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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 10, 1995
DEL WEBB CORPORATION
DELAWARE 86-0077724
(STATE OR OTHER JURISDICTION 1-4785 (I.R.S. EMPLOYER
OF INCORPORATION) (COMMISSION FILE NUMBER) IDENTIFICATION NUMBER)
6001 NORTH 24TH STREET
PHOENIX, ARIZONA 85016
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (602) 808-8000
NONE
(FORMER NAME OR FORMER ADDRESS , IF CHANGED SINCE LAST REPORT)
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Item 5. Other Events
Exhibit 1.1 hereto is the Underwriting Agreement dated August 10,
1995 among Del Webb Corporation and Underwriters for which Dillon Read & Co.
Inc. and Montgomery Securities are acting as Representatives.
Item 7. Financial Statements and Exhibits.
Exhibits
--------
1.1 Underwriting Agreement dated August 10, 1995 among the
Company, Dillon, Read & Co. Inc. and Montgomery
Securities.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DEL WEBB CORPORATION
By: ROBERTSON C. JONES
---------------------------
Robertson C. Jones
Vice President and
General Counsel
August 10, 1995
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
1.1 Underwriting Agreement dated August 10, 1995
among the Company, Dillon, Read & Co. Inc.
and Montgomery Securities.
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DEL WEBB CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
DATED AUGUST 10, 1995
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UNDERWRITING AGREEMENT
August 10, 1995
DILLON, READ & CO. INC.
MONTGOMERY SECURITIES
c/o Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
Dear Sirs:
Del Webb Corporation (the "Company") proposes to issue and sell to the
Underwriters named in Schedule I annexed hereto (the "Underwriters") 2,350,000
shares (the "Firm Shares") of Common Stock, par value $.001 per share (the
"Common Stock"), of the Company. In addition, solely for the purpose of covering
overallotments, the Company proposes to issue and sell, at the Underwriters'
option, an aggregate of up to 352,500 additional shares of the Common Stock (the
"Additional Shares"). The Additional Shares and the Firm Shares are collectively
referred to as the "Shares." The Shares are described in the Prospectus which is
referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a shelf registration statement on Form S-3, and Amendment
No.1 thereto, including a prospectus, relating to $200,000,000 of securities,
including the Shares, which incorporates by reference documents that the Company
has filed or will file in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). As used in this Agreement, "Base
Prospectus" shall mean the prospectus included in the Registration Statement
when it became effective under the Act on July 21, 1995, as it may have been
amended subsequent to that date to the date hereof. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of a preliminary
prospectus supplement, including the Base Prospectus contained therein and all
documents incorporated by reference therein (collectively, the "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the shelf registration statement and Amendment No. 1 thereto, as in
effect at the time of execution of this Agreement, including all documents filed
as part thereof or incorporated by reference therein, and including the Base
Prospectus, is herein called the "Registration Statement," and the final
prospectus supplement relating to the Shares, including (i) the Base Prospectus
and (ii) all documents incorporated therein or in the Base Prospectus by
reference, in the form first filed by the Company with the Commission pursuant
to Rule 424(b)(2) under the Act, is herein called the "Prospectus."
The Company and the Underwriters agree as follows:
1. Sale and Purchase: Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
attached hereto in each case at a purchase price of $18.48 per Share. You shall
release the Shares for public sale promptly after this Agreement becomes
effective. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, on the basis of the representations and warranties and the
other terms and conditions herein set forth, the Company hereby grants to the
several Underwriters an option to purchase, and the Underwriters shall have the
right to purchase, severally and not jointly, from the Company all or a portion
of the Additional Shares as may be
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necessary to cover overallotments made in connection with the offering of the
Firm Shares, at the same purchase price per Share to be paid by the several
Underwriters to the Company for the Firm Shares. This option may be exercised at
any time (but not more than once) on or before the thirtieth day following the
date hereof, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (such date
and time being herein referred to as the "Additional Time of Purchase");
provided, however, that the Additional Time of Purchase shall not be earlier
than the Time of Purchase (as defined below) nor earlier than the second
business day (1./) after the date on which the option shall have been exercised
nor later than the eighth business day after the date on which the option shall
have been exercised. The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter on Schedule I bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares).
2. Payment and Delivery: Payment of the purchase price for the Firm
Shares shall be made to the Company by certified or official bank check in New
York Clearing House funds, at the office of Dillon, Read & Co. Inc. in New York
City, against delivery of the certificates for the Firm Shares to you for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York City time, on August 16, 1995 (unless another time not
later than August 16, 1995 shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are actually made is hereinafter sometimes
called the "Time of Purchase." Certificates for the Firm Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify on the second business day preceding the Time of Purchase. For
the purpose of expediting the checking of the certificates for the Firm Shares
by you, the Company agrees to make such certificates available to you for such
purpose at least one full business day preceding the Time of Purchase.
Payment of the purchase price for the Additional Shares shall be made
at the Additional Time of Purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify on the second business day preceding the Additional Time of
Purchase. For the purpose of expediting the checking of the certificates for the
Additional Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the Additional
Time of Purchase.
