-----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, LQPWRm8Dcc1ZKumrEeCvo/5dW7c5RiH7Kk/dsJGXMmXSH5X9U83mpXZQYJdspYoB 64BVUtApii4D10/sJd0ICg== 0000912057-96-014152.txt : 19960711 0000912057-96-014152.hdr.sgml : 19960711 ACCESSION NUMBER: 0000912057-96-014152 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960710 SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DOLE FOOD COMPANY INC CENTRAL INDEX KEY: 0000018169 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 990035300 STATE OF INCORPORATION: HI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-07849 FILM NUMBER: 96592655 BUSINESS ADDRESS: STREET 1: 31355 OAK CREST DRIVE CITY: WESTLAKE VILLAGE STATE: CA ZIP: 91361 BUSINESS PHONE: 8188796600 MAIL ADDRESS: STREET 1: 31355 OAK CREST DR CITY: WESTLAKE VILLAGE STATE: CA ZIP: 91361 FORMER COMPANY: FORMER CONFORMED NAME: CASTLE & COOKE INC DATE OF NAME CHANGE: 19910731 S-3 1 S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 10, 1996 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- DOLE FOOD COMPANY, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) HAWAII 99-0035300 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.)
-------------- 31365 OAK CREST DRIVE WESTLAKE VILLAGE, CALIFORNIA 91361 (818) 879-6600 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ---------------- J. BRETT TIBBITTS VICE PRESIDENT-CORPORATE GENERAL COUNSEL AND CORPORATE SECRETARY DOLE FOOD COMPANY, INC. 31365 OAK CREST DRIVE WESTLAKE VILLAGE, CALIFORNIA 91361 (818) 879-6600 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------- COPIES TO: CHARLES F. NIEMETH FRANK H. GOLAY, JR. O'MELVENY & MYERS LLP SULLIVAN & CROMWELL 153 EAST 53RD STREET, 54TH FLOOR 444 SOUTH FLOWER STREET NEW YORK, NY 10022-4611 LOS ANGELES, CA 90071
-------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. / / If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / -------------- CALCULATION OF REGISTRATION FEE PROPOSED MAXIMUM PROPOSED MAXIMUM AGGREGATE AMOUNT OF TITLE OF SHARES AMOUNT TO OFFERING PRICE OFFERING PRICE REGISTRATION TO BE REGISTERED BE REGISTERED PER SHARE (1) (1) FEE(1) Common Stock, no par value 4,140,000 $43.25 $179,055,000 $61,744
(1) Estimated solely for the purpose of calculating the amount of the registration fee. Pursuant to Rule 457(c), the registration fee is based upon the average of the high and low prices of the Registrant's Common Stock as reported on the New York Stock Exchange Composite Tape on July 5, 1996. -------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED JULY 10, 1996 3,600,000 SHARES DOLE FOOD COMPANY, INC. COMMON STOCK (NO PAR VALUE) -------------- All the shares of Common Stock offered are being sold by the Selling Shareholder. See "Selling Shareholder". The Company will not receive any of the proceeds from the sale of the shares. The last reported sale price of the Common Stock, which is listed under the Symbol "DOL", on the New York Stock Exchange on July 9, 1996 was $42.75 per share. -------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------
INITIAL PUBLIC UNDERWRITING PROCEEDS TO SELLING OFFERING PRICE DISCOUNT(1) SHAREHOLDER(2) ---------------- ---------------- ------------------- Per Share................................................ $ $ $ Total(3)................................................. $ $ $
- -------------- (1) The Selling Shareholder and the Company have agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933. (2) Before deducting estimated expenses of $185,000 payable by the Selling Shareholder. (3) The Selling Shareholder has granted the Underwriters an option for 30 days to purchase up to an additional 540,000 shares at the initial public offering price per share, less the underwriting discount, solely to cover over-allotments. If such option is exercised in full, the total initial public offering price, underwriting discount and proceeds to Selling Shareholder will be $ , $ and $ , respectively. See "Underwriting". -------------- The shares offered hereby are offered by Goldman, Sachs & Co., as specified herein, subject to receipt and acceptance by them and subject to their right to reject any order in whole or in part. It is expected that the certificates for the shares will be ready for delivery in New York, New York, on or about July , 1996, against payment therefor in immediately available funds. GOLDMAN, SACHS & CO. --------- The date of this Prospectus is July , 1996. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, THE PACIFIC STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. AVAILABLE INFORMATION Dole Food Company, Inc. (the "Company") is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information may be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 or at its regional offices located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies of such material can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, at prescribed rates. The Company's Common Stock, no par value (the "Common Stock") is listed on the New York Stock Exchange (the "NYSE") and the Pacific Stock Exchange (the "PSE"). Reports, proxy statements and other information concerning the Company can be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005 or the PSE, 115 Sansome Street, 8th Floor, San Francisco, California 94104. This Prospectus constitutes a part of a Registration Statement on Form S-3 filed by the Company with the Commission under the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus omits certain information contained in the Registration Statement in accordance with the rules and regulations of the Commission. Reference is hereby made to the Registration Statement and related exhibits for further information with respect to the Company and the securities offered hereby. Statements contained herein concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed by the Company under the Exchange Act with the Commission are incorporated herein by reference: (i) the Company's Annual Report on Form 10-K for the fiscal year ended December 30, 1995; and (ii) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 23, 1996 and June 15, 1996. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus but prior to the termination of this offering, shall be deemed to be incorporated in this Prospectus by reference and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Prospectus. The Company will provide without charge to each person, including any beneficial owner, to whom a Prospectus is delivered, upon written or oral request of such person, a copy of any or all of the documents incorporated herein by reference (other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the document that this Prospectus incorporates by reference). Requests should be directed to Corporate Secretary, Dole Food Company, Inc., 31365 Oak Crest Drive, Westlake Village, California 91361, telephone number (818) 879-6600. 2 THE COMPANY The Company is engaged in the business of food production and distribution. The Company is one of the largest companies engaged in the worldwide sourcing, growing, processing, distributing and marketing of high quality, branded food products. The Company sources, grows, processes or markets fruits, vegetables, nuts and beverages in the following locations: North America, Latin America, Asia and Europe. The Company's principal executive offices are located at 31365 Oak Crest Drive, Westlake Village, California 91361, telephone (818) 879-6600. USE OF PROCEEDS The net proceeds from the sale of the shares of Common Stock being offered hereby (the "Shares") will be received by the Selling Shareholder as described below, and the Company will not receive any such proceeds. SELLING SHAREHOLDER The Shares are being offered for the account of David H. Murdock (the "Selling Shareholder"), as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended. Mr. Murdock has been Chairman of the Board, Chief Executive Officer and a Director of the Company since July, 1985. Mr. Murdock also has been Chairman of the Board, Chief Executive Officer and a Director of Castle & Cooke, Inc., a Hawaii corporation, since October, 1995; and Chairman of the Board and Chief Executive Officer of Flexi-Van Corporation, a Delaware corporation indirectly wholly-owned by Mr. Murdock, since June, 1982. Mr. Murdock also is sole owner and developer of the Sherwood Country Club in Ventura County, California, and numerous other real estate developments, and sole shareholder of numerous corporations engaged in a variety of business ventures and in the manufacture of textile-related products, and in industrial and building products. See the documents referred to in "Incorporation of Certain Documents by Reference" for additional information about Mr. Murdock. The following table sets forth certain information for the Selling Shareholder with respect to (i) such Selling Shareholder's beneficial ownership of the Common Stock prior to the offering of any Shares hereunder, (ii) the number of Shares being offered for sale hereunder, and (iii) the number of shares and the percentage of outstanding shares of the Common Stock to be beneficially owned by such Selling Shareholder after the offering referred to in clause (ii) above. Shares of Common Stock Beneficially Owned Prior to Offering................................................. 13,864,278(1)(2) Shares of Common Stock being Offered Hereunder............. 3,600,000(3) Shares of Common Stock to be Beneficially Owned After Offering................................................. 10,264,278(3) Percentage of Outstanding Shares of Common Stock to be Beneficially Owned After the Offering.................... 17.0%(3)(4)
