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S & S DRAFT
6/24/94
EXHIBIT 1.1(a)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
________________________________________________________________________________
THE DIAL CORP,
Issuer
[Convertible] [Subordinated] Debt Securities
and
Warrants to Purchase [Convertibel][Subordinated] Debt Securities
UNDERWRITING AGREEMENT
______________________
DATED: ____________,19__
________________________________________________________________________________
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THE DIAL CORP
(a Delaware corporation)
[Convertible] [Subordinated] Debt Securities and
Warrants to Purchase [Convertible] [Subordinated] Debt Securities
UNDERWRITING AGREEMENT
______________________
___________, 19__
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II
hereto
Dear Sirs:
The Dial Corp, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, the
following securities which may be sold either separately or together as
specified in Schedule I hereto (the "Offered Securities"): (1) certain of the
Company's senior debt securities (the "Senior Securities") or its subordinated
debt securities (the "Subordinated Securities"; together with Senior
Securities, the "Debt Securities") or both and (2) warrants (the "Warrants") to
purchase Debt Securities (the "Underlying Debt Securities"), such sale of
Offered Securities to be on the terms and conditions stated herein and in
Schedule II.
The [Senior] [Subordinated] Securities will be issued under
an indenture (the "Indenture") dated as of ________, 199__, between the Company
and [The Chase Manhattan Bank, N.A.] [_____________], as trustee (the
"Trustee"). The Warrants will be issued under one or more warrant agreements
(each of which is sometimes referred to
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as the "Warrant Agreement") between the Company and _____________, as Warrant
Agent (the "Warrant Agent"), as specified in Schedule __. If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
The Subordinated Securities and the Underlying Debt
Securities, if any, may be convertible (collectively, the "Convertible Debt
Securities") into shares of common stock, par value $1.50 per share, of the
Company (the "Common Stock"), as specified in Schedule I. The shares of Common
Stock issuable upon conversion of any Convertible Debt Securities are referred
to herein as the "Shares". [If, at the time of the issuance of any such
Shares, the Rights Agreement (as defined below) is in effect, each such Share
will include, to the extent provided for in the Rights Agreement, one common
stock purchase right (such rights being hereinafter referred to as the
"Rights") entitling the holder thereof to purchase, under certain
circumstances, Common Stock or other property. The Rights are to be issued
pursuant to the Rights Agreement dated as of February 15, 1992, between the
Company and The Valley National Bank of Arizona, as rights agent (such
agreement or a successor thereto, as the same may be amended, being referred to
as the "Rights Agreement").]
Any Debt Securities and Warrants to be sold pursuant to this
Agreement, as specified in Schedule I, are referred to herein separately as the
"Offered Debt Securities" and the "Offered Warrants", respectively, and
collectively as the "Offered Securities". The Offered Securities, the
Underlying Debt Securities, if any, and the Shares, if any, are collectively
referred to as the "Securities".
1. Representations and Warranties.
_______________________________
The Company represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Offered Securities is a
Delayed Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable, and, if the offering of the Offered Securities is
a Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Offered Securities. The
Company may have filed one or more amendments thereto, and
may have used a preliminary
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Final Prospectus, each of which has previously been furnished
to you. Such registration statement, as so amended, has
become effective and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or
threatened by the Commission. The offering of the Offered
Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect
to the Offered Securities and the offering thereof required
by the Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules thereunder to
be included therein as of the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus
included in such registration statement relating to the
Offered Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Offered Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the
offering and sale of the Offered Securities. The Company may
have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective and no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted
or threatened by the Commission. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Offered Securities in accordance with Rules
430A and 424(b)(1) or (4), or (y) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final
prospectus supplement. In the case of clause (x), the
Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be
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included in the Final Prospectus with respect to the Offered
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Offered Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement
did and will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934 (the "Exchange Act") and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date, the Registration Statement
did not 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 in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date, the Indenture did and will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date,
the Final Prospectus, if not filed pursuant to Rule 424(b), did not
and will not, and, on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-l) of the Trustee under the
Trust Indenture Act or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
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(c) The Company has complied and will comply with all
the provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, and all regulations promulgated thereunder
relating to issuers doing business in Cuba.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a)
above contained in the Registration Statement at the Effective Date
including, in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Offered Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus" shall
mean the prospectus supplement relating to the Offered Securities that
is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Offered
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective), and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. "Rule 430A Information" means information
with respect to the Offered Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the
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Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration
statement, with the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with respect to the
securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an
offering of securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement, with
the result that only information required pursuant to Rule 415 need be
included in such registration statement at the effective date thereof
with respect to the securities so offered. Whether the offering of
the Offered Securities is a Non-Delayed Offering or a Delayed Offering
shall be set forth in Schedule I hereto.