3. Representations and Warranties of the Company: The Company
represents and warrants to each of the Underwriters that:
(a) each Preliminary Prospectus filed pursuant to Rule 424
under the Act complied in all material respects with the Act; when the
Registration Statement became effective and at all times subsequent
thereto up to the Time of Purchase and the Additional Time of Purchase,
the Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied and will comply in all material respects
with the provisions of the Act, and the Registration Statement at all
such times did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no warranty or representation
with respect to any statement contained in the Prospectus in reliance
upon and in conformity with information concerning the Underwriters and
furnished in writing by or on behalf of any Underwriter through you to
the Company expressly for use in the Prospectus and set forth in the
section of the Prospectus entitled "Underwriting"; the documents
incorporated by reference in the Prospectus, at the time
- -------------------
(1./) As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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they were filed (or, if an amendment with respect to any such document
was filed, when such amendment was filed) with the Commission, complied
in all material respects with the requirements of the Exchange Act,
and, except to the extent, if any, they are modified or superseded by
the Registration Statement or the Prospectus, do not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
and the Company has complied and, until completion of the offering of
the Shares will continue in the future to comply, with its obligations
under the Exchange Act;
(b) the conditions for use of a registration statement on Form
S-3 set forth in the General Instructions to Form S-3 have been
satisfied with respect to the Company and the transactions contemplated
by this Agreement and the Registration Statement and Prospectus;
(c) the consolidated capitalization of the Company as of June
30, 1995 is as set forth under the column entitled "June 30, 1995 -
Actual" in the section of the Prospectus entitled "Capitalization" and,
as of the Time of Purchase, assuming the Time of Purchase had been June
30, 1995 and giving effect to the use of the net proceeds of the
offering as of that date, the consolidated capitalization of the
Company shall be as set forth under the column entitled "June 30, 1995
- As Adjusted" in the section of the Prospectus entitled
"Capitalization"; all of the issued and outstanding shares of capital
stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable; the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full power and authority
(i) to own its properties and conduct its business as described in the
Registration Statement and Prospectus, and (ii) to execute, deliver and
perform its obligations under this Agreement and to issue, sell and
deliver the Shares as herein contemplated;
(d) the Company and each of its subsidiaries listed on
Schedule II attached hereto (the "Operating Subsidiaries") are duly
qualified or licensed by and are in good standing in each jurisdiction
in which they conduct their respective business and in which the
failure to be so licensed or qualified could have a material adverse
effect on the condition (financial or other), business, prospects or
results of operations of the Company and subsidiaries taken as a whole;
the Company and each of the Operating Subsidiaries are in compliance
with the laws, orders, rules, regulations and directives issued or
administered by each such jurisdiction, except where the failure to be
in compliance will not have a material adverse effect on the condition
(financial or other), business, prospects or results of operations of
the Company and its subsidiaries taken as a whole; all of the
outstanding capital stock or other securities evidencing equity
ownership of each of the Operating Subsidiaries have been duly and
validly authorized and issued and are fully paid and non-assessable,
and are directly or indirectly owned by the Company; each Operating
Subsidiary has been duly organized and is validly existing under the
laws of the jurisdiction pursuant to which such Operating Subsidiary is
incorporated or organized, and each Operating Subsidiary has full power
and authority to own its properties and conduct its business as
described in the Registration Statement and Prospectus; no subsidiary
of the Company other than an Operating Subsidiary, accounted for more
than one percent of the Company's consolidated assets, revenues or
pre-tax earnings at and for the fiscal year ended June 30, 1995 or is
expected to account for more than one percent of the Company's
consolidated assets, revenues or pre-tax earnings at and for the fiscal
year ending June 30, 1996; and the Company and the Operating
Subsidiaries accounted for more than 99% of the Company's consolidated
assets, revenues and net earnings at and for the fiscal year ended June
30, 1995 and are expected to account for more than 99% of the Company's
consolidated assets, revenues and net earnings at and for the fiscal
year ending June 30, 1996;
(e) neither the Company nor any of its subsidiaries is in
breach of, or in default under (nor has any event occurred which with
notice, lapse of time or both would constitute a breach of, or default
under), its respective charter or bylaws or in the performance or
observance of any license, obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by
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which any of them is bound, which breach or default could have a
material adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company and its
subsidiaries taken as a whole; and the execution, delivery and
performance of this Agreement and the issuance of the Shares and
consummation of the transactions contemplated hereby will not conflict
with, or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time or both would
constitute a breach of, or default under), any provision of the charter
or bylaws of the Company or any of the Operating Subsidiaries or under
any provision of any license, indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which the
Company or any of the Operating Subsidiaries is a party or by which any
of them or their respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any of its
Operating Subsidiaries;
(f) the Firm Shares and the Additional Shares, when issued and
delivered to and paid for by the Underwriters as contemplated hereby,
will be duly authorized and validly issued and fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance,
security interest, preemptive right or other claim;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or
state securities laws or announced public policy;
(h) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus; and the certificates
for the Shares are in due and proper form and the holders of the Shares
after making payment in full therefor will not be subject to personal
liability solely by reason of being such holders;
(i) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares as contemplated hereby other
than registration of the Shares under the Act, any necessary
qualification or exemption under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters and the filing of this Agreement with the Commission as an
exhibit to a Form 8-K, which filing the Company agrees to make in a
timely manner and in any event prior to the Time of Purchase;
(j) no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
securities of the Company as a consequence of the issue and sale of the
Shares to the Underwriters hereunder, nor does any person have
preemptive rights, rights of first refusal or other rights to purchase
any of the Shares;
(k) KPMG Peat Marwick LLP, whose reports on the consolidated
financial statements of the Company and its subsidiaries are included
or incorporated by reference in the Registration Statement and
Prospectus, are independent public accountants with respect to the
Company as required by the Act;
(l) each of the Company and the Operating Subsidiaries has all
necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all authorizations,
consents and approvals necessary to date from other persons, in order
to conduct its respective business, in each case where the absence of
which would have a material adverse effect on the condition (financial
or other), business, prospects or results of operations of the Company
and its subsidiaries taken as a whole; neither the Company nor any of
the Operating Subsidiaries is in violation of, or in default under, any
such license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any
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decree, order or judgment applicable to the Company or any of the
Operating Subsidiaries the effect of which would have a material
adverse effect on the condition (financial or other), business,
prospects or results of operations of the Company and its subsidiaries
taken as a whole;
(m) all legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(n) there is no action, suit, or proceeding pending or, to the
best knowledge of the Company, threatened against the Company or any of
its subsidiaries or any of their respective properties, at law or in
equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency
that could result in a judgment, decree or order having a material
adverse effect on the condition (financial or other), business,
prospects or results of operations of the Company and its subsidiaries
taken as a whole;
(o) the audited financial statements included in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows of the Company and its subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with generally accepted accounting principles, applied on a consistent
basis during the periods involved;
(p) subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
may be otherwise stated in or contemplated by the Registration
Statement or Prospectus, there has not been (A) any material adverse
change in the business, prospects or results of operations of the
Company and its subsidiaries taken as a whole, (B) any transaction that
is material to the Company and its subsidiaries taken as a whole,
proposed or entered into by the Company or any of its subsidiaries or
(C) any obligation, contingent or otherwise, directly or indirectly,
incurred by the Company or any of its subsidiaries that is material to
the Company and its subsidiaries taken as a whole;
(q) there is no claim pending or threatened or to the best
knowledge of the Company, contemplated under any Environmental Law (as
defined below) against the Company or any subsidiary which, if
adversely determined, would have a material adverse effect on the
condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries taken as a whole; there
are no past or present actions or conditions including, without
limitation, the release of any hazardous substance or waste regulated
under any Environmental Law that are likely to form the basis of any
such claim under existing law against the Company or any of its
subsidiaries, which, if adversely determined, would have a material
adverse effect on the condition (financial or other), business,
prospects or results of operations of the Company and its subsidiaries
taken as a whole. The term "Environmental Law" means any federal,
state, local or foreign law, rule or regulation now in effect governing
pollution or protection of the environment;
(r) the Company or the applicable subsidiary has good and
marketable title to all properties and assets reflected as owned in the
financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (i) those reflected in such financial
statements (or elsewhere in the Prospectus), (ii) those existing in the
ordinary course in connection with the business of the Company and its
subsidiaries and which do not adversely affect the use made and
proposed to be made of such property by the Company and its
subsidiaries taken as a whole or (iii) those which are not material in
amount and do not adversely affect the use made and proposed to be made
of such property by the Company and its subsidiaries taken as a whole.
