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S & S DRAFT
6/24/94
EXHIBIT 1.1(b)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS.
________________________________________________________________________________
THE DIAL CORP
Preferred Stock, Depositary Shares, Common Stock
and/or
Warrants to Purchase Common Stock
UNDERWRITING AGREEMENT
______________________
Dated: ___________, 19__
________________________________________________________________________________
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THE DIAL CORP
(a Delaware corporation)
Preferred Stock, Depositary Shares, Common Stock and/or
Warrants to Purchase Common Stock
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) shares of the Company's
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), (2)
depositary shares (the "Offered Depositary Shares") evidenced by depositary
receipts (the "Offered Receipts") representing an interest in shares of
Preferred Stock, which Offered Depositary Shares are to be issued pursuant to a
deposit agreement (the "Deposit Agreement") among the Company, _____________
(the "Depositary") and the holders from time to time of such Offered Receipts,
(3) shares of the Company's Common Stock, par value $1.50 per share (the
"Common Stock") and (4) warrants to purchase shares of Common Stock (the
"Offered Warrants"), which warrants are to be issued pursuant to a warrant
agreement (the "Common Stock Warrant Agreement")
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between the Company and ____________ (the "Common Warrant Agent"), such sale of
Offered Securities to be on the terms and conditions stated herein and in
Schedule II.
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 shares of Preferred Stock may be convertible (the
"Convertible Preferred Stock") into shares of Common Stock in accordance with
the terms of the certificate of designations relating to such Preferred Stock
(the "Certificate of Designations"), as specified in Schedule I.
Any shares of Common Stock issuable upon exercise of Offered
Warrants or upon conversion of shares of Preferred Stock are collectively
referred to herein as the "Shares". [If, at the time of the issuance of any
such Shares or Offered Common Stock, the Rights Agreement (as defined below) is
in effect, each such Share and share of Offered Common Stock will include, to
the extent provided for in the Rights Agreement, one Junior Preferred Stock
purchase right (such rights being hereinafter referred to as the "Rights")
entitling the holder thereof to purchase, under certain circumstances, Junior
Preferred 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 shares of Preferred Stock and Common Stock to be sold
pursuant to this Agreement, as specified in Schedule I, are referred to herein
separately as the "Offered Preferred Stock" and the "Offered Common Stock",
respectively, and collectively as the "Offered Securities". The Offered
Securities, the shares of Preferred Stock represented by the Offered Depositary
Shares, 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
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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 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
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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
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 and the Securities
Exchange Act of 1934 (the "Exchange 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; 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 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 number of Offered Securities 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 number of Offered Securities 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 number 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 Contract must be for not less
than the minimum number of Offered Securities set forth in
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Schedule I hereto and may not exceed the maximum number of Offered Securities
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 number of Offered Securities 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 number of Contract Securities
as the number of Offered Securities set forth opposite the name of such
Underwriter bears to the aggregate number 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 number of Offered Securities to be purchased by all
Underwriters shall be the aggregate number set forth in Schedule II hereto less
the aggregate number 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.
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
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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.
(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
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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 (including 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 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
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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 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 Preferred Stock.] (A) such Offered Preferred
Stock has been duly authorized and, when issued in accordance
with the terms of the Certificate of Designations and paid for
in accordance with this Agreement [and the Delayed Delivery
Contracts], will be validly issued, fully paid and
nonassessable. All corporate action required to be taken for
the
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authorization, issuance and delivery of such Offered Preferred
Stock has been validly taken. The issuance of such Offered
Preferred Stock is not subject to any preemptive rights of any
stockholder of the Company;
[To be included only if the Underwriters are purchasing
Offered Preferred Stock that includes Offered Convertible
Preferred Stock.] (B) such Offered Preferred Stock is
convertible into Common Stock in accordance with the terms of
the Offered Preferred Stock and the Certificate of Designations.
