As filed with the Securities and Exchange Commission on October 31, 2008

Registration No. 333-             

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

FRESH DEL MONTE PRODUCE INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

The Cayman Islands   N/A

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification Number)

 

 

 

c/o Walkers SPV Limited  
Walker House, 87 Mary Street  
George Town, Grand Cayman, KY1-9002   c/o Del Monte Fresh Produce Company
Cayman Islands   241 Sevilla Avenue, Coral Gables, FL 33134
(345) 945-3727   (305) 520-8400
(Address and Telephone Number of Registrant’s Principal Executive Offices)   (Address and Telephone Number of Registrant’s U.S. Executive Offices)

Hani El-Naffy

President and Chief Operating Officer

Fresh Del Monte Produce Inc.

c/o Del Monte Fresh Produce Company

241 Sevilla Avenue, Coral Gables, FL 33134

(305) 520-8400

(Name, Address and Telephone Number of Agent for Service)

 

 

Fresh Del Monte Produce Inc. 1999 Share Incentive Plan, As Amended

(Full Title of the Plan)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated Filer   x    Non-accelerated filer   ¨    Smaller reporting company   ¨
   (Do not check if a smaller reporting company)

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title Of Securities

To Be Registered

  Amount To Be
Registered (1) 		 

Proposed

Maximum

Offering Price

Per Share

 

Proposed

Maximum
Aggregate

Offering Price

 

Amount Of
Registration

Fee

Fresh Del Monte Produce Inc.
Ordinary Shares, $0.01 par value per share

  1,755,250   $16.91 (2)   $29,681,277 (2)   $1,166.47 (2)

Fresh Del Monte Produce Inc.
Ordinary Shares, $0.01 par value per share

  1,244,750   $22.25 (3)   $27,695,687 (3)   $1,088.44 (3)

TOTAL

  3,000,000   —   $57,376,964   $2,254.91
 
 
(1) Together with an indeterminate number of Ordinary Shares that may be necessary to adjust the number of Ordinary Shares reserved for issuance pursuant to the Fresh Del Monte Produce Inc. 1999 Share Incentive Plan, As Amended (the “Plan”) as the result of a stock split, stock dividend or similar adjustment of the outstanding Ordinary Shares of Fresh Del Monte Produce Inc. (the “Registrant” or the “Company”).
(2) Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended (the “Securities Act”) and based upon the average of the high and low prices of the Ordinary Shares of the Registrant as reported on the New York Stock Exchange on October 29, 2008.
(3) With respect to 1,244,750 shares covered by stock options granted prior to the filing of this Registration Statement calculated pursuant to Rule 457(h) under the Securities Act, based on the price at which the options may be exercised.

 

 

 

Explanatory Note

On April 30, 2008, the shareholders of the Company approved an amendment to the Plan, authorizing the issuance of an additional 3,000,000 Ordinary Shares under the Plan, increasing the aggregate Ordinary Shares issuable under the Plan to 9,000,000.

The additional Ordinary Shares to be registered by this Registration Statement are of the same class as those covered by the Company’s previously filed Registration Statements on Form S-8 filed on May 28, 1999 (Registration No. 333-10400), May 3, 2002 (Registration No. 333-87606) and April 28, 2005 (Registration No. 333-124402) (the “Prior Registration Statements”). This Registration Statement on Form S-8 has been prepared and filed pursuant to and in accordance with the requirements of General Instruction E to Form S-8 for the purpose of effecting the registration under the Securities Act of an additional 3,000,000 Ordinary Shares issuable pursuant to options to be granted under the Plan. Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statements, filed in connection with the Plan, including the periodic reports that the Company filed after the Prior Registration Statements to maintain current information about the Company, are incorporated herein by reference.

Part II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8. Exhibits.

The following documents are filed with or incorporated by reference into this Registration Statement:

 

  4.1 Amended and Restated Memorandum of Association of Fresh Del Monte Produce Inc. (incorporated by reference from Exhibit 3.6 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)).

 

  4.2 Amended and Restated Articles of Association of Fresh Del Monte Produce Inc. (incorporated by reference from Exhibit 3.7 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)).

 

  4.3 Fresh Del Monte Produce Inc. 1999 Share Incentive Plan, As Amended (incorporated by reference from Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q, filed with the Commission on July 30, 2008 (File No. 333-07708)).

 

  5.1 Opinion of Walkers regarding the validity of securities being registered.

 

  23.1 Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.