The Company or the applicable subsidiary holds its material leased
properties, if any, under valid and binding leases, with such
exceptions as are not materially significant in relation to the
business of the Company and its subsidiaries taken as a whole;
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(s) the Company has agreed, and has obtained the agreement of
the Company's directors and executive officers listed on Schedule III,
not to sell, contract to sell, grant any option to sell, transfer or
otherwise dispose of, directly or indirectly, any shares of Common
Stock, or securities convertible into or exchangeable for Common Stock
or warrants or other rights to purchase Common Stock for a period of 90
days from the date of the Prospectus without the prior written consent
of Dillon, Read & Co. Inc., except that the Company may, without that
consent, issue shares of Common Stock pursuant to its existing stock
and benefit plans;
(t) neither the Company nor any of the Operating Subsidiaries,
nor any employee of the Company or any of the Operating Subsidiaries,
has made any payment of funds of the Company or any of the Operating
Subsidiaries prohibited by law, and no funds of the Company or any of
the Operating Subsidiaries have been set aside to be used for any
payment prohibited by law;
(u) the Company and its subsidiaries have filed all federal or
state income or franchise tax returns required to be filed and have
paid all taxes shown thereon as due, and there is no material tax
deficiency which has been or could be properly asserted against the
Company or any of its subsidiaries; all material tax liabilities are
adequately provided for on the books of the Company and its
subsidiaries;
(v) the Company has not incurred any liability for any
finder's fees or similar payments in connection with the transactions
herein contemplated; and
(w) neither the Company nor any of its subsidiaries is an
investment company within the meaning of the Investment Company Act of
1940, as amended, or is subject to regulation thereunder.
4. Certain Covenants of the Company: The Company hereby covenants and
agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect as long as
required for the distribution of the Shares, provided that the Company
shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Shares); to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and to use its best efforts to obtain
the withdrawal of any order of suspension at the earliest practicable
moment;
(b) from time to time to furnish to the Underwriters as many
copies of the Prospectus (as amended or supplemented) as the
Underwriters may reasonably request;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when any amendment to the
Registration Statement has been filed or become effective and (ii) when
the Prospectus is filed with the Commission pursuant to Rule 424(b)(2)
under the Act (which the Company agrees to file in a timely manner
under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for,
or the entry of a stop order suspending the effectiveness of, the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to make
every reasonable effort to obtain the lifting or removal of such order
as soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or Prospectus, including by
filing any documents that
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would be incorporated therein by reference and to file no such
amendment or supplement to which you shall reasonably object in
writing;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of eight years from the date of this
Agreement, but only so long as the Company is subject to the periodic
reporting requirements of the Exchange Act (or, if shorter, the period
of time the Shares are outstanding) (i) copies of any reports or other
communications that the Company shall send to its stockholders
generally or shall from time to time publish or publicly disseminate,
(ii) copies of all annual, quarterly and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as
may be designated by the Commission, and (iii) such other
non-confidential information as you may reasonably request regarding
the Company and which is produced by the Company in the ordinary course
of business;
(f) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the
Act which, in the judgment of the Company, would require the making of
any change in the Prospectus then being used or in the information
incorporated therein by reference, so that the Prospectus, as then
supplemented, would not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change in such quantities as reasonably requested by the Underwriters
and to furnish to you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(g) to make generally available to its securityholders and to
deliver to you (if not otherwise delivered pursuant to Section 4(e)
hereof), an earnings statement of the Company (which need not be
audited and will satisfy the provisions of Section 11(a) of the Act
including, at the option of the Company, by complying with Rule 158
under the Act) covering a period of twelve months beginning after the
effective date of the Registration Statement as soon as is reasonably
practicable after the termination of such twelve-month period but not
later than fifteen months after the effective date of the Registration
Statement;
(h) to furnish to you three (3) signed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and such additional conformed copies
thereof as you shall reasonably request;
(i) to furnish to you as early as practicable prior to the
Time of Purchase and the Additional Time of Purchase, as the case may
be, but no later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements,
if any, of the Company and its subsidiaries that have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(c) of this Agreement;
(j) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Registration Statement and Prospectus;
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective
or is terminated, to pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and (iv) below)
in connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the issuance, sale and delivery of
the Shares, (iii) the reproduction and furnishing of copies of this
Agreement and any dealer agreements to the Underwriters and to dealers
(including costs of mailing
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and shipment), (iv) the qualification of the Shares for offering and
sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel in connection with such
state law matters) and the furnishing of copies of any blue sky surveys
or legal investment surveys to the Underwriters and to dealers, (v) the
listing of the Shares on the New York Stock Exchange and Pacific Stock
Exchange, (vi) any filing fee for review of the public offering of the
Shares by the National Association of Securities Dealers, Inc. and
(vii) the performance of the Company's other obligations hereunder;
(l) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (f) above, a copy of any
document proposed to be filed pursuant to Sections 13, 14 or 15(d) of
the Exchange Act;
(m) not to sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or permit
the registration under the Act of any shares of Common Stock, except
for the registration of the Shares and the sale of the Shares to you
pursuant to this Agreement, for a period commencing on the date hereof
and continuing for 90 days after the date of the Prospectus, without
the prior written consent of Dillon, Read & Co. Inc., except that the
Company may, without that consent, issue shares of Common Stock
pursuant to its existing stock and benefit plans;
(n) to refrain from investing the proceeds from the sale of
the Shares in a manner to cause the Company or any of its subsidiaries
to become an "investment company" within the meaning of the Investment
Company Act of 1940, as amended; and
(o) to use its best efforts to cause the Shares to be listed
on the New York Stock Exchange.