- ------------------ (1) Information is as of July 9, 1996. Mr. Murdock beneficially owns 279,476 shares of Common Stock that may be purchased upon the exercise of employee stock options exercisable on the date hereof or within 60 days thereafter. (2) Mr. Murdock customarily maintains revolving lines of credit in conjunction with his various business activities, under which borrowings and security vary from time to time, and pursuant to which he provides collateral owned by him, including his shares in the Company. His reported holdings include: (1) 12,263,622 shares of Common Stock owned by David H. Murdock as Trustee for the David H. Murdock Living Trust, dated May 28, 1986; (2) 1,240,310 shares of Common Stock owned by Flexi-Van Delaware, Inc., a corporation indirectly wholly-owned by Mr. Murdock; and (3) 80,870 shares of Common Stock owned by or for the benefit of Mr. Murdock's children. (3) Assumes the Underwriters' over-allotment option is not exercised. (4) The percentage set forth above is calculated on the basis of the number of shares of Common Stock outstanding on July 9, 1996, plus, all stock options granted to Mr. Murdock under the Company's stock option plans that are exercisable within 60 days following the date hereof. 3 DESCRIPTION OF CAPITAL STOCK The authorized capital stock of the Company consists of 80,000,000 shares of Common Stock, no par value, and 30,000,000 shares of Preferred Stock, no par value ("Preferred Stock"). DESCRIPTION OF COMMON STOCK GENERAL The holders of the outstanding shares of Common Stock have full voting rights, one vote for each share held of record on all matters voted on by shareholders (with no cumulative voting rights), and the holders of such shares will possess all voting power, except as otherwise required by law or provided in any resolution adopted by the Board of Directors with respect to any series of Preferred Stock. The affirmative vote of the holders of at least a majority of the shares of Common Stock represented in person or by proxy at the applicable meeting of shareholders and entitled to vote thereat is required with respect to the election of directors and certain other matters. Subject to the rights of holders of any outstanding series of Preferred Stock described below, holders of Common Stock are entitled to receive such dividends as may be declared from time to time by the Board of Directors of the Company out of funds legally available therefor. Upon liquidation, dissolution, or winding up of the Company (but subject to the rights of holders of Preferred Stock), the assets legally available for distribution to holders of Common Stock shall be distributed ratably among such holders. Holders of Common Stock have no preemptive or other subscription or conversion rights, and no liability for further calls upon shares. The Common Stock is not subject to assessment. The Transfer Agent and Registrar for the Common Stock is The First National Bank of Boston. CERTAIN PROVISIONS OF THE COMPANY'S ARTICLES OF ASSOCIATION, BY-LAWS AND HAWAII LAW The Company's Articles of Association (the "Articles") and By-Laws (the "By-Laws"), as well as Hawaii law, contain certain provisions that could make more difficult the acquisition of control of the Company by means of a tender offer, open market purchases, a proxy fight or otherwise. Set forth below is a description of such provisions, which is intended as a summary only and is qualified in its entirety by reference to the Company's Articles of Association and By-Laws, the forms of which are incorporated as Exhibits to the Registration Statement on Form S-3 filed by the Company with the Commission under the Securities Act, of which this Prospectus constitutes a part. Certain provisions of the Company's stock option and award plan which permit the accelerated exercise of options or similar rights upon certain events which may involve a change in control of the Company could also have an anti-takeover effect. The Company believes that the availability of Preferred Stock will provide the Company with increased flexibility in structuring possible future financings and acquisitions, and in meeting other corporate needs which might arise. Having such authorized shares available for issuance will allow the Company to issue shares of Preferred Stock without the expense and delay of a special shareholders' meeting. The authorized Preferred Stock, as well as Common Stock, will be available for issuance without further action by the Company's shareholders, unless such action is required by applicable law or the rules of any stock exchange on which securities of the Company may be listed. Although the Board of Directors of the Company has no intention at the present time of doing so, it would have the power to issue a series of preferred stock that could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt. The Hawaii Corporate Takeovers Act, Ch. 417E, Hawaii Revised Statutes, generally applies to "takeover offers" made to residents of the State of Hawaii in which the offeror would acquire at least ten percent of the equity securities of any publicly traded corporation organized under the laws of the State of Hawaii, such as the Company, unless the takeover is approved by the board of directors of the corporation or is registered under the Hawaii Corporate Takeovers Act. The application of this Act could deter potential purchasers from attempting to buy the Company's outstanding Common Stock or any outstanding Preferred Stock. 4 Under the Hawaii Environmental Disclosure Statute, a person (including such person's affiliates) who beneficially owns at least ten percent but less than 50% of the securities entitled to vote for the election of directors of the Company may not acquire more than five percent of such securities during any 12-month period without filing an Environmental Disclosure Statement with the Hawaii Office of Environmental Quality Control. The Hawaii Business Corporation Act provides that a director of a Hawaii corporation, in determining the best interests of the corporation, may consider, in such director's discretion, the following factors in addition to the interests of the corporation's shareholders: the interests of the corporation's employees, customers, suppliers and creditors, including, without limitation, the impact of any action upon the communities in or near which the corporation has offices or operations; the economy of the State of Hawaii and of the United States; community and societal considerations; and the long-term as well as the short-term interests of the corporation and its shareholders, including, without limitation, the possibility that these interests may be best served by the continued independence of the corporation. The Company's By-Laws establish an advance notice procedure with regard to the nomination, other than by or at the direction of the Board of Directors, of candidates for election as directors. Although the purpose of the notice procedure is to afford the Board of Directors a meaningful opportunity to consider and, to the extent deemed desirable by the Board of Directors, to inform shareholders of, the qualifications of the proposed nominees, the notice procedure may have the effect of precluding a nomination for the election of directors at a particular shareholders' meeting. DESCRIPTION OF PREFERRED STOCK Under the Articles of the Company, the Board of Directors of the Company is authorized without further shareholder action to provide for the issuance of up to 30,000,000 shares of Preferred Stock, in one or more series, and to fix for each series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights (including conversion, redemption, liquidation and voting rights), and qualifications, limitations or restrictions thereof, as shall be stated in the resolution or resolutions providing for the issue of a series of such stock adopted, at any time or from time to time, by the Board of Directors of the Company (as used herein the term "Board of Directors of the Company" includes any duly authorized committee thereof and as are permitted by the Hawaii Business Corporation Act). The holders of the Preferred Stock that may be issued from time to time in the future, may have preferences, powers and rights (including voting rights) that are senior to the rights of the Common Stock. 