SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: November 10, 1997
Date of Earliest Event Reported: November 10, 1997
THE DIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-11793 51-0374887
(State or Other Jurisdiction (Commission File Number) (IRS Employee)
of Incorporation) Identification Number)
15501 North Dial Boulevard, Scottsdale, AZ 85260-1619
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (602) 754-3425
Item 5. Other Events.
In connection with the offering (the "Offering") by The Dial
Corporation (the "Company") of up to $115,000,000 aggregate offering price of
its Common Stock, par value $.01 per share, pursuant to the Registration
Statement on Form S-3 (File No. 333-33659), as amended (the "Registration
Statement"), which Registration Statement was declared effective on October
16, 1997, the Company is hereby filing as Exhibit 1 hereto the U.S. Purchase
Agreement, dated November 10, 1997 (the "Purchase Agreement"), entered into
by the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., NationsBanc Montgomery Securities,
Inc., PaineWebber Incorporated, Prudential Securities Incorporated and Smith
Barney Inc., as representatives of the U.S. underwriters named in Schedule A
thereto. The Purchase Agreement is hereby incorporated by reference into the
Registration Statement as Exhibit 1.1 thereto.
Item 7. Financial Statements and Exhibits.
The following is filed as Exhibit 1 hereto:
The Purchase Agreement.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
behalf of the undersigned hereunto duly authorized.
Dated: November 11, 1997
THE DIAL CORPORATION
By: /s/ Lowell L. Robertson
-----------------------------------
Lowell L. Robertson
Senior Vice President, Finance
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1 Purchase Agreement
======================================================================
THE DIAL CORPORATION
(a Delaware corporation)
4,695,751 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: November 10, 1997
======================================================================
TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT...................................................1
SECTION 1. Representations and Warranties...........................3
(a) Representations and Warranties by the Company.............3
(i) Compliance with Registration Requirements........3
(ii) Incorporated Documents..........................4
(iii) Independent Accountants........................4
(iv) Financial Statements............................4
(v) No Material Adverse Change in Business...........4
(vi) Good Standing of the Company....................5
(vii) Good Standing of Subsidiaries..................5
(viii) Capitalization................................5
(ix) Authorization of Agreement......................6
(x) Authorization and Description of Securities......6
(xi) Absence of Defaults and Conflicts...............6
(xii) Absence of Labor Dispute.......................6
(xiii) Absence of Proceedings........................7
(xiv) Accuracy of Exhibits...........................7
(xv) Possession of Intellectual Property.............7
(xvi) Absence of Further Requirements................7
(xvii) Possession of Licenses and Permits............7
(xviii) Title to Property............................8
(xix) Environmental Laws.............................8
(xx) Investment Company Act..........................8
(xix) Tax Ruling.....................................8
(b) Officer's Certificates....................................9
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing..........9
(a) Initial Securities........................................9
(b) Option Securities.........................................9
(c) Payment...................................................9
(d) Denominations; Registration..............................10
SECTION 3. Covenants of the Company................................10
(a) Compliance with Securities Regulations and
Commission Requests.................................10
(b) Filing of Amendments.....................................11
(c) Delivery of Registration Statements......................11
(d) Delivery of Prospectuses.................................11
(e) Continued Compliance with Securities Laws................11
(f) Blue Sky Qualifications..................................12
(g) Rule 158.................................................12
(h) Listing..................................................12
(i) Restriction on Sale of Securities........................12
(j) Reporting Requirements...................................12
(k) Use of Proceeds..........................................13
SECTION 4. Payment of Expenses.....................................13
(a) Expenses................................................13
(b) Termination of Agreement.................................13
SECTION 5. Conditions of U.S. Underwriters' Obligations............13
(a) Effectiveness of Registration Statement..................13
(b) Opinion of Counsel for Company...........................13
(c) Opinion of Counsel for U.S. Underwriters.................14
(d) Officers' Certificate....................................14
(e) Accountants' Comfort Letter..............................14
(f) Bring-down Comfort Letter................................14
(g) Approval of Listing......................................15
(h) Lock-up Agreements.......................................15
(i) Purchase of Initial International Securities.............15
(j) Conditions to Purchase of U.S. Option Securities.........15
(k) Additional Documents.....................................16
(l) Termination of Agreement.................................16
SECTION 6. Indemnification.........................................16
(a) Indemnification of U.S. Underwriters.....................16
(b) Indemnification of Company, Directors and Officers.......17
(c) Actions against Parties; Notification....................17
(d) Settlement without Consent if Failure to Reimburse.......18
SECTION 7. Contribution............................................18
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.............................................19
SECTION 9. Termination of Agreement................................19
(a) Termination; General.....................................19
(b) Liabilities..............................................19
SECTION 10. Default by One or More of the U.S. Underwriters.......20
SECTION 11. Notices...............................................20
SECTION 12. Parties...............................................20
SECTION 13. GOVERNING LAW AND TIME................................21
SECTION 14. Effect of Headings....................................21
SCHEDULES
Schedule A - List of U.S. Underwriters.......................Sch A-1
Schedule B - Pricing Information.............................Sch B-1
Schedule C - List of Subsidiaries............................Sch C-1
Schedule D - List of Persons and Entities
Subject to Lock-up...........................Sch D-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Company's Counsel........... A1-1
Exhibit A-2 - Form of Opinion of Company's In-House
Counsel..................................... A2-1
Exhibit B - Form of Lock-up Letter........................... B-1
ANNEXES
Annex A - Form of Accountants' Comfort Letter............ Annex A-1
The Dial Corporation
(a Delaware corporation)
4,695,751 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
November 10, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
NationsBanc Mongtomery Securities, Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
The Dial Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith ("Merrill Lynch") and each of the other U.S.
Underwriters named in Schedule A hereto (collectively, the "U.S.
Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, J.P. Morgan Securities Inc., NationsBanc Montgomery
Securities, Inc., PaineWebber Incorporated, Prudential Securities
Incorporated and Smith Barney Inc. are acting as representatives (in
such capacity, the "U.S. Representatives"), with respect to the issue
and sale by the Company and the purchase by the U.S. Underwriters,
acting severally and not jointly, of the respective numbers of shares
of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in said Schedule A, and with respect to the grant by
the Company to the U.S. Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase
all or any part of 704,362 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 4,695,751 shares of Common
Stock (the "Initial U.S. Securities") to be purchased by the U.S.
Underwriters and all or any part of the 704,362 shares of Common Stock
subject to the option described in Section 2(b) hereof (the "U.S.
Option Securities") are hereinafter called, collectively, the "U.S.
Securities".
It is understood that the Company is concurrently entering into
an agreement dated the date hereof (the "International Purchase
Agreement") providing for the offering by the Company of an aggregate
of 765,000 shares of Common Stock (the "Initial International
Securities") outside the United States and Canada through arrangements
with Merrill Lynch International, J.P. Morgan Securities Ltd.,
NationsBanc Montgomery Securities, Inc., PaineWebber International
(U.K.) Ltd., Prudential-Bache Securities (U.K.) Inc. and Smith Barney
Inc. (the "International Managers") and the grant by the Company to
the International Managers, acting severally and not jointly, of an
option to purchase all or any part of the International Managers' pro
rata portion of up to 114,750 additional shares of Common Stock solely
to cover over-allotments, if any (the "International Option
Securities" and, together with the U.S. Option Securities, the "Option
Securities"). The Initial International Securities and the
International Option Securities are hereinafter called the
"International Securities". It is understood that the Company is not
obligated to sell and the U.S. Underwriters are not obligated to
purchase, any Initial U.S. Securities unless all of the Initial
International Securities are contemporaneously purchased by the
International Managers.
The U.S. Underwriters and the International Managers are
hereinafter collectively called the "Underwriters", the Initial U.S.
Securities and the Initial International Securities are hereinafter
collectively called the "Initial Securities", and the U.S. Securities
and the International Securities are hereinafter collectively called
the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement")
providing for the coordination of certain transactions among the
Underwriters under the direction of Merrill Lynch (in such capacity,
the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to
make a public offering of the U.S. Securities as soon as the U.S.
Representatives deem advisable after this Agreement has been executed
and delivered. The price per share of the International Securities to
be purchased by the International Managers shall be identical to the
price per share for the U.S. Securities to be purchased by the U.S.
Underwriters hereunder.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No.
333-33659), including the related preliminary prospectus or
prospectuses, covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). As provided in Section 3(a), a prospectus supplement
relating to the Securities, the terms of the offering thereof and the
other matters set forth therein has been prepared and will be filed
pursuant to Rule 424 of the 1933 Act Regulations. Such prospectus
supplement, in the form first filed after the date hereof pursuant to
Rule 424, is herein referred to as the "Prospectus Supplement." The
prospectus included in the Registration Statement relating to all
offerings of Securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the
"Prospectus;" PROVIDED, HOWEVER, that, if the Prospectus is amended or
supplemented on or after the date hereof but prior to the date on
which the Prospectus Supplement is first filed pursuant to Rule 424,
the term "Prospectus" shall refer to the Prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement; and
PROVIDED, FURTHER, that all references to the "Registration Statement"
and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"); and PROVIDED, FURTHER, that
if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
the "Registration Statement" shall also be deemed to include the Rule
462(b) Registration Statement. Two forms of Prospectus (as defined
below) are to be used in connection with the offering and sale of the
Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the
"Form of International Prospectus"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the
front cover and back cover pages and the information under the caption
"Underwriting" and the inclusion in the Form of International
Prospectus of a section under the caption "Certain United States Tax
Considerations for Non-United States Holders." Each Form of U.S.
Prospectus used before such registration statement became effective,
and any Form of U.S. Prospectus that was used after such effectiveness
and prior to the execution and delivery of this Agreement, together
with any Form of International Prospectus of even date therewith
relating to the International Securities, is herein called a
"preliminary prospectus." Any registration statement filed pursuant to
Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3, and
the final Form of International Prospectus, including the documents
incorporated by reference therein, in each case in the forms first
furnished to the Underwriters for use in connection with the offering
of the Securities, are herein called the "U.S. Prospectus" and the
"International Prospectus," respectively, and collectively, the
"Prospectuses." For purposes of this Agreement, all references to the
Registration Statement, any U.S. preliminary prospectus, the U.S.
Prospectus, or any Term Sheet or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International
Prospectus) or the Prospectuses (or other references of like import)
shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference in
the Registration Statement, any preliminary prospectus (including the
Form of U.S. Prospectus and Form of International Prospectus) or the
Prospectuses, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectuses shall be deemed to mean and
include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each U.S. Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(c) hereof, and
as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any
U.S. Option Securities are purchased, at the Date of Delivery),
the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and 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. Neither of the
Prospectuses nor any amendments or supplements thereto, at the
time such Prospectuses or any amendments or supplements thereto
were issued and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or
will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the U.S. Prospectus
made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter
through the U.S. Representatives expressly for use in the
Registration Statement or the U.S. Prospectus.
Each U.S. preliminary prospectus and the prospectuses filed
as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each U.S. preliminary
prospectus and the U.S. Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectuses, at the time they were or
hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectuses, at the time the Registration
Statement became effective, at the time the Prospectuses were
issued and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), 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.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with
the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if
any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) except for dividends on the Common Stock of $0.08 per share
in each of the third and fourth quarters of 1996 and the first,
second and third quarters of 1997, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under
this Agreement and the International Purchase Agreement; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02
of Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (a) the subsidiaries listed on
Schedule C hereto and (b) certain other subsidiaries which,
considered in the aggregate as a single Subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. The Company has no "significant subsidiaries" (as
such term is defined in Rule 1-02 of Regulation S-X).
