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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 2000
REGISTRATION NO. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE DIAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 51-0374887
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
15501 NORTH DIAL BOULEVARD
SCOTTSDALE, ARIZONA 85260-1619
(Address of registrant's principal
executive offices)
THE DIAL CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
JANE E. OWENS
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
THE DIAL CORPORATION
15501 NORTH DIAL BOULEVARD
SCOTTSDALE, ARIZONA 85260-1619
(602) 754-3425
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 650,000 (1) $10.6875 (2) $6,946,875 (2) $1,834
</TABLE>
(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar transactions in
accordance with Rule 416 under the Securities Act of 1933. This Registration
Statement also pertains to rights to purchase shares of Junior Participating
Preferred Stock of the Registrant (the "Rights"). One Right is included with
each share of Common Stock. Until the occurrence of certain prescribed events,
the Rights are not exercisable, are evidenced by the certificates for the Common
Stock and will be transferred along with and only with such Common Stock.
Thereafter, separate Rights certificates will be issued representing one Right
for each share of Common Stock held, subject to adjustment pursuant to
antidilution provisions.
(2) Pursuant to Rule 457(c) and (h), estimated on the basis of the average of
the high and low sales prices of a share of Common Stock on the New York Stock
Exchange on June 28, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Company with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated in this
Registration Statement by reference and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 1999;
(2) The Company's Quarterly Reports on Form 10-Q for the
quarterly periods ended April 1, 2000;
(3) The Company's Current Reports on Form 8-K filed on
February 1, 2000, March 13, 2000, May 2, 2000 and June 28, 2000;
(4) The description of the Company's Common Stock contained in
Registration Statement No. 1-11793 of the Company on Form 10, as
amended (the "Form 10"), filed by the Company under the Securities Act
of 1933 (the "Securities Act"); and
(5) The description of the Rights contained in the Form 10.
In addition, all documents filed by the Company and the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all such securities then remaining unsold, shall be deemed to
be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the securities offered pursuant to this Registration
Statement has been passed upon for the Company by Jane E. Owens, Senior Vice
President, General Counsel and Secretary of the Company. Ms. Owens owns shares
and options to purchase shares of Common Stock of the Company.
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Item 6. Indemnification of Directors and Officers
CERTAIN PROVISIONS OF CERTIFICATE OF INCORPORATION AND BYLAWS
The Certificate of Incorporation provides that each person who is or was or
had agreed to become a director or officer of the Company, or each such person
who is or was serving or who had agreed to serve at the request of the Company
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise (each "Another Enterprise") (including the heirs,
executors, administrators or estate of such person), will be indemnified by the
Company, in accordance with the Company's Restated Bylaws (the "Bylaws"), to the
fullest extent permitted from time to time by the Delaware General Corporation
Law (the "DGCL"), as the same exists or may hereafter be amended (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment) or any other applicable laws as presently or hereafter in
effect. The Company may, by action of the Board of Directors (the "Board"),
provide indemnification to employees and agents of the Company, and to persons
serving as employees or agents of Another Enterprise, at the request of the
Company, with the same scope and effect as the foregoing indemnification of
directors and officers. The Company shall be required to indemnify any person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board or is a proceeding to enforce such person's claim to
indemnification pursuant to the rights granted by the Certificate of
Incorporation or otherwise by the Company. In addition, pursuant to the
Certificate of Incorporation, the Company has entered into agreements with
certain persons providing for indemnification greater or different than that
provided in the Certificate of Incorporation. See " -- Indemnification
Agreements."
The Bylaws provide that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative is or was a director or officer of the Company
or is or was serving at the request of the Company as a director or officer of
another corporation or of Another Enterprise, including service with respect to
employee benefit plans, whether the basis of such Proceeding is alleged action
in an official capacity as a director or officer or in any other capacity while
serving as a director or officer, will be indemnified and held harmless by the
Company to the fullest extent authorized by the DGCL as the same exists or may
in the future be amended (but, if permitted by applicable law, in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, Employee Retirement Income
Security Act of 1974, as amended, excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification will continue as to a person who
has ceased to be a director or officer and will inure to the benefit of his or
her heirs, executors and administrators; provided, however, except as described
in the second following paragraph with respect to Proceedings to enforce rights
to indemnification, the Company will indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Board.