5 UNDERWRITING Subject to the terms and conditions of the Underwriting Agreement, the Selling Shareholder has agreed to sell to Goldman, Sachs & Co. ("Goldman Sachs"), and Goldman Sachs have agreed to purchase from the Selling Shareholder, 3,600,000 shares of Common Stock. Under the terms and conditions of the Underwriting Agreement, Goldman Sachs are committed to take and pay for all of the shares offered hereby, if any are taken. Goldman Sachs propose to offer the shares of Common Stock in part directly to the public at the initial public offering price set forth on the cover page of this Prospectus and in part to certain securities dealers at such price less a concession of $. per share. Goldman Sachs may allow, and such dealers may reallow, a concession not in excess of $. per share to certain brokers and dealers. After the shares of Common Stock are released for sale to the public, the offering price and other selling terms may from time to time be varied by Goldman Sachs. The Selling Shareholder has granted Goldman Sachs an option exercisable for 30 days after the date of this Prospectus to purchase up to an aggregate of 540,000 additional shares of Common Stock solely to cover over-allotments, if any. The Selling Shareholder and the Company have agreed that, during the period beginning from the date of this Prospectus and continuing to and including the date 180 days, in the case of the Selling Shareholder, and 90 days, in the case of the Company, after the date of this Prospectus, they will not offer, sell, contract to sell or otherwise dispose of any Common Stock or other securities of the Company (other than pursuant to employee stock option plans existing, or on the conversion or exchange of convertible or exchangeable securities outstanding, on the date of this Prospectus) which are substantially similar to the Common Stock or which are convertible or exchangeable into Common Stock or other securities which are substantially similar to the Common Stock, without the prior written consent of Goldman Sachs, except for the Shares offered hereby. The Selling Shareholder and the Company have agreed to indemnify Goldman Sachs against certain liabilities, including liabilities under the Securities Act of 1933. EXPERTS The audited consolidated financial statements and related audited consolidated financial statement schedules of the Company and its subsidiaries, incorporated by reference in this Prospectus and included in the Company's Annual Report on Form 10-K for the year ended December 30, 1995, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in accounting and auditing. VALIDITY OF SHARES The validity of the Shares being offered hereby will be passed upon for the Company by Goodsill Anderson Quinn & Stifel, Honolulu, Hawaii, and certain legal matters will be passed upon for the Underwriters by Sullivan & Cromwell, Los Angeles, California. Sullivan & Cromwell will rely on the opinion of Goodsill Anderson Quinn & Stifel with respect to matters governed by Hawaiian law. 6 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. -------------- TABLE OF CONTENTS
PAGE ---- Available Information....................................... 2 Incorporation of Certain Documents by Reference............. 2 The Company................................................. 3 Use of Proceeds............................................. 3 Selling Shareholder......................................... 3 Description of Capital Stock................................ 4 Underwriting................................................ 6 Experts..................................................... 6 Validity of Shares.......................................... 6
3,600,000 SHARES DOLE FOOD COMPANY, INC. COMMON STOCK (NO PAR VALUE) ------------- PROSPECTUS ------------- GOLDMAN, SACHS & CO. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION SEC registration fee............................................ $ 61,744 *Accounting fees and expenses.................................... 17,500 *Legal fees and expenses......................................... 75,000 *Miscellaneous expenses.......................................... 30,756 --------- *Total(1).................................................... $ 185,000 --------- ---------
- -------------- * Estimated. (1) All expenses will be paid by the Selling Shareholder. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS GENERAL Pursuant to the Hawaii Business Corporation Act (the "Hawaii BCA"), officers and directors of the Company are covered by certain provisions of the Articles of Association of the Company, the By-Laws (the "By-Laws") of the Company and insurance policies which serve to indemnify them against certain liabilities which they may incur in such capacities. These various provisions are described below. ELIMINATION OF LIABILITY IN CERTAIN CIRCUMSTANCES In June 1989, Hawaii enacted legislation (the "1989 Act") which authorizes corporations to limit or eliminate the personal liability of their directors in any action brought by the corporation or their shareholders for monetary damages for breach of directors' fiduciary duty of care. The duty of care requires that, when acting on behalf of the corporation, a director must act in good faith in a manner such director reasonably believes to be in the best interests of the corporation and with such care as a prudent person in like position would use under similar circumstances. Although the 1989 Act does not change directors' duty of care, it enables corporations to limit available relief to the corporation or its shareholders to equitable remedies such as injunction or rescission. Article IX of the Company's By-Laws limits the liability of directors to the Company or its shareholders (in their capacity as directors but not in their capacity as officers) to the fullest extent permitted by the 1989 Act, as amended from time to time. Specifically, directors of the Company will not be personally liable to the Company or its shareholders for monetary damages for breach of a director's fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or which constitute a wilful or reckless disregard of the director's fiduciary duty, (iii) for payments of dividends, stock repurchases or redemptions contrary to the provisions of the Hawaii BCA or (iv) for any transaction from which the director derived an improper benefit. If the Hawaii BCA is amended after the effective date of Article IX of the Company's By-Laws to further eliminate or limit the personal liability of directors, then the liability of a director of the Company will be eliminated or limited to the fullest extent permitted by the Hawaii BCA, as so amended. The inclusion of this provision in the Company's By-Laws may have the effect of reducing the likelihood of litigation against directors, even though such an action, if successful, might otherwise have benefited the Company and its shareholders. INDEMNIFICATION AND INSURANCE Section 1 of Article VIII of the By-Laws provides that the Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that he or she is or was a director, officer, II-1 employee or agent of the Company or of any division of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. Section 2 of Article VIII of the By-Laws provides that the Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the Company or of any division of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the Company unless and only to the extent that the court in which such action or suit was brought or in any other court having jurisdiction in the premises shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Any indemnification under Section 1 or Section 2 of Article VIII of the By-Laws (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the director, officer or employee is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 1 or Section 2. Such determination shall be made (i) by the Company's Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by a majority vote of the shareholders of the Company. To the extent, however, that a director, officer, employee or agent of the Company or any division of the Company, or a person serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture or other enterprise has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith, without the necessity of authorization in the specific case. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding as authorized by the Company's Board of Directors in a particular case upon receipt of an undertaking by or on behalf of such director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he or she is not entitled to be indemnified by the Company. The indemnification pursuant to Article VIII of the By-Laws is not exclusive of any other rights to which those seeking indemnification may be entitled and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. II-2 The Company has the power to purchase and maintain insurance on behalf of any person who is or was a director or officer, employee or agent of the Company or of any division of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Company would have the power to indemnify him or her against such liability under the provisions of Article VIII of the By-Laws. ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - ------------- ------------------------------------------------------------------------------------------------------- 1 Form of Underwriting Agreement 4.1 Articles of Association* 4.2 By-Laws of the Company, as amended** 5 Opinion and Consent of Goodsill Anderson Quinn & Stifel 23.1 Consent of Goodsill Anderson Quinn & Stifel (contained in Exhibit 5) 23.2 Consent of Arthur Andersen LLP 24 Power of Attorney (contained in Part II of the Registration Statement)
- -------------- * Included in the Company's Annual Report on Form 10-K for the year ended December 28, 1991, and incorporated herein by reference. ** Included in the Company's Annual Report on Form 10-K for the year ended January 1, 1994, and incorporated herein by reference. ITEM 17. UNDERTAKINGS. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referred to in Item 15, 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes that: (1)For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424 (b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. II-3 (2)For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Westlake Village, California, on July 9, 1996. DOLE FOOD COMPANY, INC. Registrant By /s/ DAVID H. MURDOCK ----------------------------------- David H. Murdock, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes J. Brett Tibbitts and Michael S. Karsner, and each of them, as attorneys-in-fact, to sign on his or her behalf, individually and in each capacity stated below, and to file, any amendments, including post-effective amendments, to this Registration Statement. /s/ DAVID H. MURDOCK Chairman of the Board and - ----------------------------------- Chief Executive Officer July 9, 1996 David H. Murdock and Director /s/ DAVID A. DELORENZO President, Chief - ----------------------------------- Operating Officer and July 9, 1996 David A. DeLorenzo Director Senior Vice President and /s/ MICHAEL S. KARSNER Chief Financial Officer - ----------------------------------- (Principal Financial July 9, 1996 Michael S. Karsner Officer) Vice President -- Finance /s/ PATRICIA A. MCKAY and Controller - ----------------------------------- (Principal Accounting July 9, 1996 Patricia A. McKay Officer) /s/ ELAINE L. CHAO - ----------------------------------- Director July 9, 1996 Elaine L. Chao /s/ MIKE CURB - ----------------------------------- Director July 9, 1996 Mike Curb S-1 /s/ RICHARD M. FERRY - ----------------------------------- Director July 9, 1996 Richard M. Ferry /s/ JAMES F. GARY - ----------------------------------- Director July 9, 1996 James F. Gary
S-2 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - ----------- -------------------------------------------------------------------------------------------------------- 1 Form of Underwriting Agreement 4.1 Articles of Association* 4.2 By-Laws of the Company, as amended** 5 Opinion and Consent of Goodsill Anderson Quinn & Stifel 23.1 Consent of Goodsill Anderson Quinn & Stifel (contained in Exhibit 5) 23.2 Consent of Arthur Andersen LLP 24 Power of Attorney (contained in Part II of the Registration Statement)
- -------------- *Included in the Company's Annual Report on Form 10-K for the year ended December 28, 1991, and incorporated herein by reference. **Included in the Company's Annual Report on Form 10-K for the year ended January 1, 1994, and incorporated herein by reference. EX-1 2 EXHIBIT 1 - UNDERWRITING AGREEMENT S&C Draft of July 9, 1996 DOLE FOOD COMPANY, INC. COMMON STOCK (NO PAR VALUE) UNDERWRITING AGREEMENT July ..., 1996 Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. Ladies and Gentlemen: David H. Murdock, as trustee of the David H. Murdock Living Trust dated May 28, 1986, as amended, a shareholder (together with Mr. Murdock in his individual capacity, the "Selling Stockholder") of Dole Food Company, Inc., a Hawaii corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to sell to Goldman, Sachs & Co. (the "Underwriters") an aggregate of 3,600,000 shares (the "Firm Shares") and, at the election of the Underwriters, up to 540,000 additional shares (the "Optional Shares") of Common Stock, no par value (the "Stock"), of the Company (the Firm Shares and the Optional Shares which the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the "Shares"). 1. (a) The Company represents and warrants to, and agrees with, the Underwriters that: (i) A registration statement on Form S-3 (File No. 333-....) (the "Initial Registration Statement") in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including (i) the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective and (ii) the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, each as amended at the time such part of the registration statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement); (ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein or by the Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; (iii) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein; 2 (iv) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein or by the Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; (v) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development relating specifically to the Company which the Company reasonably believes will involve a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus; (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; (vii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the Stock contained in the Prospectus; (viii) The compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties (with such exceptions as would not have a material adverse effect on the transactions contemplated hereby or on the Company and its subsidiaries taken as a whole), nor will such action result in any violation of the provisions of the Articles of Association or By-laws of the 3 Company; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required by the NASD or the registration under the Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters; (ix) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (x) The Stock (including the Shares) is listed on the New York Stock Exchange and the Pacific Stock Exchange; and (xi) Neither the Company nor any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes. (b) The Selling Stockholder represents and warrants to, and agrees with, the Underwriters and the Company that: (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder of this