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement or the International Purchase
Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized,
executed and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized
for issuance and sale to the U.S. Underwriters pursuant to this
Agreement and the International Managers pursuant to the
International Purchase Agreement, respectively, and, when issued
and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment
of the consideration set forth herein and in the International
Purchase Agreement, respectively, will be validly issued, fully
paid and non-assessable; the Common Stock conforms in all
material respects to the statements relating thereto contained in
the Prospectuses and such description conforms in all material
respects to the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal
liability by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would
not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the International
Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the International Purchase
Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectuses
under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement and the
International Purchase Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result
in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any existing applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary
or any of their assets, properties or operations (except for such
violations of laws, statutes, rules, regulations, judgments,
orders, writs or decrees that would not result in a Material
Adverse Effect). As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse
Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to
be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions
contemplated in this Agreement and the International Purchase
Agreement or the performance by the Company of its obligations
hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary
is a party or of which any of their respective property or assets
is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectuses or the documents incorporated by
reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(xv) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or
any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority
or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities under this Agreement
and the International Purchase Agreement or the consummation of
the transactions contemplated by this Agreement and the
International Purchase Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the
1933 Act Regulations and foreign or state securities or blue sky
laws.
(xvii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Prospectuses or (b) do not, singly or in the
aggregate, materially affect the value of such property in the
aggregate and do not interfere with the use made and proposed to
be made of such property in the aggregate by the Company or any
of its subsidiaries; and all of the leases and subleases material
to the business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectuses, are
in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or
such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and
are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of
its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xx) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940
Act").
(xxi) Tax Ruling. Viad Corp. (formerly known as The Dial
Corp.) ("Former Parent") has received a tax ruling (the "Tax
Ruling") from the Internal Revenue Service to the effect that,
among other things, the distribution of the outstanding stock of
the Company in August 1996 to the then stockholders of Former
Parent (the "Distribution") qualifies as a tax-free distribution
under Section 355 of the Internal Revenue Code of 1986 (the
"Code"), as amended. Neither the Company nor any of its
subsidiaries has taken any action or omitted to take any action
which may reasonably be expected to cause the Distribution to
fail to qualify under Section 355 of the Code. The Tax Ruling is
still effective and the Company is not aware of any event or
condition which may reasonably be expected to cause the Internal
Revenue Service to reverse the Tax Ruling or which may reasonably
be expected to cause the Distribution to fail to qualify under
Section 355 of the Code.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer
of the Company or any of its subsidiaries and delivered to the Global
Coordinator, the U.S. Representatives or to counsel for the U.S.
Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as
to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each U.S. Underwriter,
severally and not jointly, and each U.S. Underwriter, severally and
not jointly, agrees to purchase from the Company, at the price per
share set forth in Schedule B, the number of Initial U.S. Securities
set forth in Schedule A opposite the name of such U.S. Underwriter,
plus any additional number of Initial U.S. Securities which such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company hereby grants an
option to the U.S. Underwriters, severally and not jointly, to
purchase up to an additional 765,000 shares of Common Stock at the
price per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S.
Option Securities. The option hereby granted will expire 30 days after
the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
U.S. Securities upon notice by the Global Coordinator to the Company
setting forth the number of U.S. Option Securities as to which the
several U.S. Underwriters are then exercising the option and the time
and date of payment and delivery for such U.S. Option Securities. Any
such time and date of delivery for the U.S. Option Securities (a "Date
of Delivery") shall be determined by the Global Coordinator, but shall
not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined. If the option is exercised as to all or any portion of the
U.S. Option Securities, each of the U.S. Underwriters, acting
severally and not jointly, will purchase that proportion of the total
number of U.S. Option Securities then being purchased which the number
of Initial U.S. Securities set forth in Schedule A opposite the name
of such U.S. Underwriter bears to the total number of Initial U.S.
Securities, subject in each case to such adjustments as the Global
Coordinator in its discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices
of Shearman & Sterling, 599 Lexington Avenue, New York, New York
10022-6069, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not
later than ten business days after such date as shall be agreed upon
by the Global Coordinator and the Company (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option
Securities are purchased by the U.S. Underwriters, payment of the
purchase price for, and delivery of certificates for, such U.S. Option
Securities shall be made at the above-mentioned offices, or at such
other place as shall be agreed upon by the Global Coordinator and the
Company, on each Date of Delivery as specified in the notice from the
Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the
Company, against delivery to the U.S. Representatives for the
respective accounts of the U.S. Underwriters of certificates for the
U.S. Securities to be purchased by them. It is understood that each
U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial U.S. Securities and the U.S. Option
Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the U.S. Underwriters, may
(but shall not be obligated to) make payment of the purchase price for
the Initial U.S. Securities or the U.S. Option Securities, if any, to
be purchased by any U.S. Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such U.S. Underwriter
from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, shall be in
such denominations and registered in such names as the U.S.
Representatives may request in writing at least one full business day
before the Closing Time or the relevant Date of Delivery, as the case
may be. The certificates for the Initial U.S. Securities and the U.S.
Option Securities, if any, will be made available for examination and
packaging by the U.S. Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each U.S. Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(b), will comply with
the requirements of Rule 430A and will notify the Global
Coordinator immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or
any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectuses or for
additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending
the use of any preliminary prospectus, or of the initiation or
threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Global
Coordinator notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b)), any Term Sheet or any amendment, supplement
or revision to either any prospectus included in the Registration
Statement at the time it became effective or to the Prospectuses,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents
a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to
which the Global Coordinator or counsel for the U.S. Underwriters
shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will deliver to the U.S. Representatives and counsel
for the U.S. Underwriters, without charge, copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all
consents and certificates of experts. The copies of the
Registration Statement and each amendment thereto furnished to
the U.S. Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to
each U.S. Underwriter, without charge, as many copies of each
preliminary prospectus as such U.S. Underwriter reasonably
requested, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the
period when the U.S. Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter
may reasonably request. The U.S. Prospectus and any amendments or
supplements thereto furnished to the U.S. Underwriters will be
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated
in this Agreement, the International Purchase Agreement and in
the Prospectuses. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for
the U.S. Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in
order that the Prospectuses will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time any such
Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will (i) with
respect to the U.S. Prospectus, promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the
Prospectuses comply with such requirements, (ii) with respect to
the International Prospectus, supplement such prospectus as may
be necessary to correct such statement or omission, and (iii)
furnish to the U.S. Underwriters such number of copies of each
such amendment or supplement as the U.S. Underwriters may
reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its
reasonable best efforts in cooperation with the U.S.
Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall
not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) RULE 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) LISTING. The Company will use its best efforts to effect
the listing of the Securities on the New York Stock Exchange.
(i) RESTRICTION ON SALE OF SECURITIES. During a period of 90
days from the date of the Prospectuses, the Company will not,
without the prior written consent of the Global Coordinator, (i)
directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any share of Common Stock or
any securities convertible into or exercisable or exchangeable
for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether
any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall
not apply to (A) the Securities to be sold hereunder or under the
International Purchase Agreement, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof
and referred to in the Prospectuses, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant
to existing employee benefit plans of the Company referred to in
the Prospectuses, or (D) any shares of Common Stock issued by the
Company in connection with acquisitions by the Company; provided
that, in the case of clause (D), it shall be a condition to such
stock issuance that the third party receiving such shares
executes a lock-up agreement on substantially the same terms as
described above for a period expiring 90 days from the date of
the Prospectus and there shall be no further transfer of such
shares except in accordance with the provisions of such lock-up
agreement.
(j) REPORTING REQUIREMENTS. The Company, during the period
when the U.S. Prospectus is required to be delivered under the
1933 Act or the 1934 Act, will file all documents required to be
filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Prospectuses under "Use of Proceeds".
SECTION 4. Payment of Expenses. (a) EXPENSES. The Company will
pay all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, copying and delivery to the Underwriters of this
Agreement, any Agreement Among Underwriters and such other documents
as may be required in connection with the offering, purchase, sale or
delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities
to the Underwriters and the transfer of the Securities between the
U.S. Underwriters and the International Managers, (iv) the fees and
disbursements of the Company's counsel, accountants and other
advisors, (v) the filing fees incident to any necessary filings under
state securities laws and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheets and of the
Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, and
(ix) the fees and expenses incurred in connection with the listing of
the Securities on the New York Stock Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by
the U.S. Representatives in accordance with the provisions of Section
5 or Section 9(a)(i) hereof, the Company shall reimburse the U.S.
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the U.S.
Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants
and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
U.S. Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) OPINION OF COUNSEL FOR COMPANY. (i) At Closing Time, the
U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time, of Fried, Frank, Harris, Shriver &
Jacobson (a partnership including professional corporations),
counsel for the Company, in form and substance satisfactory to
counsel for the U.S. Underwriters, together with signed or
reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A-1 hereto and to
such further effect as counsel to the U.S. Underwriters may
reasonably request.
(ii) At Closing Time, the U.S. Representatives shall
have received the favorable opinion, dated as of Closing
Time, of the General Counsel of the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters to the effect set forth
in Exhibit A-2 hereto and to such further effect as counsel
to the U.S. Underwriters may reasonably request.
(c) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. At Closing
Time, the U.S. Representatives shall have received the favorable
opinion, dated as of Closing Time, of Shearman & Sterling,
counsel for the U.S. Underwriters, together with signed or
reproduced copies of such letter for each of the other U.S.
Underwriters. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United
States and the General Corporation law of the State of Delaware,
upon the opinions of counsel satisfactory to the U.S.
Representatives. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public
officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as
of which information is given in the Prospectuses, any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and
the U.S. Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) ACCOUNTANTS' COMFORT LETTER. At the time of the
execution of this Agreement, the U.S. Representatives shall have
received from Deloitte & Touche LLP a letter dated such date, in
form and substance satisfactory to the U.S. Representatives,
together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the U.S.
Representatives shall have received from Deloitte & Touche LLP a
letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days
prior to Closing Time.
(g) APPROVAL OF LISTING. At Closing Time, the Securities
shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(h) LOCK-UP AGREEMENTS. At the date of this Agreement, the
U.S. Representatives shall have received an agreement
substantially in the form of Exhibit B hereto signed by the
persons listed on Schedule D hereto.
(i) PURCHASE OF INITIAL INTERNATIONAL SECURITIES.
Contemporaneously with the purchase by the U.S. Underwriters of
the Initial U.S. Securities under this Agreement, the
International Managers shall have purchased the Initial
International Securities under the International Purchase
Agreement.
(j) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITES. In the
event that the U.S. Underwriters exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the U.S.
Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates
furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the U.S. Representatives
shall have received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the President or a Vice President of
the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. (A) The favorable
opinion of Fried, Frank, Harris, Shriver & Jacobson (a
partnership including professional corporations), counsel
for the Company, in form and substance satisfactory to
counsel for the U.S. Underwriters, dated such Date of
Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b)(i) hereof.
(B) The favorable opinion of the General
Counsel of the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S.
Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the
opinion required by Section 5(b)(ii) hereof.
(iii) Opinion of Counsel for U.S. Underwriters. The
favorable opinion of Shearman & Sterling, counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to
the U.S. Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Deloitte
& Touche LLP, in form and substance satisfactory to the U.S.
Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the U.S. Representatives pursuant to Section
5(f) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date
of Delivery, counsel for the U.S. Underwriters shall have been
furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
U.S. Representatives and counsel for the U.S. Underwriters.
(l) TERMINATION OF AGREEMENT. If any condition specified in
this Section shall not have been fulfilled when and as required
to be fulfilled, this Agreement, or, in the case of any condition
to the purchase of U.S. Option Securities on a Date of Delivery
which is after the Closing Time, the obligations of the several
U.S. Underwriters to purchase the relevant Option Securities, may
be terminated by the U.S. Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) INDEMNIFICATION OF U.S. UNDERWRITERS. The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if
any, who controls any U.S. Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary
prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
Merrill Lynch), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any U.S. Underwriter through
the U.S. Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information or any preliminary U.S. prospectus or the U.S. Prospectus
(or any amendment or supplement thereto); provided, further, that the
Company will not be liable to any U.S. Underwriter or any person
controlling such U.S. Underwriter with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus to the extent that the Company
shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such U.S.
Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold securities to a person to whom such U.S.
Underwriter failed to send or give, at or prior to the written
confirmation of the sale of such Securities, a copy of the U.S.
Prospectus (as amended or supplemented) if (i) the Company has
previously furnished copies thereof (sufficiently in advance of the
Closing Date to allow for distribution of the U.S. Prospectus in a
timely manner) to the U.S. Underwriter and the loss, liability, claim,
damage or expense of such U.S. Underwriter resulted from an untrue
statement or omission or alleged untrue statement or omission of a
material fact contained in or omitted from such preliminary U.S.
prospectus which was corrected in the U.S. Prospectus and (ii) the
giving or sending of such U.S. Prospectus by the Closing Date to the
party or parties asserting such loss, liability, claim or damage or
expense would have constituted the sole defense to the claim asserted
by such person.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule
430A Information or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by
such U.S. Underwriter through the U.S. Representatives expressly for
use in the Registration Statement (or any amendment thereto) or such
preliminary U.S. prospectus or the U.S. Prospectus (or any amendment
or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
on the one hand and the U.S. Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 of the U.S. Underwriters on the
other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the U.S. Underwriters on the other hand in connection with the
offering of the U.S. Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net
proceeds from the offering of the U.S. Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the U.S. Underwriters, in each
case as set forth on the cover of the U.S. Prospectus bear to the
aggregate initial public offering price of the U.S. Securities as set
forth on such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or by
the U.S. Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Company and the U.S. Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the U.S. 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 above in this Section. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no U.S.
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the U.S. Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such U.S. Underwriter
has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution
as such U.S. Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The U.S. Underwriters'
respective obligations to contribute pursuant to this Section are
several in proportion to the number of Initial U.S. Securities set
forth opposite their respective names in Schedule A hereto and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or
on behalf of any U.S. Underwriter or controlling person, or by or on
behalf of the Company, and shall survive delivery of the Securities to
the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) TERMINATION; GENERAL. The U.S. Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information
is given in the U.S. Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
U.S. Representatives, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading
in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If
one or more of the U.S. Underwriters shall fail at Closing Time or a
Date of Delivery to purchase the Securities which it or they are
obligated to purchase under this Agreement (the "Defaulted
Securities"), the U.S. Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in
such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the U.S. Representatives shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of U.S. Securities to be purchased on such
date, the non-defaulting U.S. Underwriters shall be obligated,
each severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs
after Closing Time, the obligation of the U.S. Underwriters to
purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting U.S.
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery
which is after Closing Time, which does not result in a termination of
the obligation of the U.S. Underwriters to purchase and the Company to
sell the relevant U.S. Option Securities, as the case may be, either
the U.S. Representative(s) or the Company shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case
may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectuses or in
any other documents or arrangements. As used herein, the term "U.S.
Underwriter" includes any person substituted for a U.S. Underwriter
under this Section.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
telecommunication. Notices to the U.S. Underwriters shall be directed
to the U.S. Representatives at North Tower, World Financial Center,
New York, New York 10281, attention of Scott E. Haggard; and notices
to the Company shall be directed to it at 15501 North Dial Boulevard,
Scottsdale, Arizona 85260-1619, attention of Jane E. Owens, Senior
Vice President and General Counsel.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the U.S. Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
or corporation, other than the U.S. Underwriters and the Company and
their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the U.S.
Underwriters and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any U.S. Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the U.S. Underwriters and the Company in
accordance with its terms.
Very truly yours,
THE DIAL CORPORATION
By: /s/ Malcolm Jozoff
----------------------------------------
Malcolm Jozoff
Chairman of the Board of Directors,
President and Chief Executive Officer
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P.MORGAN SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES, INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Scott E. Haggard
---------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters
named in Schedule A hereto.
SCHEDULE A
Name of U.S. Underwriter Number of
------------------------ Initial U.S.
Securities
----------
Merrill Lynch, Pierce, Fenner & Smith Incorporated ......... 597,626
J.P. Morgan Securities Inc. ................................ 597,625
NationsBanc Montgomery Securities, Inc. .................... 597,625
PaineWebber Incorporated ................................... 597,625
Prudential Securities Incorporated ......................... 597,625
Smith Barney Inc. .......................................... 597,625
Bear, Stearns & Co. Inc..................................... 150,000
Credit Suisse First Boston Corporation...................... 150,000
Donaldson, Lufkin & Jenrette Securities Corporation......... 150,000
A.G. Edwards & Sons, Inc.................................... 150,000
Goldman, Sachs & Co......................................... 150,000
Lehman Brothers Inc......................................... 150,000
Edward D. Jones & Co., L.P.................................. 70,000
RBC Dominion Securities Corporation......................... 70,000
Wheat, First Securities, Inc................................ 70,000
---------------
Total....................................................... 4,695,751
===============
SCHEDULE B
THE DIAL CORPORATION
4,695,751 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be
$18.3125.
2. The purchase price per share for the U.S. Securities to be
paid by the several U.S. Underwriters shall be $17.3925, being an
amount equal to the initial public offering price set forth above less
$0.92 per share; provided that the purchase price per share for any
U.S. Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial U.S. Securities but not payable
on the U.S. Option Securities.