5. Reimbursement of Underwriters' Expenses: If the Shares are not
delivered for any reason other than the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company shall
reimburse the Underwriters for all of their reasonable out-of-pocket expenses in
connection with the matters contemplated hereunder, including the reasonable
fees and disbursements of their counsel; provided, however, that if the
Underwriters determine to terminate this Agreement pursuant to Section 7 hereof
and such determination is not reasonable, then the Underwriters shall not be
entitled to reimbursement of their out-of-pocket expenses under this Section 5.
6. Conditions of the Underwriters' Obligations: The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof, at the Time of
Purchase and the Additional Time of Purchase, the performance by the Company of
its obligations hereunder and to the following conditions:
(a) The Company shall furnish to you at the Time of Purchase
and at the Additional Time of Purchase, as the case may be, an opinion
of Gibson, Dunn & Crutcher, special counsel for the Company, addressed
to the Underwriters and dated the Time of Purchase or the Additional
Time of Purchase, as the case may be, with respect to the matters set
forth in Annex A hereto.
(b) The Company shall furnish to you at the Time of Purchase
and at the Additional Time of Purchase, as the case may be, an opinion
of Robertson C. Jones, Esq., Vice President and General Counsel of the
Company, addressed to the Underwriters and dated the Time of Purchase
or the Additional Time of Purchase, as the case may be, with respect to
the matters set forth in Annex B hereto.
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(c) You shall have received from KPMG Peat Marwick LLP letters
dated as of the date of this Agreement, the Time of Purchase and the
Additional Time of Purchase, as the case may be, and addressed to the
Underwriters, each in form and substance heretofore approved by you.
(d) You shall have received at the Time of Purchase and the
Additional Time of Purchase, as the case may be, an opinion from Latham
& Watkins in form and substance reasonably satisfactory to you.
(e) No amendment or supplement to the Registration Statement
or Prospectus, including documents deemed to be incorporated by
reference therein, shall be filed to which you reasonably have objected
in writing prior to such filing.
(f) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act;
(g) Prior to the Time of Purchase or the Additional Time of
Purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) Between the time of execution of this Agreement and the
Time of Purchase or the Additional Time of Purchase, as the case may
be, there has not been (i) any material and adverse change, present or
prospective, in the condition (financial or other), business, prospects
or results of operations of the Company and its subsidiaries taken as a
whole, (ii) any transaction that is material to the Company and its
subsidiaries taken as a whole entered into by the Company or any of its
subsidiaries or (iii) any obligation, contingent or otherwise, directly
or indirectly, incurred by the Company or any of its subsidiaries that
is material to the Company and its subsidiaries taken as a whole.
(i) The Company at the Time of Purchase or the Additional Time
of Purchase, as the case may be, will deliver to you a certificate
executed by two of its executive officers to the effect that the
representations and warranties of the Company set forth in this
Agreement and the conditions set forth in paragraph (g) and paragraph
(h) have been met and are true and correct as of such date.
(j) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
Time of Purchase and the Additional Time of Purchase as you may
reasonably request.
(k) The Company shall perform such of its obligations under
this Agreement as are to be performed by the terms hereof at or before
the Time of Purchase and at or before the Additional Time of Purchase,
as the case may be.
(l) The Shares shall have been approved for listing on the New
York Stock Exchange.
(m) You have shall received a signed letter, dated the date of
this Agreement, from each of the Company's directors and executive
officers listed on Schedule III to the effect that such persons will
not sell, grant any option to sell, transfer or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or other
rights to
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15
purchase common Stock for a period of 90 days from the date of the
Prospectus without the prior written consent of Dillon, Read & Co. Inc.
7. Effective Date of Agreement; Termination: This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any single Underwriter which
has agreed to purchase in the aggregate at least 50% of the Firm Shares, if, at
any time prior to the Time of Purchase or, with respect to the purchase of any
Additional Shares, the Additional Time of Purchase, as the case may be, trading
in securities on the New York Stock Exchange shall have been suspended or
minimum prices shall have been established on the New York Stock Exchange, or if
a banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such Underwriter, make it impracticable to market the Shares.
If you or any such Underwriter elect to terminate this Agreement as
provided in this Section 7, the Company and the other Underwriters shall be
notified promptly by letter sent by facsimile transmission and registered mail,
or by telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(k), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof).
8. Increase in Underwriters' Commitments: If any Underwriter shall
default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of Firm Shares it is obliged to
purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by such defaulting Underwriter, as hereinafter provided. Such Shares
shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amounts as you may designate with the consent of each
Underwriter so designated or, in the event no such designation is made, such
Shares shall be taken up and paid for by all nondefaulting Underwriters pro rata
in proportion to the aggregate number of Firm Shares set opposite the names of
such non-defaulting Underwriters in Schedule I.
Without relieving any defaulting Underwriters from its obligations
hereunder, the Company agrees with the non-defaulting Underwriter that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriter
or by the Company for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Company or you shall have the right to
postpone the Time of Purchase for a period not exceeding five (5) business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
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The term Underwriter as used in this Agreement shall refer to an
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule I.