Agreement, and for the sale and delivery of the Shares to be sold by the Selling Stockholder hereunder, have been obtained; and the Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder; (ii) The sale of the Shares to be sold by the Selling Stockholder hereunder and the compliance by the Selling Stockholder with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, nor will such action result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property of the Selling Stockholder (with such exceptions as would not have a material adverse effect on the transactions contemplated hereby or on the Selling Stockholder); (iii) The Selling Stockholder has, and immediately prior to each Time of Delivery (as defined in Section 4 hereof) the Selling Stockholder will have, good and valid title to the Shares to be sold by the Selling Stockholder hereunder, free and clear of all liens, 4 encumbrances, equities or claims other than such liens as have been disclosed to you in writing and as will be released at or before the relevant Time of Delivery; and, upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will pass to the Underwriters; (iv) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any Stock or other securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without your prior written consent; (v) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (vi) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by the Selling Stockholder expressly for use therein, such Preliminary Prospectus and the Registration Statement did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (vii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); and (viii) The obligations of the Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Stockholder or by the occurrence of any other event; if the Selling Stockholder should die or become incapacitated, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Stockholder in accordance with the terms and conditions of this Agreement. 2. Subject to the terms and conditions herein set forth, (a) the Selling Stockholder agrees to sell to the Underwriters, and the Underwriters agree, to purchase from the Selling 5 Stockholder, at a purchase price per share of $..........., the Firm Shares and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, the Selling Stockholder agrees to sell to the Underwriters, and the Underwriters agree, to purchase from the Selling Stockholder, at the purchase price per share set forth in clause (a) of this Section 2, the number of Optional Shares as to which such election shall have been exercised. The Selling Stockholder hereby grants to the Underwriters the right to purchase at their election up to 540,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering over-allotments in the sale of the Firm Shares. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Selling Stockholder given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Selling Stockholder otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Shares to be purchased by the Underwriters hereunder, in definitive form, and in such authorized denominations and registered in such names as the Underwriters may request upon at least forty-eight hours' prior notice to the Selling Stockholder shall be delivered by or on behalf of the Selling Stockholder to the Underwriters, for the account of the Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor in same day funds. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of the Underwriters, 85 Broad Street, New York, New York 10004 (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on ............., 1996 or such other time and date as the Underwriters and the Selling Stockholder may agree upon in writing and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by the Underwriters in the written notice given by the Underwriters of their election to purchase such Optional Shares, or such other time and date as the Underwriters and the Selling Stockholder may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 7(j) hereof, will be delivered at the offices of Sullivan & Cromwell, 444 South Flower Street, 12th Floor, Los Angeles, California 90071 (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at .......p.m., Los Angeles time, on the New York Business Day next preceding such Time of 6 Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 5. The Company agrees with the Underwriters: (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus prior to the last Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish you with copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or 7 supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to you and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case you are required to deliver a prospectus in connection with sales of any of the Shares at any time, nine months or more after the time of issue of the Prospectus, upon your request but at your expense, to prepare and deliver to you as many copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any Stock or other securities of the Company that are substantially similar to the Shares, including, but not limited to, any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without your prior written consent; (f) To furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, shareholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants), and to make available to its shareholders, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of five years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission); and (h) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the 8 time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act. 6. The Company and the Selling Stockholder covenant and agree with one another and with the Underwriters that (a) the Selling Stockholder will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; and (iv) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Shares; (b) the Company will pay or cause to be paid: (i) the cost of preparing stock certificates; and (ii) the cost and charges of any transfer agent or registrar; and (c) the Selling Stockholder will pay or cause to be paid all costs and expenses incident to the performance of the Selling Stockholder's obligations hereunder which are not otherwise specifically provided for in this Section, including (i) any fees and expenses of counsel for the Selling Stockholder, (ii) all expenses and taxes incident to the sale and delivery of the Shares to be sold by the Selling Stockholder to the Underwriters hereunder and (iii) all other costs and expenses incident to the performance by the Company of its obligations hereunder, including without limitation those specified in Section 5 hereof, which are not otherwise specifically provided for in this Section 6. In connection with clause (c)(ii) of the preceding sentence, the Underwriters agree to pay New York State stock transfer tax, and the Selling Stockholder agrees to reimburse the Underwriters for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated. It is understood that except as provided in this Section, and Sections 8 and 10 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 7. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholder herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholder shall have performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 9 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Sullivan & Cromwell, counsel for the Underwriters, shall have furnished to you such opinion or opinions, dated such Time of Delivery, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) Counsel for the Company and the Selling Stockholder satisfactory to you shall have furnished to you their written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to you, which taken together shall be to the effect set forth in Annex II hereto; (d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Arthur Andersen LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto); (e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in Clause (i) or (ii), is in the reasonable judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (f) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities or preferred stock; 10 (g) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company's securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; or (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this Clause (iv) in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (h) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and (i) The Company and the Selling Stockholder shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholder, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholder, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholder of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in Subsections (a) and (e) of this Section. 