Pursuant to the Bylaws, to obtain indemnification, a claimant is to submit
to the Company a written request for indemnification. Upon such written request
by a claimant, a determination, if required by applicable law, with respect to
the claimant's entitlement to indemnification will be made, (i) if requested by
the claimant, by independent legal counsel, or (ii) if the claimant does not so
request, by the Board (a) by a majority vote of the disinterested directors even
though less than a quorum, (b) if there are no disinterested directors or the
disinterested directors so direct, by independent legal counsel in a written
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opinion to the Board, or (c) if the disinterested directors so direct, by the
stockholders of the Company. In the event the determination of entitlement to
indemnification is to be made by independent legal counsel at the request of the
claimant, the independent legal counsel will be selected by the Board unless
there shall have occurred within two years prior to the date of the commencement
of the action, suit or proceeding for which indemnification is claimed a "Change
in Control" (as defined in the Company's 1996 Stock Incentive Plan), in which
case the independent counsel shall be selected by the claimant unless the
claimant requests that such selection be made by the Board.
Pursuant to the Bylaws, if a claim for indemnification is not paid in full
by the Company within 30 days after a written claim for indemnification has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant will be entitled to be paid also the expense
of prosecuting such claim. The Bylaws provide that it will be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standard of conduct which make it permissible
under the DGCL for the Company to indemnify the claimant for the amount claimed,
but the burden of proving such defense will be on the Company. Neither the
failure of the Company (including, without limitation, the disinterested
directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standards in the DGCL, nor an actual determination by the Company
(including the disinterested directors, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
will be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct in the DGCL. However, the Company
will be bound by a determination pursuant to the procedures set forth in the
Bylaws that the claimant is entitled to indemnification in any judicial
proceeding commenced pursuant to the Bylaws.
The Bylaws provide that the right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in the Bylaws will not be exclusive of any other right which any
person may have or may in the future acquire under any statute, provision of the
Certificate of Incorporation, the Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise. The Bylaws permit the Company to maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Company or Another Enterprise against any expense, liability or
loss, whether or not the Company would have the power to indemnify such person
against such expense, liability or loss under the DGCL. The Company has obtained
directors' and officers' liability insurance providing coverage to its directors
and officers. In addition, the Bylaws authorize the Company, to the extent
authorized from time to time by the Board, to grant rights to indemnification
and rights to be paid by the Company for the expenses incurred in defending any
Proceeding in advance of its final disposition, to any employee or agent of the
Company to the fullest extent of the provisions of the Bylaws with respect to
the indemnification and advancement of expenses of directors and officers of the
Company.
The Bylaws provide that the right to indemnification conferred therein is a
contract right and includes the right to be paid by the Company for the expenses
incurred in defending any Proceeding in advance of its final disposition, except
that if the DGCL requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a Proceeding, will be made only upon
delivery to the Company of an undertaking by or on behalf of such director or
officer, to repay all amounts so advanced if it is ultimately determined that
such director or officer is not entitled to be indemnified under the Bylaws or
otherwise.
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FIDUCIARY DUTIES
The Certificate of Incorporation provides that a director of the Company
will not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
which concerns unlawful payments of dividends, stock purchases or redemptions or
(iv) for any transaction from which the director derived an improper personal
benefit.
While the Certificate of Incorporation provides directors with protection
from awards for monetary damages for breaches of their duty of care, it does not
eliminate such duty. Accordingly, the Certificate of Incorporation will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of his or her duty of care.
INDEMNIFICATION AGREEMENTS
The Company is party to indemnification agreements with each of its
directors and certain of its officers (each, an "Indemnification Agreement,"
and, collectively, the "Indemnification Agreements"). The Indemnification
Agreements, among other things, require the Company to indemnify the directors
and such officers to the fullest extent permitted by law, and to advance to the
directors all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. The Company must also
indemnify and advance all expenses incurred by directors seeking to enforce
their rights under the Indemnification Agreements, and cover directors and such
officers under the Company's directors' and officers' liability insurance.
Although the Indemnification Agreements will offer substantially the same scope
of coverage afforded by provisions in the Certificate of Incorporation and the
Bylaws, they provide greater assurance to directors and officers that
indemnification will be available, because, as contracts, they cannot be
modified unilaterally in the future by the Board or by the stockholders to
eliminate the rights provided, an action that is possible with respect to the
relevant provisions of the Bylaws, at least as to prospective elimination of
such rights.
There has not been in the past and there is not presently pending any
litigation or proceeding involving a director, officer, employee or agent of the
Company in which indemnification would be required or permitted by the
Indemnification Agreements. In addition, the Board is not aware of any
threatened litigation or proceeding which may result in a claim for
indemnification under any Indemnification Agreement.