9. Indemnity by the Company and the Underwriters:
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person that controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
the agents, employees, officers and directors of each Underwriter and
of each such controlling person (collectively, the "Underwriter
indemnified parties') from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including the reasonable
fees and expenses of counsel and other expenses in connection with
investigating, defending or settling any such action or claim) which,
jointly or severally, any Underwriter indemnified party may incur as
they are incurred (and regardless of whether the Underwriter
indemnified party is a party to the litigation, if any) arising out of
or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
or the Preliminary Prospectus (as the same may have been amended or
supplemented prior to the date of the Prospectus), or arising out of or
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
judgments, liabilities or expenses arise out of, or are based upon, any
such untrue statement or omission or alleged untrue statement or
omission based upon and in conformity with information with respect to
any Underwriter furnished in writing by any such Underwriter through
you to the Company expressly for use therein with reference to such
Underwriter; provided, however, that the indemnity agreement contained
in this Section 9(a) with respect to the Preliminary Prospectus or
amended or supplemented Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such loss,
expense, liability or claim purchased the Shares which is the subject
thereof if the Prospectus corrected any such alleged untrue statement
or omission and if such Underwriter failed to send or give a copy of
the Prospectus to such person at or prior to the written confirmation
of the sale of such Shares to such person.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any Underwriter indemnified party, with respect to which
indemnity may be sought against the Company pursuant to this Section 9,
such Underwriter indemnified party shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including
the employment of counsel satisfactory to the Underwriter indemnified
party in its reasonable judgment and payment of all fees and expenses;
provided that the omission so to notify the Company shall not relieve
the Company from any liability that it may have to any Underwriter
indemnified party unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the
Company. An Underwriter indemnified party shall have the right to
employ separate counsel in any such action or proceeding and to assume
in the defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Underwriter indemnified party unless (i) the
employment of such counsel has been specifically authorized in writing
by the Company, (ii) the Company has failed promptly to assume the
defense and employ counsel satisfactory to the Underwriter indemnified
party in its reasonable judgment, or (iii) the named parties to any
such action or proceeding (including any impleaded parties) include
both the Underwriter indemnified party and the Company and such
Underwriter indemnified party shall have concluded in its reasonable
judgment that there may be one or more legal defenses available to it
that are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the
defense of such action on behalf of such Underwriter indemnified
party), in any of which events such fees and expenses shall be borne by
the Company and paid as incurred. It is understood, however, that the
Company shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriter indemnified parties, which firm shall be
11
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designated in writing by Dillon, Read & Co. Inc., and that all such
fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action effected
without the written consent of the Company (which consent shall not be
unreasonably withheld or delayed), but if settled with the written
consent of the Company, or if there is a final judgment with respect
thereto, the Company agrees to indemnify and hold harmless each
Underwriter indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who signed the
Registration Statement, and any person that controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, the "Company indemnified parties") to the same extent as
the foregoing indemnity from the Company to the Underwriter indemnified
parties, but only with respect to information covering such Underwriter
furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use with respect to such Underwriter in the
Registration Statement, the Prospectus or the Preliminary Prospectus
(as the same may have been amended or supplemented prior to the date of
the Prospectus). In case any action shall be brought against any
Company indemnified party based on the Registration Statement, the
Prospectus or the Preliminary Prospectus (as the same may have been
amended or supplemented prior to the date of the Prospectus) and in
respect of which indemnity may be sought against the Underwriters
pursuant to this Section 9(c), the Underwriters shall have the rights
and duties given to the Company by Section 9(b) hereof (except that if
the Company shall have assumed the defense thereof the Underwriters
shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, provided that the fees and
expenses of such counsel shall be at the Underwriters' expense), and
the Company indemnified parties shall have the rights and duties given
to the Underwriter indemnified parties by Section 9(b) hereof.
(d) If the indemnification provided for in this Section 9 is
unavailable to, or insufficient to hold harmless, any Underwriter
indemnified party or any Company indemnified party, then the party
required to indemnify such indemnified party under this Section 9
shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, judgments, liabilities and expenses (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportions as the total proceeds from the
offering (net of underwriting discounts and commission but before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses incurred by such
party in its reasonable judgment in connection with investigating or
defending any claim or action.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even it the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
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18
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount applicable
to the Shares underwritten by such Underwriter and distributed to the
public. 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. The Underwriters' obligations to contribute pursuant
to this subsection (d) are several and in proportion to their
respective underwriting commitments and not joint.
The statements under the caption "Underwriting" in the
Prospectus (to the extent such statements relate to an Underwriter)
constitute the only information furnished to the Company in writing by
such Underwriter expressly for use in the Registration Statement, the
Prospectus or the Preliminary Prospectus (as the same may have been
amended or supplemented prior to the date of the Prospectus).
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter indemnified party or by or on behalf of any Company
indemnified party, and shall survive any termination of this Agreement
or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly to notify the other of the commencement of
any litigation or proceeding against it and, in the case of the
Company, against any of the Company's officers and directors, in
connection with the issuance and sale of the Shares or in connection
with the Registration Statement, the Prospectus or the Preliminary
Prospectus (as the same may have been amended or supplemented prior to
the date of the Prospectus).
10. Notices. Except as otherwise provided herein, all statements,
requests, notices and agreements shall be in writing and, if to the
Underwriters, shall be sufficient in all respects if timely delivered or sent to
Dillon, Read & Co. Inc., 535 Madison Avenue, New York, N.Y. 10022, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if timely delivered to the Company at the offices of the Company at 6001 N. 24th
Street, Phoenix, Arizona 85016, Attention: Robertson C. Jones, Esq. Any party
may change the address at which it is to receive statements, requests, notices
and agreements by written notice to the other parties.
11. GOVERNING LAW; CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT
HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF
THIS AGREEMENT.
12. Parties in Interest: The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Underwriter
indemnified parties and the Company indemnified parties, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
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13. Counterparts: This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement between
the parties.
Very truly yours,
DEL WEBB CORPORATION
By:
Name:
Title:
Agreed to and Accepted as of the date first above written on behalf of
themselves and the several Underwriters named in Schedule I:
DILLON, READ & CO. INC.