8. (a) The Company and the Selling Stockholder, jointly and severally, will indemnify and hold harmless the Underwriters against any losses, claims, damages or liabilities, joint or several, to which the Underwriters may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Underwriters for any legal or other expenses reasonably incurred by the Underwriters in connection with investigating or defending any such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company and the Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Underwriters expressly for use therein; PROVIDED, FURTHER, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement under the heading "Selling Shareholder" that relates only to the Selling Shareholder in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein. 11 (b) The Underwriters will indemnify and hold harmless the Company and the Selling Stockholder against any losses, claims, damages or liabilities to which the Company or the Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Underwriters expressly for use therein; and will reimburse the Company and the Selling Stockholder for any legal or other expenses reasonably incurred by the Company or the Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred. (c) Promptly after receipt by an indemnified party under Subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party (which consent shall not be unreasonably withheld), be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such Subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under Subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the 12 Company and the Selling Stockholder on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Stockholder on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholder on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Selling Stockholder bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholder on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Selling Stockholder and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Subsection (d) were determined by PRO RATA allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Subsection (d) the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares were offered to the public exceeds the amount of any damages which the Underwriters have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The obligations of the Company and the Selling Stockholder under this Section 8 shall be in addition to any liability which the Company and the Selling Stockholder may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Underwriters within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company or the Selling Stockholder within the meaning of the Act. 9. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholder and the Underwriters, as set forth in this Agreement or made by them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by the Underwriters or any controlling person of any Underwriter, or the Company, or 13 the Selling Stockholder, or any officer or director or controlling person of the Company, or any controlling person of the Selling Stockholder, and shall survive delivery of and payment for the Shares. 10. If for any reason any Shares are not delivered by or on behalf of the Selling Stockholder as provided herein, the Selling Stockholder will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Stockholder shall then be under no further liability to any Underwriter in respect of Shares not so delivered except as provided in Sections 6 and 8 hereof. 11. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you at 85 Broad Street, New York, New York 10004, Attention: Registration Department; if to the Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to O'Melveny & Myers, 153 E. 53rd Street, New York, New York 10022, Attention: Charles F. Niemeth, Esq., counsel for the Selling Stockholder; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 12. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Stockholder and, to the extent provided in Sections 8 and 9 hereof, the officers and directors of the Company and each person who controls the Company, the Selling Stockholder or the Underwriters, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from the Underwriters shall be deemed a successor or assign by reason merely of such purchase. 13. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 15. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 14 If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement among the Underwriters, the Company and the Selling Stockholder. Very truly yours, Dole Food Company, Inc. By: ------------------------------------- Name: Title: 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: Accepted as of the date hereof at ___________________________: By:. . . . . . . . . . . . . . . (Goldman, Sachs & Co.) 15 ANNEX I Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall furnish letters to the Underwriters to the effect that: (i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder; (ii) In their opinion, the financial statements and any supplementary financial information and schedules (and, if applicable, financial forecasts and/or pro forma financial information) examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the consolidated interim financial statements, selected financial data, pro forma financial information, financial forecasts and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their reports thereon, copies of which have been separately furnished to the Underwriters; (iii) They have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included in the Company's quarterly report on Form 10-Q incorporated by reference into the Prospectus as indicated in their reports thereon copies of which have been separately furnished to the Underwriters; and on the basis of specified procedures including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the unaudited condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (iv) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal years which were included or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years; (v) They have compared the information in the Prospectus under selected captions with the disclosure requirements of Regulation S-K and on the basis of limited procedures specified in such letter nothing came to their attention as a result of the foregoing procedures that caused them to believe that this information does not conform in all material respects with the disclosure requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K; (vi) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that: (A) (i) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related published rules and regulations, or (ii) any material modifications should be made to the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus or included in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus, for them to be conformity with generally accepted accounting principles; (B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (C) the unaudited financial statements which were not included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in Clause (A) and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in Clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (D) any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; 2 (E) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated net current assets or stockholders' equity or other items specified by the Underwriters, or any increases in any items specified by the Underwriters, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (F) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in Clause (E) there were any decreases in consolidated net revenues or operating profit or the total or per share amounts of consolidated net income or other items specified by the Underwriters, or any increases in any items specified by the Underwriters, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Underwriters, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (vii) In addition to the examination referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have carried out certain specified procedures, not constituting an examination in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Underwriters which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference) or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Underwriters or in documents incorporated by reference in the Prospectus specified by the Underwriters, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement. 