2. Purchase and Sale.
__________________
Subject to the terms and conditions and in reliance upon the representations
and warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Offered Debt Securities or the number of
Offered Warrants, or both, set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for the sale
of Offered Securities pursuant to delayed delivery arrangements, the
respective principal amounts of Offered Debt Securities or number of Offered
Warrants to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Offered
Securities to be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing Date,
the percentage set forth in Schedule I hereto of the principal amount of the
Offered Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery
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Contract must be for not less than the minimum principal amount of Offered Debt
Securities or the minimum number of Offered Warrants, or both, set forth in
Schedule I hereto and the aggregate principal amount of Contract Securities may
not exceed the maximum aggregate principal amount of Offered Debt Securities or
the minimum number of Offered Warrants set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Offered
Debt Securities or the number of Offered Warrants, or both, to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal amount or
number, as applicable, of Contract Securities as the principal amount of
Offered Debt Securities or the number of Offered Warrants set forth opposite
the name of such Underwriter bears to the aggregate principal amount or number,
or both (as applicable), set forth in Schedule II hereto, except to the extent
that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Offered Debt Securities or the number of Offered
Warrants to be purchased by all Underwriters shall be the aggregate principal
amount or number, or both (as applicable), set forth in Schedule II hereto less
the aggregate principal amount or number, or both (as applicable), of Contract
Securities.
3. Delivery and Payment.
_____________________
Delivery of and payment for the Underwriters' Securities shall be made on the
date and at the time specified in Schedule I hereto (or such later date not
later than five business days after such specified date as the Representatives
shall designate) which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date"). Delivery of the Underwriters' Securities shall
be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds. Delivery of the
Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Offered Securities shall be
made at the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
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4. Agreements.
___________
The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Offered Securities, the Company will not file
any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Offered Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (vi) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its reasonable efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect
such compliance.
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(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I
hereto, the Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the Offered
Securities and the Underlying Debt Securities or any commercial paper
in the ordinary course of its business).
(g) In the event that the Securities include Shares, the
Company will reserve and keep available at all times, free of
preemptive rights, shares of Common Stock for the purpose of enabling
the Company to satisfy any obligations to issue the Shares issuable
upon conversion of any Securities.
5. Conditions to the Obligations of the Underwriters.
__________________________________________________
The obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York
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City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 PM New York City
time on such date, or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the
Representatives the opinion of L. Gene Lemon, Vice President and
General Counsel for the Company, dated the Closing Date, to the effect
that:
(i) each of the Company and the Subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus,
and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases
material properties or conducts material business;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity
capitalization is as set forth in the Final Prospectus; the
Securities conform to the description thereof contained in
the Final Prospectus; and, if the Securities are to be listed
on any securities exchange, authorization therefor has been
given, subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with such securities
exchange and such counsel has no reason to believe
that the Securities will
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not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iv) [To be included only if the Underwriters
are purchasing Offered Debt Securities.] the Indenture has
been duly authorized, executed and delivered, has been duly
qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect); and the Offered Debt Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(v) [To be included only if the Underwriters
are purchasing Offered Warrants.] (A) the Warrant Agreement
has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and
delivery by the Warrant Agent, constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect); and the
Offered Warrants have been duly executed and issued in
accordance with the provisions of the Warrant Agreement and
delivered to and paid for by the Underwriters pursuant to
this Agreement, in the case of the Underwriters' Securities,
or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of Contract Securities, will
constitute legal, valid and binding obligations of the
Company, entitled to the benefits of the Warrant Agreement;
and
(B) such Offered Warrants have been duly
authorized by the Company and, assuming that the Offered
Warrants have been duly countersigned by the Warrant Agent in
the manner provided for in its certificate delivered to you
at the Closing Time, such Offered Warrants have been duly
executed, issued and delivered by the Company and, when paid
for in accordance with this Agreement [and the Delayed
Delivery Contracts], will constitute valid and binding
obligations of the Company in accordance with their terms,
except as enforcement thereof may be limited
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by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and
(C) the Underlying Debt Securities have been
duly authorized by the Company and, assuming that such
Underlying Debt Securities have been duly executed,
authenticated, issued and delivered upon exercise of the
Offered Warrants in accordance therewith and with the terms
of the Designated Warrant Agreement and the Designated
Indenture, such Underlying Debt Securities will constitute