By:
Name:
Title:
MONTGOMERY SECURITIES
By:
Name:
Title:
14
20
SCHEDULE I
TOTAL NUMBER
TOTAL NUMBER OF SHARES TO
OF FIRM BE PURCHASED
SHARES TO IF MAXIMUM
UNDERWRITER BE PURCHASED OPTION EXERCISED
- -------------------------------------------------------------- ----------------- ----------------
Dillon, Read & Co. Inc. ...................................... 690,000 793,500
Montgomery Securities......................................... 690,000 793,500
Alex. Brown & Sons Incorporated............................... 45,000 51,750
Auerbach Pollak & Richardson Inc. ............................ 15,000 17,250
Bear, Stearns & Co. Inc. ..................................... 45,000 51,750
CS First Boston Corporation................................... 45,000 51,750
Crowell, Weedon & Co. ........................................ 25,000 28,750
Dean Witter Reynolds Inc. .................................... 45,000 51,750
A.G. Edwards & Sons, Inc. .................................... 45,000 51,750
Furman Selz Incorporated ..................................... 25,000 28,750
Janney Montgomery Scott Inc. ................................. 25,000 28,750
Edward D. Jones & Co. ........................................ 25,000 28,750
Ladenburg, Thalmann & Co. Inc. ............................... 25,000 28,750
Lazard Freres & Co. LLC ...................................... 45,000 51,750
Legg Mason Wood Walker, Incorporated.......................... 25,000 28,750
Lehman Brothers Inc. ......................................... 45,000 51,750
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................................ 45,000 51,750
Morgan Stanley & Co. Incorporated............................. 45,000 51,750
David A. Noyes & Company...................................... 15,000 17,250
Oppenheimer & Co., Inc. ...................................... 45,000 51,750
PaineWebber Incorporated...................................... 45,000 51,750
Peacock, Hislop, Staley & Given............................... 15,000 17,250
Pennsylvania Merchant Group Ltd............................... 15,000 17,250
Piper Jaffray Inc. ........................................... 25,000 28,750
Principal Financial Securities, Inc. ......................... 25,000 28,750
Prudential Securities Incorporated............................ 45,000 51,750
Rauscher Pierce Refsnes, Inc. ................................ 25,000 28,750
The Robinson-Humphrey Company, Inc. .......................... 25,000 28,750
Salomon Brothers Inc ......................................... 45,000 51,750
Schroder Wertheim & Co. Incorporated.......................... 45,000 51,750
The Seidler Companies Incorporated............................ 15,000 17,250
Wellington (H.G.) & Co. Inc. ................................. 15,000 17,250
----------------- ----------------
Total.................................................... 2,350,000 2,702,500
============== =============
21
SCHEDULE II
Del Webb Communities, Inc., an Arizona corporation
Del E. Webb Development Co., L.P., a Delaware limited partnership
Del Webb California Corp., an Arizona corporation
Del Webb's Coventry Homes, Inc., an Arizona corporation
Del Webb's Coventry Homes Construction Co., an Arizona corporation
Del Webb Home Construction, Inc., an Arizona corporation
Del E. Webb Foothills Corporation, an Arizona corporation
Del Webb Commercial Properties Corporation, an Arizona corporation
Terravita Home Construction Co., an Arizona corporation
Terravita Corp., an Arizona corporation
Del Webb's Coventry Homes of Tuscon, Inc., an Arizona corporation
Del Webb's Coventry Homes Construction of Tuscon, Co. an Arizona Corporation
Del Webb's Coventry Homes of Nevada, Inc., an Arizona corporation
Coventry of California, Inc., an Arizona corporation
Del Webb Homes, Inc., an Arizona corporation
Del Webb Lakeview Corporation, an Arizona corporation
DW Aviation Co., an Arizona corporation
Del Webb Conservation Holding Corp., an Arizona corporation
Terravita Commercial Corp., an Arizona corporation
Trovas Company, an Arizona corporation
Trovas Construction Co., an Arizona corporation
22
SCHEDULE III
DIRECTORS:
Philip J. Dion
D. Kent Anderson
Robert Bennett
Hugh F. Culverhouse, Jr.
Kenny C. Guinn
J. Russell Nelson
Peter A. Nelson
Michael E. Rossi
C. Anthony Wainwright
Sam Yellen
OFFICERS:
Philip J. Dion
Joseph F. Contadino
John H. Gleason
LeRoy C. Hanneman, Jr.
Frank D. Pankratz
Charles T. Roach
John A. Spencer
J. Dennis Wilkins
Robertson C. Jones
Anne L. Mariucci
Donald V. Mickus
David E. Rau
David G. Schreiner
M. Lynn Schuttenberg
Robert R. Wagoner
23
ANNEX A
Opinion of Gibson, Dunn & Crutcher
(i) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the corporate
power (A) to own its properties and conduct its business, in each case as
described in the Prospectus, and (B) to execute and deliver the Underwriting
Agreement, and to issue, sell and deliver the Shares as contemplated therein.
(ii) Each of the entities listed on Schedule II to the Underwriting
Agreement (the "Material Subsidiaries") is a corporation or limited partnership,
as the case may be, duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation or organization. Each
Material Subsidiary has the corporate or partnership power to own its properties
and conduct its business, in each case as described in the Prospectus. [With
respect to the opinion set forth in this sentence as to each Material
Subsidiary, except Del E. Webb Development Co., L.P., Gibson, Dunn & Crutcher
may rely exclusively upon the opinion of Robertson C. Jones, Esq. and, if they
so rely, shall state that they believe they are justified in so relying].
(iii) The Company is qualified to do business and in good standing in
California and Arizona, Del Webb Communities, Inc., an Arizona corporation, is
qualified to do business and in good standing in Nevada, South Carolina and
Texas, Del E. Webb Development Co., L.P., a Delaware limited partnership
("DEVCO"), is qualified to do business and in good standing in Arizona, Nevada
and Texas, Del Webb's Coventry Homes Construction Co., an Arizona corporation,
is qualified to do business and in good standing in Nevada, and Del Webb
California Corp., an Arizona corporation, is qualified to do business and in
good standing in California.
(iv) The Company has the authorized capital stock set forth in the
Prospectus.