 

  23.2 Consent of Walkers (included in Exhibit 5.1).

 

  24.1 Power of Attorney (included on signature page).

 

II-1

SIGNATURES

Pursuant to the requirements of the Securities Act, 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 Coral Gables, State of Florida, on this 29 th day of October, 2008.

 

FRESH DEL MONTE PRODUCE INC.
By:  

/s/ Hani El-Naffy

  Hani El-Naffy
  President & Chief Operating Officer

 

II-2

POWER OF ATTORNEY

Each person whose signature appears below on this Registration Statement hereby constitutes and appoints Mohammad Abu-Ghazaleh and Hani El-Naffy, and each of them, with full power to act without the other, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities (unless revoked in writing) to sign any and all amendments (including post-effective amendments thereto) to this Registration Statement to which this power of attorney is attached, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on 29 th day of October, 2008.

 

Signature

 

Title

/s/ Mohammad Abu-Ghazaleh

  Chairman and Chief Executive Officer
Mohammad Abu-Ghazaleh   (Principal Executive Officer)

/s/ Richard Contreras

  Senior Vice President and Chief Financial Officer
Richard Contreras   (Principal Financial Officer; Principal Accounting Officer)

/s/ Hani El-Naffy

  President and Chief Operating Officer and Director
Hani El-Naffy  

/s/ Amir Abu-Ghazaleh

  Director
Amir Abu-Ghazaleh  

/s/ Maher Abu-Ghazaleh

  Director
Maher Abu-Ghazaleh  

/s/ Salvatore H. Alfiero

  Director
Salvatore H. Alfiero  

/s/ Michael J. Berthelot

  Director
Michael J. Berthelot  

/s/ Edward L. Boykin

  Director
Edward L. Boykin  

/s/ John H. Dalton

  Director
John H. Dalton  

/s/ Elias K. Hebeka

  Director
Elias K. Hebeka  

 

II-3

SIGNATURE OF AUTHORIZED REPRESENTATIVE

Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative of Fresh Del Monte Produce Inc. in the United States, has signed this Registration Statement or amendment in the City of Newark, State of Delaware, on the 30 th day of October, 2008.

 

PUGLISI & ASSOCIATES
By:  

/s/ Donald J. Puglisi

  Donald J. Puglisi
  Managing Director

 

II-4

EXHIBIT INDEX

 

Exhibit No.

  

Description

  

Method of Filing

4.1    Amended and Restated Memorandum of Association of Fresh Del Monte Produce Inc.    Incorporated by reference from Exhibit 3.6 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)
4.2    Amended and Restated Articles of Association of Fresh Del Monte Produce Inc.    Incorporated by reference from Exhibit 3.7 to the Company’s Registration Statement on Form F-1 (File No. 333-7708)
4.3    Fresh Del Monte Produce Inc. 1999 Share Incentive Plan, As Amended    Incorporated by reference from Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q, filed with the Commission on July 30, 2008 (File No. 333-07708)
5.1    Opinion of Walkers regarding the validity of securities being registered    Filed herewith
23.1    Consent of Ernst & Young LLP, Independent Auditors / Independent Registered Public Accounting Firm    Filed herewith
23.2    Consent of Walkers (included in Exhibit 5.1)    Filed herewith
24.1    Power of Attorney (included on signature page)    Filed herewith

EXHIBIT 5.1

LOGO

 

  

31 October 2008

 

CAYMAN ISLANDS

 

BRITISH VIRGIN ISLANDS

 

DUBAI

 

HONG KONG

 

JERSEY

 

LONDON

  

Our Ref: RJ/dlc/D-81652

Fresh Del Monte Produce Inc.

c/o Del Monte Fresh Produce Company

241 Sevilla Avenue

Coral Gables

Florida 33134

USA

 

 

Dear Sirs,

 

 

Fresh Del Monte Produce Inc. (the “Company”)

 

We have been asked to provide this legal opinion to you with regard to the laws of the Cayman Islands in connection with the Registration Statement on Form S-8 (the “ Registration Statement ”) to be filed with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, in connection with the offer of 3,000,000 Ordinary Shares of the Company (the “ Shares ”) pursuant to the Fresh Del Monte Produce Inc. 1999 Share Incentive Plan (as amended) (the “ Plan ”).

 

For the purposes of giving this opinion, we have examined and relied upon the originals or copies of the documents listed in Schedule 1.

 

In giving this opinion we have relied upon the assumptions set out in Schedule 2, which we have not independently verified.

