carl H. Lindner Chairman of the Board and ________________________ Chief Executive Officer Carl H. Lindner /s/ Keith E. Lindner Vice Chairman of the Board ________________________ Keith E. Lindner /s/ Steven G. Warshaw Director, President and Chief ________________________ Operating Officer Steven G. Warshaw /s/ Fred J. Runk Director ________________________ Fred J. Runk /s/ Jean Head Sisco Director ________________________ Jean Head Sisco ________________________ Director William W. Verity /s/ Oliver W. Waddell Director ________________________ Oliver W. Waddell -----END PRIVACY-ENHANCED MESSAGE-----