The DGCL provides that a contract between a corporation and a director
thereof is not void or voidable solely because the interested director is
present at the meeting authorizing the contract if the material facts relating
to the contract are known to the board of directors and the board of directors
in good faith authorizes the contract by the affirmative vote of a majority of
the disinterested directors, or the material facts relating to the contract are
known to the stockholders and the stockholders in good faith authorize the
contract, or the contract is fair to the corporation at the time it is
authorized or approved.
STATE LAW PROVISIONS
The Company is incorporated under the laws of the State of Delaware.
Section 145(a) of the DGCL provides that a Delaware corporation may indemnify
any person who was, is or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of such
corporation as a director, officer, employee or agent of Another Enterprise. The
indemnity may include expenses (including attorney's fees), judgments, fines and
amounts paid in settlement
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actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was, is or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorney's fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit, provided such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification is permitted
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine that despite the
adjudication of liability, such person is fairly and reasonably entitled to be
indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections 145(a) and 145(b) or in the defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses actually and reasonably incurred in connection therewith; that
indemnification provided for by Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145 of the DGCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 -- Restated Certificate of Incorporation of the Company filed as
Exhibit 3(a) to the Form 10.*
4.2 -- Bylaws of the Company filed as Exhibit 3(b) to the Company's
Form 10-Q for the quarter ended July 4, 1998.*
4.3 -- Form of Rights Agreement between the Company and the Rights
Agent named therein filed as Exhibit 4 to the Form 10.*
4.4 -- The Dial Corporation Employee Stock Purchase Plan.
5 -- Opinion of counsel as to the legality of securities offered
under the Plan.
23.1 -- Consent of Deloitte & Touche LLP.
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23.2 -- Consent of counsel (included on Exhibit 5 hereto).
24 -- Power of Attorney (included on signature page of this
Registration Statement).
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* Incorporated herein by reference.
Item 9. Undertakings
The Company hereby undertakes:
(a) To submit the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan.
(b) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(c) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(e) That, for the purpose of determining any liability under
the Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, the Company has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scottsdale, State of Arizona, on June 30, 2000.
THE DIAL CORPORATION
/s/ Malcolm Jozoff
--------------------------------------
By: Malcolm Jozoff
Its: Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Malcolm Jozoff and Susan J. Riley and each of them as attorneys-in-fact, with
full power of substitution and resubstitution, to execute in the name and on
behalf of such person, individually and in each capacity stated below, and to
file, any and all amendments to this Registration Statement, including any and
all post-effective amendments, as fully as such person could do in person,
hereby verifying and confirming all that such attorneys-in-fact, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 30, 2000.
SIGNATURE TITLE
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/s/ Malcolm Jozoff Chairman of the Board, President and
--------------------------- Chief Executive Officer
Malcolm Jozoff
Executive Vice President and
/s/ Susan J. Riley Chief Financial Officer
--------------------------- (principal financial and accounting officer)
Susan J. Riley
/s/ Joy A. Amundson Director
---------------------------
Joy A. Amundson
/s/ Herbert M. Baum Director
---------------------------
Herbert M. Baum
/s/ Joe T. Ford Director
---------------------------
Joe T. Ford
/s/ Thomas L. Gossage Director
---------------------------
Thomas L. Gossage
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/s/ Donald E. Guinn Director
---------------------------
Donald E. Guinn
/s/ Michael T. Riordan Director
---------------------------
Michael T. Riordan
/s/ Barbara S. Thomas Director
---------------------------
Barbara S. Thomas
/s/ Salvador M. Villar Director
---------------------------
Salvador M. Villar
Constituting a majority of the Board of Directors.
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INDEX TO EXHIBITS
Exhibit Number Description
4.1 Restated Certificate of Incorporation of the Company
filed as Exhibit 3(a) to the Form 10.*
4.2 Bylaws of the Company filed as Exhibit 3(b) to the
Company's Form 10-Q for the quarter ended July 4, 1998.*
4.3 Form of Rights Agreement between the Company and the
Rights Agent named therein filed as Exhibit 4 to the
Form 10.*
4.4 The Dial Corporation Employee Stock Purchase.
5 Opinion of counsel as to the legality of securities
offered under the Plan.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of counsel (included on Exhibit 5 hereto).
24 Power of Attorney (included on signature page of this
Registration Statement).
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* Incorporated herein by reference.
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