(v) The 2,500,000 shares and 375,000 shares of the Company's common
stock issued on June 25 and July 25, 1991, respectively, in a registered public
offering, the approximately 1.1 million shares of the Company's common stock
publicly issued in August and September 1987 in an exchange offer for then
outstanding notes, the 333,333 shares of common stock of the Company issued on
September 25, 1983, upon exercise of warrants, in a registered public offering
and the approximately 3.2 million shares of common stock of the Company issued
in connection with the underwritten call in May and June 1992 of the Company's
10-3/8% Convertible Subordinated Debentures (none of which, such counsel has
been informed, are now outstanding) were all duly and validly authorized,
issued, fully paid and non-assessable and not issued in violation of any
preemptive rights provided by Arizona law or the Articles of Incorporation or
Bylaws of the Company as then in effect (the Company was incorporated in Arizona
at the time of each of these issuances). [With respect to matters of Arizona law
covered by the foregoing opinion, Gibson, Dunn & Crutcher may rely exclusively
on the opinion of Robertson C. Jones, Esq. and, if they so rely, shall state
that they believe they are justified in so relying].
(vi) To such counsel's knowledge, there are no actions, suits or
proceedings pending or threatened in writing against the Company or any of the
Material Subsidiaries or any of their respective properties, at law or in equity
or before or by any commission, board, body, authority or agency, which are
required to be described in the Prospectus, but are not so described.
(vii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The Shares have been duly authorized by the Company and, when
issued and paid for in accordance with the terms of the Underwriting Agreement,
will be validly issued, fully paid and nonassessable and, to such counsel's
knowledge, free of preemptive rights; and the Shares conform to the descriptions
thereof in the Prospectus.
(ix) The execution, delivery and performance of the Underwriting
Agreement and the issuance and sale of the Shares by the Company will not result
in any breach of or constitute a default under (or constitute an event which
with notice, lapse of time or both would constitute a breach of or default
under): (A) the Certificate of
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24
Incorporation or Bylaws of the Company; (B) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other similar written agreement or
instrument which was filed, or incorporated by reference, as an exhibit to the
Company's Annual Report on Form 10-K for its fiscal year ended June 30, 1994
filed with the Commission or is referred to in the Prospectus or the Amended and
Restated Revolving Loan Agreement dated as of June 27, 1995 among the Company,
Bank of America NT & SA, as Agent, Bank One, Arizona NA, as Co-Agent, and the
other bank parties thereto; (C) the Company's 10-7/8% Senior Notes due 2000; (D)
the Company's 9-3/4% Senior Subordinated Debentures due 2003, (E) the Company's
Swiss Franc Bonds due 1996; (F) the Company's 9% Senior Subordinated Debentures
Due 2006; ; (G) any federal or Arizona state statute, regulation or rule
applicable to the Company (as to the issuance and sale of the Shares only); (H)
the Delaware General Corporation Law (as to the issuance and sale of the Shares
only); or (I) any license, decree, judgment or order applicable to the Company
and known to such counsel. [With respect to the opinion as to Arizona law
covered by the foregoing clause (H), Gibson, Dunn & Crutcher may rely
exclusively on the opinion of Robertson C. Jones, Esq. and, if they so rely,
shall state that they believe they are justified in so relying].
(x) No consent, approval, authorization, order or qualification of or
registration with any federal or Arizona or Delaware (to the extent required by
the Delaware General Corporation Law) state governmental or regulatory
commission, board, body, authority or agency is required for the issuance or
sale of the Shares by the Company as contemplated by the Underwriting Agreement,
other than as has been accomplished under the Act, provided that such counsel
need express no opinion as to any necessary qualification or registration, or
exemption therefrom, under any state securities or Blue Sky laws. [With respect
to matters of Arizona law covered by the foregoing opinion, Gibson, Dunn &
Crutcher may rely exclusively on the opinion of Robertson C. Jones, Esq. and, if
they so rely, shall state that they believe they are justified in so relying].
(xi) The Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order proceedings with respect thereto are
pending or threatened under the Act.
(xii) To such counsel's knowledge, neither the Company nor any of the
Material Subsidiaries is in breach of or in default under (nor has any event
occurred which with notice, lapse of time or both would constitute a breach of
or default under) (A) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other written agreement or instrument, including those
identified or described in subparagraphs (ix)(B), (C), (D), (E) and (F) above,
or (B) any federal or Arizona, California, Delaware, Nevada, South Carolina or
Texas state or local license, decree, judgment or order applicable to the
Company or any of the Material Subsidiaries and known to such counsel, in each
case where such breach or default could have a material adverse effect on the
consolidated financial position, prospects, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole.
(xiii) To such counsel's knowledge, there are no contracts, licenses,
agreements, leases or documents of a character which are required to be filed as
exhibits to the Registration Statement or to be summarized or described in the
Prospectus that have not been so filed, summarized or described.
(xiv) The Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein and in the Exhibits thereto, as
to which such counsel need express no opinion or make any other statement)
comply as to form in all material respects with the applicable requirements of
the Act; the documents incorporated by reference in the Registration Statement
and Prospectus, when they were filed or, if an amendment with respect to any
such document was filed, when such amendment was filed (except as to financial
statements and schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion or make any other
statement), complied as to form in all material respects with the then
applicable requirements of the Exchange Act.
Such counsel shall state that during the course of the preparation of
the Registration Statement and Prospectus they participated in conferences with
representatives of the Company, its independent accountants, the Underwriters
and Underwriters' counsel, at which conferences the contents of the Registration
Statement, Preliminary Prospectus and Prospectus and related matters were
discussed. Such counsel may state that they have not independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration
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25
Statement and Prospectus and the nature of their participation is such that they
are unable to assume, and do not assume, any responsibility for the accuracy,
completeness or fairness of such statements. Such counsel shall state, however,
that based upon their participation as described in this paragraph, they have no
reason to believe and do not believe that the Registration Statement or the
Prospectus or any documents incorporated by reference therein (provided that
they need express no opinion or make any other statement as to the financial
statements and other financial and statistical data contained therein), as of
their respective effective or issue date and as of the date of the opinion,
contained or contains any untrue statement of a material fact or omitted or
omits a statement of material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
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26
ANNEX B
Opinion of Robertson C. Jones, Esq.