3 ANNEX II July __, 1996 Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Re: 4,140,000 Shares of Common Stock of Dole Food Company, Inc. for Sale by a Selling Shareholder ----------------------------------------------- Ladies and Gentlemen: We have acted as counsel to [Dole Food Company, Inc. (the ``Company'')][David H. Murdock (the ``Selling Shareholder'') as trustee for the David H. Murdock Living Trust, dated May 28, 1986, as amended], in connection with the Selling Shareholder's sale of up to 4,140,000 shares (the ``Shares'') of common stock, no par value, of the Company. This opinion is rendered to you in compliance with the provisions of Section 7(c) of the Underwriting Agreement, covering the Shares, dated July __, 1996 (the ``Underwriting Agreement''), among the Company, the Selling Shareholder and Goldman, Sachs & Co. (the ``Underwriters''). Unless specifically defined herein, terms and words used herein which are defined in the Underwriting Agreement will have the meanings set forth therein. In our capacity as such counsel, we have examined originals or copies of those corporate and other records and documents we considered appropriate. As to relevant factual matters, we have relied upon, among other things, the factual representations in the [Company's][Selling Shareholder's] certificate, copies of which have been delivered to you (``the [Company's][Selling Shareholder's] Certificate''). In addition, we have obtained and relied upon those certificates of public officials we considered appropriate. We also have examined the registration statement on Form S-3, File No. 333 - [INSERT SEC FILE NO.], filed by the Company with the Securities and Exchange Commission (the ``Commission'') for purposes of registering the Shares under the Securities Act of 1933, as amended (the ``Act''), [Amendment No. 1 to such registration statement], and the prospectus dated [INSERT DATE OF PROSPECTUS]. The registration statement[, as amended,] and the prospectus, excluding the documents incorporated in them by reference, are herein referred to as the ``Registration Statement'' and the ``Prospectus,'' respectively. We also have examined the Company's Annual Report on Form 10-K for the fiscal year ended December 30, 1995 and the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 23, 1996 and June 15, 1996 (collectively, the ``Incorporated Documents''). Page 2 - Goldman, Sachs & Co. - July ___, 1996 We have assumed the genuineness of all signatures (other than the signatures of the [Selling Shareholder][officers of the Company executing the Underwriting Agreement]), the authenticity of all documents submitted to us as originals and the conformity with originals of all documents submitted to us as copies. We have assumed that each natural person who is a party to the transaction has sufficient legal capacity to enter into and carry out his or her obligations under the Underwriting Agreement. To the extent the [Company's][Selling Shareholder's] obligations depend on the due authorization, execution and delivery of the Underwriting Agreement by the other parties to the Underwriting Agreement, we have assumed that the Underwriting Agreement has been so authorized, executed and delivered. On the basis of such examination, our reliance on the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the assumptions, limitations and qualifications in this opinion, we are of the opinion that: [Goodsill] (i) the Company has been duly incorporated and is an existing corporation in good standing under the laws of Hawaii with corporate power to own or lease its properties and to carry on its business as described in the Incorporated Documents; [O'Melveny] (ii) the Company has, as of the date of the consolidated balance sheet of the Company included in the most recent Annual Report on Form 10-K filed prior to the date hereof and incorporated by reference in the Prospectus, the authorized capital stock as set forth in such balance sheet; [Goodsill] the Company has, as of December 30, 1995, authorized 80 million shares of common stock, no par value, and 30 million shares of preferred stock, no par value; the Shares have been duly authorized by all necessary corporate action on the part of the Company and are validly issued, fully paid and nonassessable; and the description of the Common Stock included in the Prospectus under the caption ``Description of Capital Stock'' insofar as it summarizes provisions of the Articles of Association and By-laws of the Company, fairly presents the information required by Form S-3; [Goodsill, O'Melveny] (iii) except for the matters described in the Incorporated Documents, we have not given substantive attention on behalf of the Company to, or represented the Company in connection with, any actions, suits or proceedings pending or threatened to which the Company or any of its subsidiaries is a party or of which any property of the Company or any subsidiary is subject, before any court, arbitrator or governmental agency which individually or in the aggregate are material to the Company and its subsidiaries, taken as a whole; [Goodsill] (iv) the execution, delivery, and performance of the Underwriting Agreement has been duly authorized by all necessary corporate action on the part of the Company; [O'Melveny] the Underwriting Agreement has been duly executed and delivered by the Company; (v) the Company's performance of its obligations under the Underwriting Agreement and the consummation of the transactions contemplated thereby will not [O'Melveny] (a) violate, breach or result in a default under any agreement (the ``Other Agreements'') filed as an exhibit to the Company's Annual Report on Form 10-K for the Company's most recent fiscal year, [Goodsill] Page 3 - Goldman, Sachs & Co. - July ___, 1996 (b) violate the Company's Articles of Association or By-laws, or (c) breach or otherwise violate any existing obligation of or restriction on the Company under any order of any [O'Melveny] California, [Goodsill] Hawaii or [O'Melveny, Goodsill] federal court or governmental authority binding on the Company identified in the Company's Certificate; [O'Melveny] (vi) no consent, approval, permit or order of any federal, California or New York governmental authority is required on the part of the Company for the sale of the Shares or the consummation by the Company of the transactions contemplated by the Underwriting Agreement, except such as may be required by the NASD or the registration under the Act of the Shares or as may be required under state or other securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters; [O'Melveny] (vii) the Registration Statement has been declared effective under the Act and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; [O'Melveny] (viii) the Registration Statement and the Prospectus, and each supplement and amendment thereto, as of their respective effective or issue dates and as of the date hereof, appeared on their face to comply in all material respects with the requirements as to form for registration statements on Form S-3 under the Act and the related rules and regulations of the Commission thereunder, except that we express no opinion as to the financial statements or other financial data included or required to be included in any of the documents mentioned in this clause; the Incorporated Documents, as of their respective dates, appeared on their face to comply in all material respects with the requirements as to forms for reports on Form 10-K and Form 10-Q, as the case may be, under the Securities Exchange Act of 1934, as amended (the ``Exchange Act''), and the related rules and regulations of the Commission thereunder in effect at the respective dates of their filing, except that we express no opinion as to the financial statements or other financial data included or required to