SCHEDULE C
SUBSIDIARIES
Andora S.A. (Mexico)
ARMOUR INTERNATIONAL COMPANY (Arizona)
AIC Foreign Sales Corporation (Virgin Islands)
The Dial Corporation (Panama), S.A. (Panama)
Dial Consumer Products (UK) Limited (United Kingdom)
Armour International Limited (United Kingdom)
The Dial Corporation (Hong Kong) Limited
The Dial Corporation Mexico, S.A., de C.V. (Mexico)
The Dial Corporation (Puerto Rico), Inc. (Arizona)
Ft. Madison Dial, Inc. (Iowa)
ISC International Ltd. (British Virgin Islands)
ISC Incodisa Soap & Cosmetics (U.K.) Limited (United Kingdom)
Industrias Corporativas Diversificadas, S.A. (Guatemala)
ISC Incodisa Soap & Cosmetics - Nyon (Switzerland)
I.S.C. Internacional S.A. (Guatemala)
Limpioquim San Juan S.A. (Argentina)
Nuevo Federal S.A. (Argentina)
Philidial International, Inc. (Delaware)
Purex de Panama, S.A. (Panama)
Sulfargen S.A. (Argentina)
Dial Receivables Corporation (Delaware)
SCHEDULE D
Malcolm Jozoff
Pataricia I. Bowman
Daniel J. King
Scott McHenry
Jane E. Owens
Susan J. Riley
Lowell L. Robertson
Mark R. Shook
Bernhard J. Welle
Joy A. Amundson
Herbert M. Baum
Joe T. Ford
Thomas L. Gossage
Donald E. Guinn
Michael T. Riordan
Dennis C. Stanfill
Barbara S. Thomas
A. Thomas Young
[Form of Opinion of Company's Counsel to be Delivered Pursuant to Section
5(b)(i)]
Exhibit A-1
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities, Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Merrill Lynch International
J.P. Morgan Securities Ltd.
NationsBanc Montgomery Securities, Inc.
PaineWebber International
Prudential-Bache Securities (U.K.) Inc.
Smith Barney Inc.
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London, England EC2Y 9LY
Ladies and Gentlemen:
We are acting as special counsel to The Dial Corporation, a
Delaware corporation (the "Company"), in connection with the
underwritten public offerings of 5,460,751 shares of the Company's
Common Stock (the "Securities"), pursuant to (i) a Purchase Agreement
(the "U.S. Purchase Agreement"), dated as of November 10, 1997, among
the Company and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc., NationsBanc
Montgomery Securities, Inc., PaineWebber Incorporated, Prudential
Securities Incorporated and Smith Barney Inc., as representatives of
the U.S. Underwriters, and (ii) an International Purchase Agreement
(the "International Purchase Agreement," and together with the U.S.
Purchase Agreement, the "Purchase Agreements") among the Company and
Merrill Lynch International, J.P. Morgan Securities Ltd., NationsBanc
Montgomery Securities, Inc., PaineWebber International,
Prudential-Bache Securities (U.K) Inc. and Smith Barney Inc., as
representatives of the International Managers. This opinion is being
delivered pursuant to Section 5(b) of each of the Purchase Agreements
and simultaneously with the payment by the Underwriters to the Company
for the Securities. Except as provided herein, all capitalized terms
used herein which are defined in the Purchase Agreements have the
respective meanings specified therein. With your permission, all
assumptions and statements of reliance herein have been made without
any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, we have (i) investigated
such questions of law, (ii) examined originals or certified, conformed
or reproduction copies of such agreements, instruments, documents and
records of the Company such certificates of public officials and such
other documents, and (iii) reviewed such information from officers and
representatives of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
In all such examinations, we have assumed the legal
capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of all original or certified
copies and the conformity to original or certified documents of all
copies submitted to us as conformed or reproduction copies. As to
various questions of fact relevant to the opinions expressed herein,
we have relied upon, and assume the accuracy of, representations and
warranties contained in the Purchase Agreements and certificates and
oral or written statements and other information of or from public
officials and officers and representatives of the Company and others,
and assume compliance on the part of all parties to the Purchase
Agreements with their covenants and agreements contained therein. With
respect to the opinion expressed in paragraph 3 below, we have relied
solely upon certificates of public officials from the jurisdictions
identified in such opinion, copies of which have been provided to you.
With respect to the opinion expressed in paragraph 8 below regarding
the effectiveness of the Registration Statement and the absence of any
stop orders or proceedings for that purpose, we are relying solely
upon the oral advice of the staff of the Securities and Exchange
Commission (the "Commission").
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion
that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware.
2. The Company has the corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and to enter into and
perform its obligations under the Purchase Agreements.
3. The Company is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of the
States of Arizona, Iowa, Missouri, Pennsylvania and California.
4. All of the authorized, issued and outstanding Common Stock of the
Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization"; and none of
the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company arising by operation of law, under
the charter and by-laws of the Company or under any agreement,
which has been filed as an exhibit to the Registration Statement
(the "Applicable Contracts").
5. All of the authorized, issued and outstanding shares of Common
Stock of the Company are duly authorized, validly issued, fully
paid and non-assessable. The Securities to be purchased by the
Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to the Purchase
Agreements and, when issued and delivered by the Company pursuant
to the Purchase Agreements against payment of the consideration
set forth in the Purchase Agreements, will be duly authorized,
validly issued, fully paid and non-assessable and no holder of
the Securities is or will be subject to personal liability under
the Delaware General Corporation Law by reason of being such a
holder.
6. The issuance and sale of the Securities by the Company is not
subject to preemptive or other similar rights arising by
operation of law, under the Delaware General Corporation Law,
under the charter or by-laws of the Company or, to the best of
our knowledge, under any contract with any securityholder.
7. Each of the Purchase Agreements has been duly authorized,
executed and delivered by the Company.
8. The Registration Statement[, including any Rule 462(b)
Registration Statement,] has been declared effective under the
1933 Act; any required filing of the Prospectuses pursuant to
Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement [or any Rule 462(b) Registration
Statement] has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or
threatened by the Commission.
9. The Registration Statement[, including any Rule 462(b)
Registration Statement, as applicable,] the Prospectuses, and
each amendment or supplement to the Registration Statement and
the Prospectuses, as of their respective effective or issue dates
(other than the financial statements, related notes, supporting
schedules and other financial data included therein or omitted
therefrom, as to which we express no opinion) complied as to form
in all material respects with the requirements of the 1933 Act or
the 1933 Act Regulations and the rules thereunder.
10. The documents incorporated by reference in the Prospectuses
(other than the financial statements, related notes, supporting
schedules and other financial data included therein or omitted
therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the Commissioner thereunder.