(i) Each of the Material Subsidiaries (other than Del E. Webb
Development Co., L.P.) is a corporation duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of incorporation.
Each Material Subsidiary (other than Del E. Webb Development Co., L.P.) has the
corporate power to own its properties and conduct its business, in each case as
described in the Prospectus.
(ii) The Company has the authorized capital stock set forth in the
Prospectus.
(iii) The 2,500,000 shares and 375,000 shares of the Company's Common
Stock issued on June 25 and July 25, 1991, respectively, in a registered public
offering, the approximately 1.1 million shares of the Company's Common Stock
publicly issued in August and September 1987 in an exchange offer for then
outstanding notes, the 333,333 shares of common stock of the Company issued on
September 25, 1983, upon exercise of warrants, in a registered public offering
and the approximately 3.2 million shares of Common Stock of the Company issued
in connection with the underwritten call in May and June 1992 of the Company's
10-3/8% Convertible Subordinated Debentures (none of which, such counsel has
been informed, are now outstanding) were all duly and validly authorized,
issued, fully paid and non-assessable and not issued in violation of any
preemptive rights provided by Arizona law or the Articles of Incorporation or
Bylaws of the Company as then in effect (the Company was incorporated in Arizona
at the time of each of these issuances of Common Stock).
(iv) To such counsel's knowledge and except for a 1989 lawsuit
challenging the issuance of the Company's 10-3/8% Convertible Subordinated
Debentures and the shares issuable on conversion thereof, which lawsuit was
dismissed without any payment by the Company to the plaintiffs or their counsel,
no shares of Common Stock of the Company issued and outstanding as of the date
of the opinion have been or are the subject of any claim or threatened claim
that they were not duly authorized, validly issued, fully paid and
non-assessable. Though it is unclear precisely which statute of limitations in
Arizona law should govern any such claim, the limitation period by which any
such claim must be made under Arizona law is the later of six years from the
date of any issuance of shares or three years from the date any claimant knew or
should have known that the applicable shares were not duly authorized, validly
issued and non-assessable.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vi) To such counsel's knowledge, none of the Company or any of the
Material Subsidiaries is in breach of or in default under (nor has any event
occurred which with notice, lapse of time or both would constitute a breach of
or default under): (A) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other written agreement or instrument which was filed, or
incorporated by reference, as an exhibit to the Company's Annual Report on Form
10-K for its fiscal year ended June 30, 1994 filed with the Commission or is
referred to in the Prospectus; (B) the Company's 10-7/8% Senior Notes due 2000;
(C) the Company's 9-3/4% Senior Subordinated Debentures due 2003, (D) the
Company's Swiss Franc Bonds due 1996; (E) the Company's 9% Senior Subordinated
Debentures due 2006; (F) the Amended and Restated Revolving Loan Agreement dated
as of June 27, 1995 among the Company, Bank of America NT & SA, as Agent, Bank
One, Arizona NA, as Co-Agent, and the other Bank parties thereto; (G) the
Company's Option Agreements with respect to real property to be included in Sun
City Hilton Head and Sun City Georgetown; or (H) any federal or Arizona,
California, Delaware, Nevada, South Carolina or Texas state or local license,
decree, judgment or order applicable to the Company or any of the Material
Subsidiaries and known to such counsel; in each case in clauses (A) through (H)
where such breach or default could have a material adverse effect on the
consolidated financial position, prospects, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole.
(vii) To such counsel's knowledge, there are no contracts, licenses,
agreements, leases or documents of a character which are required to be filed as
exhibits to the Registration Statement or to be summarized or described in the
Prospectus that have not been so filed, summarized or described.
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27
(viii) The Shares have been duly authorized by the Company.
(ix) No consent, approval, authorization, order or qualification
of or registration with any Arizona state governmental or regulatory
commission, board, body, authority or agency is required for the issuance or
sale of the Shares by the Company as contemplated by the Underwriting
Agreement, provided that such counsel need express no opinion as to any
necessary qualification or registration, or exemption therefrom, under the
Arizona state securities or Blue Sky law.
(x) The execution, delivery and performance of the Underwriting
Agreement and the issuance and sale of the Shares by the Company will not result
in any breach of or constitute a default under (or constitute an event which
with notice, lapse of time or both would constitute a breach of or default
under): (A) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other written agreement or instrument, including those identified
or described in subparagraphs (vi)(A) through (G) above; (B) any Arizona or, to
the knowledge of such counsel without any independent investigation, California,
Delaware, Nevada, South Carolina or Texas state statute, regulation or rule
applicable to the Company or any of the Material Subsidiaries (the opinion in
this subparagraph (B) covers the execution and delivery of the Underwriting
Agreement and the issuance and sale of the Shares only); or (C) any license,
decree, judgment or order applicable to the Company or any of the Material
Subsidiaries and known to such counsel.
(xi) To such counsel's knowledge, there are no actions, suits or
proceedings pending or threatened in writing against the Company or any of the
Material Subsidiaries or any of their respective properties, at law or in equity
or before or by any commission, board, body, authority or agency, which are
required to be described in the Prospectus but are not so described.
(xii) The Company owns, directly or indirectly, all of the
outstanding equity securities of each of the Material Subsidiaries.
Such counsel shall state that during the course of the preparation of
the Registration Statement, the Preliminary Prospectus and Prospectus he
participated in conferences with representatives of the Company, its independent
accountants, the Underwriters and Underwriters' counsel, at which conferences
the contents of the Registration Statement and Prospectus and related matters
were discussed. Such counsel may state that he has not independently verified
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus and the nature of his participation is such
that he is unable to assume, and does not assume, any responsibility for the
accuracy, completeness or fairness of such statements. Such counsel shall state,
however, that based upon his participation as described in this paragraph, he
has no reason to believe and does not believe that the Registration Statement or
the Prospectus or any documents incorporated by reference therein (provided that
he need express no opinion or make any other statement as to the financial
statements and other financial and statistical data contained therein), as of
their respective effective or issue date and as of the date of the opinion,
contained or contains any untrue statement of a material fact or omitted or
omits a statement of material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
B-2