The Shares issuable upon conversion of such shares of Offered
Preferred Stock have been duly authorized and validly reserved
for issuance by the Company upon such conversion and, when
issued in accordance with the terms of such Offered Preferred
Stock and the Certificate of Designations, 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 Shares upon the conversion thereof will not be subject to
the preemptive rights of any stockholder of the Company;
(v) [to be included only if the Underwriters are
purchasing Offered Depositary Shares.] (A) the Deposit
Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and
delivery by the Depositary, the Deposit Agreement constitutes a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its 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);
(B) the Offered Depositary Shares have been duly
authorized. When the Offered Receipts are executed,
countersigned, issued and delivered in the manner provided for
in the Deposit Agreement, such Offered Depositary Shares
evidenced thereby, when sold and paid for in accordance with
this Agreement [and the Delayed Delivery Contracts], will
represent legal and valid interests in the Preferred Stock
deposited by the Company with the Depositary pursuant to the
terms of the Deposit Agreement and will entitle the holder of
such Offered Receipts to the benefits of the Deposit Agreement;
(C) the shares of Preferred Stock being delivered to the
Depositary and represented by such Offered Depositary Shares
have been duly
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authorized and, when issued and delivered to the Depositary
against delivery of Offered Receipts to the Underwriters, will
be validly issued, fully paid and nonassessable. All corporate
action required to be taken for the authorization, issuance and
delivery of such Preferred Stock and Offered Depositary Shares
has been validly taken. The issuance of such Preferred Stock
and the Offered Depositary Shares is not subject to any
preemptive rights of any stockholder of the Company;
(D) [To be included only of the Underwriters are
purchasing Offered Depositary Shares evidencing an interest in
Convertible Preferred Stock.] such Preferred Stock is
convertible into Common Stock in accordance with the terms of
the Convertible Preferred Stock and the Certificate of
Designations. The Shares issuable upon conversion of such
shares of Convertible Preferred Stock represented by such
Offered Depositary Shares have been duly authorized and validly
reserved for issuance by the Company upon such conversion and,
when issued in accordance with the terms of such Convertible
Preferred Stock and the Certificate of Designations, 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 Shares upon the conversion thereof will not
be subject to the preemptive rights of any stockholder of the
Company;
(vi) [To be included only if the Underwriters are
purchasing Offered Common Stock.] such Offered Common Stock has
been duly authorized and, when issued and paid for in accordance
with this Agreement [and the Delayed Delivery Contracts], will
be validly issued, fully paid and nonassessable. All corporate
action required to be taken for the issuance, delivery and sale
of such Offered Common Stock has been validly taken. The
issuance of the Offered Common Stock is not subject to any
preemptive rights of any stockholder of the Company;
(vii) [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
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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;
(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 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);
(C) the Shares have been duly authorized by the
Company and validly reserved for issuance by the Company upon
such exercise and, when issued and delivered in accordance with
the terms of the Warrant Agreement, 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 Offered Warrants is not, and the issuance of such Shares
upon exercise of the Offered Warrants will not be, subject to
the preemptive rights of any stockholder of the Company;
(viii) [To be included only if the Underwriters are
purchasing Offered Common Stock, Offered Warrants or Offered
Preferred Stock that includes Convertible Preferred Stock.] if
the Rights Agreement is in effect at the time of the issuance of
the Shares or shares of Offered Common Stock, the Rights
Agreement has been duly authorized, executed and delivered by
the Company and, when issued upon issuance of such Shares or
shares of Offered Common Stock, 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 or shares
of Offered Common Stock 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;
(ix) each of the Securities, the Deposit Agreement and
any Warrant Agreement conforms in all material respect as to
legal matters to the descriptions thereof contained in the
Prospectus;
(x) 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;
(xi) 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 and the Exchange 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;
(xii) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company;
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(xiii) 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;
(xiv) 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
(xv) 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 Deposit Agreement, 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 10-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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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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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
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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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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
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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 number of
Offered 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 number of the Offered 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.
27
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:
Title of Securities:
A. General
Closing date, time and location:
Other terms and conditions:
B. Terms of Preferred Stock (if any)
Designation:
Liquidation preference per share:
Number of shares:
Public offering price: $___________________
Purchase price per share (include accrued dividends,
if any): $____________________
Convertibility into Common Stock:
Listing requirement: [None] [NYSE] [Any other stock exchange]
Delayed delivery contracts: [Authorized] [Not Authorized]
[If delayed delivery contracts are authorized
(i) Delivery date:
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(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
C. Terms of Offered Depositary Shares Representing Preferred Stock
(if any)
Designation:
Liquidation preference per share:
Number of shares:
Public offering price: $________________
Purchase price per share (include accrued dividends, if any):
Listing requirements: [None] [NYSE] [any other stock exchange]
[If delayed delivery contracts are authorized
(i) Delivery date:
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
D. Common Stock (if any)
Number of shares of Common Stock:
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Purchase price per share: $___________________
Public offering price: $___________________
[If delayed delivery contracts are authorized
(i) Delivery date:
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
E. Common Warrants (if any)
Number of Common Warrants to be issued:
Form of Common Warrants: [Registered] [Bearer]
Date on which Common Warrants are first exercisable:
Date on which Common Warrants expire:
Exercise price(s) of one Common Warrant:
Number of shares of Common Stock purchasable upon exercise of one
Common Stock Warrant:
Public offering price: $___________________
Purchase price: $___________________
Listing requirement: [None] [NYSE] [any other stock exchange]
[If delayed delivery contracts are authorized
(i) Delivery date:
30
I-4
(ii) Minimum principal amount per contract:
(iii) Minimum aggregate principal amount:
(iv) Maximum aggregate principal amount:
(v) Fee: %]
Other provisions:
31
SCHEDULE II
Number of Shares of
Underwriter Securities
___________ ____________________
____________________
Total
=====================
32
SCHEDULE III
Delayed Delivery Contract
, 1994
The Dial Corp
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Dear Sirs:
The undersigned hereby agrees to purchase from The Dial Corp
(the "Company"), and the Company agrees to sell to the undersigned, on
, 199__ (the "Delivery Date"), [number] of the Company's ___________________
[with attached] Securities [collectively,] the "Offered Securities"), offered
by the Company's Prospectus dated ___________________, 199__, and related
Prospectus Supplement dated ________________________, 199___, receipt of a copy
of which is hereby acknowledged, at a purchase price of [$___ per Offered
Security], 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 number of Offered
Securities 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 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
33
III-2
number 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.
34
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)