11. The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
12. The information in the Prospectuses under "Description of Capital
Stock," and "Certain United States Federal Tax Considerations for
Non-United States Holders" and in the Registration Statement
under Item 15, to the extent that it constitutes matters of law,
summaries of legal matters, the Company's charter and by-laws or
legal conclusions, has been reviewed by us and fairly presents in
all material respects, such matters, summaries or conclusions.
13. No filing with, or authorization approval, consent, license,
order, registration, qualification or decree of, any New York,
Delaware or federal court or governmental authority or New York,
Delaware or federal agency, is necessary or required in
connection with the due authorization, execution and delivery of
the Purchase Agreements or for the offering, issuance, sale or
delivery of the Securities (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be
required under the securities or blue sky laws of the various
states).
14. The execution, delivery and performance of the Purchase
Agreements and the consummation of the transactions contemplated
in the Purchase Agreements (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption
"Use Of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreements do not and will not,
whether with or without the giving of notice or lapse of time or
both, violate or constitute a breach of, or default or Repayment
Event (as defined in Section 1(a)(xi) of the Purchase Agreements)
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to, any Applicable Contract, nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company, or any applicable federal, New
York or Delaware law, statute, rule, regulation, or any judgment,
order, writ or decree, known to us, of any government, government
instrumentality or court of the United States, or New York or
Delaware having jurisdiction over the Company or any subsidiary
or any of their respective properties, assets or operations,
which in any such case would result in a Material Adverse Effect;
provided, however, that we express no opinion with respect to any
violation, breach or default or Repayment Event, as applicable,
not ascertainable from the face of any agreement, instrument,
judgment, decree or order referred to above, or arising under or
based upon any cross-default provision insofar as any such
violation relates to a default under an agreement or instrument
that is not an Applicable Contract or such violation arises under
or is based upon any covenant of a financial or numerical nature
or which requires arithmetic computation.
15. The Company is not an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended.
In the course of the preparation by the Company of the
Registration Statement and the Prospectuses (other than the documents
incorporated by reference therein), we attended conferences with
certain of the officers of, and the independent public accountants
for, the Company, at which the Registration Statement and the
Prospectuses were discussed. Between the date of effectiveness of the
Registration Statement and the time of delivery of this opinion, we
attended additional conferences with certain of the officers of, and
the independent public accountants for, the Company, at which the
contents of the Prospectuses were discussed to a limited extent. Given
the limitations inherent in the independent verification of factual
matters and the character of determinations involved in the
registration process, we are not passing upon and do not assume any
responsibility for the accuracy, completenesss or fairness of the
statements contained in the Registration Statement and the
Prospectuses (including the documents incorporated by reference
therein), other than as set forth in paragraph 12 above. Subject to
the foregoing and on the basis of the information we gained in the
performance of the services referred to above, including information
obtained from officers and other representatives of, and the
independent accountants for, the Company, nothing has come to our
attention that causes us to believe that, as of the time it became
effective, the Registration Statement contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectuses as of their dates contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. Also, subject to the foregoing, nothing has
come to our attention in the course of proceedings described in the
second sentence of this paragraph that causes us to believe that the
Prospectuses on the date and time of delivery of this letter contain
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 were made, not misleading. We express
no view or belief, however, with respect to the financial statements,
related notes and schedules thereto and other financial data included
or incorporated by reference in or omitted from the Registration
Statement or the Prospectuses.
The opinions set forth above are subject to the following
additional qualifications:
(A) Our opinions are subject to (i) applicable bankruptcy,
insolvency, moratorium, fraudulent transfer, fraudulent conveyance,
and other similar laws affecting creditors' rights and remedies
generally, and (ii) general principles of equity (including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as the availability of
equitable remedies), whether such principles are considered in a
proceeding at law or equity.
(B) Our opinions are subject to the effect of, and we
express no opinion with respect to, the application of or compliance
with, state securities or blue sky laws.
The opinions expressed herein are limited to the federal
laws of the United States of America, the General Corporation Law of
the State of Delaware and the laws of the State of New York, as
currently in effect. We assume no obligations to supplement this
letter if any applicable laws change after the date hereof or if we
become aware of any facts that might change the opinions expressed
herein after the date hereof.
The opinions expressed herein are solely for your benefit
and may not be relied upon in any manner or for any purpose by any
other person and may not be quoted in whole or in part without our
prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By:______________________________________
Stuart H. Gelfond
[Form of Opinion of Company's In-House Counsel to be Delivered Pursuant to
Section 5(b)(ii)]
Exhibit A-2
November __, 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities, Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Merrill Lynch International
J.P. Morgan Securities Ltd.
NationsBanc Montgomery Securities, Inc.
PaineWebber International
Prudential-Bache Securities (U.K.) Inc.
Smith Barney Inc.
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London, England EC2Y 9LY
Ladies and Gentlemen:
I am acting as in-house counsel to The Dial Corporation, a
Delaware corporation (the "Company"), in connection with the
underwritten public offerings of 5,460,751 shares of the Company's
Common Stock (the "Securities"), pursuant to (i) a Purchase Agreement
(the "U.S. Purchase Agreement"), dated as of November 10, 1997, among
the Company and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc., NationsBanc
Montgomery Securities, Inc., PaineWebber Incorporated, Prudential
Securities Incorporated and Smith Barney Inc., as representatives of
the U.S. Underwriters, and (ii) an International Purchase Agreement
(the "International Purchase Agreement," and together with the U.S.
Purchase Agreement, the "Purchase Agreements") among the Company and
Merrill Lynch International, J.P. Morgan Securities Ltd., NationsBanc
Montgomery Securities, Inc., PaineWebber International,
Prudential-Bache Securities (U.K.) Inc. and Smith Barney Inc., as
representatives of the International Managers. Except as provided
herein, all capitalized terms used herein which are defined in the
Purchase Agreements have the respective meanings specified therein.
With your permission, all assumptions and statements of reliance
herein have been made without any independent investigation or
verification on my part except to the extent otherwise expressly
stated, and I express no opinion with respect to the subject matter or
accuracy of such assumptions or items relied upon.