 

We are Attorneys-at-Law in the Cayman Islands and express no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted at the date of this opinion. We have not, for the purposes of this opinion, made any investigation of the laws, rules or regulations of any other jurisdiction.

 

Based upon the foregoing examinations and assumptions and upon such searches as we have conducted and having regard to legal considerations which we deem relevant and subject to the qualifications set out in Schedule 3, we are of the opinion that, under the laws of the Cayman Islands, subject to payment in full being received by the Company, the Shares have been duly authorised to be issued from time to time pursuant to and in accordance with the Plan and will be issued and fully paid when an entry in respect of such Shares in the name of the registered owners thereof has been made in the register of members of the Company (pursuant to sections 38 and 48 of the Companies Law (2007 Revision) of the Cayman Islands (the “ Companies Law ”)) confirming that they are fully paid pursuant to a resolution of the Board of Directors of the Company approving the issuance of such Shares. Section 38 of the Companies Law provides, inter alia, that every “...person who has agreed to become a member of a company and whose name is entered on the register of members, shall be deemed to be a member of the company.”. Section 48 of the Companies Law provides that The register of members shall be prima facie evidence of any matters by this Law directed or authorised to be inserted therein.”.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.

LOGO

This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein. This opinion is given solely for your benefit, the benefit of your legal advisers acting in that capacity in relation to this transaction and may not be relied upon by any other person without our prior written consent. This opinion is governed by and shall be construed in accordance with the laws of the Cayman Islands.

 

Yours faithfully,
/S/ WALKERS
WALKERS

Schedule 1

List of Documents Examined

Part I

 

(1) The Certificate of Incorporation, Memorandum and Articles of Association and Register of Directors as provided to us by the Company’s registered office in the Cayman Islands.

 

(2) A copy of executed written resolutions of the Board of Directors of the Company dated 29 October 2008.

 

(3) Such other documents as we have considered necessary for the purposes of rendering this opinion.

The document at paragraph (2) above is referred to in this opinion as the “ Resolutions ”.

Schedule 2

Assumptions

 

1. The originals of all documents examined in connection with this opinion are authentic, all signatures, initials and seals are genuine, all documents purporting to be sealed have been so sealed, all copies are complete and conform to their original.

 

2. The Minute Book of the Company examined by us at the Registered Office of the Company contains a complete record of the business transacted by it.

 

3. The corporate records of the Company examined by us at the Registered Office of the Company constitute a complete and accurate record of the business transacted by the Company and all matters required by law and/or the Memorandum and Articles of Association of the Company to be recorded therein are so recorded.

 

4. The Resolutions are a true and correct copy of the originals of the same, have been duly executed (and where by a corporate entity such execution has been duly authorised if so required) by or on behalf of each Director and the signatures and initials thereon are those of a person or persons in whose name the Resolutions have been expressed to be signed.

 

5. All amounts payable or otherwise due (at any time) in connection with the issue of each of the Shares have been paid in full.

 

6. The Company has sufficient authorised and unissued shares to enable it to issue the Shares.

 

7. The Resolutions remain in full form and effect and have not been revoked or varied.

 

8. No resolutions voluntarily to wind up the Company have been adopted by its members.

 

9. The records of the Company which we have specifically not reviewed, do not disclose anything which would affect the opinion given herein.

Schedule 3

Qualifications

 

1. Section 134 of the Companies Law provides, inter alia, that every transfer of shares or alteration in the status of members of a company made after the commencement of such company’s winding up shall be void, unless in the case of a transfer of shares only, such transfer is made to or with the sanction of the liquidator. The Companies Law (2007 Revision) does not make any provision for the sanction by a liquidator of any alteration in the status of the members of the company in such circumstances.

 

2. Section 156 of the Companies Law provides, inter alia, that every transfer of shares or alteration in the status of members of a company made between the commencement of such company’s winding up and the order for its winding-up shall, unless the court otherwise orders, be void.

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-                      ) pertaining to the Fresh Del Monte Produce Inc. 1999 Share Incentive Plan, as amended, of our reports dated February 26, 2008, with respect to the consolidated financial statements and schedule of Fresh Del Monte Produce Inc. included in its Annual Report (Form 20-F) for the year ended December 28, 2007 and the effectiveness of internal control over financial reporting of Fresh Del Monte Produce Inc. filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Certified Public Accountants

Miami, Florida

October 28, 2008

A member firm of Ernst & Young Global Limited