be included in any of the documents mentioned in this clause; [P,H,J&W] (ix) the Underwriting Agreement has been duly executed and delivered by the Selling Shareholder; neither the sale of the Shares to be sold by the Selling Shareholder, the compliance by the Selling Shareholder with all of the provisions of the Underwriting Agreement nor the performance of the transactions contemplated therein will violate, breach or result in any default under, (a) any existing obligation of the Selling Shareholder under any agreement listed in the Selling Shareholder's Certificate, or (b) any existing obligation of the Selling Shareholder listed in the Selling Shareholder's Certificate under any order of any California or federal court or governmental authority binding on the Selling Shareholder or the property of the Selling Shareholder; [P,H,J&W] (x) no consent, approval, permit or order of any federal or California court or governmental authority is required on the part Page 4 - Goldman, Sachs & Co. - July ___, 1996 of the Selling Shareholder for the consummation of the transactions contemplated by the Underwriting Agreement in connection with the shares to be sold thereunder by the Selling Shareholder, except such as have been obtained under the Act and such as may be required by the NASD or under state securities laws in connection with the purchase and distribution of the Shares by the Underwriters; and [P,H,J&W] (xi) upon payment for and delivery of the Shares in accordance with the terms of the Underwriting Agreement, assuming the Underwriters are acquiring them in good faith without notice of an adverse claim, the Underwriters will own the Shares free and clear of any adverse claim. [O'M&M] In connection with our participation in the preparation of the Registration Statement and the Prospectus, we have not independently verified the accuracy, completeness or fairness of the statements contained or incorporated therein, and the limitations inherent in the examination made by us and the knowledge available to us are such that we are unable to assume and we do not assume any responsibility for such accuracy, completeness or fairness. However, on the basis of our review of the Registration Statement, the Prospectus and the Incorporated Documents and our participation in conferences in connection with the preparation of the Registration Statement and the Prospectus, and relying as to materiality to a large extent upon opinions of Company officers and other representatives, we do not believe that the Registration Statement and the Incorporated Documents, considered as a whole, as of the effective date of the Registration Statement, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and we do not believe that the Prospectus and the Incorporated Documents, considered as a whole, on the date of the Prospectus or on the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of circumstances under which they were made, not misleading. However, we express no opinion or belief as to any document filed by the Company under the Exchange Act, whether before or after the effective date of the Registration Statement, except to the extent that any such document is an Incorporated Document, read together with the Registration Statement or the Prospectus and considered as a whole, nor do we express any opinion or belief as to the financial statements and other financial information contained or incorporated by reference in the Registration Statement, the Prospectus or the Incorporated Documents. We do not know of any contract or other document of a character required to be filed as an exhibit to the Registration Statement which is not filed as required. We express no opinion concerning federal or state securities laws or regulations, except as otherwise expressly stated herein. For purposes of the opinion(s) expressed in paragraphs [(v) and (vi)] [(ix) and (x)], we have assumed that the [Company] [Selling Shareholder] will not in the future take any discretionary action (including a decision not to act) permitted by the Underwriting Agreement that would cause the performance of the Underwriting Agreement to constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph [(vi)/(x)] or require an order, consent, permit or approval to be obtained from a California, New York or federal governmental authority. Page 5 - Goldman, Sachs & Co. - July ___, 1996 Our use of the term ``to our knowledge'' or similar phrase to qualify a statement in this opinion means that those attorneys in this firm who have given substantive attention to the representation described in the introductory paragraph of this opinion do not have current actual knowledge that the statement is inaccurate. Such terms do not include any knowledge of other attorneys within our firm (regardless of whether they have represented or are representing the Company in connection with any other matter) or any constructive or imputed notice of any matters or items of information. Except as otherwise expressly indicated, we have not undertaken any independent investigation to determine the accuracy of the statement, and any limited inquiry undertaken by us during the preparation of this opinion letter should not be regarded as such an investigation. No inference as to our knowledge of any matters bearing on the accuracy of any such statement should be drawn from the fact of our representation of the Company in connection with this opinion letter or in other matters. The law covered by this opinion is limited to the present federal law of the United States, the present law of the State(s) of [O'M&M - California and New York] [Goodsill - Hawaii] [P,H,J&H - California]. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction. [O'M&M] With respect to the opinions expressed in paragraphs (ii) and (iv), we have relied upon opinions of Goodsill Anderson Quinn and Stifel, dated the date hereof, a copy of which has been delivered to you, as to matters of Hawaii laws. This opinion is furnished by us as counsel for the [Company][Selling Shareholder] to you as the Underwriters in connection with the sale of the Shares and is solely for your benefit as such Underwriters and may not be relied on by, nor may copies be delivered to, any other person without our express prior written consent[, except that O'Melveny & Myers LLP may rely upon this opinion for purposes of an opinion being rendered to you]. Respectfully submitted, EX-5 3 EXHIBIT 5 - OPINION & CONSENT OF GOODSILL ANDERSON [GOODSILL ANDERSON QUINN & STIFEL LETTERHEAD] July 9, 1996 Dole Food Company, Inc. 31355 Oak Crest Drive Westlake Village, CA 91360 Re: Registration Statement -- Sale of Shares held by David H. Murdock, as Trustee for the David H. Murdock Living Trust, dated May 28, 1986 ----------------------------------- Ladies and Gentlemen: This opinion is rendered in connection with the filing by Dole Food Company, Inc., a Hawaii corporation (the "Company") of a Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended, covering the number of shares of Common Stock, without par value of the Company registered by the Registration Statement held by David H. Murdock as Trustee for the David H. Murdock Living Trust dated May 28, 1986 (the "Trustee") which are to be sold by the Trustee (the "Shares"). We have examined such appropriate records of the Company and other documents as we have deemed pertinent as a basis for this opinion. Based upon such examination and upon such matters of fact and law as we have deemed relevant, we are of the opinion that the Shares have been authorized by all necessary corporate action on the part of the Company and the Shares are validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the reference to our firm in the Prospectus which is a part of the Registration Statement under the caption Validity of Shares. Very truly yours, /s/ Goodsill Anderson Quinn & Stifel Goodsill Anderson Quinn & Stifel EX-23.2 4 EXHIBIT 23.2 - CONSENT OF ARTHUR ANDERSON LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors Dole Food Company, Inc.: As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our reports dated February 5, 1996 included in the Dole Food Company, Inc. Annual Report on Form 10-K for the year ended December 30, 1995 and to all references to our Firm included in this Registration Statement. ARTHUR ANDERSEN LLP Los Angeles, California July 9, 1996 -----END PRIVACY-ENHANCED MESSAGE-----