As filed with the Securities and Exchange Commission on August 1, 2001
Registration No. 333-61689
------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
DOLE FOOD COMPANY, INC.
(Exact name of registrant as specified in its charter)
--------------------
Delaware 99-0035300
(State or other jurisdiction (I.R.S. Employer
of incorporation Identification No.)
or organization)
One Dole Drive
Westlake Village, California 91362-7300
(818) 879-6600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
--------------------
C. MICHAEL CARTER
VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
ONE DOLE DRIVE
WESTLAKE VILLAGE, CALIFORNIA 91362-7300
(818) 879-6600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
CHARLES F. NIEMETH, ESQ.
O'MELVENY & MYERS LLP
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4611
(212) 326-2000
--------------------
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------
Title of Amount to be Proposed Proposed Amount of
securities to registered maximum maximum registration
be registered offering aggregate fee
price per offering
unit price
------------------------------------------------------------------------------
See below(1) N/A N/A N/A N/A
------------------------------------------------------------------------------
(1) No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration Statement No. 333-61689.
Therefore, no further registration fee is required.
The Exhibit Index for this Post-Effective Amendment follows the signature page.
------------------------------------------------------------------------------
DOLE FOOD COMPANY, INC.
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-3
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") to
that certain Registration Statement on Form S-3 (File No. 333-
61689, the "Registration Statement") is being filed pursuant to
Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act") by Dole Food Company, Inc., a Delaware
corporation ("Dole"), which is the successor to Dole Food
Company, Inc., a Hawaii corporation ("Dole Hawaii"), following a
statutory merger effective 11:59 p.m. (Hawaii time), June 30,
2001 (the "Merger") for the purpose of changing Dole Hawaii's
state of incorporation to Delaware. Prior to the Merger, Dole
had no assets or liabilities other than nominal assets or
liabilities. In connection with the Merger, Dole succeeded by
operation of law to all of the assets and liabilities of Dole
Hawaii. The Merger was approved by the stockholders of Dole
Hawaii at the annual meeting of stockholders on June 8, 2001, for
which proxies were solicited pursuant to Section 14(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
Except as modified by this Amendment, Dole, by virtue of
this Amendment, expressly adopts the Registration Statement as
its own registration statement for all purposes of the Securities
Act and the Exchange Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Dole's Certificate of Incorporation provides that a director
of Dole shall not be personally liable to Dole or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to Dole or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for the payment
of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General
Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of Dole shall be eliminated or
limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Any repeal or modification of
the foregoing provisions by the stockholders of Dole shall not
adversely affect any right or protection of a director of Dole
existing at the time of such repeal or modification.
Dole's By-Laws provide that each person (an "indemnitee")
who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he
Page 2
or she is or was a director or an officer of Dole or is or was
serving at the request of Dole as a director, officer or trustee
of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee
benefit plan, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer or trustee or in any
other capacity while serving as a director, officer or trustee,
shall be indemnified and held harmless by Dole to the fullest
extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
Dole to provide broader indemnification rights than such law
permitted Dole to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by the
indemnitee in connection therewith. Nonetheless, except with
respect to proceedings to enforce rights to indemnification, Dole
shall indemnify the indemnitee in connection with a proceeding
(or part thereof) initiated by the indemnitee only if that
proceeding (or part thereof) was authorized by the Board of
Directors of Dole.
In addition, under Dole's By-Laws, an indemnitee shall also
have the right to be paid by Dole the expenses (including
attorney's fees) incurred in defending the proceeding in advance
of its final disposition, provided, however, that, if the
Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which
service was or is rendered by the indemnitee, including, without
limitation, service to an employee benefit plan) shall be made
only upon delivery to Dole of an undertaking by or on behalf of
the indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which
there is no further right to appeal that the indemnitee is not
entitled to be indemnified for those expenses.
Any amendment, alteration or repeal of the above
indemnification provisions of Dole's By-Laws that adversely
affects any right of an indemnitee or his or her successors shall
be prospective only and shall not limit or eliminate any such
right with respect to any proceeding involving any occurrence or
alleged occurrence of any action or omission to act that took
place prior to the amendment or repeal. Dole has obtained
insurance which insures the directors and officers of Dole
against specified losses and which insures Dole against specific
obligations to indemnify its directors and officers.
ITEM 16. EXHIBITS
See the attached Exhibit Index that follows the signature
page.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment
to the Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
Page 3
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered
therein, and the offering of such securities at
that time shall be deemed to be the initial BONA
FIDE offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be
deemed to be a new registration statement relating to
the securities offered therein, and the offering of
such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
executive officers and controlling persons of the
registrant pursuant to the provisions described in Item
15 above, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange
Commission such indemnification is against public
policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of
the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director,
officer or controlling person in connection with the
securities being registered, the
Page 4
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the
eligibility of the trustee to act under subsection (a)
of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the
Securities and Exchange Commission under Section
305(b)(2) of the Trust Indenture Act.
Page 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Westlake Village, State of California, on the 30th day
of July, 2001.
By: /s/ Lawrence A. Kern
----------------------------
Lawrence A. Kern
President and Chief Operating
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Lawrence A. Kern and Kenneth J. Kay as his true and
lawful attorney-in-fact and agent, with full powers of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the
Registration Statement and this Post-Effective Amendment No. 1
to the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 to the Registration
Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ David H. Murdock Chairman of the Board July 30, 2001
---------------------- and Chief Executive
David H. Murdock Officer (Principal
Executive Officer)
/s/ Kenneth J. Kay Vice President and July 30, 2001
---------------------- Chief Financial
Kenneth J. Kay Officer (Principal
Financial Officer)
/s/ Gil Borok Vice President, July 30, 2001
---------------------- Corporate Controller
Gil Borok and Chief Accounting
Officer (Principal
Accounting Officer)
Page S-1
Signature Title Date
--------- ----- ----
Director July 30, 2001
----------------------
Mike Curb
/s/ David A. DeLorenzo Vice Chairman and July 30, 2001
---------------------- Director
David A. DeLorenzo
/s/ E. Rolland Dickson Director July 30, 2001
----------------------
E. Rolland Dickson
/s/ Richard M. Ferry Director July 30, 2001
----------------------
Richard M. Ferry
/s/ Lawrence M. Johnson Director July 30, 2001
----------------------
Lawrence M. Johnson
/s/ Lawrence A. Kern President, July 30, 2001
---------------------- Chief Operating
Lawrence A. Kern Officer and Director
/s/ Zoltan Merszei Director July 30, 2001
----------------------
Zoltan Merszei
Page S-2
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
2.1 Agreement and Plan of Merger by and between Dole Food
Company, Inc. (a Hawaii corporation) and DFCM, Inc. (a
Delaware corporation)*
5.1 Opinion of O'Melveny & Myers LLP (opinion re legality)
23.1 Consent of Arthur Andersen LLP (Independent
Public Accountants)
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit
5.1)
24.1 Powers of Attorney for David H. Murdock, Kenneth J.
Kay, Gil Borok, Mike Curb, David A. DeLorenzo, E.
Rolland Dickson, Richard M. Ferry, Lawrence M.
Johnson, Lawrence A. Kern and Zoltan Merszei**
* Incorporated by reference from Appendix D to the Registrant's
Definitive Proxy Statement on Schedule 14A filed with the
Securities and Exchange Commission on April 25, 2001 (File No.
001-04455).
** See signature page hereto.