valid and binding obligations of the Company, entitled to the
benefits of the Designated Indenture and enforceable against
the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or at law);
(vi) [To be included only if the Offered
Securities include Convertible Debt Securities or Offered
Warrants to purchase Convertible Debt Securities.] (A) such
Convertible Debt Securities will be convertible into Shares
in accordance with the terms of the Indenture. Such Shares
have been duly authorized and validly reserved for issuance
by the Company and, when issued and delivered in accordance
with the terms of the Indenture, such Shares will be validly
issued, fully paid and nonassessable. All corporate action
required to be taken for the authorization, issuance and
delivery of such Shares has been validly taken. The issuance
of such Convertible Debt Securities is not, and the issuance
of such Shares upon conversion thereof will not be, subject
to the preemptive rights of any stockholder of the Company;
and
(B) if the Rights Agreement is in effect at the
time of the issuance of such Shares, the Rights Agreement has
been duly authorized, executed and delivered by the Company;
the Rights have been duly authorized by the Company and, when
issued upon issuance of such Shares, will be validly issued;
all corporate action required to be taken for the
authorization, issuance and delivery of such Rights has been
validly taken; the issuance of such Rights upon issuance of
such Shares is not, and the issuance of such shares of Common
Stock upon exercise of such Rights will not be, subject to
any preemptive rights of any stockholder of the
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Company; and the Rights Agreement conforms in all material
respects as to legal matters to the description thereof
contained in the Prospectus;
(vii) each of the Securities, the Indenture and
any Warrant Agreement conforms in all material respect as to
legal matters to the descriptions thereof contained in the
Prospectus;
(viii) to the best knowledge of such counsel,
there is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body,
or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Final Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(ix) the Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Final Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
(x) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered
by the Company;
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14
(xi) no consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation of the transactions contemplated herein
or in any Delayed Delivery Contracts, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Offered Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(xii) neither the issue and sale of the Offered
Securities, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the
terms hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which
the Company or any of its subsidiaries is a party or bound,
or any judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or
any of its subsidiaries; and
(xiii) no holders of securities of the Company
have rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Representatives shall have received from
Shearman & Sterling, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Offered Securities, the Indenture, the Warrant Agreement,
[the Rights Agreement,] any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
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(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplement to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto) there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Deloitte & Touche shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives)
dated as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying
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out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the stockholders, directors
and executive, audit, compensation and nominating committee
of the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus do
not comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company
or decreases in working capital of the Company and
its subsidiaries as compared with the amounts shown
on the most recent consolidated balance sheet
included or incorporated in the Registration
Statement and the Final Prospectus, or for the
period from the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final Prospectus to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year in net revenues or
income before income taxes or in total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for changes
or decreases set
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forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as
to the significance thereof unless said explanation
is not deemed necessary by the Representatives; or
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement and the
Final Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the
information included or incorporated in Items 1, 2, 6, 7 and
11 of the Company's Annual Report on Form l0-K, incorporated
in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) if pro forma financial statements are
included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have
responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
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18
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Deloitte & Touche shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Offered Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
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19
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses.
________________________________________
If the sale of the Offered Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 9 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Offered Securities.
7. Indemnification and Contribution.
_________________________________
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will 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 any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the
21
20
Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the names of the Underwriters set forth on the cover
page of the Prospectus Supplement and under the heading "Plan of
Distribution" in the Prospectus Supplement and the information set
forth under the heading "Plan of Distribution" in the Prospectus
Supplement relating to the after-market activities of the Underwriters
in making a market for, or purchasing in the secondary market, the
Securities in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in the documents referred to in
the foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the
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21
indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively, "Losses"), to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration
23
22
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter.