In connection with this opinion, I have (i) investigated
such questions of law, (ii) examined originals or certified, conformed
or reproduction copies of such agreements, instruments, documents and
records of the Company, such certificates of public officials and such
other documents, and (iii) reviewed such information from officers and
representatives of the Company as I have deemed necessary or
appropriate for the purposes of this opinion.
In all such examinations, I have assumed the legal
capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of all original or certified
copies and the conformity to original or certified documents of all
copies submitted to me as conformed or reproduction copies. As to
various questions of fact relevant to the opinions expressed herein, I
have relied upon, and assume the accuracy of, the representations and
warranties contained in the Purchase Agreements and certificates and
oral or written statements and other information of or from public
officials and officers and representatives of the Company and others,
and assume compliance on the part of all parties to the Purchase
Agreements with their covenants and agreements contained therein.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion
that:
1. Each Subsidiary incorporated in the state of Delaware
(a "Delaware Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct is business as
described in the Prospectuses; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each Delaware Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company, directly or through subsidiaries,
[free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity]; to my knowledge, none of the
outstanding shares of capital stock of any Delaware Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such Delaware Subsidiary.
2. To my knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court
or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreements or the
performance by the Company of its obligations thereunder.
3. To my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein of filed or incorporated by
reference as exhibits thereto.
The opinions set forth above are subject to the following
additional qualifications:
(A) My opinions are subject to (i) applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, and other similar laws
affecting creditors' rights and remedies generally, and (ii) general
principles of equity including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable
defenses and limits as the availability of equitable remedies, whether
such principles are considered in a proceeding at law or equity.
(B) My opinions are subject to the effect of, and I
express no opinion with respect to the application of or compliance
with, state securities or blue sky laws.
The opinions expressed herein are limited to the federal
laws of the United States of America and the General Corporation Law
of the State of Delaware, as currently in effect. I assume no
obligations to supplement this letter if any applicable laws change
after the date hereof or if I become aware of any facts that might
change the opinions expressed herein after the date hereof.
The opinion expressed herein is solely for your benefit
and may not be relied upon in any manner or for any purpose by any
other person or entity and may not be quoted in whole or in part
without my prior written consent.
Very truly yours,
By:_______________________________________
Jane E. Owens
[Form of lock-up from directors, officers or other stockholders
pursuant to Section 5(i)]
Exhibit B
, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities, Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Smith Barney Inc.,
as Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
C/O MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
North Tower
World Financial Center
New York, New York 10281
Re: Proposed Public Offering by The Dial Corporation
Dear Sirs:
The undersigned, a stockholder and/or officer and/or director of
The Dial Corporation, a Delaware corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and PaineWebber Incorporated,
Prudential Securities Incorporated and Smith Barney Inc. propose to
enter into a U.S. Purchase Agreement (the "U.S. Purchase Agreement")
with the Company providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $.01 per share
(the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder and/or
officer and/or director of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned agrees with each underwriter to
be named in the U.S. Purchase Agreement that, during a period of 90
days from the date of the U.S. Purchase Agreement, the undersigned
will not, without the prior written consent of Merrill Lynch, directly
or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common
Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the
power of disposition, or file any registration statement under the
Securities Act of 1933, as amended, with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction is to be settled by delivery of
Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature: _______________________
Print Name: ______________________
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
We are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the applicable published 1933
Act Regulations.
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectuses
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the
published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting
of a reading of the unaudited interim consolidated financial
statements of the Company for the three-month periods ended March
30, 1996 and March 29, 1997, the six-month periods ended June 29,
1996 and June 28, 1997, and the nine-month periods ended
September 28, 1996 and September 27, 1997 included or
incorporated by reference in the Registration Statement and the
Prospectuses (collectively, the "10-Q Financials") a reading of
the minutes of all meetings of the stockholders and directors of
the Company since December 31, 1996, inquiries of certain
officials of the Company and its subsidiaries responsible for
financial and accounting matters, a review of interim financial
information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement
on Auditing Standards No. 71, Interim Financial Information ("SAS
71"), with respect to the 10-Q financials and such other
inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by
reference in the Registration Statement and the Prospectuses
do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the
1934 Act Regulations applicable to unaudited financial
statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials
incorporated by reference in the Registration Statement and
the Prospectuses for them to be in conformity with generally
accepted accounting principles;
(B) at a specified date not more than five days prior
to the date of this Agreement, there was any change in the
common stock of the Company or any increase in the long-term
debt of the Company or any decreases in the consolidated net
current assets or stockholders' equity of the Company, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Registration Statement, except in each case for changes,
decreases or increases that the Registration Statement
discloses have occurred or may occur; or
(C) for the period from September 27, 1997 to a
specified date not more than five days prior to the date of
this Agreement, there was any decreases, in each case as
compared with the comparable period in the preceding year,
in the consolidated net sales or in the total or per-share
amounts of income before extraordinary items or of net
income, except in each case for any decreases that the
Registration Statement discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii)
above and a reading of the Selected Consolidated Financial
Information included in the Registration Statement and a reading
of the financial statements from which such data were derived,
nothing came to our attention that caused us to believe that the
Selected Financial Information included in the Registration
Statement do not comply as to form in all material respects with
the disclosure requirements of Item 301 of Regulation S-K of the
1933 Act, that the amounts included in the Selected Consolidated
Financial Information are not in agreement with the corresponding
amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included
in the Registration Statement from which certain of such data
were derived are not in conformity with generally accepted
accounting principles;
(iv) we have compared the information in the Registration
Statement under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis
of limited procedures specified herein, nothing came to our
attention that caused us to believe that this information does
not comply as to form in all material respects with the
disclosure requirements of Items 302, 402 and 503(d),
respectively, of Regulation S-K;
(v) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical
data and financial information appearing in the Registration
Statement, which are specified herein, and have compared certain
of such items with, and have found such items to be in agreement
with, the accounting and financial records of the Company.
