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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 11)*
DOLE FOOD COMPANY, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
256605-10-5
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(CUSIP Number)
Roberta Wieman
10900 Wilshire Boulevard, 16th Floor
Los Angeles, CA 90024
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 10, 1996
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement / /.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
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SCHEDULE 13D
CUSIP No. 256605-10-5 Page 2 of 31 Pages
-----------
- -------------------------------------------------------------------------------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
David H. Murdock
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) / /
(b) /X/
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
N/A
- -------------------------------------------------------------------------------
(5) Check box if Disclosure of Legal Proceedings is Required / /
Pursuant to Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
U.S.
- -------------------------------------------------------------------------------
(7) Sole Voting Power
13,864,278
NUMBER OF ---------------------------------------------
SHARES (8) Shared Voting Power
BENEFICIALLY
OWNED BY ---------------------------------------------
EACH (9) Sole Dispositive Power
REPORTING
PERSON 13,864,278
WITH ---------------------------------------------
(10) Shared Dispositive Power
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
13,864,278
- -------------------------------------------------------------------------------
(12) Check box if the Aggregate Amount in Row (11) Excludes / /
Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
23.0%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 256605-10-5 Page 3 of 31 Pages
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- -------------------------------------------------------------------------------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Flexi-Van Corporation
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) / /
(b) /X/
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
N/A
- -------------------------------------------------------------------------------
(5) Check box if Disclosure of Legal Proceedings is Required / /
Pursuant to Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
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(7) Sole Voting Power
1,240,310
NUMBER OF ---------------------------------------------
SHARES (8) Shared Voting Power
BENEFICIALLY
OWNED BY ---------------------------------------------
EACH (9) Sole Dispositive Power
REPORTING
PERSON 1,240,310
WITH ---------------------------------------------
(10) Shared Dispositive Power
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,240,310
- -------------------------------------------------------------------------------
(12) Check box if the Aggregate Amount in Row (11) Excludes / /
Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
2.1%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 256605-10-5 Page 4 of 31 Pages
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- -------------------------------------------------------------------------------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Flexi-Van Leasing, Inc.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) / /
(b) /X/
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
N/A
- -------------------------------------------------------------------------------
(5) Check box if Disclosure of Legal Proceedings is Required / /
Pursuant to Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
(7) Sole Voting Power
1,240,310
NUMBER OF ---------------------------------------------
SHARES (8) Shared Voting Power
BENEFICIALLY
OWNED BY ---------------------------------------------
EACH (9) Sole Dispositive Power
REPORTING
PERSON 1,240,310
WITH ---------------------------------------------
(10) Shared Dispositive Power
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,240,310
- -------------------------------------------------------------------------------
(12) Check box if the Aggregate Amount in Row (11) Excludes / /
Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
2.1%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 256605-10-5 Page 5 of 31 Pages
-----------
- -------------------------------------------------------------------------------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Flexi-Van Delaware, Inc.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) / /
(b) /X/
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
N/A
- -------------------------------------------------------------------------------
(5) Check box if Disclosure of Legal Proceedings is Required / /
Pursuant to Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
(7) Sole Voting Power
1,240,310
NUMBER OF ---------------------------------------------
SHARES (8) Shared Voting Power
BENEFICIALLY
OWNED BY ---------------------------------------------
EACH (9) Sole Dispositive Power
REPORTING
PERSON 1,240,310
WITH ---------------------------------------------
(10) Shared Dispositive Power
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,240,310
- -------------------------------------------------------------------------------
(12) Check box if the Aggregate Amount in Row (11) Excludes / /
Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
2.1%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Page 6 of 31 Pages
The Schedule 13D, as previously amended, relating to the Common Stock of Dole
Food Company, Inc. ("Dole"), is hereby further amended with respect to the
items set forth below. This amendment is being filed to update certain
information from the previous amendment, including the number of Dole employee
stock options held by the Reporting Person and with respect to certain
changes in the information provided regarding the purpose of the transaction.
ITEM 1. SECURITY AND ISSUER.
Item 1 is hereby amended in its entirety by substituting the following:
This Statement relates to the Common Stock of Dole Food Company, Inc.
("Dole"), a Hawaii corporation, whose principal executive offices are located
at 31365 Oak Crest Drive, Westlake Village, California 91361. On July 1,
1996, Dole had outstanding 60,064,280 shares of Common Stock, according to
information provided by Dole as of such date.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended in its entirety by substituting the following:
Mr. Murdock intends to offer for sale in an underwritten offering up to
3,600,000 shares of the Common Stock of Dole and, at the election of the
underwriters, up to 540,000 additional shares. See Exhibit 2 hereto for the
current form of the draft of the underwriting agreement. These shares are
being sold to afford Mr. Murdock more liquidity in his investment portfolio
and to pay down certain debt. A Registration Statement with respect to such
offering was filed today with the Securities and Exchange Commission.
Mr. Murdock continues to regard the Dole stock as an attractive investment.
Based on his continuing evaluation of Dole, alternative investment
opportunities and all other factors deemed relevant, he may in the future
elect to sell all or a portion of his remaining Dole shares or, assuming the
availability of additional shares at prices regarded as acceptable, and
subject to applicable law, elect to acquire additional shares of Dole for
investment on the open market or in privately negotiated transactions.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Paragraph 1 of Item 5 is hereby amended in its entirety by substituting the
following:
Mr. Murdock has beneficial ownership of 13,864,278 (approximately 23%) of the
outstanding shares of Dole Common Stock. Of such shares, 12,263,622 are held
by Mr. Murdock as trustee of the David H. Murdock Living Trust ("Murdock
Trust"), dated May
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Page 7 of 31 Pages
28, 1986, as amended. In accordance with Rule 13d-3(d)(1)(i), this computation
of shares beneficially owned by Mr. Murdock includes 279,476 shares (less
than 1%) issuable upon exercise of employee stock options, 1,240,310 shares
(approximately 2.1%) held by Flex Delaware, which is indirectly controlled by
Mr. Murdock, and 80,870 shares held by or for the benefit of Mr. Murdock's
children.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is amended by inserting the following:
The Murdock Trust and Mr. Murdock expect to enter into a firm commitment
underwriting agreement with Goldman, Sachs & Co. with respect to the up to
4,140,000 shares to be offered. See Exhibit 2 for the form of the current
draft of such underwriting agreement with Goldman, Sachs & Co.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is amended by inserting the following paragraph:
Exhibit 2. Form of current draft of Underwriting Agreement with Goldman,
Sachs & Co.
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Page 8 of 31 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete
and correct.
Dated this 9th day of July, 1996.
Flexi-Van Corporation
Flexi-Van Leasing, Inc.
Flexi-Van Delaware, Inc.
By /s/ DAVID H. MURDOCK
-----------------------------------------
David H. Murdock, as Chairman of
the Board and Chief Executive Officer
By /s/ DAVID H. MURDOCK
-----------------------------------------
David H. Murdock, as an individual and as
Trustee of the David H. Murdock Living
Trust, dated May 28, 1986, as amended
<PAGE>
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
<PAGE>
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
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(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
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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
<PAGE>
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
<PAGE>
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
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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
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<PAGE>
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
<PAGE>
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
<PAGE>
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;
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<PAGE>
(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
<PAGE>
(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
<PAGE>
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
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<PAGE>
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.
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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
<PAGE>
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;
<PAGE>
(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
<PAGE>
(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
<PAGE>
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>
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>
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>
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>
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,