__________________________
If any one or more Underwriters shall fail to purchase and pay for any of the
Offered Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount of Offered Debt Securities or the number of Offered
Warrants, as applicable, which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of the
Offered Debt Securities or total number of Offered Warrants, as applicable,
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Offered Securities, and if such nondefaulting Underwriters do not
purchase all the Offered Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination.
____________
This Agreement shall be subject to termination in the absolute discretion of
the Representatives, by notice given to the Company prior to delivery of and
payment for the Offered Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the New
York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the Offered Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
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10. Representations and Indemnities to Survive.
___________________________________________
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices.
________
All communications hereunder will be in writing and effective only on receipt,
and, if sent to the Representatives, will be mailed, delivered or telegraphed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at Dial Tower, Phoenix, Arizona 85077, attention of the legal department.
12. Successors.
___________
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. Applicable Law.
_______________
This Agreement will be governed by and construed in accordance with the laws
of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
The Dial Corp
By_______________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed and
accepted as of the date
specified in Schedule I hereto.
Salomon Brothers Inc
Citicorp Securities Markets, Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: Salomon Brothers Inc
By____________________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
26
SCHEDULE I
Underwriting Agreement dated _________, 199__
Registration Statement No. 33-______
Representative(s): Salomon Brothers Inc, Citicorp Securities Markets,
Inc., Goldman, Sachs & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
The Offered Securities shall have the following terms:
[DEBT SECURITIES
Title of Debt Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. __ ; Standard & Poor's
Corporation ___; Duff and Phelps, Inc.___
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
[Initial public offering price: %; plus accrued interest, if any, or
amortized original issue discount, if any, from , l9 .]
Purchase price: %, plus accrued interest, if any, or amortized original issue
discount, if any, from , 19 (payable in next day funds).
Other terms:
[Closing date and location:]]
27
I-2
[DEBT WARRANTS
Number of Debt Warrants to be issued:
Debt Warrant Agent:
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued
with each $ principal
amount of Debt Securities:]
[Detachable data:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price(s) of Debt Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Debt Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
28
SCHEDULE II
[Principal Amount of [Number of
Underwriter Debt Securities Debt Warrants
__________ ____________________ ______________
_______________ ________________
Total $ ] $ ]
=============== ===============
29
SCHEDULE III
Delayed Delivery Contract
, 1994
The Dial Corp
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Dear Sirs:
The undersigned hereby agrees to purchase from The Dial Corp
(the "Company"), and the Company agrees to sell to the undersigned, on________,
199___ (the "Delivery Date"), [$______________ principal amount of the
Company's___________________ (the "Offered Debt Securities") [convertible into
shares of common stock of the Company (the "Shares")]] [with attached]
[Warrants (the "Offered Warrants") to purchase [Title of Underlying Debt
Securities] (the "Underlying Debt Securities")] ([collectively,] the "Offered
Securities"), offered by the Company's Prospectus dated _____________________,
199____, and related Prospectus Supplement dated_______________, 199___ ,
receipt of a copy of which is hereby acknowledged, at a purchase price of
[_________ % of the principal amount thereof][$___ per Offered Warrant], plus
[accrued interest][amortization of original issue discount], if any, thereon
from _______, 199___, to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Offered Securities to be purchased by the
undersigned shall be made on or before _____ AM, New York City time, on the
Delivery Date to or upon the order of the Company in New York Clearing House
(next day) funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the undersigned of
the Offered Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Offered Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal
amount of Offered Debt Securities or the number of Offered Warrants, as
applicable, to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for the Offered Securities on the Delivery Date, and the
obligation of the Company to sell and deliver
30
III-2
the Offered Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of the Offered Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such principal amount of the Offered Securities as is to be sold to them
pursuant to the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale
to the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Offered Securities, and the obligation of the Company to cause
the Offered Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for the Offered
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
31
III-3
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
_______________________________
(Name of Purchaser)
________________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
The Dial Corp
By _________________________
(Authorized Signature)